Chapter XX: Part 4: , Book 20, as follows (5)

All the more important is the question of the retroactive effects of joining the conspiracy, as has been illustrated by the British Prosecutor by the example of the perpetrators of railway sabotage. This idea of guilt, retroactive on past events, is very difficult for the German jurist to understand. The continental concept of law is reflected by the formulation of Hugo Grotius: “To participate in a crime a person must not only have knowledge of it but also the ability to prevent it.”[35]

While the entire legal concept of the conspiracy in itself represents a special creation of Anglo-Saxon justice in our eyes, this applies even more to the retroaction of the so-called conspiracy. A judgment laying claim to international validity, one which should be understood by the peoples of Europe and especially by the Germans, must be based upon generally recognized principles of law. This, however, is not the case regarding a retroactive guilt. Though such a legal construction may seem fitting in dealing with certain typical crimes, it seems to me entirely inapplicable in judging events such as are being discussed here.

Admiral Dönitz became the Commander-in-Chief of the Navy in the course of a normal military career entirely free of politics. The appointment was based upon the proposal of his predecessor, Grossadmiral Raeder, for whom his proven abilities in the guidance of U-boat warfare alone were the determining factor. Specific acceptance of the appointment was no more required than in the case of an appointment to any other military position. Admiral Dönitz entertained the sole thought, as any officer might well have done in a similar position, whether he would be equal to the task and whether he could accomplish it in the best interest of the Navy and of his people. All other considerations which the Prosecution apparently expected of him during this period, namely, as to the legitimacy of the Party Program and of the policy of the Party from 1922 on, as well as German internal and foreign policy since 1933, can be but fictitious; they have nothing to do with the facts. Fictions of such nature are not limited by time nor by reality. Is the responsibility for past measures on taking over a high position to extend only to acts of the present cabinet, or is it to extend to acts of former cabinets, and over what period? Is it to comprise only one’s own internal and foreign policy or is it to include one’s allies? Such considerations cannot be refuted logically; however, they lead to unacceptable results and show the impracticability of the idea of retroaction regarding the so-called conspiracy.

To measure by exact standards the participation in such a conspiracy is difficult enough, if events not of a criminal but of a military and political nature are involved. Of what meaning are such concepts as “voluntary accession” and “knowledge of the criminal plan” when in times of greatest danger an officer assumes the task to prevent the collapse of his nation’s maritime warfare?

Even the Prosecution seems to realize this. For, corresponding to their general idea, they attempt to link Admiral Dönitz with the conspiracy in a political way. This is accomplished by the assertion that he became a member of the Reich Cabinet by virtue of his appointment to the High Command of the Navy. This allegation is based upon the decree whereby the Commanders-in-Chief of the Army and of the Navy were invested with the rank of Reich Minister and upon the order of Hitler were to participate in Cabinet meetings.

It is evident that one is not actually a Reich minister merely by being invested with the rank of Reich minister. Also one is not a member of the Cabinet if one is only permitted to participate in it upon special orders. This obviously indicates that he was only to be consulted on technical matters, but never had authority to gain information about other departments, much less to give advice. One cannot, however, speak of a political task and a political responsibility without the existence of such an authority. For an activity as a minister all legal basis is lacking. According to the Reich Defense Law there existed for the entire Armed Forces but one minister, the Reich War Minister. This post remained unoccupied after the resignation of Field Marshal Von Blomberg. The business of the ministry was conducted by the Chief of the High Command of the Armed Forces. A new ministry was not created either for the Army or for the Navy. The Commanders-in-Chief of the Army and of the Navy therefore would have had to be ministers without portfolio. Since, however, they each headed a department, namely, the Army and the Navy, such an appointment would have constituted a contradiction to all legal customs of the State. The countersigning of all laws in which the minister participates according to his jurisdiction must be considered the basic criterion of all ministerial activity. There exists not a single law which was countersigned by the Commander-in-Chief of the Navy. I have demonstrated this to the Tribunal by the example of the Prize Ordinance. That is to say that, even applying the legal standards of a democratic system, the Commander-in-Chief of the Navy cannot be designated as a member of the Reich Cabinet, because he lacked all authority of participation in legislative acts and every collective responsibility for policies assumed. His task was, and remained, a military one even though for reasons of etiquette he was put on an equal basis in rank with other Reich ministers.

