[Page 8]

"9th December, 1942. The Naval Commander, West France, reports ... " and then it sets out the incident. And then, the third sentence, "The Naval Commander, West France, has ordered that both soldiers be shot immediately for attempted sabotage if their interrogation, which has been begun, confirms what has so far been discovered; their execution has, however, been postponed in order to obtain more information.

"According to a Wehrmacht report" - I think that is a mis- translation - it should be "According to the Wehrmacht communique both soldiers had meanwhile, been shot. The measure would be in accordance with the Fuehrer's special order, but is nevertheless something new in international law, since the soldiers were in uniform."

That is from the SKL War Diary, is it not?

A. I do not think that this is the War Diary of the SKL; but rather it would seem to be the War Diary of the Naval Group Command, West, or of the Admiral Commanding in France.

Q. Well, I will have the original brought here and clear the matter up later, but I suggest to you that this is the SKL War Diary, which at the time -

A. (Interposing): I cannot recognize that assertion until it is proved by the original.

Q. And I suggest to you that you, who were Chief of Staff Operations at the time, must have been fully aware of that incident. Do you deny that?

A. I deny it ... I maintain that I do not remember this affair.

Q. Do you say that a matter of that sort would not be reported to you?

A. I have been told here that the order to shoot these people was obtained by Headquarters directly from the SD.

[Page 9]

Do you remember this incident? Do you remember the capture of these seven men by Admiral von Schroder with his two task forces?

A. I saw this paper while I was being interrogated, and that is why I remember it.

Q. But do you remember the incident?

A. No, not from my personal recollection.

Q. You were still Chief of Staff Operations.

THE PRESIDENT: Which page?

COLONEL PHILLIMORE: My Lord, it is Page 67 of the English Document Book, Page 100 in the German.

BY COLONEL PHILLIMORE:

Q. Do you say that as Chief of Staff Operations you do not remember any of these incidents?

A. Yes, I assert and maintain what I have already said about this.

Q. Did not your operational ... did not your commanders report when they captured an enemy commando?

A. I must assume that these things were also reported in the situation reports.

Q. Now you are really suggesting that you have forgotten all about these incidents now?

A. In all my testimony I have strictly adhered to what I personally remember.

Q. Do you know what happened to these men? You know they were captured in uniform, do you not? There was a naval officer with gold braid around his arm. That is a badge you use in the German Navy, is it not?

A. I have already said that I do not recall this affair.

Q. Well, let me remind you. After interrogation by naval officers and officers of the SD, both of whom recommended prisoner-of-war treatment, these men were handed over by the Navy to the SD for shooting. They were taken to a concentration camp, and at 4 o'clock in the morning they were led out one by one, blindfolded, fettered, not told they were going to be shot, and shot one by one on the rifle range.

Do you not know that?

A. No.

Q. Did you not know that is what handing over to the SD meant?

A. I have already said that handing over to the SD implied several possibilities.

Q. Do you know that then their bodies were sunk in the fjord with charges attached, and destroyed, as it says in the Document, "in the usual way"? Paragraph 10 of the affidavit. And their belongings in the concentration camp were burned.

A. No, I do not know that.

Q. Very well. A further point: Do you remember that in March or April, 1945, at the very end of the war, do you remember that this order, the Fuehrer Order, was cancelled by Keitel.

COLONEL PHILLIMORE: That is Paragraph II of the affidavit, my Lord.

Q. Do you remember that? Just read it.

A. Yes, I have heard of that.

Q. Yes. You thought you were losing the war by then, and that it would be best to cancel the Commando Order, is not that the fact?

A. I do not know for what reasons the OKW rescinded orders.

Q. Is this not right: You did not worry about this order in 1942 when you thought you were winning the war, but when you found you were losing it, you began to worry about international law? Is not that what happened?

[Page 10]

Q. Did you ever make any inquiries to see whether that was true?

A. It is absolutely impossible for me to investigate official information which I receive from my superiors.

Q. You were Chief of Staff Operations; you received every report on the commando raids, did you not?

A. I gave detailed evidence in each individual case, but I cannot make a general statement.

Q. When you were Chief of Staff Operations, did you not receive a full report every time there was a British commando raid?

A. I have already said that I believe such incidents formed part of the situation reports to the SKL.

Q. I suggest you can answer that question truthfully if you wish to. Here you were a senior staff officer. Commando raids, are you saying you did not personally see and read a full report on every one?

A. I am not asserting that. I have answered each individual question by stating exactly what I remember.

Q. Do you say that taking these men out and shooting them without a trial, without telling them they were going to be shot, without seeing a priest, do you say that -

A. With regard to the Navy?

Q. Do you say that was not murder?

A. I do not wish to maintain that at all. I do maintain that I was presumably told about the cases in which men were shot by the Navy, and I am of the opinion that these people who were captured as saboteurs were not soldiers, but were criminals who, in accordance with their criminal -

Q. Let us make it perfectly clear. Are you saying that the action taken in shooting these commandos on all these occasions, are you saying that was perfectly proper and justified? I thought you agreed with me it was murder, just now. Which is it?

A. I would like to. answer that in each individual case.

Q. It is a very simple question to answer generally and it takes less time. Do you say that men captured in uniform should be taken out and shot without trial?

