It describes the firing of a torpedo on a ship belonging to that
convoy—the _City of Benares_.
A few minutes later, at 0007 hours, the submarine attacked a second ship
in the convoy, the British steamer _Marina_. Both ships sent wireless
messages. Twenty minutes later the submarine again had an artillery
combat with a tanker from the convoy. That is the true story of the
_City of Benares_.
I reproduce the Prosecution’s Exhibit GB-192 again on Page 240. It
concerns the sinking of the _Sheaf Mead_. In this connection I should
like to point out that that ship was heavily armed and that it probably
was no merchant vessel but a submarine trap. The Prosecution’s Exhibit
GB-195, which was dealt with in yesterday’s hearing, contains an order
issued by the Führer in July 1941 concerning attacks on United States
merchant vessels in the blockade zone which had been declared around
England. On the basis of this document, the Prosecution charges Dönitz
with conducting a cynical and opportunistic warfare against neutrals.
My next document is Donitz-86, Page 243. It shows the efforts which were
made to avoid a conflict with the United States. I read the entry, dated
5 March 1940, from the War Diary of the Naval Operations Staff:
“With reference to the conduct of economic warfare, orders are
given to the Naval Forces that U.S. ships are not to be stopped,
seized, or sunk. The reason is the assurance given by the
Commander-in-Chief to the American Naval Attaché, whom he
received on 20 February, that German submarines had orders not
to stop any American ships whatsoever. All possibility of
difficulties arising between the U.S.A. and Germany as a result
of economic warfare are thereby to be eliminated from the
start.”
This order means, therefore, that prize law measures were renounced.
The next document, Dönitz-87, Page 244, shows the practical recognition
of the American zone of neutrality. It reads:
“4 April 1941. The following WIT message is directed to all
ships at sea:
“American neutrality zone from now on to be observed south of
20° North only at a distance of 300 nautical miles from the
coast. For reasons of foreign policy, the hitherto existing
limitation will for the time being continue to be observed north
of the above-mentioned line.”
That means full recognition of the neutral zone.
The next document, Dönitz-88, shows President Roosevelt’s attitude to
the question of neutrality toward Germany in that war. It is an excerpt
from the speech of 11 September 1941 and is well known:
“Hitler knows that he must win the mastery of the seas if he
wants to win the mastery of the world. He knows that he must
first tear down the bridge of ships which we are building over
the Atlantic and over which we constantly transport the war
material that will help, in the end, to destroy him and all his
works. He has to destroy our patrols on the sea and in the air.”
I should like to say a few words about the view also expressed in
Exhibit GB-191, namely, that the crews of enemy merchant ships were
civilians and noncombatants. On Page 254 of the document book I have
reproduced part of Document Dönitz-67, which I have already submitted.
It is an excerpt from the confidential Admiralty Fleet Orders and deals
with gunnery training for the civilian crews of merchant ships. I only
wish to refer to the first page of these orders which say that, as a
general rule, there should be only one navy man at a gun, all the rest
being taken from the crew of the ship. I read from the paragraph headed
“Training,” Section (d):
“In addition to the gunlayer and the men specially trained for
serving guns, five to seven men more—depending on the size of
the gun—are needed to complete the gun crew and to bring
ammunition from the magazine.”
This is followed by regulations for training in port and gunnery drill
for the crews.
The next document, re-numbered Dönitz-106, is a circular decree issued
by the French Minister for the Merchant Marine on 11 November 1939. It
deals with the creation of a special badge for men serving on merchant
ships who are liable for military service. That is on Page 256. I should
like to point out that this decree was signed by the head of the
Military Cabinet, a rear admiral. The character of the order is
demonstrated by the second to the last paragraph:
“This armband may only be worn in France or in the French
colonies. In no case may men issued the armband wear it in
foreign waters.”
I come now to several documents dealing with the question of the rescue
of survivors. These documents can be found in Document Books 1 and 2.
THE PRESIDENT: Dr. Kranzbühler, do you not think it would be sufficient
if you were to refer to these documents and give us the numbers without
reading from them? They are all dealing, as you say, with rescue.
FLOTTENRICHTER KRANZBÜHLER: I believe I can do this with most of them.
On Page 9 there is reproduced the Hague Convention regarding the
application of the Geneva Convention to naval warfare. Page 10 is
Document Dönitz-8, the order of 4 October 1939 concerning the sinking of
armed merchantmen. It contains the order already read, namely, that
rescues should be effected wherever possible without endangering their
own ship.
Dönitz-9, Page 12, gives examples of exaggerated rescue measures by
German submarines which even let enemy ships pass without attack while
so engaged. Dönitz-10 deals with the same subject and gives a further
example.
The collection of statements made by commanding officers in Dönitz-13
can be found on Pages 19 to 26. I should like to deal with it along with
War Order 154, which is the Prosecution’s Exhibit GB-196. These
statements contain numerous examples, taken from all the war years, of
rescue measures on the part of German submarines. One of these
statements is supplemented by photographs—Page 21—which are included
in the original. The facts stated in these statements are confirmed by
Document Dönitz-14, Page 27, where there is a report on rescue measures
in the war diary of a submarine; and at the end we find the sentence:
“Taking British airmen on board is sanctioned.” It is signed by the
Commander of U-boats.
The next document, Donitz-15, is again an excerpt from the war diary,
giving an example of rescue measures after a battle with a convoy on 21
October 1941. It is on Page 28. The next two documents concern the
_Laconia_ order. The Tribunal has permitted me to use Standing War
Orders 511 and 513 in cross-examining Möhle. They deal with the capture
of captains, chief engineers, and air crews. I submit them as Dönitz-24
and 25, and they can be found on Pages 46 and 47. I should like to point
out that both orders explicitly state that capture should only be
effected as far as is possible without endangering the boats.
