Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-127.03 Last-Modified: 2000/02/28 THE PRESIDENT: What if they haven't got lifeboats? [Page 324] DR. KRANZBUHLER: I believe, Mr. President, that that case has not been ruled on here. I know of no case where a ship did not have lifeboats, especially in 1943, in which year the order originated. Every ship was provided not only with lifeboats, but also with automatically inflating rafts. Paragraph 2 refers only to the question of capture of neutral captains. May I continue, please? THE PRESIDENT: Yes, you may. DR. KRANZBUHLER: A number of instances showing that captains were rescued after these orders were issued are quoted in the statements by commanders, reproduced on Pages 22, 25 and 26, under Exhibit No. Donitz 113. I now come to the case of Submarine U-386, which figures very largely in Captain Mohle's statement. The Tribunal will remember that this case was the decisive reason for the way in which Mohle interpreted the Laconia order. With reference to this case, I submit Donitz Exhibit No. 26, the affidavit made by Captain Witt. I should like to read a few paragraphs from that. THE PRESIDENT: What page? DR. KRANZBUHLER: On Page 50, Mr. President. "In November, 1943, in the course of my official duties as a member of the staff of Commander-in-Chief U-boats, I had to interview Lieutenant Albrecht, Commander of U-boat U-386, on his experiences during the action which had just terminated. Albrecht reported to me that in the latitude of Cape Finisterre he had sighted, in daylight, a rubber boat with shipwrecked British airmen in the Bay of Biscay. He did not take any steps to rescue them, because he was on his way to a convoy in process of formation. He could only reach his position by continuing without a stop. Besides he was afraid - " THE PRESIDENT: Dr. Kranzbuhler, is it necessary to go into the details of each particular case? I mean, they all depend upon their own particular circumstances. You need not read the documents very carefully. It is not necessary at this stage of the case. DR. KRANZBUHLER: Very well, Mr. President, I shall only report. The affidavit states briefly that the commander had been informed that he should have brought the airmen back. That is, in other words, the opposite of what Mohle has said in this courtroom. The correctness of Captain Witt's statement is confirmed by the next document, Donitz 27, which is the U-boat's war diary, and contains the comments of Commander-in-Chief U- boats, expressing disapproval of the fact that the Englishmen floating on the raft were not taken aboard. The fact that Admiral Donitz's attitude toward rescues was not based on cruelty, but on military expediency is shown by Page 53 of the following document. He is considering weighing the rescue of our own personnel, and comes to the conclusion that military considerations may forbid such a rescue. The following document, Donitz No. 29, deals with the statement made by witness Heisig. It is on Page 54 and the following. It begins with an affidavit made by the Adjutant, Lieutenant Fuhrmann, who describes the general ideas on which Admiral Donitz's talks were based. At the end he stresses the fact that he was never approached by young officers in connection with Admiral Donitz's pronouncements, which expressed any doubts as to the treatment of shipwrecked persons. On Page 56 there is a statement made by Lieutenant Kress, who was present at the same lecture as Heisig. He says that neither directly nor indirectly, did Admiral Donitz order the survivors to be killed. [Page 325] That is confirmed by Lieutenant Steinhoff's statement on Page 59. The considerations which weighed with the SKL at that time in the question of fighting the crews are illustrated by the following document, Donitz 30, which is reproduced on Pages 60 and 61. Here again, no mention is made of the killing of survivors. It is the record of a conference with the Fuehrer on 28th September, 1942, which was attended by Admiral Raeder and Admiral Donitz. The Tribunal will remember Exhibit GB 200, which describes rescue ships as desirable targets. The same document states that they have the significance of submarine traps. For that reason I have reproduced on Page 63, Standing War Order No. 173, dated 2nd May, 1940. That order states that, in accordance with instructions from the British Admiralty, U- boat traps are employed in convoys. Document Donitz 3, on Page 67 of Document Book No. 2, shows that the treatment of rescue ships has nothing to do with the sanctity of hospital ships. It is the last of the standing orders referring to hospital ships, and is dated 1st August, 1944. It begins with the words: "Hospital ships must not be sunk." My next document, Donitz 35, is meant to show that SKL actually went beyond the provisions of International Law in regard to the sanctity of hospital ships, for, as the entry of 17th July, 1941, proves, the Soviet Government on its part rejected the hospital ship agreement, basing its action on violations of International Law committed by Germany on land. According to Article 18 of the hospital ship agreement, this meant that the agreement was no longer binding on any of the signatories. In Document Donitz 36, Pages 69, et seq., I submit the only known instance of a U-boat commander actually firing on means of rescue. This is the interrogation of Captain Eck, carried