Dr. Nelte, I am told, will be satisfied with an interrogatory, and the Prosecution have no objection to an interrogatory.
THE PRESIDENT: Dr. Nelte.
DR. NELTE: That is correct, yes. If I may have permission, then I would be agreeable to permit the questions to Dr. Navile which I have to put to him in writing. But may I add something here, not to this application, but withreference to another application, which I have already, I think yesterday or the day before, submitted to the Prosecution through the translating department. My application regarding Hitler's stenographers and their admissibility as witnesses had been refused by the Tribunal, saying that they are irrelevant. I have now received a letter, together with an affidavit from one of these stenographers, and in that affidavit I find a passage which refers to Keitel's conduct towards Hitler during his reports and during their conferences. It has been said in public, and it has been said in this courtroom, that the defendants are always quoting dead people whenever they want to state anything in their favor, Keitel would like to ask that the part of the affidavit, which I shall submit to the Tribunal, having already submittedit to the Prosecution, should be admitted so that the witness can be forfeited, but that, nevertheless, I would have the possibility to submit that passage of the affidavit, provided that the Prosecution would agree.
SIR DAVID MAXWELL FYFE: If Dr. Nelte, My Lord, will submit the passage, we will consider it, but I have not had the chance of doing it up until now.
THE PRESIDENT: Well, you will carry out that course, if you want no objection to it.
SIR DAVID MAXWELL FYFE: Verywell, you will let me have it, a copy of it?
DR. NELTE: Yes.
SIR DAVID MAXWELL FYFE: My Lord, the next application is on behalf of the defendant von Schirach, a request to submit an affidavit of Dr. Hans Carossa. The gist of the affidavit is that the defendant tried to keep himself independent of Party directives in matters of literature and art and that, while Gauleiter in Vienna, he repeatedly intervened on behalf of Jews and concentration camp inmates.
My Lord, the Prosecution has no objection to an affidavit being filed.
SIR DAVID LAXWELL-FYFFE: The next is an application on behalf of the Defendant Funk for interrogation to be submitted to Mr Messersmith.
THE PRESIDENT: Just wait a minute.
SIR DAVID MAXWELL-FYFFE: I am sorry.
THE PRESIDENT: Yes, sir David?
SIR DAVID MAXWELL-FYFFE:My Lord, the next is an application on behalf of the Defendant Funk, asking for interrogatiories to be submitted to or Messersmith dealing with Funk's relation to the Party and his work in the Reich Ministry of Propaganda. My Lord, the Prosecution have no objection, but remind the Tribunal that the defendant Funk has already, on the 15th of March, asked permission to submit another affidavit to Mr Messersmith, dealing with MR Messersmith's affidavit. The Prosecution did not raise any objection, but the Tribunal has not, as far as we know granted that yet. So I wanted the Tribunal to know there was a previous request -
THE PRESIDENT: Do you mean an affidavit or interrogatory on the 15th of March?
SIR DAVID MAXWELL-FYFFE: Interrogatories.
THE PRESIDENT: Interrogatories? surely we must have dealt with it.
SIR DAVID MAXWELL-FYFFE: Well, that is the information that my office had They haven't seen the -
THE PRESIDENT: I see.
SIR DAVID MAXWELL-FYFFE: In case the Tribunal hadn't dealt with it, we want to know that there is one outstanding. We have no objection to either.
Then the Defendant Rosenberg requests Hitler's decree to Rosenbers of June 1943. There is no objection on the part of the Prosecution. I am told that we can't trace any previous application but the position at the moment is that we haven't any objection to it. for Proffessor Kossuth, a resident of Prague. Really they ask for interrogatories My, Lord, there is no objection to interrogatories. from Dr. Dix on behalf of the Defendant Schacht, the downgrading of Herr Huelse, who was drafted as a witness, to an affidavit. My Lord, we have no objection to that.
DR. DIX, (Counsel for the defendant Schacht): This is the witness Hueles. He had been granted to me as a witness. So as to simplify and abbreviate, I have decided to forfeit the right to hear the witness and use an affidavit. I have received the affidavit. Whilst this application of mine was pending, however, the witness arrived in Nurnberg and he is here now, and I think therefore it would be best if he stayed and I had permission to examine him in such a way that I present his own affidavit to him and then ask him whether he will identify it. And if I could have your permission, I would like to ask him one of tow additional questions. I think that would be much more practical than to have the witness come here and then send him away again and have nothing but an affidavit.
What I wanted to say was to point out the difficulty of getting him here -
SIR DAVID MAXWELL FYFE: The withdraw the application to have the affidavit -
THE PRESIDENT: Is the witness Huelse a prisoner or not, or an internee?
