The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/02/24

DR. KRANZBUHLER: Yes, Mr. President, I can assemble them.
They are Documents D-9, Page 11; D-10, Page 12; D-12, Page
18; D-13, Pages I9 to 26 and 49; and D-19, Page 34. All
these documents are related to Exhibit GB 196, of the
prosecution, which is an order referring to the winter of
1939-1940, when the rescue measures of U-boats were limited.
Sir David objected to that group that it was not important
if, after this order of the winter 1939-1940, rescues were
still carried out. I cannot share this opinion. If the
prosecution accuses Admiral Donitz of having given an order
about the limitation of rescue measures in the winter of
1939-1940, then it is essential to point out for what
reasons such an order was issued and what practical
consequences it had. It is my assertion that that order can
be traced, first, to the fighting conditions of the U-boats
along the British coasts and, secondly, to over-scrupulous
rescue measures taken by the commanders. The order did not
prohibit measures of rescue generally, and that

                                                  [Page 204]

will be shown by the statements made by the commanders,
which I have submitted under D-13.

THE PRESIDENT: Is it possible for you to give us a page
where we can find these GB Documents? For instance, GB 196.

DR. KRANZBUHLER: Yes. It is in the British document book on
Page 33.

THE PRESIDENT: And GB 195?

DR. KRANZBUHLER: Page 32, Mr. President.

THE PRESIDENT: Thank you.

DR. KRANZBUHLER: I should like to state my position on a
formal objection. Some of these statements are not sworn
statements. I refer to Article 19 of the charter, according
to which the Tribunal is to use all matters of evidence
which have probative value. I believe that a written report
by an officer about his activity as commanding officer has
probative value, even if it is not sworn to. A report of
this kind before a German Naval Court would be accepted in
evidence without question.

The last document in this group, D-19, Page 34, concerns the
document of the prosecution, Exhibit GB 199.

It is a radio message on Page 36 of the British document
book. It concerns a radio message which the U-boat commanded
by Kapitanleutnant Schacht received from Admiral Donitz, and
deals with the rescue or non-rescue of Englishmen and
Italians.

Document Donitz 19 is a log book of Schacht's U-boat and
shows first, the armament and crew of the Laconia, whose
crew is the one in question, and then explains why so
comparatively few of the numerous Italians and so
comparatively many of the less numerous Englishmen, were
rescued. The events were known to Admiral Donitz from radio
messages.

Document Donitz 29 -

THE PRESIDENT: Dr. Kranzbuhler, as I told you, the Tribunal
has read all of these documents and examined them, and
therefore it isn't necessary for you to go into them as a
small group, and it isn't necessary for you to go into each
document, if you will indicate the nature of the document -
of the groups.

DR. KRANZBUHLER: Then I should like to mention the following
Documents: Donitz 29, on Pages 54 to 59 of the document
book; Donitz 31, Page 64; Donitz 32, Page 65; Donitz 33,
Page 66; Donitz 37, Page 78; Donitz 38, Page 80, and Donitz
40, Page 86; these documents are also concerned with the
subject of survivors. Donitz 29 is concerned with a
statement of the witness Heisig.

The prosecution has declared that I could not question the
character of the witness Heisig because I had not made that
point during his cross-examination. In this connection I
wish to state that in my opinion I attacked the credibility
of Heisig during the cross-examination as far as it was
possible at the time. I knew of the existence of that
witness only three days before he appeared here.

THE PRESIDENT: Dr. Kranzbuhler, you are now proceeding to
deal with each document. You have given us quite a number of
documents which all fall in this group of the treatment of
shipwrecks, and we have already seen these documents and
therefore, we can consider them as a group. We do not need
to have these details about the question of the credibility
of Heisig, which is already before us.

DR. KRANZBUHLER: Mr. President, I believe it is very
difficult to judge the relevancy of documents if I am not
permitted to say what the connection is. For instance, the
next three documents, Donitz 31, 32 and 33, are related to
GB-200. That is an order by C.-in-C., U-boats (BdU) dealing
with the treatment of so-called rescue ships. The Tribunal
will recall that the prosecution

                                                  [Page 205]

has stated it did not object to the order as such with
reference to the sinking of rescue ships, but only to the
tendency to kill the crews, too, by such sinking.

My documents pertaining to this issue are to show that thus
they apply moral standards which do not exist in wartime. I
wish to show this by referring to the sea rescue planes.
These planes were shot down by the British Air Force,
because there was no agreement which prohibited that. The
British Air Force was therefore naturally not kept from
shooting down rescue planes by moral consideration, if
International Law did not prohibit it, and we have exactly
the same point of view concerning the rescue ships.

