Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-127.03
Last-Modified: 2000/02/28

THE PRESIDENT: What if they haven't got lifeboats?

                                                  [Page 324]

DR. KRANZBUHLER: I believe, Mr. President, that that case
has not been ruled on here. I know of no case where a ship
did not have lifeboats, especially in 1943, in which year
the order originated. Every ship was provided not only with
lifeboats, but also with automatically inflating rafts.

Paragraph 2 refers only to the question of capture of
neutral captains.

May I continue, please?

THE PRESIDENT: Yes, you may.

DR. KRANZBUHLER: A number of instances showing that captains
were rescued after these orders were issued are quoted in
the statements by commanders, reproduced on Pages 22, 25 and
26, under Exhibit No. Donitz 113.

I now come to the case of Submarine U-386, which figures
very largely in Captain Mohle's statement.

The Tribunal will remember that this case was the decisive
reason for the way in which Mohle interpreted the Laconia
order. With reference to this case, I submit Donitz Exhibit
No. 26, the affidavit made by Captain Witt. I should like to
read a few paragraphs from that.

THE PRESIDENT: What page?

DR. KRANZBUHLER: On Page 50, Mr. President.

  "In November, 1943, in the course of my official duties
  as a member of the staff of Commander-in-Chief U-boats, I
  had to interview Lieutenant Albrecht, Commander of U-boat
  U-386, on his experiences during the action which had
  just terminated. Albrecht reported to me that in the
  latitude of Cape Finisterre he had sighted, in daylight,
  a rubber boat with shipwrecked British airmen in the Bay
  of Biscay. He did not take any steps to rescue them,
  because he was on his way to a convoy in process of
  formation. He could only reach his position by continuing
  without a stop. Besides he was afraid - "

THE PRESIDENT: Dr. Kranzbuhler, is it necessary to go into
the details of each particular case? I mean, they all depend
upon their own particular circumstances. You need not read
the documents very carefully. It is not necessary at this
stage of the case.

DR. KRANZBUHLER: Very well, Mr. President, I shall only
report.

The affidavit states briefly that the commander had been
informed that he should have brought the airmen back. That
is, in other words, the opposite of what Mohle has said in
this courtroom.

The correctness of Captain Witt's statement is confirmed by
the next document, Donitz 27, which is the U-boat's war
diary, and contains the comments of Commander-in-Chief U-
boats, expressing disapproval of the fact that the
Englishmen floating on the raft were not taken aboard.

The fact that Admiral Donitz's attitude toward rescues was
not based on cruelty, but on military expediency is shown by
Page 53 of the following document. He is considering
weighing the rescue of our own personnel, and comes to the
conclusion that military considerations may forbid such a
rescue.

The following document, Donitz No. 29, deals with the
statement made by witness Heisig. It is on Page 54 and the
following. It begins with an affidavit made by the Adjutant,
Lieutenant Fuhrmann, who describes the general ideas on
which Admiral Donitz's talks were based. At the end he
stresses the fact that he was never approached by young
officers in connection with Admiral Donitz's pronouncements,
which expressed any doubts as to the treatment of
shipwrecked persons.

On Page 56 there is a statement made by Lieutenant Kress,
who was present at the same lecture as Heisig. He says that
neither directly nor indirectly, did Admiral Donitz order
the survivors to be killed.

                                                  [Page 325]

That is confirmed by Lieutenant Steinhoff's statement on
Page 59. The considerations which weighed with the SKL at
that time in the question of fighting the crews are
illustrated by the following document, Donitz 30, which is
reproduced on Pages 60 and 61. Here again, no mention is
made of the killing of survivors. It is the record of a
conference with the Fuehrer on 28th September, 1942, which
was attended by Admiral Raeder and Admiral Donitz.