Document Dönitz-24 explains that the British Admiralty, on their part,
had issued orders to prevent the capture of British captains by German
submarines. The next excerpt, on Page 48, cites an example showing that
this British order was carried out and that a U-boat searched in vain
among the lifeboats for the captain.
THE PRESIDENT: Dr. Kranzbühler, could you inform the Tribunal what
Paragraph 2 on Page 46 refers to and means?
FLOTTENRICHTER KRANZBÜHLER: The paragraph refers to Standing War Order
Number 101, that is, the order specifying which neutral ships can be
sunk. That is, of course, in the blockade area.
THE PRESIDENT: Would it mean that those officers have to be sunk with
the ship, or what?
FLOTTENRICHTER KRANZBÜHLER: No, Mr. President. That means that captains
and ships’ officers of neutral ships might be left in the lifeboats and
need not be taken aboard the submarine from the lifeboats. The fact that
it was actually much safer in the lifeboats than on the submarine is
seen from the English order instructing captains to remain in the
lifeboats and hide from the U-boats.
THE PRESIDENT: What if they do not have lifeboats?
FLOTTENRICHTER KRANZBÜHLER: I believe, Mr. President, that that case has
not been ruled on here. I know of no case where a ship did not have
lifeboats, especially in 1943, in which year the order originated. Every
ship was provided not only with lifeboats but also with automatically
inflating rafts.
Figure 2 refers only to the question of capture of neutral captains. May
I continue, please?
THE PRESIDENT: Yes, you may.
FLOTTENRICHTER KRANZBÜHLER: A number of instances showing that captains
were rescued after these orders were issued are quoted in the statements
by commanders reproduced on Pages 22, 25, and 26, under Exhibit Number
Dönitz-13.
I now come to the case of Submarine _U-386_, which figures very largely
in Korvettenkapitän Möhle’s statement. The Tribunal will remember that
this case was the decisive reason for the way in which Möhle interpreted
the _Laconia_ order. With reference to this case, I submit Exhibit
Number Dönitz-26, the affidavit made by Captain Witt. I should like to
read a few paragraphs from that.
THE PRESIDENT: What page?
FLOTTENRICHTER KRANZBÜHLER: On Page 50, Mr. President.
“In November 1943, in the course of my official duties as a
member of the staff of Commander of U-boats, I had to interview
Lieutenant Albrecht, commander of U-boat _U-386_, on his
experiences during the action which had just terminated.
Albrecht reported to me that in the latitude of Cape Finisterre
he had sighted in daylight a rubber boat with shipwrecked
British airmen in the Bay of Biscay. He did not take any steps
to rescue them because he was on his way to a convoy in process
of formation. He could only reach his position by continuing
without a stop. Besides he was afraid...”
THE PRESIDENT: Dr. Kranzbühler, is it necessary to go into the details
of each particular case? I mean, they all depend upon their own
particular circumstances. You need not read the documents very
carefully. It is not necessary at this stage of the case.
FLOTTENRICHTER KRANZBÜHLER: Very well, Mr. President, I shall only
report.
The affidavit states briefly that the commander has been informed that
he should have brought the airmen back. That is, in other words, the
opposite of what Möhle has said in this courtroom. The correctness of
Captain Witt’s statements is confirmed by the next document, Dönitz-27,
which is the U-boat’s war log and contains the comments of the Commander
of U-boats expressing disapproval of the fact that the Englishmen
floating on the raft were not taken aboard.
The fact that Admiral Dönitz’ attitude toward rescues was not based on
cruelty but on military expediency is shown by Page 53 of the following
document, Dönitz-28. He is considering the rescue of our own personnel
and comes to the conclusion that military considerations may forbid such
a rescue. The following Document Dönitz-29 deals with the statement made
by witness Heisig. It is on Page 54 and the following. It begins with an
affidavit made by the Adjutant, Kapitänleutnant Fuhrmann, who describes
the general ideas on which Admiral Dönitz’ talks were based. At the end
he stresses the fact that he was never, in connection with Admiral
Dönitz’ pronouncements, approached by young officers, who expressed any
doubts as to the treatment of shipwrecked persons.
On Page 56 there is a statement made by Lieutenant Kress, who was
present at the same lecture as Heisig. He says that neither directly nor
indirectly did Admiral Dönitz order the survivors to be killed.
That is confirmed by Lieutenant Steinhoff’s statement on Page 59. The
considerations which weighed with the Naval Operations Staff at that
time in the question of fighting the crews are illustrated by the
following document, Donitz-30, which is reproduced on Pages 60 and 61.
Here again, no mention is made of the killing of survivors. It is the
record of a conference with the Führer on 28 September 1942, which was
attended by Admiral Raeder and Admiral Dönitz.
The Tribunal will remember Exhibit GB-200 which describes rescue ships
as desirable targets. The same document states that they have the
significance of submarine traps. For that reason I have reproduced on
Page 63 Standing War Order Number 173, dated 2 May 1940. That order
States that, in accordance with instructions from the British Admiralty,
U-boat traps are employed in convoys. Document Dönitz-34, on Page 67 of
Document Book 2, shows that the treatment of rescue ships has nothing to
do with the sanctity of hospital ships. It is the last of the Standing
Orders referring to hospital ships and is dated 1 August 1944. It begins
with the words, “Hospital ships must not be sunk.”
