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-Sixth Day: Friday, 10th May, 1946
(Part 1 of 12)

[Page 263]

THE PRESIDENT: Sir David, I understand there are some supplementary applications for witnesses and documents, which would probably not take very long to discuss. Is that so?

SIR DAVID MAXWELL FYFE: My Lord, I have not actually received the final instructions. I can find out in a very short time. I will get Major Barrington up. I am told that is so.

THE PRESIDENT: The Tribunal, therefore, proposes to sit in open session tomorrow until a quarter to twelve, dealing with the trial in the ordinary course, and then to take the supplementary applications at a quarter to twelve, and then to adjourn into closed session.

SIR DAVID MAXWELL FYFE: My Lord, we shall be ready for them at a quarter to twelve tomorrow.


KARL DONITZ - Resumed.



Q. Defendant, the first document that I want you to look at with regard to the Fuehrer commando order of 18th October, 1942, is on Page 65 of the English Document Book and on Page 98 of the German Document Book. It is Document 178-C, Exhibit USA 544. You will see that that document is dated 11th February, 1943. That is some twelve days after you took over as Commander-in-Chief and, you will see from the references that it went to 1 SKL 1. That is the international law and prize law division of your operations staff, isn't it - Admiral Eckhard's division?

A. No. It is addressed to the first section of the Naval War Staff, that is, the operational section. It originates with Eckhard and is sent to the first section - i.e., to the section head.

Q. But I think I am quite right - the reference about which I asked you - 1 SKL 1 i - that is, Admiral Eckhard's department. That is, the reference for Admiral Eckhard's international law department?

A. No, no, no. It is the department in which Admiral Eckhard was also an official. Admiral Eckhard was an official in that department.

Q. And the third SKL in the next line is the first department as you said, is it not?

A. No. The third section of the SKL collected information sent in for the Navy and reported on it.

Q. I note it was Intelligence and Press. Is that right or not?

A. Yes, it was Intelligence and Press.

Q. Now, I just want you to help the Tribunal on three points in this document. You remember I asked you yesterday about the secrecy standard of the original

[Page 264]

Fuehrer order of 18th October. If you will look at the second paragraph you will see that it says:
"The first Fuehrer order of 18th October was given the protection of top secret merely because it is stated therein (1) that sabotage organization may have portentous consequences, and (2) that the shooting of prisoners in uniform, acting on military orders, must be carried out even after they have surrendered voluntarily."
Do you see that?

A. Yes, I have read it.

Q. You agree that that was one of the reasons for giving the order top secrecy?

A. This exchange of notes between Eckhard and the section head was not submitted to me, as is obvious from the initials noted in the book -

Q. Is that the reason for you not answering my question? Do you agree that that is the reason for giving top secrecy to this document?

A. I do not know. I cannot tell you that, because I did not issue this commando order. It says in the commando order that on the one hand these people had killed prisoner's - that is the way I had read it as C.-in-C. Submarine Fleet - and on the other hand -

Q. I shall give you one more opportunity of answering my question. You were Commander-in-Chief of the German Navy. Do you say that you are not able to answer this question? Is the reason stated in paragraph 2 of this document a correct reason for attaching top secrecy to the Fuehrer order of 18th October? Now you have this final opportunity of answering that question. Will you answer it or will you not?

A. Yes, I will do that. I consider it possible, particularly as the legal expert here thinks so. I do not know if it is correct, because I did not issue the order. On the other hand, it says in the order that particulars are to be published in the army orders.

Q. That was the next point. The next paragraph says that what is to be published in the army orders is the instruction relating to annihilation of sabotage units in battle, not, of course, if they are shot - as I would say, murdered - quietly, by the SD after battle. I want you to note the next paragraph. The next paragraph raises the difficulty as to how many saboteurs were to be considered as a sabotage unit, and suggests that up to ten would certainly be a sabotage unit.

Now, if you look at the last paragraph - I will read it to you quite slowly:

"It is to be assumed that Security III is acquainted with the Fuehrer order, and will therefore reply accordingly to the objections of the army general staff and the air force operations staff. As far as the navy is concerned, it remains to be seen whether or not this case should be used to make sure" - note the next words - "after a conference with the Commander-in-Chief of the Navy, that all departments concerned have an entirely clear conception regarding the treatment of members of commando units."
Are you telling the Tribunal that after that minute from Eckhard's department, which was to be shown to 1 SKL, your chief of staff's department, that you were never consulted upon it?

A. Yes, I do say that, and I will prove by means of a witness that there are no initials or distribution list here; and this witness will prove quite clearly that I did not receive a report on it.

Q. Admiral Wagner was your chief of staff?

A. Yes.

Q. All right, we will not occupy further time.

A. He was not my chief of staff; he was chief of this section. He was Section Chief 1 SKL, to which this order was directed. He knows beyond doubt that no report was made to me. The circumstances are perfectly clear.

Q. Well, I will leave that, if you say that you have not seen it, and I will ask you to look at Document 551-PS.

[Page 265]

SIR DAVID MAXWELL FYFE: My Lord, I will pass the Tribunal a copy. This is Exhibit USA 551, and it was put in by General Taylor on 7th January.

