Morning Session
[The witness Wagner resumed the stand.]
COL. PHILLIMORE: Do you remember the sinking of the Monte Corbea in September 1942?
WAGNER: I have some recollection of it.
COL. PHILLIMORE: That was the ship in respect to which the Defendant Dönitz sent a telegram to the U-boat commander, threatening him with court-martial on his return because he had sunk the ship after recognizing it as a neutral. Now, in 1942 the friendship of Spain was very important to Germany, was it not?
WAGNER: I assume so.
COL. PHILLIMORE: You told us yesterday that Admiral Raeder was considering Mediterranean policy—recommending it. Now that was the reason, was it not, why the U-boat commander was threatened with court-martial, that it mattered in 1942 if you sank a Spanish ship?
WAGNER: No, that was not the reason. The reason was that the commander of the U-boat in question had obviously not acted according to the directives of the Commander of U-boats.
COL. PHILLIMORE: It did not matter in 1940 when you thought you were winning the war, but in September 1942 I suggest to you it became politically inexpedient to sink a Spanish ship; is that not right?
WAGNER: You will have to ask the political departments of the German Reich about that.
COL. PHILLIMORE: If that is the answer, do you think it is unfair to describe your attitude to the sinking of neutral ships as cynical and opportunist?
WAGNER: No, I reject that absolutely.
COL. PHILLIMORE: I want to ask you one or two questions about the witness Heisig. You spoke yesterday of a conversation in the jail here in the first week of December 1945.
WAGNER: In December 1945?
COL. PHILLIMORE: Yes. You knew at the time you spoke to Heisig that he was going to be called as a witness, did you not?
WAGNER: That could be assumed from his presence here at Nuremberg.
COL. PHILLIMORE: And you knew you were going to be called as a witness, did you not?
WAGNER: Yes.
COL. PHILLIMORE: Are you telling the Tribunal that you did not tell the defense lawyers about this conversation until quite recently?
WAGNER: I did not understand the sense of your question.
COL. PHILLIMORE: Are you telling the Tribunal that you did not report this conversation with Heisig to the defense lawyers until quite recently?
WAGNER: I think it was in February or March when I told the Defense Counsel about this conversation.
COL. PHILLIMORE: Now I just want to put the dates to you. The U-boat Commander Eck was sentenced to death on 20 October. Do you know that?
WAGNER: I did not know the date.
COL. PHILLIMORE: Death sentence was passed by the Commission on 21 November and he was executed on 30 November. That is to say he was executed before you had this conversation. Did you know that?
WAGNER: No. I just discovered that now.
COL. PHILLIMORE: At any rate, the witness Heisig knew it before he gave his evidence, did he not?
WAGNER: Obviously not. Otherwise, he would most likely have told me about it. Previously, he had for 10 days...
COL. PHILLIMORE: Will you just listen to a question and answer from his cross-examination. It is Page 2676 of the transcript (Volume V, Page 227). This is a question by Dr. Kranzbühler:
“In your hearing on 27 November were you not told that the death sentence against Eck and Hoffmann had already been set?”
Answer: “I do not know whether it was on 27 November. I know only that here I was told of the fact that the death sentence had been carried out. The date I cannot remember. I was in several hearings.”
Now if that is right...
THE PRESIDENT: What date was that evidence given?
COL. PHILLIMORE: That was given on 14 January, My Lord; Page 2676 of the transcript (Volume V, Page 227).
WAGNER: I did not understand who gave this testimony.
COL. PHILLIMORE: The witness Heisig, when he gave evidence here in Court. So that whether or not he was deceived, as you suggest, before he gave his affidavit, he at least knew the true facts before he gave evidence here to the Tribunal?
WAGNER: Then he told an untruth to me.
COL. PHILLIMORE: Now, I want to ask you one question on the order of 17 September 1942. That is the order that you say you monitored in the naval war staff and saw nothing wrong with it. Did the Defendant Raeder see that order?
WAGNER: That I cannot say with certainty.
COL. PHILLIMORE: You were Chief of Staff Operations at that time?
WAGNER: Yes, but one cannot expect me to remember every incident in 6 years of war.
COL. PHILLIMORE: Oh, no, but this was an important order, was it not?
WAGNER: Certainly, but there were many important orders in the course of 6 years.
COL. PHILLIMORE: Would you normally show an important operational order to the Commander-in-Chief?
WAGNER: It was my task to submit all important matters to the Chief of Staff of the Naval Operations Staff, and he decided which matters were to be submitted to the Grossadmiral.
COL. PHILLIMORE: Are you saying that you would not have shown this to the Chief of Staff?
WAGNER: No. I am sure he had knowledge of it.
COL. PHILLIMORE: Have you any doubt that this order would have been shown to Admiral Raeder?
WAGNER: That I cannot say; I do not recall whether he received it.
COL. PHILLIMORE: Now I want to ask one or two questions about your tasks as Admiral, Special Duties. You became Admiral, Special Duties, in June 1944, is that right?
WAGNER: Yes.
COL. PHILLIMORE: And from then on you attended the important conferences with Admiral Dönitz and in his absence represented him, did you not?
WAGNER: I never participated in any discussions as his representative. Dönitz was represented by the Chief of the SKL.
COL. PHILLIMORE: Now at that stage of the war all questions were important insofar as they affected military operations in one way or another, were they not?
WAGNER: At every stage of the war all military questions are of importance.
COL. PHILLIMORE: What I am putting to you is that at that stage of the war the importance of all questions chiefly depended on how they affected the military situation.
WAGNER: Yes, that, I imagine, one has to admit.
COL. PHILLIMORE: And during that period Germany was virtually governed by the decisions taken at the Führer’s headquarters, was it not?
