Fourth Day:
Friday, 23rd November, 1945
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]
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:-
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]
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:-
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:-
[Page 147]
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]
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 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
documents.
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
upon.
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]
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
hours.)
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(Part 7 of 7)
[MR. SIDNEY S. ALDERMAN continues]
"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.
"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.
(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.