[_Turning to the defendant._] Did you hear of any qualification of this
view which was arrived at on considerations of foreign politics? Did you
hear anything about that?
DÖNITZ: No, I can only repeat that I saw this document here for the
first time.
SIR DAVID MAXWELL-FYFE: I see. Well now, I would like you, just before
we go on to the question, to look at Page 19 of the English document
book, Page 49 of the German.
My Lord, the whole of the treaty, which is very short, is set out there.
My Lord, I have the formal copy if Your Lordship would like to see it,
but it is set out in these two paragraphs.
[_Turning to the defendant._] You see:
“1. In action with regard to merchant ships, submarines must
conform to the rules of international law to which surface
vessels are subjected.
“2. In particular, except in the case of persistent refusal to
stop on being duly summoned or of active resistance to visit or
search, a warship, whether a surface vessel or submarine, may
not sink or render incapable of navigation a merchant vessel
without having first placed passengers, crew, and ship’s papers
in a place of safety. For this purpose the ship’s boats are not
regarded as a place of safety unless the safety of the
passengers and crew is assured in the existing sea and weather
conditions by the proximity of land, or the presence of another
vessel which is in position to take them on board.”
I had better remind you of that because I have some questions to put to
you upon it.
Would you turn over the page and look at the foot of Page 20 in the
English document book—it is either Page 50 or 51 in the German document
book—where there are some figures set out.
Have you got the page?
DÖNITZ: Yes, I have read it.
SIR DAVID MAXWELL-FYFE: You read it. You see that it says in the two
sentences before:
“In a certain number of early cases the German commander allowed
the crew of the merchant vessel to get clear; and he even made
some provision for them before he destroyed the vessel. Such
destruction was in accordance with Article 72 of the Prize
Ordinance; and therefore, for the purpose of this paper, the
Germans have been given the benefit of the doubt in such cases.”
The following are the figures on record. This is for the first year of
the war:
“Ships sunk: 241.
“Recorded attacks: 221.
“Illegal attacks: 112. At least 79 of these 112 ships were
torpedoed without warning. This does not, of course, include
convoy ships.”
I wanted you to be quite clear, Defendant, that it excludes, first of
all, ships where any measures had been taken for the safety of the crew
and secondly, it excludes convoy ships.
Now, do you dispute these figures in any way, that there were 79 attacks
without warning in the first year of the war?
DÖNITZ: Yes, I do. These figures cannot be checked. Yesterday I stated
that in consequence of the use of arms by ships we had to take other
measures. So I cannot check whether this report, which for other reasons
looks very like propaganda to me, takes into consideration the behavior
of the crews and their resistance, _et cetera_. That is to say, it is
impossible for me to check these figures or to say on what they are
based. At any rate, the German point of view was that it was legal
considering that the ships were armed and that they transmitted
intelligence—were part of an intelligence organization—and that from
now on action would be taken against these ships without warning. I have
already mentioned the fact that England acted in exactly the same way,
and so did other nations.
SIR DAVID MAXWELL-FYFE: I am going to ask you some questions about that,
but let’s just take one example. Was any warning given before the
_Athenia_ was sunk?
DÖNITZ: No, I have already stated that that was a mistake; the _Athenia_
was taken for an auxiliary cruiser. The sinking of an auxiliary cruiser
without warning is quite legal. I have also stated already that on a
thorough examination of the case, I have found that the commander should
have been more cautious and that is why he was punished.
SIR DAVID MAXWELL-FYFE: I just want to get your view, Defendant. Did it
ever occur to you that in the case of a merchant ship, if it were sunk
without warning, it meant either death or terrible suffering to the crew
and to these merchant seamen? Did that ever occur to you?
DÖNITZ: If merchant ships...
SIR DAVID MAXWELL-FYFE: Just answer the question.
DÖNITZ: If a merchant ship acts like a merchant ship, it is treated as
such. If it does not, then the submarine must proceed to attack. That is
legal and in accordance with international law. The same thing happened
to the crews of German merchant ships.
SIR DAVID MAXWELL-FYFE: That isn’t what I asked you. I wanted to know,
because it is important on some of these points: Did it ever occur to
you, did you ever consider, that you were going to cause either death or
terrible suffering to the crews of merchant ships who were sunk without
warning?
Just tell us, did it occur to you or didn’t it?
DÖNITZ: Of course; but if a merchant ship is sunk legally, that is just
war, and there is suffering in other places, too, during the war.
SIR DAVID MAXWELL-FYFE: Do you view with pride of achievement the fact
that 35,000 British merchant seamen lost their lives during the war? Do
you view it as a proud achievement or do you view it with regret?
