NOTES

-----

[12] Vanselow, _Völkerrecht_, Berlin, 1931, Figure 226 i.

[13] In 1935, the American Senator Ney demanded the prohibition of

operational areas. In 1937 Charles Warren made a request for discussion

of the subject in the Society for International Law. And also the

afore-mentioned draft of a convention by American jurists of 1939 deals

with this question.

[14] Théories stratégiques IV, Page 323: “Même en zone de guerre

n’aura-t-on pas contre sol le damné article 22 du traité de Londres?”

[15] Bauer, Das U-Boot, 1931, Report on it by Captain G. P. Thomson,

R.N. in _The Journal of the Royal News Instruction 1931_, Page 511.

[16] Sperrgebiete im Seekrieg, Zeitschrift für ausländisches

öffentliches Recht und Völkerrecht, Volume VIII, 1938, Page 671.

[17] French Yellow Book, La Conférence de Washington, Page 88.

[18] Report of 8 October 1940, Page 3: “One thing is certain, namely,

apart from vessels in declared war zones, destruction of a merchant

vessel is envisaged if even only after capture.”

[19] Commander Russel Grenfell, R.N., _The Art of the Admiral_, London,

1937, Page 80. “The neutral merchants, however, are not likely to

relinquish a highly lucrative trade without a struggle and thus there

arises the acrimonious wrangle between belligerents and neutrals which

is a regular feature of maritime warfare, the rules for which are

dignified by the name of international law.”

[20] _De jure pacis ac belli_, Book III, Chapter I, Paragraph 6,

citation Augustin: “One may conceal the truth wisely,” and Cicero:

“Dissimulation is absolutely necessary and unavoidable, especially for

those to whom the care of the state is entrusted.”

[21] Admiral King, _Report of the American High Command_.

[22] John Chamberlain, “The man who pushed Pearl Harbor,” _Life_, of 1

April 1946.

[23] Manual for Courts Martial U.S. Army, 1928, Page 10.

[24] In this connection I mention the extensive literature dealing with

the right of self-preservation in cases of urgent necessity. The

surprise attack on the Danish fleet, 1807, as well as the hunger

blockade against Germany are based on that.

[25] Freiherr von Freytagh-Loringhoven, _Völkerrechtliche Neubildungen

im Kriege_, Hamburg 1941, Page 5.

[26] Quoted from “_Neue Auslese_,” 1946, Number 1, Page 16.

[27] Not always acknowledged by English authors. Compare for instance A.

C. Bell, _A History of the Blockade of Germany_, et cetera, London,

1937, Page 213: “The assertion that civilians and the Armed Forces have

been treated only since 1914 as a uniform belligerent body is one of the

most ridiculous ever made.”

[28] Grenfell, _The Art of the Admiral_, London, 1937, Page 45: “By the

early part of 1918, the civil population of Germany was in a state of

semistarvation, and it has been calculated that, as a result of the

blockade, over 700,000 Germans died of malnutrition.”

[29] See also protest of the Soviet Government to the British Ambassador

of 25 October 1939, printed as Number 44 in “_Urkunden zum

Seekriegsrecht_,” Volume I, edited by the High Command of the Navy.

[30] See for instance _Wheaton’s International Law_, 5th Edition, Page

727, Liddell Hart, “The Revolution in Naval Warfare,” _Observer_ of 14

April 1946.

[31] Oppenheim, Die Stellung des Kauffahrteischiffes im Seekrieg,

_Zeitschrift für Völkerrecht_, 1914, Page 165.

[32] Concerning the execution of these orders in the first World War,

Vidaud, in “_Les navires de commerce armés pour leur défense_,” Paris,

1936, Pages 63-64 says as follows: “Les équipages eux-mêmes sont

militarisés et soumis à la discipline militaire, ainsi que le capitaine

Alfred Sheldon, appartenant à la réserve de la Marine Royale, a été

condamné, le 8 Septembre 1915 par le conseil de guerre de Devonport,

pour n’avoir pas attaqué un sousmarin allemand.”

[33] Compare for instance “Submarines in the Atomic Era” in the _New

York Herald Tribune_, European Edition, of 27 April 1946, Page 2.

[34] A. C. Bell, Historical Section, Committee of Imperial Defense, _A

History of the Blockade of Germany and of the Countries Associated with

Her in the Great War 1914-1918_—The introduction contains the remark:

“This history is confidential and for official use only.” (Quoted from

the German edition by Böhmert, _Die englische Hunger-blockade im

Weltkrieg_, Essen, 1943).

[35] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXI.

[36] Hugo Grotius, _De jure pacis ac belli_, Book II, Chapter XXVI.

Paragraph 4, “He can believe that in a matter of doubt he must obey his

superior.”

[37] See _Wheaton’s International Law_, 5th Edition, Pages 543-5.

[38] Claud Mullins, _The Leipzig Trials_, London, 1921.

[39] See Document Book 1, Documents Numbers Raeder-3 and 4, Page 9 et

sequentes.

[40] Especially the following documents are concerned:

C-140, USA-51 of 25 October 1933; C-159, USA-54 of 2 March 1936; C-194,

USA-55 of 6 March 1936; C-175, USA-69 of 24 June 1937; 388-PS, USA-26 of

20 May 1938; C-136, USA-104 of 21 October 1938.

[41] Record of 4 December 1945, Volume III, Page 95.

[42] Record of 4 December 1945, Volume III, Page 110.

[43] Reich Defense Law of 4 September 1938.

[44] For instance under Balfour and Churchill.

[45] Document Book 1, Document Number Raeder-4, Page 12.

[46] Document Book 6, Document Number Raeder-121, Page 524.

[47] Refer also to Ronneberger Affidavit, Document Book 6, Document

Number Raeder-126, Page 543 et sequentes which point to the same

subjects, especially to the strong Christian belief of Raeder and to the

pronounced opposition to Christianity and Church by Bormann.

[48] Second Lohmann Affidavit, Document Number Raeder-8, Document Book

1, Page 41.

[49] Refer to Documents 386-PS, USA-25; L-79, USA-27; 798-PS, USA-29;

1014-PS, USA-30; 769-PS, USA-23.

[50] Document Book 2, Document Number Raeder-27, Page 144 et sequentes.

[51] See Hossbach Document.

[52] Record of 19 March 1946, Volume IX, Page 463.

[53] Record of 19 March 1946, Volume IX, page 481.

[54] Record of 16 May 1946, Volume XIV, Page 35.

[55] Record of 22 May 1946, Volume XIV, Page 314.

[56] Record of 22 May 1946, Volume XIV, Page 306.

[57] Record of 22 May 1946, Volume XIV, Page 306.

Affidavit Generaladmiral Böhm, Document Number Raeder-129.

Affidavit Generaladmiral Albrecht, Document Number Raeder-128.

[58] Record of 22 May 1946, Volume XIV, Page 306.

[59] See Documents Numbers 798-PS, USA-29; 1014-PS, USA-30, Document

Book 2. Page 144, Document Number Raeder-77.

[60] Record of 26 November 1945, Volume II, Page 292.

[61] Raeder Document Book 2, Page 144.

[62] See Document 789-PS, USA-93.

[63] Document Book 2, Pages 116-117, Document Number Raeder-19.

ONE HUNDRED

AND EIGHTIETH DAY

Wednesday, 17 July 1946

_Morning Session_

DR. SIEMERS: Yesterday I dealt with the events before the outbreak of

war. Now I shall turn to the events which occurred during the war.

I think I have shown that the Navy had an extremely insignificant part

in all events prior to the war, and that the transactions in which the

Navy was authoritatively involved were carried out on a peace basis,

namely, on the basis of the naval agreements with England. When the war

nevertheless ultimately broke out, involving England, too, on 3

September 1939, a regrettable incident occurred on the very first day,

through the sinking of the _Athenia_, from which the Prosecution

endeavors by the use of exaggerated terms to construe a grave moral

charge against Raeder, not so much indeed on the basis of its actual

military aspect, that is, the sinking, which my colleague Dr.

Kranzbühler has already discussed, as on account of an article published

in the _Völkischer Beobachter_ of 23 October 1939 entitled “Churchill

Sinks the _Athenia_.” Were the facts as brought forward by the

Prosecution correct, the moral accusations against Raeder and the Navy

would be justified, even though, of course, an untruthful newspaper

article is no crime. Consequently the accusation brought by the

Prosecution is made for the sole purpose of vilifying Raeder’s

personality in contrast to the lifelong esteem which Raeder has enjoyed

in the whole world, in fact especially abroad.