DR. DIX: No, he is a free witness. He is a free witness. He is not in detention. And he is going about Nurnberg freely.
THE PRESIDENT: Can he remain here until the Defendant Schacht's case comes on?
DR. DIX: I have talked to him and he has told me that he can stay, yes.
SIR DAVID MAXWELL-FYFE: My Lord, we have no objection. The Tribunal has already granted him as a witness. If Dr. Dix wishes him as a witness, of course we have no objection to it. an affidavit from a Dr. Herold. To put it quite shortly, the Prosecution suggests that it should he interrogatories rather than an affidavit, and on that basis we would make no objection.
My Lord, there is only one thing I have to say. We had a most useful discussion with Dr. Dix last night, following out the Tribunal's suggestion of going through the documents. Dr. Dix was most helpful in explaining the purpose of his documents and what they were. I do suggest that if any of the Defense Counsel when they are explaining the documents would also care to explain the purport of their witnesses -- I don't want to embarrass them in any way -- but if they would voluntarily explain the purport of witnesses, either to Mr. Dodd or myself, we might be able to save them a great deal of time, by indicating whether the evidence of that witness would be agreed to or might be the subject of objection. if they would extend it to witnesses, I am sure we could have most profitable cooperation.
THE PRESIDENT: You are suggesting. Sir David, are you, that they should explain to you the nature of the evidence which the witness was going to give?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: And if the Prosecution were not going to dispute it, that it might be incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: Yes, that we could probably dispense with the witness, and probably incorporate that in an affidavit. Of course, I have been told the general purport of the witness, because I attended on the application, but if they could elaborate on it a little more and let me know what the scope of the witness's testimony would be, I could concede, either in whole on in part, and save them a lot of work and the Tribunal a lot of time.
THE PRESIDENT: Well, I think the Tribunal would like to know whether the Defendants' Counsel think that is a possible course, whether it might lead to same shortening of the Defense. Could Dr. Dix possibly tell us whether he thinks it would he possible?
DR. DIX: Of course, I can't make the statement on the reaction of my colleagues, since I cannot read their minds. All I can state at the moment is that the type of conversation which I had the honor of having with Sir David yesterday appears to be extremely practical and very advantageous. Personally, I am inclined to think that my colleagues too would probably agree to that, unless there are some difficulties that might arise.
THE PRESIDENT: Do you understand what Sir David was suggesting, that such a conversation should apply not only to documents but also to witnesses and that if you could indicate more fully than you do in your applications what the subject of the testimony was going to be, possibly the Prosecution might he able to say in those circumstances that upon those matters we should not propose to dispute the evidence and therefore it might he incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: My Lord, if your Lordship allows me to interject, if they care to bring a statement on a particular witness's testimony, the Prosecution would, I am sure, in many particulars be prepared to say, "Well, you produce that statement on that point and we will admit it, without any formality."
THE PRESIDENT: Perhaps, Dr. Dix, you and the other Counsel for the Defendants could consider that matter.
DR. DIX: Yes. I understood it exactly as you, My Lord, have just stated it, and of course I had talked about both witnesses and documents with Sir David. And in that sense we came to an agreement.
THE PRESIDENT: If that is all we need do at the moment, then -
SIR DAVID MAXWELL-FYFE: If your Lordship pleases, yes.
THE PRESIDENT: -- then the Tribunal will adjourn.
(The Tribunal adjourned until 8 April 1946 at 1000 hours.)
BY SIR. DAVID MAXWELL FYFE: who escaped from Sagan Camp. As I understand your evidence, very shortly after the escape, you had this interview with Hitler at which certainly Himmler was present. That is right, isn't it?
Q Yes. Now, you say that at that conference Hitler said that the prisoners were not to be returned to the Wehrmacht but to remain with the police. They were really your words. That is right isn't it?
Q That is that you said. So that is what you say took place. In your own mind, you were satisfied Then you left that conference, that these officers were going to be shot, were you not?
Q Now, will you agree with this? You were satisfied that there was a grave probability that these officers would be shot? not discussed at the conference. you not?
q I don't know if you cam remember, because General Westhoff was a comparatively junior officer compared with yourself, but he sold that it was the first occasion on which you had sent for him. Does your memory boar that out?
A No, I did not call him. He had been brought along so that I could meet him because I had never mot him before. I had only summoned General Graevenitz.
Q You had never met him before? Do you agree that you had never met General Graevenitz before since he had come into that job?
