SIR DAVID MAXWELL-FYFE: If Dr. Sauter would allow me, I should like to
say that, with regard to these applications, there is so little between
the applications and the views of the Prosecution that it might shorten
matters if I were to indicate the views of the Prosecution, and then Dr.
Sauter could add anything he has to say. I could be extremely short, but
I do not want to forestall Dr. Sauter if he has any objection.
THE PRESIDENT: Would that meet with your view, Dr. Sauter?
DR. FRITZ SAUTER (Counsel for Defendant Funk): That I present my
applications now and that the Prosecution then reply?
THE PRESIDENT: I think Sir David meant that he should first indicate any
objections which he has, and then you could explain your view.
DR. SAUTER: I quite agree, My Lord.
SIR DAVID MAXWELL-FYFE: If the Tribunal please, the witnesses fall into
four groups. The first group is three witnesses from the Ministry of
Economics, Numbers 1, 2, and 10 on the list. As I understand Dr. Sauter,
he wishes to call Number 2, Herr Hayler, as an oral witness, and to have
affidavits from the witnesses Landfried, Number 1, and Kallus, Number
10. The Prosecution have no objection to this course, except that with
regard to the witness Landfried they may have some observation to make
on the form of the interrogatories, which could no doubt be settled with
Dr. Sauter, and then put to the Tribunal for their approval. Secondly,
they want to reserve the right to apply for further
cross-interrogatories. Apart from that, which I submit are really minor
points, they agree with that suggestion.
The second group is two witnesses from the Reichsbank, Number 5, Herr
Puhl, and Number 7, Dr. August Schwedler. Again, as I understand Dr.
Sauter, he wants an affidavit in the form of answers to questions. The
Prosecution have no objection to that, only again they reserve the right
to apply for cross-interrogatories, if necessary; if the answers take a
certain form, they might have to apply to the Court that the witness be
brought for cross-examination. They simply want to reserve that right,
but, of course, they cannot take up their position until they have seen
the form of the answers.
Then, the third group consists of one witness, who is Dr. Lammers, who
has been called by most of the defendants orally, and there is no
objection to that, and the Prosecution suggest that Dr. Sauter will put
his questions to Dr. Lammers when he is called by the other defendants.
Then, the fourth group is a general one. There is Herr Oeser, who is an
editor, Number 6; Herr Amann, Number 8; and Number 9, Herr Roesen; and
lastly, Number 4, Frau Funk. As I understand it, with regard to all
these witnesses, Dr. Sauter wished either an interrogatory or an
affidavit. The Prosecution make no objection to that, with the same
understanding that they reserve their rights to put
cross-interrogatories or to ask the Tribunal to summon any of them as
witnesses if any point emerges. Subject to the reservation of these
points, there is nothing between us, because the result is, if I have
understood it all correctly, that Dr. Sauter is asking for two oral
witnesses and eight sets of interrogatories.
THE PRESIDENT: Sir David, don’t you draw any distinction between an
affidavit and interrogatories?
SIR DAVID MAXWELL-FYFE: Well, I do, certainly. But, My Lord, Dr. Sauter
has shown in the case of most of the witnesses the interrogatories which
he is putting—apart from Dr. Lammers, who, of course, will be dealt
with orally, because he is being produced as a witness. I understand
that when Dr. Sauter says “affidavit” he means an affidavit in the form
of answers to questions, such as those he has set out in the appendix.
THE PRESIDENT: Well, then, Sir David, so far as the Prosecution are
concerned, they would take the line that you have suggested, meaning by
an affidavit, interrogatories and, if necessary, cross-interrogatories?
SIR DAVID MAXWELL-FYFE: That is so.
THE PRESIDENT: Very well. Yes, Dr. Sauter?
DR. SAUTER: Mr. President, I am in agreement with the suggestions of the
Prosecution as to the individual applications. As to the wording of the
individual interrogatories I shall come to an agreement with the
Prosecution.
THE PRESIDENT: Just one moment. Dr. Sauter, perhaps you could tell us,
dealing, for instance, with Number 6—you say there, “I have in hand an
affirmation from this witness with a supplement thereto.” Does that mean
answers to interrogatories, or does that mean an affidavit, a statement?
Have you got the passage?
DR. SAUTER: Yes, I have an affidavit from this witness, Albert Oeser,
Number 6, and this affidavit will be submitted to the Tribunal, together
with my document book. I am already in possession of this affidavit.
THE PRESIDENT: Well, Sir David, that is not quite the same as
interrogatories. I do not know whether you have seen the affidavit. I
mean, it may be that at a later stage you would want to cross-examine or
to put cross-interrogatories to that witness.
SIR DAVID MAXWELL-FYFE: Yes, that would be so, Your Honor. I must
reserve the right, until I have seen the affidavit, to do that. The ones
that are attached to Dr. Sauter’s application are all in the
interrogatory form, but where the document is in the form of a
statement, the Prosecution would have to reserve these rights. Really,
one cannot make any declaration until one has seen that.
DR. SAUTER: Mr. President, before I put in evidence this affidavit by
the witness Oeser, Number 6, I shall, of course, pass it to the
Prosecution so that they have ample time to decide as to whether they
wish to cross-examine this witness. This goes without saying.
THE PRESIDENT: Where is that particular witness? Where is he?
DR. SAUTER: He is witness Number 6, My Lord.
THE PRESIDENT: Yes, but where is the man? Where is he at the present
moment? Is he in Nuremberg or where?
DR. SAUTER: Witness Oeser is at Schramberg in the Black Forest, in
Baden, near the Rhine. It is some distance from Nuremberg. Moreover, Mr.
President, the points to which the witness is to testify are
comparatively so insignificant that it would hardly be worth while to
bring the witness himself to Nuremberg. I personally do not know the
witness, but an acquaintance of mine mentioned him to me as a person who
could give favorable information on the conduct of the Defendant Funk.
Thus we got to know about witness Oeser and obtained from him an
affidavit which I shall pass to the Prosecution in good time.
SIR DAVID MAXWELL-FYFE: With regard to the documents, My Lord, the first
one is a biography of the Defendant Funk. The extracts were submitted as
part of the Prosecution’s case. I ask that Dr. Sauter intimate what
passages he desires to use, and then the Prosecution can make such
objections or comments as may or may not be necessary.
The second request is, I think, the same as we had yesterday, namely for
the record of the Dachau trial and of the evidence of the witness Dr.
Blaha. The American prosecutors will be pleased to show Dr. Sauter the
report that they have of Dr. Blaha’s evidence at that trial.
With regard to the speeches of the Defendant Funk, there again, if Dr.
Sauter will intimate what they are and what he intends to use, the
Prosecution will consider them. _Prima facie_ they would be a relevant
matter.
And with regard to Number 4, the copy of the newspaper with a report of
the defendant’s speech, that again would _prima facie_ be relevant, and
we shall look into it. It is very unlikely that there would be any
objection, but we shall look into it; and, if necessary, deal with it
when Dr. Sauter makes his presentation.
THE PRESIDENT: Has Dr. Sauter the newspaper?
DR. SAUTER: Mr. President, the newspaper mentioned under Number 4, and
also the speeches mentioned under Number 3, are now in my possession. I
shall not use the entire text of the speeches in my brief.
THE PRESIDENT: Then you would be prepared to indicate to the Prosecution
the passages in your Document 1 and the passages in 3 and 4, which you
wanted to use, so that they can have them translated?
DR. SAUTER: Yes, My Lord. I shall include in the Document Book from the
book mentioned under Number 1 only a few—I think two or three—pages
and from the speeches and newspaper articles only those passages which I
am going to use, and submit these to the Prosecution in time for
translation. As to the record of the Dachau trial, this request is
settled by what the Prosecution stated yesterday regarding the Defendant
Frick. I believe the Dachau stenographic report is already available. I
shall peruse it, so that this matter is settled.
THE PRESIDENT: Very well. Then I call upon counsel for Dr. Schacht.
DR. DIX: I am very pleased to be able to tell the Tribunal that I
believe I am in agreement with Sir David as to the compass of evidence
to be submitted by me, especially as to those applications which I shall
either withdraw or restrict. In order to facilitate matters, may I
therefore first tell the Tribunal which applications on my list I
withdraw and which ones I restrict, so that eventually those will be
left which I maintain. I withdraw application Number 5 for the
examination of Dr. Diels. I heard yesterday that Dr. Diels has been
called for as witness in another application. Should the Tribunal grant
yesterday’s application and order Diels to appear, then I should like to
reserve the right to examine. I myself shall, however, not apply for
him.
Then I should like to call your attention to applications Number 6,
Colonel Gronau; Number 7, Herr Von Scherpenberg; Number 8, State
Secretary Carl Schmid; Number 9, Consul General Dr. Schniewind; Number
10, General Thomas of the armament staff; Number 11, Dr. Walter Asmus;
Number 12, Dr. Franz Reuter; and Number 13, Dr. Berckemeyer. For all
these witnesses I am willing to accept an affidavit. I quite realize
that I have to pass affidavits to the Prosecution and that the latter
have the right to apply for these witnesses to be summoned for
cross-examination.
The following witnesses, therefore, remain to be called before the
Tribunal: Witness Number 1, Dr. Gisevius; witness Number 2, Frau
Strünck; witness Number 3, the former Reichsbank Director, Vocke; and
witness Number 4, the former Reichsbank Director, Ernst Huelse. In
respect to these witnesses, I must insist on my application for their
personal appearance. Schacht’s defense cannot dispense with the oral
examination of these witnesses. May I put forward my reasons in each
case. The testimony of these witnesses is in no way cumulative. One
witness knows things the other does not. Vocke and Huelse were Schacht’s
closest collaborators at the Reichsbank and at the International Bank at
Basel. They know of events and developments which Schacht may not be
able to recall in detail. The oral examination of these witnesses cannot
therefore be replaced by interrogatories because he is no longer
sufficiently versed to draw up the relevant questions. These witnesses
must be informed of the theme of the evidence and be given the
opportunity to make a comprehensive statement.
The same, namely that they still remember events in detail which Schacht
no longer recollects, applies to Frau Strünck and Gisevius, who can
testify particularly as to the plans for the various attempts on
Hitler’s life from 1938 to 1944.