The Tribunal will remember Exhibit GB 200, which describes
rescue ships as desirable targets. The same document states
that they have the significance of submarine traps. For that
reason I have reproduced on Page 63, Standing War Order No.
173, dated 2nd May, 1940. That order states that, in
accordance with instructions from the British Admiralty, U-
boat traps are employed in convoys. Document Donitz 3, on
Page 67 of Document Book No. 2, shows that the treatment of
rescue ships has nothing to do with the sanctity of hospital
ships. It is the last of the standing orders referring to
hospital ships, and is dated 1st August, 1944. It begins
with the words: "Hospital ships must not be sunk."

My next document, Donitz 35, is meant to show that SKL
actually went beyond the provisions of International Law in
regard to the sanctity of hospital ships, for, as the entry
of 17th July, 1941, proves, the Soviet Government on its
part rejected the hospital ship agreement, basing its action
on violations of International Law committed by Germany on
land. According to Article 18 of the hospital ship
agreement, this meant that the agreement was no longer
binding on any of the signatories.

In Document Donitz 36, Pages 69, et seq., I submit the only
known instance of a U-boat commander actually firing on
means of rescue. This is the interrogation of Captain Eck,
carried out on 21st November, 1945, by order of this
Tribunal. That was ten days before he was shot. According to
the wish of the Tribunal, I shall confine myself to a
summary.

After sinking the Greek steamer Peleus, Eck tried to sink
the lifeboats and wreckage by means of gunfire. The reason
he gives is that he wanted in this way to get rid of the
debris and avoid being picked up by enemy aircraft
detectors. He states that he had the Laconia order aboard,
but that this order had no influence whatsoever upon his
decision. In fact, he had not even thought of it. He had
received his instructions from Mohle but had heard nothing
about the killing of survivors which is alleged to have been
desired; and he knew nothing about the instance of U-386.

At the end of his examination, Eck states that he expected
his actions to be approved by Admiral Donitz. A further
reference was made in cross-examination yesterday to the
question of whether Admiral Donitz -

THE PRESIDENT: Dr. Kranzbuhler, we will adjourn now for a
few minutes - only for a short time.

DR. KRANZBUHLER: Very well.

(A recess was taken.)

THE PRESIDENT: Dr. Kranzbuhler, the Tribunal, as you know,
was going to deal with the applications for documents and
witnesses, but if you could finish your documents in a short
time, they would like you to go on with that and get them
finished, if you can.

DR. KRANZBUHLER: Mr. President, I believe that even at my
present speed, I shall need about an hour. I should like to
ask you, therefore, for permission to continue on Monday
morning.

THE PRESIDENT: Well, Dr. Kranzbuhler, if you think it will
be anything like as long as that, of course we must put it
off to Monday, morning, but the Tribunal does hope that you
won't take anything like so long as that, because going in
detail into these documents doesn't really help the
Tribunal. They have all to be gone into again in great
detail, both in your speeches and in further consideration
by the Tribunal.

                                                  [Page 326]

DR. KRANZBUHLER: I shall confine myself to making clear the
connections, Mr. President, but in spite of that, I think it
would be better if I did so on Monday morning.

THE PRESIDENT: Very well, yes. Then the Tribunal will now
deal with the application. Yes, Sir David.

SIR DAVID MAXWELL FYFE: If your Lordship pleases, the first
application is on behalf of the defendant von Schirach, who
asks for one Hans Marsilek, as a witness for cross-
examination. The prosecution have already introduced an
affidavit from this man, and they have no objection to him
being called for cross-examination.

My Lord, the second application on behalf of the defendant
von Schirach is in respect of one Kauffmann. The defence
desires to administer interrogatories to Kauffmann in lieu
of calling Kauffmann, who has already been allowed as a
witness. There is no objection to that.

My Lord, the next matter is an application by Dr. Seidl on
behalf of the defendant Hess, and it is a request for five
documents relating to the German-Soviet agreements in August
and September, 1939. And it is also a request for the
calling of Ambassador Gauss as a witness in connection with
the above. But the position with regard to previous
applications is somewhat lengthy, and without going into
details, I advise the Tribunal that this matter has already
been before them on six occasions. I have the details if the
Tribunal would like them.

