Chapter XIX: Part 4: , Book 20, as follows (4)

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.