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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd May to 13th May, 1946

One Hundred and Twenty-Third Day: Tuesday, 7th May, 1946
(Part 10 of 10)

[Page 194]

SIR DAVID MAXWELL FYFE: If Your Lordship please.

Will your Lordship just allow me a moment to get my papers, I am afraid I have only the prosecution's objections in English, but it may help those of the Tribunal who do not understand English to have the numbers, at any rate, in front of them.

My Lord, the first group are documents which the prosecution submits have no probative value. These are D-53. My Lord, the "D" in this case stands for Donitz Document Book. D-53, Page 99, and D-49, Pages 130 and 131; D-51 and D-69.

My Lord, the first of these, D-53, is a letter from a prisoner-of-war camp, purporting to be signed by 67 U-boat commanders and in purely general terms. The prosecution submits that that is not helpful, either from its form or from its material.

My Lord, D-49, which is at Page 130 to 131, is again in entirely general terms and contains no indication of the moral or legal basis for the opinion expressed.

D-51 and D-69 are both newspaper reports.

THE PRESIDENT: Wait a minute, Sir David. 130? I have not a Page 131. Is it an affidavit, or was it called an affidavit?


THE PRESIDENT: "On the basis of the documents of the Navy Court archives at ..." Oh yes, I think the Document Book has got a bit out of order.

SIR DAVID MAXWELL FYFE: Yes, my Lord, maybe so.

THE PRESIDENT: Is it a sworn affidavit by somebody or other?


My Lord, 130 comes immediately before.

THE PRESIDENT: I have it now, yes. 131 comes somewhere before 130.

SIR DAVID MAXWELL FYFE: That is it, my Lord. It is an affidavit by a former fleet judge, and your; Lordship sees that the description which the prosecution gives of it as being in entirely general terms is, I submit, justified by the wording of the document, and it is difficult to see the basis which the learned opponent seems to profess for his statements.

My Lord, D-51, Page 134, is an extract from the Volkischer Beobachter of 20th March, 1945, and the prosecution submits that the subject which it deals with is irrelevant to the matters developed against the defendant Donitz.

Number 69 is another newspaper report from the same paper of i4th November, 1939, giving a list of armed British and French passenger ships.

Now, my Lord, the second group which we dealt with are those irrelevant documents, D-5, D-9, D-10, D-i2, D-13, D-29, D- 48, D-60, D-74.

Now, my Lord, the first of these, D-5, on the subject of Norway, seeks to introduce by way of a footnote a summary of the documents which the Tribunal dealt with when considering the documents in the case of the defendant Raeder,

[Page 195]

with regard to which the Tribunal expressed its doubts, although it allowed them to be translated. The Tribunal will remember that with regard to the Donitz documents it was thought convenient to have them translated without a preliminary argument.

Now, my Lord, the same argument applies to a footnote to a speech of the defendant von Ribbentrop, a summary of documents which came into German possession long after the speech of the defendant Ribbentrop was made. The prosecution submits it is irrelevant.

And the documents, 9, 10, 12 and 13 deal with the rescue of Allied survivors in the years 1939 to 1941 inclusive.


SIR DAVID MAXWELL FYFE: My Lord, that last statement, "and all apparently unsworn," is an error. It ought to be that D- 13 is apparently unsworn.

Now, my Lord, with regard to that, the position is, that whereas it is quite true that a non-rescue order was issued by the defendant before the 27th of May, 1940, the really important period is around about 17th September, 1942. It seemed to the prosecution unnecessary to go into these details for the earlier period. There is no real doubt that there were some rescues; the only point which the prosecution is putting against the defendant is that he did issue an order, which the prosecution has proved, forbidding rescue when there was any danger.

THE PRESIDENT: What was the date you gave us, 17th of November, 1942?

SIR DAVID MAXWELL FYFE: My Lord, the non-rescue order is before 27th May, 1940. We cannot give the exact date, but we know from a reference in another order that it must have been before 27th May, 1940. And the order with regard to the destruction of the crews of merchant ships is 17th September, 1942; 17-9-42.

Now, my Lord, the Document No. 29 contains four documents dealing with the evidence of the witness Heisig. The first purports to be an affidavit by a witness who testifies to the sort of statements the defendant Donitz usually made and does not remember what was said on the particular occasion referred to by the witness Heisig; and it contains a good deal of argument.

The second is a letter sent to Counsel for the defendant Donitz, and, with the exception of one sentence, denying that the defendant spoke in the sense alleged by Heisig; the remainder of the statement which, of course, is unsworn, is either argument or is vague or irrelevant.