THE PRESIDENT: No, because the Tribunal made an order, did
they not, that these documents were to be translated?

SIR DAVID MAXWELL FYFE: Yes, my Lord.

THE PRESIDENT: And that they would then be considered by the
Tribunal.

SIR DAVID MAXWELL FYFE: That is so, my Lord. The Tribunal
made an order for them to be translated on 25th March, and,
my Lord, if I may just remind your Lordship of the bare
facts, On 28th March Fraulein Blank, the private secretary
of the defendant von Ribbentrop, was asked about the
agreement. Your Lordship may remember that my friend General
Rudenko objected, but the Tribunal ruled that the questions
were admissible, and the witness said she knew of the
existence of the secret pact, but gave no details.

Then, on the 1st of April, in the course of Dr. Seidl's
cross-examination of the defendant von Ribbentrop, the Gauss
affidavit was read, and on the 3rd of April, Dr. Seidl
applied for Hilger and Weizsaecker to be called as witnesses
on this point, and on 15th April Dr. Seidl applied for
Ambassador Gauss to be called.

Now, my Lord, it was discussed before the Tribunal on 17th
April, when I said that in view of the Tribunal's previous
ruling I could not contest the question of the agreement,
but I objected to the witnesses. General Rudenko, I think,
stated that he had submitted written objections, and the
Tribunal said they would consider the matter.

Now, my Lord, the position today appears to be, taking the
five documents, that the affidavit of Dr. Gauss is already
in evidence. My Lord, that is the first affidavit. But the
second affidavit of Dr. Gauss is not in evidence. With
regard to the non-aggression pact between Germany and the
Soviet Union, that is already in evidence. As to the secret
supplementary protocol appended to the non-aggression pact
between Germany and the Soviet Union, the substance is
already in evidence. It was given in the Gauss affidavit.

Then, my Lord, we have the German-Soviet Frontier and
Friendship Pact of 26th September, 1939 and the secret
supplementary protocol to that pact. The prosecution submit
that these documents have no relevance to the defence of the
defendant Hess, and they cannot see any reason for them
being wanted. If necessary, my Soviet colleague can deal
further with the matter, but that is the

                                                  [Page 327]

general position. And we also submit that the second
affidavit of the Ambassador Gauss is unnecessary in view of
his previous affidavit, and without stating them again, I
refer to and repeat my objections to witnesses to the
discussions anterior to the conclusion of the agreement.

It is submitted that this is really an irrelevant matter,
and it is unnecessary to occupy the time of the Tribunal
regarding it. My Lord, I don't know whether it is convenient
-

THE PRESIDENT: Sir David, the Tribunal, as I have said, is
going to consider this matter. They haven't yet had an
opportunity to consider these documents, but I should like
to ask you whether there is any reason why Ambassador Gauss
should be called as a witness.

SIR DAVID MAXWELL FYFE: None at all, my Lord.

THE PRESIDENT: He has already stated the substance of these
documents, as has the defendant Ribbentrop, and if the
documents are now produced and supposing that the Tribunal
took the view that they ought to be admitted, it would be
entirely irrelevant to call Gauss as a witness.

SIR DAVID MAXWELL FYFE: In my submission that is so, my
Lord.

THE PRESIDENT: Well, I think the Tribunal had better
consider these documents, as they had stated in their order
they were going to do when the documents had been produced.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

Now, my Lord, the next application is on behalf of the
defendant Funk, and he requests permission to read the
affidavit of the witness Kalus. The permission was
previously granted to the defendant Funk to submit an
interrogatory to Kalus, which has been done, and the
interrogatory has already been introduced in evidence. The
affidavit now in question has been received and supplements
the interrogatory, and the prosecution have no objection.