WAGNER: Yes.
COL. PHILLIMORE: Now I want you to look at a record of one of Admiral Dönitz’ visits—My Lord, this is D-863; it is a new document and becomes Exhibit GB-456.
Now that is a record of a visit to the Führer’s headquarters on 28 and 29 of August 1943. You were not there yourself, but your immediate superior Vice Admiral Meisel accompanied Admiral Dönitz, and the names of the Naval Delegation are set out at the top of the page: Admiral Dönitz, Vice Admiral Meisel, Kapitän zur See Rehm, et cetera. And your program as set out was: After your arrival, at 1130, conversation with Commander-in-Chief Navy, Commander-in-Chief Luftwaffe; 1300, situation conference with the Führer, closing with a further conversation between the Commander-in-Chief Navy and the Commander-in-Chief Luftwaffe; then at 1600 the Commander-in-Chief Navy left. After that Admiral Meisel had a conversation with Ambassador Ritter of the Foreign Office. Then a conversation with General Jodl, an evening conference with the Führer, and then at midnight a conference with Reichsführer-SS Himmler. On the next day the usual conference with the Führer; then a conference with the Chief of the General Staff of the Air Force. And then he left.
Now, is that a fair sample of what went on whenever Admiral Dönitz visited; that he had conversations, various conferences with other officials?
WAGNER: That is a typical example of a visit of the Grossadmiral at the headquarters, insofar as he participated only in situation conferences with the Führer, and in addition he had military discussions with the Commander-in-Chief of the Air Force.
COL. PHILLIMORE: And that shows, does it not, the whole business of government being carried on at the Führer’s headquarters?
WAGNER: No, not at all. I have already said the Grossadmiral only participated at the situation conference, that is, the military situation conference with the Führer and beyond that one or even two discussions with the Commander-in-Chief of the Air Force.
COL. PHILLIMORE: And with General Jodl or Field Marshal Keitel, somebody from the Foreign Office, and so on?
WAGNER: Otherwise the Grossadmiral had no discussions of any sort, as can be seen from the document, for on 28 August at 1600 hours he returned by air. The other discussions were discussions of the Chief of Staff of the SKL, the...
COL. PHILLIMORE: But I was putting it to you that this was a typical visit. If Admiral Dönitz had not left, he would have had these other conversations and not Admiral Meisel, is that not right?
WAGNER: No, not at all. The Chief of Staff of the SKL very rarely had the opportunity of coming to headquarters; and according to the record here, he obviously used his opportunity to contact a few of the leading...
COL. PHILLIMORE: I do not want to waste time with it. I suggest to you that when Admiral Dönitz went there he normally saw many other ministers and conversed with them on any business affecting the Navy.
WAGNER: Naturally, the Admiral discussed all questions affecting the Navy with those who were concerned with them.
COL. PHILLIMORE: Now, I want to ask you one or two questions on the minutes with regard to the Geneva Convention—that is C-158, GB-209, Page 69 of the English Prosecution’s document book, or Page 102 of the German. Will you look at Page 102.
Now you, as you told us yesterday, initialed those minutes, did you not; and a copy was marked to you, is that not right?
WAGNER: Yes, I signed these minutes.
COL. PHILLIMORE: Yes; were they accurate?
WAGNER: They contained salient points about the things which had happened at headquarters.
COL. PHILLIMORE: They were an accurate record, were they?
WAGNER: Undoubtedly I believed that things had taken place as they are recorded here.
COL. PHILLIMORE: Now, did you agree with Admiral Dönitz’ advice that it would be better to carry out the measures considered necessary without warning and at all costs to save face with the outer world? Did you agree with that?
WAGNER: I already explained yesterday, clearly and unequivocally, how I interpreted this sentence which was formulated by me; and I have nothing to add to that statement. In the sense which I stated yesterday, I agree completely.
COL. PHILLIMORE: And the step which Hitler wanted to take was to put prisoners of war in the bombed towns, was it not? Was that not the breach of the Convention that he wanted to make?
WAGNER: No, it was the renunciation of all the Geneva agreements; not only the agreement about prisoners of war, but also the agreement on hospitals ships, the Red Cross agreement, and other agreements which had been made at Geneva.
COL. PHILLIMORE: Then what were the measures considered necessary which could be taken without warning? Just look at that sentence.
WAGNER: I do not understand that.
COL. PHILLIMORE: Look at the last sentence, “It would be better to carry out the measures considered necessary.” What were those measures?
WAGNER: They were not discussed at all.
COL. PHILLIMORE: Do you see any difference between the advice which Admiral Dönitz was giving them and the advice which you described as the rather romantic ideas of a young expert on the document about sinking without warning at night? Let me put it to you; what the naval officer said on the Document C-191 was: “Sink without warning. Do not give written permission. Say it was a mistake for an armed merchant cruiser...”
We have Admiral Dönitz saying, “Do not break the rules, tell no one about it and at all costs save face with the world.”
Do you see any difference?
WAGNER: I already testified yesterday that the difference is very great. Admiral Dönitz opposed the renunciation of the Geneva Convention and said that even if measures to intimidate deserters or countermeasures against bombing attacks on cities were to be taken, the Geneva Convention should not be renounced in any case.
COL. PHILLIMORE: Now, I want to put to you a few questions about prisoners of war. So far as naval prisoners of war were concerned, they remained in the custody of the Navy, did they not?
WAGNER: I am not informed about the organization of prisoner-of-war camps. According to my recollection they were first put into a naval transit camp. Then they were sent to other camps; but I do not know whether these camps were under the jurisdiction of the Navy or the OKW.
COL. PHILLIMORE: Have you not seen the defense documents about the Camp Marlag telling us how well they were treated? Have you not seen them?
