“15. 8. Prepared (for Case White) the following measures:
“On 15. 8. _Spee_ and all Atlantic submarines ready to sail.
“On 22. 8. Transport _Westerwald_ ready to sail.
“On 25. 8. _Deutschland_ ready to sail.”
And then we find the list of these ships:
“21. 8. Report B-service about emergency measures of French
fleet.
“23. 8. Report B-service: Continuation of French emergency
measures of fleet to 3rd grade. English and French blockade
measures off ports.
“25. 8. B-service reports: German and Italian steamers are being
watched and reported by France.”
And then the instructions:
“31. 8. Arrival Order I of OKW for conduct of war: Forcible
solution in the East, attack against Poland 1 September, 0445
hours. In the West responsibility for starting hostilities
unequivocally to be left to England and France. Strictly respect
neutrality of Holland, Belgium, Luxembourg, Switzerland. The
western border not to be crossed. At sea no hostile actions or
such that could be interpreted as hostile. Air Force only in
defense.
“In case of opening of hostilities by Western Powers: Defense
only, economical use of forces. Reserve start of aggressive
operations. The army to hold the ‘Westwall.’ Naval economic war
concentrated against England. To augment effect probable
declaration of zones of danger. Prepare these and submit them.
The Baltic to be safeguarded against enemy invasion.”
So far this document. With the next document, Dönitz-2, I should like to
prove that the British submarines, too, were active before the start of
the war and appeared in the Bay of Helgoland at the very beginning of
the war. It is on Page 2 of the document book. I probably need only
point out that as early as 1 September electric motor noises were heard
in the Bay of Helgoland and that on 4 September several reports arrived
concerning English submarines sighted in the Bay of Helgoland.
I come now to the document with reference to which Admiral Dönitz is
accused of participating in the planning of the attack against Norway.
That is Exhibit GB-83 (Document Number C-5). The Prosecution has
submitted it as proof of the fact that Admiral Dönitz played a decisive
part in the occupation of Norway. I shall refer to this document in more
detail when examining the witness. I merely want to establish certain
dates now. On the document—and I am about to submit the original to the
Tribunal—there is a stamp which establishes when the document was
received at the High Command. This stamp shows the date 11 October 1939.
THE PRESIDENT: You are speaking of GB-83?
FLOTTENRICHTER KRANZBÜHLER: Yes. And I refer now to Exhibit GB-81
(Document Number C-66), Page 6 of my document book. According to this
the decisive report by Grossadmiral Raeder to the Führer had already
been made on 10 October 1939, that is, a day before GB-83 was received
at the High Command.
With the next document I should like to prove that considerations as to
bases had nothing to do with the question of an aggressive war, as far
as the Flag Officer of Submarines, Admiral Dönitz, was concerned. I am
submitting Documents Dönitz-3 and Dönitz-4. They are on Page 3 and 5 of
the Document Book. Dönitz-3 is a war diary of the Flag Officer of
Submarines of 3 November 1939, and I read from the second paragraph, the
10th line from the top:
“At the same time Naval Operations Staff reports that there are
possibilities for the establishment of a ‘Base North’ which seem
to be very promising. In my opinion the immediate introduction
of all possible steps in order to arrive at a clear judgment of
the existing possibilities is of the greatest importance.”
And then there follows a discussion of the advantages and disadvantages
of such a base, which is absolutely identical with the considerations
mentioned in GB-83. It is a question of Murmansk in connection with Base
North, as can be seen from Document Dönitz-4; and it is known that these
considerations were in full accord with the Soviet Union.
Furthermore, I should like to show that the question of bases
continuously comes up in enemy navies without reference to...
THE PRESIDENT: Dr. Kranzbühler, you are going a little bit fast over
these documents and I am not quite sure that I am quite following what
use you are making of them. This base mentioned in the report is
Murmansk?
FLOTTENRICHTER KRANZBÜHLER: Yes; Murmansk. And I want to use it as
proof, Mr. President, that the question of bases has nothing to do with
the question of whether one wants to wage aggressive war with the
country in which these bases are situated. The considerations as to
Murmansk were taken in full accord with the Soviet Union, and in the
same manner Admiral Dönitz took the question of Norwegian bases into
consideration. That is the subject of my proof.
THE PRESIDENT: But the fact that Murmansk was suggested as a base, to be
taken with the consent of the Soviet Union—if it was the case—doesn’t
have any relevance, does it, to taking a base in Norway without the
consent of Norway.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, the relevancy seems to me to
exist in the fact that Admiral Dönitz, as Commander of U-boats, in both
cases received merely the order to state his opinion about bases in a
certain country but that in the last analysis he had as little to say in
the case of Narvik and Trondheim as in the case of Murmansk.
COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U. S. S. R.):
In Document Number 3, the one just being referred to by the defense
counsel for the Defendant Dönitz, mention is definitely made of the
northern bases; but nothing is said in this document of any plans of the
Soviet Union. And to discuss, here and now, some plan or other of the
Soviet Union is in my opinion quite out of order, since there are no
plans of the Soviet Union in connection with the northern bases, and
there never have been.
FLOTTENRICHTER KRANZBÜHLER: If the representative of the Soviet Union
has any doubts that these bases were considered in full accord with the
Soviet Union, then I shall prove that by calling a witness.
