The Nizkor Project: Remembering the Holocaust (Shoah)

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SIR DAVID MAXWELL FYFE: Colonel Gurfein is the one who
started the American prosecution, who conducted the
interrogations at the earlier stages.

THE PRESIDENT: Where is he now?

SIR DAVID MAXWELL FYFE: New York. That point has been borne
in mind in the usual interrogations. If the document is
used, it is very cautiously referred to, and the American
Delegation informs me that they took that line of search,
and they had that in mind, and that they have not been able
to find it. Similarly, in regard to (e), my Soviet
colleagues told me that they have no trace of the document
there mentioned.

THE PRESIDENT: You mean there is no reference to that
document in the interrogation conducted by Judge Gurfein?

SIR DAVID MAXWELL FYFE: That is so, yes. They are unable to
find any reference, I am told, going through the

THE PRESIDENT: Have you any knowledge of any communication
that has been sent to Judge Gurfein?

SIR DAVID MAXWELL FYFE: I am not sure he had gone when the
search was. made two months ago. I am sure that the American
Delegation will look into that. What I was going to say in
regard to (e) was that my Soviet colleagues informed me that
no trace of this document has been discovered by the Russian
authorities. With regard to the others, the prosecution
would like some further time to make further inquiries, and
then they will report to Dr. Dix and to the General
Secretary if anything can be done. With regard to the other
documents, the ones which are referred to by Dr. Dix, and
the many extracts, his plan is one which entirely suits the
prosecution if it suits the Tribunal.

THE PRESIDENT: I call on Counsel for the defendant Donitz.

DR. OTTO KRANZBUEHLER (counsel for defendant Donitz): I
should like to call the following witnesses: First, Judge
Admiral Kurt Eckhardt. He was the expert on International
Law in the Naval War Staff. He is to testify that the rules
of International Law were considered, when the German U-boat
war policy was laid down. This testimony is relevant in view
of the documents submitted by the prosecution according to
which the U-boat war was conducted without regard for
International Law.

SIR DAVID MAXWELL FYFE: Again it might help Dr. Kranzbuehler
and the Tribunal, if I indicated the view of the
prosecution. They consider that No. 1, Admiral Eckhardt, and
No. 2, Rear-Admiral Wagner, and No. 4, Rear-Admiral Godt,
should not be the subject of objections; they do not make
objections to these three. With regard to Commander Hessler,
No. 3, it seems to the prosecution that he is really
cumulative to Rear-Admiral Godt, as he ceased to be a U-boat
commander at the end of 1941, before most of the material
orders were issued. That is really the only point; as I
said, we raise no objections to the other three. With regard
to the second portion, the interrogatories, the
interrogatory of Mr. Messersmith has been granted. With
regard to the next three, Rear-Admiral

                                                  [Page 168]

Kreisch, Captain Roesing, and Commander Suhren, these were
granted on 14th February, and a slight error crept into the
prosecution's action which was purely mechanical. The
prosecution replied that they did not object in principle,
and did not wish to file cross-interrogatories; they
objected to two of the questions to be addressed to
Commander Suhren, Nos. 7 and 8. It was intended that the
same objection to the same questions should be made with
regard to the other two. It appears that the document only
related to Commander Suhren, but in general there is no
objection; with regard to No. 5, that has been done.

THE PRESIDENT: Well, Sir David, have those mistakes been
rectified, in reference to 2 and 3?

SIR DAVID MAXWELL FYFE: I am not quite sure. I want to
mention that same objection, to narrow the issues of this
objection to two of the interrogatories, and in connection
with all three sets of interrogatories, I do not think this
has been before the Tribunal so far as I know.


