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Saturday, December 10, 1994

Goering Quote

Nuremberg Diary
G.M. Gilbert

December 11

{p.66} LUNCH HOUR: ...{Goering said}...After the United States gobbled up California and half of Mexico, and we were stripped down to nothing, territorial expansion suddenly becomes a crime....

December 15-16


{P.72} Rosenberg's Cell: ...instead of having 90 per cent of the doctors in Berlin Jewish, reducing them to 30 per cent, or something like that—which would have been a liberal quota even then.—I had no idea that it would lead to such horrible things as mass murder.—We only wanted to solve the Jewish problem peacefully. We even let 50,000 Jewish intellectuals get across the border. Just as I wanted Lebensraum for Germany,
I thought the Jews should have Lebensraum for themselves—outside of Germany. There was no use trying to send them to Palestine, because it meant moving 800,000 Arabs out of the territory with the help of British bayonets.”

December 23


{p. 84} Goering's Cell: Goering was in a philosophical mood and began to speculate...
{p. 85} ... “The inescapable fact is that England has to maintain its balance of power on the continent or else dominate it directly. She has only a population of 45,000,000 to dominate an empire of 500,000,000. She has to maintain her lifeline through the Mediterranean, and prevent any one power from getting strong enough to threaten it. I wanted to convince England that it was to her interest to let us become the dominating power on the continent...

December 25


{p.91} Keitel's Cell: ...When we couldn't get across to England—which was impossible because we didn't have enough ships—he just had to do something. What else could he do? Take Gibralter? We wanted to, but Franco was afraid to risk it. Sit tight? Impossible.—That was all England needed to starve us out sooner or later. And all the time the life blood of our Wehrmacht came from the Rumanian oil fields. Remember that, professor. Oil! That was the vital key to the whole situation. Without oil we couldn't last a week.—And there was Russia; they could cut us off at any time. I think Hitler must have seen that we were actually in a desperate position. We were getting about 150,000 tons of oil a month from Rumania. We needed as absolute minimum of 300,000 to 350,000 tons a month to run a war. The 100,000 or so that we were getting from home production including synthetic was only a drop in the bucket. Why the Luftwaffe alone needed 100,000 a month. If we lost the Rumanian oil fields we were finished...

December 28


{p.97} Rosenberg's Cell: Discussing the Führerprinzip,* he launched into another typical Rosenbergian piece of historical rationalization. The Führerprinzip had merely been abused, like many other great ideas of history. "The French Revolution was dedicated to the idea of brotherhood, but they ended in a blood bath in achieving it—and no one thinks of that now; the Catholic Church preached the doctrine of peace on earth, good will toward men, but look at the mass murders in the Inquisition; Luther wanted an enlightened Reformation, but look at the bloody 30 Years War with both Protestants and Catholics killing each other in the name of God. Would you hold Luther responsible for that war?...

*Führerprinzip, or “Leadership Principle,” according to which the leader's word was law and civilians as well as soldiers were responsible only to their immediate superiors and ultimately to the Führer, to whom the owed unquestioning obedience.

{p.98} ...That is where the Führerprinzip went awry, It was intended for perhaps 200,000 political leaders, not for a whole nation of 80,000,000....

January 3


{p.103} Goering's Cell:...To think that Germans will be so rotten to prolong this filthy life—to put it bluntly—to piss in front and crap behind a little longer!—Herrgott, Donnerwetter!—Do you think I give that much of a damn about my lousy life?—” He faced me squarely with blazing eyes. “For myself, I don't give a damn if I get executed, or drown, or crash in a plane, or drink myself to death!—But there is still a matter of honor in this life!—Assassination attempt on Hitler!—Ugh!—Gott im Himmel!! I could have sunk through the floor! And do you think I would have handed Himmler over to the enemy, guilty as he was? Dammit, I would have liquidated the bastard myself!...

January 8


{p. 114} MORNING SESSION: Colonel Wheeler described some of the details of the persecution of the Christian religion and other religious sects; the killing of priests and ministers, the suppression of Church organizations, schools, and publications...

{p. 115} LUNCH HOUR: ...Rosenberg cut loose on the Russians and the Church. “The Russians have the nerve to sit in judgement—with 30 million lives on their conscience! Talk about persecution of the Church!—Why they are the world's greatest experts. They killed priests by the thousands in their revolution. They poured water on them and let them freeze—all kinds of things...

...I don't blame the Russians at all for trying
{p.116} to break the strangle hold of this clerical monster.—I have always been anti-Catholic.—But where do they get the nerve to sit in judgement on us as persecutors of the Church?

January 12-13


{p.121} Rosenberg's Cell: And what about that Open Door to China? Was it democracy to force a war on them so that England could corrupt 30 million Chinese with opium? Have you ever seen those opium dens? That is much worse than concentration camps. That is how millions of Chinese were spiritually murdered so that the Open Door for foreign trade could be maintained—and the various sects could keep sending missions. That is what I call racial prejudice with a vengeance!”

“But what about the democratic principle that people have to learn to live together and assimilate or live in mutual respect? New cultures always develop through the amalgamation of the old, and an artificial barrier to keep them separate is impossible in modern civilization.”

“Maybe it will work out that way in America; I doubt it. It is only natural for the members of a group to feel a common bond and protect themselves and their identity.”

4 The French Prosecution

January 17


{p.123} MORNING SESSION: M. Francois de Menthon, chief French prosecutor, opened the French prosecution with an impassioned denunciation of the Nazi aggression which had wounded France's national pride as well as her human and material resources;

“France, who was systematically plundered...

{p. 124}...in the Nazi doctrine the nation is equivalent to the race.

[In the dock Frank appraised the speech with a pleased air: “Ah, that is stimulating! That is more like the European mentality. It will be a pleasure to argue with that man! But you know, it is ironic—it was the Frenchman, de Gobineau, who started racial ideology!”]

February 7


{p. 132} MORNING SESSION: M. Mournier of the French delegation began to wind up the French prosecution with a summary of Rosenberg's role in the Nazi conspiracy. He attacked his “anti-scientific obscurantism which mixes the physiological traits of man with the concept of nations; the neo-paganism which aims to abolish what twenty centuries of Christianity have brought to the world in the way of moral rules of justice and of charity...”

