The Nizkor Project: Remembering the Holocaust (Shoah)

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It is familiar law in my country that if two or more persons

set out to rob a bank, in accordance with a criminal scheme

to that end, and in the course of carrying out

                                                  [Page 145]

their scheme one of the conspirators commits the crime of

murder, all the participants in the planning and execution

of the bank robbery are guilty of murder, whether or not

they had any personal participation in the killing. This is

a simple rule of law declared in the Charter. All the

parties to a Common Plan or Conspiracy are the agents of

each other and each is responsible as principal for the acts

of all the others as his agents.

So much for the terms of the Charter having a bearing on

this aspect of the case.

I invite the attention of the Tribunal to the portions of

the Indictment lodged against the defendants on trial which

relate to the crimes of illegal war or war of aggression.

Particularly I ask the Tribunal to advert to the statements

of offences under Count 1 and Count 2 of the Indictment in

this case.

The statement of offences under Count 1 of the Indictment is

contained in paragraph III. The offences there stated, so

far as pertinent to the present discussion, are:-

    "All the defendants, with divers other persons, during

    a period of years preceding 8th May, 1945, participated

    as leaders, organisers, instigators, or accomplices in

    the formulation or execution of a Common Plan or

    Conspiracy to commit, or which involved the commission

    of, Crimes against Peace, as defined in the Charter of

    this Tribunal. . . . The Common Plan or Conspiracy

    embraced the commission of Crimes against Peace, in

    that the defendants planned, prepared, initiated and

    waged wars of aggression, which were also wars in

    violation of international treaties, agreements or

    assurances." . . .

The statement of offences under Count 2 of the Indictment is

also relevant at this point. It must be obvious that

essentially Counts 1 and 2 interlock in this Indictment. The

substance of the offence stated under Count 2, paragraph V

of the Indictment is this:-

    "The emphasis in the statement of offences under Count

    1 of the Indictment is on the Common Plan or

    Conspiracy. The emphasis under Count 2 of the

    Indictment is on the substantive crimes to which the

    Conspiracy related and which were committed in the

    course of and pursuant to that conspiracy."

I should hasten to add at this point that in the division of

the case as between the Chief Prosecutors of the four

Prosecuting Governments, primary responsibility for the

presentation of the evidence supporting Count 1 has been

placed on the American prosecutor, and primary

responsibility for the presentation of the evidence

supporting Count 2 of the Indictment has been placed on the

British prosecutor.

But as we shall show somewhat later, there will, to some

extent, be a co-operative effort as between the prosecutors

to present both counts together. In addition to the

statement of offence relating to illegal warfare in

paragraph III under Count 1 of the Indictment, Count 1 also

contains what amounts to a bill of particulars of that

offence. In so far as those particulars relate to illegal

warfare, they are contained in paragraph IV (F) of the

Indictment which sets out in the English text on page 7

through to the top of page 10 under the general heading

"Utilisation of Nazi Control for Foreign Aggression." The

allegations of this bill of particulars have been read in

open Court, in the presence of the defendants; and the

Tribunal, as well as the defendants, are certainly familiar

with the contents of those allegations. I call attention to

them, however, in order to focus attention on the parts of

the Indictment which are relevant in consideration of the

evidence which I intend to bring before the Tribunal.

My introduction to the presentation of evidence in this

matter would be faulty if I did not invite the Tribunal to

consider with me the relationship between history and the

evidence in this case. Neither Counsel nor Tribunal can

orient themselves to the problem at hand-neither counsel nor

Tribunal can present or

                                                  [Page 146]

consider the evidence in this case in its proper context-

neither can argue nor evaluate the staggering implications

of the evidence at hand to be presented without reading that

history, reading that evidence against the background of

recorded history, and by recorded history, I mean the

history merely of the last twelve years.

Justice Oliver Wendell Holmes, of the U.S. Supreme Court,

found in his judicial experience that "a page of history is

worth a volume of logic." My recollection is that he stated

it perhaps better, perhaps earlier in the preface to his

book on the common law where he said, I think, " The life of

the law has been not logic but experience." I submit, that

in the present case, a page of history is worth a hundred

tons of evidence. As lawyers and judges we cannot blind

ourselves to what we know as men. The history of the past

twelve years is a burning, living thing in our immediate

memory. The facts of history crowd themselves upon us and

demand our attention.

It is common ground among all systems of jurisprudence that

matters of common knowledge need not be proved, but may

receive the judicial notice of courts without other

evidence. The Charter of this Tribunal, drawing on this

uniformly recognised principle, declares in Article 21:-

   "The Tribunal shall not require proof of facts of common

   knowledge but it shall take judicial notice thereof."