WAGNER: No.
COL. PHILLIMORE: Now, naval prisoners, when they were captured by your forces, their capture was reported to the naval war staff, was it not?
WAGNER: Such captures were, in general, reported as part of the situation reports.
COL. PHILLIMORE: Now, do you remember the Commando Order of 18 October 1942?
WAGNER: Yes.
COL. PHILLIMORE: You actually signed the order passing that Führer Order on to commands, did you not?
WAGNER: Yes.
COL. PHILLIMORE: My Lord, the document is C-179, and that was put in as United States Exhibit 543 (USA-543). It is in that bundle that Sir David Maxwell-Fyfe handed to the Tribunal when cross-examining the defendant. I think it is either the last or very near to the last document in the bundle.
[Turning to the witness.] Did you approve of that order?
WAGNER: I regretted that one had to resort to this order, but in the first paragraph the reasons for it are set forth so clearly that I had to recognize its justification.
COL. PHILLIMORE: You knew what handing over to the SD meant, did you not? You knew that meant shooting?
WAGNER: No, that could have meant a lot of things.
COL. PHILLIMORE: What did you think it meant?
WAGNER: It could have meant that the people were interrogated for the counterintelligence; it could have meant that they were to be kept imprisoned under more severe conditions, and finally it could have meant that they might be shot.
COL. PHILLIMORE: But you had no doubt that it meant that they might be shot, had you?
WAGNER: The possibility that they might be shot undoubtedly existed.
COL. PHILLIMORE: Yes, and did that occur to you when you signed the order sending it on to commanders?
WAGNER: I would like to refer to Paragraph 1 of this order, where it...
COL. PHILLIMORE: Do you mind answering the question? Did it occur to you that they might be shot when you signed the order sending it on to commanders?
WAGNER: Yes, the possibility was clear to me.
DR. SIEMERS: Mr. President, the witness was asked whether he approved of this order. I do not think that Colonel Phillimore can cut off the witness’ answer by saying that he may not refer to Paragraph 1 of the order. I believe that Paragraph 1 of the order is of decisive importance for this witness. Mr. President, the witness Admiral Wagner...
THE PRESIDENT: You have an opportunity of re-examining the witness.
DR. SIEMERS: Yes.
THE PRESIDENT: Then why do you interrupt?
DR. SIEMERS: Because Colonel Phillimore has interrupted the answer of the witness and I believe that even in cross-examination the answer of the witness must be at least heard.
THE PRESIDENT: Well, the Tribunal does not agree with you.
COL. PHILLIMORE: My Lord, I understood him to have already made some point that the defendant made once? I only interrupted him when he sought to make it again.
[Turning to the witness.] I put my question once again. When you signed the order sending this document on to lower commanders, did it occur to you then that these men would probably be shot?
WAGNER: The possibility that these people who were turned over to the SD might be shot was clear to me.
COL. PHILLIMORE: Was it also...
WAGNER: I have not finished yet. But only those people who had not been captured by the Wehrmacht were to be handed over to the SD.
COL. PHILLIMORE: Did it also occur to you that they would be shot without trial?
WAGNER: Yes, that can be concluded from the order.
COL. PHILLIMORE: And what do you mean by saying that it only referred to those not captured by the Wehrmacht? Would you look at Paragraph 3.
“From now on all enemies on so-called Commando missions in Europe or Africa, challenged by German troops, even if they are to all appearances soldiers in uniform or demolition troops, whether armed or unarmed, in battle or in flight, are to be slaughtered to the last man. It does not make any difference whether they landed from ships or airplanes for their actions of whether they were dropped by parachutes. Even if these individuals when found should apparently seem to give themselves up, no pardon is to be granted them on principle. In each individual case full information is to be sent to the OKW for publication in the OKW communiqué.”
Are you saying it did not refer to men captured by the military forces?
WAGNER: Yes, I maintain that statement. There is nothing in the entire paragraph which says these men who were captured by the Wehrmacht were to be turned over to the SD. That was the question.
COL. PHILLIMORE: Now, read on in the last paragraph.
“If individual members of such Commandos, such as agents, saboteurs, et cetera, fall into the hands of the military forces by some other means, for example through the Police in occupied territories, they are to be handed over immediately to the SD.”
WAGNER: Yes. It is expressly stated here that only those people are to be turned over to the SD who are not captured by the Wehrmacht but by the Police; in that case the Wehrmacht could not take them over.
COL. PHILLIMORE: Indeed it is not. That capture by the Police is given as one possible instance. But you know, you know in practice, do you not, that there were several instances where Commandos were captured by the Navy and handed over to the SD under this order? Do you not know that?
WAGNER: No.
COL. PHILLIMORE: Well, let me just remind you. Would you look at Document 512-PS.
That is also in that bundle, My Lord, as United States Exhibit 546 (USA-546). It is the second document. According to the last sentence of the Führer Order of 18 October:
“Individual saboteurs can be spared for the time being in order to keep them for interrogation. Importance of this measure was proven in the cases of Glomfjord, the two-man torpedo at Trondheim, and the glider plane at Stavanger, where interrogations resulted in valuable knowledge of enemy intentions.”
And then it goes on to another case, the case of the Geronde.
Do you say that you do not remember the two-man torpedo attack on the Tirpitz in Trondheim Fjord?
WAGNER: No, no. I am not asserting that I do not remember it. I do remember it.
COL. PHILLIMORE: Yes. Did you not see in the Wehrmacht communiqué after that attack what had happened to the man who was captured?
WAGNER: I cannot recall it at the moment.