This is all I have to say regarding my application for these witnesses.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Dix and
Professor Kraus were good enough to indicate to me and my colleagues
yesterday their proposals which Dr. Dix suggested be put before the
Tribunal. The Prosecution felt that by limiting all the witnesses to the
first point and Point 2, Dr. Dix was making a reasonable suggestion. The
Prosecution, of course, reserve all rights as to the relevancy of the
various points set out as to these witnesses, but they felt that that,
as I say, was a reasonable suggestion. On Numbers 3 and 4 it means that
the Defense are limiting all the witnesses, on the general economic
course of conduct of the defendant, and again the Prosecution felt that
that was a reasonable suggestion. With regard to the others, the
Prosecution must, as I have said—and Dr. Dix agreed—reserve all rights
by way of cross-interrogatories or of asking that the witness should be
summoned, but the Prosecution felt that they could be in a position
really to decide what their rights and proper course should be only when
they had seen the affidavits that were put in. That is the reasoning of
the Prosecution in the matter.
THE PRESIDENT: As to documents, Dr. Dix?
DR. DIX: Regarding the documents, I should like to make it clear that
wherever in my list I have referred to books, published speeches, and
such like, especially under Number 2, this does not mean that I intend
to present to the Tribunal long extracts from these books. Only short
quotations will be made and these quotations will be. . .
[_The proceedings were interrupted by technical difficulties in the
interpreting system._]
THE PRESIDENT: The best course would be for us to adjourn now and then
this mechanical defect will be remedied.
[_A recess was taken._]
THE PRESIDENT: Just one moment, Dr. Dix. I have one or two announcements
to make. In the first place, the application which has been made on
behalf of the defendants for a separate trial of the organizations named
under Articles 9 and 10 of the Charter is denied.
Secondly, with reference to the application made on behalf of counsel
for the Defendant Bormann, the Tribunal have considered the application
dated February 23, 1946, by Dr. Bergold, counsel for the Defendant
Bormann, in which he asks that Bormann’s case should be heard last, at
the end of the cases of all the other defendants. The Tribunal have
decided to grant this application.
The Tribunal also rule that the hearing of Dr. Bergold’s applications on
behalf of Bormann for witnesses and documents, in accordance with
Article 24(d), shall not take place at the present time, when the
Tribunal are hearing the applications of all the other defendants, but
at a later date to be fixed within the next three weeks.
Thirdly, with reference to the business of the Tribunal, the Tribunal
will sit in closed session after the conclusion of the applications on
behalf of the four defendants who are being heard today. Tomorrow the
Tribunal will continue the applications on behalf of the next four
defendants, and on Thursday the Tribunal will hear the case on behalf of
the Defendant Göring.
Yes, Dr. Dix.
DR. DIX: Before the recess, I was about to tell the Tribunal, as to
Number 2 of the list of documents, that in my presentation I would
confine myself to really important and quite short quotations, after
having made them available to the Prosecution in our document book. This
disposes of Number 2.
Number 1 consists of extracts from copies already submitted by the
Prosecution. I shall give but one example, namely, the report by
Ambassador Bullitt to the Secretary of State in Washington. The
Prosecution presented the last part of this report, in which they were
interested, whereas I wish to reserve the right to present the first
part, which deals with Schacht’s peaceful intentions and his lack of
political influence on Hitler, and which is therefore of importance to
the Defense.
I now turn, to Number 3, Subparagraph (a), which is the Schacht
memorandum to Hitler of 3 May 1935 concerning the legal rights of Jews,
dissolution of the Gestapo, _et cetera_.
May I again ask the Prosecution to see to it as far as possible that
this document, which has not been introduced so far, be procured
together with Document 1168-PS, which at the time of Schacht’s
interrogation by Colonel Gurfein was produced. As I heard yesterday, the
document has not yet been found, but perhaps Colonel Gurfein, who has
already gone back, can assist us in this matter. These two documents are
very important, as they constitute parts of a Schacht memorandum which
can be understood and appreciated only in its entirety.
Furthermore, here is a letter addressed by Schacht to General Field
Marshal Von Blomberg. It deals with restriction of armaments, et cetera,
and its relevancy is, I think, obvious.
Still a word about Subparagraph (c). This is a Hitler memorandum of
August 1936 regarding the Four Year Plan. This memorandum, in which
Hitler reproaches Schacht most bitterly, even with sabotage, is of
decisive importance to us. Contrary to what appears in the list, I am
not in a position to produce a reliable copy of this memorandum, which
under certain circumstances could replace the original. What I have is
an extract, which in no way can be considered reliable and thus cannot
be submitted to the Tribunal as evidence. In order to ascertain the
exact contents of this memorandum, we must have the original. To my
knowledge the original was among the files of the Dustbin Camp in the
Taunus, and again I ask the Prosecution to assist in procuring it.
Then there is the letter written by Schacht to Göring in November 1942.
Göring’s answer was to dismiss Schacht for defeatism, or rather in
consequence of this letter Schacht was dismissed for defeatism. A
further consequence of this letter was that Göring excluded him from the
Prussian State Council. A copy of this letter was last seen by Schacht
in the possession of one Von Schlaberndorff, who worked with General
Donovan, but who is no longer here. Where Schlaberndorff is now, I do
not know. May I ask the Prosecution to assist us also in this matter.
Furthermore, there is a telegram of January 1943 from Göring to Schacht,
excluding him from the State Council.
As to Subparagraph (f), I have to ask the Russian Prosecution to assist
us in procuring this item. It is made up of miscellaneous notes, records
of Schacht’s reflections, written soliloquies and letters, which were
kept in a box at Schacht’s country seat, Guehlen, near Lindow, Mark
Brandenburg—that is in the Russian occupation zone. According to
information received, this box has been confiscated by Soviet troops. I
should be very much obliged to the Russian Delegation if they would do
their utmost to procure the box with its contents.
The documents under Number 4 are already in our possession. I do not
think it necessary to enumerate and comment on them here; they will be
included in our document book and the Prosecution will then have the
opportunity of making observations on their relevancy. That is all I
have to say now regarding the documents.
SIR DAVID MAXWELL-FYFE: With the approval of the Tribunal I shall
confine the very few remarks I have to make to Paragraph 3 of Dr. Dix’
memorandum. With regard to the document for which Dr. Dix has made a
request, it is not yet procured. I have asked my colleagues to make
inquiries, but at the moment they cannot find certain of these
documents, although a search has been made. For example, (a), the note
handed to Hitler on the same day, is Document Number 1168-PS. Mr. Dodd
tells me that an exhaustive search was made by the American Delegation
two months ago, and they are convinced that that document is not in
their possession, and the same applies to the Soviet Delegation
regarding (e).
THE PRESIDENT: Who was the interrogator, Judge Gurfein?
SIR DAVID MAXWELL-FYFE: Colonel Gurfein is the one who started the
American Prosecution, who conducted the interrogations at the earlier
stages.
THE PRESIDENT: Where is he now?
SIR DAVID MAXWELL-FYFE: New York. That point has been borne in mind in
the usual interrogations. If the document is used, it is very carefully
referred to, and the American Delegation informs me that they took that
line of search, and they had that in mind, and that they have not been
able to find it. Similarly, in regard to Number (e), my Soviet
colleagues told me that they have no trace of the document there
mentioned.
THE PRESIDENT: You mean there is no reference, to that document in the
interrogation conducted by Judge Gurfein?
SIR DAVID MAXWELL-FYFE: That is so, yes. They are unable to find any
reference, I am told, going through the interrogation.
THE PRESIDENT: Have you any knowledge of any communication that has been
sent to Judge Gurfein?
SIR DAVID MAXWELL-FYFE: I am not sure; he had gone when the search was
made two months ago. I am sure that the American Delegation will look
into that. What I was going to say in regard to Number (e) was that my
Soviet colleagues informed me that no trace of this document has been
discovered by the Russian authorities. With regard to the others, the
Prosecution would like some further time to make further inquiries, and
then they will report to Dr. Dix and to the General Secretary if
anything can be done. With regard to the other documents, the ones which
are referred to by Dr. Dix, and the many extracts, his plan is one which
entirely suits the Prosecution if it suits the Tribunal.
THE PRESIDENT: I call on Counsel for the Defendant Dönitz.
FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): I should
like to call the following witnesses: First, Judge Admiral Kurt
Eckhardt. He was expert on international law in the Naval War Staff. He
is to testify that the rules of international law were considered when
the German U-boat war policy was laid down. This testimony is relevant
in view of the documents submitted by the Prosecution, according to
which the U-boat war was conducted without regard for international law.
SIR DAVID MAXWELL-FYFE: Again it might help Dr. Kranzbühler and the
Tribunal, if I indicated the view of the Prosecution. They consider that
Number 1, Admiral Eckhardt, and Number 2, Rear Admiral Wagner, and
Number 4, Rear Admiral Godt, should not be the subject of objections;
they do not make objections to these three. With regard to Commander
Hessler, Number 3, it seems to the Prosecution that he is really
cumulative to Rear Admiral Godt, as he ceased to be a U-boat commander
at the end of 1941, before most of the material orders were issued. That
is really the only point; as I said, we raise no objections to the other
three. With regard to the second portion, the interrogatories, the
interrogatory of Mr. Messersmith has been granted. With regard to the
next three, Vice Admiral Kreisch, Captain Roesing, and Commander Suhren,
these were granted on 14 February, and a slight error crept into the
Prosecution’s action which was purely mechanical. The Prosecution
replied that they did not object in principle and did not wish to file
cross-interrogatories; they objected to two of the questions to be
addressed to Commander Suhren, Numbers 7 and 8. It was intended that the
same objection to the same questions should be made with regard to the
other two. It appears that the document only related to Commander
Suhren, but in general there is no objection; with regard to Number 5,
that has been done.
THE PRESIDENT: Well, Sir David, have those mistakes been rectified, in
reference to 2 and 3?
SIR DAVID MAXWELL-FYFE: I am not quite sure. I want to mention that same
objection, to narrow the issues of this objection to two of the
interrogatories, and in connection with all three sets of
interrogatories, I do not think this has been before the Tribunal so far
as I know.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: And with regard to Captain Eck, that evidence
has been taken on commission, and so there is no objection. Finally,
with regard to Admiral Nimitz, the Prosecution do object to that
application; that is a new application, and if the Tribunal will look at
the grounds, they are that the United States submarines attacked all
ships apart from the United States and Allied vessels without warning,
and that the United States submarines attacked all Japanese ships
without warning, at the latest from the time when it could be surmised
that the Japanese ship would resist being taken as a prize. And third,
that the United States submarines did not assist shipwrecked people in
such waters where the submarine would have endangered herself through
such assistance. The reason which Dr. Kranzbühler gives is that this
testimony proves that the United States Admiralty made the same
strategical and legal considerations in carrying out its submarine
warfare. In the submission of the Prosecution this is irrelevant. That
they followed the same legal considerations might have been done as
retaliation, and if so, the question whether the United States broke the
laws and usages of war is quite irrelevant; as the question before the
Tribunal is whether the German High Command broke the laws and usages of
war, it really raises the old problem of evidence directed to _tu
quoque_, an argument which this Prosecution has always submitted
throughout this Trial is irrelevant.