15 The Russian Prosecution

February 8


{p.136} MORNING SESSION: {General Rudenko:}...The valiant struggle of the peoples of democratic countries, led by the coalition of the three great powers—The Soviet Union, The United States of America, and Great Britain—resulted in the liberation of the European countries from the Hitlerite yoke. The victory of the Soviet and the Allied armies destroyed the criminal plans of Hitlerite conspirators and liberated the people of Europe...

LUNCH HOUR: (During the address Goering and Hess took off their headphones as a gesture that the address was not worth listening to.) When I asked Goering why he hadn't been listening, he said that he was amazed to hear them talking about Poland—he had caught that word when General Rudenko mentioned aggression against various countries. “I did not think that they would be so shameless as to mention Poland,” he said.

“What do you consider that shameless?” I asked.

“Because they attacked at the same time we did.—It was all a prearranged affair.”

...After lunch Goering started in again on the theme of how shameless it was of the Russians to mention the violation of human rights. “I wonder if they will have the nerve to mention that in their newspapers,” he said to Fritzsche.

“No, that is not the kind of stuff they like to print in Russian newspapers.”

Here von Shirach laughed, “Why when they mentioned Poland, I thought I'd die.”

...Goering retorted that all the atrocities the Russians were bringing up were Russian atrocities...

“You will have a hard time proving that the Russians murdered their own citizens to blame you for atrocities,” I said.

...Rosenberg came to Goering's support with: “Everything they say about Nazi atrocities you can say about the communists.”

Goering calmed down long enough to take another tack. “It's all right—as I've always said, the world is round, and it turns around, and some day the tables will be turned—”

February 12


{p. 149} Ribbentrop's Cell: This evening I visited Ribentrop in his cell in order to get some expression on the Russian aggression. I
{p.150} put the questions to him rather directly, after commenting that von Paulus had made a strong impression labeling the Russian campaign a “criminal attack” Ribbentrop hemmed and hawed, and finally came up with, “Well, maybe history will show that Hitler was right and I was wrong.”

“How do you mean?”

“I was always for rapprochement with Russia. Hitler thought we would be attacked sooner or later.—Maybe he was right.”

February 23-24


{p. 168} Ribbentrop's Cell: I entered Ribbentrop's cell and started the conversation with some offhand remark about how hard he was working on his defense.

“It is very difficult to prepare.—Very difficult, indeed.—You see they have even denied us the three-week recess we asked for.—It is very difficult.—There are so many documents—.”

“By the way, how did that Russian Non-Aggression Pact actually come about? Was it a sudden inspiration, or was it a longstanding policy to arrive ay an understanding with Russian, when you had the Anti-Comintern Pact.”

“Well, it was a comparatively sudden thing; it all happened within a couple of months. It was my idea, you know.—I always
{p. 169} approved of co-operation between Germany and Russia..” He passed over the inconsistency of these two statements. “You know, I was not an ideological fanatic like Rosenberg or Streicher or Goebbels.—I was an international businessman who merely wanted to have industrial problems solved, and national wealth properly preserved and used. If Communism could do it—all right; if National Socialism could do it—all right too.” His materialistic opportunism is thinly-veiled to say the least. He maintains a pose of social broadmindedness and statesmanship, but there is hypocrisy implicit in virtually every sentence. “It is these social problems and industrial crisis which bring about wars—it wasn't merely a quarrel over Danzig [cf. Feb. 12]....

“...why couldn't you at least keep your Non-Aggression Pact with Russia? It seems to me that was your fatal blunder, aside from the moral issue.”

“Oh, I was in favor of keeping the peace with Russia all the time. After all, the pact had my signature on it.—Yes, I was strongly in favor of peace with Russia—right up to March, 1941. I felt we could do business with Russia... “

“If that was so, why did you attack them?” We've been on
{p. 170} this merry-go-round once before, but I was giving it another fling.

“Well, the war guilt does not lie entirely on one side.—I believe that Hitler feared just what has, after all, actually taken place.”

March 6


{p. 183} LUNCH HOUR: If Goering needed a change of subject to occupy their attention, it was supplied by today's headline, “UNITE TO STOP RUSSIANS, CHURCHILL WARNS AT FULTON.” {Chuchill's famous ‘Iron Curtain’ Speech in which Churchill informed the populations of the High Contracting Powers which authored the North Atlantic Charter that the Allied relationship with the USSR had reached an impasse. Churchill had earlier been voted out of office by the British electorate.}

“Naturally, I told you so,” Goering said as he went up to lunch. “It has always been that way. You will see—I was right.—It is the old balance of power again.” He continued when I dropped in on him at lunch. “That is what they get for trying to balance us off against the East. They could never make up their minds whether to balance us off against the East or West. Now Russia is too strong for them, and they've got to counterbalance her again.' I asked him whether he thought England had made the Munich Pact as an invitation to expand eastward toward Russia and Czechoslovakia. “Why, naturally,” he said, as if it was the most obvious thing in the world. “But then they got afraid that Germany would be too strong. Now they've got Russia to worry about.” He seemed to fell that it served Churchill right for not allowing Germany to expand eastward without hindrance from England.

In the Elders lunchroom, von Papen read the headline, then said “Donnerwetter, nochmal, he is outspoken, isn't he?”

The others gathered around and von Papen began to read the article aloud. “There!” declared Doenitz with some satisfaction, “—now he is going back to his old line.”

“Naturally, he welcomed Russia's help when he needed it,” von Neurath observed, “but it is still the British Empire first and
{p. 184} last. He shouldn't have conceded so much to the Russians at Teheran and Casablanca.”

“Yalta! Yalta!” Doenitz corrected. “That was the time. He didn't have to give in so much to the Russians when it was obvious that Germany was going to lose the war anyway. Now they've got the Russians in Thüringen.—That is what I wrote Eisenhower when I was still alive.—If they wanted to have a pro-Russian policy, all right—but if they did not want such a policy, they would have to make certain changes.”

“Of course, it is only words now,” von Papen observed. “Probably just a warning.”

“Yes,” Schacht suggested, after listening to the argument, “I suppose that the British Labor Party cannot very well say those things, so they tell Churchill to say it.” The others thought that was probably the explanation, hinting that regardless of party, the empire must be preserved, and the Labor Party merely wanted Russia warned not to force a showdown over British policies in the East.

