The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

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

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


[Page 437]

With the permission of your Honours, I should like to comment further upon some parts of this memorandum. First, I invite your attention to solution (a). This solution would have called for German infiltration into Moravia and the forcible removal of the Czechs from that area to Bohemia. As your Honours know, Moravia lies between Bohemia and Slovakia. Thus solution (a) would have involved the erection of a German State between Bohemia and Slovakia, and would have prevented effective intercommunications between the Czechs and the Slovaks. In this manner, the historic desire for unity of these two groups of peace-loving people and the continued existence of their Czechoslovakian State would have been frustrated. Solution (a), it may be noted, was rejected because the surviving Czechs, even though compressed into a "residual Bohemia" would have remained to plague the conspirators.

Solution (b), which involved the forcible deportation of all Czechs, was rejected, not because its terms were deemed too drastic but rather because a more speedy resolution of the problem was desired.

Solution (c), as shown in the exhibit, was regarded as the most desirable, and was adopted. This solution first provided for the assimilation of about one half of the Czechs. This meant two things: (a) enforced Germanisation for those who were deemed racially qualified and (b) deportation to slave labour in Germany for others. "Increased employment of Czechs in the Reich territory," as stated in the exhibit meant, in reality, slave labour in Germany.

Solution (c) further provided for the elimination and deportation "by all sorts of methods" of the other half of the Czech population, particularly the intellectuals and those who did not meet the racial standards of the conspirators. Intellectuals everywhere were an anathema to the Nazi conspirators, and the Czech intellectuals were no exception. Indeed, the Czech intellectuals, as the conspirators well knew, had a conspicuous record of gallantry, self-sacrifice, and resistance to the Nazi ideology. They were, therefore, to be exterminated. As will be shown in other connections, that section of the top secret report which stated "elements which counteract the planned Germanisation are to be handled roughly and eliminated " meant that intellectuals and other dissident elements were either to be thrown into concentration camps or immediately exterminated.

[Page 438]

In short, the provisions of solution (c) were simply a practical application of the conspirators' philosophy as expressed in Himmler's speech, part of which we have quoted in L-70, already presented in evidence as Exhibit USA 308. Himmler said that "Either we win over any good blood that we can use for ourselves or we destroy this blood."

I now turn briefly to the conspirators' programme of spoliation and Germanisation in the Western occupied countries. Evidence which will be presented at a later stage of this proceeding will show how the conspirators sought to Germanise the Western occupied countries; how they stripped the conquered countries in the West of food and raw materials, leaving to them scarcely enough to maintain a bare existence; how they compelled local industry and agriculture to satisfy the inordinate wants of the German civilian population and the Wehrmacht; and finally, how the spoliation in the Western occupied countries was aided and abetted by excessive occupation charges, compulsory and fraudulent clearing arrangements, and confiscation of their gold and foreign exchange. The evidence concerning these matters, which will be presented in great detail by the prosecutor for the Republic of France, is so overwhelming that the inference is inescapable that the conspirators' acts were committed according to plan.

However, it will not be until after the Christmas recess that the evidence concerning the execution of the conspirators' plans in the West will be presented to this Tribunal. Accordingly, by way of illustration, and for the purpose of showing in this presentation that the conspirators' plans embraced the occupied Western countries as well as the East, we now offer in evidence a single exhibit on this aspect of the case, Document R-114, which is Exhibit USA 314. This document was obtained from the U.S. Counter-Intelligence Branch. This exhibit consists of a memorandum dated 7th August, 1942, and a memorandum dated 29th August, 1942, from Himmler's personal files. The former memorandum deals with a conference of S.S. officers, and bears the title "General Directions for the Treatment of Deported Alsatians". The latter memorandum is marked secret and is entitled "Shifting of Alsatians into Germany Proper". The memoranda comprising this exhibit show that plans were made and partially executed to remove from Alsace all elements which were hostile to the conspirators, and to Germanise the province. I quote from Page 1, Lines 21 to 31 of the English text entitled "General Directions for the Treatment of Deported Alsatians". These extracts contained in the German text at Page 1, the last eight lines, and Page 2, Lines 1 to 5. I now quote:-

"The first expulsion action was carried out in Alsace in the period from July to December, 1940; in the course of it 105,000 persons were either expelled or prevented from returning. They were in the main Jews, gypsies and other foreign racial elements, criminals, asocial and incurably insane persons, and in addition Frenchmen and Francophiles. The patois-speaking population was combed out by this series of deportations in the same way as the other Alsatians.

Referring to the permission the Fuehrer had given him to cleanse Alsace of all foreign, sick or unreliable elements, Gauleiter Wagner has recently pointed out the political necessity of new deportations (zweite Aussiedlungsaktion) which are to be prepared as soon as possible."

