Chapter XXI: Book 1: , Page 7 (10)

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. Now, My Lord, the next application is in behalf of the Defendant Seyss-Inquart, and he asks for an interrogatory to be submitted to Dr. Stuckart 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 Defendant Frick asks for Dr. Konrad as a witness on the question of Church persecution, and the Prosecution suggest that an interrogatory would be sufficient on this point. 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 interrogatory, not between an oral witness and an interrogatory. Then, if I might leave the next one, the application on behalf of the Defendant Göring, to my friend Colonel Pokrovsky, who is going to deal with that. I pass to the applications of the Defendants Hess and Frank. That is Dr. Seidl’s application; and if I might just read what is stated in the Secretary General’s note, it is official information from the ministry of war of the United States of America, or another ministerial service official of the Office of Strategic Services. It is stated that such a report is desired to show that the 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 favors 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 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 to credit, 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 to credit, you may call a witness to say that, knowing the general reputation of the witness who has been cross-examined to credit, on that general reputation, and only on that general reputation, the witness would not believe him on it. 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 misdemeanor, he may be contradicted.

SIR DAVID MAXWELL-FYFE: Certainly; Your Lordship is quite right. I should have put that as an exception; that if he is cross-examined as to a specific conviction, then the conviction may be proved. I am very grateful to Your Lordship. But, My Lord, what is not permissible in English jurisprudence is that when a witness has been cross-examined to credit on particular facts other than a conviction by the State, evidence may be adduced as to these particular facts. I should submit that the principle which I am sure obtains in all systems of jurisprudence, _interest rei publicae ut sit finis litium_ must apply and support that condition. Now, I will put it in English—I am sorry. “It is in the interest of the community that there should be an end of the legal proceedings.”

My Lord, if one did not apply the limit which English jurisprudence has applied, one would then call evidence to attack the credit of witnesses for the Prosecution. The Prosecution would then render a rebuttal and call evidence to attack the credit of each of these witnesses who had attacked the credit of the Prosecution’s witnesses and there would never be an end to legal proceedings at all. My Lord, on that point which is a general point—and I do not mean to be academic; it is a point of practical importance for preserving some decent limit to legal proceedings—I would submit that this application should be refused. My Lord, I think that covers all the points except the question of the Defendant Göring’s application with which my friend Colonel Pokrovsky will deal.

COL. POKROVSKY: The Defendant Göring is applying, My Lord, for the calling of supplementary witnesses in connection with the Katyn Forest shootings to clarify the matter from the point of view of the Wehrmacht. That is to say he intends to prove that German Armed Forces were not in any way concerned with this Hitler provocation. The Prosecution of the Soviet Union categorically protests.

THE PRESIDENT: Colonel Pokrovsky, we have this matter fully in our mind as we have already had to consider it; therefore, it is not necessary for you to deal with it in detail, for I understand that these are new witnesses who have not before been applied for.

COL. POKROVSKY: I had in mind the fact that the new witnesses have been called and I would like to inform the Tribunal of our exact point of view with regard to the calling of the new witnesses, without going into detail about the Katyn Forest incident. The Soviet Prosecution, from the very beginning, considered the Katyn Forest incident as common knowledge. The Tribunal can see, by the limited space allotted to this crime in the Indictment and by the fact that we found it possible to limit ourselves to reading into the record only a few short excerpts from the report of the Commission, that we consider this episode to be only an episode. If the question mentioned by Sir David should be raised, that is, the fact that the Tribunal may have doubts about the credibility of certain witnesses or certain documents accepted as evidence—then, once again, we would be forced to present new evidence in order to discredit the new material again presented by the Defense.

Thus, if the Tribunal considers it necessary to admit two new witnesses relative to the Katyn Forest shootings, the Soviet Prosecution will find itself obliged to call about ten more new witnesses who are experts and specialists, and to present to the Tribunal new evidence put at our disposal and which we have recently received—new documents.

Furthermore, we shall have to return to the question of reading into the record all of the documents of the Special Commission, excerpts from which were read before the Tribunal. We think that it will greatly delay the proceedings, and it will not be a matter of hours but of days. So far as we are concerned, there is no necessity for doing this, and I think that this request should be refused, since there is absolutely no basis or reason for it. That, My Lord, is what I wanted to say in regard to the Defendant Göring’s application.

I would also like to add a few words to what Sir David said in regard to Dr. Seidl’s application. I will not go into all our motives. We certainly support Sir David fully, and we consider that Dr. Seidl’s applications should be refused. But I want to report to you that this morning I signed a document which is being sent to you, Your Honor, and which contains a full and detailed statement of our motives and considerations in regard to this question; and this document is presented to the Tribunal. Therefore, without taking up your time, I have found another way of informing the Tribunal about our position.

THE PRESIDENT: Now, it is not necessary, I think, to ask counsel for the Defendant Schirach to address the Tribunal, because there is no objection to those two applications with reference to the witness Marsalek and the interrogatory of Kaufmann.

With reference to the Hess matter, the Tribunal will consider that. They are going to consider it as they said they would in their previous order.

With reference to the Defendant Funk, there is no objection to the affidavit of Kallus, and so unless counsel for Funk wants to address us upon it, we need not bother about that.

With reference to Streicher, there is an objection to Gassner as a witness, so perhaps the counsel for Streicher had better say anything that he wishes to say.