The Prosecution themselves realized that a Reich Government in the constitutional sense no longer existed during the war, and consequently stated that the actual governing was carried out by those who participated in the situation conferences at the Führer’s headquarters. As all witnesses examined here stated, we are concerned here with events of a purely military nature, where incoming reports were presented, military measures discussed, and military orders issued. Questions of foreign policy were only very rarely touched upon if they had any connection with military problems; they were, however, never discussed and no decision was rendered on them in these Führer conferences on the situation. Internal policy and the security system were never on the agenda. Insofar as nonmilitary persons participated, they were attendants or listeners who gathered information for their respective departments.

The Reichsführer SS or his deputy were present for the command of the Waffen-SS, and during the last year of war also for the Reserve Army. Admiral Dönitz always participated in these Führer conferences when he was at the Führer’s headquarters. Notes taken down by whoever accompanied him on all these meetings and discussions of the Commander-in-Chief are all in the possession of the Prosecution. As the Prosecution has not presented a single one of these notes from which it would appear that the Commander-in-Chief of the Navy participated in reporting on or in discussing and deciding affairs of a political nature, one can assume that such notes do not exist.

Thus the testimony of witnesses has been confirmed according to which the Führer conferences had nothing whatever to do with governing in a political sense, but were exclusively an instrument of the military leadership. Therefore, an over-all responsibility of Grossadmiral Dönitz for all events that occurred since 1943, which in the course of this Trial have been designated as criminal, certainly does not exist. Consequently, I shall deal only with those individual allegations by which the Prosecution tries directly to connect Admiral Dönitz with the conspiracy. I believe I am all the more justified to proceed in that manner, as a short time ago the Tribunal refused the cross-examination of witnesses in the Katyn case with the argument that no one was accusing Admiral Dönitz in connection with this case. I conclude, therefore, that at any rate in the eyes of the Tribunal he is only accused of such cases wherein he allegedly directly participated.

To begin with, this does not apply to the Führer’s order for the extermination of sabotage Commandos, dated 18 October 1942. The Prosecution has tried to establish that this order had been presented to Admiral Dönitz in detail, together with all possible objections, shortly after his assumption of the position of Commander-in-Chief of the Navy. It has failed to establish this assertion. In fact Dönitz, as he himself admits, did read or have presented to him the order in question in the autumn of 1942 in his capacity of Commander of U-boats, and in the same form in which the front-line commanders received it.

I do not wish to speak here of the circumstances which led to objections against this order on the part of the High Command of the Armed Forces. Indeed, all these circumstances could not be discernible to one who received this order at the front. For such a man it was a matter of reprisal against saboteurs who seemed to be soldiers, but did not fight according to the regulations which are binding upon soldiers. Whether such reprisals were admissible at all according to the Geneva Convention, and to what extent, could not be judged by, nor did that come within the competence of, the recipient of the order. Every superior officer, at any rate, probably recognized that the order not to grant any pardon, and to hand over such persons in certain cases to the SD, was in itself an infringement of the rules of war. However, since the essence of any reprisal is to avenge a wrong on the part of the enemy with a wrong on one’s own part, this does not prove anything concerning the legitimacy or illegitimacy of the reprisal order. If no one but the leadership of the State is competent to order reprisals, then hundreds or thousands of German officers cannot be required today to have considered themselves also competent, and to have been presumptuous enough to verify orders whose actual and legal basis was entirely unknown to them. In this case the principle prevails, at least for the front-line commanders, that the subordinate may, when in doubt, rely on the order as given.[36]

Now, the Prosecution seems to be of the opinion that Admiral Dönitz a few months later, when he had become Commander-in-Chief of the Navy, had the opportunity and also the obligation to inform himself as to the basis of the Commando Order. This conception fails to appreciate the duties of a Commander-in-Chief of the Navy. He has to wage naval war. The whole German naval war, especially submarine warfare, in the spring of 1943, owing to huge losses inflicted by the enemy air force, was on the verge of collapse. These were the worries with which the new Commander-in-Chief had to cope, in addition to an abundance of new problems concerning the Navy which were coming up. How can one require such a man as in the quietest of times to cope with an order of remote date, which had nothing whatever to do with naval warfare? On the contrary, a special paragraph explicitly excluded prisoners taken during naval operations.

A word or two on the channels of command. The naval units were under the control of the Naval Operations Staff only in those matters which belonged to the duties of the Navy, that is to say, naval warfare and coastal defense by artillery. Concerning so-called territorial questions they were not subordinate to the Naval Operations Staff but to the Armed Forces commander of the theater of war in which their basis was established. Orders concerning such measures of war on land were given without collaboration on the part of the Naval Operations Staff and their execution was not reported to them. Just as hardly anyone can think seriously of holding a general responsible for German submarine warfare, just as little, in my opinion, does it seem justified to hold an admiral responsible for orders given in land warfare.