SIR DAVID MAXWELL FYFE: And with regard to Captain Eck, that
evidence has been taken on commission, and so there is no
objection. Finally, with regard to Admiral Nimitz, the
prosecution do object to that application; that is a new
application, and if the Tribunal will look at the grounds;
they are, that the United States submarines attacked all
ships departing from the United States, except Allied
vessels, without warning, and that the United States
submarines attacked all Japanese ships without warning, at
least from the time when it was surmised that Japanese ships
would resist being taken as a prize. And third, that United
States submarines did not assist ship-wrecked people in
waters where the submarine would be endangering herself by
such assistance. The reason which Dr. Kranzbuehler gives is,
that we have no testimony to prove that the United States
Admiralty made the same strategical and legal considerations
in carrying out its submarine warfare. In the submission of
the prosecution, this is irrelevant. That they followed the
same legal considerations, might have been done as
retaliation, and if so, the question whether the United
States broke the laws and practices of war is quite
irrelevant; as the question before the Tribunal is whether
the German High Command broke the laws and practices of war,
it really raises the old problem of evidence directed to tu
quoque, an argument which this prosecution has always
submitted throughout this trial is irrelevant.

DR. KRANZBUEHLER: I shall confine myself to the points to
which Sit David has raised objections.

First of all, witness No. 3, Commander Hessler. I do not
consider his testimony to be cumulative. He is to testify as
to when Order 154, which has been submitted by the
prosecution, was abrogated. This testimony is important,
because the prosecution contend that the Order of September
1942, need not have been issued at all, but that it would
have been sufficient to refer to the old Order 154. To
counter this contention, Hessler is to testify that Order
154 was no longer in force at that time.Moreover, Captain
Hessler, being on the staff of the U-boat commanders, from
1941 on, instructed nearly all U-boat commanders putting to
sea about the orders issued, particularly the orders
regarding treatment of shipwrecked persons.

For these reasons, his testimony is, in my opinion,
indispensable as a check on the statement of witness
Moehle.I now turn to the interrogatories for Nos. 2, 3 and
4: Admiral Kreisch, Post-Captain Roesing, and Commander

I think that the objections of the prosecution to two of the
questions asked in my interrogatory can only be dealt with
after these questions have been answered. I only heard today
that objections would be raised, but I do not yet know on
what grounds.

                                                  [Page 169]

THE PRESIDENT : Has the Tribunal got the interrogatories and
the objections of the prosecution to No. 4?DR. KRANZBUEHLER:
The Tribunal has received only the interrogatories from
me.THE PRESIDENT: Have the prosecution given us their
objection to one question? This, I understand, was an
objection that was made to the interrogatories put to
Suhren, which should have been an objection to a particular
question on the other two as well.SIR DAVID MAXWELL FYFE:
Yes. It is very short. I will indicate it, if Dr.
Kranzbuehler will allow me. The two questions were: "Is it
known to you that in September 1942, German submarines saved
shipwrecked people after torpedoing the British steamer
'Lacunia,' and while doing so were bombed by an Allied
plane?"No. 8: "Do you know whether this incident was the
reason for the C.-in-C. of the U-boat Fleet issuing an order
by which assistance at the risk of endangering one's own
boat was prohibited, and for the declaration that this was
not at variance with the laws of sea warfare?"The objections
- I will read them out: "Question 7. Objection is entered on
the ground that this question is unnecessary and the facts
are admitted.""Question 8: Objection entered. It is not seen
how the witness could possibly know the reason for the
orders from the defendant Donitz."These are the objections
say something to this? I think that the officers mentioned
can testify as to the reasons for the orders received by
them from the Commander-in-Chief of the U-boat Fleet,
because the events which led to the order of September 1942,
were generally known among the U-boat commanders, and U-boat
commanders in the various theatres of war may possibly have
picked up the wireless messages sent to the U-boats
concerned with the 'Lacunia' incident. That is all.I now
turn to the application regarding the interrogatory to be
put to Admiral Nimitz. The stand taken by the prosecution
differs entirely from the conception on which my application
is based. I in no way wish to prove or even to maintain that
the American Admiralty in its U-boat warfare against Japan
broke International Law. On the contrary, I am of the
opinion that it acted strictly in accordance with
International Law. In the United States' sea war against
Japan, the same question arises as in Germany's sea war
against England, namely, the scope and interpretation of the
London Submarine Agreement of 1930. The United States and
Japan were also signatories to this agreement.My point is
that because of the order to merchant vessels to offer
resistance, the London Agreement is no longer applicable to
such merchantmen. Further, that it was not applicable in
declared operational zones in which a general warning had
been given to all vessels, thus making an individual warning
unnecessary before the attack.Through the interrogatory to
Admiral Nimitz, I want to establish that the American
Admiralty in practice interpreted the London Agreement in
exactly the same way as the German Admiralty, and thus prove
that the German conduct of sea warfare was perfectly legal.