DÖNITZ: Men are killed during wars and no one is proud of it. That is
badly expressed. It is a necessity, the harsh necessity of war.
SIR DAVID MAXWELL-FYFE: Well, now, just look at Page 29 in the English
document book, or Page 58 in the German, whichever you care to look at.
It is Document Number C-191, Exhibit GB-193. This is 22 September, 19
days after the beginning of the war.
“Flag Officer, U-boats, intends to give permission to U-boats to
sink without warning any vessel sailing without lights.
“Previous instructions, permitting attacks on French war and
merchant ships only as a defensive measure, purely French or
Anglo-French convoys only north of the latitude of Brest and
forbidding attacks on all passenger ships, give rise to great
difficulties to U-boats, especially at night. In practice, there
is no opportunity for attacking at night, as the U-boat cannot
identify the target, which is a shadow, in a way that entirely
obviates mistakes being made. If the political situation is such
that even possible mistakes must be ruled out, U-boats must be
forbidden to make any night attacks in waters where French and
English naval forces or merchant ships may be moving. On the
other hand, in sea areas where only English units are to be
expected, the measure desired by the Flag Officer, U-boats, can
be carried out. Permission to take this step is not to be given
in writing, but need merely be based on the unspoken approval of
the Naval Operations Staff. U-boat commanders would be informed
by word of mouth”—and note the last line—“and the sinking of a
merchant ship must be justified in the War Diary as due to
possible confusion with a warship or an auxiliary cruiser.”
Now, just tell me—take your choice—do you consider that sailing
without lights is either persistent refusal to stop on being duly
summoned or active resistance to visit and search, within the Treaty?
Which of either of these things do you consider it to be?
DÖNITZ: If a merchant ship acts like a warship...
SIR DAVID MAXWELL-FYFE: First of all, you must answer my question, if
the Tribunal does not rule otherwise; and then you can give your
explanation. My question is this: Do you consider that sailing without
lights is either persistent refusal to stop or active resistance to
visit and search? Do you consider it to be either one or the other, or
both of these things? Do you?
DÖNITZ: The question is not correctly expressed, because we are dealing
with a certain operational area in which British and French...
THE PRESIDENT: Defendant, you will answer the question, please.
DÖNITZ: I beg your pardon?
SIR DAVID MAXWELL-FYFE: Do you consider that sailing without lights is
either persistent refusal to stop on being duly summoned, which is one
of the matters in the Treaty, or active resistance to visit and search,
which is the other matter set out in the Treaty? Now, do you consider
that sailing without lights is either or both of these matters mentioned
in the Treaty?
DÖNITZ: If a merchant ship sails without lights, it must run the risk of
being taken for a warship, because at night it is not possible to
distinguish between a merchant ship and a warship. At the time the order
was issued, it concerned an operational area in which blacked-out troop
transports were traveling from England to France.
SIR DAVID MAXWELL-FYFE: Your answer is that it is not covered by the
Treaty, but by one of the matters in the Treaty; but your explanation
was that you thought you were entitled to torpedo without warning any
ship that might be mistaken for a warship. That is your answer, is it?
DÖNITZ: Yes.
SIR DAVID MAXWELL-FYFE: Why didn’t the Defendant Von Ribbentrop and all
these naval advisers stipulate for that when Germany adhered to this
Treaty, if you were going to interpret it in that way? Were you ever
asked about it before Germany adhered to this Treaty in 1936?
DÖNITZ: I was not asked before Germany signed this Treaty; Germany
adhered to the Treaty in practice, as I know very well, until
countermeasures were introduced; and then I received orders to act
accordingly.
SIR DAVID MAXWELL-FYFE: Just let us go through this document and see if
you can help me perhaps a little more on some other points. Why was this
action to be based on the unspoken approval of the naval war staff? Why
hadn’t the naval war staff the courage to speak its approval in an
ordinary order if it was all right?
DÖNITZ: Yes; the paper you are showing me is a note or memorandum made
by a young official on the Naval Operations Staff. In fact—it was the
idea of that particular officer on the Naval Operations Staff; and as I
have pointed out here, I did not know of the matter—in actual fact, the
Naval Operations Staff never gave me such an order. The contents of that
paper are fiction.
SIR DAVID MAXWELL-FYFE: No, of course, they weren’t to issue an order at
all. You see, this states with great frankness that you were to act on
the unspoken approval of the naval war staff, so that the naval war
staff could say, as you have said now, “We didn’t issue an order;” and
the junior officers would be acting on an unspoken word, and I want to
know—you have been Commander-in-Chief of the German Navy—why is it
done in this way, why is it done by unspoken words, on oral orders?
