Morning Session
FLOTTENRICHTER KRANZBÜHLER: Mr. President, Gentlemen of the Tribunal: I would like to sum up my statements of yesterday and make the following remarks regarding the conduct of German U-boats against enemy merchant vessels.
I believe that the German construction of the London Agreement of 1936, in the light of the position taken by some of the powers involved, as generally known to all experts, as well as according to the opinion of numerous and competent jurists of all countries, was in no way fraudulent. If I were to express myself with all caution, I would say that it is, legally, at least, perfectly tenable, and thus not the slightest charge can be raised against the German Naval Command for issuing its orders on a sensible and perfectly fair basis. We have shown that these orders were given only in consequence of the conditions created by publication of the British measures, which, according to the German concept of law, justified the orders issued.
Before I leave this subject I should like to recall to the mind of the Tribunal the special protection which the German orders provided for passenger vessels. These passenger vessels were excluded for a long time from all measures involving sinking of ships, even when they sailed in an enemy convoy and therefore could have been sunk immediately, according to the British conception. These measures indicate very clearly that the accusation of disregard and brutality is unjustified. The passenger vessels were only included in the orders concerning other vessels when in the spring of 1940 there was no longer any harmless passenger traffic at all, and when these ships, because of their great speed and heavy armament, proved to be particularly dangerous enemies of the submarines. If therefore Mr. Roger Allen’s report cites as an especially striking example of German submarine cruelty the sinking of the City of Benares in the autumn of 1940, then this example is not very well chosen because the City of Benares was armed and went under convoy.
I shall turn now to the treatment of neutrals in the conduct of German submarine warfare, and I can at once point again in this connection to the example which Mr. Roger Allen cites especially for the sinking of a neutral vessel contrary to international law. It concerns the torpedoing of the Danish steamer Vendia, which occurred at the end of September 1939. The Tribunal will recall that this ship was stopped in a regular way and was torpedoed and sunk only when it prepared to ram the German submarine. This occurrence led the German Government to protest to the Danish Government on account of the hostile conduct shown by a neutral boat.
This one example is just to show how different things look if not only the result in the form of the sinking of a neutral ship is known, but also the causes which led to this result. Until the last day of the war the fundamental order to the German submarines was not to attack merchantmen recognized as neutral. There were some accurately defined exceptions to this order, about which the neutral powers had been notified. They affected in the first place ships which conducted themselves in a suspicious or hostile manner, and secondly ships in announced operational areas.
To the first group belonged, above all, those vessels which sailed blacked-out in the war area. On 26 September 1939 the Commander of U-boats asked the High Command of the Navy for permission to attack without warning vessels proceeding in the Channel without lights. The reason was clear. At night the enemy’s troop and matériel shipments were taking place, by which the second wave of the British expeditionary army was ferried across to France. At that time the order was still in effect that French ships were not to be attacked at all. But since French ships could not be distinguished from English vessels at night, submarine warfare in the Channel would have had to be discontinued completely after dark in compliance with this order. The Tribunal heard from a witness that in this way a 20,000-ton troop transport passed unmolested in front of the torpedo tubes of a German submarine. Such an occurrence in war is grotesque and therefore of course the Naval Operations Staff approved the request of the Commander of U-boats.
The Prosecution has now made much ado about a note written on this occasion by an assistant at the Naval Operations Staff, Kapitänleutnant Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of the opinions expressed in this note; therefore they did not result in corresponding orders. The order to attack blacked-out ships was issued by radio without any further addition on the part of the Naval Operations Staff and on 4 October it was extended to further regions along the British coast, and again without any addition in the sense of the above-mentioned note.
Examining the question of blacked-out vessels from the legal standpoint, Vanselow, the well-known expert on the law governing naval warfare, makes the following remark:[[12]]
“In war a blacked-out vessel must in case of doubt be considered as an enemy warship. A neutral as well as an enemy merchant vessel navigating without light voluntarily renounces during the hours of darkness all claim to immunity from attack without being stopped.”
I furthermore refer to Churchill’s declaration, made in the House of Commons on 8 May 1940, concerning the action of British submarines in the Jutland area. Since the beginning of April they had had orders to attack all German vessels without warning during the daytime, and all vessels, and thus all neutrals, as well, at night. This amounts to recognition of the legal standpoint as presented. It even goes beyond the German order, insofar as neutral merchant vessels navigating with all lights on were sunk without warning in these waters. In view of the clear legal aspect it would hardly have been necessary to give an express warning to neutral shipping against suspicious or hostile conduct. Nevertheless, the Naval Operations Staff saw to it that this was done.
On 28 September 1939 the first German note was sent to the neutral governments with the request that they warn their merchant ships against any suspicious conduct, such as changes in course and the use of wireless upon sighting German naval forces, blacking out, noncompliance with the request to stop, et cetera. These warnings were subsequently repeated several times, and the neutral governments passed them on to their captains. All this has been proved by documents which have been submitted. If therefore, as a result of suspicious or hostile conduct, neutral ships were treated like enemy ships, they have only themselves to blame for it. The German submarines were not allowed to attack any one who as a neutral maintained a correct attitude during the war, and there are hundreds of examples to prove that such attacks never did occur.
Now I wish to deal with the second danger which threatened neutral shipping: The zones of operations. The actual development, briefly summed up, was as follows:
On 24 November 1939 the Reich Government sent a note to all seafaring neutrals in which it pointed out the use of enemy merchant ships for aggressive purposes, as well as the fact that the Government of the United States had barred to its own shipping a carefully defined naval zone around the central European coast, the so-called U.S.A. combat zone. As the note states, these two facts give the Reich Government cause—I quote:
“... to warn anew and more strongly that in view of the fact that the actions are carried on with all the technical means of modern warfare, and in view of the fact that these actions are increasing in the waters around the British Isles and near the French coast, these waters can no longer be considered safe for neutral shipping.”
The note then recommends as shipping lanes between neutral powers certain sea routes which are not endangered by German naval warfare and, furthermore, recommends legislative measures according to the example set by the United States. In concluding, the Reich Government rejects responsibility for any consequences which might follow if warning and recommendation should not be complied with. This note constituted the announcement of an operational area equivalent in size to the U.S.A. combat zone, with the specified limitation that only in those sea zones which were actually endangered by actions against the enemy consideration could no longer be given to neutral shipping.
The Naval Operations Staff did indeed observe this limitation. The neutral powers had more than 6 weeks in which to take the measures recommended by the German Government for the safety of their own shipping and to direct their shipping along the routes announced. Starting in January the German command then opened up to the German naval forces, within the operational area announced, certain accurately defined zones around the British coast, in which an attack without warning against all ships sailing there was admissible. The naval chart on which these zones had been marked was submitted to the Tribunal. The chart shows that these zones, and only these, were gradually set up where, as a result of mutually increasing attacks and defensive actions at sea and in the air, engagements continually occurred, so that any ship entering this area was operating in the direct presence of the naval forces of both powers. The last of these zones was designated in May 1940. These zones were not, and need not have been, announced because they were all within the area of operations as proclaimed on 24 November 1939. The distance of these zones from the enemy coast was on the average 60 sea miles. Outside their boundaries the declaration concerning the area of operations of 24 November was not observed, that is to say, neutral ships could be stopped and sunk only in accordance with the Prize Ordinance.
This situation changed when, after the collapse of France in the summer of 1940, the British Isles became the center of war operations. On 17 August 1940 the Reich Government sent to the neutral governments a declaration in which the entire area of the U.S.A. combat zone around England without any limitation was designated as an operational area.
“Every ship”—so the note reads—“which sails in this area exposes itself to destruction not only by mines but also by other combat means. Therefore the German Government once more urgently warns against entering this endangered area.”
From this time on the area was fully utilized and the immediate use of arms against craft encountered in it was permitted to all naval and air forces, except where special exceptions had been ordered. The entire development described was openly dealt with in the German press, and Grossadmiral Raeder granted interviews to the foreign press on this subject, which clearly showed the German viewpoint. If therefore in the sea zones mentioned neutral ships and crews sustained losses, at least they cannot complain about not having been warned explicitly and urgently beforehand.
This statement in itself has not much meaning in the question of whether areas of operation as such constitute an admissible measure. Here, too, the Prosecution will take the position that in the London Agreement of 1936 no exceptions of any kind were made for areas of operation and that therefore such exceptions do not exist.
It is a well-known fact that operational areas were originally proclaimed in the first World War. The first declaration of this kind came from the British Government on 2 November 1914, and designated the entire area of the North Sea as a military area. This declaration was intended as a reprisal against alleged German violations of international law. Since this justification naturally was not recognized, the Imperial Government replied on 4 February 1915 by designating the waters around England as a military area. On both sides certain extensions were made subsequently. I do not wish to go into the individual formulations of these declarations and into the judicial legal deductions which were made from their wording for or against the admissibility of these declarations. Whether these areas are designated as military area, barred zone, operational area, or danger zone, the point always remained that the naval forces in the area determined had permission to destroy any ship encountered there. After the World War the general conviction of naval officers and experts on international law alike was that the operational area would be maintained as a means of naval warfare. A development, typical for the rules of naval warfare, was confirmed here, namely, that the modern technique of war forcibly leads to the use of war methods which at first are introduced in the guise of reprisals, but which gradually come to be employed without such a justification and recognized as legitimate.