My next document, Dönitz-35, is meant to show that the Naval Operations
Staff actually went beyond the provisions of international law in regard
to the sanctity of hospital ships, for, as the entry of 17 July 1941
proves, the Soviet Government on its part rejected the hospital ship
agreement, basing its action on violations of international law
committed by Germany on land. According to Article 18 of the hospital
ship agreement, this meant that the agreement was no longer binding on
any of the signatories.
In Document Dönitz-36, Pages 69 and following, I submit the only known
instance of a U-boat commander’s actually firing on means of rescue.
This is the interrogation of Kapitänleutnant Eck, carried out on 21
November 1945 by order of this Tribunal. That was 10 days before he was
shot.
According to the wish of the Tribunal, I shall confine myself to a
summary.
After sinking the Greek steamer _Peleus_, Eck tried to sink the
lifeboats and wreckage by means of gunfire. The reason he gave was that
he wanted in this way to get rid of the debris and avoid being detected
by enemy aircraft. He states that he had the _Laconia_ order aboard, but
that this order had no influence whatsoever upon his decision. In fact,
he had not even thought of it. He had received his instructions from
Möhle but had heard nothing about the killing of survivors which is
alleged to have been desired; and he knew nothing about the instance of
_U-386_. At the end of his examination, Eck states that he expected his
action to be approved by Admiral Dönitz. A further reference was made in
cross-examination yesterday to the question of whether Admiral Dönitz...
THE PRESIDENT: Dr. Kranzbühler, we will adjourn now for a few
minutes—only for a short time.
FLOTTENRICHTER KRANZBÜHLER: Very well.
[_A recess was taken._]
THE PRESIDENT: Dr. Kranzbühler, the Tribunal, as you know, was going to
deal with the applications for documents and witnesses, but if you could
finish your documents in a short time, they would like to go on with
that and get them finished, if you can.
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I believe that even at my
present speed, I shall need about an hour. I should like to ask you,
therefore, for permission to continue on Monday morning.
THE PRESIDENT: Well, Dr. Kranzbühler, if you think it will be as long as
that, of course we must put it off to Monday morning, but the Tribunal
does hope that you would not take anything like so long as that, because
going in detail into these documents does not really help the Tribunal.
They have all got to be gone into again in great detail, both in your
speeches and in further consideration by the Tribunal.
FLOTTENRICHTER KRANZBÜHLER: I shall confine myself to making clear the
connections, Mr. President, but in spite of that, I think it would be
better if I did so on Monday morning.
THE PRESIDENT: Very well, yes. Then the Tribunal will now deal with the
applications. Yes, Sir David.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases, the first application
is on behalf of the Defendant Von Schirach, who asked for one Hans
Marsalek as a witness for cross-examination. The Prosecution have
already introduced an affidavit from this man, and they have no
objection to him being called for cross-examination.
My Lord, the second application on behalf of the Defendant Von Schirach
is in respect of one Kaufmann. The Defense desires to administer
interrogatories to Kaufmann in lieu of calling Kaufmann, who has already
been allowed as a witness. There is no objection to that.
My Lord, the next matter is an application by Dr. Seidl on behalf of the
Defendant Hess, and it is a request for five documents relating to the
German-Soviet agreements in August and September 1939. And it is also a
request for the calling of Ambassador Gaus as a witness in connection
with the above. But the position with regard to previous applications is
somewhat lengthy, and without going into details, I tell the Tribunal
that this matter has already been before them on six occasions. I have
the details if the Tribunal would like them.
THE PRESIDENT: No, because the Tribunal made an order, did they not,
that these documents were to be translated?
SIR DAVID MAXWELL-FYFE: Yes, My Lord.
THE PRESIDENT: And that they would then be considered by the Tribunal?
SIR DAVID MAXWELL-FYFE: That is so, My Lord. The Tribunal made an order
for them to be translated on 25 March and, My Lord, if I may just remind
Your Lordship of the bare facts, on 28 March Fräulein Blank, the private
secretary of the Defendant Von Ribbentrop, was asked about the
agreement. Your Lordship may remember that my friend General Rudenko
objected, but the Tribunal ruled that the questions were admissible, and
the witness said she knew of the existence of the secret pact, but gave
no details.
Then, on 1 April, in the course of Dr. Seidl’s cross-examination of the
Defendant Von Ribbentrop, the Gaus affidavit was read, and on 3 April,
Dr. Seidl applied for Hilger and Weizsäcker to be called as witnesses on
this point, and on 15 April Dr. Seidl applied for Ambassador Gaus to be
called.
Now, My Lord, it was discussed before the Tribunal on 17 April, when I
said that in view of the Tribunal’s previous ruling I could not contest
the question of the agreement, but I objected to the witnesses. General
Rudenko, I think, stated that he had submitted written objections, and
the Tribunal said they would consider the matter. The position today
appears to be, taking the five documents, that the affidavit of Dr. Gaus
is already in evidence. My Lord, that is the first affidavit. But the
second affidavit of Dr. Gaus is not in evidence. With regard to the
Non-Aggression Pact between Germany and the Soviet Union, that is
already in evidence. As to the Secret Supplementary Protocol appended to
the Non-Aggression Pact between Germany and the Soviet Union, the
substance is already in evidence. It was given in the Gaus affidavit.