THE PRESIDENT: Anyhow, the document doesn’t say anything about it.
FLOTTENRICHTER KRANZBÜHLER: The document says nothing about it.
THE PRESIDENT: The Tribunal doesn’t think you ought to make statements
of that sort without any evidence; and at the moment you are dealing
with a document which doesn’t contain any evidence of the fact.
FLOTTENRICHTER KRANZBÜHLER: May I perhaps read Document Number Dönitz-4?
THE PRESIDENT: It is Dönitz-3, isn’t it?
FLOTTENRICHTER KRANZBÜHLER: I have already come to Dönitz-4. I had read
from Dönitz-3. I shall now read from Dönitz-4 the entries for 17 April
1939:
“Commander of U-boats receives instructions from Naval
Operations Staff to try out Base North. Naval Operations Staff
considers the trying out of the base by _U-36_ due to sail
within the next days, highly desirable. Supply goods for tanker
_Phoenizia_ in Murmansk going with fishing steamer to Murmansk
on 22 November.”
It seems to me that this entry very clearly shows that that could have
happened only in accord with the Soviet Union. Furthermore, I want to
show that considerations as to bases...
THE PRESIDENT: Wait a minute. Dr. Kranzbühler, the Tribunal thinks you
oughtn’t to make these observations on these documents which really
don’t support what you are saying. Document Number 3, for instance,
doesn’t bear any such interpretation, because it refers to attacks which
it was suggested should be made against ships coming from Russian ports,
in Paragraph 2. And equally the other document you referred to,
Dönitz-4, on Page 5, doesn’t bear the interpretation which you are
putting upon it.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I am afraid that the contents
of both documents have been presented too quickly by me. For anyone who
is familiar with such war diaries, many things are self-evident which
otherwise are not so easy to understand.
Document Dönitz-3 states in that part which I have read that
possibilities for the establishment of a Base North exist. These
possibilities can be only political possibilities, because one can
establish a base in a foreign country only if that country agrees.
Document Dönitz-4 shows that the base in question is Murmansk and that
this base is being tried out with a supply ship, a fishing steamer, and
a U-boat. That convincingly shows in my opinion...
THE PRESIDENT: The objection the Tribunal was raising was to the
statement by you that the Soviet Union had agreed, and these documents
do not bear out any such statement.
FLOTTENRICHTER KRANZBÜHLER: I am of the opinion that in Document
Dönitz-4 that can clearly be seen. It is not possible...
COL. POKROVSKY: I definitely protest against the fact that, apart from
what has been stated in the documents, certain unfounded conjectures or
assertions have been made with a view to interpreting the documents in
the manner in which Dr. Kranzbühler has endeavored to interpret them
from the initial stages of his defense. I do not belong to the category
of fortune tellers and palmists. I cannot conjecture what hypothetical
conclusions may be drawn from one or another of the documents. I am a
lawyer and I am accustomed to operate with documents such as they
appear, and I am accustomed to operate with the contents of a document
such as they are expressed.
I consider that the Tribunal has quite correctly expressed to the
defense counsel the absolute impossibility of drawing the conclusions he
is attempting to reach, and I would ask that counsel for the defense be
reminded of his duty to limit himself exclusively to such
interpretations as may be deduced from the document.
SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom):
Your Honor, I would be grateful if the Tribunal would consider a general
point of procedure. We have a number of objections to a considerable
number of Dr. Kranzbühler’s documents. I have got out a short list
grouping, as far as is possible, our objections, which I can hand to the
Tribunal and, of course, to Dr. Kranzbühler, now. It is a matter for
consideration by the Tribunal whether it would be useful to see that
list before the Tribunal adjourns tonight, and maybe here tender certain
observations of Dr. Kranzbühler upon them. Then the Tribunal might be
able to give a decision with regard to certain of the documents before
sitting again tomorrow and thereby save some time. I suggest that to the
Tribunal for their consideration as perhaps the most profitable
procedure under the circumstances.
THE PRESIDENT: Are you suggesting that at a certain point of time we
should adjourn for the consideration of your list and then hear Dr.
Kranzbühler on it?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: That is what you suggest?
SIR DAVID MAXWELL-FYFE: Yes, Sir. I was going to explain my list, put my
list to the Tribunal, and explain it; and then the Tribunal could hear
Dr. Kranzbühler upon it and adjourn at whatever time it is suitable.
FLOTTENRICHTER KRANZBÜHLER: May I make a statement in that regard, Mr.
President?
THE PRESIDENT: Certainly.
FLOTTENRICHTER KRANZBÜHLER: I do not agree with such a proceeding, Mr.
President. Before this Tribunal I have said very little as defense
counsel so far; but I am of the opinion that it is my turn now and that
I have to be granted permission to submit my documents in that order in
which I plan to and which I consider correct for my defense.
I ask the Tribunal just to imagine what would have happened if, before
the presentation of their case by the Prosecution, I had said that I
should like to speak about the relevancy of the documents of the
Prosecution. I believe that this comparison shows that I should not have
thought of proceeding in this way. I shall try, before submitting my
documents, to explain their relevancy to a greater extent than I have
thought necessary until now. But I ask the Tribunal to grant that I
present my case now and to limit the Prosecution to making their
suggestions when I submit my documents individually.