The technical reasons for such a development are obvious: The improvement of mines made it possible to render large sea areas dangerous. But if it was admissible to destroy by mines every ship sailing, despite warning, in a designated sea area, one could see no reason why other means of naval warfare should not be used in this area in the same way. Besides, the traditional institution of the blockade directly off enemy ports and coasts by mines, submarines, and aircraft was made practically impossible, so that the sea powers had to look for new ways to bar the approach to enemy coasts. Consequently it was these necessities which were the compelling factors in bringing about the recognition of the operational area.
It is true that there was by no means a uniform interpretation concerning the particular prerequisites under which the declaration of such areas would be considered admissible, just as there was none with regard to the designation which the belligerent power must choose. The conferences of 1922 and 1930 did not change anything either in that respect, as can be seen, for instance, from the efforts made after 1930, especially by American politicians and experts in international law, for a solution of this question.[[13]]
Unfortunately, there is no time at my disposal to discuss these questions in detail and therefore it must suffice for the purposes of the defense to state that during the conferences in Washington in 1922 and in London in 1930 the operational area was an arrangement or system known to all powers concerned, which operated in a way determined by both sides in the first World War; that is, that all ships encountered in it would be subject to immediate destruction. If the operational area were to have been abolished in the afore-mentioned conferences, especially in the treaty of 1930, an accord should have been reached on this question, if not in the text of the agreement then at least in the negotiations. The minutes show nothing of the kind. The relationship between operational area and the London Agreement remained unsettled.
The French Admiral Castex[[14]] has the same viewpoint; Admiral Bauer, Commander of Submarines in the first World War, voiced his disapproval in 1931 of the application of the London rules in the operational area, and this opinion was not unknown to the British Navy.[[15]] In a thorough study published by Professor Ernst Schmitz[[16]] in 1938 a merchant vessel which enters an operational area despite general prohibition is deemed to be guilty of “persistent refusal to stop.” The powers participating in the conferences in Washington and London carefully refrained, as also in other cases, from tackling controversial questions on which no accord could be reached. Therefore every power remained at liberty to champion in practice such an opinion as corresponded with its own interests. There was no doubt left in the minds of the participants as to this fact, and I have as a witness for this no less a person than the French Minister for Foreign Affairs at that time, M. Briand. In his instruction of 30 December 1921 to Sarraut, the French chief delegate in Washington, he announces his basic readiness to conclude an agreement on submarine warfare. However, he then points out a series of questions described as essential parts of such an agreement, among them the arming of merchant ships and the definition of combat zones. The instruction goes on:
“It is indispensable to examine these questions and to solve them by a joint agreement, for surface vessels as well as for submarines and aircraft, in order not to establish ineffective and deceptive stipulations.”[[17]]
Particularly with respect to the question concerning the area of operations, Briand characterizes the submarine rules as being “ineffective and deceptive.”
After this testimony nobody would designate the German conception as fraudulent, according to which ships in declared areas of operation forfeit the protection under the London Agreement. Even Mr. Roger Allen’s report concedes this.[[18]] Therefore the attacks of the Prosecution seem to be directed, as I understand from the cross-examination, not so much against the existence of such zones as against their extent, and we have repeatedly heard the figure of 750,000 square sea miles. Incidentally, it must be noted that this figure includes the territorial area of Great Britain, Ireland, and western France; the maritime area only amounts to 600,000 square miles. I quite agree, however, that through operational areas of such a size the interests of the neutrals were badly prejudiced.
It is all the more remarkable that the afore-mentioned American draft of the convention of 1939, which concerns the rights and duties of neutrals, provides for a considerable expansion of the operational area. Such an area, which is termed “blockade zone” in the draft, was to include the waters up to a distance of 50 sea miles from the blockaded coast.
THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.
FLOTTENRICHTER KRANZBÜHLER: It is the draft set up by the American Professors Jessup Borchard and Charles Warren, dealing with the rights and duties of neutrals in sea warfare. It was published in the American Journal of International Law of July 1939.
THE PRESIDENT: Jessup and Warren, you say?
FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and Charles Warren.
THE PRESIDENT: Thank you.
FLOTTENRICHTER KRANZBÜHLER: This would correspond roughly to the area of waters in which attacks without warning were authorized until 17 August 1940; it covers approximately 200,000 square sea miles.
However, it seems to me almost impossible to approach from a juridical angle such an eminently practical question as that of the extent of an operational area. As long as this question is not settled by an agreement the actual determination will always be a compromise between what is desirable from a military point of view and what is politically possible. It seems to me that the law is only violated when a belligerent misuses his power against neutrals. The question as to whether such misuse takes place should be made dependent both upon the attitude of the enemy toward the neutrals and upon the measures taken by the neutrals themselves.
THE PRESIDENT: One minute. Dr. Kranzbühler, does not the right to declare a certain zone as an operational zone depend upon the power to enforce it?
FLOTTENRICHTER KRANZBÜHLER: I do not quite follow the point of your question.
THE PRESIDENT: Well, your contention is, apparently, that any state at war has a right to declare such an operational zone as it thinks right and in accordance with its interests, and what I was asking you was whether the right to declare an operational zone, if there is such a right, does not depend upon the ability or power of the state declaring the zone to enforce that zone, to prevent any ships coming into it without being either captured or shot.
FLOTTENRICHTER KRANZBÜHLER: I do not believe, Mr. President, that there exists agreement of expert opinion regarding that question. In contrast to the blockade zone in a classical sense where full effect is necessary, the operational zone only provides for practical endangering through continuous combat actions. This practical threat was present in the German operational zone in my opinion, and I refer in that connection to the proclamation of President Roosevelt regarding the U.S.A. combat zone, where the entering of that zone was prohibited, because as a result of combat actions shipping must of necessity be continuously endangered.
THE PRESIDENT: The proclamation of the President of the United States was directed, was it not, solely to United States vessels?
FLOTTENRICHTER KRANZBÜHLER: I am referring to it only to establish proof of the German interpretation that this area was endangered, and practical danger seems to be the only legal and necessary prerequisite for declaring an operational zone.
THE PRESIDENT: Would you say that it was a valid proclamation if Germany had declared the whole of the Atlantic to be an operational zone?
FLOTTENRICHTER KRANZBÜHLER: Mr. President, I would say that at the beginning of the war that would not have been possible, for the German forces at that time, without doubt, did not constitute an effective danger to the entire Atlantic sea traffic. I am of the opinion, however, that with the increase in the number of U-boats on the one hand, and with the increase of defense by hostile aircraft on the other, the danger zone of course expanded, and therefore the development of this war quite logically led to the point where operational zones were gradually extended and enlarged.
THE PRESIDENT: Do you mean, then, that you are basing the power of the state to declare a certain zone as an operational zone not upon the power of the state to enforce its orders in that zone, but upon the possibility of danger in that zone?
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE PRESIDENT: You say it depends upon the possibility of danger in the zone?
FLOTTENRICHTER KRANZBÜHLER: I would not say the possibility of danger, Mr. President, but the probability of danger, and the impossibility for the belligerent to protect neutral shipping against this danger.
THE PRESIDENT: May I ask you what other legal basis there is for the theory you are putting forward, other than the adoption of the blockade?
FLOTTENRICHTER KRANZBÜHLER: I am referring as a legal basis especially to the practice of the first World War, and the statements made by experts after the first World War, and also to the generally recognized rules about mined areas. The mined areas actually in this war proved to be operational zones where every means of sea warfare was used to sink without warning. I shall later refer to this topic once more.
THE PRESIDENT: Thank you.
FLOTTENRICHTER KRANZBÜHLER: During the presentation of documents, the Tribunal has eliminated all those which I intended to utilize in order to prove that British naval warfare also paid no attention to the interests of neutrals when they were in contradiction with their own interests. If it is the Tribunal’s wish, I will not go into the details of the British measures, and in summing up I will mention them only insofar as they are indispensable for the legal argumentation. The following points are essential:
(1) The British regulations of 3 September 1939 concerning contraband goods, which practically precluded neutral mercantile traffic with Germany through the introduction of the so-called “hunger blockade.”
(2) The decree concerning control ports for contraband goods, which compelled neutral ships to make great detours right through the war zone, and to which must be imputed without doubt a series of losses of neutral ships and crews.
(3) The introduction of an export blockade against Germany on 27 November 1939, by means of which the importation of German goods was cut off for neutrals.
(4) The introduction of the navicert system and the black lists, which put the whole of neutral trade under British control and which made ships refusing to accept this system liable to be seized and confiscated.
I do not have to examine the question here whether these British measures toward neutrals were admissible or not from the point of view of international law. In any case the neutrals themselves considered many of them inadmissible, and there was hardly a single one which did not bring forth more or less vehement protests, for instance from Spain, the Netherlands, Soviet Russia, and the United States. From the beginning, the British Government for its part had forestalled any legal examination of the measures by renouncing the optional clause of the Permanent International Tribunal in The Hague, through a note of 7 September 1939. This step was expressly vindicated by the necessity for providing the British Navy with full freedom of action.