I should like your Honours to permit me to defer the remainder of this presentation until Monday. Mr. Justice Jackson would like to make a few remarks to the Tribunal.

[Page 439]

MR. JUSTICE JACKSON: May it please the Tribunal, I wish to bring to the attention of the Tribunal and of the defence counsel some matters concerning the case as it will take its course next week, in the belief that it will result in expediting our procedure if over the week-end our programme can be considered.

Captain Harris's presentation will take a little longer on Monday, and when it has concluded, the presentation by the United States will have reached that part of the indictment which seeks declaratory judgment of this Tribunal that six of the organisations named therein are criminal organisations. They effect such a finding only that they they constitute a basis for prosecution against individual members in other courts than this, proceedings in which every defence will be open to an accused individual, except that he may not deny the findings made by this Tribunal as to the character of the organisation of which he was a member.

The United States desires to offer this evidence under conditions which will save the time of the Tribunal and advance the prosecution as rapidly as possible so that United States personnel can be released.

We also desire defendants' counsel to have before them as much as possible of our evidence against organisations before the Christmas recess, so that they may use that recess time to examine it and to prepare their defences, and that we may be spared any further applications for delay for that purpose.

The substance of our proposal is that all of the ultimate questions on this branch of the case be reserved for consideration after the evidence is before the Tribunal. The real question we submit is not whether to admit the evidence. The real question is its value and its legal consequences under the provisions of this Charter. All of the evidence which we will tender will be tendered in the belief that it cannot be denied to have some probative value, and that it is relevant to the charges made in the Indictment. And those are the grounds upon which the Charter authorises a rejection of evidence.

At the time we seek no advantage from this suggestion except the advantage of timesaving to the Tribunal and to ourselves to get as much of the case as possible in the hands of the defendants before the Christmas recess, and to urge the ultimate issues only when they can be intelligibly argued and understood on the basis of a real record, instead of on assumptions and hypothetical statements of fact.

In offering this evidence as to the organisations, therefore, we propose to stipulate as follows:-

Every objection of any character to any item of the evidence offered by the United States as against these organisations, may be deemed to be reserved and fully available to defence counsel at any time before the close of the United States case, with the same effect as if the objection had been made When the evidence was offered. All evidence on this subject shall remain subject to a continuing power of the Tribunal, on motion of any counsel or on its own motion, to strike, unprejudiced by the absence of objection. Every question as to the effect of the evidence shall be considered open and unprejudiced by the fact that it has been received without objection.

Now we recognise the adherent controversial character of the issues which may be raised concerning this branch of the case. What this evidence proves, what organisations it is sufficient to condemn, and bow the Charter applies to it are questions capable of debate, and which we are quite ready to argue when it can be done in orderly and intelligible fashion. We had expected to

[Page 440]

do it in a final summary, but we will do it at any time suggested by the Tribunal, after there is a record on which to found the argument, and we are willing to do it either before or after the defendants take up the case. But we do suggest that if it is done step by step as the evidence is produced, and on questions of admissibility, it will be disorderly and time consuming. Piecemeal argument will consume time by requiring counsel on both sides either to recite evidence that is already in the case or to speculate as to evidence that is not yet in, to resort to hypothetical cases, and to do it over and over again to each separate objection. It will also be disorderly because of our plan of presentation.

Questions which relate to these organisations go to the very basis of the proposal made by President Roosevelt to the Yalta Conference, agreement upon which was the basis for this proceeding. The United States would not have participated in this kind of determination of question of guilt, but for this or some equivalent plan of reaching thousands of others, who, if less conspicuous, are just as guilty of these crimes as the men in the dock. Because of participation in the framing of the Charter, and knowledge of the problem it was designed to solve, I shall expect to reach the legal issues involved in these questions.

The evidence, however, will be presented by the lawyers who have specialised in the search for the arrangement of evidence on a particular and limited charge or indictment. Piecemeal argument, therefore, would not be orderly but would be repetitious, incomplete, poorly organised, and of little help to the Tribunal. The issues deserve careful, prepared presentation of the contentions on both sides.

We will ask, then, for these conditions, which we think protect everybody's rights and enable the defence, as well as ourselves, to make a better presentation of their questions - because they will have time to prepare them-to lay before the Tribunal, as rapidly as possible next week and as uninterruptedly as possible, the evidence which bears upon the accusations against the organisations.

THE PRESIDENT: Mr. Justice Jackson, have you yet communicated that to the defendants' counsel in writing, or not?

MR. JUSTICE JACKSON: I have not communicated it, unless it has been sent to the Information Centre since noon.