SIR DAVID MAXWELL-FYFE: The inconvenience of that course, My Lord, is
that I shall then be interrupting Dr. Kranzbühler every two or three
documents and making a specific objection to an individual document,
which will take a great deal of time. I thought it would be more
convenient if I indicated to the Tribunal my objections to the documents
in the usual way by classes rather than individually.
I put it to the Tribunal to rule on whatever method they think would be
most convenient for them. The last thing I want is to interfere with Dr.
Kranzbühler’s presentation; but, on the other hand, the method that he
suggests will mean individual objections, because, of course, an
objection is useless if it is put in after Dr. Kranzbühler has developed
the document. Or, if it is not useless, it is at any rate of very much
less weight.
THE PRESIDENT: Dr. Kranzbühler, supposing that Sir David presents his
objections to the documents now, whether in groups or in whatever way he
likes, and you then answer him individually upon each document, pointing
out the relevance in your view of each document; how does it harm you?
The Tribunal will then consider your arguments and will rule upon them,
and then you will know what documents the Tribunal has ruled out, and
you can then refer to any of the other documents in any way you please.
The only object of it and the only effect of it is to prevent the
Prosecution’s having to get up and interrupt, put on the earphones, and
take the time for an individual objection to each document to which they
wish to object as it turns up. I cannot see that it can interfere with
you in the least.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I have no objection to the
Prosecution’s stating their objections now. I merely wish to avoid my
having to reply to each individual objection. If I am permitted to state
my views when each individual document comes up, then I have no
objection to the Prosecution’s stating their objections now to
individual documents.
THE PRESIDENT: Sir David, the Tribunal would like you to state now your
objections to these documents. They will then allow Dr. Kranzbühler to
proceed with his discussion of the documents, answering your argument as
to the admissibility of each document that you object to when he comes
to it.
SIR DAVID MAXWELL-FYFE: If Your Lordship please. Will Your Lordship just
allow me a moment to get my papers? I am afraid I have only the
Prosecution’s objections in English, but it may help those of the
Tribunal who do not understand English to have the numbers, at any rate,
in front of them.
My Lord, the first group are documents which the Prosecution submits
have no probative value. These are D-53. My Lord, the “D” in this case
stands for Dönitz Document Book 53, Page 99; and D-49, Pages 130 and
131; D-51 and D-69.
My Lord, the first of these, D-53, is a letter from a prisoner-of-war
camp, purporting to be signed by 67 U-boat commanders and in purely
general terms. The Prosecution submits that that is not helpful, either
from its form or from its material.
My Lord, D-49, which is at Pages 130 to 131, is again in entirely
general terms and contains no indication of the moral or legal basis for
the opinion expressed.
D-51 and D-69 are both newspaper reports.
THE PRESIDENT: Wait a minute, Sir David. 130? I have not got a Page 131.
Is it an affidavit, or was it called an affidavit?
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: “On the basis of the documents of the Navy Court archives
at...”
Oh yes, I think the Document Book has got a bit out of order.
SIR DAVID MAXWELL-FYFE: Yes, My Lord, maybe so.
THE PRESIDENT: Is it a sworn affidavit by somebody or other?
SIR DAVID MAXWELL-FYFE: Yes, My Lord. 130 comes immediately before.
THE PRESIDENT: I have got it now, yes, 131 comes somewhere before 130.
SIR DAVID MAXWELL-FYFE: That is it, My Lord. It is an affidavit by a
former fleet judge, and Your Lordship sees that the description which
the Prosecution gives of it as being in entirely general terms is, I
submit, justified by the wording of the document, and it is difficult to
see the basis which the learned opponent seems to profess for his
statements.
My Lord, D-51, Page 134, is an extract from the _Völkischer Beobachter_
of March 1945, and the Prosecution submits that the topic on which it is
is irrelevant to the matters developed against the Defendant Dönitz.
Number 69 is another newspaper report from the same paper of 14 November
1939, giving a list of armed British and French passenger ships. Now, My
Lord, the second group which we developed are those irrelevant
documents, D-5, D-9, D-10, D-12, D-13, D-29, D-48, D-60, D-74.
Now, My Lord, the first of these, D-5, on the subject of Norway, seeks
to introduce by way of a footnote a summary of the documents which the
Tribunal dealt with when considering the documents in the case of the
Defendant Raeder, with regard to which the Tribunal expressed its
doubts, although it allowed them to be translated. The Tribunal will
remember that with regard to the Dönitz documents it was thought
convenient to have them translated without a preliminary argument. Now,
My Lord, the same argument applies to a footnote, to a speech of the
Defendant Von Ribbentrop, a summary of documents which came into German
possession long after the speech of the Defendant Ribbentrop was made.
The Prosecution submits it is irrelevant.
And the documents 9, 10, 12, and 13 deal with the rescue of Allied
survivors in the years 1939 to 1941 inclusive.
THE PRESIDENT: Oh, yes.
SIR DAVID MAXWELL-FYFE: My Lord, that last statement, “and all
apparently unsworn,” is an error. It ought to be that D-13 is apparently
unsworn.
Now, My Lord, with regard to that the position is that whereas it is
quite true that a nonrescue order was issued by the defendant before 27
May 1940, the really important period is round about 17 September 1942.