FLOTTENRICHTER KRANZBÜHLER: I shall confine myself to the points to
which Sir David has raised objections.
First of all, witness Number 3, Commander Hessler. I do not consider his
testimony to be cumulative. He is to testify as to when Order 154, which
has been submitted by the Prosecution, was abrogated. This testimony is
important because the Prosecution contend that the order of September
1942 need not have been issued at all but that it would have been
sufficient to refer to the old Order 154. To counter this contention
Hessler is to testify that Order 154 was no longer in force at that
time.
Moreover, Captain Hessler, being on the staff of the U-boat commanders
from 1941 on, instructed nearly all U-boat commanders putting to sea
about the orders issued, particularly the orders regarding treatment of
shipwrecked persons. For these reasons, his testimony is, in my opinion,
indispensable as a check on the statement of witness Moehle.
I now turn to the interrogatories for Numbers 2, 3, and 4: Admiral
Kreisch, Captain Roesing, and Commander Suhren. I think that the
objections of the Prosecution to two of the questions asked in my
interrogatory can be dealt with only after these questions have been
answered. I heard only today that objections would be raised, but I do
not yet know on what grounds.
THE PRESIDENT: Have the Tribunal got the interrogatories and the
objections of the Prosecution to Number 4?
FLOTTENRICHTER KRANZBÜHLER: The Tribunal have received only the
interrogatories from me.
THE PRESIDENT: Have the Prosecution given us their objection to one
question? This, I understand, was an objection that was made to the
interrogatories put to Suhren, which should have been an objection to a
particular question on the other two as well.
SIR DAVID MAXWELL-FYFE: Yes. It is very short. I will indicate it, if
Dr. Kranzbühler will allow me.
The two questions were: “Is it known to you that in September 1942
German submarines saved shipwrecked people after torpedoing the British
steamer _Laconia_ and while doing so were bombed by an Allied plane?”
Number 8, “Do you know whether this incident was the reason for the
commander of the U-boat fleets issuing an order by which assistance at
the risk of endangering one’s own boat was prohibited, and for the
declaration that this was not at variance with the laws of sea warfare?”
The objections—I will read them out: “Question 7. Objection is entered
on the ground that this question is unnecessary and the facts are
admitted.”
“Question 8: Objection entered. It is not seen how the witness could
possibly know the reason for the orders from the Defendant Dönitz.”
These are the objections that were made.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBÜHLER: May I say something to this? I think that
the officers mentioned can testify as to the reasons for the orders
received by them from the commander of the U-boat fleet, because the
events which led to the order of September 1942 were generally known
among the U-boat commanders, and U-boat commanders in the various
theaters of war may possibly have picked up the wireless messages sent
to the U-boats concerned with the _Laconia_ incident. That is all.
I now turn to the application regarding the interrogatory to be put to
Admiral Nimitz. The stand taken by the Prosecution differs entirely from
the conception on which my application is based. I in no way wish to
prove or even to maintain that the American Admiralty in its U-boat
warfare against Japan broke international law. On the contrary, I am of
the opinion that it acted strictly in accordance with international law.
In the United States’ sea war against Japan, the same question arises as
in Germany’s sea war against England, namely the scope and
interpretation of the London Submarine Agreement of 1930. The United
States and Japan were also signatories to this agreement.
My point is that, because of the order to merchant vessels to offer
resistance, the London Agreement is no longer applicable to such
merchantmen; further, that it was not applicable in declared operational
zones in which a general warning had been given to all vessels, thus
making an individual warning unnecessary before the attack.
Through the interrogatory to Admiral Nimitz I want to establish that the
American Admiralty in practice interpreted the London Agreement in
exactly the same way as the German Admiralty, and thus prove that the
German conduct of sea warfare was perfectly legal. The same applies to
the treatment of shipwrecked persons in waters where the U-boat would
endanger herself by rescue measures.
THE PRESIDENT: Yes, Dr. Kranzbühler.
FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents.
THE PRESIDENT: If you are departing from Admiral Nimitz I should like to
ask a question of Sir David.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.
THE PRESIDENT: Sir David, I understood you to submit that these
questions to Admiral Nimitz were entirely irrelevant?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: Would it make any difference to your submission whether
the German Navy had attacked merchant ships without warning in the first
instance in the beginning of their war against England?
SIR DAVID MAXWELL-FYFE: Well, that of course would be a clearer breach
of the treaty, as, at that time, there was no question of armament, so
far as I am aware; and there was certainly no question that the German
submarines thought that they were attacking armed vessels which were
really ships of war. Then, of course, one comes to the position which
the Prosecution developed in evidence, that, the German Navy having
indulged in the beginning in that form of submarine warfare, the
position changed, and armament had to be installed in British ships. In
my submission it would make a difference even if one takes the argument
as Dr. Kranzbühler has put it now; he is saying that he is not alleging
breaches of the laws and usages of war, but is relying on his
interpretation of the London Agreement, that merchant ships that were
armed could be attacked. It really becomes a very difficult matter if
one is to construe these treaties by a sort of general investigation of
the interpretation by various commanders. Within the point that Your
Lordship put to me there is that very clear point which appears in our
documents that the arming of merchant ships was the result of the
attacks without warning which took place in the first months of the war.
THE PRESIDENT: But would you say that these questions to Admiral Nimitz
are irrelevant because the United States came into the war in December
1941 when the sea warfare between Germany and England had developed to
that stage, when attacks were being made without warning?
SIR DAVID MAXWELL-FYFE: That is so, My Lord. That is what I was saying.
I am very grateful to Your Lordship for clarifying the argument that I
wanted to make.
THE PRESIDENT: Is that clear to you, Dr. Kranzbühler? The argument which
I understand Sir David is putting forward with reference to these
interrogatories is that they are truly irrelevant because of the date at
which the United States came into the war; a date when the sea war
between England and Germany had, for reasons which must be investigated,
arrived at the stage that submarines were attacking merchant vessels
without warning, and merchant vessels were defending themselves against
those attacks.
FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President. It is, however, my
opinion that the conditions which developed in the sea war between
Germany and England do not necessarily have a bearing on the measures
applied in the sea war between the United States and Japan, as here an
entirely different theater of war was involved, in which German forces
did not operate. In my opinion, the directives for sea warfare in the
East Asia theater of war should be based on the conditions prevailing
there and not be derived from experiences made in the European theater
of war.
THE PRESIDENT: Then the Tribunal will consider these arguments.
THE TRIBUNAL (Mr. Biddle): How can what any navy did show the proper
construction of a law? It may show what a particular admiral thought
about it, but how are we interested in knowing what one admiral or
another admiral thought about the law? Isn’t that for us to decide? How
is that any evidence? Isn’t that your point, Sir David?
SIR DAVID MAXWELL-FYFE: Yes.
THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the
meaning of a law?
FLOTTENRICHTER KRANZBÜHLER: I do not think that the principles for the
conduct of sea war originate from one admiral, but that in view of their
far-reaching implications they have become a matter for the government.
It is recognized in international law that it springs not only from
treaties, but also from acts of governments. May I give as an example
that Mr. Justice Jackson in his first report to President Truman
specially emphasized that international law is developed by acts of
governments. Consequently, if the London Naval Agreement of 1930 did not
originally imply that merchant vessels which had orders to resist were
excluded, then acts to this effect on the part of the governments of all
nations would have been instrumental in creating new international law
to this end. I am therefore of the opinion that the attitude taken in
this question by the United States as one of the greatest sea powers is
decisive as to the interpretation of the London Agreement and hence as
to the legality of Germany’s conduct.
THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is
ambiguous?
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE TRIBUNAL (Mr. Biddle): What words in the London Agreement are
ambiguous?
FLOTTENRICHTER KRANZBÜHLER: The term “merchant vessels.”
THE TRIBUNAL (Mr. Biddle): You have not got the citation there, have
you?
FLOTTENRICHTER KRANZBÜHLER: Which is it?
THE TRIBUNAL (Mr. Biddle): The phrase in the London Agreement which you
claim is ambiguous.
FLOTTENRICHTER KRANZBÜHLER: I have not got it here, but I can give a
fairly accurate quotation. It says that submarines are subject to the
same rules as surface vessels in their conduct towards merchant vessels.
I shall later submit proof that the term “merchant vessel,” even at the
Washington Conference of 1922, was considered ambiguous, and that also
in books on international law published later it had repeatedly been
stressed that this term is ambiguous.
THE TRIBUNAL (Mr. Biddle): Dr. Kranzbühler, you want Admiral Nimitz to
give us his opinion of his construction of the treaty, do you not? Isn’t
that the purpose of these interrogatories?
FLOTTENRICHTER KRANZBÜHLER: No, I do not want to hear Admiral Nimitz’
opinion, but the policy pursued by the United States in its sea war
against Japan.
THE PRESIDENT: The Tribunal will consider the arguments you have
addressed to them, Dr. Kranzbühler.
FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents. As I have just
heard from Sir David, there are no objections on the part of the
Prosecution. I do not know whether I need give my reasons for submitting
the individual documents.
First of all, there are the war diaries and the standing orders of the
Admiralty and of the commander of the U-boat fleet. They have already
been admitted, and the Prosecution do not raise any objections.
Under Number 3, I ask for the “British Confidential Fleet Orders” and
“Admiralty Merchant Shipping Instructions” of the British Admiralty to
be produced.
SIR DAVID MAXWELL-FYFE: My Lord, this matter came up before the Tribunal
in closed session on an application from Dr. Kranzbühler. I have not
heard definitely from the British Admiralty whether they agreed to do
this, but I have asked Dr. Kranzbühler if he will leave this matter over
for 10 days in the hope that we may be able to meet him. If Dr.
Kranzbühler will not press it for 10 days, I shall, of course, let him
know as soon as I have any definite information.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBÜHLER: I agree to that. Under Number 4 I declare my
intention to submit a number of statements and letters I have received
from German U-boat commanders and officers, some of them through the
General Secretariat. These statements contain items from the lecture
given at Gydnia by the Commander-in-Chief of the Navy and referred to by
witness Heisig, including the instruction of U-boat commanders by
witness Moehle and the orders regarding the treatment of shipwrecked
persons. I understand the Prosecution have no objections.
THE PRESIDENT: Have you got any objection, Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, many of these matters may have to be
considered when the actual document is put before us. There are no class
objections to them.