On the British side the fact was emphasized in the first World War and ever since that although British measures did prejudice the interests and possibly also the rights of the neutrals, they did not imperil either the ships or the crews and were therefore to be considered morally superior to the inhuman German measures. Actually, as mentioned before, the obligation to enter control ports was dangerous for neutral ships and crews and for this very reason the neutral countries protested against it. But apart from this, it seems to me that the actual divergence between the British and German measures for blockading the adversary is not founded upon moral differences, but rather upon difference in sea power. In the waters where the British Navy did not exercise naval supremacy, namely, off the coasts we occupied, and in the Baltic Sea, it used the same methods of naval warfare as we did.
In any case the official German opinion was that the afore-mentioned British control measures against neutrals were inadmissible, and the Reich Government reproached the neutral powers with the fact that, although protesting, they in point of fact submitted to the British measures. This is clearly stated in the proclamation issued on the occasion of the declaration of the blockade on 17 August 1940. Consequently, the following facts confronted, the German Naval Command:
(1) A legal trade between the neutrals and the British Isles no longer existed. On the grounds of the German answers to the British stipulations concerning contraband goods and the British export blockade, any trade to and from England was contraband trade and therefore illegal from the point of view of international law.
(2) The neutrals in practice submitted to all British measures, even when these measures were contrary to their own interests and their own conception of legality.
(3) Thus, the neutrals directly supported British warfare, for by submitting to the British control system in their own country they permitted the British Navy to economize considerably on fighting forces which, according to the hitherto existing international law, should have exercised trade control at sea and which were now available for other war tasks.
Therefore the German Government, in determining its operational area with a view to preventing illegal traffic from reaching England, saw no reason for giving preference to the neutrals over its own military requirements, all the less so since neutral shipping, which despite all warnings continued to head for England, demanded a great deal of money for this increased risk and therefore despite all risks still considered trade with England a profitable business.[[19]]
In addition to that, the most important neutrals themselves took measures which can be regarded as a completely novel interpretation of the existing laws of naval warfare. All the American countries jointly proclaimed the Pan-American safety zone, an area along the American coast within a distance of approximately 300 sea miles. In these waters, comprising altogether several million square miles, they required belligerents to forego the exercise of these rights which, according to hitherto existing international law, the naval forces of the belligerents were entitled to apply to neutrals. On the other hand, as I have already mentioned, the President of the United States prohibited, on 4 November 1939, U.S. citizens and ships from entering the waters extending over approximately one million square miles along the European coast. Thus the development of the laws of naval warfare, under the influence of the neutrals, necessarily led to the recognition of large areas reserved either for the purpose of safety or for that of combat. In this connection the American President explicitly stated in his proclamation that the maritime zone he had closed was “endangered by combat action” as a result of technical developments. The proclamation thus only took into account the development of modern weapons; the long-range coastal artillery which, for example, could easily fire across the English Channel; the invention of locating devices which permitted coastal supervision of maritime traffic over large areas; and particularly the increased speed and range of aircraft.
From this development the German Naval Command drew the same conclusion as the above-mentioned neutrals, namely, that defensive and offensive action would necessarily have to cover large maritime areas in this war. It was therefore not through arbitrary action that the German operational area, which the Prosecution objects to, grew to such a size; it was only because the German Naval Command was adapting itself to a system which was recognized by the other powers also as justified.
In order to examine the legality of the German measures on the basis of enemy methods, may I ask the Tribunal to recall the naval chart on which the British zones of warning and danger are marked. These zones cover about 120,000 square sea miles. Even if these dimensions are smaller than those of the German operational area, it seems to me that the difference between 100,000 and 600,000 square miles is not so much a question of legal judgment as one of coastal length and of strategic position on the sea. This observation is confirmed by the American practice against Japan, as described by Admiral Nimitz. He says:
“In the interest of the conduct of operations against Japan the area of the Pacific Ocean is declared a zone of operations.”
This zone of operations covers more than 30 million square miles. All ships therein, with the exception of U.S. and Allied, and hospital ships, were sunk without warning. The order was issued on the first day of the war, on 7 December 1941, when the Chief of the Admiralty ordered unrestricted submarine warfare against Japan.
It is not for me to examine whether this order, issued on the first day of the war, is to be looked upon and justified as a measure of reprisal. For me the important thing is to show what actual practice looked like, and that is unequivocal.
The Prosecution finds particularly blameworthy the orders to carry out attacks without warning in the operational areas, if possible without being noticed, so that mine hits could be claimed. Orders to this effect existed for the period between January and August 1940, that is to say, during the period when submarines were not permitted to act without warning throughout the operational area of 24 November 1939, but only in the specially defined areas off the British coast. In this camouflage the Prosecution sees proof of a bad conscience amounting to the recognition of wrongdoing. The real reasons for the measures ordered were both military and political. For the admirals concerned the military reasons, of course, took first place, and these alone were known to the Commander of U-boats. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses, and his defense was to be led astray in this manner. It is obvious that such misleading of the enemy is fully justified in time of war. The measures had the desired military success, and in numerous cases the British Navy employed flotillas of mine sweepers on the spot where a ship had been torpedoed, and conversely started a submarine chase where a loss had occurred through mine hits.
For the Supreme Command, however, it was not the military but the political reasons that were the determining factor. These invisible attacks were meant to provide an opportunity of denying to the neutrals that the sinkings were due to submarines, and of tracing, them back to mines. This actually did happen in some cases. Does that mean that the German Government itself considered the use of submarine action without warning within the area of operations to be illegal? I do not think so.
In view of the repeated accusations which the Prosecution have construed here and elsewhere from the camouflaging of measures and the denial of facts, I feel obliged to make a few remarks on the point as to whether there is any obligation at all in international politics to tell the truth. However things may be in peacetime, in times of war at any rate one cannot recognize any obligation to tell the truth in a question which may be of advantage to the enemy. I need only point to Hugo Grotius who says: “It is permissible to conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable.”[[20]]
What would it have meant for the military situation if U-boat sinkings such as in the instances dealt with here had not been denied but admitted instead? First of all, since that would have come to the knowledge of the enemy too, we should have lost the military advantage which lay in misleading his defense. Furthermore—and this is no less important—we might quite possibly have furnished our enemy with allies who would have helped him at least with propaganda, if not with their weapons. In view of the fact that some of the neutrals concerned were so dependent on England, they probably would not have recognized the German viewpoint as to the legitimacy of the operational areas, especially since this viewpoint was contrary to their own interests. It would have led to political tensions, and possibly to armed conflicts. Our enemies would have derived the only immediate advantage from it. From the standpoint of the law this endeavor to camouflage the use of submarines with regard to the neutrals does not seem objectionable to me.
But if the Prosecution uses this with the intention of moral defamation, it is applying standards which heretofore have never been applied to the conduct of a war and to the politics of any other country in the world. It was precisely in naval warfare that the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared off the European coasts from Norway to Biscay were, with the exception of the Biscay area, declared mine danger zones. But we know from Churchill’s statement of May 1940, as well as from testimonies of witnesses, that in these areas there were unlimited attacks with submarines, speedboats and, above all, with airplanes. Consequently very often neither the German command nor the neutral country which had been attacked knew whether a loss sustained in such an area really should be traced back to a mine or to another weapon of naval warfare. To conclude that the camouflaging of a measure constitutes its illegality thus seems to me entirely without basis.
Within the German operational zone all ships were on principle attacked without warning. However, orders had been given to make exceptions in the case of certain neutrals, such as, in the beginning, Japan, the Soviet Union, Spain, and Italy. In this measure the Prosecution saw the endeavor of the Naval Operations Staff to terrorize the smaller neutral countries whereas it dared not pick a quarrel with the big ones. The real reason for this differentiating treatment is given in Document UK-65 in the notation on the report which the Commander-in-Chief of the Navy made to the Führer on 16 October 1939.
According to this the neutral governments mentioned are requested to declare that they will not carry contraband; otherwise they would be treated just like any other neutral country. The reason for the different treatment was merely that certain countries were willing and able to forbid their vessels from carrying contraband to England, whereas others could not or would not do so because of their political attitude or their economic dependence on England. Therefore it is not a question of terrorizing the smaller neutrals and sparing the bigger ones, but of preventing traffic in contraband and sparing legal commercial trade. Since no general legal maxim exists which compels the belligerent power to treat all neutral powers alike, no objection can be raised on the basis of international law. It would indeed be strange if here in the name of humanity the demand were made that German submarines should have sunk even those ships which they did not want to sink at all.
The Tribunal saw from the standing war orders submitted that during the further course of the war even the small powers, which were the only neutral ones left, could by virtue of shipping agreements cross the operational area along certain routes without being molested by German submarines. In this way for instance Sweden and Switzerland as well as Turkey could carry on their maritime trade during the entire war.
Outside the operational area announced the German submarines were never permitted to attack neutral ships. In this respect the Naval Command refrained from waging any submarine warfare against neutral merchant shipping, since enemy air surveillance made stopping and searching too dangerous for German submarines. Against the disadvantage of submarine warfare within the operational area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods, which fact in itself made them liable to be sunk after being stopped. Thus a neutral vessel outside the operational area was only in danger if it behaved in a suspicious or hostile way or if it was not clearly marked as neutral. The German Naval Operations Staff again and again called the attention of the neutral powers to this necessity.