It seemed to the Prosecution unnecessary to go into these details for
the earlier period. There is no real doubt that there were some rescues.
The only point which the Prosecution is putting against the defendant is
that he did issue an order, which the Prosecution has proved, forbidding
rescue when there was any danger.
THE PRESIDENT: What was the date you gave us, 17 November 1942?
SIR DAVID MAXWELL-FYFE: My Lord, the nonrescue order is before 27 May
1940. We cannot give the exact date, but we know from a reference in
another order that it must have been before 27 May 1940. And the order
with regard to the destruction of the crews of merchant ships is 17
September 1942.
Now, My Lord, the Document Number 29 contains four documents dealing
with the evidence of the witness Heisig. The first purports to be an
affidavit by a witness who speaks to the sort of statements the
Defendant Dönitz usually made and does not remember what was said on the
particular occasion referred to by the witness Heisig; and it contains a
good deal of argument.
The second is a letter sent to counsel for the Defendant Dönitz, and,
with the exception of one sentence, denying that the defendant spoke in
the sense alleged by Heisig; the remainder of the statement which, of
course, is unsworn, is either argument or is vague or irrelevant. The
remaining two documents, both apparently unsworn, contain allegations
against the character of the witness Heisig. The Tribunal will remember
that no allegations were made against him; that there was no
cross-examination in regard to his character when he gave his evidence.
And the second deals with other lectures which are not those in
question.
Now, My Lord, the next document, D-48, deals with the alleged good
treatment of Allied prisoners in German Naval prisoner-of-war camps, on
which subject no issue has been raised with this defendant. D-60, Page
209 deals with Italian- and French-declared danger zones, which, the
Prosecution submits, has no relevance to those declared by the Germans.
D-74 and D-60, Page 256, deal with the relationship between the British
and French merchant marines and their respective navies; and the
Prosecution submits that they are irrelevant as far as the British Navy
is concerned, if they have any relevance cumulative of D-67.
Now, My Lord, the third group are details of the Contraband Control
System and they are D-60, Pages 173 to 198; D-72; D-60, Pages 204 and
205 and Pages 219 to 225. My Lord, these documents deal with the details
of the contraband control, what articles were contraband, declarations
of different governments; and it is submitted that details of the
contraband control are remote from the issues raised and entirely
irrelevant. I do not think in the presentation against either of the
Naval defendants questions of declarations of contraband were mentioned
at all, certainly not in regard to the Defendant Dönitz; and, in the
submission of the Prosecution, it’s really introducing matters which
are, I am sure, not helpful to the problems of this case.
The fourth group, which can only be described in very general terms, are
allegations against the Allies. My Lord, the general objection I set out
in the first paragraph is this: Those documents consist of various
allegations against the Allies; they appear to have little or no
relevance to the issues and, if submitted, might necessitate the
Prosecution’s seeking the facilities to rebut the allegations; in which
case a large volume of evidence in rebuttal might be entailed.
Then I have isolated those which deal with allegations that the Allies
did not pick up survivors; there are two: 43, 67; Pages 96 and 90. 31
and 32 deal with Allied attacks on German air-sea rescue planes; 33
accuses a Soviet submarine of sinking a hospital ship.
And three, Numbers 37, 38, and 40, the last being a newspaper report,
allege that the Allies shot survivors. My Lord, the question of Allied
treatment of survivors is dealt with exhaustively by extract from the
German Naval Diary and, My Lord, that we are not objecting to because
there it is important not as evidence of the facts stated but as
evidence of the matters that had an effect on the German Naval Command.
For that purpose I am quite ready that Dr. Kranzbühler should put them
in and the Tribunal should consider them. And there is another document
which deals with that point quite fully, and I am quite prepared to let
that go in.
Then, My Lord, the remainder allege either ruthless actions or breaches
of International Law by the Allies; and these are Number 19, Page 24,
the Göring exhibit; Numbers 7 and C-21, Page 91; 47, Pages 120, 121,
which is also a newspaper report; 52, 60, Pages 152 and 208; D-75, 81,
82, 85, and 89.
Now, as I understand the defense that is developed here—the allegation
with regard to the order which we say sets out the destruction of
survivors—it is not that it was a reprisal, but the defense is that the
order did not mean destruction but merely meant nonrescue. On that basis
it seems difficult, indeed impossible, to appreciate how these matters
become relevant at all.
And similarly with regard to the order for shooting Commandos. The
justification alleged for the order is set out in the order itself. I
haven’t heard any defendant develop any justification of that order in
giving evidence before the Tribunal. Every one of the defendants so far
has said this order was given by Hitler and “whether we approved of it
or not we had to carry it out.”
So that, in my submission, there isn’t even the argument which is
foreshadowed, that breaches of the laws and usages of war can be in
certain occasions properly committed as reprisals. It is not put forward
from that point of view; there is no admission here, as I understand the
Defense, of breaches for which reprisal is the answer. Therefore, the
Prosecution submits that these documents are also irrelevant.
My Lord, again I tried to put it as shortly as possible because I didn’t
want to occupy too much time, but I tried to correct them and describe
those which seemed of greatest importance.