In the case of the sinking of the steamer Steuben, I should
like to correct an error. That is Document Donitz 33. It
does not deal, as Sir David mentioned yesterday, with the
sinking of a hospital ship by a Russian U-boat, but it
concerns the sinking of a German transport ship which
carried wounded. This sinking was, therefore, completely
justified and I would like to show with this document that
the Naval War Staff did not for a moment consider it
unjustified. I believe, Mr. President, that I shall have to
speak in more detail about Documents Donitz 37, 38 and 40,
for it is particularly these documents which have been
objected to by the prosecution, because they show the
conduct of the Allies in certain war measures.

THE PRESIDENT: Dr. Kranzbuhler, as I have told you more than
once, the Tribunal does not wish to hear you on each
individual document. We have already considered the
documents and we want you to deal with them in groups. You
have already given us the documents in a group and have
indicated to what subject they relate.

DR. KRANZBUHLER: Mr. President, may I at least mention the
documents of the prosecution to which my documents refer?

THE PRESIDENT: Yes, certainly.

DR. KRANZBUHLER: Donitz 37 refers to a document of the
prosecution, D-638. That is the statement by Admiral Donitz
concerning the case of the Athenia. At the end of that
statement the question of the punishment of the U-boat
Commander is mentioned, and the prosecution apparently
accuses Admiral Donitz of not punishing the Commander except
in a disciplinary manner. I want to prove with this document
- Donitz 37 - that a Commander-in-Chief is forced to
tolerate certain war measures on occasions, even if they are
not correct or at least partly not correct.

Donitz 38 is in connection with Donitz 39, which has not
been objected to by the prosecution. It brings out only one
detail from that document. It states the attitude of the
Naval War Staff to alleged reports about the Allies firing
on survivors and similar incidents. With Donitz 38 I intend
only to show that the very careful attitude of the Naval War
Staff was not the result of any lack of proof, for they even
had affidavits to prove it. In spite of that they rejected
any thought of reprisals.

Donitz 40 is in connection with Donitz 42, which I
submitted, and against which no objection has been raised.

In this document the question as to whether survivors could
be fired on or not is quite seriously considered. I should
like to show that while such considerations perhaps appear
inhumane and impossible after a war, during war such
questions are in fact considered and in certain cases are
answered in the affirmative, according to military
necessity.

The next two documents, Goering 7, on Page 89, and C-21, on
Page 91, deal with the document of the prosecution which is
Exhibit GB 205. That is a radio message concerning the
sinking of an Allied sailing cutter. GB 205 is on Page 53 of
the prosecution's document book. The prosecution, in
connection with this document, has accused our Naval Warfare
Command of trying to terrorise the crews of neutral ships.
Both my documents, Goering 7 and C-21, give only

                                                  [Page 206]

a few examples to the effect that that terrorising is not
illegal but that naturally, each belligerent, in taking
military measures considers the psychological effect of
these measures on the enemy.

The next group is Document Donitz 43, on Page 95; Donitz 90,
on Page 258, and Donitz 67, on Page 96. They all deal with
the subject of whether a ship is obliged to carry out
rescues if this would endanger the ship itself, and they
relate to the document of the prosecution, which is Exhibit
GB 196, on Page 33 of the document book of the prosecution,
and GB 199, on Page 36. They show, first the methods of the
British Fleet -

THE PRESIDENT: Dr. Kranzbuhler, you have told us the subject
they relate to. That is to say, they relate to the subject
whether a ship is obliged to rescue if in danger, and that,
you say, is an answer to Exhibits GB 196 and 199. Why should
you tell us anything more than that?

DR. KRANZBUHLER: If that is sufficient, then I shall
proceed, Mr. President. The last document in this group is
Donitz 53, Page 99. It is a statement signed by some 60 U-
boat Commanders from an English prisoner-of-war camp, and it
deals with the fact that they never received an order to
kill survivors. The prosecution objected to it because it
was considered too general and was not sworn to. I believe
that it contains a very concrete statement concerning the
alleged order for destruction. Furthermore, it is an
official report by the German Commanders who were prisoners
of war, to their superior the English Camp Commandant, and I
received it through the British Ministry of War.

I request the Tribunal particularly to approve this
document, because it has a high probative and moral value
for myself and for my client.