In this connection I must mention the order of 18 July 1941, according to which United States vessels within the operational area were placed on an equal basis with all other neutrals, that is to say, could be attacked without warning. The Prosecution have seen in this special proof that the submarine warfare against neutrals was waged in a “cynical and opportunist” way. If this is meant to convey that it was influenced also by political considerations, then I am ready to admit it. But I do not consider this a reproach; since war itself is a political instrument, it is in keeping with its essence if individual parts of it are placed under the leadership of politics. In particular, no reproach should be seen in the orders of the German Command as regards the utilization of submarines against the United States, because they precisely furnish proof of the efforts to avoid any conflict with the United States.
As the Tribunal knows from documents and the testimonies of witnesses, the ships of the United States during the first years of the war were exempt from all measures of naval warfare, and this applied even when contrary to the original American legislation they sailed into the U.S.A. combat zone and thus into the German operational area in order to carry war matériel to England.
This policy was not changed until, in addition to the many unneutral acts of the past, the active employment of the American Navy had been ordered for the protection of British supply lines.
Everybody is familiar with the statements of President Roosevelt, which he made at that time, about the “bridge of boats over the Atlantic” and the support which should be given to England “by every means short of war.” It may be considered a matter of doubt whether the “realistic attitude”[[21]] which the U.S. naval and air forces were ordered to take at that time did not already constitute an illegal war, as has been claimed just now on the part of the Americans.[[22]]
At least the United States had abandoned her neutrality and claimed the status of a “nonbelligerent,” which also presented a new aspect of international law in this war. If in this connection one wishes to raise the charge of cynicism, it should hardly be directed against the orders which were issued as a justified reaction to the American attitude.
I have endeavored to present to the Tribunal a survey of the essential orders issued, and to say a few things with respect to their legality. No doubt there were instances of attacks on ships which according to the orders mentioned should not have been attacked. There are just a few such cases, and some of them have been brought up at this Trial. The best known concerns the sinking of the British passenger vessel Athenia on 3 September 1939 by U-30 under the command of Kapitänleutnant Lemp. The sinking of this ship was due to the fact that the commander mistook it for an armed merchant cruiser.
If the Tribunal should still hesitate to believe the concurring statements of all the witnesses heard here on this critical instance, which was used especially for propaganda purposes, these doubts ought to be removed by the behavior of the same commander in the days and weeks following the sinking. Kapitänleutnant Lemp, as the log of U-30 at that time shows, adhered strictly to the Prize Ordinance, and from this log I was able to submit several examples of the fair and gentlemanly conduct of German commanders even when by such conduct they greatly endangered their submarines.
Only on the return of U-30 from the operations at the end of September 1939 were the Commander of U-boats and the Commander-in-Chief of the Navy fully informed of the whole affair of the sinking of the Athenia. Upon his return the commander immediately reported to the Commander of U-boats the mistake which he himself meanwhile recognized as such, and was sent to Berlin to report in person.
Dr. Siemers will deal with the political aspect of this matter. I only mention the military occurrences. Admiral Dönitz received the following communication from the Naval Operations Staff:
(1) The affair was further to be dealt with politically in Berlin.
(2) Court-martial proceedings were not necessary since the commander acted in good faith.
(3) The entire matter was to be kept in strict secrecy.
On the grounds of this order the Commander of U-boats gave orders that the report on the sinking of the Athenia be deleted from the log of U-30 and that the log be complemented in such a manner as to make the absence of the entry inconspicuous. As the Tribunal has seen, this order was not adequately carried out, obviously for the reason that the officer in charge had no experience whatever in such dealings.
The Prosecution pointed to this changing of the War Diary as a particularly criminal act of falsification. This, it seems to me, is based on a misunderstanding of the facts. The War Diary is nothing but a military report by the commander to his superiors. What occurrences should or should not be included in reports of this kind is not decided by any legal or moral principle, but is solely a matter of military regulations. The War Diary was meant to be secret; however, it was—like many secret matters—accessible to a very large group of people. This is already apparent from the fact that it had been circulated in eight copies, of which some were intended not only for higher staffs but for schools and for training flotillas as well. Therefore, whenever an occurrence was to be restricted to a small group of individuals, it was not to be reported in the War Diary. Since the sequence of the War Diary continued, the missing period had to be filled in with another, necessarily incorrect, entry. I can see nothing immoral in such a measure, much less anything illegal. As long as there is secrecy in time of war—and that is the case in all countries—it means that not all facts can be told to everybody, and therefore one sometimes may have to make incorrect statements. A certain moral offense could perhaps be seen in such action in the case of the Athenia if thereby a falsification for all times had been intended. This, however, was by no means the case. The commander’s report with regard to the sinking of the Athenia was of course submitted in the original form to the immediate superiors, the Commander of U-boats and the Commander-in-Chief of the Navy, and kept in both their offices. I should like further to say briefly that a general order not to enter certain happenings into the War Diary has never existed.
The Athenia case brings another fact to light and that is the manner in which the compliance of U-boat commanders with any orders issued was enforced. In spite of the justified conception of the Naval Operations Staff that the commander acted in good faith, he was put under arrest by Admiral Dönitz because by exercising greater caution he perhaps might have recognized that this was not an auxiliary cruiser. Punishment was meted out in other cases, too, where orders had been mistakenly violated.
The Tribunal is familiar with the wireless communications of September 1942, by which, on occasion of the sinking of the Monte Corbea, the commander had been informed that upon his return he would have to face court-martial proceedings for violation of orders regarding conduct toward neutrals. All commanders received notice of this measure.
The Tribunal will please consider what such strict warnings mean to a commander at sea. If the directives of the American manual for courts-martial were to be considered as a basis, then court-martial proceedings against officers should only be initiated in cases where dismissal from the service seems warranted.[[23]] That should never be the case when the violation of an order is an accidental one. For a commanding officer who is supposed with his soldiers to wage war and gain successes, it is extremely hard and, in fact, under certain circumstances actually a mistake to have one of his commanders on his return from a successful operation tried before a court-martial because of a single slip which occurred in that action.
Every military command acts in accordance with these principles. In this connection I will refer to the unreserved recognition which the commander of the British destroyer Cossack received for setting free the prisoners of the Altmark in spite of the incidents which occurred during this action, which were probably regretted by the British too.
I had to go into those matters in order to meet the accusation that all sinkings carried out against orders were afterward sanctioned by the High Command in that no drastic steps were taken against the commanders. Especially in the field of submarine warfare compliance with orders issued was insured by the continuous personal contact of the commanders with their commanding officer. Upon conclusion of every enemy operation an oral report had to be made, and all measures taken were subjected to sharp criticism, while instructions were given at the same time for future behavior.
The German submarines undertook many thousands of combat operations during this war. In the course of these, orders issued were violated only in very rare instances. If one considers how difficult it is for a submarine to establish its exact position and the boundaries of an operational area, and to distinguish an armed from an unarmed ship, a passenger ship from a troop transport, or a neutral from an enemy ship, the low number of sinkings considered unjustified by the Germans, too, must be taken as proof of an especially effective and conscientious leadership.
After this discussion of the factual development of German submarine warfare, I still have to deal with the accusations built up by the Prosecution from certain preparatory deliberations on the subject of the organization of submarine warfare.
Simultaneously with the combat instructions of 3 September 1939, whereby German submarines were ordered to adhere in their operations strictly to the Prize Ordinance, an order was prepared in the Naval Operations Staff decreeing action without warning in case the enemy merchantmen were armed. In addition to this, during the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones.
The Prosecution looks upon these two documents as proof of the intention to conduct a war contrary to international law from the very start. I, on the other hand, regard these same documents as proof of the fact that the Naval Operations Staff was fully unprepared for a war with England, and that it was only when the British had already declared war that they began to set about thinking in the most elementary manner on how such a war should be conducted. Since neither surprise attacks on armed merchant vessels nor the declaration of prohibited zones violate international law, a belligerent might well be allowed to consider after the outbreak of war if and when he wants to make use of these opportunities. As we know from the afore-mentioned orders of the British Admiralty, as early as 1938 a thorough study of all the possibilities resulting from the war upon commercial shipping had been made and elaborated for practical purposes.
This same standpoint holds good also for the memorandum of the Naval Operations Staff of 15 October 1939, which has been quoted several times by the Prosecution. Its very heading shows that it is a study: “Possibilities for the Intensification of Naval Warfare.”
In accordance with the heading, the memorandum provides an examination of the military demands for effective naval warfare against England, and of the legal possibilities for fulfilling these demands. The result was the order of 17 October 1939, decreeing the immediate use of arms against all enemy merchant vessels, since, as we have already shown, they had been armed and incorporated into the military system. Further intensifying measures were for the time being recognized as not yet justified, and the suggestion was made to wait and see what the further conduct of the enemy would be.
One sentence in this memorandum arouses special suspicion on the part of the Prosecution. It says that naval warfare must, as a matter of principle, be kept within the framework of existing international law. However, measures which might result in successes decisive for the war would have to be taken even if new laws of naval warfare were created thereby.
Does this really constitute a renunciation of international law? Quite the contrary. A departure from existing international law is made dependent only on two quite limited conditions: (1) A military one, namely, that measures are involved which are of decisive importance for the outcome of the war, that is, also of importance in shortening the war;[[24]] (2) a moral one, namely, the nature of the new measures makes them suitable for incorporation into the new international law.
The memorandum itself states that this would be possible only within the framework of the laws of military combat ethics and a demand is therefore made for rigid adherence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating new international laws.
