Archive/File: imt/tgmwc/tgmwc-14/tgmwc-14-135.03 Last-Modified: 2000/03/17 [Page 245] SIR DAVID MAXWELL FYFE: Yes, my Lord, that is the point here. 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? SIR DAVID MAXWELL FYFE: Yes. (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 shortly. BY DR. SIEMERS: 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 clothing"? 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. THE PRESIDENT: Very well. 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. DR. SIEMERS: Yes. THE PRESIDENT: Would that not be the best way, Colonel Pokrovsky? 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 personally. 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 read. 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 put? DR. KRANZBUHLER: I should like to put two questions, Mr. President. BY DR. KRANZBUHLER: 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 incorrect? A. Actually I was never concerned with this case. I only decreed the three points which have come up here several times. Q. Therefore, you consider Admiral Goth's testimony as being correct? 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: BY THE PRESIDENT: 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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