out on 21st November, 1945, by order of this Tribunal. That was ten days before he was shot. According to the wish of the Tribunal, I shall confine myself to a summary. After sinking the Greek steamer Peleus, Eck tried to sink the lifeboats and wreckage by means of gunfire. The reason he gives is that he wanted in this way to get rid of the debris and avoid being picked up by enemy aircraft detectors. He states that he had the Laconia order aboard, but that this order had no influence whatsoever upon his decision. In fact, he had not even thought of it. He had received his instructions from Mohle but had heard nothing about the killing of survivors which is alleged to have been desired; and he knew nothing about the instance of U-386. At the end of his examination, Eck states that he expected his actions to be approved by Admiral Donitz. A further reference was made in cross-examination yesterday to the question of whether Admiral Donitz - THE PRESIDENT: Dr. Kranzbuhler, we will adjourn now for a few minutes - only for a short time. DR. KRANZBUHLER: Very well. (A recess was taken.) THE PRESIDENT: Dr. Kranzbuhler, the Tribunal, as you know, was going to deal with the applications for documents and witnesses, but if you could finish your documents in a short time, they would like you to go on with that and get them finished, if you can. DR. KRANZBUHLER: Mr. President, I believe that even at my present speed, I shall need about an hour. I should like to ask you, therefore, for permission to continue on Monday morning. THE PRESIDENT: Well, Dr. Kranzbuhler, if you think it will be anything like as long as that, of course we must put it off to Monday, morning, but the Tribunal does hope that you won't take anything like so long as that, because going in detail into these documents doesn't really help the Tribunal. They have all to be gone into again in great detail, both in your speeches and in further consideration by the Tribunal. [Page 326] DR. KRANZBUHLER: I shall confine myself to making clear the connections, Mr. President, but in spite of that, I think it would be better if I did so on Monday morning. THE PRESIDENT: Very well, yes. Then the Tribunal will now deal with the application. Yes, Sir David. SIR DAVID MAXWELL FYFE: If your Lordship pleases, the first application is on behalf of the defendant von Schirach, who asks for one Hans Marsilek, as a witness for cross- examination. The prosecution have already introduced an affidavit from this man, and they have no objection to him being called for cross-examination. My Lord, the second application on behalf of the defendant von Schirach is in respect of one Kauffmann. The defence desires to administer interrogatories to Kauffmann in lieu of calling Kauffmann, who has already been allowed as a witness. There is no objection to that. My Lord, the next matter is an application by Dr. Seidl on behalf of the defendant Hess, and it is a request for five documents relating to the German-Soviet agreements in August and September, 1939. And it is also a request for the calling of Ambassador Gauss as a witness in connection with the above. But the position with regard to previous applications is somewhat lengthy, and without going into details, I advise the Tribunal that this matter has already been before them on six occasions. I have the details if the Tribunal would like them. THE PRESIDENT: No, because the Tribunal made an order, did they not, that these documents were to be translated? SIR DAVID MAXWELL FYFE: Yes, my Lord. THE PRESIDENT: And that they would then be considered by the Tribunal. SIR DAVID MAXWELL FYFE: That is so, my Lord. The Tribunal made an order for them to be translated on 25th March, and, my Lord, if I may just remind your Lordship of the bare facts, On 28th March Fraulein Blank, the private secretary of the defendant von Ribbentrop, was asked about the agreement. Your Lordship may remember that my friend General Rudenko objected, but the Tribunal ruled that the questions were admissible, and the witness said she knew of the existence of the secret pact, but gave no details. Then, on the 1st of April, in the course of Dr. Seidl's cross-examination of the defendant von Ribbentrop, the Gauss affidavit was read, and on the 3rd of April, Dr. Seidl applied for Hilger and Weizsaecker to be called as witnesses on this point, and on 15th April Dr. Seidl applied for Ambassador Gauss to be called. Now, my Lord, it was discussed before the Tribunal on 17th April, when I said that in view of the Tribunal's previous ruling I could not contest the question of the agreement, but I objected to the witnesses. General Rudenko, I think, stated that he had submitted written objections, and the Tribunal said they would consider the matter. Now, my Lord, the position today appears to be, taking the five documents, that the affidavit of Dr. Gauss is already in evidence. My Lord, that is the first affidavit. But the second affidavit of Dr. Gauss is not in evidence. With regard to the non-aggression pact between Germany and the Soviet Union, that is already in evidence. As to the secret supplementary protocol appended to the non-aggression pact between Germany and the Soviet Union, the substance is already in evidence. It was given in the Gauss affidavit. Then, my Lord, we have the German-Soviet Frontier and Friendship Pact of 26th September, 1939 and the secret