[Page 222]

The witness can retire.

Dr. von Ludinghausen, call your next witness and then we can have him sworn before the adjournment.

DR. VON LUDINGHAUSEN: May I ask that Dr. Diekhoff be allowed to follow Dr. Koepke?

HANS HEINRICH DIEKHOFF, a witness, took the stand and testified as follows:

BY THE PRESIDENT:

Q. Will you state your full name, please?

A. Hans Heinrich Diekhoff.

Q. Will you repeat this oath after me?

I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.

(The witness repeated the oath.)

THE TRIBUNAL: Now the Tribunal will adjourn.

(A recess was taken until 1400 hours.)

SIR DAVID MAXWELL FYFE: If your Lordship pleases, the first application is on behalf of the defendant von Neurath with regard to M. Francois Poncet. That has been dealt with. That is covered.

Then, my Lord, the next is an application from Dr. Marx on behalf of the defendant Streicher to put in an affidavit by the publisher, Herr Gassner of Der Sturmer. My Lord, the publisher is intended to deal with the question of the rise and the circulation of Der Sturmer during the years 1933 to 1935. The prosecution has already submitted to the Tribunal that they do not think that that is relevant when an application was made to call Herr Gassner as a witness. The prosecution still takes the same position. My Lord, it is for an affidavit, and we leave to the Tribunal as to whether they would like the affidavit, but the prosecution fails to see the relevance of that evidence.

THE PRESIDENT: Would Dr. Marx like to say something about that now?

DR. MARX (counsel for defendant Streicher): Mr. President, I have just discussed this matter with defendant Streicher and he tells me that the witness, Herr Gassner, whom I have proposed to call, and from whom an affidavit had been proposed, would only be in a position to speak about the publication figures of Der Sturmer from the year 1941 onwards. That, of course, is of no interest whatever to the defence. I shall, therefore, forgo the affidavit and rely on what the witness Heimer has said in that respect. Therefore, it will not be necessary at all to procure the affidavit.

SIR DAVID MAXWELL FYFE: My Lord, the next application is by Dr. Kranzbuehler on behalf of the defendant Donitz for further consideration and admission of the affidavit of the former fleet judge, Jekyl, by reason of the course of the cross-examination.

My Lord, I think the most convenient course would be if the prosecution does not object to the application at this time, but reserves the right, when Dr. Kranzbuehler makes the use that he desires of the affidavit, to consider whether we shall then object.

[Page 223]

SIR DAVID MAXWELL FYFE: Yes, in rebuttal of the points raised in the cross-examination. It is very difficult to decide whether one should make a final objection until one knows what use Dr. Kranzbuehler is going to make of it. I suggest that we do not object at this stage.

THE PRESIDENT: Well, these applications and the Tribunal's orders granting the witnesses are always subject to that provision.

SIR DAVID MAXWELL FYFE: If your Lordship pleases. Then the prosecution makes no further objection.

My Lord, then there are two applications on behalf of the defendant von Neurath, a request for minutes from the interrogatory of the -

THE PRESIDENT: They have both been withdrawn, have they not?

SIR DAVID MAXWELL FYFE: Oh, they have? I was not certain.

My Lord, then Dr. Thoma makes application on behalf of the defendant Rosenberg for three matters; the exchange of letters between Dr. Ley and the defendant; the entry of Dr. Strauber, 27th May, 1944; and third, a note of the Ministerialrat, Dr. Beil.

My Lord, the prosecution feels that these documents are cumulative, and they leave it to the Tribunal with that suggestion - that the case is already well covered. I do not know if Dr. Thoma wishes to say anything further.

DR. THOMA (counsel for defendant Rosenberg): Gentlemen of the Tribunal, I should like to refer to it quite briefly as apparently there is an error in the matter of Dr. Beil. It is a question here of the interrogatory. I have sent an interrogatory to Beil which has not yet been returned. Otherwise, there is nothing that I know about this matter; but I have made an application which has not been mentioned yet. I applied for some of Rosenberg's writings, Tradition und Gegenwart, new speeches and translations, to be included in the document book, for these deal with questions which were discussed on the occasion of Gau educational meetings and discussions and which also deal with such questions as the peaceful living together of the nations of Europe, religious tolerance, his advocacy of an ideal humanity, and similar writings. I request that these articles be admitted. Apart from that, I have no further applications to make, and for the rest I leave the decision, of course, to the Tribunal.

