The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
December 3 to December 14, 1945

Twentieth Day: Friday, 14th December, 1945
(Part 1 of 9)

[Page 396]

DR. KAUFFMANN (Counsel for the defendant Kaltenbrunner): I permit myself to present two points to the Court with regard to yesterday's and future presentation of evidence, particularly with respect to the section on "Crimes against Humanity".

First, I should like to have stricken from the record yesterday's affidavit of the witness Pfaffenberger. Eventually one will have to cross-examine the witness in person. His testimony is fragmentary in most important points. It cannot be seen whether in many cases it is a matter of his personal observations or of assertions from hearsay. From this it is all too easy to draw false conclusions. The witness did not say that the Camp Commander Koch, along with his inhuman wife, was condemned to death by an S.S. court precisely because of these occurrences among other things. It is possible to ascertain the entire truth by questioning the witness in a later part of the trial. Until then every one, judges, defence counsel and prosecution, is impressed by this terrible testimony.

The content of this testimony is so terrible and so degrading for the human spirit that one would like to turn one's eyes and ears away from it. In the meantime such statements make their way through the Press of the whole world. Civilisation is justifiably indignant. The consequences of such premature statements are not to be calculated. The Prosecuting Attorney well recognises the significance of this testimony and exposed the sorry documents yesterday in court.

If it is only after weeks or months that such perverted testimony can be set aright, the previous effects of it can never be eliminated entirely. Truth suffers and justice is endangered. According to the 19th Article in the Charter, such a condition should not have been brought about.

Secondly, I should, therefore, like to suggest at this point in the procedure, that we do not read the testimony of witnesses who live in Germany and whose appearance here is, therefore, possible; because at this point of the procedure accusations are involved, the subject of which is even more terrible than the accusations referring to aims of aggression, since it is a question here of the tortured life and of the death of human beings.

At the beginning of this trial the Court refused to hear the testimony of the witness Schuschnigg, and it is my opinion that what was valid then should be all the more valid at this point in the trial.

I should like to emphasise by suggestion particularly as regards the defendant Kaltenbrunner himself, since it was not until the spring of 1943 that he became Chief of the Reich Main Security Office and since then, according to the testimony of the defence, many, if not all, of his signatures were forged, and the entire executive function of the administration of

[Page 397]

camps and happenings connected with them lay exclusively in Himmler's hands. That I hope to be able to prove at a later date. I have mentioned that in order to justify my next suggestion.

THE PRESIDENT: The Tribunal would like to hear counsel for the Chief Prosecutor of the United States.

MR. JUSTICE JACKSON: May it please the Tribunal, Mr. Dodd, who had charge of the matter which is under discussion, left for the United States yesterday, and I shall have to substitute for him as best I may.

This Tribunal sits under a Charter which recognises the impossibility of covering a decade of time, a continent of space, a million acts, by ordinary rules of proof, and at the same time finishing this case within the lives of living men. We do not want to have a trial here, that, like the trial of Warren Hastings, lasted seven years. Therefore, the Charter set up only two standards by which, I submit, any evidence may be rejected. The first is that the evidence must be relevant to the issue. The second is that it must have some probative value. That was made mandatory upon this Tribunal in Article 19, because of the difficulty of ever trying this case if we used the technical rules of Common Law.

One of the reasons this was constituted as a military tribunal, instead of an ordinary Court of Law, was to avoid the precedent-creating effect of what is done here on our own law and the precedent control which would exist if this were an ordinary judicial body.

Article 19 provides that the Tribunal should not be bound by technical rules of evidence. It shall adopt and apply, to the greatest possible extent, expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. That was made mandatory, that it shall admit any evidence which it deems to have probative value. The purpose of that provision, your Honours, I may say, was this: that the whole controversy in this case - and we have no doubt that there is room for controversy - should be centred upon the value of evidence and not on its admissibility.

We have no jury. There is no occasion for applying jury rules. Therefore, when a piece of evidence is offered, there are two questions which arise: The first is, does it have probative value? If it has no probative value, then it should not encumber the records, of course. The second is, does it have relevancy? If it has not, of course it should not come in.

The evidence in question has relevance. No one questions that, no one can say that an affidavit, duly sworn, does not have some probative value. What probative value it has, the weight of it, should be determined on the submission of the case. That is to say, if a witness has made a statement in an affidavit, and it is denied by Kaltenbrunner, and you believe that the denial has weight and credibility, then, of course, the affidavit should not be considered in the final consideration of the case. But we are dealing here with events that took place over great periods of time and great distances. We are dealing with witnesses widely scattered and a situation where communications are almost at a standstill.