[_There was no response._]

Well, the Tribunal will consider that, then.

As to Sauckel there has been no objection. As to Seyss-Inquart, an interrogatory—there is no objection there.

As to the Defendant Frick, Sir David suggested an interrogatory. It was not quite clear whether the application meant that. Is counsel for the Defendant Frick here or not?

[_There was no response._]

Well, we will consider that. And with reference to Göring, the Tribunal will consider the applications for the Defendant Göring.

And with reference to Hess and Frank, as to Gisevius’ evidence—Dr. Seidl, do you wish to say anything about that?

DR. ALFRED SEIDL (Counsel for Defendants Hess and Frank): Mr. President, the application regarding the obtaining of official information from the minister of war was made for the sole purpose of obtaining evidence as to the credibility of the witness Gisevius. Afterwards I made another application to examine Secretary of War Patterson by means of an interrogatory dealing with the same subject. On the following day I made an application to examine the Chief of the O.S.S., General Donovan, also by means of an interrogatory. I think that this new application is in the hands of the Tribunal.

I have made this further application only because the first-named witness, Patterson, was minister of war for only a comparatively short period, and because it seemed helpful to have the chief of that organization himself as an additional witness. As a reason for these applications, I refer to my written statement of 1 May this year, which I have also submitted as Appendix 1 of the form. I further refer to Appendix 2, a report by Associated Press on this incident. I should like to reply very briefly to Sir David Maxwell-Fyfe’s statement here.

The Tribunal does not appear to be bound by any particular rules in dealing with the question of additional witnesses in connection with the credibility of other witnesses. Neither the Charter of the International Military Tribunal nor the regulations governing its procedure contain any definite rules. In my opinion, it is rather left exclusively to the free judgment of the Tribunal whether such additional evidence referring to the credibility of a witness should be admitted or not, and in what circumstances. In German criminal procedure such evidence is admissible without question.

However, since the Tribunal in setting up this procedure is not bound by any rules of procedure, I see no reason why the decision should be based on any of the customary Anglo-American legal procedure, since the Charter is not based on either the Anglo-American legal procedure or the continental European legal procedure. This Tribunal and its rules of procedure are entirely independent and give complete freedom to the judgment of the court.

That is all I wanted to say in that connection.

THE PRESIDENT: One moment, Dr. Seidl. Do the questions which you wish to put with reference to the witness Gisevius relate solely to credit?

DR. SEIDL: In my written application I have already said that as far as I am concerned, it is not a question of whether in certain circumstances the witness Gisevius was guilty of an action which from the German legal standpoint might constitute the crime of treason. I only put that question in connection with the examination of the credibility of the witness before the Tribunal.

THE PRESIDENT: That is what I thought. Now, one other question I wanted to ask you. Are these pacts or agreements, which you say existed between the Soviet Republics and Germany—are they published in print? Have all the documents which you wish to use been typewritten or mimeographed and circulated to the Tribunal?

DR. SEIDL: Mr. President, on 13 November of last year, I gave six copies of those five documents to the Secretary General, and I also gave a corresponding number of documents to the Prosecution. All these documents are typewritten, or, rather, they are mimeographed.

THE PRESIDENT: Yes.

DR. SEIDL: Perhaps I might add one point. On an earlier occasion the Tribunal admitted as evidence an affidavit made by Ambassador Gaus. This first affidavit is a statement of the contents of these secret agreements. It is my opinion...

THE PRESIDENT: I know that, yes.

DR. SEIDL: ...that if we have the agreements, we should refer to the agreements themselves and not merely to a summary. If the Tribunal so desires, and considers it necessary, then I should be prepared, now or at some later date, to discuss the relevancy of these agreements.

I have noted down eight points from which only these agreements appear relevant as evidence, and perhaps I may point out that these additional agreements...

THE PRESIDENT: The Tribunal has already ordered that these documents should be submitted, and they will then consider them and that is what they propose to do; so it is not necessary to go into them in detail. We will consider the matter.

DR. SAUTER: Mr. President, during the examination of Defendant Funk, a film was shown here on the screen and an affidavit by a witness—Puhl—was read—Emil Puhl, the Vice President of the Reichsbank. At that time, following an application of mine, the Tribunal decided that this witness, Emil Puhl, should be called here for examination. Now I should like to ask you to amend your decision in one respect. I think it would be useful to show to the witness Puhl the film which you saw on this screen a few days ago, so that he may state whether in fact the steel vaults of the Reichsbank looked as they were shown in this film.

I should like to ask, therefore, Mr. President, that you order this short film which we were shown twice recently to be shown also to the witness Puhl before his examination. It is, of course, not necessary that this should be done during a session of the Tribunal; it can be done in the presence of the prosecutor and myself, outside this courtroom. I have various questions to put to the witness Puhl, and for that it is necessary that he should first see this film. I wanted to make this application today so that there may be no delay when the witness Puhl is examined.

THE PRESIDENT: Does the witness Puhl know the vaults in Frankfurt which were photographed?

DR. SAUTER: Yes.

THE PRESIDENT: He was a director in Berlin, was he not?

DR. SAUTER: Yes; but I assume, Mr. President, that the witness Puhl, who was the managing Vice President, would also know the steel vaults in Frankfurt. Apart from that, I believe that these vaults in the various branches of the Reichsbank were all built on the same pattern, and were also treated in the same way in practice. He will be able, also, to state whether the method of safekeeping shown in the film was the type actually used by the Reichsbank in looking after deposits.