supplementary protocol to that pact. The prosecution submit that these documents have no relevance to the defence of the defendant Hess, and they cannot see any reason for them being wanted. If necessary, my Soviet colleague can deal further with the matter, but that is the [Page 327] general position. And we also submit that the second affidavit of the Ambassador Gauss is unnecessary in view of his previous affidavit, and without stating them again, I refer to and repeat my objections to witnesses to the discussions anterior to the conclusion of the agreement. It is submitted that this is really an irrelevant matter, and it is unnecessary to occupy the time of the Tribunal regarding it. My Lord, I don't know whether it is convenient - THE PRESIDENT: Sir David, the Tribunal, as I have said, is going to consider this matter. They haven't yet had an opportunity to consider these documents, but I should like to ask you whether there is any reason why Ambassador Gauss should be called as a witness. SIR DAVID MAXWELL FYFE: None at all, my Lord. THE PRESIDENT: He has already stated the substance of these documents, as has the defendant Ribbentrop, and if the documents are now produced and supposing that the Tribunal took the view that they ought to be admitted, it would be entirely irrelevant to call Gauss as a witness. SIR DAVID MAXWELL FYFE: In my submission that is so, my Lord. THE PRESIDENT: Well, I think the Tribunal had better consider these documents, as they had stated in their order they were going to do when the documents had been produced. SIR DAVID MAXWELL FYFE: If your Lordship pleases. Now, my Lord, the next application is on behalf of the defendant Funk, and he requests permission to read the affidavit of the witness Kalus. The permission was previously granted to the defendant Funk to submit an interrogatory to Kalus, which has been done, and the interrogatory has already been introduced in evidence. The affidavit now in question has been received and supplements the interrogatory, and the prosecution have no objection. The next application is on behalf of the defendant Streicher, and he desires to call the witness Gassner, and he is desired to speak as to the Sturmer and the size of the circulation and the profits. The prosecution submit that it is unnecessary to call a witness as to the form of the Sturmer after 1933. A representative number of copies of the newspaper are before the Tribunal and the form of the newspaper can be seen from them. On the second point, both the defendant Streicher and the witness Heimer have given evidence as to the Sturmer's circulation, and it is respectfully submitted that the takings of the Sturmer and the use to which they were put are irrelevant. Then, my Lord, the next application on behalf of the defendant Sauckel is for one Biedermann as a witness, instead of a witness allowed previously who cannot be found. The prosecution have no objection to that, and they have no objection to the documents that are asked for, so with the approval of the Tribunal I shan't go through them in detail. THE PRESIDENT: Sir David, we should like to know when you think the most appropriate time would be to hear the evidence on behalf of those defendants whose cases have already been presented, whether to hear it at the end of all the evidence or to hear it earlier? SIR DAVID MAXWELL FYFE: My Lord, I should have thought that it was better to hear it earlier if the Tribunal could put aside a Saturday morning for it, or something of that kind, before the cases of the various defendants have got too far into the background. THE PRESIDENT: We will consider that and let you know. SIR DAVID MAXWELL FYFE: If your Lordship pleases. Now, my Lord, the next application is on behalf of the defendant Seyss-Inquart, and he asks [Page 328] for an interrogatory to be submitted to Dr. Stuckhardt 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 next, the defendant Frick, asks for Dr. Konrad as a witness on the question of Church persecution, and the prosecution suggests that an interrogatory would be sufficient on this point and 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 an interrogatory, not between an oral witness and an interrogatory. Then, if I might leave the next one, the application on behalf of the defendant Goering, my friend Colonel Pokrovsky is going to deal with that. I pass to the application of the defendant; Hess and Frank. That is Dr. Seidl's application; and if I might just read what is stated in the General Secretary's note, it is official information from the Ministry of War of the United States of America, or another Ministerial Service official or the Office of Strategic Services. It is stated that such a report is desired to show that 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 favours 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 the 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 as to credibility, 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 as to credibility, you may call a witness, that is to say, that knowing the general reputation of the witness who has been cross-examined as to credibility, if on that general reputation and only on this general reputation, one would not believe him. 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 misdemeanour, he may be contradicted.
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