COL. PHILLIMORE: Let me just remind you. One man was captured, Robert Paul Evans, just as he was getting across the Swedish border, and he was—that attack took place in October 1942—he was executed in January 1943, on 19 January 1943.
My Lord, the reference to that might be convenient; it is Document UK-57, which was put in as Exhibit GB-64.
[Turning to the witness.]
Do you say that you do not remember seeing any report of his capture or of his shooting or of his interrogation?
WAGNER: No, I believe I remember that, but this man...
COL. PHILLIMORE: Now what do you remember? Just tell us what you remember. Do you remember seeing his capture reported?
WAGNER: I no longer know that. I remember there was a report that a considerable time after the attack on the Tirpitz a man was captured, but to my knowledge not by the Navy.
COL. PHILLIMORE: Would you look at the Document D-864, a sworn statement.
My Lord, through some error I am afraid I have not got it here. May I just put the facts, and if necessary put in the document if I can produce it in time.
[Turning to the witness.] I suggest to you that Robert Paul Evans, after his capture, was personally interrogated by the Commander-in-Chief, Navy, of the Norwegian North Coast. Do you say you know nothing of that?
WAGNER: Yes, I maintain that I do not remember it.
COL. PHILLIMORE: You see, this was the first two-man torpedo attack by the British Navy against the German naval forces, was it not? That is so, is it not?
WAGNER: Yes, that is possible.
COL. PHILLIMORE: No, but you must know that, do you not? You were Chief of Staff Operations at the time.
WAGNER: I believe it was the first time.
COL. PHILLIMORE: Do you say that the results of that important interrogation were not reported to you in the naval war staff?
WAGNER: They were certainly reported, but nevertheless I cannot remember that the Commanding Admiral in Norway actually conducted this interrogation.
COL. PHILLIMORE: Did you see a report by that admiral?
WAGNER: I do not know where it originated, but I am certain I saw a report of that kind.
COL. PHILLIMORE: Was it clear to you that that report was based on interrogation?
WAGNER: Yes, I think so.
COL. PHILLIMORE: And you say you did not know that this man Evans, some two months after his capture, was taken out and shot under the Führer order?
WAGNER: Yes, I maintain that I do not remember that.
COL. PHILLIMORE: I will put you another instance. Do you remember the Bordeaux incident in December 1942?
That is 526-PS, My Lord. That is also in the bundle. It was originally put in as United States Exhibit 502 (USA-502).
[Turning to the witness.] I am sorry; it is the Toftefjord incident I am putting to you, 526-PS. Do you remember this incident in Toftefjord in March 1943?
WAGNER: I do remember that about this time an enemy cutter was seized in a Norwegian fjord.
COL. PHILLIMORE: Yes. And did you not see in the Wehrmacht communiqué “Führer Order executed”?
WAGNER: If it said so in the Wehrmacht communiqué then I must have read it.
COL. PHILLIMORE: Have you any doubt that you knew that the men captured in that attack were shot, and that you knew it at the time?
WAGNER: Apparently he was shot while being captured.
COL. PHILLIMORE: If you look at the document:
“Enemy cutter engaged. Cutter blown up by the enemy. Crew, 2 dead men, 10 prisoners.”
Then look down:
“Führer Order executed by SD.”
That means those 10 men were shot, does it not?
WAGNER: It must mean that.
COL. PHILLIMORE: Yes. Now I just put to you the document that I referred to on the Trondheim episode, D-864. This is an affidavit by a man who was in charge of the SD at Bergen and later at Trondheim, and it is the second paragraph:
“I received the order by teletype letter or radiogram from the Commander of the Security Police and the SD, Oslo, to transfer Evans from Trondheim Missions Hotel to the BDS, Oslo.
“I cannot say who signed the radiogram or the teletype letter from Oslo. I am not sure to whom I transmitted the order, but I think it was to Hauptsturmführer Hollack. I know that the Commanding Admiral of the Norwegian Northern Coast had interrogated Evans himself.”
And then he goes on to deal with Evans’ clothing.
I put it to you once again: Do you say that you did not know from the Admiral, Northern Coast himself that he had interrogated this man?
WAGNER: Yes, I am asserting that.
COL. PHILLIMORE: Well, I will take you to one more incident which you knew about, as is shown by your own war diary. Would you look at the Document D-658.
My Lord, this document was put in as GB-229.
[Turning to the witness.] Now, that is an extract from the SKL War Diary, is it not?
WAGNER: Let me examine it first. I do not have the impression that...
COL. PHILLIMORE: You said yesterday that it was from the war diary of the Naval Commander, West France, but I think that was a mistake, was it not?
WAGNER: I did not make any statement yesterday on the origin of the war diary.
COL. PHILLIMORE: Just read the first sentence. I think it shows clearly it was the SKL War Diary.
“9 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 mistranslation; it should be “According to the Wehrmacht communiqué”—“both soldiers had meanwhile been shot. The measure would be in accordance with the Führer’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?
WAGNER: 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 the Commanding Admiral in France.
COL. PHILLIMORE: Well, I will get the original here and clear the matter up later, but I suggest to you that this is the SKL War Diary, which at the time...
WAGNER: I cannot recognize that assertion until it is proved by the original.
COL. PHILLIMORE: 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?
WAGNER: I deny—I maintain that I do not remember that affair.
COL. PHILLIMORE: Do you say that a matter of that sort would not be reported to you?
WAGNER: I have been told here that the order to shoot these people was obtained from headquarters directly by the SD.
COL. PHILLIMORE: Now, finally, I put to you the incident of the capture of the seven seamen, six of the Norwegian Navy and one of the Royal Navy, at Ulven near Bergen in July 1943. That is the document D-649 in the Prosecution document book, GB-208.
Do you remember this incident? Do you remember the capture of these seven men by Admiral Von Schrader with his two task forces?