THE PRESIDENT: Has the Prosecution anything to say about this?

MR. RALPH G. ALBRECHT (Associate Trial Counsel for the United States): If Your Honor please, I think, as it is a document belonging to the case, we would be very glad to show them to the witness before he is cross-examined by Dr. Sauter.

THE PRESIDENT: Yes. And perhaps the most convenient way would be, as Dr. Sauter suggests, that he should be shown the film in some room in this court; not actually in this room, but in another room.

MR. ALBRECHT: Yes; we can do so in the presence of the Prosecution.

THE PRESIDENT: Then you can arrange that between yourself and Dr. Sauter?

MR. ALBRECHT: Very well, Sir.

DR. SAUTER: Thank you very much indeed.

THE PRESIDENT: Dr. Sauter, has any time been arranged for the calling of Puhl?

DR. SAUTER: No; nothing has been arranged yet. As far as I have heard, the witness is already here. I do not know when he is to be heard. I shall leave that entirely to the Prosecution.

THE PRESIDENT: What would be the most convenient time?

SIR DAVID MAXWELL-FYFE: My Lord, Mr. Dalton suggests to me, at the close of the case of the Defendant Dönitz.

THE PRESIDENT: Would that be convenient? Would it not be better to put it after the Defendant Raeder—I do not know, they are rather connected cases?

SIR DAVID MAXWELL-FYFE: If the Tribunal would prefer that, we could make it after Raeder.

THE PRESIDENT: I do not know whether Dr. Kranzbühler and Dr. Siemers would prefer that.

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE PRESIDENT: Perhaps you could arrange that with them.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord.

THE PRESIDENT: That is to say, we would take Puhl’s evidence as soon as convenient, either after the evidence on behalf of the Defendant Dönitz or after the evidence on behalf of the Defendant Raeder, whichever you prefer.

SIR DAVID MAXWELL-FYFE: If Your Lordship prefers, we will do that.

DR. LATERNSER: Mr. President, I should like to inform the Tribunal that my colleague Dr. Stahmer’s applications for the Defendant Göring, which were made with a view to clarifying the Katyn case, are also of interest to me with reference to my clients. I gathered from the application made by the Russian prosecutor that this complex, too, was submitted to implicate the General Staff and the OKW, although no evidence has been submitted to suggest that these events took place either by order or with the approval of the General Staff and the OKW.

THE PRESIDENT: Does this not, perhaps, interest all the defendants?

DR. LATERNSER: Yes. But I only wish to inform the Tribunal that I am interested in my colleague Dr. Stahmer’s applications, and that I also request you to allow them. We have agreed to share the task, and that is my colleague Dr. Stahmer’s reason for making the application. I wanted first to inform the Tribunal of that arrangement.

I should also like to remind the Tribunal that some time ago, when my colleague Dr. Nelte, acting on behalf of the Defendant Keitel, forfeited the examination of the witness Halder, I pointed out to the Tribunal that this action encroached upon my privileges, and that the witness Halder must be allowed for cross-examination by the Russian Prosecution. At that time, I was told that the witness Halder would probably appear for examination, and I have checked it in the record. When I referred to the point during that session, the Tribunal said that it would announce its decision in a few days. Although some considerable time has elapsed since then, no announcement has been made. I merely draw the attention of the Tribunal to this point.

THE PRESIDENT: Your witnesses have not been dealt with yet, have they? You have not applied for your witnesses yet? They have not been proffered? The matter has not been dealt with?

DR. LATERNSER: Mr. President; this is a repetition of the misunderstanding which arose when I pointed out to you at that time that the forfeiture of the witness Halder constituted an infringement of my rights. The situation at the time was that the Russian Prosecution submitted an affidavit made by General Halder, and when the Defense objected, which at that time was done in my name too, the Tribunal decided that the witness Halder would have to appear for examination here. I have the right to cross-examine him, and therefore this is the proper time to call that to the attention of the Tribunal.

THE PRESIDENT: Yes, but the convenient time is the question. You will have the opportunity to cross-examine him. But the question is when. You want to cross-examine him yourself on behalf of the High Command?

DR. LATERNSER: Yes.

THE PRESIDENT: We will consider that, Dr. Laternser.

The Tribunal will now adjourn.

[_The Tribunal adjourned until 13 May 1946 at 1000 hours._]

ONE HUNDRED
AND TWENTY-EIGHTH DAY
Monday, 13 May 1946

_Morning Session_

FLOTTENRICHTER KRANZBÜHLER: With the permission of the Tribunal I would like to submit my remaining documents, and then call Admiral Wagner as my first witness.

The next document I come to is Dönitz-37. It is an extract from _Dokumente der Deutschen Politik_ on the _Altmark_ case. I do not propose to read it. It concerns a report of the captain of the _Altmark_, which shows how the sailors of the _Altmark_ were shot at while trying to escape by water and across the ice. There were seven dead. It can be found, Mr. President, on Page 78 of Volume II; from Page 79 it can be seen that this action on the whole found full recognition in spite of the casualties which, no doubt were regretted by the Admiralty too.