The facts of recorded history are the prime example of facts

of common knowledge which require no proof. No court would

require evidence to prove that the Battle of Hastings

occurred in the year 1066, or that the Bastille fell on the

14th of July, 1789, or that Czar Alexander II freed the

serfs in i863, or that George Washington was the first

President of the United States, or that George III was the

reigning King of England at that time.

If I may be allowed to interpolate, an old lawyer-professor

of mine used to present a curiosity of the law - that a

judge is held to responsibility for no knowledge of the law

whatsoever, that a lawyer is held to a reasonable knowledge

of the law, and a layman is held to an absolute knowledge of

all the laws. It works inversely as to facts, or facts of

common knowledge. There, the judge is imputed to know all of

those facts, however many of them he may have forgotten as

an individual man. So one of the purposes of this

presentation will be to implement the judicial knowledge, if

a hypothesis actually exists.

It is not our purpose however, to convert the record of

these proceedings into a history book. The evidence which we

offer in this case is evidence which for the moment has been

concealed from historians. It will fill in recorded history,

but it must be read against the background which common

knowledge provides. The evidence in this case consists

primarily of captured documents - these captured documents

fill in the inside story underlying the historical record

which we all already knew. The evidence which we will offer

constitutes an illustrative spot-check on the history of

recent times as the world knows it. The evidence to be

offered is not a substitute for history.  We hope the

Tribunal will find it to be an authentication of history.

The evidence which we have drawn from captured documents

establishes the validity of the recent history of the past

twelve years - a history of many aggressions by the Nazi

conspirators accused in this case.

As I offer to the Tribunal document after document, I ask

the Court to see in those documents definite additions to

history, the addition of new elements long suspected and now

proved. The elements which the captured documents on this

particular aspect of the case will add to recorded history

are the following:-

(1)  the conspiratorial nature of the planning and

     preparation which underlay the Nazi aggressions already

     known to history;  (2) the deliberate premeditation which

     preceded those acts of aggression; (3) the   evil motives

     which led to the crimes; (4) the individual participation of

     named persons in the Nazi conspiracy for aggression; (5) the

     deliberate falsification of the pretexts claimed by the Nazi

     aggressors as their reason for their criminal  activities.

                                                  [Page 147]

These elements the captured documents will demonstrate

beyond possible doubt, and these elements, in the context of

historical facts, we think are all that need be shown.

The critical period between the Nazi seizure of power and

the initiation of the first war of aggression was a very

short period. This critical period of lawless preparation

and illegal scheming which ultimately set the whole world

aflame was unbelievably short. It covered six years, 1933 to

1939. The speed with which all this was accomplished

evidences at once the fanatical intensity of the

conspirators and their diabolical efficiency. Crowded into

these six short years is the making of the greatest tragedy

that has ever befallen mankind.

A full understanding of these six years, and the vibrant six

years of war that followed, demands that we see this period

of time divided into rather definite phases, phases that

reflect the development and execution of the Nazi master

plan. I suggest that the Tribunal as it receives evidence,

fit it into five phases. The first was primarily

preparatory, although it did involve overt acts. That phase

covers roughly the period from 1933 to 1936. In that period

the Nazi conspirators, having acquired government control of

Germany by the middle of 1933, turned their attention toward

utilisation of that control for foreign aggression. Their

plan at this stage was to acquire military strength and

political bargaining power to be used against other nations.

In this they succeeded. The second phase of their aggression

was short. It is rather interesting to see that as the

conspiracy gained strength, it gained speed. During each

phase the conspirators succeeded in accomplishing more and

more in less and less time until toward the end of the

period, the rate of acceleration of their conspiratorial

movement was enormous. The second phase of their utilisation

of control for foreign aggression involved the actual

seizure and absorption of Austria and Czechoslovakia in that

order. By March, the third month of 1939, they had succeeded

in that phase. The third phase may be measured in months

rather than years, from March 1939 to September 1939. The

previous aggression being successful, having been

consummated without the necessity of resorting to actual

war, the conspirators had obtained much desired resources

and bases and were ready to undertake further aggressions by

means of war, if necessary. By September 1939 war was upon

the world. The fourth phase of the aggression consisted of

expanding the war into a general European war of aggression.

