THE PRESIDENT: Does any other member of defendants’ counsel wish to ask
any questions?
[_There was no response._]
The Prosecution may cross-examine.
COLONEL H. J. PHILLIMORE (Junior Counsel for the United Kingdom): May it
please the Tribunal, with regard to the questions asked by Dr. Siemers,
I was going to leave the cross-examination on those points to the
cross-examination of the Defendant Raeder so as to avoid any
duplication.
[_Turning to the witness._] As I understand the evidence which the
Defendant Dönitz has given and your evidence, you are telling the
Tribunal that with respect to the treatment of neutral merchant ships,
the German Navy has nothing to reproach itself with. Is that right?
WAGNER: Yes.
COL. PHILLIMORE: And the Defendant has said that the German Navy was
scrupulous in adhering to orders about the attitude towards neutral
shipping, and the neutrals were fully warned of what they should and
should not do. Is that right?
WAGNER: Yes.
COL. PHILLIMORE: Admiral Dönitz has also said that there was no question
of deceiving neutral governments; they were given fair warning of what
their ships should not do. Do you agree?
WAGNER: Yes.
COL. PHILLIMORE: Now, I want just to remind you of what steps were taken
as regards neutrals, as they appear from the defense documents.
First of all, on 3 September orders were issued that strict respect for
all rules of neutrality and compliance with all agreements of
international law which were generally recognized were to be observed.
My Lord, that is D-55, Page 139.
THE PRESIDENT: In the British document book?
COL. PHILLIMORE: In the Defense document book—Dönitz-55.
And then, on 28 September, a warning was sent to neutrals to avoid
suspicious conduct, changing course, zig-zagging, and so on. That is
Dönitz-61, at Page 150. On 19 October that warning was repeated and
neutrals were advised to refuse convoy escort. That is Dönitz-62, at
Page 153. On 22 October there was a repetition of the warning, that is
Dönitz-62, Page 162; and on 24 November the neutrals were told that the
safety of their ships in waters around the British Isles and in the
vicinity of the French coast could no longer be taken for granted. That
is Dönitz-73, at Page 206; and then from 6 January onwards, certain
zones were declared dangerous zones. That is right, is it not?
WAGNER: No. On 24 November a general warning was issued that the entire
United States fighting zone was to be considered dangerous. The specific
zones which since January were used as operational zones were not made
public, since they came within the scope of the first warning and served
only for internal use within the Navy.
COL. PHILLIMORE: That is the point I want to be clear about. The zones
that you declared from 6 January onwards were not announced. Is that the
point?
WAGNER: Yes, the neutrals were warned on 24 November that all of those
zones which had been specifically declared as operational zones since
January would be dangerous for shipping.
COL. PHILLIMORE: But when you fixed the specific zones from 6 January
onwards, no further specific warning was given. Is that the case?
WAGNER: That is correct. After the general warning, we issued no further
specific warnings about parts of this zone.
COL. PHILLIMORE: Now, you are not suggesting, are you, that by these
warnings and by this declaration of an enormous danger zone, you were
entitled to sink neutral shipping without warning?
WAGNER: Yes. I am of the opinion that in this zone which we, as well as
the United States of America before us, regarded as dangerous for
shipping it was no longer necessary to show consideration to neutrals.
COL. PHILLIMORE: Do you mean to say that from 24 November onwards every
neutral government was given fair warning that its ships would be sunk
without warning if they were anywhere in that zone?
WAGNER: What I want to say is that on 24 November all the neutral
countries were notified officially that the entire United States of
America zone was to be considered as dangerous and that the German Reich
could assume no responsibility for losses in combat in this zone.
COL. PHILLIMORE: That is quite a different case. Do not let us have any
mistake about this. Are you saying that by that warning you were
entitled to sink neutral ships anywhere in that zone without warning,
sink on sight?
WAGNER: I did not quite catch the last few words.
COL. PHILLIMORE: Are you suggesting that you were entitled to sink at
sight neutral shipping anywhere in that zone, as from 24 November?
WAGNER: I am of the opinion that we were justified from that period of
time onwards in having no special consideration for neutral shipping. If
we had made exceptions in our orders to our U-boats, it would have meant
in every case that they could not have sunk enemy ships without warning.
COL. PHILLIMORE: It is not a question of any special consideration. Do
you say that you became entitled to sink at sight any neutral ship, or
sink it deliberately, whether you recognized it as neutral or not?
THE PRESIDENT: Surely you can answer that question “yes” or “no.”
WAGNER: Yes, I am of that opinion.
COL. PHILLIMORE: Will you tell me how that squares with the submarine
rules?
WAGNER: I do not feel competent to give a legal explanation of these
questions because that is a matter of international law.
COL. PHILLIMORE: At any rate, that is what you proceeded to do, is it
not? You proceeded to sink neutral ships at sight and without warning
anywhere in that zone?
WAGNER: Yes; not just anywhere in this zone, but in the operational
zones stipulated by us neutral ships were...
COL. PHILLIMORE: But wherever you could—wherever you could?
WAGNER: In the operational zones stipulated by us we sank neutral ships
without warning, for we were of the opinion that in this case we were
concerned with secured zones near the enemy coast which could no longer
be considered the open sea.
COL. PHILLIMORE: And that is what you desired to do at the very start of
the war, was it not? That is what you decided to do?
WAGNER: From the beginning of the war we decided to adhere strictly to
the London Agreement.
COL. PHILLIMORE: Would you look at the document which was put in
yesterday? My Lord, it is D-851. It is put in as GB-451. It is a
memorandum of 3 September.
THE PRESIDENT: Where is it?
COL. PHILLIMORE: My Lord, it was the only new document that Sir David
Maxwell-Fyfe put in in cross-examination.
[_Turning to the witness._] Would you look at the third paragraph:
“The Navy has arrived at the conclusion that the maximum damage
to England can be achieved with the forces available only if the
U-boats are permitted an unrestricted use of arms without
warning against enemy and neutral shipping in the prohibited
area indicated on the enclosed map.”
Do you still say that you did not intend from the start of the war to
sink neutral shipping without warning as soon as you could get Hitler to
agree to let you do so? Do you still say that?
WAGNER: Yes, absolutely. In this document, in the first paragraph, it
says:
“In the attached documents sent to the Navy by the OKW the
question of unrestricted U-boat warfare against England is
discussed.”