The next document, Dönitz-39, has partly been read by Sir David Maxwell-Fyfe during cross-examination. It can be found on Page 81 and the following pages. It deals with the question of reprisals following a report received regarding the shooting of survivors of the German mine-layer _Ulm_.

On Page 83 there is a summary regarding the incidents which had been reported to the Naval Operations Staff at that time and which contained examples dealing with cases where survivors were shot at by Allied naval forces. I am not so much interested in these 12 actual examples as in the attitude adopted by the Naval Operations Staff in transmitting these examples to the OKW. It is so important that I would like to read the three sentences. They are on Page 83, at the top.

“The following accounts deal with incidents which have already
been reported, and in making use of them it must also be
considered that:

“a) some of these incidents occurred while fighting was still
going on;

“b) shipwrecked persons swimming about in the water easily think
that shots which missed their real target are directed against
them;

“c) so far no evidence whatsoever has been found that a written
or oral order for the shooting of shipwrecked persons has been
issued.”

The idea of reprisals did not only occur to the Command, but it also occurred to the personnel serving on the ships at the front.

Now, we come to Document Dönitz-41, which is on Page 87 and deals with a conversation between Admiral Dönitz and a commander. The conversation took place in June 1943, and it is dealt with in an affidavit made by Korvettenkapitän Witt. Following descriptions of attacks made by British fliers on shipwrecked German submarine crews, the opinion was expressed by the crews that in reprisal the survivors of enemy ships should also be shot at.

The affidavit also says in the third paragraph:

“The Admiral sharply declined the idea of attacking an enemy
rendered defenseless in combat; it was incompatible with our way
of waging war.”

In connection with the Prosecution’s Exhibit GB-205 I shall submit a document of my own which deals with the question of terroristic actions. It is an extract from Exhibit GB-194 of the Prosecution, and it can be found on Page 91. It deals with the question of whether the crews of scuttled German ships should be rescued or not. The French press tends to say they should not, in view of the pressing need of the Allies for freight space. The same entry contains a report according to which British warships also had special instructions to prevent further scuttling of German ships.

I now shall try to prove that the principle according to which no commander undertakes rescue actions if he thereby endangers a valuable ship is justified. For that purpose I refer to Document Dönitz-90, which is in the Volume IV of the document book, Page 258. It is an affidavit of Vice Admiral Rogge, retired. He reports that in November 1941 his auxiliary cruiser was sunk from a great distance by a British cruiser and that the survivors had taken to the boats. They were towed away by a German submarine to a German supply ship and this supply ship too, a few days later, was sunk from a great distance by a British cruiser. Once again the survivors took to the boats and to floats. The affidavit closes with the words:

“At both sinkings no attempt was made, presumably due to danger
involved for the British cruiser, to save even individual crew
members.”

The principle that a valuable ship must not risk rescue actions to save even members of its own crew is expressed with classical clarity and severity in the British Admiralty Orders which I have already submitted as Dönitz-67. The extract is printed on Page 96. There it says:

“Aid to ships attacked by submarines: No British ocean-going
merchant ship should aid a ship attacked by U-boats. Small
coastal ships, fishing steamers, and other small ships with
little draught should give all possible aid.”

The next document I submit is Dönitz-44, which is on Page 97. It is a questionnaire for Vice Admiral Kreisch who, according to a decision by the Tribunal, was interrogated in a British camp for prisoners of war. From January 1942 to January 1944 he was the officer in charge of submarines in Italy, which means that he was responsible for submarine warfare in the Mediterranean. According to his statements he knows of no order or suggestions regarding the killing of survivors. He advised his commanders that rescue measures must not endanger the task and safety of their own ships.

In connection with the question whether Admiral Dönitz was a member of the Reich Government I should like to ask the Tribunal to take judicial notice of the German Armed Forces Law of 1935 which can be found on Page 105 of Volume II of my document books. Paragraph 3 will show that there was only one Minister for the German Armed Forces and that was the Reich Minister of War. On the following page in Paragraph 37 it is shown that this one Minister was assigned the right to issue legislative orders.

On Page 107 I again have the decree which has been submitted to the Tribunal as Document 1915-PS, in which, dated 4 February, the post of the Reich Minister of War is abolished and the tasks of his Ministry are transferred to the Chief of the OKW. No new Ministry for the Army or the Navy is established.

The Prosecution has described Admiral Dönitz as a fanatical follower of the Nazi Party. The first document to prove this statement is dated 17 December 1943; it is Exhibit GB-185. Considering the time factor, I shall refrain from reading a few sentences from it to show that anything that Admiral Dönitz may have said about political questions was said from the point of view of the unity and strength of his sailors. May I ask the Tribunal to take judicial notice of this document, which again appears on Pages 103 and 104 of Volume II.

I only want to draw your attention to the last paragraph on Page 104. It deals with the handing over of Navy shipyards to the Ministry of Armament in the autumn of 1943. It is an important question, important for the responsibility regarding the use of labor in the shipyards, and has been touched upon repeatedly in this Court. This sole tendency toward unity becomes clear from yet another document of the Prosecution from which I propose to read one sentence. It is Exhibit GB-186. In the British trial brief it is on Page 7. I shall only read the second and third sentences: “As officers we have the duty to be guardians of this unity of our people. Any disunity would also affect our troops.” The following sentence deals with the same thought at greater length.