By April 1941, the war which had heretofore involved Poland,

the United Kingdom and France, had been expanded by

invasions into Scandinavia and into the Low Countries and

into the Balkans. In the next phase the Nazi conspirators

carried the war Eastward by invasion of the territory of the

Union of Soviet Socialist Republics, and finally, through

their Pacific ally, Japan, precipitated the attack on the

United States at Pearl Harbour.

The final result of these aggressions is fresh in the mind

of all of us.

I turn now to certain outstanding evidence at hand. While on

this phase of the case we shall not rest exclusively on them

alone, the essential elements of the crime which I have

already pointed out can be made out by a mere handful of

captured documents. My order of presentation of these will

be first to present one by one this handful of documents,

documents which prove the essential elements of the case on

aggressive war up to the hilt. These documents will leave no

reasonable doubt concerning the aggressive character of the

Nazi war or concerning the conspiratorial premeditation of

that war. Some of this group of documents are the specific

basis for particular allegations in the Indictment. As I

reach those documents, I shall invite the attention of the

Tribunal to the allegations of the Indictment which are

specifically supported by them. Having proved the corpus of

the crime in this way, I will follow the presentation of

this evidence with a more or less chronological presentation

of the details of the aggressive war, producing more

detailed evidence of the relevant activities of the

conspirators from 1933 to 1941.

                                                  [Page 148]

The documents which we have selected for single presentation

at this point, before developing the case in detail, are ten

in number. The documents have been selected to establish the

basic facts concerning each phase of the development of the

Nazi conspiracy for aggression. Each document is

conspiratorial in nature. Each document is one, I believe,

heretofore unknown to history and each document is self-

contained and tells its own story. Those are the three

standards of selection which we have sought to apply.

I turn to the period of 1933 to l936, a period characterised

by an orderly, planned sequence of preparations for war.

This is the period covered by paragraphs 1 and 2 of section

IV (F) of the Indictment, to be found at page 7 of the

printed English text. The essential character of this period

was the formulation and execution of the plan to re-arm and

to re-occupy the Rhineland, in violation of the treaty of

Versailles and other treaties, in order to acquire military

strength and political bargaining power to be used against

other nations.

If the Tribunal please, we have what have been referred to

as document books. They are English translations of German

documents, in some cases German versions. I shall ask that

they be handed up and we will hand one copy at the moment to

counsel for the defendants. It has been physically

impossible to prepare twenty-one sets of them. If possible,

we shall try to furnish further copies to the defendants.

DR. DIX (Counsel for defendant Schacht): I would be very

much obliged. In order that there should be no

misunderstanding, we have arranged that tomorrow-

THE PRESIDENT: Speak a little bit slower.

DR. DIX: We have arranged that tomorrow we will discuss with

the authorities in what way in the future the whole of the

evidence may be made available to all the defence counsel.

It is, of course, necessary that no one has the advantage

over the other. For this reason, I should like to

acknowledge the goodwill on the part of the prosecution in

this difficult situation.

I should like to take one copy, but if I were to do so this

would be an unfair advantage over the others. I am not in a

position during this procedure to give my colleagues the

evidence. For this reason, I hope you will understand if I

do not accept this document. I am convinced that tomorrow we

shall be able to agree on a perfect method of obtaining the

evidence, and we shall try to continue to-day as we have

done so far.

THE PRESIDENT: Mr. Alderman, can you inform the Tribunal how

many copies of these documents you will be able to furnish

to defence counsel by Monday?

MR. ALDERMAN: I cannot at the moment. If your Honour

pleases, may I make this suggestion in connection with it,

which I think may be of help to all concerned? I think many

of us have underestimated the contribution of this

interpreting system to this trial. We all see how it has

speeded the proceeding, but in so far as my presentation of

German documents is concerned, I shall let the documents

speak. I expect to read the pertinent parts of the documents

into the system so that they will go into the transcript of

the record. Counsel for the German defendants will get their

transcript in German; our French and Russian Allies will get

their transcript in their language, and it seems to me that

that is the most helpful way to overcome this language

barrier. I can recognise that for Dr. Dix to receive a

volume of documents which are English translations of German

documents might not seem very helpful to him. Further, as an

aid, we will have an original German document in Court, one

copy, and if the Court will allow, I would ask that the

original German document, from which I shall read, be passed

to the German interpreter under Colonel Dostert, so that

instead of undertaking to translate an English translation

back into perhaps a bad German, he will have the original

document before him and in that way,

                                                  [Page 149]

the exact German text will be delivered in the daily

transcript to all of the counsel for the defendants. I hope

that may be a helpful suggestion.

