[Page 356]

DR. STAHMER: Page 23, Mr. President.

THE PRESIDENT: Which volume?

DR. STAHMER: In the trial brief.

THE PRESIDENT: We seem only to have 22 pages in our trial brief. Are there two volumes?

DR. STAHMER: Yes, I believe it is in the second trial brief. The division was made to accelerate the translation. May I continue?

"The German Wehrmacht entered the war fully respecting the international conventions. No large-scale excesses by German soldiers were noted. Individual offences were severely punished. However, immediately after the beginning of hostilities there appeared reports and descriptions of atrocities committed against German soldiers. These reports were carefully investigated. The result was recorded by the German Foreign Office in 'White Papers,' which were sent to Geneva. In this way the 'White Paper' came into being which deals with the crimes against the laws of war and humanity committed by the Russian soldiers."

[Page 357]

There can only be put in evidence facts which refer to this case; there can be submitted to the Tribunal only documents which refer to the crimes which were perpetrated by the Major German Criminals.

The "White Book" is a series of documents of invented data regarding violations which were perpetrated not by the German Fascists but by other countries. Therefore the data contained in the "White Book" cannot serve as evidence in this case. This conclusion is all the more justified in that the "White Book" is a publication which served the purpose of Fascist propaganda and which tried by inventions and forged documents to justify or hide crimes which were perpetrated by the Fascists. Therefore I should request the Tribunal to refuse the reading into the record or submitting to the Tribunal excerpts from the so-called "White Book."

THE PRESIDENT: On what theory do you justify the presentation of this evidence, Dr. Stahmer?

DR. STAHMER: The question whether it is possible and permissible to refer to these White Papers during this trial as a means of evidence has been discussed repeatedly. In particular it was the subject of debate when we were concerned with the question of whether I should be allowed to refer to this White Paper as evidence. So far as I know it has been admitted as evidence for the time being. It was already pointed out, during the debate which arose in regard to this subject, that, as far as evidence is concerned, it is relevant for the evaluation of the motives.

At the time I pointed out that the crimes committed against German prisoners of war are of importance in order to understand the measures taken on the part of Germany. One cannot evaluate the underlying motives of the men who committed these offences or gave orders to commit them if one fails to consider the background against which these deeds were enacted, or to investigate the motives which caused them to commit these acts. And because of the importance of the motive, in order to know about the accusations raised by the Germans, it seems to me that this reference to this document is absolutely necessary.

THE PRESIDENT: Have you finished?

DR. STAHMER: Yes.

THE PRESIDENT: Well, we are here to try Major War Criminals; we are not here to try any of the signatory Powers. Therefore you must justify the introduction of evidence against the signatory Powers in some legal way.

DR. STAHMER: The presentation, if I may repeat that, is made for the following reasons:

The defendants here are accused that under their leadership crimes and offences against members of foreign armed forces were committed which are not in accordance with the Geneva Convention. On our part we plead that if harsh treatment and excesses occurred on the German side, they were caused by the fact that similar violations occurred also on the other side, and that consequently these offences must be judged differently and considered to be not as grave as would be the case if the opposite side had conducted itself correctly. Anyway, these facts are relevant for the evaluation of the motive.

THE PRESIDENT: Are you attempting to justify the introduction of this evidence on the ground of reprisals?

DR. STAHMER: Not only on the ground of reprisals but in consideration of the motive for the deed.

THE PRESIDENT: You are asking us to admit a document, a German governmental document. Now, under the Charter we are bound to admit documents, governmental documents, and reports of the United Nations, but it is nowhere said that we are bound to admit, or are at liberty to admit, documents issued

[Page 358]

DR. STAHMER: We have here in the document books court records of legal inquiries. These must, in my opinion, have the same value as evidence as official documents. They were records of court proceedings which are quoted in the White Paper.