FLOTTENRICHTER KRANZBÜHLER: I should like to mention that I shall
probably have to submit some further documents later, after I have
spoken to Judge Admiral Eckhardt. May I again ask the Tribunal to allow
me as soon as possible to call this witness, who is particularly
important for the defense of the methods employed in U-boat warfare.
THE PRESIDENT: Yes, I think the Tribunal would grant that, subject, of
course, to there being no delay regarding further applications.
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE PRESIDENT: The Tribunal will now adjourn.
[_The Tribunal adjourned until 6 March 1946 at 1000 hours._]
SEVENTY-FIFTH DAY
Wednesday, 6 March 1946
_Morning Session_
THE PRESIDENT: I desire to announce a slight change in the order of
business.
Dr. Stahmer has submitted a motion in writing, stating that he desired a
little more time in the preparation of his documents and for other
reasons would be grateful if the case of the Defendant Göring did not
come on on Thursday, as announced.
The Tribunal realizes that the case of the first defendant to be heard
may present some difficulties in getting the documents translated in
time. As the Tribunal has announced that they would continue the hearing
of the applications for witnesses until they are all completed, they
will adhere to this decision. It is anticipated that this will give Dr.
Stahmer one day more, but at the conclusion of the hearing of the
applications for witnesses the case of the Defendant Göring will come on
without further delay.
The Tribunal wishes to make it quite clear that no further applications
for delay or postponement on the part of the defendants will be
entertained, save in the most exceptional circumstances.
DR. SIEMERS: For the Defendant Raeder, I should like to apply first for
a witness who will testify to the defendant’s character.
SIR DAVID MAXWELL-FYFE: My Lord, if it would be convenient, I might
first indicate the views of the Prosecution, and then Dr. Siemers can
deal with this point.
The Prosecution has no objection to the following witnesses being called
for oral testimony: Number 3, the retired Minister Severing; Number 5,
Vice Admiral Schulte-Moenting; Number 6 has already been sought for and
not objected to by the Prosecution—a witness for the Defendant Dönitz;
Number 10, Admiral Boehm.
Then, with regard to the following witnesses the Prosecution suggest an
affidavit as the suitable procedure: Number 2, Vice Admiral Lohmann. . .
THE PRESIDENT: Do you mean an affidavit or interrogatories?
SIR DAVID MAXWELL-FYFE: Well, in this case I should prefer an affidavit,
because it is only a history of past events that is involved.
THE PRESIDENT: Very well. Affidavit in which case?
SIR DAVID MAXWELL-FYFE: In the case of Number 2—Lohmann.
Then with regard to Number 4—that is Admiral Albrecht—his evidence
covers the same ground as Number 5. It might be that interrogatories
would be more convenient, but that would be a matter for my friends to
decide.
Then the next, Number 7. That is Dr. Süchting, who is an engineer, and
it is desired to have him speak about the Anglo-German Naval Treaty and
technical questions. The Prosecution suggest an affidavit there, because
apparently it is desired that he speak on technical matters.
Number 8, Field Marshal Von Blomberg, I am told, is still ill. I think
that Dr. Siemers has already submitted questions and has received the
answers. He ought to be dealt with by interrogatories. That is probably
the easiest thing for the Field Marshal and the most suitable.
THE PRESIDENT: Was that not suggested in the case of one of the other
defendants?
SIR DAVID MAXWELL-FYFE: Von Blomberg, yes. I have a note that the
Defense Counsel have submitted questions. I was not quite sure whether
this was Dr. Siemers or another Defense counsel. I think it was Dr.
Nelte, for Keitel.
THE PRESIDENT: I think so, yes. That is Number 8.
SIR DAVID MAXWELL-FYFE: Then the next one, Von Weizsäcker, who was the
Secretary of State at the Foreign Office. He is asked for with regard to
the _Athenia_ case. At the moment I cannot see the point for which the
Defense want this gentleman, but I suggest that if they get an affidavit
from Weizsäcker we should know what he can speak about.
Then the other one is Number 14, Colonel Soltmann. It is desired to give
the results of the interrogation of certain British prisoners of war at
Lillehammer. It would appear that the object was merely to give further
evidence which would be cumulative to the statements in the German
_White Book_, and therefore the Prosecution suggest an affidavit.
There are two witnesses that the Prosecution think are in the border
line between admissibility and affidavits. They are really, in the
submission of the Prosecution, not relevant witnesses, but the Tribunal
might like to consider the question. These are Number 1, a naval
chaplain who really speaks as to the general moral and religious outlook
of the Defendant Raeder. That is, in the submission of the Prosecution,
really irrelevant, and at the most it would be a matter for an
affidavit. The position of the Prosecution is that it is really
irrelevant, but it certainly should not be more than an affidavit, even
if a different view was taken.
The other is Number 16, Admiral Schultze. He speaks as to an interview
with the late Admiral Darlan, and the Prosecution submit that that is
irrelevant; if there are any approaches to relevance—which the
Prosecution have been unable to see—why then it could only be a matter
for an affidavit.
The Prosecution submit that the following are unnecessary: Number
11. . .
THE PRESIDENT: Sir David, dealing with Number 16, would that not be more
suitably dealt with by interrogatories? The Tribunal granted
interrogatories on 9 February in that case, but I suppose they have not
yet been produced.
SIR DAVID MAXWELL-FYFE: Which one was that?
THE PRESIDENT: Number 16.
SIR DAVID MAXWELL-FYFE: Yes. Well, if the Tribunal feel that it is a
matter that should be explored, I agree that interrogatories would be
suitable.
Then, My Lord, the ones that the Prosecution make objection to _in toto_
are:
Number 11, Vice Admiral Bürckner, because he is cumulative to Numbers 5
and 10; Number 12, Commander Schreiber, because on 21 February Dr.
Siemers said that he was willing not to call this witness if Number 5,
Schulte-Moenting, was allowed; Number 13, Lackorn, who is a Norwegian
merchant, who is supposed to speak of the Allied plans, without any
means of knowledge being stated. This witness was temporarily given up
on 21 February; Number 15, Alf Whist, who was Secretary of Commerce in
the Quisling cabinet, as I understand the application. There is no
indication why this witness should be competent to speak on the
reputation of the Defendant Raeder; and Number 16 has been dealt with;
Number 17 is Colonel Goldenberg, who was the interpreter at the meeting
between the Defendant Raeder and Darlan. The Defendant Raeder gives
evidence and Admiral Schultze answers an interrogatory. It will appear
that that interview is well covered.
THE PRESIDENT: Yes, Dr. Siemers?
DR. SIEMERS: I thank Sir David for taking up the individual points, as a
consequence of which I can, as I presume, count on the Tribunal’s
approval of the points to which Sir David has agreed, without giving
specific reasons.
THE PRESIDENT: The Tribunal thinks that the best course would be for you
to go through the ones upon which Sir David has not agreed as to being
called as oral witnesses, and then perhaps it may be necessary to deal
with the ones where he has agreed. I would begin in the order in which
he took them up—2, 4, 7, 8, 9—if that is convenient for you.
In the case of Number 2 he suggested an affidavit.
DR. SIEMERS: Number 2 is the Vice Admiral Lohmann. In this connection I
refer to the last page of my brief, where I have discussed the documents
under “III.” There I have stated that I suggested to the British
Delegation that we come to some agreement as to the figures with regard
to the Treaty of Versailles and the Naval Treaty. The British Delegation
has promised me that such an agreement may be possible and has in the
meantime communicated with the British Admiralty in London on this
matter. If, as I expect, an understanding is reached, I am agreeable to
an affidavit from Vice Admiral Lohmann, for then he is to testify on
only a few points. I ask, therefore, that he be approved for the time
being, and I undertake not to call him if the agreement mentioned is
reached with the Prosecution. If this understanding is not reached, the
proof of some important figures would be very difficult, and I could not
do without Lohmann who is well informed about the figures; otherwise, I
could.
THE PRESIDENT: What do you say about that, Sir David?
SIR DAVID MAXWELL-FYFE: I have circulated Dr. Siemers’ note and request
for agreement to my colleagues, and I have also sent it to the
Admiralty, and I hope that we may be able to give the information and
probably to agree on these matters, but I am waiting to get that
confirmed from the Admiralty in Britain; so I think if we could leave
over the question of this witness until I see if I can get an agreement
which will satisfy Dr. Siemers on the point. . .
THE PRESIDENT: Yes. Then if you cannot make the agreement, probably the
witness would have to be called?
SIR DAVID MAXWELL-FYFE: Yes. I can let Dr. Siemers know whether there is
any controversy on the point, whether I am going to challenge what he
puts forward. If I am going to challenge it, obviously I should not
object to the witness being called.
DR. SIEMERS: Under these circumstances, I shall be satisfied with the
submission of an affidavit. I have written to Vice Admiral Lohmann,
asking him to answer the other brief questions; and regarding the main
points the principles just stated by Sir David will be adhered to.
THE PRESIDENT: Very well.
DR. SIEMERS: Witness Number 4, Admiral Albrecht, was one of the closest
collaborators of Grand Admiral Raeder. From 1926 to 1928 he was Raeder’s
Chief of Staff in Kiel; from 1928 to 1930, chief of the Navy personnel
office of the OKM. From then on he was commanding admiral in Kiel, and
finally Navy Group Commander East in 1939.
I should like to remark in this connection that in this last year he
also joined, upon the suggestion of the Security Group commander, this
organization, and from this point of view also he appears important to
me. Admiral Albrecht has also, as I know, written directly to the
Tribunal for this reason.
Albrecht has known the Defendant Raeder so long that he is well
acquainted with his main ideas and thus orientated on the main charges
of the Indictment. He has known Raeder’s trend of thought since 1928,
that is to say, from the time in which the charges against Raeder have
their beginning. I ask that consideration be given to the tremendous
charges which are brought against Raeder covering a period of 15 years.
I cannot refute all the accusations with one or two witnesses. The
differences among the testimonies are so great that in such a case one
cannot speak of “cumulative.”
Furthermore I ask that note be taken of the fact that so far I have been
unable to talk to Vice Admiral Schulte-Moenting, who has been approved
by the Tribunal and the Prosecution.
The Tribunal has also not yet informed me where Schulte-Moenting is. I
presume that he is in a prisoner-of-war camp in England, but I do not
know whether he will really be at my disposal, and whether I will be
able to talk with him in time.
THE PRESIDENT: You are dealing with Admiral Konrad Albrecht, are you
not? You are dealing with Number 4?