DÖNITZ: No, precisely that is not correct. That was this young officer’s
idea. The order which I received from the Naval Operations Staff stated
explicitly that blacked-out vessels could be sunk in this area where
English transports were traveling from England to France. So, you see,
it contained none of the things stated in this memorandum. There is no
doubt that the section chief and likewise the Chief of the Naval
Operations Staff refused and rejected that entirely impossible idea and
gave me that short and explicit order.
SIR DAVID MAXWELL-FYFE: Are you suggesting to the Tribunal that on these
vitally important points—“unspoken approval of the war staff, U-boat
commanders informed by word of mouth”—that a young staff officer is
allowed to put in an incorrect memorandum and get away with it
uncorrected? Is that the way, is that the state of efficiency of the
staff of the German Navy?
DÖNITZ: No, that is a misunderstanding. It actually has been corrected.
That is a note submitted by the official on the Naval Operations Staff,
of which his superiors on the Naval Operations Staff did not approve. It
was corrected. There was no unspoken agreement but an explicit and clear
order to myself; so that young officer’s idea had already been turned
down by the Naval Operations Staff itself.
SIR DAVID MAXWELL-FYFE: You know that the original is initialed by
Admiral Von Friedeburg?
DÖNITZ: No, that is quite wrong, that is impossible. “Fd” is written
there—that means Fresdorf. That was Kapitänleutnant Fresdorf. He was an
official on the Naval Operations Staff—not Friedeburg. He was a young
officer in the first department of the Naval Operations Staff. These are
all things which I learned of here. His chief, Admiral Wagner, had
condemned it already. It was not Friedeburg, but Fresdorf. That is the
way this young officer thought about it, but actually a definite order
was issued without these things.
SIR DAVID MAXWELL-FYFE: Take the next bit. “The sinking of a merchant
ship must be justified in the War Diary as due to possible confusion
with a warship or auxiliary cruiser.” Do you agree with faking the
records after you have sunk a ship?
DÖNITZ: No, and it was not done. That also belongs to the same
category—the ideas of that officer. No order for that has ever been
given. The order of the Naval Operations Staff issued to me in that
connection has been submitted and that is a clear and concise order,
without the things mentioned here.
SIR DAVID MAXWELL-FYFE: Of course, you appreciate that these things,
according to this memorandum, are to be stated without orders. There has
to be no order because an order might come out—because if it is done
without an order it won’t come out. Are you suggesting—you are putting
it on the shoulders of this lieutenant commander, that he invented these
three damning facts: Unspoken approval, oral instructions to commanders,
and faking the orders? You say that these existed only in the mind of a
Kapitänleutnant? Is that what you are telling the Tribunal?
DÖNITZ: Yes, yes, of course, because the clear, concise order was given
by the Naval Operations Staff to me in which these things were not
mentioned. And quite as clearly I passed my orders on. That is how it
is. This memorandum, or these ideas of that officer, was already
disapproved by his chief of department in Berlin. A clear order was
given to me, however, and there was nothing in it about a War Diary and
all these things mentioned here. That order is available.
SIR DAVID MAXWELL-FYFE: Well, we shall be able to ask, I understand,
Admiral Wagner as to where this Kapitänleutnant got hold of these ideas,
is that so, or whether he made them out? Is that what you are telling
us, that Wagner will be able to deal with this, will he?
DÖNITZ: Admiral Wagner ought to know all about it, because this official
was in his department in Berlin.
SIR DAVID MAXWELL-FYFE: I see. Well, if you put that onto the
Kapitänleutnant, let’s pass on to another point. In mid-November...
DÖNITZ: I am not laying any blame on anybody, but they are ideas of a
young officer which were already disapproved of by his chief of
department. I am blaming no one. I do not accuse anybody.
SIR DAVID MAXWELL-FYFE: I see. I thought you were.
Well, now, let’s pass to another point. In mid-November of 1939, Germany
gave warning that she would sink, without warning, merchant ships, if
armed. Don’t you know that before that warning—if you want to see the
point you will find it on Page 21 of the English document book or 51 to
52 of the German document book. It is just before the break, about five
lines.
“By the middle of November, a score of”—that is 20—“British
merchantmen had already been illegally attacked by gunfire or
torpedoed from submarines.”
THE PRESIDENT: Which page did you say?
SIR DAVID MAXWELL-FYFE: My Lord, Page 21, about ten lines before the
break.