I think the evidence has sufficiently revealed that the statement of

facts presented by the Prosecution is not correct. It is quite plausible

that at first sight the Prosecution should have believed that the odious

article in the _Völkischer Beobachter_ could not have appeared without

the knowledge of the naval command. The Prosecution believed this

because, in view of their conspiracy theory, they are inclined to assume

in every case that there was constant discussion and close co-operation

among the various departments. The course of the Trial has shown that

this assumption is far from correct. The contrast between the various

departments, and especially between the Navy and the Propaganda

Ministry, or Raeder and Goebbels, was far greater than the contrast

between departments in a democratic state. In addition, the testimonies

of the witnesses Raeder, Schulte-Mönting, Weizsäcker, and Fritzsche,

together with the documents, establish the following facts absolutely

clearly:

(1) In early September 1939 Raeder himself firmly believed that the

sinking was not to be imputed to a German U-boat, because it was

revealed by the reports that the nearest German U-boat was at least 75

nautical miles away from the spot of the sinking.

(2) Accordingly Raeder, as stated in Document D-912, published a _bona

fide_ denial and gave statements to this effect to the American Naval

Attaché and to the German State Secretary, Baron Weizsäcker.

(3) Raeder did not realize the mistake until after the return of _U-30_

on 27 September 1939.

(4) Hitler insisted, as evidenced by witnesses Raeder and

Schulte-Mönting, that no rectification of the facts should be made to

any other German or foreign department, that is to say, that the sinking

should not be acknowledged as caused by a German U-boat. He apparently

let himself be guided by political considerations and wished to avoid

complications with the U.S.A. over an incident which could not be

remedied, however regrettable it was. Hitler’s order was so strict that

the few officers who were informed were put under oath to keep it

secret.

(5) Fritzsche disclosed, that after the first investigation by the Navy

in early September 1939, he made no further investigation and that the

_Völkischer Beobachter_ article appeared as the result of an agreement

between Hitler and Goebbels, without previous notice to Raeder. On this

point the testimonies of Raeder and Schulte-Mönting coincide. It is

consequently clear that Raeder—contrary to the claim of the

Prosecution—was not the author of the article and, moreover, knew

nothing about the article before its appearance. I regret the fact that

in spite of this clarification the Prosecution are apparently intent

upon persisting in their claim by the submission, on 3 July 1946, of a

new document, D-912. This newly-submitted document only contains radio

broadcasts by the propaganda Ministry, which are of the same nature as

the _Völkischer Beobachter_ article. These radio broadcasts were a

propaganda instrument of Goebbels and cannot, any more than the article,

be brought up as a charge against Raeder, who in fact was at the time

informed only of the article, not of the radio broadcasts. Even the fact

that Raeder, after being informed of the article, did not attempt to

obtain a rectification, cannot be made a moral charge against him, since

he was bound by Hitler’s order and had no idea at the time that Hitler

himself had had a hand in the article, which Weizsäcker aptly described

as perverse fantasy.

In this connection I would remind the Tribunal that it is a well-known

fact that precisely at the beginning of the war inaccurate reports also

appeared in the English press about alleged German atrocities, which,

even after their clarification, were not rectified, as for instance, the

false report about the murder of 10,000 Czechs in Prague by German

elements in September 1939, although the matter had been cleared up by a

commission of neutral journalists.

The Prosecution professes to possess overwhelming material against all

the defendants. If this presumption were correct with reference to

Raeder, the Prosecution would scarcely have felt the need of bringing

forward this _Athenia_ case, of all things, in such ponderous and

injurious terms for the sole purpose of discrediting the former

Commander-in-Chief of the Navy.

Concerning Greece, the Prosecution accuses Raeder of violation of

neutrality and breach of international law on two counts, namely:

(1) On the basis of Document C-12, according to which Hitler decided,

basing on a report by Raeder on 30 December 1939, that:

“Greek merchant ships in the zone around England which the

U.S.A. declared prohibited will be treated like enemy ships.”

(2) According to Document C-176, on the occasion of the delivery of a

report to Hitler on 18 March 1941, Raeder asked for confirmation that

“all of Greece was to be occupied, even in case of peaceful settlement.”

In the course of the Trial both accusations have turned out to be

untenable; in both cases there is no action which violated international

law.

With reference to the first accusation it should be pointed out that

Raeder and the German Naval Command learned in October or November 1939

that quite a number of Greek merchant ships had been put at the disposal

of England, either at the request or with the approval of the Greek

Government (Documents Number Raeder-53, 54). This fact cannot be

reconciled with strict neutrality, and according to the principles of

international law that gave Germany the right to take an equivalent

countermeasure. This justified countermeasure consisted in treating

Greek ships heading for England as enemy ships from the moment they

entered the zone around England which had been declared prohibited by

the United States.

With reference to the second accusation it must be noted that Germany,

especially the High Command of the Navy, had received reports that

certain Greek military and political circles had maintained very close

connections with the Allied General Staff ever since 1939. As time went

by more and more reports came in. What the Allies were planning in the

Balkans is known; the intentions were to erect a Balkan front against

Germany. For this purpose local conditions in Greece, as well as in

Romania, were examined by Allied officers on behalf of the Allied

General Staff in order to establish airplane bases there. Furthermore,

preparations were made to land in Greece. As proof I have presented, as

Exhibit Number Raeder-59, the minutes of the session of the French War

Committee of 26 April 1940, which shows that the War Committee was at

that time already examining the question of possible operations in the

Caucasus area and in the Balkans and which further reveals the activity

of General Jauneaud in Greece for the purpose of continuing

investigations and preparations and shows how he endeavored to

camouflage his trip by making it in civilian clothing (Document Number

Raeder-63).

This attitude of Greece, and especially her falling in with Allied

plans, represents a violation of neutrality on the part of Greece; for

Greece did not appear as England’s ally but formally continued to

maintain her neutrality. Therefore, Greece could no longer expect that

Germany would fully respect Greek neutrality. Germany nevertheless did

do so for a long time. The occupation of Greece took place in April 1941

only after British troops had already landed in southern Greece on 3

March 1941.

The fact that Greece agreed to the British landing is, according to

generally recognized rules, without significance in international legal

relations and with regard to the international legal decision between

Germany and England and between Germany and Greece; it has importance

only in the legal relations between England and Greece.

The British Prosecution tried to justify the occupation of Greece by

pointing to the fact that Greek neutrality was menaced by Germany,

especially by the occupation of Bulgaria on 1 March 1941. In this

connection the Prosecution is overlooking the fact that not only did the

occupation of Greece by British forces start considerably earlier than

the German planning, but also the planning of the Allies. But be that as

it may, in any case, no accusation whatever can be made against Raeder,

because the date of the document submitted by the Prosecution is 18

March 1941, which means that it is 14 days later than the landing of the

British in southern Greece. At that time Greece could certainly no

longer demand that her alleged neutrality be respected. It is also an

unjustified charge when the Prosecution points out that Raeder asks for

confirmation that all of Greece will be occupied. This request by Raeder

cannot be made responsible for the fact that all of Greece was occupied,

for Hitler had already provided in his Directive Number 20 of 13

December 1940 that the entire Greek mainland was to be occupied, in

order to frustrate British intentions of creating a dangerous basis for

air operations under the protection of a Balkan front, especially for

the Romanian oil district. In addition to that, the inquiry of Raeder on

18 March 1941 was justified on strategic grounds, because Greece offered

many landing possibilities for the British and the only possible defense

was for Greece to be firmly in the hands of Germany, as the witnesses

Raeder and Schulte-Mönting have explained.

This strategic conception of Raeder had nothing to do with plans of

conquest or thirst for glory, as the Prosecution thinks, for the Navy

won no glory whatsoever in Greece, since the occupation was a land

operation. The occupation of an originally neutral country is simply the

regrettable consequence of such a large-scale war; it cannot be charged

to one belligerent if both belligerents had plans concerning the same

state, and carried out these plans.

I should like now to go on to the subject of Norway. On 9 April 1940

troops of all three branches of the German Armed Forces occupied Norway

and Denmark. From this and the preceding plans, the Prosecution have

brought the gravest accusation against Grossadmiral Raeder, together

with the collective charge of participation in a conspiracy.

The British prosecutor pointed out that it was Raeder who first

suggested the occupation of Norway to Hitler, and believes that Raeder

did so out of a spirit of conquest and vainglory. I shall demonstrate

that this argumentation is incorrect. One thing is true, that is that in

this single instance Raeder took the initiative of first approaching

Hitler on the subject of Norway, namely on 10 October 1939. However, I

shall show that in fact in this connection he acted not as a politician

but exclusively as a soldier. Raeder sensed purely strategic dangers and

pointed out these strategic dangers to Hitler, because he assumed that

the Allies were contemplating the establishment of a new front in

Scandinavia and in Norway, in particular, and realized that an

occupation of Norway by Britain might have militarily disastrous

consequences for Germany. I shall show that Germany committed no

violation of international law by the occupation of Norway. Before I

state the legal foundation and connect the facts established by the

appraisal of evidence with the principles of international law, I should

like first to state an important fact:

As Raeder’s examination shows and as disclosed by Schulte-Mönting’s

interrogations, he very reluctantly advocated the Norwegian campaign as

Commander-in-Chief of the Navy. Raeder had the natural feeling born of

justice that a neutral state could not be drawn into the existing war

without an absolutely imperative emergency. During the period between

October 1939 and spring 1940, Raeder always upheld the theory that by

far the best solution would be for Norway and all Scandinavia to remain

absolutely neutral.