Mr. President, I have come to the end of a section.

THE PRESIDENT: Certainly. We will break off.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

FLOTTENRICHTER KRANZBÜHLER: Before the noon recess I was discussing the fact that units of the Navy were not subordinate to the Naval Operations Staff in matters affecting warfare on land.

This channel of orders for territorial questions also explains the complete ignorance of Admiral Dönitz and of his colleagues in the Naval Operations Staff about the delivery to the SD of the crew of the Norwegian motor torpedo boat _MTB 345_ after its capture by units under Admiral Von Schrader. As the testimony of witnesses and the records of the Oslo War Crimes Court show, the Naval Operations Staff only received an operational report about the capture of the boat and the number of prisoners. All other details, the discovery on board of material for sabotage, of civilian suits and sabotage orders, and the treatment of the crew as saboteurs according to the Commando Order were regarded as territorial matters, and as such dealt with by Admiral Von Schrader and the Armed Forces commander in Norway. The decision regarding the fate of the crew came from the Führer’s headquarters in reply to an inquiry from Gauleiter Terboven. Not only is there no proof that the Naval Operations Staff took part in those territorial questions, but this must in fact be considered refuted on the basis of the evidence submitted and the chain of command as explained.

I regard as the second attempt of the Prosecution to establish a participation in the alleged conspiracy to commit war crimes the submission of Admiral Wagner’s minutes on the question of withdrawal from the Geneva Convention in the spring of 1945. The details are contained in Wagner’s testimony, according to which the Führer pointed out in a conference on 17 February that the enemy propaganda about the good treatment of prisoners of war was clearly having an influence on the units fighting on the Western Front, and that many cases of desertion to the enemy were being reported. He ordered that the question of a withdrawal from the Geneva Convention be investigated. In this way he wanted to convince his own soldiers that they could no longer rely upon receiving good treatment as prisoners of war, and thus create a countereffect against enemy propaganda. Two days later Hitler returned to this idea, although he then put forward another reason as the main one. He termed enemy warfare in the East and the bomb attacks on the German civilian population an outright renunciation of international law by the enemy, and he, for his part, also desired to free himself from all obligations by withdrawing from the Geneva Convention. Once more he asked for the opinion of the Armed Forces in this matter and addressed himself directly to Grossadmiral Dönitz, who did not answer. The attitude of the military leaders on this matter was unanimously negative.

On the next day, just before the daily conference on the situation, a 10-minute conversation took place between Grossadmiral Dönitz, Generaloberst Jodl, and Ambassador Hewel; in the course of this conversation Dönitz expressed his negative attitude. According to the notes of Admiral Wagner he said that “it would be better to take the measures considered necessary without previous announcement and, at any rate, to save face before the world.” The Prosecution sees in this a readiness and a design to expose hundreds of thousands of Allied prisoners of war to arbitrary murder.

Admiral Dönitz himself has no recollection of this sentence. That is not surprising, as this is not a record, but a summary of a lengthy conversation in four sentences, the summary being worded on the day after the conversation by Admiral Wagner. This summary admits that the Grossadmiral disapproved of any “wild measures” which would put us in the wrong from the beginning, and considered justifiable only measures actually warranted by the conduct of the enemy in each case. Since Wagner himself, as the author of the transcript, should know best what he meant thereby, I personally cannot add anything to this statement. The interpretation of the Prosecution is equally little supported by other circumstances. There was no question at all of keeping any measures secret; they had to be made known, regardless of whether they were meant to deter our own deserters or as reprisals. But Wagner’s note does not mention any kind of concrete measures to be taken, and all witnesses present at this situation conference in Hitler’s headquarters state that not a word was spoken on that subject. The idea of killing prisoners of war could not, therefore, have been present in the minds of any of the participants in this discussion which Wagner noted down.

Now it has come to light here, through the statements of the Defendants Ribbentrop and Fritzsche, that apart from the action for which he was preparing the ground during the discussion with the generals, Hitler had evidently at the same time planned a second action, in which only Goebbels and Himmler were to participate, and which by chance also came to Ribbentrop’s knowledge. In this action the shooting of thousands of prisoners of war seems to have been contemplated as a reprisal against the air attack on Dresden. Hitler, very wisely, did not give the slightest indication of such a plan to the generals. This plan was not followed up and no reprisals were taken.

