dtufail/nuremberg-trials-corpus huggingface dataset:
DR. DIX: The oral examination of these witnesses cannot therefore be replaced by interrogatories because he is no longer sufficiently versed to draw up the relevant questions. These witnesses must be informed of the theme of the evidence and be given the opportunity to make a comprehensive statement. The same, namely that they still remember events in detail which Schacht no longer recollects, applies to Frau Strunck and Gisevius, who can testify particularly as to the plans for the various attempts on Hitler's life from 1938 to 1944. This is all I have to say regarding my application for these witnesses.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Dix and Professor Kraus were good enough to indicate to me and my colleagues yesterday their proposals which Dr. Dix suggested be put before the Tribunal. The Prosecution felt that by limiting all the witnesses to the first point and Point 2, Dr. Dix was making a reasonable suggestion. The Prosecution, of course, reserve all rights as to the relevancy of the various points set out as to these witnesses, but they felt that that, as I say, was a reasonable suggestion. On Numbers 3 and 4 it means that the Defense are limiting all the witnesses, on the general economic course of conduct of the defendant, and again the Prosecution felt that that was a reasonable suggestion. With regard to the others, the Prosecution must, as I have said -- and Dr. Dix agreed -- reserve all rights by way of cross-interrogatories or of asking that the witness should be summoned, but the Prosecution felt that they could be in a position really to decide what their rights and proper course should be only when they had seen the affidavits that were put in. That is the reasoning of the Prosecution in the matter.
THE PRESIDENT: As to documents, Dr. Dix?
DR. DIX: Regarding the documents, I should like to make it clear that wherever in my list I have referred to books, published speeches, and such like, especially under Number 2, this does not mean that I intend to present to the Tribunal long extracts from these books. Only short Quotations will be made and these quotations will be... [The proceedings were interrupted by technical difficulties in the interpreting system.]
THE PRESIDENT: The best course would be for us to adjourn now and then this mechanical defect will be remedied. [A recess was taken.]
THE PRESIDENT: Just one moment, Dr. Dix. I have one or two announcements to make. In the first place, the application which has been made on behalf of the defendants for a separate trial of the organizations named under Articles 9 and 10 of the Charter is denied. Secondly, with reference to the application made on behalf of counsel for the Defendant Bormann , the Tribunal have considered the application dated February 23, 1946, by Dr. Bergold, counsel for the Defendant Bormann, in which he asks that Bormann's cases should be heard last, at the end of the cases of all the other defendants. The Tribunal have decided to grant this application. The Tribunal also rule that the hearing of Dr. Bergold's applications on behalf of Bormann for witnesses and documents, in accordance with Article 24(d), shall not take place at the present time, when the Tribunal are hearing the applications of all the other defendants, but at a later date to be fixed within the next three weeks. Thirdly, with reference to the business of the Tribunal, the Tribunal will sit in closed session after the conclusion of the applications on behalf of the four defendants who are being heard today. Tomorrow the Tribunal will continue the applications on behalf of the next four defendants, and on Thursday the Tribunal will hear the case on behalf of the Defendant Goering. Yes, Dr. Dix.
DR. DIX: Before the recess, I was about to tell the Tribunal, as to Number 2 of the list of documents, that in my presentation I would confine myself to really important and quite short quotations, after having made them available to the Prosecution in our document book. This disposes of Number 2. Number 1 consists of extracts from copies already submitted by the Prosecution. I shall give but one example, namely, the report by Ambassador Bullitt to the Secretary of State in Washington. The Prosecution presented the last part of this report, in which they were interested, whereas I wish to reserve the right to present the first part, which deals with Schacht's peaceful intentions and his lack of political influence on Hitler, and which is therefore of importance to the Defense. I now turn to Number 3, Subparagraph (a), which is the Schacht memorandum to Hitler of 3 May 1935 concerning the legal rights of Jews, dissolution of the Gestapo, et cetera . May I again ask the Prosecution to see to it as far as possible that this document, which has not been introduced so far, be procured together with Document 1168-PS, which at the time of Schacht's interrogation by Colonel Gurfein was produced. As I heard yesterday, the document has not yet been found, but perhaps Colonel Gurfein, who has already gone back, can assist us in this matter. These two documents are very important, as they constitute parts of a Schacht memorandum which can be understood and appreciated only in its entirety. Furthermore, here is a letter addressed by Schacht to General Field Marshal Von Blomberg. It deals with restriction of armaments, et cetera , and its relevancy is, I think, obvious. Still a word about Subparagraph (c). This is a Hitler memorandum of August 1936 regarding the Four Year Plan. This memorandum, in which Hitler reproaches Schacht most bitterly, even with sabotage, is of decisive importance to us. Contrary to what appears in the list, I am not in a position to produce a reliable copy of this memorandum, which under certain circumstances could replace the original.