Then, My Lord, we have the German-Soviet Frontier and Friendship Pact of
28 September 1939, and the Secret Supplementary Protocol to that pact.
The Prosecution submit that these documents have no relevance to the
defense of the Defendant Hess, and they cannot see any reason for them
being wanted. If necessary, my Soviet colleague can deal further with
the matter, but that is the general position. And we also submit that
the second affidavit of Ambassador Gaus is unnecessary in view of his
previous affidavit, and without stating them again, I refer to and
repeat my objections to witnesses to the discussions preceding the
conclusion of the agreement. It is submitted that this is really an
irrelevant matter, and unnecessary to occupy the time of the Tribunal
regarding it. My Lord, I do not know whether it is convenient...
THE PRESIDENT: Sir David, the Tribunal, as I have said, is going to
consider this matter. They have not yet had an opportunity to consider
these documents, but I should like to ask you whether there is any
reason why Ambassador Gaus should be called as a witness.
SIR DAVID MAXWELL-FYFE: None at all, My Lord.
THE PRESIDENT: He has already stated the substance of these documents,
as has the Defendant Ribbentrop, and if the documents are now produced
and supposing that the Tribunal took the view that they ought to be
admitted, it would be entirely irrelevant to call Gaus as a witness.
SIR DAVID MAXWELL-FYFE: In my submission that is so, My Lord.
THE PRESIDENT: Well, I think the Tribunal had better consider these
documents, as they had stated in their order they were going to do when
the documents had been produced.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.
Now, My Lord, the next application is on behalf of the Defendant Funk,
and he requests permission to read the affidavit of the witness Kallus.
The permission was previously granted to the Defendant Funk to submit an
interrogatory to Kallus, which has been done, and the interrogatory has
already been introduced in evidence. The affidavit now in question has
been received and supplements the interrogatory, and the Prosecution
have no objection.
The next application is on behalf of the Defendant Streicher, and he
desires to call the witness Gassner as a witness, and he is desired to
speak as to the _Stürmer_ and the size of the circulation and the
profits. The Prosecution submit that it is unnecessary to call a witness
as to the form of the _Stürmer_ after 1933. A representative number of
copies of the newspaper are before the Tribunal and the form of the
newspaper can be seen from them.
On the second point, both the Defendant Streicher and the witness Hiemer
have given evidence as to the _Stürmer’s_ circulation, and it is
respectfully submitted that the takings of the _Stürmer_ and the use to
which they were put are irrelevant.
Then, My Lord, the next application, on behalf of the Defendant Sauckel,
is for one Biedermann as a witness, instead of a witness allowed
previously who cannot be found. The Prosecution have no objection to
that, and they have no objection to the documents that are asked for, so
with the approval of the Tribunal I shall not go through them in detail.
THE PRESIDENT: Sir David, we should like to know when you think the most
appropriate time would be to hear the evidence on behalf of those
defendants whose cases have already been presented, whether to hear it
at the end of all the evidence or to hear it earlier?
SIR DAVID MAXWELL-FYFE: My Lord, I should have thought that it was
better to hear it earlier if the Tribunal could put aside a Saturday
morning for it, or something of that kind, before the cases of the
various defendants have gone too far into the background.
THE PRESIDENT: We will consider that and let you know.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. Now, My Lord, the next
application is in behalf of the Defendant Seyss-Inquart, and he asks for
an interrogatory to be submitted to Dr. Stuckart to complement the
testimony of the witness Lammers. The Prosecution have no objection to
such an interrogatory. They reserve the right, or they ask the Tribunal
to let them reserve the right, to put in a cross-interrogatory. The
Defendant Frick asks for Dr. Konrad as a witness on the question of
Church persecution, and the Prosecution suggest that an interrogatory
would be sufficient on this point. I think there is a little confusion
here; I think that what is desired is an affidavit. The original
application says:
“Contrary to the charge to the effect that the defendant
participated in the persecution of the Churches, an affidavit by
the witness is to establish that Frick strongly defended Church
interests.”
So the only question is between an affidavit and interrogatory, not
between an oral witness and an interrogatory. Then, if I might leave the
next one, the application on behalf of the Defendant Göring, to my
friend Colonel Pokrovsky, who is going to deal with that. I pass to the
applications of the Defendants Hess and Frank. That is Dr. Seidl’s
application; and if I might just read what is stated in the Secretary
General’s note, it is official information from the ministry of war of
the United States of America, or another ministerial service official of
the Office of Strategic Services. It is stated that such a report is
desired to show that the witness Gisevius had perjured himself on the
witness stand and that they desire to show this to attack his
credibility. It is alleged that the perjuring consists of his denial
under cross-examination that he acted on behalf of foreign powers and
his denial of receiving any favors from any power at war with Germany,
which is supposed to be at variance with his statement that he had
friendly and political relations with the American Secret Service and
with some subsequently published reports. Confirmation of these two
factors, alleged to be at variance with his prior statements, is sought
by requesting official statement; and they ask for United States
Secretary of War, Mr. Patterson, as a witness for the essential points,
in case the Tribunal does not consider an official report admissible or
sufficient or the United States ministry of war refuses the information.
Now, My Lord, I deal with this matter simply as a question of
jurisprudence on which I submit that the English view is a sound one and
should be followed by this Tribunal. The law of England, as I understand
it, is that when you cross-examine a witness to credit, you are bound by
his answers. There is only one exception to that which, in my
recollection, is contained in a note in Roscoe’s Criminal Evidence, that
when you have cross-examined a witness to credit, you may call a witness
to say that, knowing the general reputation of the witness who has been
cross-examined to credit, on that general reputation, and only on that
general reputation, the witness would not believe him on it. That is the
only exception that I know in English Law.
THE PRESIDENT: And, of course, if he is cross-examined as to a crime or
a misdemeanor, he may be contradicted.
