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. Kranzbühler 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 KRANZBÜHLER: 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 To counter this contention Hessler is to testify that Order 154 was no longer in force at that time.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 orders 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 KRANZBÜHLER: 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.