The last group of the documents objected to comes under the
heading "Conspiracy." It is in Volume 2 of the document
book, Mr. President, Donitz 47, and relates to Exhibit GB
212. On Page 75 an incident is mentioned, namely, that
Admiral Donitz approved the fact that a traitor in a
prisoner-of-war camp was done away with. Donitz 47 will show
that the removal of traitors is an emergency measure which
is approved by all governments in time of war.

Donitz 48 deals with the subject of the treatment of
prisoners of war. It is related to the prosecution's GB 209.
Donitz 48 is on Page 122 in my document book, and GB 209 is
on Page 68 of the document book of the prosecution. In
connection with GB 209, which deals with the possibility of
departing from the Geneva Convention the prosecution accuses
Donitz of wanting to risk the lives of 150,000 American and
over 50,000 British prisoners of war without scruple. In my
opinion, it is not sufficient that I should merely dispute
such a statement, but I must prove that these prisoners of
war, for whom Admiral Donitz himself was responsible, were
not only treated according to International Law, but in an
exemplary manner; and, as can be seen from a British
statement contained in the evidence "with fairness and
consideration."

The next document, Donitz 49, deals with the treatment of
native populations. It is on Page 130. It is relevant to the
prosecution's GB 210, Page 69 of their document book, and GB
211, Page 72 Of that book. According to these two documents
Admiral Donitz is connected with the conspiracy for the
committing of crimes against the native populations of the
occupied territories. Here again, I would like to show that
in that sector for which he was personally responsible, he
did everything necessary to protect the inhabitants of the
occupied territories. Therefore I have submitted evidence
concerning the sentences which were imposed by the naval
courts for the protection of the inhabitants, and which were
confirmed by Admiral Donitz even in the case of death
sentences against German soldiers.

The prosecution states that this document is lacking in
details. It has, however, an appendix with about 80
individual examples of sentences. I have not included these
examples, in order to gave the translators this work, but if
the Tribunal considers it necessary I will certainly have
that appendix translated.

                                                  [Page 207]

The last group contains Donitz 51, on Page 134; and S2, on
Page 135. They are in connection with the prosecution's
Exhibit GB 188, on Page 10 of the British document book.
That is the speech made by Admiral Donitz on the occasion of
Adolf Hitler's death.

In connection with that document and another, the
prosecution has accused Donitz of being a fanatical Nazi,
and as such, of prolonging the war at the expense of the
men, women and children of his country. The very documents
of the prosecution, however, show that he considered it
necessary to delay capitulation in order to get as many
people as possible from the East to the West and thus bring
them to safety.

Documents Donitz 51 and 52 will prove that in fact very many
hundreds of thousands, if not millions, of German people
were brought to safety during these last weeks of the war.

THE PRESIDENT: We shall see that from the documents
presumably. That is part of the details in the documents,
isn't it?

DR. KRANZBUHLER: Yes. So I do not need to say anything
further about it, Mr. President.

THE PRESIDENT: Are these all the documents? Dr. Kranzbuhler,
the Tribunal is inclined to think that it would save time
after the Tribunal has ruled upon these documents, if you
called the defendant Donitz first. Would you be willing to
do that?

DR. KRANZBUHLER: Mr. President, I was not prepared for it,
but I can do it, of course.

THE PRESIDENT: Well, the object of it is, obviously, to try
and save time, and the Tribunal thinks that in the course of
the examination of the defendant, a considerable number of
these documents might possibly be dealt with in the course
of direct and cross-examination.

DR. KRANZBUHLER: Yes, Mr. President. The difficulty,
however, is that during the examination of Admiral Donitz I
should like to count on the knowledge of the contents of the
documents, and I should also like to discuss some documents
with him. But I do not know whether the Tribunal will
approve these documents now or not.

THE PRESIDENT: But what I am suggesting is that the Tribunal
should consider now the relevance of these documents, the
admissibility of these documents, and then tell you their
ruling as to what documents are admitted. You will then know
what documents are admitted. Then you can call Admiral
Donitz and, of course, examine him with reference to the
documents which are admitted, and as I have told you, the
Tribunal has already looked at these documents. They will
now reconsider them, in order to see whether they are
admissible, and the Tribunal will in that way, to a large
extent, be fully acquainted with the documents.

DR. KRANZBUHLER: Yes, I agree to that, Mr. President. I will
call Admiral Donitz; if the Tribunal thinks it right.