SIR DAVID MAXWELL-FYFE: Certainly; Your Lordship is quite right. I
should have put that as an exception; that if he is cross-examined as to
a specific conviction, then the conviction may be proved. I am very
grateful to Your Lordship. But, My Lord, what is not permissible in
English jurisprudence is that when a witness has been cross-examined to
credit on particular facts other than a conviction by the State,
evidence may be adduced as to these particular facts. I should submit
that the principle which I am sure obtains in all systems of
jurisprudence, _interest rei publicae ut sit finis litium_ must apply
and support that condition. Now, I will put it in English—I am sorry.
“It is in the interest of the community that there should be an end of
the legal proceedings.”
My Lord, if one did not apply the limit which English jurisprudence has
applied, one would then call evidence to attack the credit of witnesses
for the Prosecution. The Prosecution would then render a rebuttal and
call evidence to attack the credit of each of these witnesses who had
attacked the credit of the Prosecution’s witnesses and there would never
be an end to legal proceedings at all. My Lord, on that point which is a
general point—and I do not mean to be academic; it is a point of
practical importance for preserving some decent limit to legal
proceedings—I would submit that this application should be refused. My
Lord, I think that covers all the points except the question of the
Defendant Göring’s application with which my friend Colonel Pokrovsky
will deal.
COL. POKROVSKY: The Defendant Göring is applying, My Lord, for the
calling of supplementary witnesses in connection with the Katyn Forest
shootings to clarify the matter from the point of view of the Wehrmacht.
That is to say he intends to prove that German Armed Forces were not in
any way concerned with this Hitler provocation. The Prosecution of the
Soviet Union categorically protests.
THE PRESIDENT: Colonel Pokrovsky, we have this matter fully in our mind
as we have already had to consider it; therefore, it is not necessary
for you to deal with it in detail, for I understand that these are new
witnesses who have not before been applied for.
COL. POKROVSKY: I had in mind the fact that the new witnesses have been
called and I would like to inform the Tribunal of our exact point of
view with regard to the calling of the new witnesses, without going into
detail about the Katyn Forest incident. The Soviet Prosecution, from the
very beginning, considered the Katyn Forest incident as common
knowledge. The Tribunal can see, by the limited space allotted to this
crime in the Indictment and by the fact that we found it possible to
limit ourselves to reading into the record only a few short excerpts
from the report of the Commission, that we consider this episode to be
only an episode. If the question mentioned by Sir David should be
raised, that is, the fact that the Tribunal may have doubts about the
credibility of certain witnesses or certain documents accepted as
evidence—then, once again, we would be forced to present new evidence
in order to discredit the new material again presented by the Defense.
Thus, if the Tribunal considers it necessary to admit two new witnesses
relative to the Katyn Forest shootings, the Soviet Prosecution will find
itself obliged to call about ten more new witnesses who are experts and
specialists, and to present to the Tribunal new evidence put at our
disposal and which we have recently received—new documents.
Furthermore, we shall have to return to the question of reading into the
record all of the documents of the Special Commission, excerpts from
which were read before the Tribunal. We think that it will greatly delay
the proceedings, and it will not be a matter of hours but of days. So
far as we are concerned, there is no necessity for doing this, and I
think that this request should be refused, since there is absolutely no
basis or reason for it. That, My Lord, is what I wanted to say in regard
to the Defendant Göring’s application.
I would also like to add a few words to what Sir David said in regard to
Dr. Seidl’s application. I will not go into all our motives. We
certainly support Sir David fully, and we consider that Dr. Seidl’s
applications should be refused. But I want to report to you that this
morning I signed a document which is being sent to you, Your Honor, and
which contains a full and detailed statement of our motives and
considerations in regard to this question; and this document is
presented to the Tribunal. Therefore, without taking up your time, I
have found another way of informing the Tribunal about our position.
THE PRESIDENT: Now, it is not necessary, I think, to ask counsel for the
Defendant Schirach to address the Tribunal, because there is no
objection to those two applications with reference to the witness
Marsalek and the interrogatory of Kaufmann.
With reference to the Hess matter, the Tribunal will consider that. They
are going to consider it as they said they would in their previous
order.
With reference to the Defendant Funk, there is no objection to the
affidavit of Kallus, and so unless counsel for Funk wants to address us
upon it, we need not bother about that.
With reference to Streicher, there is an objection to Gassner as a
witness, so perhaps the counsel for Streicher had better say anything
that he wishes to say.
[_There was no response._]
Well, the Tribunal will consider that, then.
As to Sauckel there has been no objection. As to Seyss-Inquart, an
interrogatory—there is no objection there.
As to the Defendant Frick, Sir David suggested an interrogatory. It was
not quite clear whether the application meant that. Is counsel for the
Defendant Frick here or not?
[_There was no response._]
Well, we will consider that. And with reference to Göring, the Tribunal
will consider the applications for the Defendant Göring.
And with reference to Hess and Frank, as to Gisevius’ evidence—Dr.
Seidl, do you wish to say anything about that?
DR. ALFRED SEIDL (Counsel for Defendants Hess and Frank): Mr. President,
the application regarding the obtaining of official information from the
minister of war was made for the sole purpose of obtaining evidence as
to the credibility of the witness Gisevius. Afterwards I made another
application to examine Secretary of War Patterson by means of an
interrogatory dealing with the same subject. On the following day I made
an application to examine the Chief of the O.S.S., General Donovan, also
by means of an interrogatory. I think that this new application is in
the hands of the Tribunal.