And now I return to the facts. It is a fact that Admiral Dönitz disapproved of the withdrawal from the Geneva Convention, and that Hitler, in view of the attitude of all military leaders who clearly opposed it did not follow up the idea any further. It is also a fact that no measures in violation of international law were taken by the Germans as a result of this remark which the Prosecution has criticized, and finally it is a fact that enemy sailors who were captured were sent to a prisoner-of-war camp of the Navy where they were treated in an exemplary way up to the last day of the war.

Whoever, in his own sphere, behaved as Admiral Dönitz did with regard to the prisoners of war of the Navy, cannot reasonably be charged with having thrown overboard all standards of law and ethics applying to prisoners of war. A British commander has certified that when the prisoner-of-war camp of the Navy was taken over by British troops, all prisoners without exception said that they had been treated with fairness and consideration. The Tribunal will, no doubt, appreciate such unanimous expression of views, especially after what has come to light elsewhere in these proceedings with regard to the breakdown not only by Germans in the proper treatment of prisoners of war.

I shall now deal with the conspiracy to commit Crimes against Humanity, and I should like first of all to point out that Admiral Dönitz is not accused, under Count Four of the Indictment, of direct commission of Crimes against Humanity. Not even participation in the conspiracy to commit Crimes Against Humanity was contended in the detailed charges. That, I would say, is an admission that there was in fact no relation, between his activity and the Crimes against Humanity of which the Prosecution has brought evidence. Nevertheless the Prosecution presented some documents which are apparently meant to prove his participation in the responsibility for certain Crimes against Humanity.

In judging these documents the most important question always is: What did Admiral Dönitz know of those alleged crimes? On this subject I should like to make one point clear. During the entire war he resided and lived at his staff headquarters, first on the North Sea coast, after 1940 in France, in 1943 for a short time in Berlin, and then in the Camp Koralle near Berlin. When he was at the Führer’s headquarters, he stayed with the naval staff there. Even outside his duty, his time was thus spent almost exclusively with naval officers. This may have been a weakness, but it is a fact which gives an additional explanation of his lack of knowledge of many events.

The fact that the defendant forwarded a proposal by the Ministry for Armaments to employ 12,000 men from concentration camps as workers in the shipyards proves, according to the Prosecution, that Admiral Dönitz knew and approved of the arrest of countless innocent people and their ill-treatment and extermination in concentration camps.

He actually knew, of course, that concentration camps existed and he also knew that, apart from the professional criminals, people arrested for political reasons were kept there. As has already been explained here, the protective custody of political adversaries for reasons of safety is a measure adopted by all states, at any rate in an emergency, and knowledge of such a measure can therefore incriminate no one. However, an unusually high number of political prisoners—out of proportion to the number of the population—may stamp a regime as a regime of terror, but taking into account a population of 80 million in the fifth year of a grim war, even twice or three times the number of 12,000 men, which is the number mentioned by Admiral Dönitz, would not indicate a regime of terror, and the Prosecution will hardly claim that.

Admiral Dönitz stated here that the Commander-in-Chief of the Navy, as well as his collaborators and the overwhelming part of the German people, did not know of the abuses and killings that occurred in the concentration camps. All that the Prosecution has put forward against this are assumptions, but no proofs.

On this point, therefore, I will only refer to the statement of the then Minister for Armaments, Speer, according to which the inmates of concentration camps were much better off in industrial work than in camp, and that they tried with all means to obtain employment in such work. The proposal forwarded therefore did not imply anything inhuman, but rather the opposite.

The same request also contains a suggestion to take energetic measures against sabotage in Norwegian and Danish shipyards, where seven out of eight vessels under construction had been destroyed. If need be, the personnel should be entirely or in part employed as “KZ workers” because, so it says, sabotage of such dimensions can only occur if all the workers silently condone it. This therefore amounts to a proposition for security measures to consist in keeping the workers who actively or passively participated in sabotage in a camp close to the shipyard, so that their connections with sabotage agents would be cut off. I do not believe that juridical objections can be raised against such measures of security. According to the practice of all occupation troops even measures of collective punishment would be justified in such cases.[37]

Actually the measures proposed were never carried out and the Prosecution presumably presents them only to accuse Admiral Dönitz quite generally of a brutal attitude toward the inhabitants of occupied territories. For this same purpose it even refers to a statement of the Führer at a conference on the military situation in the summer of 1944, according to which terror in Denmark must be fought with counterterror. Admiral Dönitz’s only connection with this statement was that he heard it and that his companion, Admiral Wagner, wrote it down. The Navy had no part in this statement, nor did it take any measures as a result of it.