The well-known expert on international law, Baron von Freytagh-Loringhoven says, and I quote:
“... always been war which has given its strongest impulses to international law. Sometimes they have been of a positive, sometimes of a negative nature. They have led to further development of already existing institutions and norms, to the creation of new forms or the reversion to old ones, and not infrequently also to failures.”[[25]]
Especially in this Trial, which itself is supposed to serve the development of new international law, the possibility of such a development cannot be denied.
THE PRESIDENT: We will adjourn.
[A recess was taken.]
THE PRESIDENT: The Tribunal will not sit in open session after 1 o’clock tomorrow, Wednesday; it will sit in closed session during the afternoon. The Tribunal will not sit in open session on Saturday; it will sit in closed session on Saturday morning.
FLOTTENRICHTER KRANZBÜHLER: Before the recess I was speaking about the possibilities of development of naval law.
The American prosecutor, Justice Robert Jackson, in his report to the President of the United States with regard to this problem, expressed his opinions as follows, and I quote:[[26]]
“International law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in international law are brought about by the action of governments, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations.”
These words carry a full justification of the clause objected to by the Prosecution in the memorandum of the Naval Operations Staff. And the fact that the Allies also deemed war-deciding measures to be justified even though they were contradictory to hitherto valid concepts of international law is proved by the use of the atomic bomb against Japanese cities.
Since I am interested in justifying the actual measures taken by the Naval Command in Germany; I have not dealt with the point as to which one of the two admirals accused carried greater or lesser responsibility for one or another. As a formal basis in nearly all cases a Führer decree exists. Both admirals, however, stated here that they considered themselves fully responsible for all orders of naval war which they gave or transmitted. I should like to add to that only two remarks.
As far as political considerations were decisive for orders of the U-boat war, the Commander-in-Chief of the Navy had no influence on them. The Commander of U-boats had not been notified of such considerations any more than of the political settlement of incidents which arose through U-boats.
My second remark concerns the question as to what extent a military commander may be held responsible for the accuracy of legal reasonings which he does not indulge in himself, but which are delivered to him by the leading experts of his country, who after all are not just small-town lawyers. In addition, the Commander of U-boats had only tactical tasks and his staff contained only a few officers, none of whom was qualified to examine questions of international law of the import mentioned here. He therefore had to rely on the fact that the orders issued by the Naval Operations Staff were examined as to their legality and were in order. That is probably handled in a like manner in every navy in the world. A professional seaman is not competent for legal questions; with this reason the Tribunal cut off a remark by Admiral Dönitz about a legal question. This condition must, however, be considered in applying the principle which the German Supreme Court, during the war crimes trials after the first World War, formulated in this regard, and I quote: “The culprit must be conscious of the violation of international law by his actions.”
This appears to me to be equally just, as I should deem it to be incompatible with the demands of justice if soldiers were charged with a criminal responsibility in deciding legal questions which could not be settled at international conferences and are hotly disputed among the experts themselves.
In this connection I should like to mention that the London Pact of 1930 did not from the Root Resolution of 1922 adopt the principle of criminal prosecution for violations of the rules of U-boat warfare. The five naval powers participating in this conference apparently came to the conclusion that the problems of naval warfare cannot be solved by means of penal law. And this fact applies fully today, too.
I am now coming to the second basic charge of the Prosecution—intentional killing of shipwrecked crews. It is directed only against Admiral Dönitz, not Admiral Raeder. The legal basis for the treatment of shipwrecked crews for those ships which are entitled to the protection of the London Agreement of 1936 is laid down in the agreement itself. There it says that, before the sinking, crews and passengers must be brought to safety. This was done by the German side, and the difference of opinion with the Prosecution concerns only the question already dealt with, namely, which ships were entitled to protection under the agreement and which were not.
In the case of all ships not entitled to protection under the agreement, sinking should be considered a military combat action. The legal basis, therefore, with regard to the treatment of shipwrecked crews, in these cases is contained in the Hague Convention concerning the Application of the Principles of the Geneva Convention to Naval Warfare of 18 October 1907, although it was not ratified by Great Britain. According to this, both belligerents shall after each combat action make arrangements for the search for the shipwrecked, as far as military considerations allow this. Accordingly the German U-boats were also bound to assist the shipwrecked of steamers sunk without warning as long as by doing so, first, the boat would not be endangered and, secondly, the accomplishment of the military mission would not be prejudiced.
These principles are generally acknowledged. In this connection I am referring to the order of the British Admiralty, for example, and I quote: “No British ocean-going merchantman shall aid a ship attacked by a U-boat.”
I further refer to the affidavit of Admiral Rogge, according to which in two cases, personally witnessed by him, nothing was done by a British cruiser to rescue the shipwrecked, because U-boats were assumed to be nearby, once correctly so and once erroneously. A higher degree of self-endangering would appear to apply to U-boats as compared with other types of vessels because of their exceptional vulnerability.
As to the second exception to rescue duty, namely, prejudice to the military mission, the U-boat is also subject to special conditions. It has no room to take guests aboard. Its supply of food, water, and fuel is limited and any considerable expenditure will prejudice its combat mission. Furthermore, it is typical for the U-boat that the combat mission may call for an unobserved attack and therefore exclude rescue duty. In order also to present an opinion about the tactics of the opposite side, I quote from the statement of Admiral Nimitz:
“In general U.S. submarines did not rescue enemy survivors if it meant an unusual additional danger for the submarine or if the submarine was prevented from further carrying out its mission.”
In the light of these principles I will briefly deal with rescue measures by U-boats until the autumn of 1942. The basic order was issued by the Naval Operations Staff on 4 October 1939, and specified rescue whenever possible from the military standpoint. This was temporarily restricted by Standing War Order 154. This order, issued in December 1939, applied to the small number of submarines at that time operating immediately off the British coast. It may be seen from the order itself that every paragraph deals with combat in the presence of enemy escort and patrol forces. The last paragraph therefore also deals only with this aspect and serves the warranted purpose of protecting submarine commanders against the dangers to which, under the existing circumstances, they would in every case expose their boats by rescue measures. When after the Norwegian campaign the scene of activity of the submarines gradually shifted to the open Atlantic, this order became outdated, and it was finally canceled in the autumn of 1940. In the period that followed, the German submarine commanders carried out rescue measures whenever they could assume responsibility from the military standpoint. This is known to the Tribunal from numerous specific examples cited here, contained both in the statements of submarine commanders submitted here and in the war diaries. This situation was changed through Admiral Dönitz’s order of 17 September 1942, in which he forbade rescue measures on principle. The decisive sentences are:
“The rescue of members of the crew of a ship sunk is not to be attempted. Rescue is contradictory to the most primitive demands of warfare, which are the annihilation of enemy ships and crews.”
It has been disputed by the Prosecution that this actually prohibits rescue. It looks upon this order as a hidden provocation to kill the shipwrecked, and it has gone through the press of the world as a command for murder. If any accusation at all has been refuted in this Trial, then it seems to me to be this ignominious interpretation of the order mentioned above.
How was this order brought on? Beginning with June 1942, the losses of German submarines through the Allied air force rose by leaps and bounds, and jumped from a monthly average of 4 or 5 during the first 6 months of 1942 to 10, 11, 13, finally reaching 38 boats in May 1943. Orders and measures from the command of submarine warfare multiplied in order to counter those losses. They were of no avail and every day brought fresh reports of air attacks and losses of submarines.
This was the situation when on 12 September it was reported that the heavily armed British troop transport Laconia with 1,500 Italian prisoners of war and an Allied crew of 1,000 men and some women and children aboard had been torpedoed. Admiral Dönitz withdrew several submarines from current operations for the purpose of rescuing the shipwrecked, no distinction being made between Italians and Allies. From the very start the danger of enemy air attacks filled him with anxiety. While the submarines during the following days devotedly rescued, towed boats, supplied food, and so forth, they received no less than three admonitions from the Commander to be careful, to divide the shipwrecked, and at all times to be ready to submerge. These warnings were of no avail. On 16 September one of the submarines displaying a Red Cross flag and towing life boats was attacked and considerably damaged by an Allied bomber; one lifeboat was hit and losses caused among the shipwrecked. Following this report the Commander sent three more radio messages with orders immediately to submerge in case of danger and under no circumstances to risk the boats’ own safety. Again without avail. In the evening of that day, 17 September 1942, the second submarine reported that during rescue actions it had been taken unawares and bombed by an airplane.
Notwithstanding these experiences, and in spite of the explicit order from Führer headquarters not to endanger any boats under any consideration, Admiral Dönitz did not discontinue rescue work, but had it continued until the shipwrecked were taken aboard French warships sent to their rescue. However, this incident was a lesson. Due to enemy air reconnaissance activity over the entire sea area, it was simply no longer possible to carry out rescue measures without endangering the submarine. It was useless to give orders over and over again to commanders to undertake rescue work only if their own boats were not endangered thereby. Earlier experiences had already shown that their human desire to render aid had led many commanders to underestimate the dangers from the air. Yet it takes a submarine with decks cleared at least one minute to submerge on alarm, while an airplane can cover 6,000 meters in that time. In practice this means that a submarine engaged in rescue action when sighting a plane has not time enough to submerge.
These were the reasons which caused Admiral Dönitz directly after the close of the Laconia incident to forbid rescue measures on principle. This was motivated by the endeavor to preclude any calculation on the part of the commander as to the danger of air attack whenever in individual cases he should feel tempted to undertake rescue work.