[_Turning to the defendant._] You see, what I am suggesting, Defendant,
is that the statement, the warning, that you would sink merchant ships,
if armed, made no difference to the practice you had already adopted of
sinking unarmed ships without warning.
DÖNITZ: In the beginning of October, if I remember correctly, I received
the order or the permission, the legal permission, to sink armed
merchantmen. From that moment on I acted accordingly.
SIR DAVID MAXWELL-FYFE: Just tell me: Was it your view that the mere
possession of arms, a gun, on the merchant ship, constituted active
resistance to visit or search within the Treaty; or was this a new
addition for the guidance of German U-boat warfare which you were
introducing completely independent of the Treaty?
DÖNITZ: It is a matter of course that if a ship has a gun on board she
will use it. It would have been a one-sided obligation if the submarine,
in a suicidal way, were then to wait until the other ship fired the
first shot. That is a reciprocal agreement, and one cannot in any
circumstances expect the submarine to wait until it gets hit first. And,
as I said before, in practice the steamers used their guns as soon as
they came within range.
SIR DAVID MAXWELL-FYFE: But you know, the arming of merchant ships,
Defendant, was well known in the last war. It was well known for 20
years before this Treaty was signed. And you will agree with me, won’t
you, that there is not a word in the Treaty forbidding the arming of
merchant ships? Why didn’t you give these ships the opportunity of
abstaining from resistance or of stopping? Why did you go in the face of
the Treaty which you had signed only 3 years before? That is all I want
to know. If you can’t tell me, if you say it is a matter for argument, I
will ask Admiral Raeder. At the moment, will you tell us, or can you
tell us, why didn’t you keep to the Treaty?
DÖNITZ: That was not an infringement of the Treaty. I am not an expert
on international law. I am soldier; and I acted according to my military
orders. Of course, it is suicide for a submarine to wait till it
receives the first hit. It goes without saying that the steamer is not
carrying guns for fun, but to make use of them. And I have already
explained what use was made of them.
SIR DAVID MAXWELL-FYFE: Well, now, just one other matter, because I must
cover these points in view of your evidence.
Did you order your commanders to treat the use of wireless as active
resistance? Did you consider that the use of wireless for merchant ships
was active resistance within the Treaty?
DÖNITZ: On 24 September, the Naval Operations Staff’s order...
SIR DAVID MAXWELL-FYFE: No, no, just answer the question first,
Defendant, and then give your explanation. I said that to you quite 20
times yesterday and today. Did you consider the use of wireless by
merchant ships as active resistance?
DÖNITZ: It is generally laid down by international law that a merchant
ship can be fired on if it makes use of its wireless when stopped. That
is also in the French Ordinance, for instance. In order to avoid more
severe measures we had not, as a rule, done so yet. Not until the end of
September, when I received a definite order or permission to do so, was
that rule, which is in accordance with international law, put into
effect.
SIR DAVID MAXWELL-FYFE: Tell me, didn’t the German Admiralty know in
1936 that most merchantmen had wireless?
DÖNITZ: Of course, but according to the International Conference on
International Law—I happen to know this because it appeared as a
footnote in the Prize Ordinance—according to this conference of 1923,
they were not allowed to use wireless when being stopped. That is
international law and is found in all instructions. I know for certain
that the French instructions say this too.
SIR DAVID MAXWELL-FYFE: At any rate again, the German Admiralty and the
German Foreign Office did not make any mention of use of wireless in
this Treaty.
What I am suggesting—I want to put it quite clearly to you—is that you
were not bothering about this Treaty at all in any case where it didn’t
suit you in the operations in this war.
DÖNITZ: That is not true.
SIR DAVID MAXWELL-FYFE: Now, let’s pass on to neutrals. I haven’t heard
you suggest that you were dealing with neutrals because they were armed,
but let’s take a concrete example.
“On 12 November 1939...”
DÖNITZ: I have never said that neutrals were armed.
SIR DAVID MAXWELL-FYFE: That is what I thought. Well, we will rule that
out. We will take the example.
My Lord, it is given on Page 20 of the document book, and in the middle
of the middle paragraph (Exhibit Number GB-191).
[_Turning to the defendant._]
“On 12 November, the Norwegian _Arne Kjode_ was torpedoed in the
North Sea without warning at all. This was a tanker bound from
one neutral port to another.”
Now, Defendant, were you classing tankers bound from one neutral port to
another as warships; or for what reason was that ship torpedoed without
warning? The master and four of the crew lost their lives. The others
were picked up after many hours in an open boat. Why were you torpedoing
neutral ships without warning? This is only the 12th of November in the
North Sea, a tanker going from one neutral port to another.