In contrast to this line of evidence of the Prosecution, I should like to emphasize the attitude which Admiral Dönitz actually showed toward the population of the occupied territories. There is before the Tribunal a survey of the administration of justice by the naval courts in protecting the inhabitants of the occupied territories against excesses by members of the Navy. The survey is based on an examination of about 2,000 files on delicts and some of the judgments given are quoted with the facts and the reasons of the verdicts. Judging from that survey, one can fairly say that the naval courts protected the inhabitants in the West and in the East with justice and severity, including their lives as well as their property and the honor of their women. This administration of justice was constantly supervised by the Commander-in-Chief of the Navy as the Chief Court Administrator. Under terms of legal procedure it was his duty to confirm death penalties imposed on German soldiers.

The time at my disposal does not permit a more detailed discussion of some of these judgments. A phrase expressed in one of them may be taken to apply to all: All soldiers must know that in occupied territory as well the life and property of others will be fully safeguarded. This was the general attitude in the Navy, and the severity of the penalties inflicted proves how seriously it was taken.

I need only say a few words about the order issued in the spring of 1945, in which a German prisoner of war, a noncommissioned officer, was cited as an example, because he had unobtrusively and systematically done away with some Communists who were attracting attention to themselves in their prison camp. As Admiral Wagner recalled, it was actually an informer who was liquidated. But the facts were camouflaged as described in order to avoid giving enemy intelligence a clue to the camp and the person of the noncommissioned officer. There cannot be any doubt that this order in its true background could be justified in view of the enormous number of political murders which have been committed with the connivance or assistance of governments engaged in the war, the perpetrators being today extolled as heroes. I cannot, however, consider as serious the argument that the unfortunately camouflaged wording could be proof of a general plan to liquidate Communists. A court judgment for the protection of Communists will reveal the true circumstances. A sergeant had stolen hospital blankets which were intended for Soviet prisoners of war and had extracted a dead prisoner’s gold teeth. This sergeant was sentenced to death by a naval court and executed after the sentence had been confirmed by the Commander-in-Chief.

Finally, the Prosecution also established a connection with the Jewish question through a remark in which Grossadmiral Dönitz speaks of the “creeping poison of Jewry.” On this point I should like to add some comments. Dönitz knew as little of the plan for the destruction of the Jews as he did of its execution. He did know of the resettlement in the Government General of Jews living in Germany. I do not think that a resettlement of this sort can be condemned at a time when expulsions of Germans on a much larger scale are taking place before the eyes of a silent world. Here, too, I refer to a sentence of long penitentiary terms against two German sailors who, together with some Frenchmen, had robbed French Jews. From the findings of the court I again quote a sentence which characterizes the general attitude: “That the crimes were committed against Jews does not excuse the defendants in any way.”

Similarly, it seems to me that the efforts of the Prosecution to include Admiral Dönitz in its construction of the conspiracy by terming him a fanatical Nazi have failed. He was neither a member of the Party nor was he ever politically prominent before his appointment as Commander-in-Chief of the Navy. The assertion of the Prosecution that he became Commander-in-Chief of the Navy because of his political attitude lacks all foundation. As a professional officer, to whom every political activity was forbidden by the Reich Defense Law, he had no reason for dealing with National Socialism in any way. However, he, too, like millions of other Germans, recognized the unique success of Hitler’s leadership in social and economic fields and, of course, also the liberation from the obligations of Versailles which Hitler had brought about and which particularly concerned Admiral Dönitz as a soldier. Therefore, at the time of his appointment as Commander-in-Chief of the Navy, he was politically in no way active, although loyal to the National Socialist State.

This appointment introduced two new elements into his relations with National Socialism. There was first of all his personal contact with Adolf Hitler. Like almost everyone else who had personal dealings with this man, he too was most deeply impressed by him. The respect for the head of the State and loyalty to the Supreme Commander inherent in the professional officer were complemented by admiration for the statesman and strategist. It is difficult fully to appreciate such an attitude in view of the information which has come to light in the course of this Trial. I feel neither called upon nor able to judge a personality like Adolf Hitler. But one thing seems to me certain, namely, that with a consummate art of camouflage he skillfully concealed the repulsive traits of his character from those of his collaborators to whom he did not dare reveal this part of his nature. The Hitler with whom the new Commander-in-Chief of the Navy became acquainted at that time, and whom he admired, was therefore an entirely different man from the one which the world—rightly or wrongly—pictures today.