Raeder and Schulte-Mönting were in agreement on this point during their

interrogations; and it is, moreover, proved by documents. For this, I

refer to Exhibit Number Raeder-69 where the conviction of Raeder is

expressed that the most favorable solution would undoubtedly be the

preservation of the strictest neutrality by Norway; this is entered in

the War Diary on 13 January 1940. Raeder clearly saw that an occupation

of Norway by Germany, for reasons of international law or strategy,

could only be conceivable if Norway could not or would not maintain

absolute neutrality.

The Prosecution has referred to the treaties between Germany and Norway,

in particular to Document TC-31, by which the Reich Government, on 2

September 1939, expressly assures Norway of her inviolability and

integrity. In this memorandum, however, the following legitimate remark

is added:

“As the Reich Cabinet makes this declaration, it naturally also

expects that Norway in turn will observe irreproachable

neutrality toward the Reich and that it will not tolerate

breaches of Norwegian neutrality, should attempts along that

line be made by third parties.”

If, despite this fundamental attitude, Germany decided to occupy Norway,

this was done because the plans of the Allies made imminent the danger

of an occupation of Norwegian bases by them. In his opening speech Sir

Hartley Shawcross declared that Germany’s breach of neutrality and her

war of aggression against Norway remained criminal in the sense of the

Indictment even if Allied plans for the occupation had been correct, and

he added that in reality such plans were not true. I believe that the

argument advanced here by Sir Hartley Shawcross is contrary to accepted

international law. If Allied plans for the occupation of Norwegian bases

existed and there was a risk that Norway neither would nor could

maintain strict neutrality, then accepted standards of international law

did sanction Germany’s Norwegian campaign.

I would first like to bring up the juridical viewpoints based on

prevailing international law in order to create a foundation for my own

statements, and thereby at the same time to set forth those legal

viewpoints which contradict the Prosecution’s interpretation. In order

to save time in this legal exposition and make the subject matter

clearer I have submitted as Exhibit Number Raeder-66 an opinion on

international law with regard to the Norway campaign by Dr. Hermann

Mosler, professor of international law at the University of Bonn. The

High Tribunal will remember that I was given permission to make use of

this opinion for purposes of argumentation, and I would therefore refer

at this point to this detailed scientific compilation and findings. For

the purpose of final plea I shall confine myself to a summary of the

essential concepts of the opinion.

Articles 1 and 2 of the Hague Convention on Rights and Obligations of

Neutrals in the event of warfare at sea stipulate that the parties at

war are bound to respect the rights of sovereignty of neutral powers in

the territory and coastal waters of the neutral power, and all hostile

acts of warships of the belligerent parties within the coastal waters of

a neutral power are strictly banned as violations of neutrality.

Contrary to these stipulations Great Britain violated Norway’s

neutrality through the laying of mines in Norwegian coastal waters for

the purpose of obstructing the legitimate passage of German warships and

merchantmen, especially in order to cut off shipments of iron ore from

Narvik to Germany. In the letter from the British Foreign Office which I

received in reply to my petition for authorization to submit files of

the British Admiralty, confirmation as per Exhibit Number Raeder-130 was

received to the effect that His Majesty’s forces laid mine fields in

Norwegian waters, and in addition it was stated that this was a

well-known fact (Documents Number Raeder-83, 84, 90).

The fact is presumably uncontested that thereupon Germany was justified

in restoring the equilibrium between the belligerent parties, in other

words by setting her Armed Forces to wrest from the enemy the benefit he

was deriving from a violation of neutrality. Reaction against such a

violation of neutrality is directed primarily against the enemy, not

against the neutral. The legal relationship to neutrality ...

PRESIDENT [_Interposing_]: Dr. Siemers, the Tribunal would like to know

what your contention is on this subject. Do you contend that any breach

of neutrality of a warring state entitles one of the warring nations to

enter that neutral state?

DR. SIEMERS: Mr. President, in this general way one certainly could not

say that. It is a principle of international law that a violation of

international law committed by one state only entitles the other warring

nation to a countermeasure in proportion to the breach of neutrality

committed. Certainly an occupation of Norway on the part of Germany

would not be justified because Britain mined the coastal waters. The

fact does not justify an occupation.

PRESIDENT: Would it be your contention that it made any difference on

the rights of Germany if Germany were to be held to be an aggressor in

the original war?

I will repeat it. According to your contention, would it make any

difference that Germany was held, if it were held, to be the aggressor

in the original war out of which the occupation of the neutral country

occurred?

DR. SIEMERS: Mr. President, I beg to apologize, but I am afraid I cannot

quite understand the sense as it comes through in translation.

PRESIDENT: I will say it again more slowly. According to your

contention, would it make any difference if the Tribunal were to think

that Germany had been the aggressor in the war which led to the

occupation of the neutral state?

DR. SIEMERS: My apologies, Mr. President. Now, if I understood that

correctly, you wish me to answer the question whether the fact that

previously a war had been begun by Germany against Poland would

influence juridical attitude toward the question of Norway.

PRESIDENT: Assuming, I only say assuming that the war begun by Germany

against Poland were to be held to be an aggressive war.

DR. SIEMERS: Mr. President, I believe that I must answer in the

negative, because the individual facts under international law must be

dealt with separately. The fact that the Tribunal may possibly assume

that an aggressive war was conducted against Poland cannot, from the

point of view of international law, have any effect upon subsequent

years.

That, incidentally, is the point of view which, I believe, was adopted

by the Prosecution, for Sir Hartley Shawcross also, dealt with the

question of Greece and the question of landings entirely under the

aspect of Greek events and did not contend that Britain could occupy

Greece because Germany had occupied Poland. He said, just as I did, that

from the legal standpoint of international law Britain could occupy

Greece because Greece was threatened by a German occupation. That is

what I am saying from the point of view of international law with

reference to Norway; as my further remarks will show, I am not trying to

draw any other parallels.

PRESIDENT: Yes. There is one other question which I should like to ask

you. Is it your contention that Germany was entitled under international

law to use the territorial waters of Norway, either for her warships or

for the transport of ore, or for the transport of prisoners of war?

DR. SIEMERS: In my opinion, from the standpoint of international law,

the situation is that Germany was entitled to use the coastal waters,

observing at the same time the various international rules, such as for

instance, only brief stays in ports and similar rulings like the

obligation to submit to investigation by neutrals in the case of the

_Altmark_. But basically, carrying on shipping operations from Narvik

was justified according to international law as far as I know.

PRESIDENT: Continue.

DR. SIEMERS: Mr. President, with reference to the last point, may I add

one thing? Should the view be adopted that Germany was not allowed to

use these coastal waters, then the mining of these coastal waters would

have been a justified breach of neutrality on Britain’s part, so that,

as far as I am concerned, the mining operation as grounds for this would

have to be left out of my plea, though not the other facts I am citing.

Mining the waters is in equivalent proportion to the use of the coastal

waters. I myself consider that the mining operation was not permissible,

while passage through coastal waters was; but this does not affect the

entire subject of the occupation of Norway. I hope I shall be understood

as not meaning that Germany was justified in occupying Norway because

Britain had mined the coastal waters.

PRESIDENT: But you are saying, are you, that Germany was entitled to use

the coastal waters, first of all, for the transport of ore; secondly,

for her warships?

DR. SIEMERS: Yes.

PRESIDENT: And thirdly, for the transport of prisoners of war?

DR. SIEMERS: Yes. It is my opinion, Mr. President, that as to ore

shipments there is no prohibitive clause in international law, so that

this shipping was permissible.

With reference to prisoners of war, may I point out that only one case

arose and that is the case of the _Altmark_. If Germany was not deemed

authorized to use coastal waters for the transport of prisoners of war,

then that could at most lead to Britain’s adopting an equivalent single

countermeasure; but she would not be justified in mining the entire

coastal waters. The mining of the entire coast, from the point of view

of international law, is only justified if you adopt the point of view

that Germany’s merchant shipping was prohibited from entering those

coastal waters by international law. But that, in my opinion, is not the

situation.

PRESIDENT: You may continue.