I have made this further application only because the first-named
witness, Patterson, was minister of war for only a comparatively short
period, and because it seemed helpful to have the chief of that
organization himself as an additional witness. As a reason for these
applications, I refer to my written statement of 1 May this year, which
I have also submitted as Appendix 1 of the form. I further refer to
Appendix 2, a report by Associated Press on this incident. I should like
to reply very briefly to Sir David Maxwell-Fyfe’s statement here.
The Tribunal does not appear to be bound by any particular rules in
dealing with the question of additional witnesses in connection with the
credibility of other witnesses. Neither the Charter of the International
Military Tribunal nor the regulations governing its procedure contain
any definite rules. In my opinion, it is rather left exclusively to the
free judgment of the Tribunal whether such additional evidence referring
to the credibility of a witness should be admitted or not, and in what
circumstances. In German criminal procedure such evidence is admissible
without question.
However, since the Tribunal in setting up this procedure is not bound by
any rules of procedure, I see no reason why the decision should be based
on any of the customary Anglo-American legal procedure, since the
Charter is not based on either the Anglo-American legal procedure or the
continental European legal procedure. This Tribunal and its rules of
procedure are entirely independent and give complete freedom to the
judgment of the court.
That is all I wanted to say in that connection.
THE PRESIDENT: One moment, Dr. Seidl. Do the questions which you wish to
put with reference to the witness Gisevius relate solely to credit?
DR. SEIDL: In my written application I have already said that as far as
I am concerned, it is not a question of whether in certain circumstances
the witness Gisevius was guilty of an action which from the German legal
standpoint might constitute the crime of treason. I only put that
question in connection with the examination of the credibility of the
witness before the Tribunal.
THE PRESIDENT: That is what I thought. Now, one other question I wanted
to ask you. Are these pacts or agreements, which you say existed between
the Soviet Republics and Germany—are they published in print? Have all
the documents which you wish to use been typewritten or mimeographed and
circulated to the Tribunal?
DR. SEIDL: Mr. President, on 13 November of last year, I gave six copies
of those five documents to the Secretary General, and I also gave a
corresponding number of documents to the Prosecution. All these
documents are typewritten, or, rather, they are mimeographed.
THE PRESIDENT: Yes.
DR. SEIDL: Perhaps I might add one point. On an earlier occasion the
Tribunal admitted as evidence an affidavit made by Ambassador Gaus. This
first affidavit is a statement of the contents of these secret
agreements. It is my opinion...
THE PRESIDENT: I know that, yes.
DR. SEIDL: ...that if we have the agreements, we should refer to the
agreements themselves and not merely to a summary. If the Tribunal so
desires, and considers it necessary, then I should be prepared, now or
at some later date, to discuss the relevancy of these agreements.
I have noted down eight points from which only these agreements appear
relevant as evidence, and perhaps I may point out that these additional
agreements...
THE PRESIDENT: The Tribunal has already ordered that these documents
should be submitted, and they will then consider them and that is what
they propose to do; so it is not necessary to go into them in detail. We
will consider the matter.
DR. SAUTER: Mr. President, during the examination of Defendant Funk, a
film was shown here on the screen and an affidavit by a
witness—Puhl—was read—Emil Puhl, the Vice President of the
Reichsbank. At that time, following an application of mine, the Tribunal
decided that this witness, Emil Puhl, should be called here for
examination. Now I should like to ask you to amend your decision in one
respect. I think it would be useful to show to the witness Puhl the film
which you saw on this screen a few days ago, so that he may state
whether in fact the steel vaults of the Reichsbank looked as they were
shown in this film.
I should like to ask, therefore, Mr. President, that you order this
short film which we were shown twice recently to be shown also to the
witness Puhl before his examination. It is, of course, not necessary
that this should be done during a session of the Tribunal; it can be
done in the presence of the prosecutor and myself, outside this
courtroom. I have various questions to put to the witness Puhl, and for
that it is necessary that he should first see this film. I wanted to
make this application today so that there may be no delay when the
witness Puhl is examined.
THE PRESIDENT: Does the witness Puhl know the vaults in Frankfurt which
were photographed?
DR. SAUTER: Yes.
THE PRESIDENT: He was a director in Berlin, was he not?
DR. SAUTER: Yes; but I assume, Mr. President, that the witness Puhl, who
was the managing Vice President, would also know the steel vaults in
Frankfurt. Apart from that, I believe that these vaults in the various
branches of the Reichsbank were all built on the same pattern, and were
also treated in the same way in practice. He will be able, also, to
state whether the method of safekeeping shown in the film was the type
actually used by the Reichsbank in looking after deposits.
THE PRESIDENT: Has the Prosecution anything to say about this?
MR. RALPH G. ALBRECHT (Associate Trial Counsel for the United States):
If Your Honor please, I think, as it is a document belonging to the
case, we would be very glad to show them to the witness before he is
cross-examined by Dr. Sauter.
THE PRESIDENT: Yes. And perhaps the most convenient way would be, as Dr.
Sauter suggests, that he should be shown the film in some room in this
court; not actually in this room, but in another room.
MR. ALBRECHT: Yes; we can do so in the presence of the Prosecution.
THE PRESIDENT: Then you can arrange that between yourself and Dr.
Sauter?
MR. ALBRECHT: Very well, Sir.
DR. SAUTER: Thank you very much indeed.
THE PRESIDENT: Dr. Sauter, has any time been arranged for the calling of
Puhl?
DR. SAUTER: No; nothing has been arranged yet. As far as I have heard,
the witness is already here. I do not know when he is to be heard. I
shall leave that entirely to the Prosecution.
THE PRESIDENT: What would be the most convenient time?