THE PRESIDENT: The Tribunal would like to know why this matter of the
admissibility of these documents hasn’t been argued before. In the other
cases with which we have dealt, the question of the admissibility has
been dealt with first of all by your offering your criticisms and
objections, and then the defendant’s counsel’s being heard in reply.
Then the Tribunal has ruled.
SIR DAVID MAXWELL-FYFE: My Lord, as I understand the position, we did
put in objections to the documents and Dr. Kranzbühler suggested that he
would very much prefer the documents to be translated and the objections
taken at a later stage. And I was certainly informed that the Tribunal
agreed with that and ordered the document to be translated.
THE PRESIDENT: That may be, for the purposes of translation. But that
doesn’t mean that they are necessarily admissible. And in most of the
other cases, if not all, as you will remember, we have had an argument
in open session in which you, or one other member of the Prosecution,
have made your objections, and then the defendant’s counsel has replied
to those objections.
SIR DAVID MAXWELL-FYFE: My Lord, Dr. Kranzbühler has just handed—yes...
The ruling is:
“The Tribunal has ruled that the documents mentioned in your
application may be translated, but that the question of their
admissibility is to be decided later.”
My Lord, I am afraid I am at fault there. It didn’t occur to me, if I
may be quite frank with the Tribunal, that I should have come before the
beginning of the case Dönitz to make this argument. I am very sorry, and
I must accept responsibility. I assumed, without real justification,
that that meant the argument of admissibility would come at the
beginning, or at some convenient time, in the case of Dönitz. I am very
sorry, My Lord, and I can only express my regret.
My Lord, there is this excuse: We had three of the books on Saturday,
and we only got the last one yesterday. Therefore, we really couldn’t
have done it before today, even if I had thought of it.
THE PRESIDENT: Dr. Kranzbühler, the Tribunal considers that in view of
the large number of documents to which the Prosecution objects, it will
be highly inconvenient to have you answer Sir David Maxwell-Fyfe’s
argument as you go through your documents; and therefore that you must
answer now and deal with them in the way in which the other counsel have
dealt with these objections to the admissibility of documents. Then the
Tribunal will be able to consider the arguments that Sir David
Maxwell-Fyfe has put forward and the arguments that you put forward in
support of the documents.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I should like to point out
that just because of the many objections which the Prosecution makes
against the documents, I have for practical purposes to present all my
documents, for the line of thought pursued in presenting documentary
evidence implies a definite order of presentation and I cannot take out
one document or another without disturbing this line of thought.
Therefore, I believe it would save considerable time if the Tribunal
would permit me to answer the objections when I come to the particular
document.
THE PRESIDENT: What difference could it make, assuming that the decision
of the Tribunal is the same, whether you argue the matter now or whether
you argue the matter afterwards? The documents which will remain, which
will have been held to be admissible, will be the same. Therefore, there
is no difference. I can’t see any argument in favor of what you are
saying.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, my documentary material,
exactly like that of the Prosecution, is organized with a definite
purpose in mind and according to a definite idea. If, of the 50
documents which are contained in my documentary material, I have to
argue about 40, then 10 are lacking. Therefore, it seems to me proper
for me to discuss all 50, in the order in which I intended to submit
them to the Tribunal.
If the Tribunal is of the opinion that the reasons given for the
relevancy of the different documents are not sufficient, then the
objectionable document can be withdrawn or refused. However, it seems
expedient to me that I present my arguments in the order which I have
been intending to follow, and not in the order in which the Prosecution
is now making its objections. That defeats my purpose and disturbs my
line of thought and, as defense counsel, I believe it is my task to
present my own line of thought and not to reply to the line of thought
pursued by the Prosecution or to their objections.
THE PRESIDENT: Well, if that is so, then you can present your argument
upon the relevancy of the documents in the order in which they come.
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE PRESIDENT: But you have to do it now.
FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President.
THE PRESIDENT: You can begin with D-5, which is the first, and then go
on with D-9 and D-10; take them in the order in which they stand.
Dr. Kranzbühler, the Tribunal doesn’t see any reason why you should be
dealt with in a different way from which the other defendants have been
treated. Therefore, they think that you ought to be prepared to deal
with these documents in the way in which they are grouped here. They
would prefer that you should deal with them now, if you can deal with
them in a reasonably short space of time. Then they will be able to
determine the question of which documents shall be admitted during the
adjournment. Otherwise, they will have to adjourn tomorrow for a
consideration of that matter, which will still further hold up the
trial.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, of course, I can make general
statements as to the groups which the Prosecution has referred to, but I
cannot refer to the individual documents with the necessary detail to
establish their relevancy unequivocally. That is impossible for me,
confronted as I am by a list which I have not seen before. Therefore I
should like to ask, if I am to give reasons for each individual document
now, that I be given an opportunity to do that tomorrow morning.
However, if the Tribunal wishes only to hear general remarks about the
groups, I can do that right now.
THE PRESIDENT: Very well, Dr. Kranzbühler. The Tribunal will adjourn
now, and we will hear you upon these documents at 9:30 tomorrow morning.
FLOTTENRICHTER KRANZBÜHLER: In open session, Mr. President?
THE PRESIDENT: In open session, certainly, yes.