DR. SIEMERS: Reaction against such violation of neutrality is primarily

directed against the adversary, not against the neutral party. Legal

relationship deriving from neutrality exists not only between the

neutral party and the two belligerent parties, but the neutrality of the

state in question is at the same time a factor in direct relations

existing between the belligerent parties. If the relationship of

neutrality between one of the belligerent parties and the neutral power

suffers disturbance, the neutral power can in no way file complaint if

the other belligerent power takes appropriate action; at the same time

it is entirely immaterial whether the neutral state is unable or

unwilling to protect its neutrality (Document Number Raeder-66).

The legal title under which the belligerent power thus placed at a

disadvantage can proceed to take countermeasures is the “right of

self-defense” (_das Recht der Selbsterhaltung; le droit de défense

personelle_). As brought out in detail by this opinion, this right of

self-defense is generally recognized by international law. It suffices

to point out here that this basic law is not affected by the Kellogg

Pact, which has so often been mentioned in this Court. In this

connection I ask permission to offer the following brief quotation from

the circular memorandum of the U.S. Secretary of State, Kellogg, dated

23 June 1938:

“There is nothing in the American draft of an antiwar treaty

which restricts or prejudices the right of self-defense in any

manner. That right is inherent in every sovereign state and is

implied in every treaty.”

Justice Jackson will permit me to mention that he himself, in his

opening speech of 21 November 1945, referred to the “right of legitimate

self-defense.”

It is interesting that in his address before Parliament on 8 February

1940, the Swedish Foreign Minister, Guenther, recognized this concept,

although he represented the interests of a state whose neutrality was

endangered at the time, and in addition was speaking before Germany

proceeded to retaliatory measures in Norway (Document Number Raeder-66).

In that address Guenther expressed his opinion with regard to the

British declaration that Sweden’s neutrality would be respected only as

long as it was respected by Britain’s enemies. Guenther recognized the

fact that Sweden, in her relationship to England, would lose her

neutrality should Germany violate Sweden’s neutrality and should Sweden

be neither willing nor able to prevent such violation of her neutrality

by Germany. Consequently, Guenther said, Great Britain would no longer

be required to treat Sweden as a neutral country. It is obvious that the

conclusions drawn by Guenther in the event of a breach of Sweden’s

neutrality by Germany must also apply to the three-cornered legal

relationship between Great Britain, Germany, and Norway. What was

involved, however—and this I shall set forth in my presentation of

evidence—was not Great Britain’s mine-laying activity in Norwegian

coastal waters but a much more far-reaching Anglo-French scheme aiming

at the occupation of Norwegian bases and of a portion of the Norwegian

home territory. The mine-laying activity enters into the picture merely

as a part of the total plan.

According to Mosler’s opinion and in the light of the above remarks, it

is absolutely clear that Germany was justified in occupying Norway had

the Allies carried part of their plan into effect by landing at a

Norwegian base before German troops made their appearance. This,

however, was not the case. Rather, as I will show, was the situation

such that Germany anticipated an Anglo-French landing; in other words,

she decided on countermeasures in anticipation of the imminent danger

which threatened.

Another legal question arises therefrom: Assuming the same conditions,

are countermeasures by a belligerent permitted only after the opposing

belligerent has proceeded to violate neutrality, or is a reaction

permitted beforehand in view of the imminently threatening violation of

neutrality, in order to head off the enemy’s attack which can be

expected at any moment?

According to the well-founded opinion of Dr. Mosler preventive

countermeasures are permissible; and an impending violation of

neutrality, which can be expected with certainty, is considered equal to

a completed violation of neutrality.

The well-known English specialist on international law, Westlake, states

with regard to the question of measures:

“Such a case in character resembles one where a belligerent has

certain knowledge that his opponent, in order to gain a

strategic advantage, is just about to have an army march through

the territory of a neutral who is clearly too weak to resist;

under the circumstances it would be impossible to refuse him the

right to anticipate the attack on the neutral territory.”

The justification for such a preventive measure, according to Westlake,

lies in the right of self-defense, which applies equally against a

threatening violation of neutrality. Any other concept would fail to

meet the facts of life and would not correspond to the character of the

society of nations as an aggregation of sovereign states with an as yet

incompletely developed common code of law. In the domestic law system of

every civilized country the prevention of an immediately threatening

attack is a permissible act of defense, although in such a contingency

even the help of the state against the law-breaker is available. In the

community of international law, where this is not the case—at any rate

not at the beginning of and during the second World War—the viewpoint

of self-defense must apply to an even greater extent. In keeping with

this concept, the British Government during this war also considered the

preventive measure justified when it occupied Iceland on 10 May 1940.

The British Government justified this measure clearly and correctly in

accordance with international law in an official announcement of the

Foreign Office, as follows:

“After the German occupation of Denmark it has become necessary

to count on the possibility of a sudden German raid on Iceland.

It is clear that the Icelandic Government, in case of such an

attack, even if it were only carried out with very small forces,

would be unable to prevent the country from falling completely

into the hands of the Germans.”

The preventive measure was carried out by Britain, although Iceland

expressly protested by a note against the occupation. I also ask to note

that the United States agreed with this standpoint of law, as is proved

by the well-known message from the President of the United States to

Congress of 7 July 1941, and the subsequent occupation of Iceland by

armed forces of the American Navy.

In accordance with these basic principles of law, the facts at hand must

be examined. I have tried to clarify the facts in the presentation of

evidence, and I would like to summarize the major factors which actually

indicated a closely impending violation of neutrality on the part of the

Allies by a partial occupation of Norway, and thereby justified the

German campaign in Norway.

At the end of September and early in October 1939, Admiral Raeder, as

the evidence has shown, received various items of information through

the regular reports of Admiral Canaris as chief of intelligence and

through Admiral Carls, which gave reason to believe in the danger of the

Allies’ proceeding to occupy bases in Norway, in accordance with their

plans to encircle Germany in order to put a stop, in particular, to ore

imports from Scandinavia.

British flying personnel camouflaged in civilian clothing had been seen

in Oslo; and survey work by Allied officers on Norwegian bridges,

viaducts, and tunnels up to the Swedish border had been identified.

Furthermore, the quiet mobilization of Swedish troops, owing to the

danger to Swedish ore territories, had become known. Raeder was

justified in considering himself obliged to report these facts to Hitler

and to point out to him the danger which would arise for Germany if

British and French armed forces were to gain a foothold in Scandinavia.

The dangers were clear. They consisted of the cutting-off of all imports

from the industrial areas of Scandinavia, in particular of the ore

imports, as well as in the fact that the Allies would obtain a favorable

base for air attacks, and last but not least, in the fact that the

German Navy would be threatened on its flank and its operational

potentialities would be limited.

The blockade of the North Sea and Baltic would have had strategically

disastrous consequences. As the information did not yet allow of a final

over-all picture, Raeder did not suggest immediate occupation, but only

pointed out the dangers, intending to await further developments for the

time being. Neither did Hitler make a final decision during this

discussion of 10 October 1939 but agreed to wait. Similar information

was received during the months of October and November, this time also

from the naval attaché, Korvettenkapitän Schreiber, who had in the

meantime been sent to Oslo, whose affidavit (Document Raeder-107) I

would like to cite. It shows that the Norwegian shipping association had

made tanker tonnage of about one million tons available to Britain with

the consent of the Norwegian Government (Document Number Raeder-68).

In the winter of 1939-40, information took on a more definite form

concerning espionage missions given by the British and French Secret

Service to Norwegian agents and British harbor consulates for the

purpose of reconnoitering landing facilities and examination of

Norwegian railroads with regard to their capacity, particularly the

Narvik line, and missions concerning information about land and sea

airports in Norway. From the fact that the information from two

different sources, namely, the naval attaché in Oslo and Admiral

Canaris, checked and became more and more certain during the period from

October to December 1939, the danger indicated appeared to keep

increasing.

In addition, in December 1939 Quisling and Hagelin sent to

Rosenberg—entirely independently of the sources of information which

had existed up to that time—the same and similar information concerning

the landing intentions of the Allies. This did not go to Raeder for the

sole reason that Raeder did not know either Quisling or Hagelin at that

time. Since the question involved was a purely military-strategic one,

Rosenberg asked Raeder to discuss things with Quisling so that Raeder

could examine the military-technical possibilities in consideration of

the fact the aggression by the Allies in Scandinavia must be expected

according to the information received. This is evident from the letter

from Rosenberg to Raeder of 13 December 1939, which I submitted as

Exhibit Number Raeder-67. Raeder considered it his duty from the purely

military point of view to inform Hitler, with whom he had not discussed

this question in the meantime, that coinciding information had since

been received from Canaris, the naval attaché in Oslo, and Quisling.

Hitler asked to speak with Quisling personally, whereupon he decided, in

order to meet the threat, to make the necessary preparations for an

eventual preventive measure, namely, the occupation of Norway (Document

C-64, Exhibit Number GB-86).