DR. SIEMERS: No; regarding Admiral Albrecht, we know that he is in
Hamburg. I simply pointed out that it would not be cumulative if both
Albrecht and Schulte-Moenting are heard by the Court.
THE PRESIDENT: You see, what Sir David was suggesting was an
interrogatory in the case of Admiral Albrecht and an affidavit in the
case of Admiral Schulte-Moenting.
SIR DAVID MAXWELL-FYFE: I will agree to Admiral Schulte-Moenting’s being
called orally.
THE PRESIDENT: I beg your pardon. I was mixing the numbers. Yes, that is
right, to call the one and have interrogatories from the other. Have you
any objection to that?
DR. SIEMERS: Yes, I request that I be allowed to call both witnesses
because Schulte-Moenting is to testify about a later period and Albrecht
about the earlier period that was immediately subsequent to the
Versailles Treaty. The position of both is entirely different. In
addition, as I have just pointed out, the Tribunal has not yet informed
me whether I can with absolute certainty count on the witness
Schulte-Moenting, whether he has been found, whether it is known where
he is.
THE PRESIDENT: Our information is that Schulte-Moenting has not been
located.
DR. SIEMERS: I have no information as yet.
THE PRESIDENT: One moment. I am not sure that is right. Yes, he has been
located in a prisoner-of-war camp in the United Kingdom. At least I
think so.
Yes, I have a document before me here which shows that he is in a
prisoner-of-war camp in the United Kingdom.
DR. SIEMERS: I thank you very much. I did not know that. Under the
circumstances I am prepared, in regard to Admiral Albrecht, to accept an
affidavit or an interrogatory, provided Schulte-Moenting really appears.
Number 7, Dr. Süchting. In this connection Sir David suggests an
affidavit in order to speed up the Trial. I am satisfied with an
affidavit.
THE PRESIDENT: Yes.
DR. SIEMERS: Again, however, with the one reservation that the matter of
the figures will be clarified between me and the British Prosecution, in
accordance with my letter as already discussed in connection with
Admiral Lohmann, I believe that Sir David is agreeable to this.
THE PRESIDENT: The Tribunal would like to know how you suggest that
these questions of shipbuilding in connection with the German-English
Naval Agreements of 1935 and 1937 are relevant to any charge made here.
DR. SIEMERS: The Defendant Raeder is accused of not having adhered to
the Treaty of Versailles and the Naval Agreement. Such a treaty
violation is mainly a question of the building of ships. Consequently I
must demonstrate what could be built according to the Treaty of
Versailles and the Naval Agreement and what actually was built and what
thoughts and orders the Navy had in this connection. As I said, however,
I shall be satisfied with an affidavit.
THE PRESIDENT: Very well, the Tribunal will consider the arguments on
that.
DR. SIEMERS: Number 8, Field Marshal Von Blomberg. The Prosecution have
suggested an affidavit or an interrogatory. In consideration of Von
Blomberg’s state of health, I am agreeable to this for the sake of
simplicity. Since it does not involve any great number of questions, I
suggest an affidavit.
Number 9, Ambassador Baron Von Weizsäcker. I submitted the application
on 6 February and do not know thus far the position of the Tribunal. At
the time of the _Athenia_ case Weizsäcker was State Secretary in the
Reich Ministry for Foreign Affairs. At that time, in September 1939,
Weizsäcker spoke with the American Ambassador on the subject of the
_Athenia_. Weizsäcker spoke with Hitler and with Raeder. He knows the
details and must be heard on these details. I do not believe that an
affidavit will suffice. First let me remark that I do not know where
Weizsäcker is. But aside from that, the charge which has been made
against the Defendant Raeder in the case of the _Athenia_ is morally so
grave that, although otherwise it might not be such an important point,
I have to put particular stress on this point.
The British Delegation has given particular emphasis to the case of the
_Athenia_ and has made insulting attacks on the defendant in connection
with this case. In the interest of the absolutely irreproachable life of
my client I feel obliged to clarify this case completely. That can only
be done by Weizsäcker.
THE PRESIDENT: Dr. Siemers, as far as the application goes, there is
nothing to show, beyond the position of the suggested witness, that he
knew anything about it at all. Under these circumstances would not
interrogatories be the most appropriate course? You did not show whether
he knew anything about it at all. All you say in your application is
that he was State Secretary in the Reich Ministry for Foreign Affairs.
DR. SIEMERS: I may point out that I stated in my application that the
witness is informed regarding the events connected with the _Athenia_
case.
THE PRESIDENT: You say that he must know on the basis of his position as
State Secretary.
DR. SIEMERS: The American Ambassador approached Weizsäcker immediately
after the _Athenia_ case in order to clarify the case. Thereupon
Weizsäcker spoke with Raeder; however, only after he had already told
the American Ambassador that no German submarine was involved. The
question as to whether a German submarine was involved in the _Athenia_
case was settled only after the return of the German submarine. Prior to
that the Defendant Raeder had not known of it either. The German
submarine returned on 27 September; the sinking was on 3 September.
THE PRESIDENT: Did you state these facts about conversations between the
American Ambassador and State Secretary Weizsäcker in one of your
previous applications?
DR. SIEMERS: Yes, on 6 February I did submit the application, and also
mentioned in general terms the _Athenia_ case. I may add that Weizsäcker
knows also the subsequent occurrences. Weizsäcker knows exactly that the
Navy, and particularly the Defendant Raeder, had nothing, absolutely
nothing to do with the article which the Propaganda Ministry published
in the newspapers. Weizsäcker was just as outraged about this article as
was the Defendant Raeder. But it is precisely this that the Prosecution
charges against Raeder.
THE PRESIDENT: Well, the Tribunal will consider what you say.
DR. SIEMERS: Let me add that I have made a mistake. I just heard that
Weizsäcker is still at the Vatican in Rome; in other words, it is known
where he is.
THE PRESIDENT: Yes.
DR. SIEMERS: Number 14, Colonel Soltmann. As far as I know, Colonel
Soltmann will be requested as a witness also by the Defendant Jodl, and
an affidavit or an interrogatory has already been sent to him. I
therefore concur with Sir David that an affidavit from Soltmann will
suffice, subject to the consent, or the applications of the Defense
Counsel for General Jodl.
THE PRESIDENT: He does not appear to have been located yet.
DR. SIEMERS: Yes—the witness Soltmann? I have given his address in my
application.
THE PRESIDENT: Have you?
DR. SIEMERS: It is Falkenberg near Moosach in Upper Bavaria.
Number 16, Admiral Schultze is in Hamburg, and it is an easy matter to
have him testify personally here in Nuremberg. The Prosecution have
accused the Defendant Raeder of participating in the National Socialist
policy of conquest. This accusation is unfounded. Raeder, both in Norway
and in France, constantly directed his efforts towards bringing about
peace; in other words, not towards the effecting of any final conquest
of the countries. In this Raeder found himself in a strong opposition to
Hitler, and only after much urging did Raeder succeed in enabling
himself to negotiate with Darlan in Paris concerning the possible
conclusion of a peace. I believe that such a positive intervention for a
quick termination of the war with France is important enough, in a trial
like this, to have the witness testify personally. I cannot understand
how Sir David, in view of his accusation, can say that this point is
irrelevant. The Prosecution has constantly declared that the Defendant
Raeder was agitating for war.
THE PRESIDENT: I do not believe that Sir David did say it was
irrelevant. He suggested interrogatories.
DR. SIEMERS: I made a note that Sir David said the witness was
irrelevant, but that he would, as a concession, agree to an affidavit.
THE PRESIDENT: Then I was wrong.
DR. SIEMERS: I simply wanted to make my position clear on the question
as to whether or not this witness is irrelevant. I believe I have shown
that he is relevant.
THE PRESIDENT: You want the witness? You would not agree to an affidavit
or an interrogatory? Is that right?
DR. SIEMERS: I ask the Tribunal to hear Schultze as a witness here in
Nuremberg, because, in my opinion in view of the principles of the
Indictment, it is a vital point that Raeder’s attitude toward the entire
problem is shown by facts prevailing at that time, and not by present
assertions and statements.
I come now to the witness to whom Sir David has objected, witness Number
11, Admiral Bürckner. I asked for him on 31 January. So far I have
received no answer. I asked to be allowed to speak to the witness
Bürckner in order to acquaint myself with the details. The interview is
denied me so long as he has not been approved as a witness. In order to
speak with him therefore I am dependent on his being approved first as a
witness. Should it then prove that this evidence is cumulative, I am
willing to forego the witness. I presume that Sir David is agreeable to
this.
THE PRESIDENT: Sir David, the Tribunal does not quite understand why the
counsel should not have seen this officer who is in prison in Nuremberg,
subject of course to security.
SIR DAVID MAXWELL-FYFE: We have no objection to the counsel’s seeing
Admiral Bürckner. I think up to now the Prosecution have always taken
the view that what Dr. Siemers wanted to see him about was not relevant.
I do not think the Tribunal has ruled on that.
THE PRESIDENT: The view of the Tribunal is that Counsel for the Defense
ought to be in touch with the witnesses before, in order to see whether
they are able to give relevant evidence or not. They cannot give the
evidence or the relevancy of it unless they know what the witness is
going to say.
SIR DAVID MAXWELL-FYFE: No objection will be made, and Dr. Siemers can
make arrangement, as far as the Prosecution are concerned, to see
Admiral Bürckner at the earliest date he likes.
DR. SIEMERS: I am grateful to the Tribunal for clarifying this point.
This point has made the work of the Defense Counsel extremely difficult.
I have been waiting for more than a month to speak to Bürckner. For four
weeks I have not been able to speak to Admiral Wagner for the same
reason. I should like to speak to others also who are in the courthouse
prison. They were all denied me because the Tribunal had not yet
approved them as witnesses. I believe that the point is now clarified.
THE PRESIDENT: Go on, Dr. Siemers.
DR. SIEMERS: It is quite possible that, after speaking with the witness,
I may not call him to the stand, particularly since I hear today that
Schulte-Moenting can be called, and provided that Boehm is approved.
THE PRESIDENT: That who is approved?
DR. SIEMERS: Boehm, Number 10.
THE PRESIDENT: Oh, yes. That was Sir David’s only objection to Number
11, was it not, that it was cumulative to 5 and 10?
DR. SIEMERS: Number 12, Captain Schreiber. Sir David has rightly pointed
out that I have already stated the possibility that I may give up this
witness. This still stands. If the witness Schulte-Moenting and the
witness Boehm actually appear, the witness Schreiber is not necessary.