The same applies to the treatment of shipwrecked persons in
waters where the U-boat would endanger herself by rescue
measures.THE PRESIDENT: Yes, Dr. Kranzbuehler.DR.
KRANZBUEHLER: I now turn to the documents.
THE PRESIDENT: If you are departing from Admiral Nimitz, I
should like to ask a question of Sir David.

                                                  [Page 170]
SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: Sir David, I understood you to submit that
these questions to Admiral Nimitz were entirely irrelevant ?


THE PRESIDENT: Would it make any difference to your
submission whether the German Navy had attacked merchant
ships without warning in the first instance in the beginning
of their war against England?SIR DAVID MAXWELL FYFE: Well,
that of course would be a clearer breach of the treaty, as,
at that time, there was no question of armament, so far as I
am aware, and there was certainly no question that the
German submarines thought that they were attacking armed
vessels which were really ships of war. Then, of course, one
comes to the position which the prosecution developed in
evidence that, the German Navy having indulged in the
beginning in that form of submarine warfare, the position
changed, and armament had to be installed in British ships.
In my submission it would make a difference even if one
takes the argument as Dr. Kranzbuehler has put it now; he is
saying that he is not alleging breaches of the laws and
practices of war, but is relying on his interpretation of
the London Agreement, that merchant ships that were armed
could be attacked. It really becomes a very difficult matter
if one is to construe these treaties by a sort of general
investigation of the interpretation by various commanders.
Within the point that your Lordship put to me, there is that
very clear point which appears in our documents, that the
arming of merchant ships was the result of the attacks
without warning which took place in the first months of the
war.THE PRESIDENT: But would you say that these questions to
Admiral Nimitz are irrelevant because the United States came
into the war in December 1941, when the sea warfare between
Germany and England had developed to that stage, when
attacks were being made without warning?SIR DAVID MAXWELL
FYFE: That is so, my Lord. That is what I was saying. I am
very grateful to your Lordship for clarifying the argument
that I wanted to make.THE PRESIDENT: Is that clear to you,
Dr. Kranzbuehler? The argument which I understand Sir David
is putting forward with reference to these interrogatories
is, that they are truly irrelevant because of the date at
which the United States came into the war, a date when the
sea war between England and Germany had, for reasons which
must be investigated, arrived at the stage that submarines
were attacking merchant vessels without warning, and
merchant vessels were defending themselves against those
attacks.DR. KRANZBUEHLER: Yes, Mr. President. It is,
however, my opinion that the conditions which developed in
the sea war between Germany and England do not necessarily
have a bearing on the measures applied in the sea war
between the United States and Japan, as here an entirely
different theatre of war was involved, in which German
forces did not operate. In my opinion, the directives for
sea warfare in the East Asia theatre of war should be based
on the conditions prevailing there, and not be derived from
experiences gained in the European theatre of war.THE
PRESIDENT: Then the Tribunal will consider these
arguments.THE TRIBUNAL (Mr. Biddle): How can what any navy
did, show the proper construction of a law? It may show what
a particular admiral thought about it, but how are we
interested in knowing what one admiral or another admiral
thought about the law? Is not that for us to decide? How is
that any evidence? Is that not your point, Sir David?