THE PRESIDENT: British trial brief, Page 7? Mine has only five pages. You mean the document book?

FLOTTENRICHTER KRANZBÜHLER: It is the British document book; not the trial brief, but the document book, second and third sentences on Page 7, which I have read, Mr. President.

The fact that Admiral Dönitz was not a fanatical follower of the Party but on the contrary fought against a political influence exercised upon the Armed Forces by the Party is shown in my following document, Dönitz-91. It is on Page 260 of Document Book 4. It is an affidavit from the chief of the legal department in the High Command of the Navy, Dr. Joachim Rudolphi. The Soviet Prosecution has already used this document during its cross-examination. I should like to give a brief summary of the contents:

In the summer of 1943 Reichsleiter Bormann made an attempt through the Reich Minister of Justice to deprive the Armed Forces courts of their jurisdiction in so-called political cases. They were to be transferred to the Peoples’ Court and other courts. The attempt, however, failed. It failed due to a report which Admiral Dönitz made verbally to the Führer on this subject and during which he violently opposed the intentions of the Party. After the assassination attempt on 20 July, Bormann renewed his attempt. Again Admiral Dönitz raised objections, but this time without success. A decree was issued on 20 September 1944 which deprived the Armed Forces courts of their jurisdiction regarding so-called political perpetrations. This decree, which was signed by Adolf Hitler, was not carried out in the Navy by explicit order of the Commander-in-Chief of the Navy.

I shall read the last paragraph but one of the affidavit, which says:

“This attitude of the Commander-in-Chief of the Navy made it
possible for the Navy, as the only branch of the Armed Forces
until the end of the war, not to have to transfer to the
Peoples’ Court or to a special court any criminal procedures of
political coloring.”

On page 113 in Volume II of my document book I have included a lengthy extract from Exhibit GB-211, a document of the Prosecution; and this is an application by the Commander-in-Chief of the Navy addressed to the Führer and asking for supplies for the construction and repair of naval and merchant ships. During the interrogation and cross-examination of Admiral Dönitz this document has already been referred to. I should merely like to point out that this is a memorandum containing more than 20 pages; the Prosecution took up two points contained therein.

The origin of the document is dealt with in Document Dönitz-46, Page 117 and the following pages. This is an affidavit from the officer who had drafted this memorandum. I can summarize the contents. The memorandum is concerned with measures which did not actually come within the sphere of the Commander-in-Chief of the Navy. It arose on the basis of a discussion which took place between all departments taking part in the construction and repair of war and merchant vessels. All these measures are summarized in this memorandum. The point objected to in particular by the Prosecution as amounting to a suggestion in favor of punitive measures against sabotage in shipyards is dealt with in detail on Page 119. I should like to point out particularly that at that time seven out of eight ships under construction were destroyed by sabotage.

It was not a question of terror measures but of punitive measures entailing the forfeiting of certain advantages and, if necessary, the concentration of workers in camps adjoining the shipyards, so as to cut them off from any sabotage agents.

Following Exhibit GB-209 of the Prosecution, which deals with the alleged renunciation of the Geneva Convention, I submit Dönitz-48, which is on Page 122 and the following pages. It will show the model treatment afforded Allied prisoners of war in the only prisoner-of-war camp which was under the jurisdiction of Admiral Dönitz as the Commander-in-Chief of the Navy.

To begin with, the document contains an affidavit from two officers who dealt with prisoner-of-war affairs in the High Command of the Navy. This statement is to the effect that all the suggestions of the International Red Cross regarding these camps were followed.

The next extract is a report by the last commandant of that camp, Korvettenkapitän Rogge, and I should like to read the second paragraph from that report:

“In the camp Westertimke there were housed at my time about
5,500 to 7,000, at the end 8,000, prisoners of war and internees
of different nations, mainly members of the British Navy. The
camp had a good reputation, as was generally known. It was the
best in Germany. This was expressly stated at a congress of
British and other prisoner-of-war physicians of all German
camps, which took place in Schwanenwerder near Berlin at the
villa of Goebbels about December 1944. This statement was
confirmed by the British chief camp physician in Westertimke,
Major Dr. Harvey, British Royal Army, whom I am naming as a
witness.”

I shall also read the last paragraph on Page 126:

“As I was deputy commandant I stayed at the camp up to the
capitulation and gave up the camp in the regular way to British
troops who were quite satisfied with the transfer. Squadron
Leader A. J. Evans gave me a letter confirming this. I enclose a
photostat of this letter.”

This photostat copy appears on the following page, and it says:

“Korvettenkapitän W. Rogge was for 10 months chief camp officer
at the Marlag Camp at Westertimke. Without exception all the
prisoners of war in that camp have reported that he treated them
with fairness and consideration.”

Then follows another affidavit from the intelligence officer in that camp. I should like to point out that this officer was born in February 1865 and that his age alone would, I think, exclude the use of any terror measures. I shall read from Page 129, the third from the last paragraph:

“No means of pressure were employed at Dulag Nord. If a man told falsehoods he was sent back to his room and was not interrogated for 2 or 3 days. I believe I can say that no blow was ever struck at Dulag Nord.”

