The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/03/17

                                                  [Page 245]

SIR DAVID MAXWELL FYFE: Yes, my Lord, that is the point

THE PRESIDENT: It is a form of expert evidence.

SIR DAVID MAXWELL FYFE: My Lord, in a sense, it is not, as
your Lordship says, in the usual form of expert evidence,
but it is the evidence of somebody who has special
knowledge. My Lord, it is a well-known distinction, for
example, in the laws of libel between the persons who have
expert knowledge and the public at large; and, my Lord, the
opinion of someone with a special knowledge of the facts
must have probative value within Article 19 of the Charter.
My Lord, if the provision that this Tribunal is not bound by
the technical rules of evidence is to mean anything at all,
I submit it should cover the expression of opinion on a
point such as this; that is, the possession of special
knowledge, which is such that he is qualified to give such
an opinion.

THE PRESIDENT: It is a very small point, Sir David, and we
have got to decide the matter and form our own opinion about
it, and this man is not here for the purpose of being cross-
examined for anything of that sort.

SIR DAVID MAXWELL FYFE: No, that is so, my Lord, but of
course that, with respect, cuts both ways. I mean here he
gives an affidavit and part of it as the basis leads up to a
certain conclusion. I should respectfully submit that that
conclusion is a statement of fact - but, if your Lordship
says so, the time will come when we can ask your Lordship to
draw that conclusion as a matter of argument ourselves; but,
my Lord, on the general position, the only reason that I
have occupied even this much of the Tribunal's time is that
Article 19 is an important matter in the view of the
prosecution and, therefore, we have to argue against its
being whittled down. It is the only reason that I have taken
up the Tribunal's time.

DR. SIEMERS: Mr. President, may I just draw your attention
to one point. Sir David has just been mentioning a well-
known legal distinction. It is precisely on this that I wish
to base my argument: the distinction between facts and
opinions. Here it is a question of opinion, and please note
that the following sentence goes even farther; the witness
is coming to a legal opinion and he is stating who is
responsible; therefore, he is passing some sort of
judgement. Furthermore, I beg you to consider that this is
quite a minor official who, after all, cannot possibly make
such far-reaching statements to the effect that higher
formations in Kiel and some other places in Germany - he is
quite vague - had some sort of knowledge.

THE PRESIDENT: The Tribunal will adjourn.

SIR DAVID MAXWELL FYFE: My Lord, before the Tribunal
adjourns, might I make a correction and an apology? My Lord,
I thought that a copy of this affidavit in German had been
put to the witness yesterday but, apparently, it was a copy
in English. The original affidavit was sent off on 6th May;
it was verified over the telephone by Colonel Phillimore and
it has not yet arrived. An English copy was sent and has
been processed and the original will be put in as soon as it
arrives. My Lord, I thought that we had got the original but
apparently it has not yet arrived, but it is an English
document put to the defendant.

THE PRESIDENT: Will you let Dr. Siemers see the original as
soon as it arrives?


(A recess was taken.)

THE PRESIDENT: The Tribunal has carefully considered Dr.
Siemers's application and it has decided that the passage to
which he objects and which he asks the Tribunal to strike
out in the affidavit of Walter Kurt Dietmann shall not be
struck out, in view of Article 19 of the Charter. The
passage contains an opinion only, and the Tribunal will
consider that opinion in relation to the whole of the
evidence when it is before the Tribunal, and will decide at
that time the probative value of this opinion as well as the
probative value of the other evidence.

                                                  [Page 246]

DR. SIEMERS: Then I just have -

THE PRESIDENT: Dr. Siemers, may I remind you that you told
us that your re-examination would take, you hoped, about
half an hour?

DR. SIEMERS: Yes, Mr. President, I shall conclude very


Q. Grand Admiral, in connection with this commando decree
which we have discussed at considerable length. Sir David
yesterday put a case to you regarding the attack on the ship
Tirpitz. In this connection I should like to ask you: Do you
recall that in the testimony of Wagner there was the
question of a British sailor named Evans?

A. Yes.

Q. And do you recall also that, according to the affidavit
of Flesch, Flesch declared: "I am unaware of the fact that
Evans wore a uniform"?

A. Yes.

Q. Then I do not need to submit the document to you?

A. No, I recall it.

Q. Do you recall further that it is said in that Document 7,
submitted on the same day as Wagner's testimony: "The
British sailor Evans was captured wearing civilian

A. Yes. I have the document here.

Q. And that was one case where the SD, obeying the commando
order, committed a murder without the knowledge of the Navy?

A. Yes. This man had been apprehended by the SD or the
police, not by the Navy. He had only been interrogated in
the meantime by the Admiralty.