[_The Tribunal adjourned until 8 May 1946, at 0930 hours._]
ONE HUNDRED
AND TWENTY-FOURTH DAY
Wednesday, 8 May 1946
_Morning Session_
MARSHAL: May it please the Tribunal, the report is made that Defendant
Schirach is absent.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, with the permission of the
Tribunal, I shall now state my opinion on the documents to which the
Prosecution has objected.
Before I refer to the individual documents, I should like to say two
things concerning the groups.
First: I ask the Tribunal to recall that in general questions on naval
warfare I also defend Admiral Raeder. I already mentioned, when I first
applied for documents, that all the charges against naval warfare cannot
be dealt with separately as concerning Dönitz or Raeder; therefore Dr.
Siemers and I agreed that I should deal with these charges together. I
ask the Tribunal in evaluating the question to take into consideration
whether the charges are relevant.
Second: A large number of the objections which the Prosecution has made
are directed against the fact that the war measures of the Allies are
mentioned in the documents. I believe that I have been completely
misunderstood especially in this field. I am not interested and it is
not my intention to disparage any war methods, and I shall demonstrate
later in detail that the documents are not suitable for this. But I
should like to state from the beginning that I want to show with these
documents what naval warfare was really like. I could not demonstrate
this by showing only the German methods; but I also have to submit to
this Tribunal the methods of the Allies in order to prove that the
German methods, which are similar to the Allies’ methods, were legal.
The Tribunal has even recognized this to be correct by approving the use
of British Admiralty orders and an interrogatory of the
Commander-in-Chief of the American Navy, Admiral Nimitz.
I am very grateful that these documents were approved; and my own
documents in this field are along the same line.
I shall now refer to the individual documents against which objections
have been raised; first to the Document Dönitz-5, which is in Document
Book 1, Page 7.
THE PRESIDENT: Dr. Kranzbühler, the Tribunal has examined all these
documents; so I think you can deal with them as far as possible in
groups.
FLOTTENRICHTER KRANZBÜHLER: Very well.
THE PRESIDENT: If possible, follow the order of Sir David Maxwell-Fyfe.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, it will not be possible for
me to follow the order of Sir David, because then I shall have to return
repeatedly to the line of ideas which I have already mentioned. I
believe it will facilitate and speed up the proceedings if I form groups
according to the order in which I intended to present them; and I should
like to remind the Tribunal that that was expressly approved for me
yesterday.
THE PRESIDENT: Dr. Kranzbühler, it would be very much more convenient to
the Tribunal if you followed the order in the groups. But if you find
that impossible, the Tribunal would not make it a matter of an order.
FLOTTENRICHTER KRANZBÜHLER: I should be very grateful, Mr. President, if
I could keep the order which I had prepared. It corresponds to the order
of Sir David.
THE PRESIDENT: Very well.
FLOTTENRICHTER KRANZBÜHLER: Concerning the question of aggressive war, I
have another document to submit which is Dönitz-5. It is an excerpt from
_Documente der Deutschen Politik_, and concerns the question of bases in
Norway. I consider this document relevant because it shows that on the
part of the British Admiralty an interrogatory was prepared on the
question of the necessity of such a base, which corresponds exactly to
the one with which the Prosecution has charged Admiral Dönitz in
Document GB-83 as proof for aggressive war.
Thereby I wish to say that the answers on such interrogatories have
nothing to do with any considerations concerning an aggressive war,
which a subordinate office could not even make. The document is in Group
2 of Sir David’s classification.
THE PRESIDENT: Are you saying that the footnote stands on the same
footing as the other part of the document?
FLOTTENRICHTER KRANZBÜHLER: The footnote is the essential part for me,
Mr. President. I had the other part copied only to keep the connection
with the footnote.
THE PRESIDENT: Well, who wrote the footnote? Doesn’t the footnote
represent information which was not before the German Admiralty at the
time?
FLOTTENRICHTER KRANZBÜHLER: No, no.
THE PRESIDENT: Well, does the footnote state that it was before the
German Admiralty at the time?
FLOTTENRICHTER KRANZBÜHLER: No, Mr. President. The footnote was not
known to the German Admiralty at the time.
THE PRESIDENT: That is what I said; the footnote was not known to the
German Admiralty. Who wrote it?
FLOTTENRICHTER KRANZBÜHLER: The footnote is part of this document, which
can be found in the collection _Dokumente der Deutschen Politik_...
THE PRESIDENT: Is the Defendant Ribbentrop the author of it?
FLOTTENRICHTER KRANZBÜHLER: No, Mr. President. The _Dokumente der
Deutschen Politik_ are an official collection, and the footnotes have
been written by the editor of that collection on the basis of official
material.
THE PRESIDENT: Yes, I see.
FLOTTENRICHTER KRANZBÜHLER: Now I come to the documents concerning naval
warfare in general. A large part of those are in Sir David’s Group 3.
The first document is Dönitz-60, on Page 152. It concerns an American
note of 6 October 1939, and is in connection with the Document
Dönitz-61, to which the Prosecution has not objected. It is in Volume
III of the document book, Mr. President. Volume III, Page 152. This
document is an American reply to the document which you will find two
pages before this, on Page 150. Both documents deal with the warning of
neutral nations against suspicious actions of their merchant vessels.
The question is relevant in respect to Exhibit GB-193 of the
Prosecution. In this document a charge is made against an order that
ships which act suspiciously—that is, proceed without lights—should be
sunk.