Number 13, the witness Lackorn, in Leipzig. Before the occupation of
Norway Lackorn was on business in Oslo. He had nothing to do with the
military. It was purely by accident that he learned, in the Hotel
Bristol in Oslo, that the landing of English troops was imminent. This
point is important because one can only judge the defendant’s attitude
toward the Norwegian undertaking if one considers the general situation
of Norway. The general situation of Norway means, however, the relations
of Norway with Germany, England, Sweden, and all the other countries
adjacent to Norway. It is not proper, in such a decisive question, to
state that only a small part is relevant. I am agreed, however, that the
witness is not to be heard here. I have, therefore, while I was waiting
for the decision of the Prosecution, written to the witness in order to
obtain an affidavit. It is therefore agreeable to me if an affidavit
only is submitted here. He need not be approved as a witness.
THE PRESIDENT: Sir David, you did not deal with that aspect of the
matter, with an affidavit.
SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid the view of the
Prosecution is that the story, which apparently started in the bar of a
hotel in Oslo, is not evidence which is really admissible, relevant, or
of any weight in a matter of this kind. That is the view we have taken
throughout.
THE PRESIDENT: Dr. Siemers, it appears from the application which is
before us that you originally made a request for this witness on 19
January 1946, which appears to have been in perfectly general terms, and
that the Tribunal ordered, on 14 February, that you should furnish
supplementary details of the evidence which you wanted to obtain by
calling this witness. Thereupon, on 21 February, you withdrew your
application.
You now submit the application again without giving any details at all,
simply saying that the witness had been in Oslo on business and received
information there of the imminent landing of Allied forces in Norway.
Well, that is a perfectly general statement, just as general as the
original statement. It does not seem to comply with the orders of the
Tribunal at all.
DR. SIEMERS: On 21 February I withdrew my application because of the
basic point of view which I have also presented to the Court.
I have pointed out that, in my opinion, the Defense cannot be expected
to give every single detail, when we have not for three months after we
were consulted had the slightest word, not one word, about a single
witness of the Prosecution. When we of the Defense have not had the
opportunity even of taking a stand on the relevancy of their
witnesses. . .
THE PRESIDENT: I have already pointed out on several occasions that the
reason why the defendants’ counsel have to submit applications for their
witnesses is because they are unable to get their witnesses themselves
and because they are applying to the Tribunal to get their witnesses for
them and their documents for them. It is a work of very considerable
magnitude to find and to bring witnesses to Nuremberg.
I understand from you that with reference to this witness you are trying
now to get an affidavit from him.
DR. SIEMERS: Yes. At any rate I have been making the effort. Whether I
shall receive the answer in time from Leipzig, which is in the Russian
Zone, remains to be seen. In the meantime, in order to facilitate
matters and to avoid delay, I have written to the witness Lackorn.
THE PRESIDENT: Yes.
DR. SIEMERS: I hope that an affidavit will be available in time.
For this reason I am willing to waive having him testify here.
THE PRESIDENT: If you get the affidavit, you will be able to give the
Tribunal particulars of the evidence which the witness would give, and
also to show it to the Prosecution, who will then be able to say whether
they wish to have the witness brought here for cross-examination.
DR. SIEMERS: Certainly.
THE PRESIDENT: Well, the Tribunal will consider this application.
DR. SIEMERS: Witness Number 15 is a Norwegian, Alf Whist, former
Secretary of Commerce. By decision of the Court on 14 February he was
rejected as irrelevant.
Whist can testify that the reputation of the German Navy in Norway was
very good throughout the occupation, and that in Norway the complaints
were directed exclusively against the civil administration and not
against the German Navy. Whist knows definitely, as does every other
Norwegian, that the Navy was not involved in a single illegal or
criminal measure in Norway during the occupation.
If this is considered irrelevant, I presume that Sir David means that
the Navy, during the occupation of Norway, behaved correctly. Of course
this is a question that must be sharply distinguished from the question
which I shall discuss later, that is, the question of the occupation and
the attack on Norway. I am speaking now only of the time after the
occupation had been carried out.
SIR DAVID MAXWELL-FYFE: The point of the Prosecution is this: That
whatever the facts were, assuming for the moment that the facts were
that the German Navy had behaved with meticulous correctness on every
point, the view of Mr. Alf Whist, who was Secretary of Commerce in the
Quisling cabinet in Norway, as to how the German Navy behaved would not
have the slightest interest or relevance or weight with anyone. That is
the view of the Prosecution.
DR. SIEMERS: I hoped that Sir David would make his position clear as to
whether charges in this connection will be made against the Navy. Sir
David speaks of the Germans in general. I draw attention to the fact
that the entire administration in Norway was a civil administration, and
that, in the Terboven jurisdiction, the Navy had nothing to do with this
administration; if I have named a single witness where I might have
named hundreds, I did this only to give the Tribunal a picture of how
Admiral Boehm, the Navy, and Raeder conducted themselves.
THE PRESIDENT: The Tribunal will consider it, Dr. Siemers.
DR. SIEMERS: Thank you.
THE PRESIDENT: Then you have still Number 17, the interpreter.
DR. SIEMERS: Regarding Lieutenant Colonel Goldenberg, it is Sir David’s
point of view that he is unnecessary; if Admiral Schultze is approved as
witness, an affidavit from Goldenberg will suffice for me. A short
affidavit appears to me to be important, because Goldenberg was present
as an impartial interpreter at every conference which took place between
Darlan and Raeder. An affidavit will suffice in this case.
THE PRESIDENT: I think you can pass now to your documents. I ought to
call your attention to an observation at the end of your application,
which is that you intend to summon one or more witnesses. Who are they?
DR. SIEMERS: The Tribunal has declared that the details about a witness
have to be submitted a long time in advance only because the Tribunal
must procure the witness. When it is a question of a witness who comes
to Nuremberg on his own initiative, I should be obliged for a decision
on the point in connection with my defense, as to whether or not the
Tribunal will admit such a witness.
THE PRESIDENT: Dr. Siemers, I have stated one of the principal reasons
why Defense Counsel have to make applications, and another principal
reason is a necessity for expedition in this Trial—expedition and
security. The question of security is important, and therefore we must
insist on being told who the witnesses are that you wish to call, Dr.
Siemers. Otherwise, you will not be able to call them.
DR. SIEMERS: Am I obliged to do this even when the witness is already in
the building?
THE PRESIDENT: Certainly, because, as I have told you, there are 20 or
21 defendants in the dock; and we have to try and make this Trial
expeditious and we therefore cannot allow them to call as many witnesses
as they choose to call. But if it is a question of your not having the
names of the witnesses in your mind at the moment, you can certainly
specify them after a short delay, or tomorrow.
DR. SIEMERS: I shall submit information on this matter shortly. I do not
want to name the witness before I have talked it over with him.
THE PRESIDENT: Dr. Siemers, the Tribunal has no objection to your
applying in respect of other witnesses, provided that you do so by
tomorrow.
DR. SIEMERS: Very well, I know that, at the moment, the witness in
question is not in Nuremberg, so that I cannot talk to him at the
moment. I ask the Tribunal to pardon me for being so cautious. The
Tribunal will be cognizant of the fact that witnesses have been taken
into custody. I cannot take the responsibility for somebody’s being
taken into custody because I named him as a witness. That is the reason.
I shall, however, notify the Tribunal as soon as the witness is in
Nuremberg and I have had a chance to speak to him. I shall do so within
24 hours. It is here a question of a testimony which would take 10
minutes at the most of the Court’s time. Therefore, I do not believe
that this will burden the Tribunal too much.
THE PRESIDENT: Very well.
DR. SIEMERS: Then I should like to add that I can give the address of
the witness Severing, retired Reich Minister. I received it yesterday by
telegraph. Witness Severing is Number 3 and the Prosecution is agreeable
to his being heard. I shall submit the address in writing to the General
Secretary. He is in Bielefeld and can be reached without trouble.
THE PRESIDENT: Yes. If you give it to the General Secretary, that is all
that is required. And now would probably be a convenient time to break
off for 10 minutes.
MR. DODD: Your Honor. There is the matter of Admiral Bürckner. So far as
we know, Dr. Siemers made one request about Admiral Bürckner some time
ago, and at that time he was told, as I understand it, that Admiral
Bürckner was to be called or that the Prosecution intended to call him
as a witness, and that therefore we did not think it proper for him to
talk to Admiral Bürckner until after we had called him as a witness.
Up to a very late date in this presentation of our case, we still had in
mind calling Admiral Bürckner. I think some reference was made to him,
as a matter of fact, before the Tribunal, with reference to the witness
Lahousen. And it was for that reason that we told Dr. Siemers that we
did not think he should talk to the witness until after he had testified
or a decision had been made with reference to his testimony. But we have
at all times tried to co-operate with the Defense and make available
these people who are here in custody so that they may talk with them.
THE PRESIDENT: We will adjourn now for 10 minutes.
[_A recess was taken._]
DR. SIEMERS: May I add something regarding the witnesses? Concerning
witness Number 1, Marinedekan Ronneberger, I agree to use an affidavit
as suggested by Sir David. Concerning the witness Bürckner, I would like
to mention that Mr. Dodd’s statement is based on an error. I am not
permitted to speak to the witness, because he has not yet been approved
by the Tribunal as my witness. No other reason was given.
THE PRESIDENT: We do not think any further discussion is necessary about
this witness. I have already stated what the members of the Tribunal
will act upon.
DR. SIEMERS: I did not understand whether Mr. Dodd agreed to my speaking
with the witness Bürckner now.
THE PRESIDENT: I think he said so. He said the Prosecution have closed
their case, and they now have no longer any objection to your seeing the
witness.
DR. SIEMERS: Then one last remark. The Tribunal will have noticed that I
have not requested any witness concerning naval warfare and submarine
warfare. The reason is that I have agreed with Dr. Kranzbühler that Dr.
Kranzbühler will deal with the entire complex of naval warfare and
submarine warfare, although, in this respect, it not only affects
Grossadmiral Dönitz, but also in a considerable degree Grossadmiral
Raeder in his capacity as Commander-in-Chief of the Navy. Therefore,
insofar as the interests of Grossadmiral Raeder are concerned in this
matter, Dr. Kranzbühler will also represent him.
I should like to point out only that Dr. Kranzbühler’s very important
application regarding the questions to Admiral Nimitz not only affects
Grossadmiral Dönitz but, in particular, Grossadmiral Raeder, and beyond
that, the organization of the General Staff, insofar as the Navy is
concerned.
May I pass to the documents now?
