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May
21
2009

Documentary Evidence

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At the end of WWII, the Allies decided to try the German leadership for alleged war crimes. The background to this decision was spelled out in some detail in the “Moscow Declaration” of October 30, 1943. The Russians (I know that it is politically correct to call them “Soviets”, but just like the “Nazis” were Germans, so were the “Soviets” Russians) were ahead of this, as they already in November 1942 had created the: “Extraordinary State Commission for Ascertaining and Investigating Crimes Perpetrated by the German-Fascist Invaders and their Accomplices”. The aim of this Commission was, as quoted from “The Role of the Soviet Union in the International Tribunal at Nuremberg and Impacts in its Legacy”, by Michael J. Bazyler, pp. 3-4:

http://www.amnestyusa.org/events/western/pdf/AmnestyConference_BazylerMichaelCLE.pdf

“…[to] keep complete records of the vile crimes perpetrated by the Germans and their accomplices and the damage inflicted by them on Soviet citizens and the socialist state; establish wherever possible the identity of the German-Fascist criminals guilty of the organization or execution of the crimes in occupied Soviet territories, so that they might be handed over to the courts for severe punishment; [and] unify and coordinate the work already performed by Soviet state organs in this area.” (George Ginsburgs, “Moscow’s Road to Nuremberg”, New York: Kluwer Law International, 1996, pp.37-8)

The work of said commission left much to be desired, its biggest fault being that not one impartial party was invited to participate in the investigations or shown any of the alleged sites in order to independently verify the findings. All the Russians did, at the IMT, was to make claims, some of them totally bogus, and present documents – I will get into more details about those later. That the proceedings, the IMT, were a sham becomes clear when reading the following (Bazyler, p.1):

“[…]Nikitchenko publicly pronounced his view that all of the defendants were guilty even prior to the start of the IMT proceedings:
“We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [referring to Yalta] declarations by the heads of the governments…. The whole idea is to secure quick and just punishment for the crime.”
He then famously added: “If… the judge is supposed to be impartial [at Nuremberg], it would only lead to unnecessary delays.”

As the accused was declared guilty before the trial even started, there was, to sum up the Russian attitude, no reason to bother with any feigned impartiality. The Russians were also successful in having the following added, so as to being able to submit anything as evidence without having to prove the veracity of it (Bazyler, p.2):

“[…]Moreover, the Soviets directed that the tribunal take judicial notice of facts of common knowledge instead of requiring their proof.”

The western Allies had to wait before they could assemble what they deemed to be evidence, since D-Day did not happen until June 6. 1944 and it took them awhile to get to Germany. Nevertheless, they were successful in obtaining hundreds of tons of documents, 485 tons of foreign office documents alone. The document they looked for most diligently was that ordering the killing of the Jews (Prof. Dr. Franz Seidler, “Das Recht in Siegerhand”, p.104). This document has not been found to this day.

The search for documents was undertaken only by the prosecution, which is problematic from a legal point of view. The defense was never allowed to search freely for acquitting documentary evidence, had to state what documents they intended to obtain, needed travel permits which were not always granted, etc., etc., Dr. August von Knieriem provides details in his “The Nuremberg Trials”. Also, the defense lawyers were picked by the Allies, meaning that if a lawyer was a (former) member of the National Socialist Party (NSdAP), or sympathetic to National Socialism, he was not considered, thus eliminating all lawyers who were active during the years of National Socialism (Seidler, pp.101/02). National Socialism was a movement of the working class, and many of the so-called intellectuals had shunned it, while some, if not many, had joined the resistance. By calling them to defend former NS dignitaries, one left the door wide open for lawyers who had an axe to grind. Some lawyers refused to participate for fear of repercussions, as the press had unleashed a hate campaign against anything “Nazi”(Seidler, p.102). Thus, the accused were defended by people not free of fear or bias. In fact, when reading through the transcripts it becomes clear that most of the defense lawyers believed what was presented by the prosecution, and just tried to deflect guild from their clients onto others.

A little about the gathering of documents, from Vol.II , pp.156 ff. (online: http://avalon.law.yale.edu/imt/11-22-45.asp : )

“The Germans kept accurate and voluminous records[…] Many times the records were so voluminous that they were hauled by fleets of Army trucks to document centers […] Beginning last June (1945), Mr. Justice Jackson requested me to direct the assembling of documentary evidence on the continent for the United States case. Field teams from our office were organized under the direction of Major William H. Coogan, who established United States liaison officers at theory document centers. Such officers were directed to screen and analyze the mass of captured documents, and select those having evidentiary value for our case. Literally hundreds of tons of enemy documents and records were screened and examined and those selected were forwarded to Nuremberg for processing […] Finally, more than 2,500 documents were selected and filed here in this Court House. At least several hundred will be offered in evidence[…]”

Documents “…having evidentiary value for our case” were selected, with only the prosecution present and deciding what was of value and what was not. The last part is also telling: from the “…hundreds of tons of enemy documents and records”, only 2 500 were selected and out of those “several hundred” were submitted.