Q. The second case of which you are accused is the sabotage
attack on German ships near Bordeaux. I clarified this
situation in Wagner's testimony the other day.

Do you recall that this document also states that these men
tried to escape to Spain in civilian clothes?

A. Yes, that is true.

Q. Grand Admiral, when using the small fighter craft
mentioned yesterday under the command of Vice-Admiral Heye,
did our soldiers ever wear civilian clothing?

A. No, never.

Q. Always uniform?

A. Yes, always uniform. These craft were a weapon just like
submarines, speed-boats, etc.

DR. SIEMERS: As my last point, Mr. President, I should like
to point out that yesterday Colonel Pokrovsky submitted a
document which deals with the Moscow notes.

COLONEL POKROVSKY: My Lord, the point is that yesterday the
Tribunal made a decision about submitting to counsel for the
defence extracts from that document. Today the Prosecutors
have exchanged opinions, and the United States prosecution,
represented by Mr. Dodd; the British, represented by Sir
David Maxwell Fyfe, and the Soviet, by myself, have agreed
that it is necessary for us to request you to permit us to
read into the record here today, so that it will be included
therein, the three brief extracts referring to Donitz, to
Keitel, and to Jodl. These are the excerpts which,
yesterday, the Tribunal did not find possible to have read
into the record as evidence. We understood that the Tribunal
came to this decision because of lack of time for a thorough
consideration, as the session was so prolonged.

                                                  [Page 247]

Due to these circumstances these three extremely important
excerpts - important from our point of view - whose accuracy
was confirmed yesterday by the defendant Donitz, have not
been included in the transcript of the session. For that
reason I am requesting just about five minutes time to read
these excerpts into the record today, on behalf of the
prosecution of the three countries.

THE PRESIDENT: What would be the most convenient course, Dr.
Siemers? Would you like to have them read now so that you
can put any questions upon them?

DR. SIEMERS: Mr. President, I have the following to say
about this document: The Soviet Delegation has been kind
enough to put the original at my disposal. I perused this
yesterday, and I looked at the extracts. The Soviet
Delegation desires to retain the original but has also been
kind enough to put instead a photo-static copy of the
extracts involved at the disposal of the High Tribunal. I am
completely in agreement with the suggestion, but I
personally have no intention of putting any questions on
this document, which is clear to me.


DR. SIEMERS: And so I would like to ask that the resolution
put forth by the High Tribunal yesterday be upheld, that
this should not be read, just as other documents generally
well known were not read out either.

THE PRESIDENT: Colonel Pokrovsky, the document was
originally in German. Presumably it has been translated into
Russian; it has certainly been translated into English.
Unless the French members of the French prosecution want it
read, if it has not been translated into French there does
not seem to be any use in taking up the time of the Tribunal
by reading it into the record. We have got the document in
English, and we have all read it.

MR. DODD: Mr. President, I think there is one reason. Even
if it is read into the record, it will, at the earliest, be
tomorrow before the transcript is available for the
defendants who are referred to, and this witness, or this
defendant, will be off the stand. If they want to cross-
examine about what he has said about them, then we will
have, I suppose, to bring this defendant back on the stand.
I think we will lose far more time by doing that, instead of
letting Colonel Pokrovsky take five minutes to read it now.
They will all hear it, and then if they want to examine
about it, they can do so promptly.

THE PRESIDENT: Very well, very well.

Dr. Siemers, if you do not want to ask any questions about
it, you can conclude your re-examination now, and then
Colonel Pokrovsky can read the document. Then any of the
other defendants can question the witness if they want to,
upon it.


THE PRESIDENT: Would that not be the best way, Colonel

COLONEL POKROVSKY: Yes, certainly.

DR. SIEMERS: I am agreed, Mr. President, but I do believe
that this document need not be read, because Mr. Dodd was
somewhat mistaken when he said that the defendants are not
familiar with it. They and their counsel are thoroughly
familiar with it. I believe everyone knows it, and I do not
think that it needs to be read. However, in the final
analysis, it really makes very little difference to me

THE PRESIDENT: If the defendants' counsel do not want it
read then the Tribunal does not want to have it read unless
defendants' counsel want to ask questions upon it.

