I wish that this testimony should be stricken from the Record for these reasons: Firstly, as regards yesterday’s testimony there was no question of testimony by a witness. A witness should base his testimony on his own knowledge, which can be based only on his own observations. These prerequisites are not present in the points to which objection is made. For the most part the witness repeated statements made by other people, some of them actually made by people whom he himself did not know. The knowledge of this witness can consequently be ascribed only to a study of the documents.
Secondly, any third party is in a position to give similar testimony as soon as the documents to which this witness had access are put at his disposal, and if he is also in a position to talk to the people to whom the witness talked and who gave him his information. It is consequently proved that this witness, Van der Essen, was not a genuine witness at all, because such a witness cannot be replaced by a third person who may happen to come along.
Thirdly, although the Tribunal, in accordance with Article 19 of the Charter, is not bound by the ordinary rules of evidence, this evidence must be rejected because it has no probative value which can be determined by the Court. This emerges of necessity from the fact that the sources of the witness’ testimony cannot be taken into consideration.
I regard it as my duty to point out that the introduction of such indirect proof cannot lead to the discovery of the truth regarding the points in dispute.
THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): The Tribunal would like to hear, M. Faure, what you have to say in answer to the motion which has just been made.
M. FAURE: Gentlemen, Your Honors, I should like, first of all, to observe that, as already indicated by the counsel who has just spoken, the Charter of this Tribunal provides that it shall not be bound by the formal rules concerning the burden of proof. But, apart from this, I consider that counsel’s objection cannot be upheld; this objection being based on three considerations which he has enumerated but which, as I understand, boil down to one single objection, namely, that this witness was an indirect witness. I would like to emphasize the fact that I called Mr. Van der Essen as a witness precisely because of his capacity as a member of the official and governmental Belgian commission of inquiry into the study and research of war crimes.
It is in conformity with all legal procedure with which I personally am acquainted that a person who has made investigations in connection with criminal matters may be called before a court of justice to state the conditions under which the inquiry was made and the results arrived at. It is therefore not necessary that the witness who has just testified regarding an investigation should have been himself an eye-witness of the criminal activities which this investigation is intended to bring to light.
Mr. Van der Essen, therefore, in my opinion, testified to facts of which he has personal knowledge, to wit, as regards the matter of Stavelot, he stated that he himself had heard witnesses and that he verified the authenticity of this testimony. As concerns the matter of the Library of Louvain, he testified as to the existing minutes of the commission of which he is a regular member.
I add that this procedure appears to me to have the advantage of avoiding the necessity of calling a large number of individual witnesses to the witness stand. However, in order to have every possible guarantee regarding the facts laid before the Tribunal in evidence, I have decided to bring here the briefs, the texts of the testimonies to which the witness referred. I shall then be able to communicate to the Defense the affidavits of the witnesses who were mentioned yesterday, and I think that this will give the Defense ample guarantee.
I therefore propose to the Tribunal to reject the objection as far as the admissibility of the testimony is concerned; it being understood that the Defense will discuss the value and probative force of this testimony as it sees fit.
THE PRESIDENT: M. Faure, you said something about the affidavits of witnesses which you could furnish to the Defendant’s Counsel. I understand that you intended also to put in the governmental report or the committee’s report with reference to which the witness had testified, did you not?
M. FAURE: Yes, Mr. President.
THE PRESIDENT: But you intended also, as a matter of courtesy, to furnish the affidavits which were before that committee to the Defendants’ Counsel; is that what you meant?
M. FAURE: Yes, Mr. President; if this meets with the approval of the Tribunal.
THE PRESIDENT: The governmental report, I suppose, does not actually annex the affidavits, does it?
M. FAURE: Yes, Mr. President, precisely.
THE PRESIDENT: It does? The affidavits are part of the report, are they?
M. FAURE: The report which was submitted does not contain the elements on which the witness depended yesterday with regard to certain points, particularly because the investigation on Stavelot was very long and very conscientious and has not been summed up in time. I said, therefore, that I proposed to submit these complementary elements as evidence and in this way to communicate them to the Defense.
THE PRESIDENT: That is what I thought; that is to say, the report did not contain all the details which were in the affidavits or evidence?
M. FAURE: No, Your Honor.
THE PRESIDENT: Therefore, you thought it right, as a matter of courtesy, to allow the Defendants’ Counsel to see those details upon which the report proceeded. The Tribunal understands that.
The Tribunal will consider the motion which has been made. We will consider the motion which has been made at a later stage. You can now proceed with your argument.
M. FAURE: Your Honors, I should like, first of all, to point out to the Tribunal that since a certain amount of time has been given to witnesses and discussions, and as I do not wish to exceed the time limit which was announced, I am compelled to shorten to a considerable extent the presentation of the brief which I am now presenting on the subject of propaganda. I shall therefore ask the Tribunal kindly to excuse me if I occasionally hesitate during this presentation, inasmuch as I shall not follow my brief exactly.
I indicated yesterday the method employed by the Germans with regard to the freedom of public meetings and of association, which they suppressed. When they did uphold these rights they exploited them to their own advantage. I should like now to say something about books and publishing.
The German authorities, first of all, issued an ordinance on 30 August 1940, published in the Journal Officiel of 16 September, forbidding certain school books in France. We have already seen that they had done the same thing in Belgium.
Another step taken by the Germans was to prohibit a certain number of books of which they disapproved. I present in this connection Document Number RF-1103, which is the “Otto” list, published in September 1940; it is a list of 1,074 volumes forbidden by the Germans. I shall not, of course, read it to the Tribunal. It appears in the document book under Document Number RF-1103, as I have just said.
A second “Otto” list, longer than the first, was drawn up later and published on 8 July 1942, and I present it as Document Number RF-1104. The conclusion to this second document, which is the last page in my document book, gives a clear indication of the principles on which the German authorities worked. I read a few lines:
“As a matter of principle, all translations of English books, except the English classics, are withdrawn from sale.”—And further—“All books by Jewish authors, as well as books in which Jews have collaborated, are to be withdrawn from sale with the exception of works of a scientific nature where special measures are anticipated. From now on biographies of Jews, even if written by French Aryans, as, for instance, the biographies of the Jewish musicians Offenbach, Meyerbeer, Darius Milhaud, et cetera, are to be withdrawn from sale.”
This