Q. Now, that is a document which is dated 26th June, 1944, and it deals with the Fuehrer order, and it says how it will apply after the landing of the Allied forces in France, and if you will look at the distribution, you will see that Number 4 is to the OKM, 1 SKL. That is the department on which you were good enough to correct me a moment ago. Now, were you shown that document, which says that the Fuehrer order is to apply to commando units operating outside the immediate combat area in Normandy? Were you shown that document?

A. No, that was not shown to me in any circumstances - and quite rightly, as the Navy did not take part in the affair.

Q. You told me yesterday that you were concerned with the matter and that you had small boats operating in the Normandy operations. That is what you told me yesterday afternoon. You have changed your mind since yesterday afternoon?

A. No, not at all. But these midget submarines were floating on the water, and had nothing to do with commandos on the land-front. That is clear from this document, too - I do not know if it is the original of the 1 SKL because I cannot see the initial. I am convinced, however, that it was not submitted to me because it had nothing to do with the Navy.

Q. I see. Will you just look at Document 537-PS, which is dated 30th July, 1944.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 553, also put in by General Taylor on 7th January.

A. Where is it?

Q. The Sergeant-Major will point to the place. That is the document applying the commando order to military missions, and you will see again later that the distribution includes OKM, Department SKL. Do you see that order?

A. Yes, I can see it.

Q. Did you see it at the time that it was distributed, at the end of July, 1944?

A. It is quite certain that this order was not submitted to me because again it has nothing to do with the Navy. The Navy had nothing to do with combating bandits.

Q. I want you now just to look very quickly, because I do not want to spend too much time on it, at Document 512-PS.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 546, which was also put in by General Taylor on 7th January.

Q. Now, that is a report dealing with the question of whether members of commandos should not be immediately murdered, in order that they could be interrogated, and the question is whether that is covered by the last sentence of the Fuehrer's order, and I call your attention to the fact that it refers, with regard to interrogations, in the second sentence:-

"The importance of this measure was proven in the case of Glomfjord, two-men torpedoes at Trondheim, and glider planes at Stavanger."
A. I cannot find it at the moment.

Q. It is Document 512-PS.

THE PRESIDENT: Sir David, perhaps you ought to read the first sentence.

SIR DAVID MAXWELL FYFE: If your Lordship please.

A. This document dates from 1942. At that time I was C.-in- C. Submarine Fleet from the Atlantic Coast to the Bay of Biscay. I do not know this paper at all.

Q. That is your answer, but it is 14th December, 1942, and the point is put up, which is raised in the first sentence which my Lord has just directed me read:-

[Page 266]

"Top secret: According to the last sentence of the Fuehrer order of 18th October, individual saboteurs can be spared for the time being in order to keep them for interrogation."
Then follows the sentence I have read. That was the point that was raised, and what I was going to ask you was, did that point come up when you took over the commandership in chief of the navy in January, 1943? Just look at the last sentence.
"The Red Cross and the BDS protested against the immediate carrying out of the Fuehrer order."
A. I beg your pardon, but I still cannot find where that is. I have not yet found the last sentence. Where is it?

THE PRESIDENT: Our translation says "after the immediate carrying out ..."

SIR DAVID MAXWELL FYFE: "After," my Lord: I am sorry. It is my fault. I am greatly obliged to your Lordship. "Protested after the immediate - " I beg your Lordship's pardon. I read it wrongly.

A. That dates from December, 1942.

Q. It is only six weeks before you took over.

A. Yes, that is correct, but I do not know this teleprint. In any case, that will not be the Red Cross; but probably Reiko See (Reichskommissar fur Seeschiffahrt - Reich Commissar for Shipping) - or so I assume. BDS is probably the SS leader in Norway.

Q. But the point that I thought might have had some interest for you was the two-marl torpedoes. I thought that might have been referred to you as a matter of navy interest. However, if it was not I will come to a document, that is, after you took over. Give the defendant Document 526-PS, of 10th May, 1943.

SIR DAVID MAXWELL FYFE: My Lord, that is Exhibit USA 502, and was put in by my friend Colonel Storey on 2nd January.

Q. You see that that is an account - it is from the defendant Jodl's department, and it is annotated for the defendant Jodl's department - of an enemy cutter which carried out an operation from the Shetlands, a cutter of the Norwegian Navy, and it gives its armament, and it says that it was an organization for sabotaging strong points, battery positions, staff and troop billets, and bridges, and that the Fuehrer order was executed by the SD. That was a cutter which was blown up by the German Navy, I suppose after they were attacked, and ten prisoners were murdered. Was that brought to your attention?

A. This was shown to me during an interrogation, and I was also asked if I had not had a telephone conversation with Field Marshal Keitel. It was afterwards found to be the C.- in-C. of the area who contacted the Supreme Command. It was a matter for the Army and for the SD, not for the Navy.

Q. If you deny that you ever heard about that, will you turn to Page 100 of the Document Book?

SIR DAVID MAXWELL FYFE: My Lord, it is Page 67 of the British Document Book.

Q. And that is a summary, a summary of the trial of the SD -

A. Where is it? I cannot find it.

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