I should now like to refer briefly to the accusation raised against the defendant according to which he as “a fanatical Nazi” prolonged a hopeless war. I submit Dönitz-50, which contains statements made by Admiral Darlan, Mr. Chamberlain, and Mr. Churchill in 1940. They will be found on Pages 132 and 133 of the document book and they will show that the afore-mentioned persons also considered it expedient in a critical situation to call upon the nation—partly with success and partly without—to render the utmost resistance.

During his examination Admiral Dönitz gave as the reason for his views that he wanted to save German nationals in the East. As evidence for this I draw your attention to Exhibit GB-212, which can be found on Page 73 of the British document book. It is a decree of 11 April 1945, and I shall read two sentences under heading 1:

“Capitulation means for certain the occupation of the whole of
Germany by the Allies along the lines of partition discussed by
them at Yalta. It also means, therefore, the ceding to Russia of
further considerable parts of Germany west of the river Oder. Or
does anyone think that at that stage the Anglo-Saxons will not
keep to their agreements and will oppose a further advance of
the Russian hordes into Germany with armed forces, and will
begin a war with Russia for our sake? The reasoning, ‘Let the
Anglo-Saxons into the country; then at least the Russians will
not come,’ is faulty, too.”

I shall also quote from Exhibit GB-188, which is on Page 10 of the document book of the Prosecution—I beg your pardon, Page 11. It is an order to the German Armed Forces dated 1 May 1945. I shall quote the second paragraph:

“The Führer has designated me to be his successor as head of
State and as Supreme Commander of the Armed Forces. I am taking
over the Supreme Command of all branches of the German Armed
Forces with the will to carry on the struggle against the
Bolsheviks until the fighting forces and hundreds of thousands
of families of the German eastern areas have been saved from
slavery and destruction.”

This, Mr. President, is the end of my documentary evidence.

Two interrogatories are still outstanding. One is that of Kapitän zur See Rösing and the other of Fregattenkapitän Suhren. Furthermore—and this is something I particularly regret—the interrogatory from the Commander-in-Chief of the American Navy, Admiral Nimitz, has still not been received. I will submit these documents as soon as I have received them.

And now, with permission of the Tribunal, I should like to call my witness, Admiral Wagner.

MR. DODD: Mr. President, while the witness is being called in, I would like to raise one matter with the Tribunal. On Saturday I understand that the question of when the witness Puhl would be called was raised before the Tribunal. And as I understand it from the record, it was left for counsel to settle the matter as to whether he should be called before the Raeder case comes on or after the Raeder case.

I should like to say that we have some reasons for asking that he be called before the Raeder case, and there are two: First of all, he is here in the prison under a kind of confinement different from that under which he has been held by the French in the French territory; and secondly, the officer, Lieutenant Meltzer, who has been assisting in the Funk case, is very anxious—for compelling personal reasons—to return to the United States, and of course he will not be able to do so until we have concluded the Funk case. And, Mr. President, it will not take very long in my judgment to hear this witness. He is only here for cross-examination on his affidavit and we would appreciate it if he could come on at the conclusion of the Dönitz case.

THE PRESIDENT: Very well, Mr. Dodd, he can be brought for cross-examination after the Dönitz case.

[_The witness Wagner took the stand._]

THE PRESIDENT: Will you state your full name, please?

GERHARD WAGNER (Witness): Gerhard Wagner.

THE PRESIDENT: 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.

[_The witness repeated the oath._]

THE PRESIDENT: Will you sit down.

FLOTTENRICHTER KRANZBÜHLER: Admiral, when did you join the Navy?

WAGNER: On 4 June 1916.

FLOTTENRICHTER KRANZBÜHLER: Which positions did you hold in the High Command of the Navy, and at what time?

WAGNER: From summer 1933 until the summer of 1935 I was adviser in the operational department of the High Command. I was Kapitänleutnant and then Korvettenkapitän. In 1937, from January until September, I had the same position. From April 1939 until June 1941 I was the head of the operational group, known as “IA,” in the operations section of the Naval Operations Staff. From June 1941 until June 1944 I was the chief of the operations section of the Naval Operations Staff. From June 1944 until May 1945, I was admiral for special tasks attached to the Commander-in-Chief of the Navy.

FLOTTENRICHTER KRANZBÜHLER: So that during the entire war you were a member of the Naval Operations Staff?

WAGNER: Yes, that is so.

FLOTTENRICHTER KRANZBÜHLER: What were the general tasks of the Naval Operations Staff?

WAGNER: The tasks of the Naval Operations Staff included all those involved in naval warfare, both at sea and in the defense of the coasts, and also in the protection of our own merchant shipping. As far as territorial tasks were concerned, the Naval Operations Staff did not have any, neither at home nor in the occupied territories.

FLOTTENRICHTER KRANZBÜHLER: Was the Naval Operations Staff part of the High Command of the Navy, the OKM?

WAGNER: The Naval Operations Staff was part of the High Command of the Navy.

FLOTTENRICHTER KRANZBÜHLER: What was the relationship between the Naval Operations Staff and the Supreme Command of the Armed Forces, the OKW?

WAGNER: The OKW passed on the instructions and orders of Hitler, who was the Supreme Commander of the Armed Forces, regarding the conduct of the war; usually, as far as naval warfare particularly was concerned, after examination and review by the Naval Operations Staff. General questions of the conduct of the war were decided without previous consultations with members of the Naval Operations Staff.

FLOTTENRICHTER KRANZBÜHLER: In which manner were the preparations of the High Command of the Navy for a possible war carried out?