The remaining two documents, both apparently unsworn, contain allegations against the character of the witness Heisig. The Tribunal will remember that no allegations were made against him, that there was no cross-examination in regard to his character when he gave his evidence. And the second deals with other lectures which are not those in question.

Now, my Lord, the next document, D-48, deals with the alleged good treatment of Allied prisoners in German Naval prisoner-of-war camps, on which subject no issue has been raised with this defendant.

D-60, Page 209, deals with Italian and French declared danger zones, which, the prosecution submits, has no relevance to these declared by the Germans.

D-74 and D-60, Page 256, deal with the relationships between the British and French merchant marines and their respective navies, and the prosecution submits that they are irrelevant as far as the British Navy is concerned, if they have any relevance cumulative of D-67.

Now, my Lord, the third group are details of the Contraband Control System and they are D-60, Pages 173 to 198 D-72; D- 60, Pages 204 to 205 and Pages 219 to 225.

My Lord, these documents deal with the details of the contraband control, what articles were contraband, declarations of different governments, and it is submitted that details of the contraband control are remote from the issues raised

[Page 196]

and entirely irrelevant. I do not think in the presentation against either of the Naval defendants questions of declarations of contraband were mentioned at all, certainly not in regard to the defendant Donitz; and, in the submission of the prosecution, it is really introducing matters which are, I am sure, not helpful to the problems of this case.

The fourth group, which can only be described in very general terms, are allegations against the Allies. My Lord, the general objection I set out in the first paragraph is this: These documents consist of various allegations against the Allies; they appear to have little or no relevance to the issues, and if submitted might necessitate the prosecution seeking the facilities to rebut the allegations; in which case a large volume of evidence in rebuttal might be entailed.

Then other affidavits deal with allegations that the Allies did not pick up survivors; 367, Pages 96 and 90.

31 and 32 deal with Allied attacks on German Air-Sea Rescue planes; 33 accuses a Soviet submarine of sinking a hospital ship.

And three, Nos. 37, 38 and 40, the last being a newspaper report, allege that the Allies shot survivors. My Lord, the question of Allied treatment of survivors is dealt with exhaustively by an extract from the German Naval Diary and, my Lord, that we are not objecting to because there it is important not as evidence of the facts stated, but as evidence of the matters that had an effect on the German Naval Command. For that purpose I am quite ready that Dr. Kranzbuhler should put them in and the Tribunal should consider them. And there is another document which deals with that point quite fully, and I am quite prepared to let that go in.

Then, my Lord, the remainder allege either ruthless actions or breaches of International Law by the Allies, and these are Nos. 19, Page 24, the Goering Exhibit; Nos. 7 and C-21, Page 91; 47, Pages 120, 121, which is also a newspaper report; 52, 60, Pages 152 and 208; D-75, 81, 82, 85 and 89.

Now, as I understand the defence that is submitted here - the allegation with regard to the order which we say sets out the destruction of survivors - it is not that it was a reprisal, but the defence is that the order did not mean destruction but merely meant non-rescue.

On that basis, it seems difficult, indeed, impossible, to appreciate how these matters become relevant at all.

And similarly with regard to the order for shooting commandos. The justification alleged for the order is set out in the order itself. I have not heard any defendant set forth any justification of that order in giving evidence before the Tribunal. Every one of the defendants so far has said this order was given by Hitler and "whether we approved of it or not we had to carry it out."

So that in my submission there is not even the argument which is fore-shadowed, that breaches of the laws and usages of war can be on certain occasions properly committed as reprisals. It is not put forward from that point of view; there is no admission here, as I understand the defence, of breaches for which reprisal is the answer. Therefore, the prosecution submits that these documents are also irrelevant.

My Lord, again I tried to put it as shortly as possible because I did not want to occupy too much time, but I tried to correct them and describe those which seemed of greatest importance.


SIR DAVID MAXWELL FYFE: If your Lordship pleases.

THE PRESIDENT: The Tribunal would like to know why this matter of the admissibility of these documents has not been argued before. In the other cases with which we have dealt, the question of the admissibility has been dealt with, first of all, by you offering your criticisms and objections, and then the defendant's Counsel being heard in reply. Then the Tribunal has ruled.

[Page 197]

SIR DAVID MAXWELL FYFE: My Lord, as I understand the position, we did put in objections to the documents and Dr. Kranzbuhler suggested that he would very much prefer the documents to be translated and the objections taken at a later stage. And I was certainly informed that the Tribunal agreed with that and ordered the documents to be translated.

