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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th April to 1st May, 1946

One-Hundred-and-Eighteenth Day: Wednesday, 1st May, 1946
(Part 6 of 10)

[Page 422]

Q. The memorandum of this conversation is also contained in my document book as Exhibit 22. It is on Page 64 of the English text and Page 57 of the German text.

[Page 423]

We shall now have to deal in greater detail with your alleged knowledge of Hitler's intentions to start war. First of all, speaking generally, did Hitler ever, as far as you know -

SIR DAVID MAXWELL FYFE: (Interposing) My Lord, I asked Dr. Dix if he would object if the Tribunal would allow me, since he is passing to a new point, to mention the question of the Raeder documents. I had a discussion with Dr. Siemers. There are still some outstanding points, and we should be grateful if the Tribunal would hear us this afternoon, if possible, because the translating division is waiting for the Raeder documents to get on with their translations.

THE PRESIDENT: How long do you think it will take, Sir David?

SIR DAVID MAXWELL FYFE: Not more than a half hour, my Lord.

THE PRESIDENT: If the translation department are waiting, perhaps we had better do it at 2.00 o'clock.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: If it is only going to take a half hour. It is not likely, I suppose, to take more than that.

SIR DAVID MAXWELL FYFE: I do not think it will take more than that.

THE PRESIDENT: We will do that at 2.00 o'clock, and now we will adjourn.

(A recess was taken until 14.00 hours.)

SIR DAVID MAXWELL FYFE: May it please your Lordship, the Tribunal should have in front of it a statement of our objections to certain of the documents, arranged in six groups. Attached to that sheet it will find an English summary of the documents, presenting shortly the contents of each one of them. My Lord, with regard to the first group, might I make two erasures from our objection to No. 19, which has been allowed in the case of Schacht, and, if I understand Dr. Siemers correctly, he does not press for No. 76.

Now, my Lord, the others in that group: No. 9, is a series of quotations from Lersner's book on "Versailles."

No. 10, the quotation from a book by the German left-wing publicist, Thomas Mann.

No. 17 is "The Failure of a Mission," by Neville Henderson.

No. 45 is a quotation from a book of Mr. Churchill's.

No. 47 is the report on a complaint to Lord Halifax about an article in the "News Chronicle" criticising Hitler.

My Lord, No. 66 is rather different. If the Tribunal would be good enough to look at it, it is a report by a German lawyer, Dr. Mosler, I think his name should be, who is an authority on International Law, dealing with the Norway action. Dr. Siemers has been, of course, absolutely frank with me and he said that it would be convenient to him to have this, which is really a legal argument, embodied in his document book. Of course, that is not really the purpose of these document books but it is a matter for the Tribunal, and we felt we had to draw attention to it.

Then, my Lord, 76 comes out.

93 to 96 are quotations from Soviet newspapers.

101 is a quotation from Havas, the French News Agency.

102 to 107 are minor orders relating to the Low Countries which, the prosecution submits, have no evidential value.

Then in the second group, there a number of documents which, the prosecution submits, are not relevant to any of the issues in the case.

THE PRESIDENT: Sir David, you did not deal with 109, did you?

SIR DAVID MAXWELL FYFE: I am sorry, my Lord, it is on the second line. That is another legal argument, the effect of the war on the legal position

[Page 424]

of Iceland, which is a quotation from the British Journal of Information in Public Law and International Law.


SIR DAVID MAXWELL FYFE: My Lord, the second group, the prosecution submits, is irrelevant.

No. 22 is a Belgian Decree of 1937 dealing with the possible evacuation of the civil population in time of war.

39 is a French document of the Middle East.

63 and 64 are two speeches, one by Mr. Emery and another by Mr. Churchill, dealing with the position in Greece at the end of 1940, some two months after the beginning of the Italian campaign against Greece.

No. 71 is an undated directive with regard to the study of routes in Belgium, which does not seem to us to have any evidential importance.

76 comes out as "The Altmark."

THE PRESIDENT: Did you say 76 came out?

SIR DAVID MAXWELL FYFE: Yes, My Lord, that is "The Altmark".

It is the same one that is in 71. I am sorry, my Lord, it should have been marked out.

99 is the minutes of the ninth meeting of the combined cabinet council on 27 April, 1940, and it deals with a suggestion of Monsieur Paul Reynaud with regard to the Swedish ore mines. As it was long after the Norway campaign and it was never, of course, acted upon in Norway, it seems to us to have no relevance for this trial.

102 to 107 I have dealt with under group one. They have certain very small unimportant memoranda relating to the Low Countries.

112 is a French document in which Monsieur Paul Reynaud quotes a statement from Mr. Churchill that he will fight on to the end, which again does not seem of much importance in 1946.