The second new element in the relations between Grossadmiral Dönitz and National Socialism was that in the performance of his military duties he necessarily came into contact with the political authorities of the Reich. Whether he needed more men, more ships, or more arms, in the end he always had to discuss these matters with the political authorities, and in order to be successful in his demands, he had to make sure that any political mistrust was eliminated from the very start. This he deliberately did, and he demanded the same of his subordinates. To him the Party was not an ideological factor, but rather the actual exponent of political power. He was linked with it in the common aim to win the war, and for the achievement of this aim he considered it his ally. But to obtain the advantages which one expects of an ally, one must be willing to make certain sacrifices, especially sacrifices in overlooking faults and in ignoring conflicting issues.

However, his connection with the Führer and his contact with the Party, which were concomitants of his position and of his duties as Commander-in-Chief of the Navy, never led him to participate in anything for which he could not assume responsibility before his conscience. Some points of the Prosecution even go to prove this. The Führer demanded action against shipwrecked crews; Admiral Dönitz rejected it. The Führer asked for withdrawal from the Geneva Convention; Admiral Dönitz rejected it. He stubbornly and successfully resisted the Party’s influence upon the Armed Forces. Thanks to his resistance the National Socialist Führungsoffiziere did not become political commissars, but were, as genuine officers, merely advisers to their commander, who retained the sole responsibility for the leadership of his unit. The transfer of proceedings against soldiers on political grounds from the military courts to the People’s Courts, which had been advocated by the Party, was prevented by Grossadmiral Dönitz until the winter of 1944-45, and a Führer order to this effect issued at that time was never carried out in the Navy. Thus he never identified himself with the Party and can therefore surely not be held responsible for its ideological endeavors or its excesses, just as in foreign politics a government would not be ready to assume responsibility for such things if they had been done by an ally.

I do not by any means want to give the impression that Admiral Dönitz was not a National Socialist. On the contrary, I just want to use him as an example to disprove the theory that every National Socialist as such must be a criminal. This Tribunal is the sole instance in which authoritative personalities of the great Allied Powers are dealing directly and in detail with the last 12 years of the German past. It is, therefore, the only hope of very many Germans for the removal of a fatal error which is causing the weaker elements of our nation to become hypocrites and is thus proving a decisive obstacle on the road to political recovery.

And now I should like to deal with the charge that in February 1945 Admiral Dönitz protracted the inevitable surrender out of political fanaticism, and I wish to do so for a particular reason. This charge, which seems hardly to have anything to do with the Indictment before an International Tribunal, weighs particularly heavily in the eyes of the German people, for this nation truly knows what destruction and losses it endured in those last months from February until May 1945. I have submitted declarations of Darlan, Chamberlain, and Churchill from the year 1940 in which those statesmen, in a critical hour for their countries, called for desperate resistance, for the defense of every village and of every house. Nobody will conclude from this that these men were fanatical National Socialists. The question of unconditional surrender is indeed of such colossal import to a nation, that in fact it is not possible until after the event to judge whether a statesman who had to face this question did or did not do the right thing. Admiral Dönitz, however, was not a statesman in February 1945, but the Commander-in-Chief of the Navy. Should he have asked his subordinates to lay down their arms at a time when the political authority of the State still considered military resistance as opportune and necessary? Nobody will seriously demand that.

Much more difficult seems to me the question of whether, in view of the high esteem Hitler had for him, he should not have considered it his duty to point out clearly to Hitler the hopelessness of prolonged resistance.

Personally, I would have affirmed this to be his duty toward his nation, if Admiral Dönitz himself at that time had considered that surrender was justified. He did not consider it justified, and he gave his reasons: Surrender implied a halt of the armies and of the population; the German Army on the Eastern Front—still numbering more than 2 million men in February 1945—and the entire civilian population of the German eastern provinces would thereby have fallen into the hands of the Soviet armies, and in a bitterly cold winter month, too. Admiral Dönitz, therefore, was of the opinion, shared by Generaloberst Jodl, that the losses in men suffered in that way would be far greater than the losses which would necessarily be caused if the capitulation were postponed until the warmer season. Only in future years, when more exact data regarding casualties of the Army and of the civilian population both before and after the surrender in the East and in the West are available, will it be possible to view this opinion objectively. But it may already be said today that such considerations arose entirely from a full sense of responsibility for the life of German men and women.

The same sense of responsibility caused him, when he became head of the State on 1 May 1945, to cease hostilities against the West, but to protract the surrender in the East for a few days, days in which hundreds of thousands were able to escape to the West. From the moment when—to his own complete surprise—he was given a political task, he calmly and intelligently averted a threatening chaos, prevented desperate mass action without a leader, and assumed responsibility before the German people for the gravest action which any statesman can take at all.

Thus, to revert to the beginning of the Indictment, he did nothing to start this war, but he took the decisive steps to end it.