The final decision was still deferred, and further information was

awaited as to whether the danger appeared to increase. This caution and

delay will readily be understood in the case of Raeder. As I have

already observed, Raeder would have preferred to see the neutrality of

Norway maintained, especially since he was against any conquest just for

the sake of conquest. He knew, on the other hand, that an occupation

required the commitment of the whole Navy, thus involving the fate of

the entire Navy, and that the loss of at least a third of the whole

fleet had to be reckoned with. It must surely be clear how difficult,

from such political and strategic viewpoints, such a decision was for a

responsible man and soldier.

Unfortunately, during the first months of the year 1940, the reports

multiplied and kept becoming more certain. In March 1940 uncommonly many

English-speaking persons could be seen in Oslo, and Raeder received very

serious and credible information about impending measures by the Allies

against Norway and Sweden. As far as landing intentions were concerned,

Narvik, Trondheim, and Stavanger were mentioned. In this manner the

military planning actually was not undertaken until February and March

1940, and final instructions were issued to the Wehrmacht only in March

1940. In addition, numerous violations of neutrality occurred in March

1940, which have been collected in the War Diary (Documents Raeder-81

and 82), and also the mine-laying in Norwegian territorial waters at the

beginning of April.

The Prosecution has put in only a few documents against this

comprehensive informative material, according to which the German

Minister in Oslo, Breuer, did not look upon the danger as being so great

but believed that British activities, which he also reported, tended

merely to provoke Germany into opening war operations in Norwegian

waters (Documents Number D-843, Exhibit GB-466; D-844, Exhibit GB-467;

D-845, Exhibit GB-486).

Baron Weizsäcker’s point of view in cross-examination was that at first

he did not consider the danger so great either; but he admitted that

later on the facts proved that he and Breuer were wrong, while Raeder

had been right in his apprehension.

This objective accuracy of the opinion of Admiral Raeder, and of the

information on which he based his opinion, is shown in the various

documents submitted by me and accepted by the Court.

Since 16 January 1940, the French High Command had been working on a

plan which had in view, among other things, the occupation of harbors

and airfields on the west coast of Norway. The plan provided, in

addition, for an eventual extension of operations to Sweden and

occupation of the mines of Gallivare (Document Number Raeder-79).

Efforts have been made to justify this plan by stating that it was

elaborated solely to help Finland against the Soviet Union.

To begin with, it might be argued in contradiction to this that an

action in support of Finland does not justify any occupation of

Norwegian territory. Moreover, the documents show that it was not only a

question of altruistic measures in favor of Finland. During the

inter-Allied military conferences on 31 January and 1 February, which

preceded the meeting of the Supreme Council on 5 February, the question

of direct help for Finland was relegated by the British to second place;

they showed themselves to be determined supporters of an enterprise

against the mines of northern Sweden. This is confirmed by General

Gamelin in a note of 10 March 1940 (Document Raeder-79), and he adds

that this opinion obtained the majority vote in the Supreme Council and

that preparations for the Scandinavian expedition should be started

immediately.

And so it came about that the Franco-British fighting forces had been

ready for transportation since the first days of March; according to

Gamelin, the leadership of the proposed operations in Scandinavia was in

the hands of the British High Command. Gamelin adds finally that the

Scandinavian plans must be resolutely pursued further in order to save

Finland—I quote, “or at least to lay hands on the Swedish ore and the

northern harbors.”

Lord Halifax informed the Norwegian Minister on 7 February that Britain

wished to obtain certain bases on the Norwegian coast in order to stop

German transports of ore from Narvik (Document Raeder-97). By

mid-February, British and French General Staff officers were, in

agreement with the Norwegian authorities, inspecting landing places

(Document Raeder-97). According to a report by the German Legation in

Stockholm, dated 16 February 1940, British intentions in this respect

were to land troops simultaneously at Bergen, Trondheim, and Narvik. On

21 February 1940 Daladier communicated to the French Ambassador in

London, Corbin, that the occupation of the most important Norwegian

ports and the landing of the first body of the Allied fighting forces

would give Norway and Sweden a feeling of security; and he goes on to

say that this operation must be planned and executed at shortest notice,

“independently of Finland’s call for assistance.” In the event of this

_démarche_ meeting with refusal by Norway, which was likely, the British

Government was to take note of the Norwegian attitude and immediately

seize control of the bases it needed for the safeguarding of its

interests, doing so in the form of a “surprise operation.” Whether

Sweden would refuse passage through to Finland did not appear important;

what is being emphasized is rather—and I quote:

“... the advantage of having secured a dominating position

against Germany in the North, interrupted the sea transport of

Swedish ore, and brought the Swedish ore districts within range

of our aviation” (Documents Raeder-77 and 80).

On 27 February 1940, Churchill declared in the House of Commons that he

was “tired of considering the rights of neutrals” (Document Raeder-97).

It is interesting to note that unanimity was achieved in the sixth

session of the Supreme Council on 28 March 1940—I quote:

“Every endeavor on the part of the Soviet Government to obtain

from Norway a position on the Atlantic coast runs counter to the

vital interests of the Allies and results in appropriate

counteraction” (Document Raeder-83).

The view thereby adopted by the Supreme Council with reference to the

vital interests of the Allies coincides exactly with the legitimate

notions of the “right of self-defense” as presented by me and is in

complete contradiction to the interpretation of international law

propounded by the Prosecution.

The ultimate execution of the operation in Norway, that is, the landing

and the construction of bases, was decided on 28 March 1940 between the

authoritative British and French offices. This date was indicated at a

session of the French War Council by the French Prime Minister (Document

Raeder-59); and General Gamelin added that he had, on 29 March,

impressed upon General Ironside the necessity of having everything ready

for a swift occupation of the Norwegian ports. He said he had also

informed Mr. Churchill to the same effect on the occasion of a visit to

Paris.

One day later, 30 March, Churchill declared on the radio—I quote, “It

would not be just if, in a life-and-death struggle, the Western Powers

adhered to legal agreements” (Document Raeder-97).

On 2 April 1940 at 1912 hours, London notified Paris by telegram that

the first transport was “to sail on J. 1. day,” and that J. 1. day was

in principle 5 April (Document Raeder-85). On 5 April, Earl de la Warr

stated that neither Germany nor the neutrals could be certain that

“England would allow her hands to be tied behind her back in complying

with the letter of the law” (Document Raeder-97).

The British Minister of Labor, Ernest Brown, on 6 April 1940 declared

that neither Germany nor the neutrals could count on “the Western

Powers’ adhering to the letter of international law” (Document

Raeder-97).

On the same day—this was one day after the laying of mines by British

combat forces in Norwegian territorial waters—a secret British

operational order was given “concerning preparations for the occupation

of the northern Swedish ore field from Narvik” (Document Raeder-88).

In this order it was specified that the mission of the “Avon” Force

consisted first of all in “securing the port of Narvik and the railway

to the Swedish border.” It was added that it was the intention of the

commander “to advance into Sweden and to occupy the Gallivare ore fields

and important points of that territory as soon as an opportunity

occurs,” a formulation strikingly reminiscent of the words in the

Prosecution Document L-79, “to attack Poland at the first suitable

opportunity.”

The original plan of dispatching the first transport to Norway on 5

April was changed; for on the evening of 5 April the British High

Command informed the Commander-in-Chief of the French Navy that—I

quote:

“... the first British convoy could not depart before 8 April

which with respect to the time schedule established would mean

that the first French contingent would leave its embarkation

port on 16 April” (Document Raeder-91).

To complete the story it may be mentioned that the Norwegian operation

was designated by the Allies by the camouflage name of “Stratford Plan,”

while the German Norwegian operation was referred to by the camouflage

name of “Weser Exercise” (Weserübung) (Document Raeder-98).

All these facts go to show that, since the autumn of 1939, preparations

for possible action in Norway were made by studying landing

possibilities, _et cetera_. As from January and February 1940 the danger

of an occupation of bases in Norway by the Allies was imminent. In March

1940 the execution of the scheme was ultimately decided upon and the

departure of the first convoy was scheduled for 5 April. Simultaneously,

mine-laying was carried out in the Norwegian territorial waters and

troops were at the same time concentrated in British and French ports

for the Norwegian operation. Thus factual evidence of imminent

neutrality violations existed from the point of view of international

law; and neutrality violations had indeed been already committed to a

certain extent, as by mine-laying. This was the point where Germany, in

accordance with the international concept of the right of self-defense,

was entitled to resort to equivalent countermeasures, that is, to occupy

Norway in order to prevent the impending occupation by other belligerent

states. It was, in fact, as was shown later, high time; for Germany

forestalled the Allies only because the British High Command had

postponed the departure of the first convoy, originally scheduled for 5

April. The German operation in Norway must therefore be considered as

legitimate according to the principles of international law.