DR. KRANZBUHLER: Mr. President, I, as defence counsel for
Admiral Donitz, am not interested in having the document
read. I know the document.

                                                  [Page 248]

DR. SIEMERS: I have just been advised that defence counsel
know the document, do not put any value on having it read
and do not wish to put any questions.

THE PRESIDENT: Well then, Mr. Dodd and Colonel Pokrovsky, it
does not seem that it serves any useful purpose to have it

MR. DODD: No, I am satisfied, your Honour. I have not heard
from Keitel's counsel; I assume he is satisfied. I am just
concerned lest at some later date some questions may be
raised, but I am also in sympathy with desires of these
defendants not to have it read publicly.

The defendant Schacht's counsel has not spoken either. I
think it might be well, Mr. President, if we had a
considered statement from counsel for each of these men that
they do not want to question or, if so, that we can be
completely sure that it will not be raised again.

THE PRESIDENT: Well, I think the defendants' counsel are all
here or all the defendants are represented, and they must
clearly understand what I am saying, and I take it from
their silence that they acquiesce in what Dr. Siemers has
said, that they do not wish the document to be read and they
do not wish to ask any questions.

COLONEL POKROVSKY: I have not understood your decision, my
Lord. Are you permitting me to read into the record these
few excerpts or are you not?

THE PRESIDENT: No, Colonel Pokrovsky; I am saying that as
the defendants' counsel do not wish the document to be read
it need not be read.

COLONEL POKROVSKY: We give a great deal of importance and
significance to this document as it involves not only the
interests of the defence but also those of the prosecution.
The document was accepted by the Tribunal yesterday, but for
some reason only a very small part of it was included in the
stenographic record for the day. I do not see any reason why
these excerpts should not be read into the record now, and
why the witness Raeder, who intimately knew the defendants
Donitz, Keitel and Jodl, should not hear the excerpts here
and now.

THE PRESIDENT: Colonel Pokrovsky and Dr. Siemers, the
Tribunal ruled yesterday that it was unnecessary that the
document should be read, and the Tribunal adheres to that
decision in view of the fact that the defendants' counsel do
not wish it to be read and have no questions to put upon it.

Yes, Dr. Siemers.

DR. SIEMERS: Mr. President, I will now conclude my
examination of Grand Admiral Raeder. I do not know whether
other questions will be put to Grand Admiral Raeder.

THE PRESIDENT: Is there any question arising out of the
cross-examination, which the defendants' counsel want to

DR. KRANZBUHLER: I should like to put two questions, Mr.


Q. Grand Admiral, in cross-examination you were confronted
with orders and memoranda as to the U-boat warfare.

A. Yes.

Q. Do you consider yourself responsible for these decrees
dealing with U-boat warfare which you issued during your
term as Commander-in-Chief of the Navy?

A. I consider myself fully responsible for all decrees
issued as to the U-boat warfare which took place under my
responsibility as well as every naval operation which I
ordered. In the SKL (Naval Warfare Staff) and together with
the officers of the SKL I worked out these directives, I
approved memoranda and in accordance therewith I gave my
orders. The Commander-in-Chief U-boats was solely the
tactical commander of U-boats. He transmitted the orders and
he carried through the details of the operations.

                                                  [Page 249]

Grand Admiral, yesterday Sir David charged you that he could
not determine who actually gave the orders to change the log
book of the U-boat which sank the Athenia. Admiral Goth
testified in answer to my question that he had issued this
order at the request of Admiral Donitz. Do you know of any
facts which would show this testimony of Admiral Goth to be

A. Actually I was never concerned with this case. I only
decreed the three points which have come up here several

Q. Therefore, you consider Admiral Goth's testimony as being

A. I assume that it is correct since everything else he said
was very reliable.

DR. KRANZBUHLER: I have no further questions, your Honour.

THE PRESIDENT: The defendant can return to the dock.

DR. SIEMERS: Then, with the permission of the High Tribunal
I should like to call my first witness, the former Reich
Minister of the Interior, Severing.

KARL SEVERING, called as a witness, took the stand and
testified as follows:


Q. Will you state your full name, please.

A. Karl Severing. I am 70 years old and I live in Bielefeld.

Q. Wait one minute. Will you repeat this oath after me:

I swear by God, the Almighty and Omniscient, that I will
speak the pure truth and will withhold and add nothing.

(Witness repeated oath.)

THE PRESIDENT: You may sit down.

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