The next document is from Sir David’s Group 1, Dönitz-69, on Page 170,
in Book 3. It is an excerpt from several copies of the _Völkischer
Beobachter_ of November and December 1939. In these copies are published
lists of armed British and French passenger ships. This document also is
in connection with a preceding document and the one following. All these
documents deal with the question of treatment of passenger ships by the
naval warfare command.
THE PRESIDENT: I think you had better give the numbers of the documents.
You said the next document and the one before it. I think you had better
give the numbers of the documents.
FLOTTENRICHTER KRANZBÜHLER: Yes. That is Document 69, Mr. President,
Dönitz-69, and it is on Page 170, in Book 3.
THE PRESIDENT: Yes, I know it is, but you said something about documents
that were akin, or some words to that effect, to the documents next to
it.
FLOTTENRICHTER KRANZBÜHLER: It is in relation to Dönitz-68, on Page 169
of the document book.
THE PRESIDENT: Was that objected to?
FLOTTENRICHTER KRANZBÜHLER: No.
THE PRESIDENT: Very well, then, you need not bother with it.
FLOTTENRICHTER KRANZBÜHLER: I only wanted to show, Mr. President, that
this document is only part of the proof about the treatment of passenger
ships, and should prove that the German press had warned against the
using of armed passenger ships. The next documents objected to by the
Prosecution concern Group 3, “The Contraband and Control System.” These
are the documents Dönitz-60, from Page 173 to Page 197 of the document
book, and I should like to form three groups of these.
The first group, from Page 173 to Page 181, concerns the question of
contraband. I consider this question relevant because Document GB-191
has stated that the German U-boats sank a large number of Allied ships
while these ships were on a legal merchant trip. The development of
rules against contraband will show the Tribunal that from 12 December
1939 on, a legal import to England no longer existed but actually only
contraband. These documents concerning contraband are important,
furthermore, for the German point of view, which became known under the
slogan of “Hunger Blockade” and which played an important part in all
German deliberations about the conduct and the intensification of naval
warfare. The documents contain in detail the German contraband
regulations, the British regulations, and two German statements
concerning these contraband regulations.
The next group is Dönitz-60, from Page 183 to Page 191. That concerns
the regulations about putting into control ports; that is to say, the
British Admiralty removed the control over neutral merchant shipping
from the high seas into certain British ports. This group is also
relevant in connection with Exhibit GB-191 because in this document the
German Naval Operations Staff is accused of carrying out war measures
against England without consideration of the danger to neutrals. The
group which I have dealt with shows that it was not possible for the
British Admiralty either to take war measures without endangering the
neutrals, because, by the establishment of control ports, the neutrals
were forced into German zones of operations and thereby, of course,
endangered. This danger was confirmed by the neutrals themselves, and
the documents on Pages 186 to 189 will prove this.
An excerpt from the document of the Prosecution GB-194 on Page 198
belongs to that same group. It contains a renewed American protest
against the control ports.
The third group goes from Page 192 to 197, also Dönitz-60, and is
concerned with the question of an export embargo. This export blockade
was declared against Germany in an Order in Council of 27 November 1939.
This measure is important in the question of legal trade because thereby
legal export was no longer possible either. The export blockade
therefore is a basis for the total blockade which was later declared by
Germany against England. Since the Exhibit GB-191 disputes the legality
of a total blockade I must prove the basic grounds and also the export
blockade.
The next document objected to is Dönitz-72 on Page 185. It deals with a
note by Great Britain to Belgium of 22 September. In this note the
British Government states that they will not tolerate any increase of
trade between Belgium and Germany. I use it as evidence for the fact
that the economic pressure which can be seen from this note was a
natural and accepted means of warfare. This question is relevant
concerning the document of the Prosecution, Exhibit GB-224. There on
Page 6 under heading (c) it is stated that Germany would necessarily
have to exert economic pressure on the neutrals, and these statements
were submitted by the Prosecution as measures contrary to international
law.
The next group contains the following documents: Dönitz-60, Page 204;
Dönitz-72, Page 207; Dönitz-60, Page 208; Dönitz-60, Page 209; and
Dönitz-75, Page 218. All of these documents concern the development of
German zones of operation and the recognition of the zones of operation
which were declared by the opponents. These documents are relevant for
the question of the treatment of neutrals. In Exhibit GB-191 the charge
was made against the Naval Operations Staff that without any
consideration it had given the order to torpedo neutral ships. My
evidence shall prove that that happened only in those areas which the
neutrals had been warned against using and that this is a permissible
measure of warfare, as shown also by the practices of the enemy.
I should like to refer individually to two documents which concern the
practices of the opposing side. Dönitz-60, Page 208, concerns the
statement by Mr. Churchill of 8 May 1940 regarding the torpedoing of
ships in the Jutland area. This document and the next one, Dönitz-60,
Page 209, I wanted to put to a witness. Dönitz-60, Page 209, concerns a
French statement about a danger zone near Italy. I am using both
documents as evidence for the practical state of naval warfare and
should like to discuss them with a witness. It goes without saying that
the methods of the enemy also had some influence on German practices.
The next group contains documents Dönitz-60, Pages 219, 222, and 224.