A. I cannot consider men, whom I know have orders to commit crimes, as soldiers within international law.

Q. Are you saying that this action was perfectly proper - are you?

A. Yes, entirely and perfectly.

Q. Shoot helpless prisoners without trial, bully little neutrals who cannot complain? That is your policy, is it?

A. Not at all.

Q. What crime did Robert Paul Evans commit, by attacking the Tirpitz in a two-man torpedo?

A. I am convinced it was proved that he belonged to a sabotage unit, and that besides the purely naval character of the attack on the ship, there were other aspects which marked him as a saboteur.

Q. And you said just now that you did not remember the incident?

A. Yes.

Q. Will you agree on this, will you agree with me, that if this shooting by the, SD was murder, you and Admiral Donitz and Admiral Raeder, who signed the orders under which this was done, are just as guilty as the men who shot them?

A. The person who issued the order is responsible for it.

[Page 11]

A. I assume full responsibility for the transmission of this order.

COLONEL PHILLIMORE: Your Lordship, I have no further question.

THE PRESIDENT: Colonel Phillimore, D-658 was an old exhibit, was it not?

COLONEL PHILLIMORE: Yes, my Lord.

THE PRESIDENT: Have you given new exhibit numbers to all the new documents?

COLONEL PHILLIMORE: I am very much obliged, your Lordship. I did omit to give a new exhibit number to the affidavit by Flesch.

THE PRESIDENT: D-864.

COLONEL PHILLIMORE: D-864. My Lord, it should be Exhibit GB 457. My Lord, I am very sorry. I was not advised, but I received it.

THE PRESIDENT: And all the others, you have given numbers to them?

COLONEL PHILLIMORE: Yes, my Lord.

THE PRESIDENT: Very well. Is there any other cross- examination? Then, does Dr. Kranzbuhler wish to re-examine? Dr. Kranzbuhler, I see it is nearly half-past eleven, so perhaps we had better adjourn for ten minutes.

(A recess was taken.)

THE PRESIDENT: Before Dr. Kranzbuhler goes on with his re- examination, I shall announce the Tribunal's decisions with reference to the applications which were made recently in Court.

The first application on behalf of the defendant von Schirach was for a witness Hans Marsaleck to be produced for cross-examination, and that application is granted.

The second application was for interrogatories to a witness Kaufmann and that is granted.

The next matter was an application on behalf of the defendant Hess for five documents; and as to that, the Tribunal orders that two of the documents applied for under heads B and D in Dr. Seidl's application have already been published in the Reichsgesetzblatt, and one of them is already in evidence, and they will, therefore, be admitted.

The Tribunal considers that the documents applied for under heads C and E of Dr. Seidl's application are unsatisfactory and have no evidential value; and since it does not appear from Dr. Seidl's application and the matters referred to therein that the alleged copies are copies of any original documents, the application is denied in respect thereof. But leave is granted to Dr. Seidl to file a further affidavit by Gaus covering his recollection of what was in the alleged agreements.

The application on behalf of the defendant Funk for an affidavit by a witness called Kallus is granted.

The application on behalf of the defendant Streicher is denied.

The applications on behalf of the defendant Sauckel, firstly for a witness named Biedermann is granted, and secondly for four documents; that application is also granted.

The application on behalf of the defendant Seyss-Inquart for an interrogatory to Dr. Stuepart is granted.

The application on behalf of the defendant Frick is granted for an interrogatory to a witness, Dr. Conrad.

The application on behalf of the defendant Goering, with reference to two witnesses is granted in the sense that the witnesses are to be alerted.

The application on behalf of the defendants Hess and Frank for official information from the Ministry of War of the United States of America is denied.

That is all.

[Page 12]

A. No, no part at all.

Q. Did you, did the Naval Operations Command have a possibility either before, or during the drafting of the order, of investigating the correctness of the particulars mentioned in Paragraph 1 of the order?

A. No, such a possibility did not exist.

Q. The treatment of a man who had attacked the Tirpitz with a two-man torpedo in October, 1942, has just been discussed here. Did you know that a year later, in the autumn of 1943, there was a renewed attack on the Tirpitz with two-man torpedoes, and that the British sailors who were captured at that time were treated in accordance with the Geneva Convention by the Navy which had captured them?

A. The second attack on the Tirpitz is known to me. I do not remember the treatment of the prisoners.

Q. You mentioned that the Naval Operations Command possibly received reports on the statements made by men of commando units. From what aspect did those reports interest the Naval Operations Command? Did operational questions interest you, or the personal fate of these people?

A. Naturally we were interested in the tactical and operational problems so that we could gather experiences and draw our conclusions from them.

Q. Can you actually remember seeing such a report?

A. No.

Q. Just now a document was shown to you dealing with the treatment of a commando unit captured in a Norwegian fjord. It is No. 526-PS. Have you still got that document?

A. Possibly, some documents are still lying here.

Q. Will you look at that document?

A. May I ask you for the number again?

Q. The number is 526-PS, on the fourth page of the bundle which I received from the prosecution. Can you find the passage? Have you got the document?

A. No, not yet. Did you say 526?

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