WAGNER: Generally speaking, they consisted of mobilization preparations, tactical training, and strategic considerations for the event of a possible conflict.

FLOTTENRICHTER KRANZBÜHLER: Did the Naval Operations Staff during your time receive an order to prepare for a definite possibility of war?

WAGNER: The first instance was the order for “Case White,” the war against Poland. Before that, only tasks regarding security measures were given us.

FLOTTENRICHTER KRANZBÜHLER: Were plans elaborated for the naval war against England?

WAGNER: A plan for the war against England did not exist at all before the beginning of the war. Such a war seemed to us outside the realm of possibility. Considering the overwhelming superiority of the British fleet, which can hardly be expressed in proportionate figures, and considering England’s strategical domination of the seas such a war appeared to us to be absolutely hopeless. The only means by which Britain could have been damaged effectively was by submarine warfare; but even the submarine weapon was by no means being given preferential treatment nor was its production accelerated. It was merely given its corresponding place in the creation of a well-balanced homogeneous fleet.

At the beginning of the war all we had were 40 submarines ready for action, of which, as far as I can remember, barely half could have been used in the Atlantic. That, in comparison with the earth-girdling naval means at the disposal of the first-ranking world power England, is as good as nothing. As a comparison, I should like to cite the fact that both the British and the French Navy at the same time had more than 100 submarines each.

FLOTTENRICHTER KRANZBÜHLER: Did the then Captain Dönitz, as chief of the submarines, have anything to do with the planning of the war?

WAGNER: Captain Dönitz at that time was a subordinate front-line commander, under the command of the chief of the fleet and he, because of his warfare experience, had the task of training and tactically guiding the inexperienced submarine personnel.

FLOTTENRICHTER KRANZBÜHLER: Did he in turn make any suggestions or instigate any plans for the war?

WAGNER: No, these preparations and this war planning, in particular for the “Case White,” were exclusively the task of the Naval Operations Staff.

FLOTTENRICHTER KRANZBÜHLER: Did Dönitz at any previous time hear about the military intentions of the Naval Operations Staff?

WAGNER: No.

FLOTTENRICHTER KRANZBÜHLER: Did Admiral Dönitz hear of the military intentions of the Naval Operations Staff at a time earlier than necessary for the carrying out of the orders given him?

WAGNER: No, he heard of it by means of the orders reaching him from the Naval Operations Staff.

FLOTTENRICHTER KRANZBÜHLER: Admiral Wagner, you know of the London Agreement of 1936 regarding submarine warfare. Did the Naval Operations Staff draw any conclusions from that agreement for their preparation for a war, in particular, for carrying on a possible economic war?

WAGNER: The Prize Regulations still existing from the last war were revised and made to conform with the London Agreement. For that purpose a committee was formed which included representatives from the High Command of the Navy, the Foreign Office, the Reich Ministry of Justice, and scientific experts.

FLOTTENRICHTER KRANZBÜHLER: Were these new Prize Regulations made known to the commandants some time before the war or were they communicated to them just when they were published shortly before the outbreak of the war?

WAGNER: These new Prize Regulations were published in 1938 as an internal ordinance of the Navy, which was available for the purpose of training officers. During the autumn maneuvers of the Fleet in 1938 a number of exercises were arranged for the purpose of acquainting the officer corps with these new regulations. I, myself, at that time...

THE PRESIDENT: Where are the new Prize Regulations you are referring to?

FLOTTENRICHTER KRANZBÜHLER: I am talking about the regulations published on 26 August 1939, which are contained in my document book. They are on Page 137, in Volume III of my document book.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBÜHLER: I beg your pardon, Mr. President; the date is not 26, but 28 August.

THE PRESIDENT: The witness was saying that exercises were carried out?

FLOTTENRICHTER KRANZBÜHLER: Yes, in the year 1938.

THE PRESIDENT: Yes.

FLOTTENRICHTER KRANZBÜHLER: [_Turning to the witness._] Which conceptions did the Naval Operations Staff have after the beginning of the war regarding the development of the naval war against Britain?

WAGNER: The Naval Operations Staff thought that Great Britain would probably start in where she had stopped at the end of the first World War. That meant that there would be a hunger blockade against Germany, a control of the merchandise of neutral countries, introduction of a system of control, the arming of merchant ships, and the delimitation of operational waters.

FLOTTENRICHTER KRANZBÜHLER: I am now going to have the battle order of 3 September 1939 shown to you. It is Document Dönitz-55. It can be found on Page 139, in Volume III of the document book. You will see from this that submarines, like all naval forces, had orders to adhere to this Prize Ordinance in the economic warfare.

Then, at the end, you will find an order which I propose to read to you. This is on Page 140:

“Order prepared for intensifying the economic war because of the
arming of enemy merchant ships.

“1) Arming of, and therefore resistance from, the majority of
English and French merchant ships is to be expected.

“2) Submarines will stop merchant ships only if own vessel is
not endangered. Attack without warning by submarines is allowed
against plainly recognized enemy merchant ships.

“3) Battleships and auxiliary cruisers will watch for
possibility of use of arms by merchant ships when stopped.”

I should like to ask you whether this order was prepared long ago or whether it was improvised at the last moment?

WAGNER: At the beginning of the war we were forced to improvise a great many orders we were issuing, because they were not prepared thoroughly.