I have the firm conviction that the High Tribunal, in view of the

circumstances just presented in connection with existing international

law, will conclude that Admiral Raeder, with regard to the occupation of

Norway, acted from purely strategic points of view and in due

consideration of international legal standards, and accordingly will

acquit him of the charge made by the Prosecution.

With reference to Norway, the Prosecution has moreover charged against

Raeder—and also against Dönitz—that a violation of international law

is involved in the fact that, according to an order dated 30 March 1940,

the Naval Forces were to fly the British ensign until the troops had

been landed (Documents C-151, Exhibit GB-91; C-115, Exhibit GB-90).

This too is an error of the Prosecution as regards international law in

sea warfare. The Hague Regulations on Land Warfare do expressly forbid

the misuse of flags. In sea warfare, on the other hand, the answer to

this question according to prevailing international law is definitely

that, until hostilities begin, ships may sail with their own or with

enemy or neutral flags or with no flags at all. I take the liberty, in

this respect, of availing myself of Dr. Mosler’s juridical treatment of

the question in his opinion (Document Raeder-66), appearing under Item

7, and in particular of his references to legal literature on the

subject, according to which the use of a foreign flag is universally

considered as a legitimate ruse of war and is allowed and especially

condoned by British practice; this is in accordance with the historical

precedent when Nelson, in the Napoleonic wars, flew the French flag off

Barcelona to lure Spanish ships. This dispute is, however, superfluous

in the present case, because actually these orders to fly the British

flag were according to documentary evidence canceled on 8 April, that is

to say, prior to the execution of the Norway operation (Document

Raeder-89).

In conclusion I wish to emphasize, with reference to the subject of

Norway, that after the occupation of Norway Raeder and the German Navy

did everything they could to give a friendly character to the relations

with Norway, to treat the country and the people decently during the

occupation, and to spare them every unnecessary burden. Raeder and the

commanding admiral in Norway, Admiral Böhm, moreover endeavored to

conclude a peace with Norway guaranteeing Norwegian national interests.

Their efforts were frustrated through the creation by Hitler and Himmler

of a so-called civil administration under Reich Commissioner Terboven

which, unlike the Armed Forces, was linked with the Party, the SS, SD,

and Gestapo (Documents Number Raeder-107 and 129). As confirmed by Böhm

in his affidavit, Raeder repeatedly intervened with Hitler in favor of

treating the Norwegian people well and for an early conclusion of peace

and, together with Böhm, proceeded with the utmost vigor against

Terboven. Here again, the tragic fact is that the Armed Forces, despite

its utmost efforts, was neither able to oppose Hitler’s dictatorial

methods nor the dictatorial methods employed, with Hitler’s knowledge,

by such a mediocre Reich Commissioner as Terboven. The Norwegian people

who had to suffer under the occupation know—and this is the only

gratification for Raeder—that the Navy was not the cause of these

sufferings. On the other hand, it is interesting to know that the

differences which cropped up between Hitler and Raeder with reference to

Norway are precisely among the chief motives which ultimately caused

Raeder to insist upon his resignation in September 1942. Other motives

were that Raeder also had differences with Hitler over France, because

here again Raeder urged the conclusion of peace, while Hitler, with his

extreme nature, was opposed to conciliatory steps of that kind in

occupied territories. Raeder also had differences with Hitler regarding

Russia, because he was in favor of observing the German-Russian treaty,

and declared himself opposed to breaking the Treaty and going to war

with Russia.

THE PRESIDENT: We will adjourn now.

[_A recess was taken._]

DR. SIEMERS: I now come to the charge of the Prosecution with regard to

a war of aggression against Russia. The charge of the Prosecution on

this subject cannot be very well understood. Land warfare only was

concerned, so that the Navy did not have to make any preparations, with

the exception of a few in the Baltic Sea. The Prosecution itself has

furthermore stated that Raeder had been opposed to the war against

Russia. The only thing which might be left of the charge of the

Prosecution is its claim that Raeder had fundamentally been in favor of

the war against Russia also and had only been opposed to Hitler with

regard to the time factor. With reference to Document Number C-170 the

Prosecution states that Raeder had only recommended the postponement of

the war against Russia until after the victory over Britain. In the

light of Document C-170 this actually might appear plausible. In

reality, however, the case is different, and the true state of affairs

has been cleared up by the detailed presentation of evidence. The

witness Admiral Schulte-Mönting has clearly stated, without being

contradicted in cross-examination, that Raeder not only raised

objections with regard to the time but that he argued with Hitler about

a campaign against Russia and did so for moral reasons and reasons of

international law, because he was of the opinion that the Non-Aggression

Pact with Russia as well as the trade agreement should be observed under

all circumstances. The Navy was especially interested in deliveries from

Russia and always tried to observe the treaties strictly. Besides this

basic principle of observing treaties, that is, besides this general

reason, Raeder was of the opinion that a war against Russia would also

be wrong from the strategic standpoint. His own testimony and that of

Schulte-Mönting show that in September, November, and December 1940

Raeder tried again and again to dissuade Hitler from contemplating a war

against Russia. It is correct that in Document C-170 only the strategic

justification for his opposition has been recorded. However, this is not

at all surprising because in the papers of the Naval Operations Staff

naturally only justifications were recorded which were of

naval-technical and strategic importance, but not political reasons.

I have already shown that as a general principle Hitler did not permit

Raeder, as Commander-in-Chief of the Navy, to intervene in questions

concerning foreign policy, that is to say, in things which did not

belong in his department. If Raeder did on occasion undertake this

contrary to the will of Hitler in cases of special importance, then he

could do so only privately, and was then unable to record these

conversations in the War Diary. However, he always told everything to

his Chief of Staff as his closest confidant. As a result Schulte-Mönting

could absolutely confirm that Raeder in this case opposed Hitler because

of misgivings with regard to morality and international law, and

furthermore also employed strategic reasons in the hope of thus being

able to bring more influence to bear on Hitler. Schulte-Mönting even

stated—just like Raeder—that in November the latter had gained the

impression, after a discussion, that he had dissuaded Hitler from his

plans. I believe that this has clarified the matter, and only the tragic

fact remains that Hitler paid just as little attention to Raeder’s

political objections with regard to Russia as with regard to Norway and

France.

A similar situation obtains with regard to the charge of the Prosecution

referring to the war of aggression against the United States and the

violation of the neutrality of Brazil. Both of these charges are

sufficiently refuted within the framework of the evidence, so that I am

only going to discuss them very briefly.

According to the statement of the Prosecution, Raeder somehow

collaborated in the plan to induce Japan to attack the United States. As

a matter of fact no naval strategic conferences were held between Japan

and Raeder. Raeder always held the conviction that a war against the

United States must be avoided just as much as a war against Russia. This

attitude is understandable seeing that he had always held the opinion

that Hitler should under no circumstances wage a war against Britain.

Since the war against Britain had now come about, it was Raeder’s duty

as Commander-in-Chief of the Navy to use all his strength to fight

successfully against Britain. Raeder knew the limitations of the

fighting capacity of the Navy; and it was, therefore, quite out of the

question that he should have collaborated in an extension of the naval

war, considering, as he did, that the conduct of a war against Britain

was already a too difficult task. Document C-152 submitted by the

Prosecution therefore mentions only a proposition that Japan should

attack Singapore and is based on the assumption that the United States

should be kept out of the war. This suggestion made to Hitler that Japan

should attack Singapore was correct in every respect. After all, we were

at war with England, and Raeder was forced to try to concentrate all his

forces against that country. He was thus justified in suggesting that

Japan—as Germany’s ally—should attack England. Moreover this, the only

discussion by Raeder, was not held until 18 March 1941, while Hitler had

already in his Directive Number 24 of 5 March 1941 established the

guiding principle that Japan must attack Singapore, which he considered

a key position of Britain (Document C-175).

I should like to interpose one sentence here. It can be seen from the

report by General Marshall that no common plan had been found to exist

between Germany and Japan.

As Schulte-Mönting has affirmed, Raeder was just as surprised by the

sudden attack by Japan on Pearl Harbor as every other German. The

attempt of the Prosecution to discredit this statement during the

cross-examination of Schulte-Mönting by introducing a telegram from the

naval attaché in Tokyo to Berlin, dated 6 December 1941 (Document

D-872), failed. In the first place Raeder probably only received this

telegram after the Japanese attack on Pearl Harbor on 7 December had

already started; and besides, Pearl Harbor is not mentioned at all in

the telegram.

The charge of the Prosecution with regard to Brazil has been refuted

just as effectively because, after my statements during the hearing of

evidence, the Prosecution did not revert to this point in any of the

cross-examinations of Raeder, Schulte-Mönting, and Wagner. The charge

was that, according to Jodl’s diary, the Naval Operations Staff

authorized and approved the use of arms against Brazilian warships and

merchant vessels fully 2 months before the outbreak of war between

Germany and Brazil (Document 1807-PS).