SIR DAVID MAXWELL-FYFE: With regard to Document Number 1, The War
Diaries of the Seekriegsleitung and the B.d.U., Dr. Kranzbühler’s
assistant Dr. Meckel, has gone to London to work on these at the
Admiralty.
With regard to Number 2, Weyer’s _Navy Diary_, and Nautikus’ _Navy Year
Book_, there is no objection to Dr. Siemers having these. He will
indicate in the ordinary way the passages he intends to use.
With regard to General Marshall’s report of 10 October 1945, I cannot
see the relevancy of it at the moment, but if Dr. Siemers will indicate
which part he intends to use, it can be discussed when he actually
presents it to the Tribunal.
Now Number 4, the British Admiralty documents, May 1939 to April 1940,
which are wanted as to the preparations of landing in Scandinavia and
Finland. Although, strictly, what is relevant is what was known to the
Defendant Raeder, I shall make inquiries about these documents, and if
the Tribunal will give me a short time, I hope to be able to report to
the Tribunal upon them.
I want to make it clear that I cannot, of course, undertake to give
details on Allied documents; but I hope to be able to produce some
documents which may be helpful to the Tribunal, and deal with them
authoritatively. I would rather not be pressed for details at the
moment.
DR. SIEMERS: I agree with Sir David, I hope that I will receive the
books which belong to Number 2 and Number 3 soon, because otherwise a
delay may be caused. The report of General Marshall of 10 October 1945
is, as far as I can judge from the excerpts, important for the reason
that General Marshall adopts, on various points, an entirely different
attitude from Justice Jackson’s. I believe that a comparison of two such
outstanding opinions is of sufficient importance to have the report of
General Marshall also heard here. Concerning Number 4, I am waiting for
the final decision of the Prosecution.
I have only one more request, and I ask to be excused, since, by error,
I have not listed this Number 5. It is the following: The Prosecution
has repeatedly presented quotations from the book _Mein Kampf_ by Adolf
Hitler and inferred from it that each one of the defendants who held a
leading position as early as 1933 should have known from this book, even
before 1933, that Hitler was contemplating the launching of aggressive
wars. I noticed that the quotations in the document book which was
presented in November are all taken from an edition which was published
only in 1933. The edition of 1933, however, differs in many points from
the original edition. Unfortunately, I am personally only in possession
of an edition which was published after 1933. In order to check these
questions, that is to say, in order to see what anybody could have read
in this book in 1928, and not 1933, I ask the Prosecution to try to
submit a copy of the first edition. As far as I know, the first edition
was published in 1925, and the second in 1927, by the publishing firm of
Franz Eher.
SIR DAVID MAXWELL-FYFE: We shall try to get an earlier edition, so that
Dr. Siemers can compare the passages.
THE PRESIDENT: Are you going to deal with Page 2 of your document? Sir
David, you have not dealt with this, have you?
SIR DAVID MAXWELL-FYFE: No. I assume, Your Lordship, that Dr. Siemers
would, in due course, indicate what excerpts he was going to use. We
could discuss when he presents them, whether the Prosecution have any
objection.
THE PRESIDENT: Yes. You intended, Dr. Siemers, I suppose, to indicate
the passages upon which you rely in your document book?
DR. SIEMERS: Yes.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: We have already discussed the point on Page 3,
that is the question of tonnages built, and so on—I said I am making
inquiries with regard to that.
THE PRESIDENT: My attention is drawn, Sir David, to Paragraph 4 B on
Page 2. Are you suggesting that the Tribunal supply him with documents
on German policy without any further reservation?
SIR DAVID MAXWELL-FYFE: I am very sorry. It was an oversight. I took it
that that was included in the words at the top of the page:
“In addition, I shall submit documents and affidavits, some of
which are already in my possession, and some of which I shall
procure myself without having the assistance of the
Prosecution.”
I took it that Dr. Siemers had certain documents on German policy, and
will indicate what passages he is going to use. I am very sorry I did
not refer to that.
THE PRESIDENT: Does this part of the application mean that, with
reference to all these documents, Dr. Siemers has them and does not wish
any further action to be taken with reference to them?
DR. SIEMERS: Yes, Sir.
THE PRESIDENT: I call on counsel for the Defendant Von Schirach.
SIR DAVID MAXWELL-FYFE: Dr. Sauter suggests it would be convenient if I
indicate the view of the Prosecution.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: May I ask the Tribunal to note that Dr. Sauter
is asking for witnesses 1 to 8, except witness 5, as oral witnesses;
that is, he is asking for seven oral witnesses, and Numbers 5 and 9 to
13 by way of affidavit.
The Prosecution suggest that, as far as oral witnesses are concerned,
the defendant might have Number 1 or Number 2. that is, Wieshofer or
Hoepken, because these witnesses appear to cover the same ground; that
he might have Number 3, the witness Lauterbacher, who was Chief of Staff
of the Reich Youth Leadership (Reichsjugendführung); and, also, that he
might have Number 8, that is Professor Heinrich Hoffmann, who, I think,
is Schirach’s father-in-law—since the description of his evidence takes
up nine pages of the application, he is obviously a very important
witness.
Then the Prosecution suggest that there might be affidavits from Number
5, Scharizer, who was the deputy Gauleiter of Vienna; Number 11, who is
Madame Vasso; Number 12, Herr Schneeberger; and Number 13, Field Marshal
Von Blomberg.
The witnesses that the Prosecution find difficulty in perceiving the
necessity for are: First of all, Number 4, Frau Hoepken—there are no
details given in this application, except that she was secretary to Von
Schirach; Number 6, the witness Heinz Schmidt, who apparently repeats
part of the evidence of the witness Lauterbacher word for word; Number
7, Dr. Schlünder, who also repeats the witness Lauterbacher word for
word; and Number 9, Dr. Klingspor, who passes a personal view on the
defendant, which, in the submission of the Prosecution, is not really
helpful evidence; and finally, Dr. Roesen, Number 10, who speaks as to
an isolated incident of kindness on the part of the defendant to the
family of the musician Richard Strauss.
This is the position which the Prosecution take with regard to the
witnesses.
DR. SAUTER: Your Honors, I have, in the case of Baldur von Schirach
also, limited my evidence as much as possible. For a personal hearing,
here before the Tribunal, I have proposed as witnesses, Numbers 1, 2, 3,
6, 7, and 8, and I must earnestly request you, Your Honors, to grant me
these witnesses.
The difficulty, in the case of Schirach, as regards the presentation of
evidence, is that evidence must be produced and offered for two entirely
separate complexes. One is the activity of the Defendant Von Schirach in
his capacity as Reich Youth Leader; and the second is his activity in
Vienna, during the period from 1940 to 1945, in which he still exercised
certain functions in Youth Leadership in addition to his main duties.
Therefore, I need witnesses for both these activities of the Defendant
Von Schirach.
In addition to this difficulty there is still another one. The Defendant
Von Schirach was Reich Youth Leader, and that implied that practically
without exception all his collaborators were relatively young people who
during the second World War served a long time in the Army. Therefore it
is quite possible that for a few years during the World War one witness
might know nothing at all, because he did not work on the staff of the
Defendant Von Schirach during this time; and that therefore, for this
time, another collaborator of Schirach will have to be called upon, in
order to give information on his activity.
Your Honors, in earlier written applications I had requested more
witnesses, but I have omitted these additional witnesses right from the
beginning in the application now submitted to you, in order to
contribute thus, as far as I can, to expediting the procedure. But, Your
Honors, these six witnesses that I have requested to have brought before
the Tribunal I really must have granted me for, if a clear picture of
Schirach’s activities is to be gained, I cannot forego any one of them.
I may also point out that all these six witnesses that I have listed
under the numbers given, for the purpose of calling them, have already
been approved by the Tribunal, so that the new approval will consist
only of a repetition of your own earlier decision.
The witness Wieshofer, Your Honors, who is listed under Number 1, was
from 1940 to 1945 adjutant of the Defendant Von Schirach; that is to
say, during the period that covers the activity of the Defendant Von
Schirach as Gauleiter of Vienna and Reichsstatthalter.
This collaborator, who was with the Defendant Schirach daily and who
knew him very well, has been named by me particularly for the purpose of
testifying—although, of course, he will also testify on other
things—that Schirach, in his capacity as Gauleiter of Vienna, pursued
an entirely different policy to that of his predecessor, the former
Gauleiter Bürckel; that he, contrary to Bürckel, endeavored to establish
correct relations with the Catholic Church, and that, with this aim in
mind, he successfully influenced and instructed also his collaborators
and subordinates. I say successfully, because these efforts by the
Defendant Von Schirach to bring about satisfactory relations with the
Catholic Church have also been repeatedly acknowledged on the part of
the Church, as well as by the Catholic population of Vienna.
Besides, the witness Wieshofer will also corroborate that the Defendant
Von Schirach had nothing at all to do with the deportation of Jews from
Vienna; that this matter of the Jews was. . .
THE PRESIDENT: Do not Numbers 1 and 2, Wieshofer and Hoepken, really
deal substantially with the same subject? Would it not be sufficient if
one were called as a witness and if the other one gave evidence by
interrogatory?
DR. SAUTER: I do not quite think so, Mr. President, because the witness
Hoepken, who is listed under Number 2, was a collaborator of the
Defendant Von Schirach as early as 1938, in the Reich Youth Leadership,
and because he is supposed to give information especially about the
activity of the Defendant Von Schirach as Reich Youth Leader and in
particular also about his efforts to bring about understanding and
friendship with the youth of other nations, such as, for instance,
England and France. I believe, Your Honors, that with regard to the
specific importance of these particular questions, the attitude of the
Defendant Von Schirach in the naming of witnesses should be given
recognition here, and that not one witness only, but both should be
granted. I have submitted the addresses of both witnesses to the
Tribunal. They are in a camp, and I believe, Your Honors, it is
imperative to summon both witnesses to establish the facts.
THE PRESIDENT: I still do not follow what the essential difference is
between the two.
DR. SAUTER: Mr. President, I have just pointed out that the witness
Number 2, Hoepken, had a leading position in the Reich Youth Leadership,
and that therefore the witness Number 2, Hoepken, is in a position to
give information especially about the activity of the Defendant Von
Schirach as Reich Youth Leader.
THE PRESIDENT: But Dr. Sauter, you stated that Wieshofer, Number 1, was
adjutant to Schirach in his capacity as Reichsleiter of Education of
Youth, so that he was in just as close contact with the defendant on the
question of the education of youth as Hoepken.