GENERAL RUDENKO: I should like, your Honours, to point out only one thing here. Defence counsel Stahmer tries to submit these documents in order, as he says, to present reasons which would explain the crimes of the Germans. I should like to state here that these documents, which have already been submitted to the prosecution, and which were mentioned yesterday here during the cross-examination of the defendant Goering, show quite clearly that the document regarding the crimes was drafted before the beginning of the war.

THE PRESIDENT: Dr. Stahmer, what are the dates of these documents that you are asking us to admit?

DR. STAHMER: I have them here, individually.

(A short pause.)

Meanwhile I am having the records looked for.

MR. JUSTICE JACKSON: I suggest, your Honour, that I support fully the objection made by General Rudenko. I had supposed that the one thing counsel on both sides were agreed upon, when this matter was under discussion before, was that no reprisals against prisoners of war are tolerated. Even my learned adversary, Dr. Exner, agreed that that is the law.

Secondly, certainly we must know what crimes are sought to be excused. What are the motives for these crimes? Counsel says they are without motives. Was it their motive in shooting American or British flyers, that there were some violations on the part of the Russians, as they claim? The only way, it seems to me, that evidence of this character is admissible would be to bring it under the doctrine of reprisal very strictly by taking specific offences and saying: "This offence we admit, but we committed it in reprisal for certain other specified offences."

I submit that general allegations of this character and relating to prisoners of war are admittedly inadmissible and carry us far afield in the trial of this case.

DR. STAHMER: May I point out one more fact: For instance, I have here a telegram sent by the representative of the Foreign Office of the High Command of the Army to the Foreign Office, dated 12th August, 1941. In other words, this is an official document and until now the prosecution has submitted official documents in considerable numbers which have been used as evidence against the defendants. If now an official document is being produced here to exonerate the defendants I think that this also ought to be admitted, and to the same extent, provided that this is legally permissible. The formal side of the matter is that we have here a telegram, as I said, from a representative of the Foreign Office with the Army High Command, i.e., of an official authority, addressed to the Foreign Office, dated 12th August, 1941. It says, for instance: In the captured operational report of 13th of last month, 10 o'clock, of the staff of the 26th Division I kilometre West of Slastjena in the forest North of Opuschka it says: "The enemy left about 400 dead on the battlefield ..."

THE PRESIDENT: You must not read it, as we are discussing its admissibility.

DR. STAHMER: I beg your pardon. I misunderstood you, Mr. President. You asked me what document

THE PRESIDENT: The date of the White Book.

DR. STAHMER: The date of the White Book; I see, we misunderstood each other. It is Berlin, 1941.

THE PRESIDENT: That is not a date, that is a year.

DR. STAHMER: It says, "Bolshevist Crimes against the Laws of War and Humanity. Documents compiled by the Foreign Office, First Volume, Berlin,

[Page 358]

THE PRESIDENT: Then there is nothing to show when that document was communicated either to the Soviet Government or when it was communicated - if it was - to Geneva or to the Protecting Power.

DR. STAHMER: It has been forwarded to Geneva. It was duly handed to the Red Cross in Geneva.

THE PRESIDENT: When?

DR. STAHMER: In 1941. 1 had proposed to obtain these books from Geneva and to bring in information from the Geneva Red Cross.

Mr. President, may I once more point out that it is an official document published by the Foreign Office. It is a series of reports compiled in an official publication.

THE PRESIDENT: That is not the real point that the Tribunal is considering. The question is, how can you justify, in a trial of the Major War Criminals of Germany, evidence against Great Britain, or against the United States of America, or against the U.S.S.R., or against France? If you are going to try the actions of all those four signatory Powers, apart from other considerations, there would be no end to the trial at all, and their conduct has got no relevance to the guilt of the Major War Criminals of Germany unless it can be justified by reference to the doctrine of reprisal, and this cannot be justified in that way. And therefore the Tribunal considers the document is irrelevant.

DR. STAHMER: I now turn to the subject of aerial warfare, evidence on Page 25 of my trial brief. Relevant to the question of guilt is the question of whether the German Air Force started to attack open cities only after the British Air Force had carried out a great number of raids against non-military targets.

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