SIR DAVID MAXWELL-FYFE: My Lord, Mr. Dalton suggests to me, at the close
of the case of the Defendant Dönitz.
THE PRESIDENT: Would that be convenient? Would it not be better to put
it after the Defendant Raeder—I do not know, they are rather connected
cases?
SIR DAVID MAXWELL-FYFE: If the Tribunal would prefer that, we could make
it after Raeder.
THE PRESIDENT: I do not know whether Dr. Kranzbühler and Dr. Siemers
would prefer that.
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE PRESIDENT: Perhaps you could arrange that with them.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord.
THE PRESIDENT: That is to say, we would take Puhl’s evidence as soon as
convenient, either after the evidence on behalf of the Defendant Dönitz
or after the evidence on behalf of the Defendant Raeder, whichever you
prefer.
SIR DAVID MAXWELL-FYFE: If Your Lordship prefers, we will do that.
DR. LATERNSER: Mr. President, I should like to inform the Tribunal that
my colleague Dr. Stahmer’s applications for the Defendant Göring, which
were made with a view to clarifying the Katyn case, are also of interest
to me with reference to my clients. I gathered from the application made
by the Russian prosecutor that this complex, too, was submitted to
implicate the General Staff and the OKW, although no evidence has been
submitted to suggest that these events took place either by order or
with the approval of the General Staff and the OKW.
THE PRESIDENT: Does this not, perhaps, interest all the defendants?
DR. LATERNSER: Yes. But I only wish to inform the Tribunal that I am
interested in my colleague Dr. Stahmer’s applications, and that I also
request you to allow them. We have agreed to share the task, and that is
my colleague Dr. Stahmer’s reason for making the application. I wanted
first to inform the Tribunal of that arrangement.
I should also like to remind the Tribunal that some time ago, when my
colleague Dr. Nelte, acting on behalf of the Defendant Keitel, forfeited
the examination of the witness Halder, I pointed out to the Tribunal
that this action encroached upon my privileges, and that the witness
Halder must be allowed for cross-examination by the Russian Prosecution.
At that time, I was told that the witness Halder would probably appear
for examination, and I have checked it in the record. When I referred to
the point during that session, the Tribunal said that it would announce
its decision in a few days. Although some considerable time has elapsed
since then, no announcement has been made. I merely draw the attention
of the Tribunal to this point.
THE PRESIDENT: Your witnesses have not been dealt with yet, have they?
You have not applied for your witnesses yet? They have not been
proffered? The matter has not been dealt with?
DR. LATERNSER: Mr. President; this is a repetition of the
misunderstanding which arose when I pointed out to you at that time that
the forfeiture of the witness Halder constituted an infringement of my
rights. The situation at the time was that the Russian Prosecution
submitted an affidavit made by General Halder, and when the Defense
objected, which at that time was done in my name too, the Tribunal
decided that the witness Halder would have to appear for examination
here. I have the right to cross-examine him, and therefore this is the
proper time to call that to the attention of the Tribunal.
THE PRESIDENT: Yes, but the convenient time is the question. You will
have the opportunity to cross-examine him. But the question is when. You
want to cross-examine him yourself on behalf of the High Command?
DR. LATERNSER: Yes.
THE PRESIDENT: We will consider that, Dr. Laternser.
The Tribunal will now adjourn.
[_The Tribunal adjourned until 13 May 1946 at 1000 hours._]
ONE HUNDRED
AND TWENTY-EIGHTH DAY
Monday, 13 May 1946
_Morning Session_
FLOTTENRICHTER KRANZBÜHLER: With the permission of the Tribunal I would
like to submit my remaining documents, and then call Admiral Wagner as
my first witness.
The next document I come to is Dönitz-37. It is an extract from
_Dokumente der Deutschen Politik_ on the _Altmark_ case. I do not
propose to read it. It concerns a report of the captain of the
_Altmark_, which shows how the sailors of the _Altmark_ were shot at
while trying to escape by water and across the ice. There were seven
dead. It can be found, Mr. President, on Page 78 of Volume II; from Page
79 it can be seen that this action on the whole found full recognition
in spite of the casualties which, no doubt were regretted by the
Admiralty too.
The next document, Dönitz-39, has partly been read by Sir David
Maxwell-Fyfe during cross-examination. It can be found on Page 81 and
the following pages. It deals with the question of reprisals following a
report received regarding the shooting of survivors of the German
mine-layer _Ulm_.
On Page 83 there is a summary regarding the incidents which had been
reported to the Naval Operations Staff at that time and which contained
examples dealing with cases where survivors were shot at by Allied naval
forces. I am not so much interested in these 12 actual examples as in
the attitude adopted by the Naval Operations Staff in transmitting these
examples to the OKW. It is so important that I would like to read the
three sentences. They are on Page 83, at the top.
“The following accounts deal with incidents which have already
been reported, and in making use of them it must also be
considered that:
“a) some of these incidents occurred while fighting was still
going on;
“b) shipwrecked persons swimming about in the water easily think
that shots which missed their real target are directed against
them;
“c) so far no evidence whatsoever has been found that a written
or oral order for the shooting of shipwrecked persons has been
issued.”
The idea of reprisals did not only occur to the Command, but it also
occurred to the personnel serving on the ships at the front.
Now, we come to Document Dönitz-41, which is on Page 87 and deals with a
conversation between Admiral Dönitz and a commander. The conversation
took place in June 1943, and it is dealt with in an affidavit made by
Korvettenkapitän Witt. Following descriptions of attacks made by British
fliers on shipwrecked German submarine crews, the opinion was expressed
by the crews that in reprisal the survivors of enemy ships should also
be shot at.