DÖNITZ: Well, the submarine commander in this case could not see, first
of all, that the ship was traveling from one neutral port to the other,
but this ship...
SIR DAVID MAXWELL-FYFE: Therefore...
DÖNITZ: No, not for that reason; no. But that ship was heading for
England, and he confused it with an English ship. That is why he
torpedoed it. I know of that case.
SIR DAVID MAXWELL-FYFE: You approve of that action by the submarine
commander?
DÖNITZ: No; that is an assertion made by yourself and it is in practice
refuted by our clean submarine warfare and by the fact that it was done
by mistake.
SIR DAVID MAXWELL-FYFE: When in doubt, torpedo...
DÖNITZ: That is one of the cases...
SIR DAVID MAXWELL-FYFE: Don’t you approve of that: when in doubt,
torpedo without warning? Is that your view?
DÖNITZ: No, no; that is merely what you assert. If one or two instances
of mistakes are found in the course of 5½ years of clean submarine
warfare, it proves nothing; but it does contradict your assertion.
SIR DAVID MAXWELL-FYFE: Yes. Well, now, let’s look at your clean U-boat
warfare, if you want. Will you turn to Page 30 of the English book or
Page 59 to 60 of the German book.
Now, the first of these—this is the note on the intensification of
U-boat warfare. You say that on the directive of the Armed Forces High
Command of 30 December—this is on the 1st of January 1940:
“...the Führer, on report by the C-in-C Navy”—that is the
Defendant Raeder—“has decided: (a) Greek merchant vessels are
to be treated as enemy vessels in the zone around Britain
declared barred by the U.S.A.”
There is a mistake, My Lord, in the translation. You see it says
“blockaded by the U.S.A. and Britain.” The proper translation should be
“in the zone around Britain declared barred by the U.S.A.”
Now, Defendant, I don’t want to make any bad point, at any rate
intentionally. Were you including Greek ships because you believed that
most of the Greek merchant navy was on British charter, was being
chartered by Britain? Was that the reason?
DÖNITZ: Yes. That was probably why the Naval Operations Staff gave the
order, because of the Greek fleet sailing in England’s service. I
assumed that those were the reasons of the Naval Operations Staff.
SIR DAVID MAXWELL-FYFE: Assumed that was the reason. I do not want to
occupy time on the point. What I want to know is this: Did that mean
that any Greek ship in these waters would be sunk without warning?
DÖNITZ: Yes. It says here that they were to be treated like enemy ships.
SIR DAVID MAXWELL-FYFE: In sum, then, that means that a Greek
merchantman from then on would be sunk without warning if it came into
the zone around the British coast.
Now, you mentioned the Bristol Channel, and you have given your
explanation of the next sentence. You say all ships may be attacked
without warning. For external consumption, these attacks should be given
out as hits by mines.
I just want to get it clear from you. You are not suggesting that the
reason of the Naval High Command was to conceal the maze of operations
of the U-boats; the reason was to avoid trouble with neutrals whose good
will you wanted to keep, was it not?
DÖNITZ: I already stated my position on that yesterday. These are
matters connected with the political leadership and I know nothing about
them. I myself, as Commander of U-boats, looked at them only from the
angle of military advantage or expediency, just as England did in
similar cases. What the political reasons may have been, I cannot say.
SIR DAVID MAXWELL-FYFE: That is my whole suggestion to you, you know,
Defendant, that you were acting on the military necessity stated in that
memorandum of the Naval Command that the maximum damage to England could
only be achieved with unrestricted use of arms without warning. But let
us just look at the next one now.
DÖNITZ: There were certain areas which neutrals had been warned not to
cross. I stated yesterday that the same procedure was followed in
English operational areas. If a neutral in spite of these warnings
entered those areas, where military actions were constantly being
carried on by one side or the other, it had to run the risk of suffering
damage. Those are the reasons which induced the Naval Operations Staff
to issue these orders.
SIR DAVID MAXWELL-FYFE: As you mentioned that, I shall deal first with
your areas. Your zone, which is published, was from the Faroes to
Bordeaux and 500 miles west of Ireland. That is, your zone was 750,000
square miles; isn’t that right? Your zone around Britain was from the
Faroes to Bordeaux, and 500 miles west of Ireland?
DÖNITZ: Yes, that is the operational area of August 1940.
SIR DAVID MAXWELL-FYFE: Yes, of August 1940.
DÖNITZ: And it is in accord in extent with the so-called combat zone
which America forbade her merchant ships to enter.