THE PRESIDENT: If I understand what you said aright, Dr. Thoma, you were not referring to any of the applications which are before us. The applications which are before us are an exchange of letters between Dr. Ley and the defendant in the autumn of 1944; another is an entry which Dr. Strauber made; and the third is a note of Dr. Beil; you have not referred to them, have you?

DR. THOMA: Yes, that is right. I have to confess that these applications are completely new to me. These applications must have been made by Rosenberg on his own initiative, because I cannot find any trace of them. Or perhaps an error was made in the memorandum to the Tribunal. I do not know the applications.

THE PRESIDENT: Well, Dr. Thoma, the copies of the applications are before us, and they appear to be signed both by the defendant Rosenberg and by yourself.

DR. THOMA: In that case, this must have happened months ago. I cannot remember; this is from 3rd June.

THE PRESIDENT: At any rate, you do not want them?

DR. THOMA: Application Number 3 is settled.

I have re-read the applications just now, and I do remember them. I ask you to make a decision favourable to the defendant.

[Page 224]

THE PRESIDENT: Sir David, a good many of them - certainly Nos. 3, 5 and 73, I think - have either been admitted or rejected, I think.

SIR DAVID MAXWELL FYFE: That is so, my Lord. I had a note opposite 13. I really think they have been dealt with, my Lord, they are in the books, and I do not think any further discussion is required.

THE PRESIDENT: Are they all in the books?

SIR DAVID MAXWELL FYFE: I think so, my Lord. I do not know if Dr. Kubuschok says he agrees with me.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL FYFE: If your Lordship pleases, the next is an application on behalf of the defendant Bormann, a request for a decree of Hitler's, and a decree issued by Bormann in 1944.

My Lord, the prosecution has no objection to these.

THE PRESIDENT: I do not quite understand the meaning of the last one. Can you tell me what it means?

SIR DAVID MAXWELL FYFE: My Lord, I took it myself that it was "to" the SD, instead of "of" the SD - the affiliation of members of the head office of the National Socialist Party to the SD.

I am afraid that that guess on my part does not meet with approval.

DR. BERGOLD (counsel for defendant Bormann): My Lord, this concerns a decree from Bormann in which he prohibits members of the Party Chancellery from belonging to the SD. It is a decree of Bormann's applying to the Party Chancellery.

THE PRESIDENT: Thank you.

SIR DAVID MAXWELL FYFE: My Lord, the remaining applications are on behalf of the defendant Goering, the admission of an affidavit by Baron von Gersdorff, and a book by Joseph Chepski. My Lord, my Soviet colleague has dealt with that by submission in writing, dated 20th June. I did not propose to say anything further about that, my Lord. Colonel Pokrovsky is here if your Lordship would like to hear him further.

THE PRESIDENT: I thought we had already made an order with reference to this.

SIR DAVID MAXWELL FYFE: Your Lordship has.

THE PRESIDENT: We made the order on 9th June, apparently that, for the defendant Goering, three witnesses could be produced either personally - Perhaps we had better hear from Dr. Stahmer about this.

DR. STAHMER: (counsel for defendant Goering): Mr. President, that is the way I understood the decision of the Tribunal. I had applied for five witnesses. The Tribunal ordered that I could only produce three out of the five witnesses.

THE PRESIDENT: That is right.

DR. STAHMER: Then, with reference to the affidavits, nothing was said, as far as I can remember, in that particular decision, so that I had assumed that I would be free to ask for admission of affidavits in so far as the Tribunal considers them necessary.

THE PRESIDENT: Dr. Stahmer, after the Tribunal had made that order about limiting the number of witnesses to three, did you not receive a communication to which you have replied, I think, suggesting that possibly you might be able to dispense with oral witnesses and do that whole part of the case by affidavits?

[Page 225]

THE PRESIDENT: Yes, but was not the agreement which you were trying to arrive at an agreement that only three affidavits should be produced on either side? Or was it more than three?

DR. STAHMER: No. The question which remains, and which we have not agreed upon, is whether I will be given the opportunity to read a few of the affidavits here.

THE PRESIDENT: I see. Dr. Stahmer, I think the position is, then, that unless you are able to arrive at an agreement with the Soviet prosecution, we shall have to abide by our previous order.