Q That is what he said. Now you agree, as I understand your evidence, that you were very excited and nervous? to this effect, "Gentlemen, this is a bad business" or "This is a very serious matter" or something of that kind? "This morning Goering reproached me in the presence of Himmler for having lot some more prisoners of war escape. It was unheard of."
A That must be a mistake of Westhoff,s part. A day later, we were at Berchtesgaden and General von Graevenitz and Westhoff called on me the next day, the next morning, and it must be a mistake; also that I mentioned the name of the Reichsmarshal G oering in this connection. That must also be a mistake.
Q So you weren't very sure about that, were you, as to whether or not G oering was present. You weren't very sure, were you? I was told that witnesses had stated that Goering was present; thereupon I said it is not completely impossible but I do not exactly recall it.
Q Well, that is quite right. When you were interrogated an American officer put to you exactly the sentence that I put to you now. He put that sentence to you, from General Westhoff's statement. Do you remember that he read what I have read to you now? "Gentlemen. this is a bad business; this morning Goering reproached me in the presence of Himmler for having let some more prisoners of war escapt. It was unheard of." Do you remember the interrogator put that to you, didn't he?
A. It was something like that but I believe I said that I was not certain that Goering was present at all.
Q. I was going to put exactly what you said -- and you listen carefully, and if you have any disagreement, tell the Tribunal. You said, "I request that you interrogate Jodl about the whole incident and the attitude which I displayed during the whole conference in the presence of Goering, of whose presence during that conference I am not absolutely certain, but Himmler was there." That was your view when you Were interrogated on the 10th of November, wasn't it? You said" .... during the whole conference in the presence of Goering, of whose presence I am not absolutely certain...." That was your view on the 10th of November?
A. No, that must have been misinterpreted through the record, which I never read. I expressed my uncertainty about the presence of Goering and in the same connection put the question and the request to interrogate Colonel General Jodl in this connection also, since I was -
Q. You agree that you did ask that General Jodl should be interrogated?
A. I made that proposal, yes.
Q. Well now, what do you complain about as to the next sentence?
"During the whole conference in the presence of Goering, of whose presence during that conference I am not absolutely certain --"Wasn't that your view?
A. Yes, I was rather surprised at this interrogation at this question on that matter.
In the meantime I have become entirely clear and I am certain
Q. Had you discusses it with Goering while you were noth awaiting trial?
A. After my interrogations I had the occasion to speak with the Reich
Q. Yes, as you say, the Reichmarshal said to you he had not been present at the interview.
That is right, is it not?
A. General Jodl also confirmed that, that is, that the Reichmarshal was
A. Well now, did you tell General von Graievenitz and General Westhoff provide another sixty to seventy thousand men for the Ladnwache?
Did you tell them that?
A. No, that is also a misunderstanding, I did not say that.
Q. You said that Himmler had interfered.
A. I said only that Himmler had reported the fact of the escape and I to the camp.
I was not going to make a report to the Fuehrer on that day.
Q. Now, whatever you said to General von Graevenitz, you agree that General von Graevenitz protested and said:
"Escape is not a dishonorable offense, that is especially laid down in the Convention."
Did he not say that?
A. It was clear to me and I believe he did say that but I might add that the statement of General Westhoff is a matter of memory which goes back over several years.
Q. Yes, but you agree, as I understand your evidence, that General von Graevenitz did make a protest about the action that was taken, is not that so?
A. I believe yes.
Q. And then when he made the protest did you say words to this effect -I am reading of course from General Westhoff's statement:
"I do not care a damn. We discussed it in the Fuehrer's presence and it cannot be altered."
Did you say words to that effect?
A. No, it was not like that but I do believe I said similar things.
Q. Similar?
A. But we are not concerned with -
Q. Similar, to that effect?
A. I am sure I said something similar.
Q. And after that did you say that your organization, the Kriegsgefangenenwesen, were to publish a notice in the prison camps where prisoners of war were being held, telling all prisoners of war what action had been taken in this case in order that it would be a deterrect to other escapees? organization, to publish a notice in the camps saying what action had been taken in order to act as A deterrent?
A. From the report by the British Government I thought about this and I am of the opinion that there must be some confusion as to time. At this conference I am quite sure I did not say this, I said that later, several days later.
Q. Well, you will find it is stated in the statment of General Westhoff that we put in, at the bottom of page 3. General Westhoff says:
"The Field Marshal gave us detailed instructions to publish a list at the camps, giving the names of those shot as a warning. That was done. That was a direct order that we could not disobey".
says:
"This must start. We cannot allow this to happen again. The officers who have escaped will be shot. I must inform you that most of them are already dead and you will publish a notice in the prison camps where prisoners of war are held telling all prisoners of war what action has been taken in this case in order that it will be a deterrent to other escapes."