The next application is on behalf of the defendant
Streicher, and he desires to call the witness Gassner, and
he is desired to speak as to the Sturmer and the size of the
circulation and the profits. The prosecution submit that it
is unnecessary to call a witness as to the form of the
Sturmer after 1933. A representative number of copies of the
newspaper are before the Tribunal and the form of the
newspaper can be seen from them.

On the second point, both the defendant Streicher and the
witness Heimer have given evidence as to the Sturmer's
circulation, and it is respectfully submitted that the
takings of the Sturmer and the use to which they were put
are irrelevant.

Then, my Lord, the next application on behalf of the
defendant Sauckel is for one Biedermann as a witness,
instead of a witness allowed previously who cannot be found.
The prosecution have no objection to that, and they have no
objection to the documents that are asked for, so with the
approval of the Tribunal I shan't go through them in detail.

THE PRESIDENT: Sir David, we should like to know when you
think the most appropriate time would be to hear the
evidence on behalf of those defendants whose cases have
already been presented, whether to hear it at the end of all
the evidence or to hear it earlier?

SIR DAVID MAXWELL FYFE: My Lord, I should have thought that
it was better to hear it earlier if the Tribunal could put
aside a Saturday morning for it, or something of that kind,
before the cases of the various defendants have got too far
into the background.

THE PRESIDENT: We will consider that and let you know.

SIR DAVID MAXWELL FYFE: If your Lordship pleases. Now, my
Lord, the next application is on behalf of the defendant
Seyss-Inquart, and he asks

                                                  [Page 328]

for an interrogatory to be submitted to Dr. Stuckhardt to
complement the testimony of the witness Lammers. The
prosecution have no objection to such an interrogatory. They
reserve the right or ... they ask the Tribunal to let them
reserve the right, to put in a cross-interrogatory. The
next, the defendant Frick, asks for Dr. Konrad as a witness
on the question of Church persecution, and the prosecution
suggests that an interrogatory would be sufficient on this
point and I think there is a little confusion here. I think
that what is desired is an affidavit. The original
application says: "Contrary to the charge to the effect that
the defendant participated in the persecution of the
Churches, an affidavit by the witness is to establish that
Frick strongly defended Church interests." So the only
question is between an affidavit and an interrogatory, not
between an oral witness and an interrogatory. Then, if I
might leave the next one, the application on behalf of the
defendant Goering, my friend Colonel Pokrovsky is going to
deal with that. I pass to the application of the defendant;
Hess and Frank. That is Dr. Seidl's application; and if I
might just read what is stated in the General Secretary's
note, it is official information from the Ministry of War of
the United States of America, or another Ministerial Service
official or the Office of Strategic Services. It is stated
that such a report is desired to show that witness Gisevius
had perjured himself on the witness stand and that they
desire to show this to attack his credibility. It is alleged
that the perjuring consists of his denial under cross-
examination that he acted on behalf of foreign powers and
his denial of receiving any favours from any power at war
with Germany, which is supposed to be at variance with his
statement that he had friendly and political relations with
the American Secret Service and with some subsequently
published reports. Confirmation of these two factors,
alleged to be at variance with his prior statements, is
sought by requesting official statement; and they ask for
the United States Secretary of War, Mr. Patterson, as a
witness for the essential points, in case the Tribunal does
not consider an official report admissible or sufficient, or
the United States Ministry of War refuses the information.

Now, my Lord, I deal with this matter simply as a question
of jurisprudence on which I submit that the English view is
a sound one and should be followed by this Tribunal. The law
of England, as I understand it, is that when you cross-
examine a witness as to credibility, you are bound by his
answers. There is only one exception to that which, in my
recollection, is contained in a note in Roscoe's Criminal
Evidence - that when you have cross-examined a witness as to
credibility, you may call a witness, that is to say, that
knowing the general reputation of the witness who has been
cross-examined as to credibility, if on that general
reputation and only on this general reputation, one would
not believe him. That is the only exception that I know in
English Law.

THE PRESIDENT: And, of course, if he is cross-examined as to
a crime or a misdemeanour, he may be contradicted.

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