DR. DIX: What I have is an extract, which in no way can be considered reliable and thus cannot be submitted to the Tribunal as evidence. In order to ascertain the exact contents of this memorandum, we must have the original. To my knowledge the original was among the files of the Dustbin Camp in the Taunus, and again I ask the Prosecution to assist in procuring it. Then there is the letter written by Schacht to Goering in November 1942. Goering's answer was to dismiss Schacht for defeatism, or rather in consequence of this letter Schacht was dismissed for defeatism. A further consequence of this letter was that Goering excluded him from the Prussian State Council. A copy of this letter was last seen by Schacht in the possession of one Von Schlaberndorff, who worked with General Donovan, but who is no longer here. Where Schlaberndorff is now, I do not know. May I ask the Prosecution to assist us also in this matter. Furthermore, there is a telegram of January 1943 from Goering to Schacht, excluding him from the State Council. As to Subparagraph (f), I have to ask the Russian Prosecution to assist us in procuring this item. It is made up of miscellaneous notes, records of Schacht's reflections, written soliloquies and letters, which were kept in a box at Schacht's country seat, Guehlen, near Lindow, Mark Brandenburg -- that is in the Russian occupation zone. According to information received, this box has been confiscated by Soviet troops. I should be very much obliged to the Russian Delegation if they would do their utmost to procure the box with its contents. The documents under Number 4 are already in our possession. I do not think it necessary to enumerate and comment on them here; they will be included in our document book and the Prosecution will then have the opportunity of making observations on their relevancy. That is all I have to say now regarding the documents.
SIR DAVID MAXWELL-FYFE: With the approval of the Tribunal I shall confine the very few remarks I have to make to Paragraph 3 of Dr. Dix' memorandum. With regard to the document for which Dr. Dix has made a request, it is not yet procured. I have asked my colleagues to make inquiries, but at the moment they cannot find certain of these documents, although a search has been made. For example, (a), the note handed to Hitler on the same day, is Document Number 1168-PS. Mr. Dodd tells me that an exhaustive search was made by the American Delegation two months ago, and they are convinced that that document is not in their possession, and the same applies to the Soviet Delegation regarding (e).
THE PRESIDENT: Who was the interrogator, Judge Gurfein?
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 carefully 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 Number (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 Number (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 Doenitz .
FLOTTENRICHTER OTTO KRANZBUHLER (Counsel for Defendant Doenitz): I should like to call the following witnesses: First, Judge Admiral Kurt Eckhardt. He was 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. Kranzbuhler and the Tribunal, if I indicated the view of the Prosecution. They consider that Number 1, Admiral Eckhardt, and Number 2, Rear Admiral Wagner, and Number 4, Rear Admiral Godt, should not be the subject of objections; they do not make objections to these three. With regard to Commander Hessler, Number 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, Vice Admiral Kreisch, Captain Roesing, and Commander Suhren, these were granted on 14 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, Numbers 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 Number 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.
THE PRESIDENT: Yes.
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 apart from the United States and Allied vessels without warning, and that the United States submarines attacked all Japanese ships without warning, at the latest from the time when it could be surmised that the Japanese ship would resist being taken as a prize. And third, that the United States submarines did not assist shipwrecked people in such waters where the submarine would have endangered herself through such assistance. The reason which Dr. Kranzbuhler gives is that this testimony proves 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 usages of war is quite irrelevant; as the question before the Tribunal is whether the German High Command broke the laws and usages 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.
FLOTTENRICHTER KRANZBUHLER: I shall confine myself to the points to which Sir David has raised objections. First of all, witness Number 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 order 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 Numbers 2, 3, and 4: Admiral Kreisch, Captain Roesing, and Commander Suhren. I think that the objections of the Prosecution to two of the questions asked in my interrogatory can be dealt with only after these questions have been answered. I heard only today that objections would be raised, but I do not yet know on what grounds.
THE PRESIDENT: Have the Tribunal got the interrogatories and the objections of the Prosecution to Number 4?
FLOTTENRICHTER KRANZBUHLER: The Tribunal have 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. Kranzbuhler 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 Laconia and while doing so were bombed by an Allied plane?" Number 8, "Do you know whether this incident was the reason for the commander of the U-boat fleets 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 Doenitz:" These are the objections that were made.
THE PRESIDENT: Yes.
FLOTTENRICHTER KRANZBUHLER: 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 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 theaters of war may possibly have picked up the wireless messages sent to the U-boats concerned with the Laconia 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. Kranzbuhler.
FLOTTENRICHTER KRANZBUHLER: 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.
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?
SIR DAVID MAXWELL-FYFE: Yes.
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. Kranzbuhler has put it now; he is saying that he is not alleging breaches of the laws and usages 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. Kranzbuhler? 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.
FLOTTENRICHTER KRANZBUHLER: 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 theater of war was involved, in which German forces did not operate. In my opinion, the directives for sea warfare in the East Asia theater of war should be based on the conditions prevailing there and not be derived from experiences made in the European theater 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? Isn't that for us to decide? How is that any evidence? Isn't that your point, Sir David?
SIR DAVID MAXWELL-FYFE: Yes.
THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the meaning of a law?
FLOTTENRICHTER KRANZBUHLER: 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.
THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is ambiguous?
FLOTTENRICHTER KRANZBUHLER: Yes.