A further aspect of interest: On October 22, 1945, a report was issued titled “Report, German Document Conference”, referring to a conference held prior to the date shown. This report reads, in part:

“It is also necessary for this conference to consider the overall problem of the denial of certain archives, records and papers to the Germans. Serious consideration must be given to plans for the organized destruction of papers which possess no value for the Allies and must be denied to the Germans. We must be cognizant at all times of the final disposition of documents required for study in Germany which must not be permitted to fall into German hands after the departure of occupation
forces […] The question was then coordinated with the War Department and they were asked to prepare a draft of State, War, Navy Coordinating Committee views on documents which should be destroyed, or to which the Germans were to be denied access[…]”

The stamp on the document reads: “Declassified, Authority: NWh 968018, By: P Y, NARA Date: 08 + 206” (Georg, Friedrich “Verrat in der Normandie”, S.17).

Many researchers have also complained that archives are still locked or inaccessible, among them John Costello and Oleg Tsarev, the latter a former KGB officer (Deadly Illusions), Valentin Falin (Zweite Front. Die Interessenkonflikte in der Anti-Hitler-Koalition), Franz Seidler (Das Recht in Siegerhand), Victor Suvorov (Stalins verhinderter Erstschlag) and many more.

The foreign office (AA) documents were only released starting in 1956, following their perusal by a American-English-French Commission (Bohlinger/Ney, “Gutachten zur Frage der Echtheit des sogenannten Wannsee-Protokolls”, pp.6-7). Thus, aside from the fact that documents had been sorted out, some are still not accessible. Why is this?
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Further we have the well founded suspicion-, and not just suspicion, that documents had been forged. The Displaced Persons’ Camp Föhrenwald-Wolfratshausen housed the largest forgery and photo-montage operation in post war Germany (Ibid, p.p.6, footnote 10). Prof. Dr. Franz Seidler provides some examples of forgeries (pp.152 ff). Thomas E. Mahl, in his “Desperate Deception” also gives examples of the forgeries produced by the Brits to turn the American public against the “Nazis” in order to get America into the war. Now, this was done before WWII, but could not some of those forgeries have been used following the war? One would assume that, because of the one-sidedness and shenanigans, historians would be extra careful before accepting a document as evidence, make sure that an original exists and that the original presented is a true original. Sadly, this is not the case. The victors captured German typewriters, stationary, stamps, etc., etc., making it no great achievement to manufacture a “original”.

At the IMT, the Russians were allowed to submit photocopies of documents, promising to produce the originals later. This did not happen, and the court just turned a blind eye (Seidler, p.80). We have the following exchange between the Russian Rudenko and the President on day 54, Friday, 8 February 1946, re. a document pertaining to the Sudeten Germans, IMT Proceedings Vol. VII, p.202ff ( http://avalon.law.yale.edu/imt/02-08-46.asp ):