A May I make a statement to this?
DR. NELTE. (Counsel for Defendant Keitel): Mr. President, the British Prosecutor is referring to a document which I submitted in my document book, I assume that is correct, and a document which the French Prosecution wanted to submit and which I objected to, since it is a compilation of interrogations Which Colonel Williams compiled. can prove that this document does not agree with the testimony given by General Westhoff in twenty-three points. He has given me the necessary material and testimony. I can only bring him into the witness box tomorrow and I therefore ask, if the British Prosecutor is referring to the Witness Westhoff, at least that statement of Westhoff be produced which at the request of the American Prosecution was attested to by him under oath by Colonel Williams. This affidavit up to how has not been produced wheras all other pieces of evidence from him only contain reports which have never been submitted to Westhoff for his signature or for his acknowledgement or have they been confirmed by his oath.
SIR DAVID MAXWELL-FYFFE:My point was to make it quite clear that I was not putting anything in from the first statement which was not contained in the defendant's document book. I thought that the complaint could be the other way, that if I took our own evidence alone that then it would be said documents submitted in the defendant's document book. I have carefully callated them both. There is practically no difference between them but I thought it was only fair to put both sets of words.
THE PRESIDENT: The Tribunal thinks the cross-examination is perfectly proper. Of course if Dr. Nelte does call General Westhoff as a witness, he will be able to get from him any corrections which General Westhoff thinks are necessary which he makes to the affidavit.
SIR DAVID MAXWELL-FYFFE: Yes, My Lord. BY SIR DAVID MAXWELL-FYFFE:
Q Now, what I want to know is: Did you give orders to General von Graevenitz and General Westhoff that were to be published in the camps as what measures had been taken with regard to those officers?
A Yes, but several days later; not on the some pay as these officers were present.
Q How long later? event, when I found out that shootings had taken place. beginning, but what was published? what did you say was to be published as to the measures that had been taken?
A In the camp there was to be a warning published. In my opinion, we were not to talk about shootings but a warning that those the were caught in flight would not be returned to the camp, but I do not remember the exact wording. It was traceable back to an order which I had received from the Fuehrer regarding the matter of shootings. was probable, according to your recollection, that those who attempted to escape would be handed over to the SD and, Certainly, that very severs measures would be taken? Is that a fair way of putting your recollection of the order? to the effect that those who attempted to escape would not be returned to the camp, and that was the contents of this publication, according to my recollection which I transmitted later, but the verbatim I did not determine; the Luftwaffe was to be notified. to you with a draft order in writing, did he not?
A I do not believe that he came to me. I believe he sent me this.
Q I8m sorry, but when I said "come back to you", I was talking generally; you're quite right that he passed on for your consideration a draft order in writing for you to approve; that's right, isn't it?
A I do not believe that it was an order; as far as I remember at all, it was just a note, but it was not an order. However, I must add that in the course of the interrogation by Colonel Williams, I was reminded of this matter.
Q Well, what General Westhoff says is:
"Contrary to Fieldmarshal Keitel's order, I pretended that I hadn't understood properly. I worked the thing out on paper. I said to Oberstleutnant Kr ft, 'I want to have the word "shoot" included so that Keitel can see it in writing. He may adopt a different attitude then'" Now, this is a bit later:
" hen I got the thing back, he had written the following in the margin; 'I didn't definitely say "shoot"; I said "hand them over to the police and hand them over to the Gestapo."
Then adds General Westhoff:
"So that was a partial climb down," Now, did you put a note on it:
"I didn't definitely say 'shoot'; I said 'hand them over to the police and hand them over to the Gestapo'"; did you? Westhoff. I did make a notation in the margin in that sense.
Q You see the point that I'm putting to you, defendant? I want you th have it perfectly clear. Rightly or wrongly, General Westhoff believed that you had inserted the word "shoot" and General Westhoff, to protect himself, put it back to you, and then you say, "Ididn't definitely say 'shoot'"; I said 'Hand them over to the SD or the Gestapo." "shoot"; I did not say that. That was what Colonel Williams told me, and that is a matter of official record of my interrogation.
Q Well, now, what I want to know, and it's perfectly clear, is, no you deny that that in substance represents what you put in the document: "I didn't definately say 'shoot'; I said, 'Hand them over to the police or hand them over to the Gestapo"'? Did you put words to that effect on the document?
I wanted to make it clear what I had said to those two officers. It was nothing new, but it was a clarification of what I had said.