It is difficult to judge the actual effects of this order. From 1943 on about 80 percent of the submarines were fighting against convoys, where even without this order rescue measures would have been impossible. Whether or not some commander would have, without this order, again risked concerning himself with the lifeboats, nobody can tell with certainty. As is known, an order existed since the middle of 1942 to bring in as prisoners, if possible, captains and chief engineers. Over a period of almost 3 years this order was carried out not even a dozen times, which proves how high the commanders themselves estimated the danger to their boats in surfacing. On the other hand, nothing was more distressing for members of the crews of torpedoed ships than to be taken aboard a U-boat, because of course they knew that their chance of being rescued was much better in a lifeboat than on a U-boat which, with a probability of at least 50 percent, would not return to its base. Therefore, I arrive at the conclusion, as did Admiral Godt, that the Laconia order may have cost the lives of some Allied seamen just as it may have saved the lives of others. Be that as it may, in the face of the enormous losses by the enemy air forces the order forbidding rescue was justified. It was completely in line with the basic idea of the precedence of one’s own vessel and of one’s own task, as prevailing in all navies; a principle which I believe I have proved as commonly valid in view of existing British and American orders and practices.
How then can the Prosecution consider this order an “order to murder”? Grounds for this are said to be furnished by the discussion between Hitler and the Japanese Ambassador, Oshima, in January 1942, in which Hitler mentioned a prospective order to his U-boats to kill the survivors of ships sunk. This announcement, the Prosecution infers, Hitler doubtless followed up, and Admiral Dönitz carried it out by the Laconia order. Actually, on the occasion of a report on U-boat problems which both admirals had to make in May 1942, the Führer suggested that in future action should be taken against the shipwrecked, that is, to shoot them; Admiral Dönitz immediately rejected this sort of action as thoroughly impossible and Grossadmiral Raeder unreservedly agreed with him. Both admirals specified the improvement of torpedoes as the only permissible way to increase losses among the crews. In the face of the opposition of both admirals Adolf Hitler dropped his proposal, and following this report no order whatever was given concerning shipwrecked crews, let alone concerning the killing of the shipwrecked by shooting. The destruction of the crews through improved efficiency of the torpedoes is an idea which for the first time cropped up during this discussion in May 1942, and which recurs in later documents of the Naval Operations Staff. I must therefore express myself on the legality of such a tendency. According to classical international law the destruction of combatants constituted a legal aim of war actions, not however that of noncombatants.[[27]] In view of the development of the last wars one may be doubtful whether this classical theory still has any validity. I am inclined to regard the hunger blockade as the first important infringement of this theory, which by cutting off all food supply was aimed at the civilian population, therefore the noncombatants of a country. The victims of this during the first World War were estimated at 700,000 people.[[28]] Although this blockade was frequently acknowledged to be inadmissible according to international law,[[29]] it was nevertheless practiced, and therefore it amounts to an infringement of the principle of protection for noncombatants against war measures.[[30]]
The second great infringement was brought on by aerial warfare. I do not wish to discuss the unsolvable question of who started it, but only to state the fact that war from the air, at least during the two final years, was aimed against the civilian population. If in dozens of attacks on residential quarters of German cities thousands or tens of thousands of civilians were among the victims while soldiers numbered only a few dozen or a few hundred, then nobody can assert that the civilian population was not included in the target of the attack. The mass dropping of explosives and incendiary bombs on entire areas does not permit of doubt, and the use of the atomic bomb has produced final evidence thereof.
In view of the hundreds of thousands of women and children who in this manner miserably perished in their houses by being buried, suffocated, or burnt to death, I am surprised at the indignation of the Prosecution about the loss of about 30,000 men who lost their lives in war areas on ships which were armed and carried war material, and often enough bombs destined for German cities. Moreover, most of these men died in combat, that is, by mines, aircraft action, and especially in attacks on convoys, all actions which according to British conception, too, were lawful.
The German Naval Operations Staff regarded these men as combatants. The British Admiralty takes the opposite standpoint in its orders to the merchant navy. In this connection Oppenheim, the foremost British expert on international law, before the outbreak of the first World War still maintained that the crew should be put on the same level as combatants.[[31]] He points to the century-old practice, especially followed in Britain, of taking the crew of merchant ships prisoner of war. He find’s this principle confirmed in the 11th Hague Convention of 1907, and looks upon the crew of the merchant navy as potential members of the navy. The legal position in their defense against a warship is described by him as “entirely analogous to the position of the population of an unoccupied territory which takes up arms in order to combat invading troops.” It is well known that such a force is considered a combat unit. According to Paragraph 2 of the Hague Convention on Land Warfare, they are considered combatants irrespective of whether or not the individual actually makes use of weapons. Accordingly, Oppenheim also refused to make any distinction among the crew, between men who are enrolled in the enemy navy and men who are not.
If this interpretation was already valid before the first World War, it certainly was unassailable in the year 1942, at a time when there were no more unarmed enemy ships and when the neutrals who happened to enter the zone of operations were exclusively moving in enemy convoys, which made them, just like enemy ships, integral parts of the enemy forces. All of them had lost their peaceful character and were considered as being guilty of active resistance. Active resistance against acts of war is not permitted to any noncombatant in land warfare and results in his being punished as a franc-tireur. And in naval warfare should a ship’s crew be entitled to the combatant’s privileges, without suffering any of his disadvantages? Should a crew be permitted to participate in every conceivable act of war, even including the use of guns and depth charges, and yet remain noncombatant? Such an interpretation renders illusory the entire concept of a noncombatant. Nor does it make any difference whether or not only part of the crew has anything to do with the firing of the guns. The ship as an entity represents a fighting unit, and on board a merchant ship more people actually had something to do with the handling of weapons than on board a submarine. These men were trained under military supervision, they fired the guns along with gunners of the navy, and the use of their weapons was regulated according to the Admiralty’s orders.[[32]] The crews of ships were accordingly combatants and thus it was legitimate for the adversary to try to destroy them by the use of arms.
This explains at the same time the sentence about the destruction of ships and crews, which is considered by the Prosecution as a specific indication that the Laconia order bore the character of a murder order. There has been enough discussion concerning the meaning of this sentence as an argument for forbidding rescue work. It may, taken out of its context, give cause for misunderstanding. But whoever goes to the trouble of reading the entire order cannot misunderstand it. To me the decisive crime appears to be that, in accordance With its origin, it was never meant to be a murder order and was not interpreted as such by the commanders. This is proved by the declarations and statements of dozens of submarine commanders. From its context it could not have been interpreted as a murder order. In fact in the next paragraphs it was explicitly ruled that so far as possible certain members of the crew should be brought back as prisoners. Surely one must credit a military command with enough intelligence, when giving such a murder order at all, to refrain from additional orders to conserve a number of witnesses of its crime.
Contrary to the Prosecution, the British Admiralty clearly did not believe in such a murder order. Otherwise it would not have given orders to its captains and chief engineers to escape capture by German submarines by camouflaging themselves as plain sailors while in the lifeboats. According to the interpretation by the Prosecution, such an order would indeed have meant that the captain would have been killed by the submarine along with all the other members of the crew.
Furthermore, the Prosecution have quoted the order to attack so-called “rescue ships” as evidence of the intention to kill shipwrecked people. However, only the individual who is either in the water or in a lifeboat is shipwrecked. A shipwrecked combatant who is again on board a ship is nothing but a combatant, and accordingly the legitimate aim of an attack. I have already pointed out, during the hearing of evidence, the shooting down of German sea rescue planes with intent to kill the rescued airmen, in order to show that the enemy acted according to the same conception.
I shall discuss as briefly as possible the depositions of witnesses on which the Prosecution tries to base its interpretation of the Laconia order. In my opinion, the deposition of Oberleutnant zur See Heisig, as made here before the Tribunal, is irrelevant. His earlier affidavit is wrong, and we know why from the witness Wagner. Here, before the Tribunal, Heisig has explicitly denied that in Grossadmiral Dönitz’s address to the cadets of the submarine school in September 1942 there was any reference to the effect that shipwrecked people should be fired upon. Rather did he personally draw this conclusion from the passage that total war must be waged against ship and crew, with added reference to air bombing. His interpretation may be explained by the fresh impression of the bombing of Lübeck, which he had just experienced. The other listeners did not share this interpretation; in fact, it did not even occur to them. This is evident from the deposition of three persons who heard the address. The further assertion of Heisig, that an officer unknown to him had instructed him on an unknown occasion that the men should be ordered below deck when exterminating shipwrecked people, I consider as an improvisation of his imagination, which appears to be easily excited. If this had really been the case, then so astonishing an occurrence, which would have been in contradiction to all training principles of the Navy, must have made such an impression on a young officer that he would have retained some recollection of the full circumstances of such an instruction.
The testimony of Korvettenkapitän Möhle must be taken much more seriously, because he had—there is no doubt about it—at least hinted to a few submarine commanders that the Laconia order demanded, or at least approved of, the killing of shipwrecked. Möhle did not receive this interpretation either from Admiral Dönitz himself, nor from the Chief of Staff nor his chief assistant, Fregattenkapitän Hessler; that is to say, from none of the officers who alone would have been qualified to transmit such an interpretation to the chief of a flotilla.