SIR DAVID MAXWELL FYFE: Yes.MR. BIDDLE: How does that really
throw any light on the meaning of a law?[Page 171]DR.
KRANZBUEHLER: I do not think that the principles for the
conduct of sea war originate from one admiral, but that in
view of their far-reaching implications, they have become a
matter for the government. It is recognized in International
Law that it springs not only from treaties, but also from
acts of governments. May I give as an example that Mr.
Justice Jackson, in his first report to President Truman,
specially emphasized that International Law is developed by
acts of governments. Consequently, if the London Naval
Agreement of 1930 did not originally imply that merchant
vessels which had orders to resist were excluded, then acts
to this effect on the part of the governments of all nations
would have been instrumental in creating new International
Law to this end. I am therefore of the opinion that the
attitude taken in this question by the United States, as one
of the greatest sea powers, is decisive as to the
interpretation of the London Agreement, and hence as to the
legality of Germany's conduct.MR. BIDDLE: Do you claim that
the London Agreement is ambiguous?DR. KRANZBUEHLER: Yes.MR.
BIDDLE: What words in the London Agreement are ambiguous?DR.
KRANZBUEHLER: The term "merchant vessels".MR. BIDDLE : You
have not got the citation there, have you?DR. KRANZBUEHLER:
Which is it?

MR. BIDDLE: The phrase in the London Agreement which you
claim is ambiguous.DR. KRANZBUEHLER: I have not got it here,
but I can give a fairly accurate quotation. It says that
submarines are subject to the same rules as surface vessels
in their conduct towards merchant vessels.I shall later
submit proof that the term "merchant vessel" even at the
Washington Conference of 1922, was considered ambiguous, and
that also in books on International Law published later, it
had repeatedly been stressed that this term is ambiguous.MR.
BIDDLE: Dr. Kranzbuehler, you want Admiral Nimitz to give us
his opinion of his construction of the treaty, do you not.
Is not that the purpose of these interrogatories?DR.
KRANZBUEHLER: No, I do not want to hear from Admiral Nimitz
his opinion but of the policy pursued by the United States
in its sea war against Japan.

THE PRESIDENT: The Tribunal will consider the arguments you
have addressed to them, Dr. Kranzbuehler.DR. KRANZBUEHLER: I
now turn to the documents. As I have just heard from Sir
David, there are no objections on the part of the
prosecution. I do not know whether I need give any reasons
for submitting the individual documents.

First of all, there are the war diaries and the standing
orders of the Admiralty and of the C.-in-C. of the U-boat
Fleet. They have already been admitted, and the prosecution
do not raise any objections.Under No. 3, I ask for the
"British Confidential Fleet Orders" and "Admiralty Merchant
Shipping Instructions" of the British Admiralty to be

SIR DAVID MAXWELL FYFE: My Lord, this matter came up before
the Tribunal in closed session on an application from Dr.
Kranzbuehler. I have not heard definitely from the British
Admiralty whether they agreed to do this, but I have asked
Dr. Kranzbuehler if he will leave this matter over for ten
days in the hope that we may be able to meet him. If Dr.
Kranzbuehler will not press it for ten days, I shall, of
course, let him know as soon as I have any definite


                                                  [Page 172]

DR. KRANZBUEHLER : I agree to that. Under No. 4 I declare my
intention to submit a number of statements and letters I
have received from German U-boat commanders and officers,
some of them through the General Secretariat. These
statements contain items from the lecture given at
Gotenhafen by the Commander-in-Chief of the Navy and
referred to by witness Heisig, including the instruction of
U-boat commanders by witness Moehle, and the orders
regarding the treatment of shipwrecked persons. I understand
the prosecution have no objections.

THE PRESIDENT: Have you got any objection, Sir David ?

SIR DAVID MAXWELL FYFE: My Lord, many of these matters may
have to be considered when the actual document is put before
us. There are no general objections to them.

DR. KRANZBUEHLER: I should like to mention that I shall
probably have to submit some further documents later, after
I have spoken to Judge-Admiral Eckhardt. May I again ask the
Tribunal to allow me as soon as possible to call this
witness, who is particularly important for the defence of
the methods employed in U-boat warfare?

THE PRESIDENT: Yes, I think the Tribunal would grant that,
subject, of course, to there being no delay regarding
further applications.


THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until 6th March, 1946, at 1000

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