WAGNER: I saw this paper while I was being interrogated, and that is why I remember it.
COL. PHILLIMORE: But do you remember the incident?
WAGNER: No, not from my personal recollection.
COL. PHILLIMORE: You were still Chief of Staff Operations.
THE PRESIDENT: Which page?
COL. PHILLIMORE: My Lord, it is Page 67 of the English document book, Page 100 in the German.
[Turning to the witness.] Do you say that as Chief of Staff Operations you do not remember any of these incidents?
WAGNER: Yes, I assert and maintain what I have already said about this.
COL. PHILLIMORE: Did not your operational—did your commanders not report when they captured an enemy Commando?
WAGNER: I must assume that those things were also reported in the situation reports.
COL. PHILLIMORE: Now, you are really suggesting that you have forgotten all about these incidents now?
WAGNER: In all my testimony I have strictly adhered to what I personally remember.
COL. PHILLIMORE: 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?
WAGNER: I have already said that I do not recall this affair.
COL. PHILLIMORE: Well, let me just tell you and 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 know that?
WAGNER: No.
COL. PHILLIMORE: Did you know that is what handing over to the SD meant?
WAGNER: I have already said that handing over to the SD implied several possibilities.
COL. PHILLIMORE: 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?
WAGNER: No, I do not know that.
COL. PHILLIMORE: 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 Führer Order, was cancelled by Keitel?
That is Paragraph 11 of the affidavit, My Lord.
Do you remember that? Just read it.
WAGNER: Yes, I have heard of that.
COL. PHILLIMORE: Yes. You thought you were losing the war by then, and you had better cancel the Commando Order, is that not the fact?
WAGNER: I do not know for what reasons the OKW rescinded orders.
COL. PHILLIMORE: Is not this 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?
WAGNER: It is absolutely impossible for me to investigate orders. This paragraph of the Commando Order states clearly and distinctly that these Commandos had orders—that these Commandos were composed partly of criminal elements of the occupied territories—that they had orders to kill prisoners whom they found a burden, that other Commandos had orders to kill all captives; and that orders to this effect had fallen into our hands.
COL. PHILLIMORE: Did you ever make any inquiries to see whether that was true?
WAGNER: It is absolutely impossible for me to investigate official information which I receive from my superiors.
COL. PHILLIMORE: You were Chief of Staff Operations; you received every report on the Commando raids, did you not?
WAGNER: I gave detailed evidence in each individual case, but I cannot make a general statement.
COL. PHILLIMORE: When you were Chief of Staff Operations, did you not receive a full report every time there was a British Commando raid?
WAGNER: I have already said that I believe such incidents formed part of the situation reports to the SKL.
COL. PHILLIMORE: I suggest you can answer that question perfectly straight if you wanted 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?
WAGNER: I am not asserting that. I have answered each individual question by stating exactly what I remember.
COL. PHILLIMORE: 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...
WAGNER: With regard to the Navy...
COL. PHILLIMORE: Do you say that was not murder?
WAGNER: 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...
COL. PHILLIMORE: Let us get 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?
WAGNER: I would like to answer that in each individual case.
COL. PHILLIMORE: 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?
WAGNER: I cannot consider men of whom I know that they have orders to commit crimes, as soldiers, within international law.
COL. PHILLIMORE: Are you saying that this action was perfectly proper—are you?
WAGNER: Yes, entirely and perfectly.
COL. PHILLIMORE: Shoot helpless prisoners without trial, bully little neutrals who cannot complain? That is your policy, is it?
WAGNER: Not at all.
COL. PHILLIMORE: What crime did Robert Paul Evans commit, who attacked the Tirpitz in a two-man torpedo?
WAGNER: 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.
COL. PHILLIMORE: And you said just now that you did not remember the incident?
WAGNER: Yes.
COL. PHILLIMORE: Will you agree on this, will you agree with me, that if this shooting by the SD was murder, you and Admiral Dönitz and Admiral Raeder, who signed the orders under which this was done, are just as guilty as the men who shot them?
WAGNER: The person who issued the order is responsible for it.
COL. PHILLIMORE: And that person who passed it and approved it; is not that right?
WAGNER: I assume full responsibility for the transmission of this order.
COL. PHILLIMORE: Your Lordship, I have no further questions.
THE PRESIDENT: Colonel Phillimore, D-658 was an old exhibit, was it not?
COL. PHILLIMORE: Yes, My Lord.
THE PRESIDENT: Have you given new exhibit numbers to all the new documents?
COL. 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.
COL. PHILLIMORE: D-864. My Lord, it should be GB-457. My Lord, I am very sorry. I was not advised, but I got it.
THE PRESIDENT: And all the others you have given numbers to?
COL. PHILLIMORE: Yes, My Lord.
THE PRESIDENT: Very well. Is there any other cross-examination? Then, does Dr. Kranzbühler wish to re-examine? Dr. Kranzbühler, 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. Kranzbühler 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 Marsalek 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 application 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. Stuckart is granted.
The application on behalf of the Defendant Frick is granted for an interrogatory to a witness, Dr. Konrad.
The application on behalf of the Defendant Göring 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.
FLOTTENRICHTER KRANZBÜHLER: I would like to put another question to you on the subject of the Commando Order.
Did the Naval Operations Staff have any part in introducing this order?
WAGNER: No, no part at all.
FLOTTENRICHTER KRANZBÜHLER: Did you, did the Naval Operations Staff have the possibility, either before or during the drafting of the order, of investigating the correctness of the particulars mentioned in Paragraph 1 of the order?
WAGNER: No, such a possibility did not exist.
FLOTTENRICHTER KRANZBÜHLER: 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, who had captured them?