DR. SAUTER: Yes, but youth education was Hoepken’s main official task
while the activity of the witness Wieshofer was limited mainly to the
job of adjutant to the Defendant Von Schirach, primarily in his capacity
as Gauleiter in Vienna. That is the main difference, and the witnesses
who could provide information about his activity in Vienna are mainly
the witness Wieshofer and, to a small extent, also Hoepken. But I need
Hoepken, by all means, as I said, for the clarification of the activity
of Schirach in the Reich Youth Leadership.
Mr. President, may I also point out that much is at stake for the
Defendant Von Schirach, and that, from the point of view of the Court,
it should really not make much difference, in a matter so important to
Schirach, whether one witness or two witnesses are called.
Your Honors, I could have suggested perhaps four witnesses in the hope
that two would then be granted. If now, in the name of the Defendant Von
Schirach, I am proposing to call only two witnesses, I would not think
it very just if one of these two witnesses should be denied.
THE PRESIDENT: The Tribunal will consider what you have said.
DR. SAUTER: Furthermore, Your Honors, in the third place, I have to
request Hartmann Lauterbacher. If I have understood correctly, the
Prosecution agree to this; therefore, I can be brief.
The witness Lauterbacher, who was Chief of Staff of the Reich Youth
Leadership, is in a position to supply information especially about the
fact that the Defendant Schirach in no way prepared the youth
psychologically and pedagogically for the war, and by no means for an
aggressive war. Furthermore, he can testify that the allegations of a
Polish report—presented by the Russian Prosecution in one of the
sessions during February, I believe on 9 February 1946—are definitely
false. According to this report, the Hitler Youth had used spies and
parachute agents in Poland. And this is false and the witness
Lauterbacher will refute it. . .
THE PRESIDENT: Dr. Sauter, Sir David said he would not object to Number
3 being called as a witness, but what he did object to was 6 and 7, whom
you are also asking for, as oral witnesses, because he said that they
repeated what Lauterbacher said—Numbers 6 and 7, that is Schmidt and
Schlünder.
DR. SAUTER: Mr. President, there again is the difficulty which I pointed
out before. From the Polish Government report which was read by the
Soviet Prosecution on 9 February 1946, it cannot be seen in what period
these activities concerning the Hitler Youth agents and spies are to
have taken place.
Now it may happen here that, if I have only one witness, it will be
alleged that it was at some other time, perhaps at a time when this
witness was in the Army; and that is why, in the interest of a complete
clarification of these facts, I have asked to have witness Number 6
heard also. That is the witness Schmidt.
THE PRESIDENT: Well, if you say that, does it not appear that, with
reference to Schlünder, his collaboration with the defendant extended
from 1933 to 1945 and therefore if he were called or were to give an
affidavit or an interrogatory, and Lauterbacher, who extends only from
1933 to 1940, you would cover the whole period and you could exclude
Schmidt?
DR. SAUTER: If I understand you correctly, Mr. President, you are
referring to an interrogatory in the case of Lauterbacher.
THE PRESIDENT: No, Sir David was prepared to have Lauterbacher called as
a witness.
DR. SAUTER: Lauterbacher is to be called as a witness and Schmidt is to
receive an interrogatory?
THE PRESIDENT: He said that Schmidt and Schlünder were cumulative. Then
you said they did not relate to the same period, as I understood you,
and that might raise a difficulty. So I pointed out to you that Number 7
related to the whole period, that is to say from 1933, beyond the period
dealt with by Lauterbacher, and goes to 1945, and therefore, if he were
called, that would cover the whole period, and if you called
Lauterbacher and Schlünder and left out Schmidt. . .
DR. SAUTER: You mean that an interrogatory is to be obtained from
Schmidt? I am agreeable to that.
THE PRESIDENT: The statements which you make with reference to Schmidt
and to Schlünder are practically identical.
DR. SAUTER: Yes, only they refer to different periods, as each of them
was in the Army. If one of them comes, he cannot say anything, of
course, about the time during which he served in the Army. He cannot
give any information as to whether, during his military service, agents
were used.
THE PRESIDENT: I do not know about that. You have stated that they were
collaborators with the defendant from 1938 to 1945 in the one case, and
from 1933 to 1945 in the other case, and therefore, if that is correct,
they cannot have been in the Army; they cannot have taken an active part
in the Army.
SIR DAVID MAXWELL-FYFE: I should be quite prepared to agree to the
suggestion that Your Lordship put forward; that would then cover the
whole period. If both Lauterbacher and Schlünder were called, it would
dispense with the necessity for Schmidt.
DR. SAUTER: May I point out, Mr. President, that in any case I need
Schlünder, who, by the way, was arrested a few weeks ago, because he was
a specialist for physical training with the Reich Youth Leadership, and
because, therefore, I want to prove, especially through Dr. Schlünder,
that the education of the youth, as administered by the Defendant Von
Schirach, was absolutely neither extraordinary nor militaristic. The
Defendant Von Schirach has thus far, during the entire procedure in his
interrogations. . .
THE PRESIDENT: I think, really, there is a substantial agreement between
you and Sir David that Number 1 and Number 3 certainly should be called
and that Number 7 might be called; but I do not know whether Sir David
agrees that an affidavit or an interrogatory might be given by Number 6.
SIR DAVID MAXWELL-FYFE: I have no objection to that, My Lord.
THE PRESIDENT: That is substantially what you want, Dr. Sauter?
DR. SAUTER: Yes, Sir.
THE PRESIDENT: Very well; let us get on then.
DR. SAUTER: Your Honors, I have then, in addition, under Number 4,
listed an affidavit by a witness, Maria Hoepken. I shall submit this
affidavit, which is already in my possession, to the Tribunal and to the
Prosecution, along with my document book, sufficiently in advance.
Then I have also affidavits in my possession, if I may mention that now,
from two witnesses: Number 9, Dr. Klingspor, and Number 10, Dr. Roesen.
The same thing applies here. The Tribunal and the Prosecution will
receive these two affidavits in time, together with my document book.
Concerning Number 8, the witness Hoffmann, the Prosecution agree to
having him called as a witness since this witness is here in Nuremberg.
Therefore I believe that I do not have to make any detailed statements
concerning this witness.
The same applies to Number 12 and Number 13. These are two witnesses:
One a Gauobmann Schneeberger from Vienna, who, primarily, is to inform
us on the attitude of the defendant on the question of foreign workers
during the time of his activity as Gauleiter in Vienna; and Number 13,
Field Marshal Von Blomberg, who is to inform us on the attitude of the
Defendant Von Schirach on the question of the premilitary education of
the youth, on the question of physical training, and on the question of
patriotic education of youth. The Prosecution agree to interrogatories
from these two witnesses—which I have already suggested myself.
And now, Your Honors, I come to the one figure on my list which is
closest to the heart of my client and myself. It is Number 11; that is
the application to examine a French woman by the name of Ida Vasso. Of
this witness, Ida Vasso, we have heard in court for the first time when
the Soviet Prosecution submitted a commission “Report on the Atrocities
of the Fascist-German Invaders in the Lvov Area,” as the title
reads—Document Number USSR-6.
This document contains a sentence to the effect that a French woman, Ida
Vasso, who was working in a children’s home in Lvov, had reported that
the Hitler Youth had committed special atrocities in Lvov. It was
alleged that from the ghetto small children were sold; however, it was
not revealed by whom and to whom these children were to have been sold;
and yet, as a matter of course, it is the Hitler Youth who are said to
have used these children as targets.
Your Honors, we are fully aware that such happenings would represent a
quite extraordinary atrocity, and I can tell you that none of all the
presentations of the Prosecution during the last three months has so
distressed the Defendant Schirach, as has this statement. The Defendant
Schirach has always, even in his earlier interrogations, maintained that
he assumes full responsibility for the education and training of the
German Youth, as directed by him; and that he is ready and willing, even
as a defendant here, to explain to the Tribunal what principles guided
him, what aims he had, and what successes he achieved. He has, for
instance, never denied that this youth training was based on
patriotism. . .
THE PRESIDENT: Dr. Sauter, you are only applying for witnesses now, are
you not? You see, you agree in your application to an affidavit. . .
DR. SAUTER: I did not understand, Mr. President?
THE PRESIDENT: What I was pointing out to you was that this is only an
application with reference to witnesses, and in your application you
say, “However, in consideration of the far distance of the witness from
Nuremberg, I agree that at first an affidavit should be drawn up.”
DR. SAUTER: Yes.
THE PRESIDENT: Sir David agreed that an affidavit should be drawn up. So
you are in agreement, and I do not understand why we should be troubled
with further application.
DR. SAUTER: However, Mr. President, I have added something to my
application. I have written that a personal appearance of this witness
before the Tribunal would be useful so that she can be questioned,
because her testimony is important for the judging of the Hitler Youth
as a whole. I have also added. . .
THE PRESIDENT: Your application states that you reserve that right.
Well, you can prepare the affidavit and then send it out to the witness,
and then you can see whether you want the witness for cross-examination.
And Sir David agrees to that course.
DR. SAUTER: Mr. President, my client attaches so much importance to this
particular case for the following reasons: The HJ, that is the Hitler
Youth, which he led, comprised about 8 million members. It was therefore
larger than. . .
THE PRESIDENT: But Dr. Sauter, the Tribunal quite understands why the
defendant is interested in the matter. But it seems to them it would be
perfectly satisfactory if an affidavit were drawn up and sent to the
witness; and then you can see whether you want the witness, whose
present location is unknown, brought here personally.
DR. SAUTER: Mr. President, my client noticed one thing in particular,
that is, that among 8 million members only one single case of atrocities
occurred, of which he never heard anything at all in the Reich Youth
Leadership. However, I agree to the obtaining of an affidavit for
reasons of expediency; but for just this case I must reserve the right
to have the witness called, if the affidavit should be insufficient.
THE PRESIDENT: That deals with the witnesses, and we had better adjourn
now.
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the
documents for which Dr. Sauter asked, the Prosecution take the usual
line that there is no general objection to extracts being used, but at
this stage they reserve their right to challenge admissibility of the
extracts on the grounds of relevance.
They will have to look particularly closely at Number 9, the book
entitled, _Look, the Heart of Europe_, and the commentary on it by the
late Lord Lloyd George, but they can see that these are particularly
matters which can be more conveniently dealt with when they have seen
the document book and the extracts are before them.
DR. SAUTER: Mr. President, I can state my position regarding the
documents very briefly. In the main, it is a question of books,
speeches, and essays by the Defendant Von Schirach. These literary works
are in my possession and I shall submit them to the Prosecution along
with my document book. With the document book I shall submit to the
Tribunal and the Prosecution the individual extracts which I propose to
use as evidence, so that the Prosecution will still be able to make any
statements it wishes with regard to the individual excerpts.