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.