If this affidavit stands at the end of this case undenied, unchallenged, it is not, then, beyond belief that you would give it value and weight. An affidavit might bear internal evidence that it lacked credibility, such as evidence where the witness was talking of something of which he had no personal

[Page 398]

knowledge. I do not say that every affidavit that comes along has probative value just because it is sworn to. But it seems to me that, if we are to make progress with this case, this simple system envisioned by this Charter, which was the subject of long consideration, must be followed; that if when a piece of evidence is presented, even though it does not comply with technical rules governing judicial procedure, it is something which has probative value in the ordinary daily concerns of life, it should be admitted. If it stands undenied at the close of the case, as many of these things will, then, of course, there is no issue about it, and it saves the calling of witnesses, which, as we have already seen, will take an indefinite period of time. I may say that the testimony of the witness Lahousen, which took nearly two days, could have been put in, in this Court, in 15 minutes in affidavit form, and all that was essential to it could have been placed before us; and if it were to be denied you could then have determined its weight.

We want to adhere to this Charter. I submit, it is no reason for deviating from the Charter that an affidavit recites horrors. I should have thought that the world could not be more shocked by recitals of horrors in affidavits than it has been in the documents that have proceeded from sources of the enemy itself. There is no reason in that for departing from the plain principles of the Charter.

I think the question of orderly procedure and the question of time are both involved in this. I think that the Tribunal should receive affidavits, and we have prepared them - we hope carefully, we hope fairly - to prevent a great many things that would take days and days of proof. I may say that this ruling is more important in subsequent stages of this case than it is on this particular affidavit.

There is another reason, perhaps. We have some situations in which a member of an accused organisation, who is directly hostile to our position because the accusation would reach him within the accused class, has made an affidavit or affidavits, which constitute admissions against interest; but on some other issue he makes statements which we believe are untrue and incredible, and we do not wish to vouch for his general credibility by calling him as a witness, but we wish to avail ourselves of his admission. We have to make our proof largely from enemy sources. All this proof, and every witness, eight months ago were in the hands of the enemy. We have to make our proof from them. God alone knows how much proof there is in this world that we have not been able to reach. We submit that the orderly procedure here is to abide by this Charter and admit these affidavits. If they stand unquestioned at the end of the case, there is no issue about them. If they are questioned, then their weight is a matter which you would determine on final submission.

THE PRESIDENT: Mr. Justice Jackson, I have three questions I should like to ask you. The first is: where is Pfaffenberger?

MR. JUSTICE JACKSON: That I cannot answer at the moment, but I will get an answer as quickly as I can. It is unknown to me at the moment. If we are able to ascertain, I will inform you at the conclusion of the noon recess.

THE PRESIDENT: The second point to which I wish to draw your attention is Article 16 (e) of the Charter, which contemplates cross-examination of witnesses by the defendants. The only reason why it is thought that witnesses who are available should not give evidence by affidavit is because it denies to the defence the opportunity of cross- examining them.

[Page 399]

MR. JUSTICE JACKSON: I think that this provision means just exactly what it says. If we call a witness, they have the right of cross-examination. If he is not called, they have the right to call him, if he is available, as their witness, but not, of course, the right of cross-examination. The provision itself, if your Honour notices, reads that they have the right to cross-examine any witness called by the prosecution, but that does not abrogate or affect Article 19 - that we may obtain and produce any probative evidence in such manner as will expedite the trial.

THE PRESIDENT: Then the next point to which I wish to draw your attention to is Article 17 (a). As I understood it, you were arguing that it was mandatory upon the Tribunal to consider any evidence which was relevant. Therefore, I draw your attention to Article 117 (a) which, gives the Tribunal power to summon witnesses to the trial.

MR. JUSTICE JACKSON: That is right. I think there is no conflict in that whatever. The powers of the Tribunal to summon witnesses, and to put questions to them, was introduced into this Charter through the continental systems of jurisprudence. Usually there are not Tribunal witnesses in the States. Witnesses are called only by one of the parties, but it was suggested by the continental scholars that in this kind of case, since we were utilising a mixture of the two procedures, the Tribunal itself should have the right to do several things. One is to summon witnesses, to require their attendance, and to put questions to them. I submit that this witness, whose affidavit has been received, can be called, if we can find him, by the Tribunal and questioned.

The next provision - and it bears on the spirit of this-of Article 17 is that the Tribunal has the right to interrogate any defendant. Of course, under our system of jurisprudence the Tribunal would have no such right, because the defendant has the unqualified right to refrain from being a witness; but, in deference again to the continental system, the Tribunal was given the right to interrogate any defendant; and his immunities, which he would have under the Constitution of the United States, if he were being tried under our system, were taken away.