THE PRESIDENT: Dr. Kranzbuhler, you have been dealing with a
document, Donitz 60, which contains a great number of pages
to which you wish to refer. When we have made our ruling
upon them you will have to give separate exhibit numbers to
each one of the documents - to each one of the pages which
we rule as admissible, and which you wish to offer in
evidence.

DR. KRANZBUHLER: Mr. President, may I point out that Donitz
60 is one book. That is why I have not given it an exhibit
number, because I submit it as one.

                                                  [Page 208]

THE PRESIDENT: Yes, but it contains so many pages that it
will be more convenient, will it not, to give each separate
page a separate exhibit number?

DR. KRANZBUHLER: Yes.

THE PRESIDENT: It seems to relate to a great variety of
subjects.

DR. KRANZBUHLER: Yes, a collection of documents.

THE PRESIDENT: Now as you dealt with the various subjects in
entirely different order than the way in which Sir David
dealt with them, I think it would be convenient if we heard
anything he wants to say about it. Only if you do wish to
say something, Sir David.

SIR DAVID MAXWELL FYFE: Certainly, my Lord, I have heard the
Tribunal say that they have had an opportunity of examining
the documents and therefore I propose to be extremely brief
in any remarks I have to make, and I should like to make one
explanation before I deal with the very few points.

My friend, Colonel Pokrovsky, wanted to make it clear - as I
think it was clear to the Tribunal yesterday - that there
had been no objection to Documents 3 and 4 because in these
they deal with a secret base in the North which is only of
importance for the attacks against wood transports from the
North Russian ports. The objectionable matter, as I think
the Tribunal pointed out, was introduced in a statement of
Dr. Kranzbuhler which has no foundation in the documents.
Colonel Pokrovsky was very anxious that I should make that
clear on behalf of the prosecution.

My Lord, I think there are really only two points which I
need emphasize in reply to the Tribunal. The first is on my
Group 3, the details of the contraband control system. My
Lord, I submit that on this there is an essential non
sequitur in Dr. Kranzbuhler's argument. He says that, first
of all, the carrying of contraband by merchant ships, to
carry his argument to its logical conclusion, would entitle
a belligerent to sinking at sight. That, I submit, with
great respect to him, is completely wrong, and it does not
follow that, because you establish certain rules and lists
of contraband, the right to sink at sight is affected at
all.

Similarly, his point with regard to the British navicert
system. That system was used in World War I and is a well-
known system. But again, the essential non sequitur or
absence of connection is this, that if a neutral goes to one
of the control ports and gets a navicert, that does not put
that neutral into so un-neutral an act as to make it the
equivalent of a ship of war, which is the position that my
friend - that Dr. Kranzbuhler would have to take if that
argument were to succeed.

Then, again, he wishes to put in documents showing economic
pressures on, for example, Belgium, with regard to the
import of goods. The naval defendants are not being charged
with economic pressure; they are charged with killing people
on the high seas. Now again, I have dealt with it very
shortly, and the prosecution does submit and take the view
very strongly that the whole of that documentary evidence is
several steps removed from the issues in the case.

Now, the second group of matters which I wanted to refer to:
I can take as an example the document making several score
of allegations of non-neutral acts against the United
States. The case for the prosecution on sinking at sight is
that sinking at sight against various groups of neutrals was
adopted as a purely political matter, according to the
advantage or, when it was abstained from, the disadvantage
which Germany might get from her relations with these
neutrals. And it does not help to answer that allegation of
the prosecution. That is a matter of fact, which can be
judged as to whether the prosecution is right or wrong. It
does not help to say that the United States committed
certain non-neutral acts. If anything, it would be
supporting the contention of the prosecution that sinking on
sight was applied arbitrarily according to the political
advantages which could be obtained from it.

                                                  [Page 209]

And the only other point - and again my friend, Colonel
Pokrovsky, wishes me to emphasize it - is that these, the
collection of unsworn statements, are of course from any
legal standpoint, in a very different position from reports
made by officers in the course of their duty, which are
admissible in all military courts, probably in every country
in the world. These statements, on the other hand, are an ad
hoc collection. They are not only unsworn but they are
vague, indefinite, and insufficiently related to the order
which is adhered to in the case of the prosecution.

My Lord, I have tried to cut it very short, but I did want
the Tribunal to appreciate that on all these groups and
especially, if I may say so, on Groups 3 and 4, the
prosecution feels very strongly on this matter in the case.
I am grateful to the Tribunal for giving me the opportunity
of saying this.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken until 1400 hours.)

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