NOTES

-----

[2] _De jure pacis ac belli_, Book II, Chapter XXIV, Paragraph 10.

[3] Lord Edward Grey: “Twenty-five Years of Politics 1892-1916.”

(Retranslated into English from the German edition published by

Bruckmann, Munich 1926). “International Law has always been very

flexible.... A belligerent possessing an over-powerful navy has at all

times been in search of an interpretation of International Law which

would justify a maximum of intervention in respect of merchandise liable

to reach the enemy. This attitude was naturally adopted by Great Britain

and the Allies owing to their supremacy at sea. The British position on

this subject had not always been the same. When we figured among the

neutrals, we naturally contested the right to maximum intervention

claimed by the belligerents.”

[4] Yamato Ichihalie, _The Washington Conference and After_, Stanford

University Press, Cal., 1928, Page 80, “The chief reason for the British

plea was the apprehension of the craft in the hands of the French navy.”

[5] _Conference on the Limitation of Armaments_, Washington, November

12, 1921-February 6, 1922, Washington, Government Printing Office, 1922,

Pages 606, 688, 692.

[6] _French Yellow Book_, La Conférence de Washington, Page 93.

[7] Protocol Pages 693, 702.

[8] Protocol Page 704.

[9] _American Journal of International Law_, 1931, Page 307.

[10] Hyde, _International Law_, 1922, Vol. II, Page 469.

[11] _U.S. Foreign Relations_, 1916, Supplement Page 147.

ONE HUNDRED

AND SEVENTY-NINTH DAY

Tuesday, 16 July 1946

_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.

[_The Tribunal recessed until 1400 hours._]