Q Now, the next point that I want to direct your attention to: PW staff, Kriegagefangenen Wesen?
Q What was his position in the OK?
A I believe there was a Colonel Raymond. He was chief of the department, but he was not concerned with the prisoner of war system; he was the department chief in the general Wehrmacht Amt.
Q In your office? meeting which Colonel von Reuermund took the chair, attended by Gruppenfuehrer Mueller from the Gestapo, Gruppenfuehrer Nebe, and Colonel Wilde from the air Ministry, from their PW inspector of 17; do you know that?
A No, I never heard anything about this matter. It is entirely unknown to me and has remained unknown to me. colonel from the Air Ministry, two extremely important officials from the police, and they have a meeting to discuss this matter two days after you had your first meeting, one day after you had seen von Graevenitz and Westhoff, and you didn't know a word about it?
departments. I do ask you in fairness to yourself to consider this. Are you telling this Tribunal that no report was ever made to you of that joint meeting between the representative of the OKW, high police officials and the Air Ministry, and it never came up to you? Now, really think before you answer.
A I cannot remember it at all, no matter how hard I try. I was surprised when I was confronted with the details of this conference, but I do not recall it.
Q Do you know that--I put it in Colonel Felder's statement when I was cross-examing the defendant Goering--he said that at that conference it was announced that those officers were to be shot and that many of them had been shot? Did no report come to you that those officers were being shot and were to be shot?
A No, not on the 27th. We've talked about it previously, when I received the first report. At that time I know nothing about it, on that day, or even a day subsequent, regarding this conference. that they were being shot on the 29th; that would be a Thursday? was even later than that. I believe it was several days later.
Q Well, let us, defendant, make every point in your favor. Let's take it that it was, say the 31st, or even Monday, the 2nd of April. By Monday, the 2nd of April, that's nine days after the escape, you know then that these officers were being shot? the occasion when I again came to the Berghof for a situation briefing, and I learned it through the adjutant of the Fuehrer, but at that time I was not told that all of these officers had been shot; but I was told that some of them had been shot in flight, and that was told to me before the beginning of the situation brief.
Q They weren't all shot until the 13th of April, which was nearly another fortnight. were you told of the matter, in which they got out of the cars to relieve themselves and then shot in the back of the head by someone with a revolver? Were you told of that? been given to the Fuehrer that shootings had taken place in the escape.
Q Now, I want you to come to one other point, later on: you remember that my colleague, Mr. Eden, on behalf of the British Government, made a statement in the House of Commons later on, toward the end of June. Remember that? your officers not to make contact with the Foreign Office or the Gestapo, to leave the matter alone and not try and find out anything about it, is that right? Wehrmacht was not involved in any of those means, that the officers of the prisoner-of-war system could not give any information, since they had not been participating and did not know what had gone before. the matter alone and not to get in touch with the Foreign Office or the police?
A No, that is not correct; that is not correct that way. The chief of the Amt Ausland was connected with the Foreign Office and I was concerned only and said that the officers should not give any information about this case and about matters concerned with it, since they were not participating and had only hearsay and rumors to go on. the effect of my previous question; I won't argue with you. I will come to the next point. You had an officer on your staff named Admiral Buerckner, didn't you?
Q He was liaison between your office and the Foreign Office?
an answer to Mr. Eden's statement? that effect, even though he was not to have any evidence or documents at his disposal; that is, he could not have that material from the Wehrmacht.
Q I don't want to read it again; I read the reply a day or two ago. But eventually the reply was drawn up, I think by the Foreign Office in conjunction with Oberstleutnant Kraft of your office, wasn't it?
Q Don't you remember Kraft-the prisoner-of-war system. I did not give any instructions to the Oberstleutnant concerned.
Q But didn't he go to Berchtesgaden to assist the representative of the Foreign Office and Hitler in drawing up a reply? and did not see him. Westhof, all your officers touched their heads and said, "And". You have seen that statement, haven't you, "When we read this not to England in the newspaper we were all absolutely taken aback; we all clutched our heads-- 'Mad'-we could do nothing about the affair." All your officers and you yourself knew the reply was an utter and confounded lie; wasn't it a complete and utter lie? You all knew it. not based on the truth.
Q So that it comes to this, Defendant, doesn't it: That you will go as far as this: You were present at the meeting with Hitler and Himmler. That is what you say. At that meeting Hitler said that the prisoners who were caught by the police were to remain in the hands of the police. You had a strong probability that these prisoners would be shot and with that you used this incident as a deterrent to try and prevent other prisoners of war escaping. All that you admit, as I understand your answers this morning don't you?