THE PRESIDENT: That may be, for the purposes of translation. But, that does not mean that they are necessarily admissible. And in most of the other cases, if not all, as you will remember, we have had an argument in open session in which you, or one other member of the prosecution, have made your objections, and then the defendant's Counsel has replied to these objections.

SIR DAVID MAXWELL FYFE: My Lord, Dr. Kranzbuhler has just handed - yes -

The ruling is: "The Tribunal has ruled that the documents mentioned in your application may be translated, but that the question of their admissibility is to be decided later."
My Lord, I am afraid I am at fault there. It did not occur to me, if I may be quite frank with the Tribunal, that I should have come before the beginning of the case of Donitz to make this argument. I am very sorry, and I must accept responsibility. I assumed, without real justification, that that meant the argument of admissibility would come at the beginning, or at some convenient time in the case of Donitz. I am very sorry, my Lord, and I can only express my regret.

My Lord, there is this excuse: We had three of the books on Saturday, and we only received the last one yesterday. Therefore, we really could not have done it before today, even if I had thought of it.

THE PRESIDENT: Dr. Kranzbuhler, the Tribunal considers that in view of the large number of documents to which the prosecution objects, it will be highly inconvenient to have you answer Sir David Maxwell Fyfe's argument as you go through your documents, and therefore that you must answer now and deal with them in the way in which the other Counsel have dealt with these objections to the admissibility of documents. Then the Tribunal will be able to consider the arguments that Sir David Maxwell Fyfe has put forward and the arguments that you but forward in support of the documents.

DR. KRANZBUHLER: Mr. President, I should like to point out that just because of the many objections which the prosecution makes against the documents, I have for practical purposes to present all my documents, for the line of thought pursued in presenting documentary evidence implies a definite order of presentation and I cannot take out one document or another without disturbing this line of thought. Therefore, I believe it would save considerable time if the Tribunal would permit me to answer the objections when I come to the particular document.

THE PRESIDENT: What difference could it make, assuming that the decision of the Tribunal is the same, whether you argue the matter now or whether you argue the matter afterwards? The documents which will remain, which will have been held to be admissible, will be the same. Therefore, there is no difference. I can't see any argument in favour of what you are saying.

DR. KRANZBUHLER: Mr. President, my documentary material, exactly like that of the prosecution, is organized with a definite purpose in mind and according to a definite idea. If, of the fifty documents which are contained in my documentary material, I have to argue about forty, then ten are lacking. Therefore it seems to me proper for me to discuss all fifty, in the order in which I intended to submit them to the Tribunal.

If the Tribunal is of the opinion that the reasons given for the relevancy of the different documents are not sufficient, then the objectionable document can

[Page 198]

be withdrawn or refused. However, it seems expedient to me that I present my arguments in the order which I have been intending to follow, and not in the order in which the prosecution is now making its objections. That defeats my purpose and disturbs my line of thought and, as defence Counsel, I believe it is my task to present my own line of thought and not to reply to the line of thought pursued by the prosecution or to their objections.

THE PRESIDENT: Well, if that is so, then you can present your argument upon the relevancy of the documents in the order in which they come.


THE PRESIDENT: But you have to do it now.

DR. KRANZBUHLER: Yes, Mr. President.

THE PRESIDENT: You can begin with D-5, which is the first, and then go on with D-9 and D-10; take them in the order in which they stand.

Dr. Kranzbuhler, the Tribunal does not see any reason why you should be dealt with in a different way from which the other counsel I have been treated. Therefore they think that you ought to be prepared to deal with these documents in the way in which they are grouped here. They would prefer that you should deal with them now, if you can deal with them in a reasonably short space of time. Then they will be able to determine the question of which documents shall be admitted during the adjournment. Otherwise, they will have to adjourn tomorrow for a consideration of that matter, which will still further hold up the trial.

DR. KRANZBUHLER: Mr. President, of course, I can make general statements as to the groups which the prosecution has referred to, but I cannot refer to the individual documents with the necessary detail to establish their relevancy unequivocally. That is impossible for me to do, confronted as I am by a list which I have not seen before.

Therefore I should like to ask, if I am to give reasons for each individual document now, that I be given an opportunity to do that tomorrow morning.

However, if the Tribunal wishes only to hear general remarks about the groups, I can do that right now.

THE PRESIDENT: Very well, Dr. Kranzbuhler. The Tribunal will adjourn now, and we will hear you upon these documents at 9.30 tomorrow morning.

DR. KRANZBUHLER: In open session, Mr. President?

THE PRESIDENT: In open session, certainly, yes.

(The Tribunal adjourned until Wednesday, 8 May, 1946, at 0930 hours.)

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