The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Fourth Day: Tuesday, 5th March, 1946
(Part 3 of 3)

[Page 167]

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 interrogation.

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 Suhren.

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 that were made.


DR. KRANZBUEHLER: May I 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?


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?


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 produced.

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 information.


[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 hours.)

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