SIR DAVID MAXWELL-FYFE: You say it is in accord. Let us just look at it
and see what the two things were. The United States at that time said
that its merchant ships were not to come into that zone. You said that
if any merchant ship came into that zone, 750,000 square miles in
extent, none of the laws and usages of war applied, and that ship could
be destroyed by any means you chose.
That was your view, was it not?
DÖNITZ: Yes, that is the German point of view in international law,
which was also applied by other nations, that operational areas around
the enemy are admissible. I may repeat that I am not a specialist in
international law but a soldier, and I judge according to common sense.
It seems to me a matter of course that an ocean area, or an ocean zone,
around England could not be left in the undisturbed possession of the
enemy.
SIR DAVID MAXWELL-FYFE: I do not think you are disputing it at all; but
I want to get it quite clear. It was your view that it was right that if
you fixed an operational zone of that extent, any neutral ship—and you
agree that it is a neutral ship—coming unarmed into that zone could be
destroyed by any means that you cared to use? That was your view of the
way to conduct a war at sea; that is right, is it not?
DÖNITZ: Yes; and there are plenty of British statements which declare
that in wartime—and we were at war with England—one cannot permit
neutrals to enter and give aid to the belligerents, especially if they
had previously been warned against doing so. That is quite in accordance
with international law.
SIR DAVID MAXWELL-FYFE: We will discuss the matter of law with the
Tribunal. I want to get at the facts.
That is the position which you adopt? And equally, if you found a
neutral vessel outside the zone using its wireless, you would treat it
as if it were a ship of war of a belligerent power, would you not? If a
neutral vessel used its wireless after seeing the submarine, you would
treat it as a ship of war of a belligerent power, would you not?
DÖNITZ: Yes, according to the regulations of international law.
SIR DAVID MAXWELL-FYFE: I see. As I say, the matters of law rest with
the Tribunal. I am not going to argue these with you. But, apart
altogether from international law, did it ever strike you that that
method of treating neutral ships was completely disregarding the life
and safety of the people on the ships? Did that ever strike you?
DÖNITZ: I have already said that the neutrals had been warned not to
cross the combat zones. If they entered the combat zones, they had to
run the risk of suffering damage, or else stay away. That is what war
is. For instance, no consideration would be shown on land either to a
neutral truck convoy bringing ammunition or supplies to the enemy. It
would be fired on in exactly the same way as an enemy transport. It is,
therefore, quite admissible to turn the seas around the enemy’s country
into a combat area. That is the position as I know it in international
law, although I am only a soldier.
SIR DAVID MAXWELL-FYFE: I see.
DÖNITZ: Strict neutrality would require the avoidance of combat areas.
Whoever enters a combat area must take the consequences.
SIR DAVID MAXWELL-FYFE: I see. That is your view? I do not think it
could possibly be put more fairly.
DÖNITZ: And for that reason the United States explicitly prohibited
entry into these zones in November, because it refused to enter the
combat zone.
SIR DAVID MAXWELL-FYFE: In your view, any neutral ship which entered a
zone of 750,000 square miles around Britain was committing an un-neutral
act and was liable to be sunk without warning at sight. That is your
view of how war at sea should be conducted; that is right, is it not?
DÖNITZ: Yes. Special lanes were left open for the neutrals. They did not
have to enter the combat area unless they were going to England. Then
they had to run the risk of war.
SIR DAVID MAXWELL-FYFE: I just want you to tell me, if you will look
back to Document C-21; that is, on Page 30 of the English book and Pages
59 to 60 of the German, you see that in all these cases—you take the
one in Paragraph 2, Page 5:
“Conference with the Chief of Naval Operations Staff”—on 2
January; that was the “intensified measures” in connection with
the “Case Yellow,” that is, the invasion of Holland and
Belgium—“the sinking by U-boats... without any warning, of all
ships in those waters near the enemy coasts in which mines can
be employed.”
Why, if, as you have just told the Tribunal several times, you were
acting in accordance with what you believe to be international law, why
did you so act only in areas where mines could be employed?
DÖNITZ: I have already explained that that was a question not of
legality but of military expediency. For military reasons I cannot give
the enemy explicit information as to the means of combat I am using in
an area which may be mined. You operated in the same way. I remind you
of the French danger zone which was declared, corresponding to the mined
areas around Italy. You did not state which weapons you were using,
either. That has nothing to do with legality. That is purely a question
of military expediency.
SIR DAVID MAXWELL-FYFE: You see, I think you will appreciate that the
point that I am putting to you is this: That you were pretending to
neutrals that you were acting in accordance with the London Treaty,
whereas you were actually acting not in accordance with the Treaty, but
in accordance with instructions you laid down for yourself, based on
military necessity.