How Möhle actually arrived at this interpretation has in my opinion not been explained by the Trial. He maintains that it was due to the fact that Korvettenkapitän Kuppisch from the staff of the Commander of U-boats had told him the story of U-386, a boat whose commander had been reprimanded for not having shot Allied airmen drifting in a rubber dinghy. This explanation of Möhle’s cannot be correct. It is proven beyond any doubt by the War Diary and by witnesses that the commander of U-386 had been reprimanded because he did not take on board the airmen concerned and bring them back. The whole affair concerning U-386, furthermore, took place a year after the Laconia incident in September 1943 and Korvettenkapitän Kuppisch, who was supposed to have told it, had already been killed in action as a U-boat commander in August 1943. It is not my task to try to explain how Möhle actually acquired his knowledge about the Laconia order. One thing at any rate has been proven, namely, that Admiral Dönitz and his staff had not caused this briefing to be given, nor did they know anything about it. Considering the frequent personal contacts between the U-boat commanders and the staff of the Commander of U-boats this can only be explained by the fact that the few commanders whom Möhle thus briefed did not take his words seriously.
Is Admiral Dönitz thus responsible for the interpretation of the Laconia order as given by Möhle? Criminal responsibility in the first place presupposes guilt, that is to say, possibility of foreseeing the result. Considering the close contact with his flotilla chiefs and commanders, for whom alone the Laconia order was intended, Admiral Dönitz could not foresee that a flotilla chief might give such an interpretation to that order without taking any steps to be enlightened by the Commander of U-boats. Such conduct is beyond anything that could reasonably be expected.
Therefore all guilt is excluded. Criminal responsibility requires another criterion, namely, that results shall be proven. This also is entirely lacking. The Prosecution have not even made a serious attempt to prove that any one of the commanders briefed by Möhle in that sense ever actually fired on shipwrecked crews. As far as we are informed, such a thing occurred only once in this war on the German side in the case of Kapitänleutnant Eck. It is significant that this case was presented not by the Prosecution, but by the Defense. For the conduct of Eck has nothing whatsoever to do with the Laconia order as the Prosecution desires to construe it. He was not concerned with the destruction of human lives but with the removal of wreckage and floats from which the Allied airplanes could deduce the presence of a German U-boat in the area. For this conduct he and two of his officers were sentenced to death, and thereby punished with a severity which less agitated times will no longer comprehend.
The two cases presented by the Prosecution, where shipwrecked crews allegedly were shot at, are so obviously unsuited to prove this accusation that I need not deal with them any further. The testimony about the sinking of the Noreen Mary bears the stamp of phantasy in various points, and in the case of the attack on the Antonica the intention to destroy shipwrecked people is out of the question because everything was over in 20 minutes and the night was dark.
I was in the fortunate position to be able to present to the Tribunal a compilation of the Naval Operations Staff concerning a dozen cases in which Allied forces had allegedly shot at German shipwrecked crews. It seems to me that every one of these instances is better than that of the Prosecution, and some appear rather convincing. I therefore attach all the more value to the sober attitude assumed by the Naval Operations Staff when transmitting their opinion on these cases to the Führer’s headquarters.
They point out that: (1) Part of the incidents occurred during combat operations; (2) shipwrecked men swimming in the water might easily be led to believe that a miss on other targets was aimed at them; (3) so far no written or verbal order for the use of arms against shipwrecked crews had been traced. I can only request that these principles be equally applied to the incidents presented by the Prosecution.
In the same written opinion to the Führer’s headquarters the Naval Operations Staff reject reprisals by destroying enemy shipwrecked; that was on 14 September 1942, 3 days before the Laconia order. Since the latter, as a radio order, came to the knowledge of the Naval Operations Staff, it would doubtlessly have been canceled in accordance with the opposite viewpoint just expressed to the Führer’s headquarters if it had been understood to be an order for the shooting of shipwrecked crews.
And now I am coming to the positive counterevidence against the opinion of the Prosecution. It consists in the first place of the number of rescued Allied sailors. This amounted, according to a survey by the British Minister of Transport in 1943, to 87 percent of the crews. Such a result is simply not compatible with an order for destruction. Furthermore, it has been established that Grossadmiral Dönitz in 1943, that is, after the Laconia order, rejected all consideration of action against shipwrecked crews.
In a written opinion given to the Foreign Office on 4 April 1943, a directive to the U-boats to take action against lifeboats or shipwrecked crews was considered impossible by the Naval Operations Staff, since that would go against the grain of every sailor. In June 1943 Grossadmiral Dönitz, on receiving reports from Korvettenkapitän Witt about British aviators having fired on shipwrecked crews of German submarines, most decidedly rejected the idea of attacking a foe rendered defenseless in combat, stating that this was incompatible with our principles of warfare.
Summing up, I am convinced that the assertion of the Prosecution that German submarines had received an order to murder shipwrecked men has been strikingly disproved. Grossadmiral Dönitz stated here that he would never have allowed the spirit of his submarine men to be endangered by mean acts. With losses ranging from 70 to 80 percent, he could only replenish his troops with volunteers if he kept the fight clean, in spite of its being tough. And if the Tribunal will recall the declaration of the 67 commanders in British captivity, it will have to admit that he created an attitude and morale which survived defeat.
I have endeavored to present to the Tribunal the most important facts supplemented by a number of legal considerations regarding naval warfare in order to clarify the most important problems to be discussed here from the point of view of the Defense. We are concerned with the examination of the behavior of admirals in naval warfare, and the question of what is permissible according to international law is intimately connected with what is necessary according to the military standpoint. Therefore, in examining this particular point of the Indictment, I deeply regret that the Charter of this Tribunal deprives the accused officers of a privilege guaranteed to them as prisoners of war by the Geneva Convention, namely, the passing of judgment by a military tribunal applying the laws and regulations binding on its own officers. According to Article 3 of the Charter, I am not allowed to question the competency of this Tribunal. I can therefore only request the Tribunal to make up for the unfairness that I see in the afore-mentioned article of the Charter by applying the same standards, where the military appreciation and moral justification of the actions of these German admirals is concerned, as the Tribunal would apply to admirals of their own countries. A soldier, out of practical knowledge of the procedure in warfare as applied not only by his own country but also by the adversary, is keenly sensitive to the dividing line between combat and war crimes. He knows that the interpretation of international law concerning what is allowed or forbidden in naval warfare is in the last resort governed by the interests of his country. An insular power like Great Britain, having long and vulnerable sea lanes, has always looked upon these questions from a different angle than the continental powers. The attitude of the United States from the renunciation of submarine warfare by the Root Resolution of 1922 to unrestricted submarine warfare against Japan in 1941, reveals how a change in strategic position can entail a change in legal evaluation. No one can tell to what extent a changed strategic position at sea will cause a modification of legal conception. No one can know to what degree the development of air forces and the efficacy of bombs will increasingly force navies under water and render obsolete all previous conceptions of submarine warfare.[[33]] For a naval officer these are obvious reflections, and they should prevent a man of law from settling controversial questions of law and policy pertaining to naval war at the expense of those whose professional duty it is to direct navies.
In the first World War German submarine warfare was accompanied by a storm of indignation. It seems significant to me today that the British historian, Bell, in a paper intended only for official use of the Foreign Office, judges the right to such indignation as follows:
“It is an old rule of military honor never to belittle the deeds of an enemy who has put up a stiff and brave fight. If this rule had been followed in England, the public would better appreciate the place which the war between submarines and commerce will occupy in the history of strategy and of war. It is unfortunate that the cries of terror as well as the unseemly insults of journalists were repeated by responsible people, with the result that the slogans ‘piracy’ and ‘murder’ entered the vocabulary and have engendered the corresponding feelings in the hearts of the people.”[[34]]
I must now treat the other points of the Indictment against Grossadmiral Dönitz which are not concerned with naval war. To begin with, there is the charge of preparation of aggressive wars. It is known how much contradiction this very accusation has aroused on the part of professional officers of probably all Allied countries. In answer to such attacks in public, Justice Jackson formulated for the press (The Stars and Stripes, European Edition, 5 December 1945) the ideas of the Prosecution regarding this subject as follows:
“I have made it clear that we do not prosecute these militarists because they served their country, but because they dominated it and led it into war. Not because they conducted the war, but because they have been driving to war.”
If this standard is used, then for the defense of Admiral Dönitz against the charge of preparing aggressive wars I need only point to the result of the evidence. At the beginning of the war he was a relatively young commander; his only task was the training and commanding of submarine crews; he did not belong to the General Staff in the meaning of the Indictment and did not participate in any of the addresses which were presented here as proof of war intentions. The charge that he had advocated the occupation of submarine bases in Norway is likewise disproved. The same applies to the allegation that in 1943 he had proposed an attack upon Spain in order to capture Gibraltar. The conquest of Gibraltar against the will of Spain was absolutely impossible and out of the question during the entire war, and especially so in 1943.
For Germany the war had already reached a stage of defense, even of dangerous setbacks, on all fronts at the time when Admiral Dönitz was appointed Commander-in-Chief of the Navy on 1 February 1943. This fact may be significant for his participation in the so-called conspiracy. The Prosecution is not very clear about the precise moment at which they want to fix the beginning of such participation. In the individual Indictment intimate connection with Hitler since 1932 is mentioned. This, however, is obviously an error. Admiral Dönitz did not become acquainted with Hitler until the autumn of 1934, on the occasion of the submission of a military report, and in the following years talked to him briefly and always only about military problems, altogether eight times, and never alone. Since, aside from this fact, the defendant never belonged to any organization which is accused of conspiracy by the Prosecution, I see no connection of any kind with this conspiracy prior to 1 February 1943.
