DR. NELTE: Last week I received a letter from General Westhoff, from the witnesses’ block of the prison here in Nuremberg, with answers to other questions. So you see that he was here last week.
THE PRESIDENT: The Tribunal will adjourn now.
[A recess was taken.]
SIR DAVID MAXWELL-FYFE: I wonder if I might just add one or two words to clarify the position. I do this because this is a matter to which the British Government, in particular, attached very great importance.
The position was that last September—on 25 September—the British Government sent a full report of this incident to the United Nations War Crimes Commission. That report included statements before a court of inquiry, statements of Allied witnesses, statements taken from German witnesses, including General Westhoff, a copy of the official lists of the dead, and a report of the protecting power. All that was sent by the British Government to the United Nations War Crimes Commission last September; and the statement of General Westhoff, which I certified as being a report of the United Nations War Crimes Commission, was part of an appendix to that report which was then in the custody of the United Nations War Crimes Commission and of which a copy was sent to me here.
I provided that to my French colleagues and that refers to an earlier report made by General Westhoff at an interrogation which took place in London as a part of the matter of that report.
The document which my learned friend was adducing today was a summary of a subsequent interrogation of General Westhoff taken in Nuremberg. My Lord, I wanted to get the position perfectly clear, if I could, to the Tribunal, because, as I say, the incident is one of some importance and the British Government report will be, I hope, tendered the Tribunal by my Soviet colleague, as the incident lies to the east of the line which we have drawn through the center of Berlin and therefore falls within the Soviet case.
But I do not want the Tribunal to be under any misapprehension as to the nature of the earlier report that was made, the one which my learned friend referred to as being able to put in later should the Tribunal desire it.
THE PRESIDENT: But you are agreed that the document which is now being offered to the Tribunal is not a government document within Article 21 of the Charter?
SIR DAVID MAXWELL-FYFE: I quite respectfully agree that that is not really the document on which I intervened. I intervened on the second one.
THE PRESIDENT: At this stage we are not concerned with that document, only with the document offered in evidence to which Dr. Nelte objected, and that document is not a government document within Article 21.
SIR DAVID MAXWELL-FYFE: That I understand is so, but I was really intervening to explain that the second document comes. . . .
THE PRESIDENT: I quite understand, yes. The Tribunal allows the objection of Dr. Nelte. It considers that the document which has been submitted is not a governmental document within Article 21 of the Charter and is therefore rejected. The Tribunal adheres to the decision which I announced just before we adjourned, namely, that if the Prosecution desires to do so, they can produce the interrogation of which the document submitted to them is understood by them to be a résumé; and if they do so, then they must produce the witness, General Westhoff, for cross-examination by the defendant’s counsel. In the alternative, they can produce and call General Westhoff himself and then, of course, he will be liable to cross-examination by the defendants’ counsel.
M. QUATRE: I take notice of the Tribunal’s decisions and I should like to state that as I am eager not to lose time, and much time has already been lost in the course of today’s session, we shall not make use of this document now, nor shall we call General Westhoff. I shall simply request the Tribunal to note that we reserve the right to call General Westhoff, if necessary, when the defendants are cross-examined. May I continue, Mr. President?
THE PRESIDENT: You may.
M. QUATRE: I had reached, Gentlemen, Page 36 of my brief, concerning the treatment of Allied airmen who were prisoners. This point had already been discussed at some length before you.
THE PRESIDENT: Perhaps I ought to say that the Tribunal will be willing to sit this evening until half past five, in order that the case against the Defendant Hess may be concluded; but it is very important that the case should be concluded tonight, against the Defendant Hess, because the Soviet Prosecution will require the whole day for their presentation tomorrow.
M. QUATRE: Mr. President, I shall be very brief. I shall pass straight on to my conclusion. I shall say nothing about the treatment of Allied airmen. You know the circumstances, as well as the treatment of commando troops, and I once more beg the Tribunal’s pardon for having unintentionally spoken at such length. I shall now conclude.
It is definitely the conception of criminal intention which was present in the drafting of the orders and directives which we have just examined. The reality of the acts perpetrated as a result of these decisions cannot be denied, nor should we overlook or underestimate this moral element, qualified by French penal law, to use the formula of an eminent jurist as “knowledge on the part of the agent of the illicit character of the acts performed by him.” The two defendants were fully cognizant of the illicit nature of orders which they knew would be scrupulously carried out.
With Keitel and Jodl the systematic rejection of the laws and customs that mitigate the horrors of war and the setting up, as a matter of principle, of the most barbarous practices, are the reflection of the norms and precepts of National Socialism and its leader, for whom all international rules, all conventions, any ethical code represented an intolerable restraint, an obstacle to the goal to be attained, inasmuch as they interfered with the higher interests of the German community.
It is not a matter of indifference to know whether Keitel and Jodl were urged by personal ambition or whether, true to the pan-German tradition of the German General Staff, they yielded to the National Socialist frenzy in the hope of one day seeing the arrogant pretensions of Germany fully realized.
The most important point in our opinion is the personal contribution which they consciously and voluntarily made to the enterprise of destruction carried out by the Third Reich.
For 10 years Keitel was the “king pin” of the German Army and from 1936 onward Jodl did not cease to be his collaborator. Before the war they worked to promote the war, and during the war they deliberately flouted the rules of law and justice, the sole safeguards of fighting men, held the dignity of mankind in utter contempt, and thus failed to do their duty as soldiers.
Nacht und Nebel, the Kugel Aktion, the Sonderbehandlung, the destruction of our cities—all this will be forever associated with the names of these men, and particularly with the name of Keitel who dared to proclaim that human life was less than nothing.
And at this moment we cannot prevent our thoughts from turning towards the innumerable absent ones who for that reason sacrificed their lives.
LIEUTENANT COLONEL J. M. G. GRIFFITH-JONES (Junior Counsel for the United Kingdom): May it please the Tribunal, it is my duty to present the evidence upon Counts One and Two of the Indictment against the Defendant Hess.
My Lord, the trial brief, which I believe the Tribunal have before them, has been made out in the form of a fairly full note of the evidence to which I intend to refer, and it may be of convenience to the Tribunal to have it before them during the court sitting.
May I first prove the positions which he held and which are set out in Appendix A of the Indictment, and say a word about his early life.
The defendant was born in 1894. He is now 52 years old. He served in the German Army during the last war and in 1919 he went to Munich University. There he became the leader of the Nazi organization in that university and in 1920 he became a member of the Nazi Party itself. He was among the first of the SA, and he became the leader of the students’ corps of police. In 1923 he took part in the Munich Putsch, and as a result of that he was sentenced to 18 months in prison. Half of that period he served in jail with Hitler himself. I stress