Since that moment the German nation has learned of many things which it did not expect, and more than once it has been referred to the unconditional surrender which the last head of the State carried through. It is for this Tribunal to decide whether in the future this nation will be reminded of the binding value of the signature of a man who is being outlawed as a criminal before the whole world by his partners in the agreement.

At the beginning of my speech I mentioned the doubts which any trial of war criminals is bound to call forth in the mind and heart of any lawyer. They must weigh upon all who bear any responsibility in such a trial. I could not more fittingly describe the task of all the responsible persons than in the words of a British attorney speaking of the trials before the German Supreme Court in the year 1921. I quote:

“The war criminals’ trials were demanded by an angry public
rather than by statesmen or the fighting services. Had public
opinion in 1919 had its way, the trials might have presented a
grim spectacle, of which future generations would have been
ashamed. But thanks to the statesmen and the lawyers, a public
yearning for revenge was converted into a real demonstration of
the majesty of right and the power of law.”[38]

May the verdict of this Tribunal stand in a similar way before the judgment of history.

THE PRESIDENT: I call on Dr. Siemers for the Defendant Raeder.

DR. WALTER SIEMERS (Counsel for Defendant Raeder): Gentlemen of the Tribunal, in my final speech for the Defendant Grossadmiral Dr. Raeder, I should like to keep to the order I chose for my document books and for the whole presentation of my evidence. I think a survey of the whole case will thus be made easier.

Raeder, who has just turned 70 years of age, has been exclusively a soldier, body and soul, ever since the age of 18, that is to say, for nigh on half a century covering an eventful period. Although he was never concerned with anything but his duties as a soldier, the Prosecution has accused him, in this great Trial against National Socialism, not only as a soldier, namely, as Commander-in-Chief of the German Navy, but, a singular and decisive point, as a politician, as a political conspirator, and as a member of the Government, three things which in truth he never was.

I am, therefore, faced with the singular task of defending Raeder as a politician, although it was precisely, as I shall demonstrate, his life principle as an officer to keep aloof from politics, and to command an officers’ corps and a Navy likewise committed to remain entirely free from politics.

If the Prosecution levels such manifold and grave accusations against Raeder, this is primarily because it has conceived a notion entirely foreign to the German Armed Forces, namely the notion of an admiral being responsible for foreign policy and for the outbreak of a war.

I shall disprove this conception and show that it was unjustified and unfounded even in Hitler’s National Socialist State. True, Hitler again and again placed politics in the forefront of the nation and endeavored to give the nation a one-track political education. Foreign countries knew this, and they may well therefore be all the more surprised by the fact that Hitler refrained from such political shaping in one single instance. Every administration, every organization, and every police institution was directed by Hitler on political principles, with the single exception of the Armed Forces. The Armed Forces, and the Navy in particular, remained for a long time and far into the war absolutely unpolitical. And not only did Hitler give Raeder an assurance to this effect, but he had also given the same assurance to Hindenburg as Reich President. This explains the fact, which has also been made clear in this Trial, that up to 1944 no officer could be a member of the Party, and if he was, then his membership was suspended.

After these preliminary reflections it will be understood why Raeder, as his interrogation showed, was disconcerted and amazed at these accusations which amount to a political charge. A man who is nothing but a soldier cannot understand why he should suddenly and without any relation to his military duties be made responsible for things which at no time came within the compass of his activity.

I shall naturally also discuss the military accusations, with the exception of submarine warfare, which, for the sake of uniformity, has already been dealt with by Dr. Kranzbühler on behalf of Raeder, too.

It will be seen from other military accusations, as for instance in the cases of Norway and Greece, that again and again there arises this discrepancy between the political and the military aspects: Raeder acted as Commander-in-Chief on the basis of military considerations, whereas the Prosecution now calls him to account on the basis of political considerations, by evaluating the military actions as political ones.

The first instance of this discrepancy already lies in the accusations raised against Raeder with regard to the period before 1933, that is, before National Socialism. In connection with these accusations it must not be overlooked that Hitler, the head of the alleged conspiracy for the waging of wars of aggression, did not rule Germany at that time, and yet already at that time there is supposed to have existed a common conspiracy between Hitler and a part of the defendants.