THE PRESIDENT: I think, perhaps, it might be convenient that you should state what you have stated to us, as to objections to the evidence, in writing, so that they may thoroughly understand it.

MR. JUSTICE JACKSON: I have prepared to do that and to supply sufficient copies for members of the Tribunal and for all defence counsel.


DR. GEORG BOEHM: I represent the members of the S.A. who have reported themselves to the Tribunal for examination. I understood the statements made by Mr. Justice Jackson only partially. As counsel I have no one who can supply me with information and I cannot under any circumstances agree to reply, in the course of this trial, to speeches that I do not understand or which are presented to me in such a way that I am not in a position to get information.

[Page 441]

I should like to ask first that care be taken that I receive a German translation of the statements which the prosecution has made in regard to the future course of the trial, so that I can reply to these statements. I do not represent only one person in this trial but millions of people, people who will make all sorts of accusations, in part perhaps even justified accusations against me, once this trial has ended. The responsibility, which I, as well as those colleagues of mine who represent organisations have, is terribly great. I should therefore like to request, as a matter of principle, that everything which is presented in this trial be submitted to me in the German language, because I am not in a position to have translated into German from day to day whole volumes of documents which could easily be given to me in the original German. This circumstance makes it dreadfully hard for me, as well as for a number of my colleagues, to follow the trial at all.

In the previous sessions I found little that I could consider incriminatory evidence against the organisations. Since however, according to today's statements, the evidence against the organisations is to be presented in the future, I should like to ask urgently, if we are to remain as counsel for these organisations, that the trial be ordered in such a way that, in regard to technical matters too, we shall be in a position to carry on the defence in a responsible manner.

THE PRESIDENT: As you know or have been told, only those parts of those documents which are read before the Tribunal are treated as being in evidence and, therefore, you hear through your earphones everything that is in evidence read to you in German. You know, also, that there are two copies of the documents in your Information Centre which are in German. So much for that. That has been the procedure up to now.

In order to meet the legitimate wishes of German counsel, the proposal which Mr. Justice Jackson has just made is perfectly simple, as I understand it, and it is this:

That the question of the criminality of these organisations should not be argued before the evidence is put in; that the United States counsel should put in their evidence first, and that they hope to put the majority of that evidence in before the Christmas recess, but that the German counsel, defendants' counsel, shall be at liberty at any time, up to the time the United States case is finished, to make objection to any part of the evidence on these criminal organisations. Is that not clear?

DR. GEORG BOEHM: Yes, that is fairly simple.

THE PRESIDENT: Have you any objection to that procedure?

DR. GEORG BOEHM: I am rather of the opinion that it is highly inadequate. I have had no opportunity yet to get into my hands either of those two copies, which are supposed to lie downstairs in Room 54. It may be that two copies are not sufficient for the purposes of 25 lawyers, especially since these copies in German are placed in Room 54 at 10.30 in the morning, while the session has already started at 10.00 in the morning. It would also not suffice, if these two copies for 25 people were to be placed there the day before, because it is not possible in this short period of time for all 25 of us to make satisfactory use of these two copies. I should therefore like to request just how the prosecution will do that, or just how it can do it I cannot say that arrangements be made so that we are in position to know at the proper

[Page 442]

time and, I emphasise this once more, in the German language, everything that the prosecution desires to use, in order that we can act, so that our work will be of use to the Court.

THE PRESIDENT: What you have just stated is a general objection to the procedure which has been adopted up to now and has nothing to do with the procedure which has been suggested by Mr. Justice Jackson with reference to these criminal organisations. His suggestion was that argument on the law of the criminal issue or the criminal nature of these organisations should be postponed until the evidence was put in, and that the right of counsel for the defence should be to make objection at any stage or, rather, to defer their, objections until the evidence had been put in, and it was hoped that the evidence would be completed or nearly completed by the Christmas recess. What you say about the general procedure may be considered by the Tribunal.

So far as the particular question is concerned, namely, the question of the procedure suggested by Mr. Justice Jackson, have you any objection to that?

DR. GEORG BOEHM: I will object only if through this proceeding - and for this purpose I reserve for myself all liberties and all rights in the interest of my large clientele - I am in any way handicapped or hindered in representing the interests of so many people before the Tribunal.

THE PRESIDENT: We are aware of that fact, but that does not seem to be material to the question whether the legal argument should be deferred until after the evidence is presented. The fact that you have millions of people to represent has nothing to do with the question whether the legal argument shall take place before or in the middle of or at the end of the presentation of the evidence. What I am asking you is: "Have you any objection to the legal argument taking place at the end of the presentation of the evidence?"

DR. GEORG BOEHM: I have no objection to these suggestions in so far as my defence is not hindered in any way thereby.

THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until 1000 hours on 17th December, 1945.)

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