WAGNER: The second attack on the Tirpitz is known to me. I do not remember the treatment of the prisoners.
FLOTTENRICHTER KRANZBÜHLER: You mentioned that the Naval Operations Staff possibly received reports on the statements made by men of Commando units. From what aspect did those reports interest the Naval Operations Staff? Did operational questions interest you, or the personal fate of these people?
WAGNER: Naturally we were interested in the tactical and operational problems so that we could gather experiences and draw our conclusions from them.
FLOTTENRICHTER KRANZBÜHLER: Can you actually remember seeing such a report?
WAGNER: No.
FLOTTENRICHTER KRANZBÜHLER: Just now a document was shown to you dealing with the treatment of a Commando unit captured in a Norwegian fjord. It is Number 526-PS. Do you still have that document?
WAGNER: Possibly, some documents are still lying here.
FLOTTENRICHTER KRANZBÜHLER: Will you have a look at that document. I am having the document handed to you. In the third paragraph you will find a reference to the fact that this Commando unit was carrying 1,000 kilograms of explosives. Is that correct?
WAGNER: Yes.
FLOTTENRICHTER KRANZBÜHLER: Did you understand my question?
WAGNER: I answered “yes.”
FLOTTENRICHTER KRANZBÜHLER: I am sorry, I did not hear you.
In the fifth paragraph you will find that the Commando unit had orders to carry out sabotage against strong points, battery positions, troop barracks, and bridges, and to organize a system for the purpose of further sabotage. Is that correct?
WAGNER: Yes.
FLOTTENRICHTER KRANZBÜHLER: Did these assignments have anything to do with the Navy?
WAGNER: No.
FLOTTENRICHTER KRANZBÜHLER: Can you see any indication in the whole document which would suggest that the Navy had anything at all to do with the capture or the treatment of this Commando unit?
WAGNER: No, the document does not contain an indication of that sort.
FLOTTENRICHTER KRANZBÜHLER: You were asked this morning about the case of the Monte Corbea. In connection with a court-martial ruling against the commander, the Commander-in-Chief of the Navy, Admiral Raeder, sent a wireless message at that time to all commanders. This radiogram is recorded in Document Dönitz-78 in the document book, Volume IV, Page 230. I shall read that wireless message to you:
“The Commander-in-Chief of the Navy has personally and expressly renewed his instructions that all U-boat commanders must adhere strictly to the orders regarding the treatment of neutral ships. Any infringement of these orders has incalculable political consequences. This order is to be communicated to all commanders immediately.”
Do you see any suggestion here that the order is restricted to Spanish ships?
WAGNER: No, there is no such suggestion in this order.
FLOTTENRICHTER KRANZBÜHLER: I submit to you a document which was used yesterday, D-807. It deals with notes to the Norwegian Government on the sinking of several steamers and contains the drafts of these notes of the High Command of the Navy. Does this document yield any indication at all that the notes were actually sent, or is it impossible to tell from the drafts that the notes themselves were ever dispatched?
WAGNER: Since there are no initials or signatures on either of these letters; they may be drafts. At any rate, proof that they were actually sent is not apparent from this document.
THE PRESIDENT: Did you give us the page number of it?
FLOTTENRICHTER KRANZBÜHLER: It was submitted yesterday, Mr. President. It is not in any document book.
THE PRESIDENT: Yes, I see.
FLOTTENRICHTER KRANZBÜHLER: I now read to you the first sentence from another document which was put to you yesterday. Its number is D-846 and it concerns a discussion with the German Minister to Denmark, Renthe-Fink, on 26 September 1939. I shall read the first sentence to you:
“Sinking of Swedish and Finnish ships by our submarines have caused considerable concern here on account of the Danish food transports to Great Britain.”
Does this report give any indication that these sinkings took place without warning, or were these ships sunk because contraband was captured on them in the course of a legitimate search?
WAGNER: The sentence which you have just read does not show how these ships were sunk. As far as I remember the document from yesterday, it does not contain any reference to the way in which these ships were sunk, so that it must be assumed as a matter of course that they were sunk in accordance with the Prize Ordinance.
FLOTTENRICHTER KRANZBÜHLER: You were asked yesterday whether you considered the German note to the neutral countries of 24 November 1939 a fair warning against entering certain waters and you answered the question in the affirmative. Is that right?
WAGNER: Yes.
FLOTTENRICHTER KRANZBÜHLER: And then you were asked whether we had deceived the neutrals, and you answered that question with “no.” Did this negative answer apply to the previous question on the warning against sailing in certain waters, or did it refer to all the political measures with regard to neutral states which the German Government took in order to conceal their own political intentions?
WAGNER: The answer in that context referred to the previous questions which had been asked about warning the neutrals promptly of the measures which we adopted for the war at sea.
FLOTTENRICHTER KRANZBÜHLER: I want to make this point quite clear. Do you have any doubt whatever that the pretense of minefields in the operational zones around the British Coast served not only the purpose of deceiving the enemy defense, but also the political purpose of concealing from the neutrals the weapons which we employed in the war at sea?
WAGNER: Yes, I expressly confirm this two-fold purpose.
FLOTTENRICHTER KRANZBÜHLER: The two-fold purpose of secrecy?
WAGNER: Yes.
FLOTTENRICHTER KRANZBÜHLER: Do you have any doubt whatever that the German Government denied to neutral governments that certain ships were sunk by U-boats, although they had in fact been sunk by U-boats?
WAGNER: Yes. Or rather, no. I have no doubt that the denials were formulated in that way, as a generally accepted political measure adopted wherever indicated.
