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]]