FLOTTENRICHTER KRANZBÜHLER: Did this order become operative at all?

WAGNER: No.

FLOTTENRICHTER KRANZBÜHLER: Why not?

WAGNER: After consultation with the Foreign Office, we had decided that we would strictly adhere to the London Agreement until we had clear-cut evidence of the British merchant navy being used for military purposes. We remembered from the last war the power which the enemy propaganda had, and we did not under any circumstances want to give anyone cause once more to decry us as pirates.

FLOTTENRICHTER KRANZBÜHLER: When, at what stage, did the military use of enemy merchant ships become clear to the Naval Operations Staff?

WAGNER: The fact that enemy merchant vessels were armed became clear after a few weeks of the war. We had a large number of reports about artillery fights which had occurred between U-boats and armed enemy merchant ships. Certainly one, and probably several boats were lost by us. One British steamer, I think it was called _Stonepool_, was praised publicly by the British Admiralty for its success in combating submarines.

FLOTTENRICHTER KRANZBÜHLER: The Tribunal already has knowledge of the order of 4 October allowing attacks against all armed merchant ships of the enemy and also of the order of 17 October allowing attacks on all enemy merchant ships with certain exceptions.

Were these orders the result of experiences which the Naval Operations Staff had regarding the military use of enemy merchant ships?

WAGNER: Yes, exclusively.

FLOTTENRICHTER KRANZBÜHLER: Both orders contain exceptions favoring passenger ships. They were not to be attacked even when they were members of an enemy convoy. To what were these exceptions due?

WAGNER: They were due to an order from the Führer. At the beginning of the war he had stated that Germany did not have any intention of waging war against women and children. He wished, for that reason, that also in naval war any incidents in which women and children might lose their lives should be avoided. Consequently, even the stopping of passenger ships was prohibited. The military necessities of naval warfare made it very difficult to adhere to this order, particularly where passenger ships were traveling in enemy convoys. Later on, step by step, this order was altered as it became evident that there was no longer any peaceful passenger traffic at all and that enemy passenger ships were particularly heavily armed and used more and more as auxiliary cruisers and troop transport ships.

FLOTTENRICHTER KRANZBÜHLER: Were the orders of the German Naval Operations Staff regarding the combating of armed enemy ships and later enemy ships as a whole made known to the British Admiralty?

WAGNER: Neither side made its war measures known during the war, and that held true in this case also. But in October the German press left no doubt whatsoever that every armed enemy merchant ship would be sunk by us without warning, and later on it was equally well known that we were forced to consider the entire enemy merchant marine as being under military direction and in military use.

These statements by our press must no doubt have been known to the British Admiralty and the neutral governments. Apart from that, and I think this was in October, Grossadmiral Raeder gave an interview to the press on the same theme.

FLOTTENRICHTER KRANZBÜHLER: A memorandum of the Naval Operations Staff was issued in the middle of October: “On the Possibilities of Intensifying the War against Merchant Shipping”; I am going to have this memorandum shown to you. Its number is GB-224. After looking at this memorandum please tell me what its purpose was and what the memorandum contains.

Mr. President, some extracts can be found on Page 199, in Volume IV of the document book.

WAGNER: This memorandum was issued due to the situation that existed since the beginning of the war. On 3 September 1939 Britain had begun a total hunger blockade against Germany. Naturally that was not directed only against the fighting men, but against all nonfighting members, including women, children, the aged, and the sick. It meant that Britain would declare all food rations, all luxury goods, all clothing, as well as all raw materials necessary for these items, as contraband and would also exercise a strict control of neutral shipping of which Germany would be deprived insofar as it would have to go through waters controlled by Great Britain. Apart from that, England exercised a growing political and economic pressure upon the European neighbors of Germany to cease all commerce with Germany.

That intention of the total hunger blockade was emphatically confirmed by the Head of the British Government, Prime Minister Chamberlain, during a speech before the House of Commons at the end of September. He described Germany as a beleaguered fort; and he added that it was not customary for beleaguered forts to be accorded free rations. That expression of the beleaguered fort was also taken up by the French press.

Furthermore, Prime Minister Chamberlain stated around the beginning of October—according to this memorandum it was on 12 October—that in this war Britain would utilize her entire strength for the destruction of Germany. From this we drew the conclusion, aided by the experiences of the last World War, that England would soon hit German exports under some pretext or other.

With the shadow of the total hunger blockade, which no doubt had been thoroughly prepared during long years of peace, creeping in upon us we now had a great deal to do to catch up, since we had not prepared for war against Great Britain. We examined, both from the legal and military point of view, the possibilities at our disposal by which we in turn might cut off Britain’s supplies. That was the aim and purpose of that memorandum.

FLOTTENRICHTER KRANZBÜHLER: You are saying, therefore, that this memorandum contains considerations regarding means for countering the British measures with correspondingly effective German measures?

WAGNER: Yes, that was definitely the purpose of that memorandum.

FLOTTENRICHTER KRANZBÜHLER: Studying that memorandum you will find a sentence—C. 1. is the paragraph—according to which the Naval Operations Staff must remain basically within the limits of international law, but that decisive war measures would have to be carried out even if the existing international law could not be applied to them.

Did this mean that international law was to be generally disregarded by the Naval Operations Staff, or what is the meaning of this sentence?