Apart from the testimony of witnesses, this case is refuted by

documents, namely, the complete excerpt from Jodl’s diary which I

submitted as Exhibit Number Raeder-115, as well as by Documents Number

Raeder-116 to 118. These documents reveal that Brazil had violated the

rules of neutrality by permitting the United States to make use of

Brazilian airfields as a base for attacks on German and Italian U-boats.

The Brazilian Air Ministry had furthermore officially announced that

attacks had been made by the Brazilian Air Force. Considering such

conduct, which is against all the rules of neutrality, the demand of the

Naval Operations Staff for armed action against Brazilian vessels is

justified. So here again the Prosecution failed to prove Raeder to have

committed a crime or even a violation of international law.

The Prosecution has very painstakingly submitted an exceedingly large

amount of material, and the wealth of detail called for great care in

the submission of evidence for the Defense. I have endeavored to deal

with all the charges in the submission of evidence or in my final plea,

and have made efforts to show as clearly as possible that none of them,

partly on factual, partly on legal grounds, comply with the requirements

of a criminal case within the meaning of this Charter. Insofar as I have

not, in spite of my desire for great exactitude, dealt with certain

documents, it was because they seemed to me of small importance and in

any case of no importance in criminal law; for instance, the many cases

in which Raeder was only mentioned because—without officially taking

any part—he received a copy of the documents for routine reasons. It

would have been tedious to go into such recurrent cases, even if the

Prosecution reiterated these formal indications, so that one was often

tempted to recall the saying of Napoleon that repetition is that turn of

speech which acts as the best evidence.

I further believe that in my final plea for Admiral Raeder I may forego

argumentation regarding genuine war crimes, the crimes against humanity,

since I am unable to establish any connection between these and Raeder

from the material submitted by the Prosecution. Also no particular

charge is made against Raeder in this connection, with the exception of

the two cases connected with the Commando Order, namely, the shooting of

two soldiers in Bordeaux and the shooting of the British soldier Evans,

who was made a prisoner by the SD on the Swedish border after he had

previously participated in the midget submarine attack on the _Tirpitz_.

Thus far the charge has been refuted by testimony insofar as it concerns

the Navy. Both cases did not come, or came only later, to the knowledge

of the Naval Operations Staff—just before Raeder’s departure. In both

cases action was taken on the basis of the Commando Order by Hitler

himself or by the SD without the knowledge and will of the Naval

Operations Staff; and what is most important, in both cases the

documents of the Prosecution showed that these soldiers were in civilian

clothes and, therefore, were not entitled to the protection of the

Geneva Convention (Document Number D-864, Exhibit GB-457 and Document

UK-57, Exhibit GB-164).

All the other criminal facts which the Prosecution submitted, especially

applying to the East, I need not deal with, as Raeder did not

participate in them. I hope that here also I shall have the approval of

the Court in mentioning the handling of the Katyn case, in which the

Court pointed out that Raeder was not involved and therefore refused to

allow me to act as defense counsel in this connection; from this I draw

the legal conclusion that Raeder cannot even by implication through the

conspiracy be considered as burdened with these criminal facts, since he

did not know of these events and had nothing to do with them.

The case for the Prosecution is founded on a desire to see its basic

theory accepted and acknowledged, namely, the conception that so many

crimes cannot have emanated from the will of a single individual but

rather that they result from a conspiracy, a plot, involving many

persons. These conspirators could logically, in the first place, only

have been Hitler’s own collaborators, that is to say, the real National

Socialists. Since however, Hitler wished to achieve and did achieve

concrete results of military and economic import, something peculiar

transpired: There were no specialists among the National Socialists for

these tasks. Most of the National Socialist collaborators had not

previously followed a trade providing technical education. Hitler,

therefore, despite his desire to have only National Socialists around

him, took on as key people in particular fields specialists who were not

National Socialists, such as for instance Neurath for politics, and

Schacht for economics; and for military tasks, Fritsch for the Army and

Raeder for the Navy. The Prosecution followed this process from the

angle of its conspiracy theory, without paying attention to the fact

that these people, not being National Socialists, could in no way be

counted among the conspirators and without taking into account that

Hitler used these non-National Socialists only as technicians in a

well-defined field, and only as long as it seemed absolutely necessary

to him; therefore he agreed to the departure of these men, who were

essentially not in sympathy with him, as soon as the differences between

them seemed unbridgeable, which was bound to happen sooner or later with

each of them, depending on the particular field involved.

By this all-embracing conception of the idea of conspiracy and by this

extension of the Prosecution’s fight to non-National Socialists, the

Prosecution abandoned the basic concept formerly propagated abroad,

namely, that of fighting National Socialism but not against the whole of

Germany—two ideas which at no time and in no place have been really

identical, as the Prosecution now tries to make out. I do believe that

thereby the Prosecution is also going back on President Roosevelt’s

basic idea.

Yet another factual and legal point of view has not been taken into

consideration by the Prosecution. I mean the concept of the division of

competence under state law, that is to say the subdivision into

individual departments. This division of competence, founded on the idea

of division of labor, is essentially separative in character; it divides

the field of work according to local, functional, and technical points

of view. Thereby it defines positively the limits within which each

division is to become active, and at the same time it defines negatively

the boundaries of such activity by specifying which problems no longer

concern the agencies in question, that is to say, where they must not

exercise any official activity.

In a democracy additional contacts exist by virtue of general Cabinet

meetings and through the Prime Minister, the Reich President, or the

Reich Chancellor, as the case may be. In a dictatorship it is different,

particularly if the dictator, as was the case with Hitler in the

National Socialist State, exploits the segregation of the various

departments with extreme skill and sees to it that they are kept as

isolated as possible, with the result that all power of decision rests

finally with him as the dictator, who may even play off one department

against the other. The strict partitioning into governmental departments

as carried out in the National Socialist State in itself refutes the

concept of conspiracy and renders it extremely difficult for the

individual to exceed the limits of his own department in any manner.

This significance may be illustrated by the following example: The

maintenance of political relations with other states, the contracting or

cancellation of agreements or alliances with other states, the

declaration of war and conclusion of peace, are matters within the

jurisdiction of the authority directing foreign affairs; but they are

not within the jurisdiction of the agencies concerned with domestic

tasks, such as for instance the Reich Finance Administration, Justice,

or the Military.

Thus, since the decision concerning war and peace is not a matter for

the military, the military has to accept the decisions made by the

political leadership, decisions which have a binding material effect on

the military authorities. The military commander must assume for his

department the consequences resulting from the decision. As soon as war

is declared, the military forces must fight. They do not bear any

responsibility for the war, since they were not able to take part in the

decision that war should be declared. Consequently, for an army the

concept of war of aggression exists in the strategic sense only. Aside

from that, any war it may be obliged to wage is, to the army, simply

war, regardless of how it may be qualified legally (Article 45 of the

Reich Constitution).

Responsibility, from the point of view of state law and criminal law, is

in proportion to the extent of jurisdiction. Therefore, if the

commander-in-chief of a branch of the Armed Forces is responsible solely

for the waging of war, though not for the causes leading to war, his

responsibility in respect to a strategic plan must be confined to the

plan as such, but not to the possible origin of the war for which the

strategic plan was worked out.

This officially and legally important segregation of governmental

departments and the distribution of authority was, in the interest of

strengthening his own power in a particularly emphatic manner, carried

out by Hitler in many domains, such as for instance the creation of the

“Delegate for the Four Year Plan,” whose field of work should have

belonged to the Ministry of Economics; the creation of Reich

Commissioners in the occupied territories, whose activity really should

have come under military administration; and, finally, a fact of

interest in the Raeder case, the very precise delimitation of the three

branches of the Armed Forces and the elimination of the Reich Defense

Minister or Minister of War who held the three branches of the Armed

Forces together and unified them. The greater the number of governmental

departments became, the stronger Hitler became as dictator, being the

only person with authority over all the innumerable agencies. But along

with this the official as well as the legal responsibility for strategic

plans on the part of any one individual department decreased; in this

instance, that of the Navy.

Consequently, the commander-in-chief of a branch of the Armed Forces,

for instance the Navy, can in case of strategic planning only be

responsible for the planning of naval strategy; he is not afforded an

over-all picture of the total plan. The total plan was discussed

nowhere; politically and militarily it was in Hitler’s hands

exclusively, because he alone was the center where all threads, all

activities of the individual departments joined.

May I add a sentence here and remind you that, for instance, in the case

of the Norway action even Göring was not informed until March 1940,

which is one proof of the extreme segregation of the individual

departments within the Armed Forces. In addition, purely strategic

planning as such cannot be criminal, because it is customary in every

country and because in every country the military commander of a branch

of the Armed Forces does not and cannot know to what end the political

leadership will use the plan prepared by him, whether for a war of

aggression or a defensive war.