March 16-17


{p. 202} Goering's Cell: Goering was very tired from the strain of the past three days' testimony. His defense being almost completed, he was already moodily brooding over his destiny and speculating on his role in history. Humanitarianism had become a thorn in his side, and he cynically rejected it as a threat to his future greatness. The empire of Genghis Khan, the Roman Empire, and the British Empire were not built with due regard for principles of humanity, he expostulated with weary bitterness—but they achieved greatness in their time and have won a respected place in history. I reiterated that the world was becoming a little too sophisticated in the 20th century to regard war an murder as the signs of greatness. He squirmed and scoffed and rejected the idea as the sentimental idealism of an American who could afford such a self-delusion after America had hacked its way to a rich Lebensraum by revolution, massacre, and war...

March 22

{p. 209}“That guy Rudenko was more nervous than I was, that's a sure thing. Hoho! but he pulled a boner when I slipped in that one about the Russians transporting 1,680,000Poles and Ukrainians to Russia. Instead of saying, 'We are not interested in your accusations,' he said, 'You do not have to bring up Soviet actions.'—I bet he gets a hot wire from old Joe on that one! Hw sure fell into it!—I also gave him a good dig when he asked me why I didn't refuse to obey Hitler's orders. I answered 'Then I certainly would not have to worry about my health.' That's the technical terminology for liquidation in a dictatorship. He understood me, all right.”...
{p.210} He then launched into a tirade on the homosexuality of the Catholic clergy, to show that his anti-Catholicism had some basis. “Did you ever see one of their seminaries? There are 14, 15, 16, and 17-year-olds from all over the world, and you can see at 10 paces that they are selected pederasts. It stands to reason. You cannot go against human nature. When we arrested their priests because of homosexuality, they hollered that we were persecuting the Church.—Some persecution! We had to pay them close to a billion marks a year in taxes anyway.—But the Catholic clergy—don't you think I know what goes on behind drawn curtains in those confessions, or between the priests and the nuns. The nuns are 'brides of Christ' you know.—What a setup!”

April 6-7


{p. 246} Jodl's Cell: Jodl recalled that he was also furious over the killing of the English fliers.”—A sheer willful, utterly unjustified crime!—I knew that was one thing we could never justify.—From then on I knew what kind of man Hitler was.—I bucked him at every turn on such matters, because I knew that Keitel was no man to stand up against him. But the order to kill the escaped British fliers—there was absolutely no justification for that—just the sheer, arbitrary, wilful fury of Hitler against Keitel for not preventing prisoners from escaping. I knew that that was something we could never explain. In fact, when the British called for Keitel after the Armistice, i told him it was on account of that affair.”

“The killing of the 50 escaped prisoners and the assassination
{p. 247} plot against Giraud seem to disturb the military men more than the whole murder program that exterminated millions of Jews and other ideological opponents.” I commented.

“Yes, of course—that concerns our honor vitally. We had nothing to do with the other thing. It will be shown conclusively that we had nothing to do with that.”

He went on to explain how Hitler had disrupted the entire basis of the officers' code of honor and fair play in war which had been handed down through the centuries. Hitler brought with him a new radical capricious will which did not fit into their world—the world of von Hindenburg, von Neurath, etc. Even Goering understood the old officers' code and frequently had his way with the Führer on such matters.

April 9

{p. 251} LUNCH HOUR: Goering had said he wanted to know how it was technically possible to murder 2½ million Jews. I explained it to him during the lunch hour, just as Hoess explained to me this morning: each of the gas chambers could accommodate up to 1500 or 2000 persons; the killing was easy but burning of bodies took all the time and manpower. Goering felt extremely uncomfortable at the realization that it was no longer possible to deny the extent of the mass murders on the basis of the technical incredibility of the numbers. He wanted to know just how the order was given. I told him that Himmler had given it to him directly as a Führerbefehl (order from the Führer).

“He is just another German being loyal to the Führer,” I commented.

“Oh, but that has nothing to do with loyalty—he could just as easily have asked for some other job—or something,” Goering
{p.252} speculated. “Of course, somebody else would have done it anyway.”

“What about killing the man who ordered the mass murder?” I asked.

“Oh, that is easily said, but you cannot do that sort of thing. What kind of a system would that be if anybody could kill the commanding officer if he didn't like his orders? You have got to have obedience in a military system.”

If I am not mistaken, millions of Germans are sick of this obedience and blind loyalty among their leaders. I think they would have preferred a little less loyalty to the permanent shame that loyalty to the Führer had brought them. There ios an article on the trials in yesterday's Nürnberger Nachrichten with the headline Blind Obedience without Conscience.' You ought to read it and see what the people think of your blind obedience, and Ribbentrops's and Keitel's.”

Ach, what the American-controlled newspapers print now does not mean a damn.”

He nevertheless seemed disturbed over the idea that this was what the German people were reading and agreeing with nowadays.

April 27-28


{p. 304} Ribbentrop's Cell: ...Ribbentrop said he was still having speech difficulty but talked a blue streak, repeating many of his previous arguments and rationalizations...his assertion that America had used its army to suppress opposition by force 150 times in the past 150 years. He did not say where he had gotten this information....

15 Schacht's Defense

April 30


{p.307} MORNING SESSION: ...Schacht maintained that he was justified in objecting to the Versailles Treaty, since even America refused to ratify the treaty as a betrayal of Wilson's 14 Points.

May 16


{p. 335} MORNING SESSION: Raeder testified that Hitler did not want to compete with England in naval rearmament, and therefore made the Naval Pact of 1935 which preserved a 3-to-1 ration of the British and German naval tonnage. That was a breach of the Versailles Treaty on both sides, of course...

May 20



{p. 340} Raeder's Cell:...the game of playing the East against the West continues behind the scenes, with the admirals
{p. 341} already choosing up sides for the next war, before the peace treaty has even been signed for this one {nobs Ed. No treaty was ever signed officially ending World War II; despite Soviet participation in the United Nations Charter, the United States never formally recognized Soviet claims to the Baltic States as arranged in the Molotov-Ribbentrop Pact; the Oder-Neise Line was not formally recognized by the BRD or the Federal Republic of Germany as the Polish border with the DDR or East Germany until the 1970's; the Helsinki Accords of 1976 are the closest thing to what may be called a 'treaty' ending World War II, although the Cold War, meaning the absence of a 'Hot' or shooting war continued uninterrupted after the 1945 Tribunal).