THE PRESIDENT: That, to some extent depends, does it not,

upon how much of the document you omit?

MR. ALDERMAN: That is quite true, Sir, as to these ten

documents with which I propose to deal immediately. I expect

to read into the transcript practically the whole of the

documents, because the whole of them is significant, much

more significant than anything I could say. Also all of

these ten documents were listed in the list of documents

which we furnished counsel for the defendants on, I believe,

the 1st of November.

THE PRESIDENT: You say that they were in the list. Arc the

documents very long ?

MR. ALDERMAN: Some of them are very long and some of them

are very short; you can't generalise. Whenever it is a

speech of Adolf Hitler you can count it is fairly long.

THE PRESIDENT: Can you not by Monday have in the hands of

every member of the defence counsel copies of these ten

documents? It is suggested to me that the photostating could

be done quite easily.

MR. ALDERMAN: I understand our photostatic facilities and

our mimeographing facilities are right up to the hilt with

work. It is a very difficult mechanical problem.

COLONEL STOREY: If the Tribunal please, in further

explanation, the documents which Mr. Alderman intends to

offer were on the defendants' list filed in the document

centre on 1st November, 1945. Lt. Barrett had twenty-three

of each one photostated as far as he could on that list. Six

copies went into the Defendants' Information Centre. Now, we

can't say at this time whether six copies, that is

photostatic copies of each one, have been furnished to the

defendants, but, whenever they wanted copies of any

particular one, either the original was exhibited to them or

photostatic copies were made.

Again, Sir, I call attention to the physical problems that

are almost insurmountable to make twenty-three photostatic

copies which are required of every document.

THE PRESIDENT: If I may interrupt you, I imagine the list

which was deposited on 1st November didn't contain only

these ten documents but contained a great number of other


COLONEL STOREY: That is correct, Sir.

THE PRESIDENT: So that the defendants' counsel wouldn't know

which out of that list of documents were going to be relied


COLONEL STOREY: Except, Sir, they were notified that the

Prosecution would use all or some of those documents if

necessary and if the copies were not furnished upon request,

they have since been made and delivered to them.

May I say, Sir, that working twenty-four hours a day, we are

trying to furnish ten sets of all of these to defendants'

counsel and there will be one complete set. One complete set

was delivered to defendants' counsel here now as a

convenience to follow. The other sets, I feel certain, will

be in their hands sometime Sunday, but one complete list we

now turn over to them - not a list, complete copies.

DR. SIEMERS (Counsel for defendant Raeder): I beg the pardon

of the Court for being rather hoarse. I should like to point

out one fact. The prosecution had declared this morning that

those documents that will be put before us today are

contained in the list which on the 1st of November was made

available to us, or were in the list which was made

available to us this morning. This morning a list was made

available to us in room fifty-five. I have it in my hand.

This morning nine documents were named. Of these documents

only one, contrary to what the prosecution said, was

present; the other eight or nine documents were neither in

the old list, nor in the new list. The eight other documents

are as I ascertained at lunch-time today, not in the

document room, not available in

                                                  [Page 150]

photostatic copies, so they could not be made available to

me. I think, Sirs, that it will not be possible for us to

work on this basis. I therefore request that, first of all,

we may wait until we have had our discussion tomorrow with

the prosecution, which they have kindly offered to us and

see how this -

THE PRESIDENT: The Tribunal proposes to adjourn now and to

give defence counsel the opportunity of meeting counsel for

the prosecution tomorrow morning. Both counsel for the

prosecution and defence counsel appear to be perfectly ready

to make every possible effort to deal with the case in a

most reasonable way, and at that meeting you will be able to

discuss these documents which you say have been omitted and

the counsel for the prosecution will try to satisfy you with

reference to the other documents.

DR. SIEMERS: Yes, I have one more request. It has just been

said by the prosecution that it will hardly be possible to

make twenty-three photostatic copies. I believe, Sirs, if

this is a case of such very important documents, as the

prosecution said today, it is a conditio sine qua non that

every defence counsel and every accused should have a

photostatic copy of these documents.

As we all know it is easy to produce a photostat in a few

hours' time. With the excellent apparatus here available to

the prosecution it should, in my opinion, be easy to produce

twenty or forty photostats of these ten documents in forty-

eight hours.

THE PRESIDENT: Well, you will meet the counsel for the

prosecution tomorrow and attempt to come to some

satisfactory arrangement with them then; and now the

Tribunal will adjourn.

 (The Tribunal adjourned until 26th November, 1945, at 10.00


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