The affidavit also says in the third paragraph:
“The Admiral sharply declined the idea of attacking an enemy
rendered defenseless in combat; it was incompatible with our way
of waging war.”
In connection with the Prosecution’s Exhibit GB-205 I shall submit a
document of my own which deals with the question of terroristic actions.
It is an extract from Exhibit GB-194 of the Prosecution, and it can be
found on Page 91. It deals with the question of whether the crews of
scuttled German ships should be rescued or not. The French press tends
to say they should not, in view of the pressing need of the Allies for
freight space. The same entry contains a report according to which
British warships also had special instructions to prevent further
scuttling of German ships.
I now shall try to prove that the principle according to which no
commander undertakes rescue actions if he thereby endangers a valuable
ship is justified. For that purpose I refer to Document Dönitz-90, which
is in the Volume IV of the document book, Page 258. It is an affidavit
of Vice Admiral Rogge, retired. He reports that in November 1941 his
auxiliary cruiser was sunk from a great distance by a British cruiser
and that the survivors had taken to the boats. They were towed away by a
German submarine to a German supply ship and this supply ship too, a few
days later, was sunk from a great distance by a British cruiser. Once
again the survivors took to the boats and to floats. The affidavit
closes with the words:
“At both sinkings no attempt was made, presumably due to danger
involved for the British cruiser, to save even individual crew
members.”
The principle that a valuable ship must not risk rescue actions to save
even members of its own crew is expressed with classical clarity and
severity in the British Admiralty Orders which I have already submitted
as Dönitz-67. The extract is printed on Page 96. There it says:
“Aid to ships attacked by submarines: No British ocean-going
merchant ship should aid a ship attacked by U-boats. Small
coastal ships, fishing steamers, and other small ships with
little draught should give all possible aid.”
The next document I submit is Dönitz-44, which is on Page 97. It is a
questionnaire for Vice Admiral Kreisch who, according to a decision by
the Tribunal, was interrogated in a British camp for prisoners of war.
From January 1942 to January 1944 he was the officer in charge of
submarines in Italy, which means that he was responsible for submarine
warfare in the Mediterranean. According to his statements he knows of no
order or suggestions regarding the killing of survivors. He advised his
commanders that rescue measures must not endanger the task and safety of
their own ships.
In connection with the question whether Admiral Dönitz was a member of
the Reich Government I should like to ask the Tribunal to take judicial
notice of the German Armed Forces Law of 1935 which can be found on Page
105 of Volume II of my document books. Paragraph 3 will show that there
was only one Minister for the German Armed Forces and that was the Reich
Minister of War. On the following page in Paragraph 37 it is shown that
this one Minister was assigned the right to issue legislative orders.
On Page 107 I again have the decree which has been submitted to the
Tribunal as Document 1915-PS, in which, dated 4 February, the post of
the Reich Minister of War is abolished and the tasks of his Ministry are
transferred to the Chief of the OKW. No new Ministry for the Army or the
Navy is established.
The Prosecution has described Admiral Dönitz as a fanatical follower of
the Nazi Party. The first document to prove this statement is dated 17
December 1943; it is Exhibit GB-185. Considering the time factor, I
shall refrain from reading a few sentences from it to show that anything
that Admiral Dönitz may have said about political questions was said
from the point of view of the unity and strength of his sailors. May I
ask the Tribunal to take judicial notice of this document, which again
appears on Pages 103 and 104 of Volume II.
I only want to draw your attention to the last paragraph on Page 104. It
deals with the handing over of Navy shipyards to the Ministry of
Armament in the autumn of 1943. It is an important question, important
for the responsibility regarding the use of labor in the shipyards, and
has been touched upon repeatedly in this Court. This sole tendency
toward unity becomes clear from yet another document of the Prosecution
from which I propose to read one sentence. It is Exhibit GB-186. In the
British trial brief it is on Page 7. I shall only read the second and
third sentences: “As officers we have the duty to be guardians of this
unity of our people. Any disunity would also affect our troops.” The
following sentence deals with the same thought at greater length.
THE PRESIDENT: British trial brief, Page 7? Mine has only five pages.
You mean the document book?
FLOTTENRICHTER KRANZBÜHLER: It is the British document book; not the
trial brief, but the document book, second and third sentences on Page
7, which I have read, Mr. President.
The fact that Admiral Dönitz was not a fanatical follower of the Party
but on the contrary fought against a political influence exercised upon
the Armed Forces by the Party is shown in my following document,
Dönitz-91. It is on Page 260 of Document Book 4. It is an affidavit from
the chief of the legal department in the High Command of the Navy, Dr.
Joachim Rudolphi. The Soviet Prosecution has already used this document
during its cross-examination. I should like to give a brief summary of
the contents:
In the summer of 1943 Reichsleiter Bormann made an attempt through the
Reich Minister of Justice to deprive the Armed Forces courts of their
jurisdiction in so-called political cases. They were to be transferred
to the Peoples’ Court and other courts. The attempt, however, failed. It
failed due to a report which Admiral Dönitz made verbally to the Führer
on this subject and during which he violently opposed the intentions of
the Party. After the assassination attempt on 20 July, Bormann renewed
his attempt. Again Admiral Dönitz raised objections, but this time
without success. A decree was issued on 20 September 1944 which deprived
the Armed Forces courts of their jurisdiction regarding so-called
political perpetrations. This decree, which was signed by Adolf Hitler,
was not carried out in the Navy by explicit order of the
Commander-in-Chief of the Navy.