The documents submitted in my document books prove convincingly that the

military agencies in Allied countries as well as in Germany worked out

strategic plans in the same manner, for the same areas, and at the same

times, namely, in regard to Norway, Belgium (Documents Number Raeder-33

and 34), Holland, Greece, Romania; moreover, the Allied plans included

the destruction of the Romanian oil fields and especially of the oil

sources in the Caucasus (Document Number Ribbentrop-221 and Number

Raeder-41). Particularly the plans concerning the Caucasus on the part

of the Supreme Council, that is, the combined British and French General

Staff, show the correctness of the statements. The Supreme Council would

certainly refuse to be made politically responsible for these strategic

plans, although the Soviet Union was still neutral at the time and the

execution of the plans was to strike a blow not only at an enemy

country, Germany, but also at a neutral, the Soviet Union, as the

documents show.

The similarity of the documents concerning such plans is absolutely

convincing and shows a strong parallel trend. May I point in this

connection to statements I made here on occasion of the comprehensive

discussion regarding the relevance and admissibility of the documents

submitted by me; may I point, in addition, to Document Number

Raeder-130, the letter of the Foreign Office, in which submission of the

British Admiralty files is refused but in which the plans in regard to

Norway and the whole of Scandinavia are admitted, with the remark that

the plan was not put into effect, which fact was due only to Germany’s

having forestalled the execution of the plan.

Anyone is entitled to be a pacifist and, therefore, basically opposed to

the military. However, one must be consistent and take a stand not only

against German military force but against any military force. One may

condemn the fact that the military, as the operational authority,

prepares military plans; and one may for the future insist that such

planning shall be punishable. But in that case not only German military

planning, but foreign military planning also must be punishable.

These points show that the Prosecution misjudges both actual and legal

conditions in desiring to make Raeder responsible for political

decisions, although he had nothing to do with them but always worked

simply as a soldier. Just as there could be no suggestion 130 years ago

of bringing before a court an admiral of Napoleon, the dictator, it is

impossible now to condemn an admiral of Hitler, the dictator. With

dictators, in particular—and this the Prosecution overlooks—not only

the power and the influence of a military commander diminishes, but his

responsibility must also diminish to the same extent, for the dictator

will have seized all power and with it all responsibility—especially if

he is possessed of such an extraordinary will and such immense power as

Hitler. The French prosecutor stated literally and very aptly on 7

February 1946 before this Tribunal: “Hitler was actually the incarnation

of all will.”

The resulting strength and power has not been sufficiently appreciated

by the Prosecution, and has certainly not been taken into consideration

in the presentation of the facts and the legal conclusions. How great

this power is, Gustave le Bon shows in his famous book _Psychology of

the Masses_ (published by Alfred Kröner) in the chapter entitled, “The

Leaders of the Masses.” I quote from it:

“Within the class of leaders quite a strict division can be

made. The energetic people with strong wills but without

perseverance belong to the one kind; the people with a strong,

persevering will belong to the other kind, which is much

rarer.... The second class, those with a persevering will,

exercise a much greater influence in spite of their less

brilliant appearance.”

Hitler belongs to this second class of leaders, who, in accordance with

this quotation, exercised an immense influence while, on the other hand,

he was definitely unimpressive in his brown uniform.

Gustave le Bon continues:

“The unyielding will which they possess is an exceedingly rare

and exceedingly powerful attribute which subdues everything. One

does not always realize what a strong and persistent will can

achieve. Nothing can resist it, neither nature, nor gods, nor

men.”

These words make it clear enough that Raeder could not resist either.

Accordingly, only the question remains: Is it ever a soldier’s duty to

revolt—to resort to open mutiny? This question will be denied by every

commander all over the world and likewise by every other person with a

sole exception, namely, if it concerns the case of a dictator commanding

the commission of a crime, the criminality of which is recognized by the

military commander himself. Accordingly Raeder could be made responsible

for a military crime only, but not for a political one, because for the

political crime the dictator himself must answer. When the Prosecution

came to the opposite conclusion regarding Raeder, this was due—as I

have already emphasized in my introduction—only to their misconception

of the actual and juridical facts; they regarded Raeder as politician

and soldier. But he was a soldier only. He lived for the Navy alone, for

the welfare of the Navy, for which he is now equally prepared to bear

responsibility to the full extent. He led the Navy along uniform lines

and, aided by his officer-corps, taught it those decent views and that

form of chivalrous fighting which humanity expects of a soldier. It must

not be allowed to happen that, as a result of the deeds of a Hitler and

his National Socialism, the officers and soldiers of this Navy be

defamed by hearing their highest-ranking officer declared a criminal.

From a historical viewpoint Raeder may be guilty, because he, like many

others within the country and abroad, did not recognize or see through

Hitler and did not have the strength to resist the dynamic strength of a

Hitler; but such an omission is no crime. What Raeder did or left undone

in his life occurred in the belief that he was acting correctly and that

as a dutiful soldier he had to act in such a way.

Raeder is a highly esteemed officer who is no criminal; and he cannot be

a criminal, since all his life he has lived honorably and as a

Christian. A man who believes in God does not commit crimes, and a

soldier who believes in God is not a war criminal.

I therefore ask the High Tribunal to acquit Admiral Dr. Erich Raeder on

all points of the Indictment.

PRESIDENT: I call on Dr. Sauter for the Defendant Von Schirach.

DR. SAUTER: Gentlemen of the Tribunal, Baldur von Schirach, who at that

time was Reich Youth Leader, in 1936 welcomed the guests to the Olympic

Games in Berlin with the following words:

“Youth throws a bridge across all frontiers and seas! I call

upon the Youth of the World and through them, upon Peace!”

And Baldur von Schirach, then Gauleiter of Vienna, said to Hitler in

1940: “Vienna cannot be conquered with bayonets, but only with music.”

Those two utterances are characteristic of the nature of this defendant.

It is the task of the Defense to examine the evidence produced in this

Trial for the purpose of ascertaining whether the same Baldur von

Schirach, who expressed such thoughts, really committed those crimes

against law and humanity with which he is charged by the Prosecution.

Schirach is the youngest defendant here. He is also, of all the

defendants, the one who was by far the youngest when joining the Party,

which he did when he was not yet 18. Those facts in themselves are

perhaps of some significance in judging his case. When still at school

he came under the spell of rising National Socialism; he was

particularly attracted by the Socialist idea, which had already in his

country school recognized no difference between the sons of fathers of

different classes and professions; those boys around Schirach saw in the

popular movement of the twenties in Germany a promise of the resurgence

of our fatherland from the aftermath of the lost Great War into a happy

future; and fate willed it that as early as 1925, when he was seventeen,

Schirach came into personal contact with Hitler in Weimar, Goethe’s

home. Hitler’s personality made a fascinating impression on young

Schirach, as he himself admitted; the program for the National Community

(Volksgemeinschaft), which Hitler had evolved at that time, met with

Schirach’s wholehearted enthusiasm, because he thought he saw reproduced

therein on a full-size scale that which he had personally experienced in

a small way in the comradeship of the country school and in his youth

organization. To him and his comrades Hitler appeared as the man who

would open for the younger generation the road into the future; of him

this younger generation had hopes for its prospects of work, its

prospects of a secure existence, its prospects of a happy life. Thus the

young man became a convinced National Socialist; this fact was the

result of the environment in which he had spent his youth and which

formed a soil only too fertile for the growth of that ideology which

young Schirach embraced because at that period he held it to be the

right one. This environment of his childhood and a vast amount of

one-sided political literature, which the young man devoured in his

thirst for knowledge, made of him, while still an inexperienced youth,

also an anti-Semite. He certainly did not become an anti-Semite in the

sense of those fanatics who ultimately did not shrink even from acts of

violence and pogroms, of those who finally created an Auschwitz and

murdered millions of Jews; but an anti-Semite in the moderate sense, who

would merely curb Jewish influence in the government of the state and in

cultural life but for the rest would leave untouched the freedom and

rights of Jewish fellow citizens and who never thought of exterminating

the Jewish people. At least that is the conception of Hitler’s

anti-Semitism which young Schirach evolved during those years.

That this was really Schirach’s opinion is also substantiated by the

statement which Schirach made here on the morning of 24 May 1946, when

he described without reservation the crimes committed by Hitler as a

shameful episode in German history, as a crime which fills every German

with shame; that statement in which he openly states that Auschwitz must

signify the end of any and every racial and anti-Semitic policy. That

statement here in this courtroom came from the bottom of the heart of

the Defendant Schirach; it was the result of the terrible disclosures

which this Trial brought to him also, and Schirach made this statement

here openly before the public in order to bring back German youth from a

wrong path to the road of justice and tolerance.

Trial of the major war criminals before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, volume 18 · 第 20 / 24 题