Now, my Lord, the next group are documents which were rejected by the Tribunal when applied for by the defendant Ribbentrop. The first two deal with British rearmament and the others with the Balkans and Greece. The Tribunal will probably remember the group which it rejected in the Ribbentrop application; and the fourth group is other documents of the same series as those rejected by the Tribunal in the case of the defendant von Ribbentrop. The fifth group is really objectionable on the "tu quoque" basis. I think these are entirely French documents which deal with proposals in a very tentative stage and which were arranged, but never followed out, with regard to the destruction of oil fields or the blocking of the Danube in the Middle East. My Lord, they are documents dated in the spring of 1940 and, as I say, they deal with the most tentative stages and were never put into operation. The plans were never in operation.

The sixth group consists of documents dealing with Norway, which were captured after the occupation of France. As I understand Dr. Siemers' argument, it is not suggested that these documents were within the knowledge of the defendants at the time that they carried out the aggression against Norway, but it is stated that they had other information. Of course, as to their own information, we have not made any objection at all, and that these documents might be argued to be corroborative of their agents' reports. Actually, as is shown by Document 83, to which we make no objection, they also deal with tentative proposals which were not put into effect and were not proceeded with; but in the submission of the prosecution, the important matter must be what was within the knowledge of the defendants before 9 April, 1940, and it is irrelevant to go into a large number of other documents which are only arguably consistent with the information which the defendants stated they had. My Lord, I tried to deal with them very shortly because I made a promise

[Page 425]

to the Tribunal on the time, but I hope that I have indicated very clearly what our objections were.

DR. SIEMERS (Counsel for defendant Raeder): High Tribunal, it is extremely difficult to define my position with reference to so many documents, especially since I know that these documents have not yet been translated and that the contents in the main are therefore not known to those concerned. Therefore, I might point out that there is a certain danger in treating documents in this way. In part they are basic parts of my defence.

Therefore, I should like to state now that in dealing with these documents I shall be compelled, in order to give the reasons for the relevancy of this evidence, to point out those passages which I shall not need to read separately into the record, for as soon as the document book is ready, they will be known to the Tribunal and can be read there.

I shall follow the order as outlined by Sir David. First of all, the first group, Documents 9 and 10. The note submitted by Sir David to the Tribunal points out that the submission of these documents conflicts with the ruling given by the Tribunal on 29 March. In reply I should like to point out that this opinion of the prosecution is an error. The ruling of the Tribunal said that no documents might be submitted concerning the injustice of the Versailles Treaty and the pressure arising from it. These documents do not concern the injustice and the pressure; rather they serve to give a few examples of the subjective attitude of a man like Noske, who was a Social Democrat and certainly did not want to conduct any wars of aggression. A few other statements in numbers 9 and 10 show the thought of the Government and the ruling class at that time in regard to defence intentions and the danger that in case of an attack on the part of Poland, for instance, the German Wehrmacht might be too weak. These are facts pure and simple; and I give you my express assurance that I shall not quote any sentences which might introduce a polemic. Moreover, I need this mainly as a basis for my final pleading.

No. 17 is a very brief excerpt from the book by Henderson, "Failure of a Mission," written in 1940. I believe there are no objections to my quoting about fifteen lines if I wish to use them in my final pleading, to show that Henderson, who knew Germany well, still believed in 1940 that he had to recognise certain positive good points in the regime at that time, and I believe that the conclusion is justified that one cannot expect that a German military commander should be more sceptical than the British Ambassador at that time.

Then we turn to Document 45. It is true this document is taken from a book by Churchill, but it deals with a fact which I should like to prove, the fact that many years before the first World War there existed a British Committee for Defence. In the table of contents which Sir David has submitted, the word "Reichsverteidigungsausschuss" is used, and I therefore conclude that this is a mistake on the part of the prosecution who took it to mean a German Reich Defence Committee; that is not correct. This document shows how it came about that the prosecution wrongly over- estimated the importance of the German Defence Committee, as the prosecution naturally compared it with the British Committee for Defence, which went very much further in its activities.

No. 47 is evidence that, when the German Embassy pointed out that an extremely scathing article on Hitler had appeared in the paper "News Chronicle," Lord Halifax pointed out in reply that it was not possible for him to exert any influence on the newspaper. I should like merely - and must say so now - to compare this with the fact that the prosecution made it appear as though Raeder had had something to do with the regrettable article in the "Volkischer Beobachter": "Churchill sunk the Athenia." Raeder was no more connected with that article than Lord Halifax with the article in the "News Chronicle" and was unfortunately even more powerless, as far as this article was concerned, than the British Government.