What I am suggesting to you is that what the Naval High Command was
doing was pretending to, and getting the advantage fraudulently of
appearing to, comply with the Treaty. And that, I suggest, is the
purpose of these orders that you would only do this where mines could be
laid. Isn’t that what was in your mind?
DÖNITZ: It is not true that we tried to fool the neutrals. We warned the
neutrals explicitly that combat actions were going on in these
operational areas and that if they entered they would suffer damage. We
pretended nothing; we told them explicitly: “Do not enter these zones.”
England did the same.
THE PRESIDENT: Sir David, doesn’t the next sentence bear upon that?
SIR DAVID MAXWELL-FYFE: Yes, Your Lordship; I am very much obliged to
Your Lordship.
[_Turning to the defendant._] Would you look at the next sentence in
II-1, where it says the following?
“By the present order, the Navy will be authorized, in keeping
with the general intensification of the war, to sink by U-boats,
without any warning, all ships in those waters near the enemy
coasts in which mines can be employed. In this case, for
external consumption, pretense should be made that mines are
being used. The behavior of, and use of weapons by, U-boats
should take this into consideration.”
Do you say, in the face of that sentence, that you were not trying to
fool the neutrals—to use your own phrase? Do you still say you were not
trying to fool the neutrals?
DÖNITZ: No, we did not fool them because we warned them beforehand. In
wartime I do not have to say what weapon I intend to use; I may very
well camouflage my weapon. But the neutrals were not fooled. On the
contrary, they were told, “Do not enter these zones.” After that, the
question of which particular military method I use in these areas no
longer concerns the neutrals.
SIR DAVID MAXWELL-FYFE: Now I want you to tell the Tribunal, what was
your view of your responsibility to the seamen from boats that were
sunk? Would you have in mind the provisions of the London Treaty, and
will you agree that your responsibility was to save seamen from boats
that were sunk wherever you could do so without imperiling your ship? Is
that, broadly, correct?
DÖNITZ: Of course, if the ship herself behaved according to the London
Agreement, or unless it occurred within the operational areas mentioned.
SIR DAVID MAXWELL-FYFE: Oh? Do you really mean that? That is, if you
sank a neutral ship which had come into that zone, you considered that
you were absolved from any of your duties under the London Agreement to
look after the safety of the crews?
DÖNITZ: In operational areas I am obliged to take care of the survivors
after the engagement, if the military situation permits. The same held
good in the Baltic and in many operational areas.
SIR DAVID MAXWELL-FYFE: That is what I put to you, Defendant. Please
believe me, I don’t want to make any false point. I put to you: If they
could do so without imperiling their ships, that is, without risking
losing their ships. Let us get it quite clear: Do you say that in the
zone which you fixed there was no duty to provide for the safety of the
crew, that you accepted no duty to provide for the safety of the crew?
DÖNITZ: I have stated that I was obliged to take care of the survivors
after the engagement, if the military situation permitted. That forms
part of the Geneva Convention or the agreement on its application.
SIR DAVID MAXWELL-FYFE: Then it didn’t matter whether the sinking was in
the zone or out of the zone. According to what you say, you undertook
exactly the same duty towards survivors whether it was in the zone or
outside the zone. Is that right?
DÖNITZ: No, that is not correct, because outside the zone neutrals were
treated according to the Prize Ordinance, only inside the zone they were
not.
SIR DAVID MAXWELL-FYFE: What I can’t understand is this—and really, I
hope I am not being very stupid—what was the difference? What
difference did you consider existed in your responsibility towards
survivors if the sinking was inside the zone or outside the zone? That
is what I want to get clear.
DÖNITZ: The difference was that neutrals outside the zone were treated
according to the Prize Ordinance. According to the London Agreement, we
were obliged, before sinking the ship, to see that the crew were safe
and within reach of land. There was no obligation to do so inside the
zone. In that case we acted according to the Hague Agreement for the
application of the Geneva Convention, which provides that the survivors
should be taken care of after the fight if the military situation
permits.
SIR DAVID MAXWELL-FYFE: Will you agree that an order in express terms to
annihilate, to kill, the survivors of a ship that is sunk would be an
appalling order to give?
DÖNITZ: I have already stated that the attacks on survivors were
contrary to a soldier’s idea of fair fighting and that I have never put
my name to any order which could in the slightest degree lead to
anything of the kind—not even when it was proposed to me as a reprisal
measure.
SIR DAVID MAXWELL-FYFE: Will you agree that even with the discipline in
your own branch of the service, there was a possibility that some U-boat
commanders would have refused to comply with an order to annihilate
survivors?