All the more important is the question of the retroactive effects of joining the conspiracy, as has been illustrated by the British Prosecutor by the example of the perpetrators of railway sabotage. This idea of guilt, retroactive on past events, is very difficult for the German jurist to understand. The continental concept of law is reflected by the formulation of Hugo Grotius: “To participate in a crime a person must not only have knowledge of it but also the ability to prevent it.”[[35]]
While the entire legal concept of the conspiracy in itself represents a special creation of Anglo-Saxon justice in our eyes, this applies even more to the retroaction of the so-called conspiracy. A judgment laying claim to international validity, one which should be understood by the peoples of Europe and especially by the Germans, must be based upon generally recognized principles of law. This, however, is not the case regarding a retroactive guilt. Though such a legal construction may seem fitting in dealing with certain typical crimes, it seems to me entirely inapplicable in judging events such as are being discussed here.
Admiral Dönitz became the Commander-in-Chief of the Navy in the course of a normal military career entirely free of politics. The appointment was based upon the proposal of his predecessor, Grossadmiral Raeder, for whom his proven abilities in the guidance of U-boat warfare alone were the determining factor. Specific acceptance of the appointment was no more required than in the case of an appointment to any other military position. Admiral Dönitz entertained the sole thought, as any officer might well have done in a similar position, whether he would be equal to the task and whether he could accomplish it in the best interest of the Navy and of his people. All other considerations which the Prosecution apparently expected of him during this period, namely, as to the legitimacy of the Party Program and of the policy of the Party from 1922 on, as well as German internal and foreign policy since 1933, can be but fictitious; they have nothing to do with the facts. Fictions of such nature are not limited by time nor by reality. Is the responsibility for past measures on taking over a high position to extend only to acts of the present cabinet, or is it to extend to acts of former cabinets, and over what period? Is it to comprise only one’s own internal and foreign policy or is it to include one’s allies? Such considerations cannot be refuted logically; however, they lead to unacceptable results and show the impracticability of the idea of retroaction regarding the so-called conspiracy.
To measure by exact standards the participation in such a conspiracy is difficult enough, if events not of a criminal but of a military and political nature are involved. Of what meaning are such concepts as “voluntary accession” and “knowledge of the criminal plan” when in times of greatest danger an officer assumes the task to prevent the collapse of his nation’s maritime warfare?
Even the Prosecution seems to realize this. For, corresponding to their general idea, they attempt to link Admiral Dönitz with the conspiracy in a political way. This is accomplished by the assertion that he became a member of the Reich Cabinet by virtue of his appointment to the High Command of the Navy. This allegation is based upon the decree whereby the Commanders-in-Chief of the Army and of the Navy were invested with the rank of Reich Minister and upon the order of Hitler were to participate in Cabinet meetings.
It is evident that one is not actually a Reich minister merely by being invested with the rank of Reich minister. Also one is not a member of the Cabinet if one is only permitted to participate in it upon special orders. This obviously indicates that he was only to be consulted on technical matters, but never had authority to gain information about other departments, much less to give advice. One cannot, however, speak of a political task and a political responsibility without the existence of such an authority. For an activity as a minister all legal basis is lacking. According to the Reich Defense Law there existed for the entire Armed Forces but one minister, the Reich War Minister. This post remained unoccupied after the resignation of Field Marshal Von Blomberg. The business of the ministry was conducted by the Chief of the High Command of the Armed Forces. A new ministry was not created either for the Army or for the Navy. The Commanders-in-Chief of the Army and of the Navy therefore would have had to be ministers without portfolio. Since, however, they each headed a department, namely, the Army and the Navy, such an appointment would have constituted a contradiction to all legal customs of the State. The countersigning of all laws in which the minister participates according to his jurisdiction must be considered the basic criterion of all ministerial activity. There exists not a single law which was countersigned by the Commander-in-Chief of the Navy. I have demonstrated this to the Tribunal by the example of the Prize Ordinance. That is to say that, even applying the legal standards of a democratic system, the Commander-in-Chief of the Navy cannot be designated as a member of the Reich Cabinet, because he lacked all authority of participation in legislative acts and every collective responsibility for policies assumed. His task was, and remained, a military one even though for reasons of etiquette he was put on an equal basis in rank with other Reich ministers.
The Prosecution themselves realized that a Reich Government in the constitutional sense no longer existed during the war, and consequently stated that the actual governing was carried out by those who participated in the situation conferences at the Führer’s headquarters. As all witnesses examined here stated, we are concerned here with events of a purely military nature, where incoming reports were presented, military measures discussed, and military orders issued. Questions of foreign policy were only very rarely touched upon if they had any connection with military problems; they were, however, never discussed and no decision was rendered on them in these Führer conferences on the situation. Internal policy and the security system were never on the agenda. Insofar as nonmilitary persons participated, they were attendants or listeners who gathered information for their respective departments.
The Reichsführer SS or his deputy were present for the command of the Waffen-SS, and during the last year of war also for the Reserve Army. Admiral Dönitz always participated in these Führer conferences when he was at the Führer’s headquarters. Notes taken down by whoever accompanied him on all these meetings and discussions of the Commander-in-Chief are all in the possession of the Prosecution. As the Prosecution has not presented a single one of these notes from which it would appear that the Commander-in-Chief of the Navy participated in reporting on or in discussing and deciding affairs of a political nature, one can assume that such notes do not exist.
Thus the testimony of witnesses has been confirmed according to which the Führer conferences had nothing whatever to do with governing in a political sense, but were exclusively an instrument of the military leadership. Therefore, an over-all responsibility of Grossadmiral Dönitz for all events that occurred since 1943, which in the course of this Trial have been designated as criminal, certainly does not exist. Consequently, I shall deal only with those individual allegations by which the Prosecution tries directly to connect Admiral Dönitz with the conspiracy. I believe I am all the more justified to proceed in that manner, as a short time ago the Tribunal refused the cross-examination of witnesses in the Katyn case with the argument that no one was accusing Admiral Dönitz in connection with this case. I conclude, therefore, that at any rate in the eyes of the Tribunal he is only accused of such cases wherein he allegedly directly participated.
To begin with, this does not apply to the Führer’s order for the extermination of sabotage Commandos, dated 18 October 1942. The Prosecution has tried to establish that this order had been presented to Admiral Dönitz in detail, together with all possible objections, shortly after his assumption of the position of Commander-in-Chief of the Navy. It has failed to establish this assertion. In fact Dönitz, as he himself admits, did read or have presented to him the order in question in the autumn of 1942 in his capacity of Commander of U-boats, and in the same form in which the front-line commanders received it.
I do not wish to speak here of the circumstances which led to objections against this order on the part of the High Command of the Armed Forces. Indeed, all these circumstances could not be discernible to one who received this order at the front. For such a man it was a matter of reprisal against saboteurs who seemed to be soldiers, but did not fight according to the regulations which are binding upon soldiers. Whether such reprisals were admissible at all according to the Geneva Convention, and to what extent, could not be judged by, nor did that come within the competence of, the recipient of the order. Every superior officer, at any rate, probably recognized that the order not to grant any pardon, and to hand over such persons in certain cases to the SD, was in itself an infringement of the rules of war. However, since the essence of any reprisal is to avenge a wrong on the part of the enemy with a wrong on one’s own part, this does not prove anything concerning the legitimacy or illegitimacy of the reprisal order. If no one but the leadership of the State is competent to order reprisals, then hundreds or thousands of German officers cannot be required today to have considered themselves also competent, and to have been presumptuous enough to verify orders whose actual and legal basis was entirely unknown to them. In this case the principle prevails, at least for the front-line commanders, that the subordinate may, when in doubt, rely on the order as given.[[36]]
Now, the Prosecution seems to be of the opinion that Admiral Dönitz a few months later, when he had become Commander-in-Chief of the Navy, had the opportunity and also the obligation to inform himself as to the basis of the Commando Order. This conception fails to appreciate the duties of a Commander-in-Chief of the Navy. He has to wage naval war. The whole German naval war, especially submarine warfare, in the spring of 1943, owing to huge losses inflicted by the enemy air force, was on the verge of collapse. These were the worries with which the new Commander-in-Chief had to cope, in addition to an abundance of new problems concerning the Navy which were coming up. How can one require such a man as in the quietest of times to cope with an order of remote date, which had nothing whatever to do with naval warfare? On the contrary, a special paragraph explicitly excluded prisoners taken during naval operations.
A word or two on the channels of command. The naval units were under the control of the Naval Operations Staff only in those matters which belonged to the duties of the Navy, that is to say, naval warfare and coastal defense by artillery. Concerning so-called territorial questions they were not subordinate to the Naval Operations Staff but to the Armed Forces commander of the theater of war in which their basis was established. Orders concerning such measures of war on land were given without collaboration on the part of the Naval Operations Staff and their execution was not reported to them. Just as hardly anyone can think seriously of holding a general responsible for German submarine warfare, just as little, in my opinion, does it seem justified to hold an admiral responsible for orders given in land warfare.
Mr. President, I have come to the end of a section.
THE PRESIDENT: Certainly. We will break off.