FLOTTENRICHTER KRANZBÜHLER: Yesterday you admitted the possibility that Admiral Dönitz, as Commander-in-Chief of U-boats, may have received knowledge from the Naval Operations Staff of the handling of political incidents caused by U-boats. Can you, after careful recollection, name a single instance when he did in fact receive from the SKL information on the political measures adopted?
WAGNER: No, I do not remember such an instance.
FLOTTENRICHTER KRANZBÜHLER: I have no further questions.
DR. SIEMERS: Admiral, you have explained the basis of the Commando Order, as far as the Naval Operations Staff is concerned, by referring to Hitler’s definite assertions that he had in his possession enemy orders saying that prisoners were to be killed. In connection with this Commando Order Colonel Phillimore dealt with the case of the British sailor Evans in great detail. In my opinion that case has not so far been clarified. Colonel Phillimore spoke of the murder of a soldier. I think that in spite of the soundness of the documents the Prosecution is mistaken about the facts, also in a legal respect. Will you once more look at both documents, Document D-864...
Mr. President, that is Exhibit GB-457, discussed by Colonel Phillimore this morning.
This is an affidavit by Gerhard Flesch. The Prosecution quoted the sentence which states that the Commanding Admiral of the Northern Coast of Norway had interrogated Evans personally. Admiral Wagner, does that sentence show that Evans was a prisoner of the Navy?
WAGNER: No.
DR. SIEMERS: What was the situation according to the Flesch affidavit? Will you please clarify it?
WAGNER: According to the second paragraph of that affidavit, Evans must have been in the hands of the SD.
DR. SIEMERS: That is right.
And, Mr. President, may I add that at the beginning of the affidavit Flesch states that he was the commander of the Security Police. The Security Police had captured Evans; he was therefore a prisoner of the SD.
[Turning to the witness.] Is it correct, therefore, that the British sailor Evans was available to the German admiral in Norway for the sole purpose of being interrogated?
WAGNER: Undoubtedly.
DR. SIEMERS: And the admiral was interested in interrogating him merely to obtain purely factual information on the attack on the Tirpitz. Is that correct?
WAGNER: Quite correct.
DR. SIEMERS: May I ask you to look at the next paragraph of the Affidavit D-864? There it mentions Evans’ clothes, and says:
“It is not known to me that Evans wore a uniform. As far as I can remember, he was wearing blue overalls.”
Does this mean that Evans was not recognizable as a soldier?
WAGNER: No, probably not.
DR. SIEMERS: Will you now pass on to the Document UK-57 submitted by Colonel Phillimore?
Mr. President, this is Exhibit GB-164 and should be in the original Document Book Keitel, but I think it was newly submitted today.
[Turning to the witness.] You have a photostat copy, have you not?
WAGNER: Yes.
DR. SIEMERS: Will you, please, turn to the fourth page. First, a question: Is it possible that this document was known to the Naval Operations Staff? Does the document indicate that it was sent to the Naval Operations Staff?
WAGNER: These are informal conference notes of the OKW which were apparently not sent to the Naval Operations Staff.
DR. SIEMERS: If I understand it correctly then, this is a document of the Intelligence Service of the OKW, is it not?
WAGNER: Yes. That is correct.
DR. SIEMERS: Under Figure 2 it says “attempted attack on the battleship Tirpitz.” The first part was read by Colonel Phillimore:
“Three Englishmen and two Norwegians were held up at the Swedish frontier.”
Can one, on the strength of this, say that they were presumably apprehended by the Police and not by the Wehrmacht?
WAGNER: Presumably, yes. Certainly not by the Navy; but probably by the Police, who controlled the frontiers, so far as I know.
DR. SIEMERS: Do you not think, Admiral, that this is not only probable but certain if you think back to the affidavit of 14 November 1945 by Flesch, the commander of the Security Police, who brought Evans from the frontier to Oslo?
WAGNER: If you take the two together, then in my opinion it is certain; I do not think there is any doubt about it.
DR. SIEMERS: Will you then look at the following sentence?
Mr. President, that is under Figure 2, the last sentence of the first paragraph. I quote:
“It was possible to take only the civilian-clothed British sailor Robert Paul Evans”—born on such and such a date—“into arrest. The others escaped into Sweden.”
Therefore, I think we may assume with certainty that Evans was not recognizable as a soldier.
WAGNER: Yes, no doubt.
DR. SIEMERS: Then, will you look at the following sentence. There it says—I quote:
“Evans had a pistol holster used for carrying weapons under the arm-pit, and he had a knuckle duster.”
SIR DAVID MAXWELL-FYFE: My Lord, it says nothing about civilian clothes in the English copy. I do not want to make a bad point, but it is not in my copy.
THE PRESIDENT: I am afraid I do not have the document before me.
SIR DAVID MAXWELL-FYFE: My Lord, the English copy that I have simply has, “However, only the British seaman, Robert Paul Evans, born 14 January 1922, at London, could be arrested. The others escaped into Sweden.”
My Lord, I think it can be checked afterwards.
THE PRESIDENT: Exact reference to the document?
SIR DAVID MAXWELL-FYFE: My Lord, that was Document UK-57, and it is a report of the OKW, Office for Ausland Abwehr, of 4 January 1944.
THE PRESIDENT: Did Colonel Phillimore put it in this morning?
SIR DAVID MAXWELL-FYFE: I put it in, My Lord, I think it was—certainly in cross-examining the Defendant Keitel. It has been in before, My Lord.
THE PRESIDENT: I see, it has already been put in with this lot.
DR. SIEMERS: I should be grateful to the Tribunal if the mistake were rectified in the English translation. In the German original text the photostat copy is included, therefore the wording “civilian-clothed” must be correct.