“THE PRESIDENT: Colonel Pokrovsky, I am sorry to interrupt you but it is not quite clear, on the translation that has come through, whether you have deposited the original of this document and have given it an exhibit number, that is, if it has already been put in.
COL. POKROVSKY: All the documents presented by the Soviet Delegation are submitted by us to the Tribunal in Russian and they are then handed for translation to the international translators’ pool, which is charged to serve the Tribunal with translation into all the other languages. This document is referred to by me in precise correspondence with its registration number – our Number USSR-271.
THE PRESIDENT: If the original document is not in Russian, it must be deposited with the Tribunal in its original condition. I do not know what the document is. It is about a conference, apparently, and I suppose the original is in German.
COL. POKROVSKY: The original document is in German.
THE PRESIDENT: If that is so, we would like to see the original in German.
COL. POKROVSKY: The photostatic copy of the original document, in the German language, is at present at the disposal of the Tribunal. May I continue?
THE PRESIDENT: One moment. Is this the original?
COL.POKROVSKY: It is a photostat.
THE PRESIDENT: I am afraid that we must’ insist upon having the original.
COL. POKROVSKY: The original document is at the disposal of the Soviet Government and, if the Tribunal wishes, it can be sent for and presented to the Tribunal a little later. The photostat is certified.
THE PRESIDENT: I am afraid we must have the original documents. After the original documents have been produced and exhibit numbers given to them, they will remain in the hands of the Tribunal. Of course, the subject of the translations is quite a different one, but for the purpose of insuring that we get really genuine evidence we must have the originals deposited with the General Secretary.
COL.POKROVSKY: I note the wish of the Tribunal and we shall give instruction for the original documents to be submitted to the Tribunal, although in this case we have followed the established precedent where the Tribunal considers it sufficient to accept the certified photostats. We can submit the original, but we shall have to do it somewhat later, as not all the requisite material is in Nuremberg at the present time.
THE PRESIDENT: Yes, so long as you undertake to do it. But I do not think you are right in saying that it is the practice that has been already established, because we have been demanding the production of the original document from the French prosecutors, and they have been produced.
COL.POKROVSKY: We shall take the necessary measures so that the Tribunal
will receive, although of course somewhat later, all the original
documents from which the present photostats were taken. May I now continue? I now continue the quotation….
THE PRESIDENT: Colonel Pokrovsky, I imagine that you will be able to produce tomorrow the originals of the documents which were referred to today.
COL. POKROVSKY: I cannot promise that, because not all the originals are here. A considerable part of these documents are unique and consequently not kept in Nuremberg. Here we keep only a certain part of the originals.’ All that I can do is to submit, in the future, the originals at our disposal. Those which we do not have here we shall request the Soviet Government to send over in exchange for the photostats. This we can do.
THE PRESIDENT: I think the Tribunal had better adjourn for the purpose of considering this matter.
[A recess was taken.]
THE PRESIDENT: The Tribunal has considered the matter of the deposition of original documents, and they wish the following procedure to be adopted: In the first place, they want original documents deposited with the General Secretary of the Tribunal, wherever possible. Secondly, where it is impossible for original documents to be deposited, or highly inconvenient, they will accept photostat copies of the original documents, provided that a certificate accompanies the photostat document that it is a true copy of an original document, and that the original is an authentic document, giving the origin of the original document and the place of its present custody. Thirdly, they will accept photostat copies for the present, on the undertaking of counsel that certificates, such as I have indicated, will be furnished as soon as possible. Is that clear, Colonel Pokrovsky?
COL.POKROVSKY: I would ask the Tribunal to explain one point to me. Do I understand that the Tribunal only confirms its former decision and practice, which was established in connection with the presentation of the document in evidence by my American and British colleagues, or is it something new that the Tribunal is introducing? I am asking this because a similar document to the one which caused the interruption in my presentation today has already been accepted as a photostat in the same Trial under Exhibit Number USA-95 or Document 2788-PS. Therefore, it is not quite clear to me whether I am dealing with a new decision or with the confirmation of an old practice.
THE PRESIDENT: I think what you have stated is true, that this particular document does not appear to have any certificate that it is a true copy. But the Tribunal expects that the United States will produce such a certificate that it is a true copy of an authentic document and will state the origin and the custody of the original document.
COL.POKROVSKY: Pray forgive me, but I consider that the question which I wish to elucidate is of equal interest to all the prosecutors. Am I, and with me all the representatives of the Prosecution, to understand the decision of the Tribunal to mean that we are to present supplementary documentation in support of all photostats, including the photostats previously accepted by the Tribunal, or does it only refer to documents which the Soviet Delegation will present in the future?
THE PRESIDENT: If a document had been accepted in photostatic form and there has been no certificate that it was a true copy of an authentic document, then such a certificate must be given. And we desire that the certificate should also show that the document was authentic, and the place of its present custody. And that applies equally to all the chief prosecutors.
COL., POKROVSKY: Now, I understand that the Tribunal is confirming its former practice which means that we can present a photostat, but that they must be certified and that the originals should be presented whenever possible. Have I understood you correctly?
THE PRESIDENT: Yes, we desire originals, if possible. If it is impossible or if it is highly inconvenient, then we will accept photostats. And in the meantime, and for your convenience – because this practice has not been perhaps adequately stated before – we will accept photostat copies without certificate, on your undertaking that you will have the certificate later on. Is that clear?
COL. POKROVSKY: I understand. The former practice will continue in operation […]”

This was about a relatively unimportant document, but the precedent was set. If it was “impossible or…highly inconvenient” to produce the original, a copy would do – but the copy of what, one might ask. Also, how can it even be “impossible” or “inconvenient” to produce an original, if one exists? Thus, even though tons of documents had been confiscated, the prosecution still had to resort to this.

At the Frankfurt “Auschwitz Trials” 1963-1965, the judges had to admit in their verdict that the few documents at their disposal referred only to generalities, and that they therefore had to rely almost exclusively on eyewitness testimony. Hundreds of tons of documents and no case for mass murder could be made using any of them. Did the Germans destroy each and every incriminating document? Historians try to make us believe just that. But, if such a mass murder actually happened, would the Germans even have drawn up documents? Just to later have the bother of destroying them, a procedure that would require much work and the involvement of many hands, whom all had to be absolutely trustworthy. Why the Korherr report or the Hoefle telegram, if they referred to Jews that had been murdered? Especially the latter – why tell all how many Jews had been murdered, if that was what happened? There would have been no need to document this. Also, why then the need for the above mentioned Allied document sorting conference? Why the still locked archives?

When looking closely at the evidence presented, it becomes clear that no solid case has been made to prove the mass murder of Jews. No substantial evidence is presented, such as reports of investigations by experts in the field of criminal- and forensic investigations. All we are shown is some circumstantial evidence, transport lists, telegrams, excerpts of speeches by dignitaries, bits of diary entries (the Dr. Hans Frank diary is an example [Seidler, pp.150/51]) copies of documents of dubious origin. Do originals exist? No doubt they do, but even if all of the documents presented are genuine, no case for mass murder can be made relying on them. In all cases, eyewitnesses are providing the “real evidence”, and those constitute the weakest link in the evidence chain.

Wilfried Heink

Written by Wilfried Heink in: Documentary Evidence,IMT Nuremberg | Tags: