Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-123.10
Last-Modified: 2000/02/24

SIR DAVID MAXWELL FYFE: If Your Lordship please.

Will your Lordship just allow me a moment to get my papers,
I am afraid I have only the prosecution's objections in
English, but it may help those of the Tribunal who do not
understand English to have the numbers, at any rate, in
front of them.

My Lord, the first group are documents which the prosecution
submits have no probative value. These are D-53. My Lord,
the "D" in this case stands for Donitz Document Book. D-53,
Page 99, and D-49, Pages 130 and 131; D-51 and D-69.

My Lord, the first of these, D-53, is a letter from a
prisoner-of-war camp, purporting to be signed by 67 U-boat
commanders and in purely general terms. The prosecution
submits that that is not helpful, either from its form or
from its material.

My Lord, D-49, which is at Page 130 to 131, is again in
entirely general terms and contains no indication of the
moral or legal basis for the opinion expressed.

D-51 and D-69 are both newspaper reports.

THE PRESIDENT: Wait a minute, Sir David. 130? I have not a
Page 131. Is it an affidavit, or was it called an affidavit?

SIR DAVID MAXWELL FYFE: Yes, my Lord.

THE PRESIDENT: "On the basis of the documents of the Navy
Court archives at ..." Oh yes, I think the Document Book has
got a bit out of order.

SIR DAVID MAXWELL FYFE: Yes, my Lord, maybe so.

THE PRESIDENT: Is it a sworn affidavit by somebody or other?

SIR DAVID MAXWELL FYFE: Yes, my Lord.

My Lord, 130 comes immediately before.

THE PRESIDENT: I have it now, yes. 131 comes somewhere
before 130.

SIR DAVID MAXWELL FYFE: That is it, my Lord. It is an
affidavit by a former fleet judge, and your; Lordship sees
that the description which the prosecution gives of it as
being in entirely general terms is, I submit, justified by
the wording of the document, and it is difficult to see the
basis which the learned opponent seems to profess for his
statements.

My Lord, D-51, Page 134, is an extract from the Volkischer
Beobachter of 20th March, 1945, and the prosecution submits
that the subject which it deals with is irrelevant to the
matters developed against the defendant Donitz.

Number 69 is another newspaper report from the same paper of
i4th November, 1939, giving a list of armed British and
French passenger ships.

Now, my Lord, the second group which we dealt with are those
irrelevant documents, D-5, D-9, D-10, D-i2, D-13, D-29, D-
48, D-60, D-74.

Now, my Lord, the first of these, D-5, on the subject of
Norway, seeks to introduce by way of a footnote a summary of
the documents which the Tribunal dealt with when considering
the documents in the case of the defendant Raeder,

                                                  [Page 195]

with regard to which the Tribunal expressed its doubts,
although it allowed them to be translated. The Tribunal will
remember that with regard to the Donitz documents it was
thought convenient to have them translated without a
preliminary argument.

Now, my Lord, the same argument applies to a footnote to a
speech of the defendant von Ribbentrop, a summary of
documents which came into German possession long after the
speech of the defendant Ribbentrop was made. The prosecution
submits it is irrelevant.

And the documents, 9, 10, 12 and 13 deal with the rescue of
Allied survivors in the years 1939 to 1941 inclusive.

THE PRESIDENT: Oh yes.

SIR DAVID MAXWELL FYFE: My Lord, that last statement, "and
all apparently unsworn," is an error. It ought to be that D-
13 is apparently unsworn.

Now, my Lord, with regard to that, the position is, that
whereas it is quite true that a non-rescue order was issued
by the defendant before the 27th of May, 1940, the really
important period is around about 17th September, 1942. It
seemed to the prosecution unnecessary to go into these
details for the earlier period. There is no real doubt that
there were some rescues; the only point which the
prosecution is putting against the defendant is that he did
issue an order, which the prosecution has proved, forbidding
rescue when there was any danger.

THE PRESIDENT: What was the date you gave us, 17th of
November, 1942?

SIR DAVID MAXWELL FYFE: My Lord, the non-rescue order is
before 27th May, 1940. We cannot give the exact date, but we
know from a reference in another order that it must have
been before 27th May, 1940. And the order with regard to the
destruction of the crews of merchant ships is 17th
September, 1942; 17-9-42.

Now, my Lord, the Document No. 29 contains four documents
dealing with the evidence of the witness Heisig. The first
purports to be an affidavit by a witness who testifies to
the sort of statements the defendant Donitz usually made and
does not remember what was said on the particular occasion
referred to by the witness Heisig; and it contains a good
deal of argument.

The second is a letter sent to Counsel for the defendant
Donitz, and, with the exception of one sentence, denying
that the defendant spoke in the sense alleged by Heisig; the
remainder of the statement which, of course, is unsworn, is
either argument or is vague or irrelevant.

The remaining two documents, both apparently unsworn,
contain allegations against the character of the witness
Heisig. The Tribunal will remember that no allegations were
made against him, that there was no cross-examination in
regard to his character when he gave his evidence. And the
second deals with other lectures which are not those in
question.

Now, my Lord, the next document, D-48, deals with the
alleged good treatment of Allied prisoners in German Naval
prisoner-of-war camps, on which subject no issue has been
raised with this defendant.

D-60, Page 209, deals with Italian and French declared
danger zones, which, the prosecution submits, has no
relevance to these declared by the Germans.

D-74 and D-60, Page 256, deal with the relationships between
the British and French merchant marines and their respective
navies, and the prosecution submits that they are irrelevant
as far as the British Navy is concerned, if they have any
relevance cumulative of D-67.

Now, my Lord, the third group are details of the Contraband
Control System and they are D-60, Pages 173 to 198 D-72; D-
60, Pages 204 to 205 and Pages 219 to 225.

My Lord, these documents deal with the details of the
contraband control, what articles were contraband,
declarations of different governments, and it is submitted
that details of the contraband control are remote from the
issues raised

                                                  [Page 196]

and entirely irrelevant. I do not think in the presentation
against either of the Naval defendants questions of
declarations of contraband were mentioned at all, certainly
not in regard to the defendant Donitz; and, in the
submission of the prosecution, it is really introducing
matters which are, I am sure, not helpful to the problems of
this case.

The fourth group, which can only be described in very
general terms, are allegations against the Allies. My Lord,
the general objection I set out in the first paragraph is
this: These documents consist of various allegations against
the Allies; they appear to have little or no relevance to
the issues, and if submitted might necessitate the
prosecution seeking the facilities to rebut the allegations;
in which case a large volume of evidence in rebuttal might
be entailed.

Then other affidavits deal with allegations that the Allies
did not pick up survivors; 367, Pages 96 and 90.

31 and 32 deal with Allied attacks on German Air-Sea Rescue
planes; 33 accuses a Soviet submarine of sinking a hospital
ship.

And three, Nos. 37, 38 and 40, the last being a newspaper
report, allege that the Allies shot survivors. My Lord, the
question of Allied treatment of survivors is dealt with
exhaustively by an extract from the German Naval Diary and,
my Lord, that we are not objecting to because there it is
important not as evidence of the facts stated, but as
evidence of the matters that had an effect on the German
Naval Command. For that purpose I am quite ready that Dr.
Kranzbuhler should put them in and the Tribunal should
consider them. And there is another document which deals
with that point quite fully, and I am quite prepared to let
that go in.

Then, my Lord, the remainder allege either ruthless actions
or breaches of International Law by the Allies, and these
are Nos. 19, Page 24, the Goering Exhibit; Nos. 7 and C-21,
Page 91; 47, Pages 120, 121, which is also a newspaper
report; 52, 60, Pages 152 and 208; D-75, 81, 82, 85 and 89.

Now, as I understand the defence that is submitted here -
the allegation with regard to the order which we say sets
out the destruction of survivors - it is not that it was a
reprisal, but the defence is that the order did not mean
destruction but merely meant non-rescue.

On that basis, it seems difficult, indeed, impossible, to
appreciate how these matters become relevant at all.

And similarly with regard to the order for shooting
commandos. The justification alleged for the order is set
out in the order itself. I have not heard any defendant set
forth any justification of that order in giving evidence
before the Tribunal. Every one of the defendants so far has
said this order was given by Hitler and "whether we approved
of it or not we had to carry it out."

So that in my submission there is not even the argument
which is fore-shadowed, that breaches of the laws and usages
of war can be on certain occasions properly committed as
reprisals. It is not put forward from that point of view;
there is no admission here, as I understand the defence, of
breaches for which reprisal is the answer. Therefore, the
prosecution submits that these documents are also
irrelevant.

My Lord, again I tried to put it as shortly as possible
because I did not want to occupy too much time, but I tried
to correct them and describe those which seemed of greatest
importance.

THE PRESIDENT: Sir David?

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: The Tribunal would like to know why this
matter of the admissibility of these documents has not been
argued before. In the other cases with which we have dealt,
the question of the admissibility has been dealt with, first
of all, by you offering your criticisms and objections, and
then the defendant's Counsel being heard in reply. Then the
Tribunal has ruled.

                                                  [Page 197]

SIR DAVID MAXWELL FYFE: My Lord, as I understand the
position, we did put in objections to the documents and Dr.
Kranzbuhler suggested that he would very much prefer the
documents to be translated and the objections taken at a
later stage. And I was certainly informed that the Tribunal
agreed with that and ordered the documents to be translated.

THE PRESIDENT: That may be, for the purposes of translation.
But, that does not mean that they are necessarily
admissible. And in most of the other cases, if not all, as
you will remember, we have had an argument in open session
in which you, or one other member of the prosecution, have
made your objections, and then the defendant's Counsel has
replied to these objections.

SIR DAVID MAXWELL FYFE: My Lord, Dr. Kranzbuhler has just
handed - yes -

  The ruling is: "The Tribunal has ruled that the documents
  mentioned in your application may be translated, but that
  the question of their admissibility is to be decided
  later."

My Lord, I am afraid I am at fault there. It did not occur
to me, if I may be quite frank with the Tribunal, that I
should have come before the beginning of the case of Donitz
to make this argument. I am very sorry, and I must accept
responsibility. I assumed, without real justification, that
that meant the argument of admissibility would come at the
beginning, or at some convenient time in the case of Donitz.
I am very sorry, my Lord, and I can only express my regret.

My Lord, there is this excuse: We had three of the books on
Saturday, and we only received the last one yesterday.
Therefore, we really could not have done it before today,
even if I had thought of it.

THE PRESIDENT: Dr. Kranzbuhler, the Tribunal considers that
in view of the large number of documents to which the
prosecution objects, it will be highly inconvenient to have
you answer Sir David Maxwell Fyfe's argument as you go
through your documents, and therefore that you must answer
now and deal with them in the way in which the other Counsel
have dealt with these objections to the admissibility of
documents. Then the Tribunal will be able to consider the
arguments that Sir David Maxwell Fyfe has put forward and
the arguments that you but forward in support of the
documents.

DR. KRANZBUHLER: Mr. President, I should like to point out
that just because of the many objections which the
prosecution makes against the documents, I have for
practical purposes to present all my documents, for the line
of thought pursued in presenting documentary evidence
implies a definite order of presentation and I cannot take
out one document or another without disturbing this line of
thought. Therefore, I believe it would save considerable
time if the Tribunal would permit me to answer the
objections when I come to the particular document.

THE PRESIDENT: What difference could it make, assuming that
the decision of the Tribunal is the same, whether you argue
the matter now or whether you argue the matter afterwards?
The documents which will remain, which will have been held
to be admissible, will be the same. Therefore, there is no
difference. I can't see any argument in favour of what you
are saying.

DR. KRANZBUHLER: Mr. President, my documentary material,
exactly like that of the prosecution, is organized with a
definite purpose in mind and according to a definite idea.
If, of the fifty documents which are contained in my
documentary material, I have to argue about forty, then ten
are lacking. Therefore it seems to me proper for me to
discuss all fifty, in the order in which I intended to
submit them to the Tribunal.

If the Tribunal is of the opinion that the reasons given for
the relevancy of the different documents are not sufficient,
then the objectionable document can

                                                  [Page 198]

be withdrawn or refused. However, it seems expedient to me
that I present my arguments in the order which I have been
intending to follow, and not in the order in which the
prosecution is now making its objections. That defeats my
purpose and disturbs my line of thought and, as defence
Counsel, I believe it is my task to present my own line of
thought and not to reply to the line of thought pursued by
the prosecution or to their objections.

THE PRESIDENT: Well, if that is so, then you can present
your argument upon the relevancy of the documents in the
order in which they come.

DR. KRANZBUHLER: Yes.

THE PRESIDENT: But you have to do it now.

DR. KRANZBUHLER: Yes, Mr. President.

THE PRESIDENT: You can begin with D-5, which is the first,
and then go on with D-9 and D-10; take them in the order in
which they stand.

Dr. Kranzbuhler, the Tribunal does not see any reason why
you should be dealt with in a different way from which the
other counsel I have been treated. Therefore they think that
you ought to be prepared to deal with these documents in the
way in which they are grouped here. They would prefer that
you should deal with them now, if you can deal with them in
a reasonably short space of time. Then they will be able to
determine the question of which documents shall be admitted
during the adjournment. Otherwise, they will have to adjourn
tomorrow for a consideration of that matter, which will
still further hold up the trial.

DR. KRANZBUHLER: Mr. President, of course, I can make
general statements as to the groups which the prosecution
has referred to, but I cannot refer to the individual
documents with the necessary detail to establish their
relevancy unequivocally. That is impossible for me to do,
confronted as I am by a list which I have not seen before.

Therefore I should like to ask, if I am to give reasons for
each individual document now, that I be given an opportunity
to do that tomorrow morning.

However, if the Tribunal wishes only to hear general remarks
about the groups, I can do that right now.

THE PRESIDENT: Very well, Dr. Kranzbuhler. The Tribunal will
adjourn now, and we will hear you upon these documents at
9.30 tomorrow morning.

DR. KRANZBUHLER: In open session, Mr. President?

THE PRESIDENT: In open session, certainly, yes.

(The Tribunal adjourned until Wednesday, 8 May, 1946, at
0930 hours.)

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