Witness, we were discussing the sentence—I quote:
“Evans had a pistol holster used for carrying weapons under the arm-pit, and he had a knuckle duster.”
How does this bear on the fact that he was wearing civilian clothes?
WAGNER: It shows that he...
DR. SIEMERS: Sir David would like me to read the next sentence too:
“Acts of force contrary to international law could not be proved against him. Evans made detailed statements regarding the action and, on 19 January 1943, in accordance with the Führer Order, he was shot.”
How does this bear on the fact that he was wearing civilian clothes? Does this show that he did not act as a soldier in enemy territory should act?
THE PRESIDENT: Just a moment. The Tribunal considers that that is a question of law which the Tribunal has got to decide, and not a question for the witness.
DR. SIEMERS: Then I shall forego the answer.
May I ask you to turn to the next page of the document and to come back to the Bordeaux case, a similar case which has already been discussed. You have already explained the Bordeaux case insofar as you said that the Naval Operations Staff was not informed about it. I now draw your attention to the sentence at the bottom of Page 3:
“After carrying out the explosions, they sank the boats and tried, with the help of the French civilian population, to escape into Spain.”
Thus did the men concerned in this operation also not act like soldiers?
WAGNER: That, according to this document, is perfectly clear.
DR. SIEMERS: Thank you. And now one last question. At the end of his examination Colonel Phillimore asked you whether you considered Grossadmiral Raeder and Grossadmiral Dönitz guilty in the cases which have just been discussed, guilty of these murders as he termed them? Now that I have further clarified these cases I should like you to answer the question again.
WAGNER: I consider that both admirals are not guilty in these two cases.
DR. SIEMERS: I have no further questions.
DR. LATERNSER: Admiral, during cross-examination you explained your views on the Commando Order. I wanted to ask you: Were your views possibly based on the assumption that the order was examined by a superior authority as to its justification before international law?
WAGNER: Yes. I assumed that the justification for the order was examined by my superiors.
DR. LATERNSER: Furthermore, during cross-examination you stated your conception of what happened when a man was handed over to the SD. I wanted to ask you: Did you have this conception already at that time, or has it taken form now that a great deal of material has become known to you?
WAGNER: There is no question that this conception was considerably influenced by knowledge of a great deal of material.
DR. LATERNSER: You did not, therefore, at that time have the definite conception that the handing over of a man to the SD meant certain death?
WAGNER: No, I did not have that conception.
DR. LATERNSER: Now, a few questions regarding the equipment of the Commando units. Do you not know that automatic arms were found on some members of these units and that, in particular, pistols were carried in such a manner that if, in the event of capture, the man raised his arms, that movement would automatically cause a shot to be fired which would hit the person standing opposite the man with raised arms? Do you know anything about that?
WAGNER: I have heard of it.
DR. LATERNSER: Did you not see pictures of it?
WAGNER: At the moment I cannot remember seeing such pictures.
DR. LATERNSER: Did the Germans also undertake sabotage operations in enemy countries?
THE PRESIDENT: What has it got to do with that, Dr. Laternser?
DR. LATERNSER: I wanted to ascertain by means of this question whether the witness had knowledge of German sabotage operations, and furthermore, whether he had received reports about the treatment of such sabotage units.
THE PRESIDENT: That is the very thing which we have already ruled cannot be put.
You are not suggesting that these actions were taken by way of reprisal for the way in which German sabotage units were treated? We are not trying whether any other powers have committed breaches of international law, or crimes against humanity, or war crimes; we are trying whether these defendants have.
The Tribunal has ruled that such questions cannot be put.
DR. LATERNSER: Mr. President, I do not know what answer the witness is going to give. I merely wanted, in case, which I do not know...
THE PRESIDENT: We wanted to know why you were putting the question. You said you were putting the question in order to ascertain whether German sabotage units had been treated in a way which was contrary to international law, or words to that effect, and that is a matter which is irrelevant.
DR. LATERNSER: But, Mr. President, it would show at least that doubt existed about the interpretation of international law with regard to such operations and that would be of importance for the application of the law.
THE PRESIDENT: The Tribunal rules that the question is inadmissible.
DR. LATERNSER: Witness, you also stated during your cross-examination that until 1944 you were chief of the Operational Department of the Naval Operations Staff. Can you give information on whether there were strong German naval forces or naval transport ships in the Black Sea?
WAGNER: The strength of naval forces and transport ships in the Black Sea was very slight.
DR. LATERNSER: For what were they mostly needed?
WAGNER: For our own replacements and their protection.
THE PRESIDENT: Dr. Laternser, how does this arise out of the cross-examination? You are re-examining now, and you are only entitled to ask questions which arise out of the cross-examination. There have been no questions put with reference to the Black Sea.
DR. LATERNSER: Mr. President, I learned during the examination that for a long time the witness was chief of the Operational Department; and I concluded that he was one of the few witnesses who could give me information regarding the facts of a very serious accusation raised by the Russian Prosecution, namely, the accusation that 144,000 people had been loaded on to German ships, that at Sebastopol those ships had gone to sea and had then been blown up, and that the prisoners of war on the ships were drowned. The witness could clarify this matter to some extent.
THE PRESIDENT: Dr. Laternser, you knew, directly this witness began his evidence, what his position was; and you, therefore, could have cross-examined him yourself at the proper time. You are now re-examining; you are only entitled—because we cannot have the time of the Court wasted—you are only entitled to ask him questions which arise out of the cross-examination. In the opinion of the Tribunal this question does not arise out of the cross-examination.
DR. LATERNSER: Mr. President, please, would you, as an exception, admit this question?
THE PRESIDENT: No, Dr. Laternser, the Tribunal has given you a great latitude and we cannot continue to do so.
The Tribunal will now adjourn.