[Page 426]

No. 66 deals with the opinion given by Dr. Mosler, a specialist on International Law, an opinion on the Norway action in very compressed form, as the Tribunal will surely admit. The Tribunal will also concede that in my defence of the Norway action I must speak at length about the underlying principles of International Law. The underlying principles of International Law are not an entirely simple matter. I have nothing against presenting this myself in all necessary detail. I was merely guided by the thought that the Tribunal has asked again and again that we save time. I believe that we can save considerable time if this statement of opinion is granted me, so that I shall not have to cite numerous excerpts and authors in detail, in order to show the exact legal justification. I could then perhaps deal with the legal questions in half an hour, whereas without this statement of opinion it is utterly impossible for me to deal with such a problem in half an hour. If the prosecution does not mind that more time be taken up, then I do not object to the document being denied me. I'll merely have to take the consequences.

No. 76 has meanwhile been crossed out, that is, it is granted me by the prosecution.

Numbers 93 to 96 are excerpts on statements of the official Moscow papers, "Investia" and "Pravda." These statements prove that at least at that time Soviet opinion regarding the legality of the German action n Norway coincided with the German opinion of that time. If the Tribunal thinks that these very brief quotations should not be admitted as documents, I do not want to be too insistent, since at this moment of the proceedings I am compelled in any case to explain them. The Tribunal will remember that at that time Germany and Russia were friends, and Soviet opinion on a purely legal problem should at any rate be considered as having a certain significance.

Then, No. 101; I beg your pardon, Sir David, but if I am not mistaken Dr. Braun said an hour and a half ago that 101 is being rejected. Very well, then, 101 to 107. The action against Norway, as I have already said, involved a problem of International Law. It involves the problem of whether a country may violate the neutrality of another country when the danger exists, as can be proved, that another belligerent nation likewise intends to violate the neutrality of the aforementioned neutral country. When presenting my evidence I shall show that Grand Admiral Raeder, in the autumn of 1939, received all sorts of reports to the effect that the Allies were planning to take under their own protection the territorial waters of Norway, that is, to land in Norway, in order to have Norwegian bases. When I deal with the Norway documents, I shall return to this point. I should like to say here that it is necessary to explain and to prove that the legal attitude taken by the Allies to the question of the possible violation of the neutrality of a neutral country in the years 1939 and 1940, was entirely the same as the attitude of the defendant Raeder in the case of Norway at the same time.

Therefore, it is necessary not only to deal with Norway, but also to show that this was a basic conception, which can readily be proved by reference to parallel cases on the strength of these documents. These parallel cases deal in the first place with the plans of the Allies with respect to the Balkans and, secondly, with the plans of the Allies with respect to the Caucasian oilfields.

Your Honours, it is by no means my intention, as Sir David has suggested, to use these documents from the "tu quoque" point of view, from the point of view that the defendant has done something which the Allies have also done or wanted to do. I am concerned only with a judgement of the defendant Raeder's actions from the legal point of view. One can understand such actions, only when the entire matter is brought to light.

It is my opinion - and in addition to this I should like to refer to Dr. Mosler's statement of opinion, Exhibit 66 - that this cannot be made the subject of an accusation.

[Page 427]

We are concerned, your Honours, with the right of self- preservation as recognised by International Law. In this connection I should like ...

THE PRESIDENT: Dr. Siemers, we don't want to go into these matters in great detail, you know, at this stage. If you state what your reasons are in support, and state them shortly, we shall be able to consider the matter.

DR. SIEMERS: I am very sorry that I have to go into these details, but if through the objection of the prosecution ...

THE PRESIDENT: The Tribunal does not wish to hear you in detail. I have said that the Tribunal does not wish to hear you in detail.

DR. SIEMERS: I merely ask that the Tribunal take into consideration the fact that this concerns the principle of International Law laid down by Kellogg himself in 1928, namely, the right of self-preservation, or "The right of Self Defence." For that reason I should like to adduce these documents showing that just as the Allies acted quite correctly according to this principle, so also did the defendant Raeder.

Document 22 is next. I have just given various statements of principle which apply to a large number of the remaining documents, so I can refer to the statements I have already made. These statements also apply to Documents 22 and 39.

As far as Documents 63 and 64 are concerned, I should like to point out that these documents deal with Greece, and not only these two, but also a later group of perhaps ten to twelve documents, with which I should like to deal very briefly. As far as Greece is concerned, the situation is as follows:-

I must admit that I was more than surprised that the prosecution objected to these documents, about 14 in all. In Document C-12, Exhibit G13-226, the prosecution accuses Raeder of having decreed on 30 December, 1939, and I quote:-

"Greek merchantmen in the prohibited area declared by the United States and England are to be treated as enemy ships."
The accusation would be justified, if Greece had not behaved in such a manner that Raeder had to resort to this order.

If the documents concerning Greece which show that Greece did not keep to her neutrality, are struck out, then I cannot bring any counter-evidence. I do not believe that it is the intention of the prosecution to restrict my presentation of evidence in this way.

These are all documents which date back to this time and which show that Greece put her merchantmen at the disposal of England, who was at war with Germany. Therefore they could be treated as enemy ships.

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