DÖNITZ: No such order was ever given.
SIR DAVID MAXWELL-FYFE: I think it is quite a fair question. What if it
were given in express terms, “Annihilate survivors after you sink a
ship”? You know your officers. Would there, at any rate, have been some
danger that some of them would have refused to carry out that order?
DÖNITZ: Yes. As I know my U-boat forces, there would have been a storm
of indignation against such an order. The clean and honest idealism of
these would never have allowed them to do it; and I would never have
given such an order or permitted it to be given.
SIR DAVID MAXWELL-FYFE: Yes, that is what I put to you.
Now, just look at Page 33 of the English document book. That contains
your own Standing Order Number 154 (Exhibit Number GB-196). Let me read
it to you, rather slowly, if the Tribunal does not mind. It says:
“Do not pick up survivors and take them with you; do not worry
about the merchant ship’s boats; weather conditions and distance
from land play no part. Have a care only for your own ship and
strive only to attain your next success as soon as possible. We
must be harsh in this war.”
First of all, tell me, what do you mean by “your next success”? Doesn’t
that mean the next attack on a vessel?
DÖNITZ: Yes.
SIR DAVID MAXWELL-FYFE: Now, just look at that order of yours and
compare it with the words of the London Treaty. The Treaty, you
remember, says that a warship, including a submarine, may not sink or
render incapable of navigation a merchant vessel without first having
placed passengers, crew, and ship’s papers in a place of safety. For
this purpose, the ship’s boats are not regarded as a place of safety
unless the safety of the passengers and crew is assured in the existing
sea and weather conditions, by the proximity of land or the presence of
another vessel.
Defendant, you had that article of the London Treaty in front of you,
had you not, when you were drafting this order? And you were
deliberately excluding from your order the matters mentioned in the
London Treaty? Listen to your order: “Do not worry about the boats;
weather conditions”—one thing mentioned in the Treaty—“and distance
from land”—another thing mentioned in the Treaty—“play no part.”
Your order could have been put in other language almost as clearly:
“Disregard all the matters that are stated in Paragraph 2 of the London
Treaty.”
Now tell me, didn’t you have the London Treaty in front of you when you
drew that order?
DÖNITZ: Of course I had the London Treaty in my mind and in front of me.
I stated in detail yesterday, however, that we were thinking in terms of
an engagement, a ship under escort, as is shown by the order as a whole.
You have taken just one paragraph. There was, therefore, no question of
applying the London Agreement, which does not refer to ships under
escort.
Secondly, we were thinking of an area in the immediate vicinity of the
permanent positions, enemy defenses off the harbors on the British
coast. The London Agreement has nothing to do with fighting ships under
escort. Those are two entirely different things; and that order applied
to this area and the combating of ships under escort. I explained that
in detail yesterday.
SIR DAVID MAXWELL-FYFE: But if you say that that only applied when it
was a question of attacking ships in convoy, would you look at Page 26
of the English document book and at Page 57 of the German document book?
There you will find the account of the sinking of the _Sheaf Mead_ on 27
May 1940. And if you will look at the U-boat’s log, opposite the time
group 1648 hours—which is on Page 27 of the English and Page 57 of the
German (Exhibit Number GB-192)—this is what the log says:
“A large heap of wreckage floats up. We approach it to identify
the name. The crew have saved themselves on wreckage and
capsized boats. We fish out a buoy; no name on it. I ask a man
on the raft. He says, hardly turning his head ‘Nixname.’ A young
boy in the water calls, ‘Help, help, please.’ The others are
very composed; they look damp and somewhat tired and have a look
of cold hatred on their faces. Then on to the old course.”
If you turn to Page 57 of the German document book, or Page 28 of the
English, you will find the last sentence from the survivors’ report
describes the submarine as doing this:
“They cruised around for half an hour, taking photographs of us
in the water. Otherwise they just watched us but said nothing.
Then she submerged and went off without offering us any
assistance whatever.”
There you see the point, Defendant, that your own commander says that
there was a young boy in the water calling, “Help, help, please,” and
your submarine takes a few photographs, submerges, and then goes off.
THE PRESIDENT: Sir David, ought you not to refer to the passage just
after the name of the vessel, under 1648, “It is not clear....”?
SIR DAVID MAXWELL-FYFE: “It is not clear whether she was sailing as a
normal merchant ship. The following seemed to point to the contrary.”
And then, My Lord, it gives a number of matters.
Of course, My Lord, I am on the point of survivors at the moment. I am
not taking this instance as a matter of wrongful sinking; I am taking it
as an instance of carrying out this order.