...I have no illusions about this trial.—Naturally, I will be hanged of shot.—I flatter myself to think that I will be shot...

May 22


{p. 345} LUNCH HOUR: AT lunch Doenitz was tickled over the statement he had just gotten from Admiral Nimitz in answer to his questionnaire. “Do you know what he said? He conducted unrestricted warfare in the whole of the Pacific Ocean from the first day after Pearl harbor!—It is a wonderful document!”

In the next vom Ribbentrop and Raeder were also taking great comfort from the document, which Doenitz had shown them. “You see,” said Raeder, “unrestricted warfare!—anything is permitted as long as you win! the only thing you mustn’t do is lose!”

Ribbentrop sought to use this even to justify the breaking of the Munich Pact. “There you are—unrestricted warfare in the whole Pacific Ocean, where America really doesn't belong! And when we make a Protectorate of Bohemia and Moravia, which belonged to Germany for a thousand years, it is considered aggression!”


{p. 346}...Raeder is just a jealous old man who is sore because I accomplished more than he did, and finally I became Chief of State, although I was once his subordinate.—That part about my ordering the troops to fight on to the end—I've already explained it to you.—It was only to save two million Germans from falling into Russian hands, and for that I had the support of General Eisenhower and General Montgomery.—

June 5


{p.366} Jodl continued to testify how Hitler had started talking to him about the possible hostilities with Russia in July, 1940, and had asked if they should not get ready to forestall an attack by Russia in the fall. Hitler ordered him to improve campaign conditions in the East. Two divisions were sent to Poland for readiness “to protect the Rumanian oil fields.” Hitler was convinced that Russia would squeeze or attack them in the near future, and England would encourage it. Incidents at the demarcation line in Poland increased. There were reports of increasing strength of Russian troops near the border...

June 6

{p.369} AFTERNOON SESSION: ...cross-examination of Jodl...”If it is proven that Russia had no intention of attacking us.”

Appendix I—The judgment

{p.444} SCHACHT: “...Tribunal...comes to the conclusion that this necessary inference has not been established beyond a reasonable doubt.”

Verdict: NOT GUILTY.

DOENITZ: “...evidence does not show he was privy to the conspiracy to wage aggressive wars or that he prepared and initiated such wars...The Tribunal is of the opinion that the evidence does not establish with the certainty required that Doenitz deliberately ordered the killing of shipwrecked survivors...

Sentence: 10 years imprisonment.

RAEDER: “...The conception of the invasion of Norway first arose in the mind of Raeder and not that of Hitler...Rader endeavored to dissuade Hitler from embarking upon the invasion of the USSR...
Verdict: GUILTY on counts 1, 2, and 3.
Sentence: Life imprisonment.

Thursday, December 08, 1994

Katyn in Nuremberg

Shame and Justice

A Cup Which Was Not Drunk to the Dregs

The massacre of Katyn, perpetrated by the Soviets was built into the bill of indictment of the Nuremberg War Crimes Tribunal.

This iniquity was the result of Soviet pressures. Not only was it against the opinion of the three other powers present, but they practised true blackmail to arrive at their end1. That they reached that point remains for them a success (which avèrerait a victory in Pyrrhus), and for the Nuremberg War Crimes Tribunal, an indelible spot.

Thus, Katyn appears in the Count of Indictment No. 3, “War Crimes”, which refer to the subparagraph B of Article 6 of the Statute of the Court.

The Soviets hoped very much to make allot of Katyn with the Germans. They hoped well that they could do without testimonies, that the report on which the charge was made, would be accepted without discussion, and the culpability of defendants would be regarded as acquired office. It was a fiasco. The rights of defense were respected. The judges required that the Soviets support their "report" of testimonies more conclusively2. And they agreed to the request of defense counsels to question their own witnesses. These two things the Soviets were violently opposed, but in the end could not prevent.

Katyn was a true test of the equity of the lawsuit. The test was from the beginning, from even the mention of Katyn in the Bill of Indictment, but the continuation of the lawsuit is révèlerait with the honor of the judges and the court.

The Soviet Attempt to Muzzle Defense

The Soviet charge rested only on the report which they had manufactured to accuse the Germans, document USSR-54. To prevent any discussion of the aforementioned report, the Soviets tried to base it on an Article 21 of the Statute of the International Court of Nuremberg.

This Article concerned the same preoccupations with a diligence as Article 19 of the Statute which stipulated:

"Article 19: The Court will not be bound by the technical rules relating to the administration of the evidence. It will adopt and apply as much as possible a fast and nonformal procedure and will admit any means which it will estimate to have a convincing value. "3
It should immediately be stressed that these Articles were not employed arbitrarily or in such a way that the rights of defense would have been ridiculed. On the contrary, as we shall see.

Several cases show, for example, that Article 19 was not applied in a way which would darkened the rights of defense. Thus on January 2, 1946, the President precise with the lawyer of Kaltenbrunner, Kauffmann, concerning a declaration under oath accepted under the terms of this Article, that the Court will examine any request emitted by defense in order to cross-examine the witness who had made the statement in question.4

It did nothing but state again what it had already said on November 28, 1945, namely that:

"if defense wishes to proceed to the cross-examination of the witness [ author of a declaration under oath accepted under the terms of Article 19 ] it will have all freedom to do so." 5
December 14, 1945 it specified that the Court preferred to hear a witness rather, when this one was available, than to receive (under the terms of Article 19) his testimony in the form of a written declaration because that "deprives Defense of the advisability of cross-examining the witness" 6.

There was all the philosophy of the statute and the lawsuit: to allow the speed and the effectiveness certainly, but without harming the rights of defense.

Article 19 is justified in addition from a strictly legal point of view, within the framework of the accusatory procedure (of Anglo-Saxon type) used in Nuremberg as John F Murphy7 explains it.

