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-Fourth Day: Wednesday, 8th May, 1946
(Part 2 of 5)

[Page 203]

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.


DR. KRANZBUHLER: Page 32, Mr. President.


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?


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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