They deal with the British system of navicerts. The navicerts, as can be
seen from these documents, were certificates which all neutral ships had
to get from the British Consulate before they could put to sea. Ships
which refused to use navicerts were confiscated. The navicert system is
relevant in two respects.
First, it is mentioned in the German statement concerning the total
blockade against England on 17 August 1940 as one reason for that
blockade. Secondly, from the German point of view it was a nonneutral
act on the part of the neutrals if they submitted to that system. This
question plays a considerable part in determining to what extent Germany
herself from that time on took consideration of neutrals in the zones of
operations. Finally, the navicert system shows the development of an
entirely new naval warfare law, and that is a very important subject for
me.
The next document is Dönitz-60, Page 256. It is a French decree of 11
November 1939 concerning the creation of insignia for the crews of
merchant ships who could be mobilized. This document is relevant for the
question of whether the crews of merchant ships at that stage of the war
should be considered combatants or noncombatants. The details of the
decree seem to me to show that they would have to be considered
combatants.
With the two following documents I should like to object to the
probative value of the document of the Prosecution, Exhibit GB-191. This
concerns my Documents Dönitz-81, Page 233, and Dönitz-82, Page 234. I
had said that these two documents would dispute the probative value of
the Document GB-191. That is the report of the British Foreign Office
about German naval warfare. On Page 1 this report attacks Article 72 of
the German Prize Regulations in which it states that ships can be sunk
if they cannot be brought into port. Document GB-191 says that this is
contrary to the traditional British conception.
My Document Dönitz-81 shows the sinking of the German freighter Olinda
by the British cruiser _Ajax_ on the first day of the war. It is only
one example to show that the statement made in the report of the British
Foreign Office, according to which the British fleet had not sunk ships
if they could not or would not bring them to port, is incorrect.
In the same report of the British Foreign Office, German U-boats are
accused of never differentiating between armed and unarmed merchant
ships. Later I shall submit to the Court the orders concerning armed and
unarmed merchant ships.
By my next document I merely wish to defend the U-boats against having
each mistake interpreted as bad intent. Therefore, in Dönitz-82, I
submit a statement by the British Foreign Office which confirms that it
is extremely difficult, if not impossible, in some cases to distinguish
between armed merchant ships and unarmed merchant ships.
The next document, Dönitz-85, Page 242, contains a statement by the
American Secretary of the Navy, Mr. Knox, concerning the question of
keeping secret the sinking of German U-boats by American naval forces.
For me it is essential in connection with the document of the
Prosecution, Exhibit GB-194. In this document the measures which the
naval war staff took to keep secret the sinkings by U-boats, that is,
using as a pretense the fiction of sinking through mines, are presented
as fraudulent. I should like to give this as an example that during a
war military measures can naturally be kept secret, but that that is no
proof for or against their legality.
The next document is Dönitz-89, on Page 246. It is a list drawn up by
the Naval Operations Staff of violations of neutrality committed by the
United States from September 1939 to 29 September 1941. The document is
essential to counter the document of the Prosecution, Exhibit GB-195,
which contains an order from Adolf Hitler of July 1941 in which it is
stated that in the future even the merchant ships of the United States
must be treated within the German zone of blockade in the same manner as
all other neutral ships, that is to say, they should be sunk.
The Prosecution has interpreted this order as proof of a cynical and
opportunistic conduct of U-boat warfare by Admiral Dönitz. I wish to
show, by submitting this list, that from the German point of view it was
completely understandable and is justifiable if in the summer of 1941
one did not grant the United States a better position than any other
neutral.
Now I come to the subject of the treatment of shipwrecked survivors.
These documents are in Volume I of the document book. The first
document, Dönitz-9, on Page 11, offers a description of over-scrupulous
measures taken by German U-boats to save survivors in September and
October 1939. This is essential for Admiral Dönitz...
THE PRESIDENT: There must surely be a group of these, is there not?
Haven’t you got a number of documents which deal with shipwrecks?
FLOTTENRICHTER KRANZBÜHLER: Yes, there are a number of documents.
THE PRESIDENT: Can you not deal with them all together?
FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President, I can assemble them.
They are Documents Dönitz-9, Page 11, Dönitz-10, Page 12, Dönitz-12,
Page 18, and Dönitz-13, Pages 19 to 26, and Page 49, and Dönitz-19 on
Page 34. All these documents are related to Exhibit GB-196 of the
Prosecution. That is an order from the winter of 1939-1940 in which the
rescue measures of U-boats are limited. Sir David objected to that group
that it was not important if, after this order of the winter 1939-1940,
rescues were still carried out. I cannot share this opinion. If the
Prosecution accuses Admiral Dönitz of having given an order about the
limitation of rescue measures in the winter of 1939-1940, then it is
essential to point out for what reasons such an order was issued and
what practical consequences it had in fact. It is my assertion that that
order can be traced, first, to the fighting conditions of the U-boats
along the British coasts, and second, to over-scrupulous rescue measures
taken by the commanders. The order did not prohibit measures of rescue
generally, and that will be shown by the statements made by the
commanders, which I have submitted under Dönitz-13.
THE PRESIDENT: Is it possible for you to give us a page where we can
find these GB documents? For instance, GB-196.
FLOTTENRICHTER KRANZBÜHLER: Yes. It is in the British document book on
Page 33. In the document book of the Prosecution, Mr. President.