Let us return in Article 21:

“Article 21: The Court will not require that the proof of facts of public notoriety be reported, but will hold them for asset. It will also regard as authentic evidence the documents and official reports of the Governments of the United Nations, including those drawn up by the Commissions established in the various countries combined for the investigations into the war crimes as well as the official reports of the audiences and the decisions of the military tribunals or other courts of the unspecified one of the United Nations.”8
The interest of this Article is included/understood, and chair it Court recalled on several occasions that it made it possible to advance quickly in this lawsuit river. To understand the context in which Article 19 and Article 21 of the statute fit it is necessary to hold account of the procedural characteristics of the lawsuit, clearly dominated by Anglo-Saxon legal philosophy, but morning of European right. See the work of Telford Taylor, or that of François de Fontette9. The second part of Article 21 concerns, in the same vision of diligence and effectiveness, automatic acceptance by the Court of all that is in an official report emanating from a allied government. And only of these. There are examples of documents presented by the charge like acceptable under the terms of Article 21, but rejected by the tribunal10. The English version, which is taken, known as more precisely than the court “will take judicial note” of the evoked reports. It is a question for him of not having to discuss the relevance the reports in questions. One is halfway between the concept of “proof” and “exhibit”.

The reading of the lawsuit shows that Article 21 relates to well the admissibility of documents presented to the Court, but does not suppose of anything of their use by the Court, i.e. of interpretation that will make judgement of them. It was a question of accelerating the process because one knew pertinently that the admissible nature of certain documents could be the object, during a lawsuit, of discussions without end.

Telford Taylor points out indeed that the Court could grant to a document considered to be admissible according to Article 21, "the value which it would judge good" 11.

John F Murphy specifies the legal reasons and techniques which made necessary Article 21. He writes in particular:

"The authors of the Charter wisely operated one the premise that every such document represented the product of collecting and evaluating has a multitude of depositions, protocols of inspection and other evidence which there was no special need without reason to review once again" 12
John F Murphy specifies well:
"without special reason", which shows well that it is an Article whose interpretation was not to harm the rights of defense.

The Soviets called upon an extremely literal interpretation of Article 21. Indeed, their charge was based on a report (document USSR-54) assembled of all parts in order to manufacture a German culpability. As it acted of an official report, the Court had taken "judicial note of it", under the terms of Article 21.

The Soviet charge supported that the reports accepted under the terms of Article 21 were not debatable and could not be discussed. As we shall see, this interpretation was categorically rejected by the judges.

The Court had obtained flexible rules since the rule no.11 of the rules of procedures stipulated that nothing would prevent "the Court at some time that it is in the interest of the equity and the speed of the debates, to deviate from these rules, to bring there amendments and additions" 13

In the interest of the equity of the debates, the Court obtained faculty to amend or interpret the payment with which it had been equipped. And it is what it made to refuse interpretation extremist, highly inequitable, of Article 21 by the Soviet charge, so that never the court did not consider that a document accepted under the terms of Article 21 constituted a final proof, and thus deprived defense to make criticism of it.

The President clearly stated, in connection with Katyn even. June 3, 1946, the lawyer of the accused Dr. Stahmer, disputing the Soviet interpretation of Article 21, declared:

"General Rudenko wishes to refuse my application of evidence while calling upon, I believe, Article 21 of the Statute. I do not believe that the stipulations of this Article can cancel this request "
The President of the Court abounds then in the direction of Dr. Stahmer while stating:
"Doctor Stahmer, I believe that the Court already decided that this did not prevent the summoning of witnesses. "14
However the Soviets were going to redouble efforts to arrive to their ends... Here what writes, in connection with this episode, Telford Taylor which was, let us recall it, prosecutor in Nuremberg:
"Dr. Stahmer then asked for the Court the authorization of quote six witnesses, including five officers who had been confined close to the wood of Katyn. March 12, 1946, the Court examined the request in camera and approved it by three votes, those of Lawrence, Biddle and of Vabres. The official report declared:
GeneralNikitchenko refused to vote and asked that its reasons appear in the official report as follows: "I cannot take part in this vote because the discussion and the setting with the voices by the Court of the question of knowing if an official governmental act can be disputed is in obvious contradiction with Article 21 of the statute"
It is clear that, in comparison with Article 21, the "commissions established [... ] for the investigations into the war crimes" included the Soviet special Commission Report, whose contents could be recognized like formal proof by the Court ("judicial note"), which would grant the value then to him that it would judge good. But Nikitchenko vigorously defended an interpretation of Article 21 which gave an obligatory force to these documents and prevented the Court from hearing defense. Under the terms of what the defendants could not tackle the conclusion of the commission, namely that the Germans were guilty massacre of Katyn.

It was an interpretation absurdity of Article 21 and, for the second time Katyn created a very delicate situation within the Court. In Berlin, when Nikitchenko had claimed an adjournment to leave time in the Kremlin to modify the number of massacred Poles with Katyn, the other judges had yielded because Biddle feared the departure of Nikitchenko (see p. 141-143). At present, the Soviets seemed also intransigent, but Biddle extremely precisely understood that the other judges and itself could not yield: to let the Soviet public ministry affirm that the Germans were guilty massacre and prevent those from answering this charge removed, indeed, any value with the lawsuit. The appearance of the witnesses quoted by Stahmer was approved by a new vote and was announced, however that Nikitchenko expressed its dissension. Rudenko required of the Court to reconsider its decision, but it made it in terms that Biddle qualified the "immoderate ones" and by showing the Court not to make its duty and to make a "coarse error". April 6, when the Court examined the request, Biddle arrived at the meeting with ammunition, in fact a reasoned opinion written by Herbert Wechsler, who, in terms chosen, but powerful, reduced to nothing the request for Rudenko.

When the conference started, Biddle declared that the request for Rudenko was so arrogant and so libelous that in the United States "the author of such a document would be continued for contempt of court" and perhaps that it was necessary to send Rudenko "in prison forthwith". Addressing itself to Nikitchenko, it asked him which measurement it proposed. The General, struck, marmonna something of inintelligible. On what Biddle lute the opinion reasoned with its listeners, specifying that it "could be read with the audience before one stops the General Rudenko".

Nikitchenko then made feet and hands to prevent that the reasoned opinion was not given public and the judges "compromised" by deciding that the request for Rudenko "was to be rejected and that one would give no reason of his rejection". The reasoned opinion of Biddle "was classified" in the files of the Court. Nikitchenko expressed its dissension, but renonça to want to impose its interpretation of Article 21. "15 Thus the Court, in transfer, had decided, against the Soviet opinion and its interpretation of Article 21, to hear the German witnesses, but, and for the only time of all the lawsuit, the Rudenko prosecutor lodges a request for re-examination of the question, which was examined with eight-closed. It is necessary to read what judge Francis Biddle itself wrote of this episode there:

"[... ] the Russian prosecutor lodges a request for reexamination immediately the question. It was the only request for re-examination which us [ judges ] received. Its terms were immoderate: the court, claimed Rudenko, had badly built the Statute, had violated its duties, and commetttait a gorssière error. The request followed the sales leaflet of Nikitchenko and indicated that it had cooperated there.

It was necessary to act as this occasion. With our meeting of the afternoon I asked my fellow-members [ in French in the text ] to grant the privilege to me to let itself speak, although it was not on the agenda, but because it acted of a business of the most extreme importance for us all. Because it related to the integrity of the members of the Court, their honor, and their competence.

The fellow-members were now with listening.

One of the prosecutors—I looked at the General Nikitchenko—had carried an insulting, arrogant, and unfounded attack against the Court, an authority which would mark the history like the most important court of the world. I did not know which rule was applied in the other countries. But in mine, the author of such an insult would be accused for insult. Perhaps even as in this case, extreme, very precise, we would send it directly in prison—there could not be dispute.

"That think about it, Général? read the request of the General Rudenko? What propose as solution? "General Nikitchenko was disconcerted. It marmona that he had read the request, but rather in diagonal. He did not have anything to propose. The French were amused—they had included/understood what I prepared. The British were surprised—they had not been consulted.

I produced an opinion, that Herbert Weschler and myself had written with much care the previous night. With their permission I would read it to them. This reading could take place in public, with the Court, immediately before stopping the General Rudenko.

I read the opinion. It refuted the assertion as what the governmental reports were to be accepted like "irrefutable proof of the established facts"—an assertion "not supported by the Statute and intrinsically unreasonable in oneself" the Soviet prosecutor made a coarse error in his interpretation of the Statute. "16

Biddle concludes that to avoid the humiliation of an arrest of the Soviet prosecutor Rudenko and the public reading of the opinion of Biddle and Wechsler, Nikitchenko would not be opposed to the quotation German witnesses any more.

The Soviet interpretation of Article 21 was clearly reduced to nothing and was rejected: the defendants were not held guilty a massacre of Katyn under the terms of Article 21 of the statute of the Court. And they could be defended of these charges.

Whoever would dare to suggest the opposite, or that Soviet interpretation was accepted, would make coarse a falsification.17

The Success of Defense

Three witnesses were finally heard for defense. These testimonys are partly reproduced in the work of Jean-Marc Varaut18. They were overpowering for the Soviet Union. These meetings were a true fiasco for the Soviet charge and any mention of Katyn disappeared from the Judgement.

All the historians, all the serious authors who treated the Nuremberg Tribunal and tackled the question of Katyn agree for saying that the disappearance of this load in the Judgement, accuse, by defect, the Soviets, and mean that the Germans were not condemned for Katyn.

Let us leave the word with some of these authors.

Annette Wieviorka:

"Katyn disappears simply from the Judgement, which constitutes to some extent the tacit consent of the Soviet culpability. "19

Alexandra Viatteau:

"After the interrogation of the war criminals Nazis (March 8 and June 4, 1946)—as well as chiefs of the 537e German Regiment of the transmissions stationed at the end of August 1941 close to Katyn—and the deliberation of the judges (1st and July 2) which concluded after having heard colonel Ahrens and the officers of the Regiment, with impossibility of retaining against the count of indictment of the massacre of Katyn, this count of indictment was withdrawn and thus does not appear in the verdict returned on September 30, 1946 in Nuremberg.

The Judgement of Nuremberg is, in fact, a verdict in the business of Katyn: there were two murderers supposed responsible for the crime; with the end of the Lawsuit, overpowering on the other points, one had to give up the loads against a suspect, although it was at the time of the Judgement in position of weakness vis-a-vis to the other which formed part of the judges and the winners. One abstained from showing the other suspect, become combined in June 1941, but while proceeding by this simple elimination, the culprit was logically designated... since the Army Polonaise had not made of collective suicide that at least was sure, and that it "had not left in Mandchourie", like had claimed it Stalin in 1941, before the discovery of the mass grave. "20

Telford Taylor which was a prosecutor in Nuremberg written on Katyn:
"In the business of Katyn, the circumstances were such as only the Soviet Union or Germany could have perpetrated the atrocity. The only way, for one or the other of the parts, to show its innocence was to prove the culpability of the other. "21
Speaking about the pleading of lawyer of Goering, he writes that it acted:
"[ the only satisfactory demonstration proving that one could not show in a plausible way the Germans of the massacre of Katyn" 22
Joe Heydecker and Johannes Leeb, both present at the time of the lawsuit, write:
"Never still, in the history of humanity, as many monstrous crimes were not reproached such a small number of defendants. However, the court, in its verdict, will refuse to hold account of certain fixed prices. It will estimate indeed that the evidence subjected by the charge is insufficient to establish the culpability of the Nazis chiefs clearly. It is in particular the case in the business of Katyn, which will end in the total victory of defense "23 "In any case, the Soviet charge will not insist any more on the business of Katyn? Does this abandonment constitute a consent? In Nuremberg, many people are persuaded of it. "24
Leon Poliakov, who also attended to him the lawsuit, writing:
"the Court of Nuremberg appeared to draw its conclusion, since in its verdict, it did not speak about this business, and thus did not put it at the load Germans [... ] A Is, the Polish communist government composed by Moscow, the Beirut government, did not even mention the name of Katyn in the list of the German crimes committed in Poland, and that can be regarded as a consent" 25
Jean-Marc Varaut writes that with the exit depositions witnesses of defense:
"[... ] the general impression is that Stalin made assassinate on suspicion the framing of the Polish army"26
It concludes like Poliakov:
"the business of Katyn will be taken again by the Court in its Judgement [... ]. the Soviet Union will not insist any more on the business, without never recognizing the crime. And the Polish communist government does not mention the name of Katyn in the list of the German crimes committed in Poland. "27
Michael Bildis, who was a president Historical Association in Great Britain, writing:
"By the closed of the trial it was becoming plainer that the crime belonged not to 1941, have alleged, goal to 1940 when the area was still under the control of the Red Army. Final By excluding from the Judgement all reference to this matter, the Western members of the Tribunal were paying silent and embarrassed testimony to the fact that in Eastern Europe, before have well after Germany and the USRR became open enemies in June 1941, both the Nazi and the Stalinist modes had pursued to their irreconcilable goals with comparable ruthlessness. "28
What means, in short, that the culpability of the Soviets clearly appeared during the lawsuit and that the disappearance of Katyn of the Judgement takes act of this fact.