I submit that the perfect consistency in those provisions empowers the Tribunal on its own motion (Article 17) to summon witnesses, to supplement anything that is offered, to put any questions to witnesses, and to any defendant.

If any witness is called, the right of cross-examination cannot be denied, but that does not abrogate Article 19, which was intended to enable us to put our case before the Tribunal, so that the issue would then be drawn by the defendants and the weight of what we offer determined on final submission.

THE PRESIDENT: Lastly, there is Article 17 (e), which I suppose, in your submission, would entitle the Tribunal, if they thought right, after receiving the affidavit, to take the evidence of Pfaffenberger on commission.

MR. JUSTICE JACKSON: Yes, I think it would, your Honour. I may say, in reference to that section, and it may perhaps be surprising to those accustomed to our system of jurisprudence - that it was one of the most controversial issues we had in the framing of this Charter. We had in mind the authorisation of what we call "Masters" to go into various localities, perhaps, and take testimony, not knowing what might be necessary. Our practice, however,

[Page 400]

of appointing "Masters in Equity" to take testimony and make recommendations was not acceptable to the continental system, and we finally compromised on this provision which authorises the taking of testimony by commissions.


GENERAL RUDENKO: Your Honours, I have come forward after my colleague, Mr. Jackson, in order to make my own statement, inasmuch as the petition of the defence is fundamentally incorrect from my point of view and cannot be complied with.

We are submitting our objections for your examination. I fully share the viewpoint exposed here by the Chief Prosecutor of the U.S.A., Mr. Jackson. I should like, your Honours, to point out the following circumstances. The defence counsel, in his petition, raises the question whether the prosecution should refer to or publish documents in connection with affidavits from persons residing in Germany. A statement of this nature is completely out of order since, as is known, the defendants committed the greater part of their atrocities in every country in Europe, and it will be readily understood that the witnesses of these atrocities live in different parts of these countries, and it is essential that the prosecution have recourse to the testimony of such persons, whether the testimonies be written or oral. Your Honours, we have entered a stage in the Trial when we shall have to set forth the atrocities connected with so-called War Crimes and Crimes Against Humanity, atrocities committed by the defendants over extensive areas. We shall show you, your Honours, in evidence, documents originating from the defendants themselves or from persons who had suffered at the hands of the war criminals. And it would be impossible to summon to the Trial all these witnesses in order that they might give their evidence orally. It is essential to have affidavits and written testimonies from the witnesses.

As his Honour the President remarked, Article 17 determines the power of summoning witnesses to the Trial. That is correct; Article 17 determines this, but it is impossible to summon to the Trial all such witnesses who could give affidavits on the crimes committed by the defendants. Therefore, your Honours, I should like to refer to Article 19 of the Charter, reading as follows:

"The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious - and I emphasise, your Honours, expeditious - and non-technical procedure and shall admit any evidence which it deems to have probative value."
I would also ask your Honours to proceed upon this regulation which definitely admits, as evidence, written affidavits of witnesses. This, I wish to say, is my statement, which supplements the statement made by Mr. Jackson.

MR. ROBERTS: May it please the Tribunal, as far as the British Delegation is concerned, they desire to support what the American Chief Prosecutor has said, and we do not feel we can usefully add anything.

THE PRESIDENT (To M. Faure of the French Delegation): Do you wish to add anything?

M. FAURE: Mr. President, I wish simply to inform the Court that the French Prosecution is entirely in accord with the remarks which were made by the American and the Soviet prosecutors.

[Page 401]

I think, as the representative of the American prosecution said, that it is not possible to settle the questions of evidence in this trial solely by the practice of oral testimony in the courtroom, for under these conditions it might be opportune to call to the witness stand - a step which is obviously impossible - all the inhabitants of the territories who have been involved, and which have been occupied. The defence will have every opportunity to discuss later on the documents which have been presented by the prosecution and, notably, the written testimony.

THE PRESIDENT: I do not think that counsel for Kaltenbrunner was suggesting that every witness must be called, but that witnesses who were in Germany and available should be called and that their evidence should not be given by affidavit.

M. FAURE: The defence has a right to call them as witnesses if it desires to hear them.

DR. KAUFFMANN (Counsel for defendant Kaltenbrunner): Excuse me if I add just a few words to this important question. Those who have just spoken have said that one of the main principles of this trial is the circumstance that the trial should proceed speedily. That is also expressed in Article 19 of the Charter. No one can more hope that this principle be carried through than we defence counsel ourselves; but it is nevertheless my opinion that one principle, which is the highest that mankind knows, must not suffer in the interests of speed, and that principle is the principle of truth; and, if it were clearly a possibility that an over-hasty trial might give offence to truth, then the formal methods of procedure must step into the background. There are in mankind principles that are unspoken and that do not have to be spoken.

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