DR. STAHMER: Very well.

THE PRESIDENT: You will make further efforts to achieve an agreement with the Soviet prosecution and let the Tribunal know.

SIR DAVID MAXWELL FYFE: I wonder if your Lordship will grant me the indulgence of mentioning three exhibits. They all refer to the diary of Admiral Assmann, my Lord, which was introduced during the cases of the defendants Donitz and Raeder. There are three exhibits concerned.

The first is Document D-879. We thought that would be more complete if a connecting page was put in to make the continuity of the Exhibit. For that purpose, my Lord, the prosecution asks that Exhibit GB 482 be withdrawn and that there be substituted the two pages which were originally in it with a connecting page. That is merely adding a connecting page, my Lord.

The second is Document D-881 -

THE PRESIDENT (interposing): Is there any objection to that on the part of the defence?

SIR DAVID MAXWELL FYFE: I do not think so, my Lord; I have not heard of any.

THE PRESIDENT: What do the documents relate to, did you say?

SIR DAVID MAXWELL FYFE: The diary of Admiral Assmann, who was on the staff of the defendant Raeder.

THE PRESIDENT: Oh, yes.

SIR DAVID MAXWELL FYFE: My Lord, it is only a question of putting the Exhibit in proper form.

The second document, my Lord, is D-881, which is another passage from the same diary, on 23rd February, 1940. I promised your Lordship that I would put in an Exhibit when I dealt with the diary in cross-examination, and, my Lord, the Exhibit has been prepared and I want to put it in under the No. GB 475. That is, D-881 will become GB 475.

The third, which is in the same position as the second, is Document D-892. That Exhibit has now been prepared and will become GB 476. Copies are available for the defendants and will be given to them after the approval of the Tribunal is given.

THE PRESIDENT: And copies, of course, will be supplied to the Tribunal as well?

SIR DAVID MAXWELL FYFE: Of course, my Lord. They are just awaiting the formal approval of the Tribunal, and they will be submitted.

THE PRESIDENT: Yes, Sir David, that is all right.

Then, Sir David, we will consider the other matter.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

[Page 226]

Yes, Dr. Thoma.

DR. THOMA: Mr. President, I just wanted to use this opportunity to submit to the Tribunal the affidavit of Robert Scholz, the Chief of Special Staff Rosenberg. It has been translated into English and French, and I should now like to submit it as Exhibit 41 to the Tribunal. I have already shown it to Mr. Dodd, and he has not objected.

THE PRESIDENT: Very well.

DR. KRAUS (counsel for the defendant Schacht): Mr. President, I wanted to ascertain whether and till when after this session we may submit affidavits and documents. The reason is that during recent days I have received two affidavits and a document, the relevance of which we have not yet definitely decided upon.

THE PRESIDENT: Sir David, the Tribunal would like to know when the counsel for the prosecution and counsel for defence think would be the best time to deal with these matters which are outstanding, and with any evidence which either the defence or the prosecution may wish to bring in rebuttal.

SIR DAVID MAXWELL FYFE: Yes, my Lord. I have not had the chance of discussing it with any of the counsel for the defence, but I should have thought at the end of the evidence. One might reasonably hope that the evidence will finish this week. It might be possible to deal with it on Saturday morning or on Monday, and suit the counsel for the defence, and, of course, as the Tribunal decides.

THE PRESIDENT: Yes. The Tribunal, I think, will expect the defence counsel and the prosecution to be ready, directly when the end of the evidence comes, to deal with all these additional questions which are outstanding and also with any applications that they may have with reference to rebuttal.

SIR DAVID MAXWELL FYFE: If your Lordship pleases, yes.

THE PRESIDENT: I wanted that to be clearly understood, that it will be expected that it is to be done immediately the evidence closes. That, I think, answers Dr. Kraus's point about the affidavits and documents. That would be the most appropriate time.

Sir David, have you got any idea as to how long that would take?

SIR DAVID MAXWELL FYFE: My Lord, I think a very short time. I should have thought that two days or thereabouts would see it through. I have discussed it with Mr. Dodd, and that was the view we took.

THE PRESIDENT: Yes. In about two days at the outside?

SIR DAVID MAXWELL FYFE: At the outside, my Lord. Yes.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

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