All agree for saying that the culpability of the Soviets appeared, that that of the Germans disappeared. It is well what the absence of Katyn in the Judgement means. It would be grotesque, and opposite with the truth, to affirm that the Germans were condemned for Katyn...

Reading of the minutes of the lawsuit, as well as the accounts which were made by it (see in particular Telford Taylor and Jean-Marc Varaut), reveals the importance that the Soviets attached to Katyn. Not only they had assembled a board of inquiry can, but they had been ready to go until the crisis to include Katyn in the charge. One can be sure that if they had regarded their position as shown at the end of the audiences, they would have made so that Katyn is mentionnér in the jugement29.

They held well too much to spread out the German "culpability", relating to Katyn, with the eyes of the world (only means for them of clearing itself) not to protest high and strong their "victory" if they had been able to obtain one from them. It was a defeat, as one saw. It is in this context, within the framework of the Soviet eagerness which it is necessary to read and interpret the absence of Katyn in the Soviet indictment (that one does not point out enough) and in the Judgement. This absence, it is well the Soviet incapacity to be able to evoke Katyn after the fiasco of the audiences, it is well the defeat of the Soviet attempt, it is well the recognition of German innocence. It is underlined by the absence, brought back by Poliakov and Varaut, of the evocation of Katyn by the Polish government communist pro-Soviet (i.e. with the boot of the USSR), in the list of the German crimes committed in Poland. One can say without being mistaken that if the USSR had considered that the Judgement given to Nuremberg could be interpreted like a judgement of German culpability for Katyn, it would have imposed the mention of Katyn to the Poles.

In a book on the lawsuit, published with the Editions of Moscow into 196930, Katyn is not mentioned anywhere. After so much of insistence to show the Germans of this crime, these silences say clearly which was interpretation by the Soviets themselves of the absence of Katyn in the Judgement.

Nuremberg, an Equitable Lawsuit

That it is allowed to me to point out the Article no.16 statute, item IV heading "Lawsuit equitable of marked":

"Article 16: In order to ensure that the defendants are judged with equity, the following procedure will be adopted:

a) The Bill of indictment will comprise the complete elements specifying in detail the loads raised against the defendants. A copy of the Bill of indictment and all the additional documents, translated in a language which it understands, will be given to shown within a reasonable time before the judgement;

b) During any preliminary interrogation with the lawsuit of an defendant, this one will have the right to give all explanations referring itself to the loads raised against him;

c) the preliminary interrogations and the lawsuit of marked will have to be led in a language which the defendant understands or to be translated in this language;

d) The defendants will have the right to ensure themselves their defense in front of the Court, or to be made assist of a lawyer;

e) the defendants will have capital duty during the lawsuit, either personally, or via their lawyer, all evidence in support of their defense and to put questions with all the witnesses produced by the Charge. "31

And indeed, the defendants them even were surprised by the balanced and equitable character of the lawsuit! Here what Jean-Marc Varaut writes:
"the President will get busy throughout lawsuit to be made respect the concept of equitable lawsuit. The freedom of choice left with marked [ concerning their lawyers ] by the statute will surprise several of them [... ]

The defendants, even when they denounce the lawsuit like the lawsuit of the winners with overcome, recognize the impartiality of the president. In time even where it withdraws the word with the lawyers who want to pre-empt the time of their interventions, it reprimand representatives of the public Ministry when they denature a document by a selective reading or their comments [... ]

It is understood that the lawyers and the defendants were unanimous to recognize and to rent the impartiality of Lord Geoffrey Lawrence [ the President ]. He was exemplary throughout lawsuit, the Judge, such that dream it oppressed and the powerful ones fear it, and that the powerful deposed ones also wait them when the charge equalizes them with their victims. "32

With the end of the lawsuit, 33 witnesses for the prosecution and 61 witnesses for the defence will have been heard, without counting the 19 marked ones who appeared personally with the bar. Defense moreover produced 143 depositions écrites.33

Those which would like to make believe that the Nuremberg Tribunal was iniquitous commetraient a historical swindle...

Let us leave the word of the end with François de Fontette: "One easily sees the tight hank of the problems arising, which they are legal, historical, political, sociological or philosophical. Between the two extremes of the blow of gun in the nape of the neck and of the public lesson of morals, how much wise the creation of an international penal jurisdiction appears; that is all the more true as one observed a remarkable weighting and a balance there since one did not hesitate to discharge three marked. The freedom of word of the lawyers (certain members of the NSDAP), the adoption of a procedure for a great Anglo-Saxon and thus accusatory share, the possibility for the defendants themselves of testifying in their own cause are as many elements which contributed to bring to the debates large serious and a relative serenity. The length even of the debates, 22 volumes which are the reproduction and 20 volumes of documents attest meticulousness with which the questions were studied, carried out interrogations and heard defense. It is enough to oppose the assassination and the scandalous exposure of the corpses of Mussolini and Clara Petacci to the legal execution of the criminals Nazis after a lengthily matured legal sentence. The first mode raises of the wild popular anger, the second is the expression of a penal international law undoubtedly applied for the first time in all its rigour, but it is necessary well that there is first once and justice is not revenge.

Justice does not cease existing because it is at the end of the drama, on the side of the victorious force. Here a long time that Blaise Pascal meant it in final matter: "justice without the force is impotent... the force without justice is tyrannical. It is thus necessary to put together justice and the force and for this reason to make that what is right is strong or that what is strong is right "It is with that that to Nuremberg one after a fashion arrived when the lance of Athéna meets the sword of Thémis, then measurement is good." 34

1. Telford Taylor, Prosecutor in Nuremberg, Threshold, 1995, p. 328.
2. Tusa, Ann & John. The Nuremberg Trial, Birmingham, Alabama: Notable The Trials Library, Division of Gryphon Editions, Inc, 1990, p. 412. See nizkor.org
3. city in Telford Taylor, Prosecutor in Nuremberg, Threshold, 1995, p. 665.
4. Nuremberg Trial Proceedings, vol. 4 p. 297.
5. Nuremberg Trial Proceedings, vol. 2 p. 351.
6. Nuremberg Trial Proceedings, vol. 3 p. 544.
7. John F Murphy, "Norms of criminal procedure international At the military court", in G Ginsburgs and V.N. Kudriatsev (eds), The Nuremberg Trials and International Law, Kluwer Academic Publishers, 1990, p. 72. It is useful to quote the passage concerned:

"A continental major difference between common law and legal systems is that the to lath d?s not employ exclusionary rules of evidence. Short Rather the approach of the is to allow most evidence in, exclude it only yew it is clearly irrelevant gold prejudicial, and then decide one how persuasive it is. The American attitude At London was that, since the common law rules of evidence were developed for uses in jury trials, there was No need to insist that they Be used in this trial. Have has consequence, Article 19 of the Charter provided that the Tribunal would not Be bound by technical rules of evidence and would "admitted any evidence which it deems to cuts probative been worth." "

On the accusatory character of the procedure and the course of the lawsuit, to also see Jean-Marc Varaut, the Nuremberg Tribunal, Hachette/Pluriel, 1993, p. 49-50.
8. city in Telford Taylor, Prosecutor in Nuremberg, Threshold, 1995, p. 665.
9. François de Fontette, the Nuremberg Tribunal, PUF, I That-know n°3221, 1996, p. 62-94.
10 Nuremberg Trial Proceedings, vol. 7 p. 116.
11 Telford Taylor, op.cit., p. 484.
12 John F Murphy, "Norms of criminal procedure international At the military court", op.cit., p. 85. One will however read the pages 83-85 which justify the adoption of Article 21 of the charter. 13 City in François de Fontette, op.cit., p. 28. 14 Lawsuit of the large war criminals in front of the International Military Tribunal, Nuremberg, November
14 October 1945-1st, 1946, Nuremberg, 1947-1949 (41 volumes), XV, p. 302.
15 Telford Taylor, op.cit., p. 483-485. 16 Translated (by the author) of Francis Biddle, In Brief Authority, Garden Cityn N.Y.: Doubleday, 1962, p. 415-4
16, quoted in Michael R. Marrus, The Nuremberg War Crimes Trial 1945-46, A Documentary History, Bedford Books, 1997, p. 101-102.
17 The negationnist Robert Faurisson made such a falsification in a text published in a booklet negationnist, "Katyn in Nuremberg", Revue of Révisionniste[sic History ], n°2 (August-September-October 1990). He supports there that the Stalinist interpretation of Article 21 of the statute of the court was accepted. It acts obviously of a shameless lie. But one could not be surprised that the sectarian negationnists join the Stalinist spirits... Moreover the loop is being buckled since the negationnist Roger Garaudy, a former Stalinist fanatic, took again exactly the same lie claiming that the Soviet report would have been "indisputable" because of Article 21 (the myths founders of the Israeli policy, Samiszdat, 1996, p. 104). The reading of the article of Faurisson and Garaudy on the same subject shows besides as Garaudy did not make any research and was satisfied to plagiarize Faurisson. Let us recall that Garaudy was at the end of 1940 Stalinist keen which denied the existence of Gulag...
18 Jean-Marc Varaut, the Nuremberg Tribunal, Hachette/Pluriel, 1993, p. 138-145.
19 Annette Wieviorka, the Nuremberg Tribunal, Editions West-France, 1995, p. 92.
20 Alexandra Viatteau, "How the question of Katyn was treated in Nuremberg", in Annette Wieviorka, the lawsuits of Nuremberg and Tokyo, Editions Complexes, 1996., p. 152-153.
21 Telford Taylor, op.cit., p. 483.
22 Telford Taylor, op.cit., p. 492.
23 Joe Heydecker and Johannes Leeb, the Nuremberg Tribunal, trad. Max Roth, Corrêa - Buchet Chastel, 1959, p. 313.
24 Joe Heydecker and Johannes Leeb, op.cit., p. 321.
25. Leon Poliakov, the Nuremberg Tribunal, Julliard, coll. Files, 1971, p. 205.
26. Jean-Marc Varaut, op.cit., p. 144-145.
27. Jean-Marc Varaut, op.cit., p. 145.
28. Michael Bildis, "Victor' S Justices? The Nuremberg Court ", History Today, flight 45 (5), 1995, p. 44.
29. In an older version of this study, we wrote that the Soviets had not mentioned Katyn in their indictment. This assertion was false insofar as Rudenko, mentions well Katyn, July 29, 1946, in the Soviet indictment. It does not make any demonstration however - it mentions only "the German fascistic assassins who destroyed 11 000 Polish officers prisoner of war in Katyn"—and is satisfied to make as if it were acquired that Katyn could be charged to the Germans, which the debates had made it possible to draw aside, as one saw. Rudenko could hardly better make insofar as Stahmer, the lawyer of Göring, would make, in its pleading "a satisfactory demonstration proving that one could not show in a plausible way the Germans of the massacre of Katyn" (Telford Taylor, Procureur in Nuremberg, op.cit., p. 492). However, no other indictment mentions Katyn and this mention, by the Soviet prosecutor, could not be called upon to claim that in Nuremberg one considered the Germans guilty of Katyn. All the historians find themselves on this point, like one saw it.
30 Poltorak, Arkadi Iosifovitch, the Nuremberg Tribunal, Editions of Moscow, 1969.
31. Telford Taylor, op.cit., p. 664 32. Jean-Marc Varaut, op.cit., p. 63-69. 33. Jean-Marc Varaut, op.cit., p. 70. 34. François de Fontette, op.cit., p. 5-6.