This is all the more surprising because Raeder, as a naval officer and after 1928 as Chief of the Naval High Command, at that time had nothing, absolutely nothing at all, to do with National Socialism, and did not even know Hitler and his co-workers in the Party. The accusations concerning the violations of the Versailles Treaty are included by the Prosecution in the conspiracy, although the violations did not take place under Hitler’s leadership, but under the leadership or with the approval of the democratic governments in Germany at the time. This shows that the Prosecution does not only want to attack National Socialism through this Trial, as has been emphasized again and again during the war and after the collapse, but that the Indictment extends its scope to large circles in Germany which had nothing to do with National Socialism, some of whom were even direct enemies of National Socialism.

(1) For this very reason it seemed to me extremely important to clear up the question of the violation of the Treaty of Versailles in the course of the presentation of evidence in the Raeder case. I have endeavored to do so with the approval of the Tribunal, and I am firmly convinced that I have succeeded. I need not discuss each of the violations, which have been treated in detail and which the Prosecution has produced in Document C-32. It should be sufficient if I refer to the extensive evidence as well as to the following facts:

Every single point was either a mere trifle or else a military measure—such as for example the antiaircraft batteries—based exclusively on the notion of defense. Raeder has plainly admitted that treaty infractions did occur, but the trivial nature of the infractions showed that these measures could not possibly have been connected with an intention to wage wars of aggression.

Moreover, I need only point out that from the legal point of view a treaty violation cannot _ipso jure_ be a crime. Certainly the violation of a treaty between nations is no more permissible than the violation of a contract between private firms in commercial law. Such a violation is, however, not a punishable action, much less a crime. Even on the basis of the argument of the Prosecution, such action would be punishable only if the violation had been undertaken with criminal intent, that is, if it had been aimed at a war of aggression in contradiction to the Kellogg Pact. However, not even the Prosecution will be able to maintain this, and it has already indirectly intimated as much by refraining from taking up these points during the cross-examination of witnesses.

(2) The position is somewhat different with regard to a charge which the Prosecution discussed in detail only during cross-examination, namely, the charge concerning the participation of the German Navy in U-boat constructions in Holland; in this connection the Prosecution has relied upon Document C-156, the book by Kapitän zur See Schüssler entitled, _Der Kampf der Marine gegen Versailles_, as well as on statements contained in the notes of the naval historian, Admiral Assmann, found in Document D-854.

These documents prove that the German Navy had a share in a U-boat designing office in Holland, the firm N. V. Ingenieurskantoor voor Scheepsbouw. This participation occurred during the period before the Navy was under Raeder’s command. The Tribunal will recall that Raeder did not become Chief of the Naval Command until 1 October 1928, whereas participation in the designing office in Holland dates back to 1923 and the following years.

May I emphasize, however, that in not a single instance was a U-boat built for the German Navy, and that consequently no U-boats were obtained or put into commission by the German Navy. In this connection I refer to the Versailles Treaty, Exhibit Number Raeder-1; Article 188 _et sequentes_ of the Treaty of Versailles contain the terms with regard to the Navy. According to Article 188, Germany was bound to deliver her U-boats to the Allied nations or to dismantle them. This obligation Germany fulfilled completely. Moreover, Article 191 stipulates the following; I quote: “The construction and purchase of all submarine vessels, even for commercial purposes, is forbidden in Germany.”

It appears from this clear treaty clause that participation in the Dutch firm was not a violation of the Treaty of Versailles. According to Article 191, Germany was only forbidden to construct or purchase U-boats, moreover, strictly speaking, only in Germany.

As a matter of fact, no U-boat was built in Germany in violation of the Treaty, and no U-boat was built for Germany abroad either. Participation in a foreign designing office was not forbidden, nor was this the purpose of the Treaty of Versailles. The point was merely that Germany should not create a U-boat force for herself. The Navy, however, was permitted to participate in a designing office so as to keep abreast of modern submarine construction, to gather information for the future, and to lay the foundation for an eventual construction of submarines, when permitted, by training technical experts (See Exhibit Number Raeder-2, Lohmann Affidavit). The afore-mentioned documents, submitted by the Prosecution, prove that the submarines designed by the Dutch firm and built abroad were put into service abroad, namely by Turkey and Finland.

Even if one were to take the view that designing work also was prohibited, then what was said under Figure (1) also applies. The designing was limited to only a few submarines, so that this small number in itself proves that there cannot have been any intention of waging wars of aggression.

(3) In case the High Tribunal should be unable to follow this train of thought as a sole argument, I may point out in addition that the lack of an aggressive intention is also evident from the fact that the trivial violations of the treaty were in a certain way compensated. I refer to the second affidavit of Admiral Lohmann, Exhibit Number Raeder-8, which shows that according to the Treaty of Versailles Germany was allowed to build 8 armored ships, whereas in fact she only built 3; it shows also that instead of 8 cruisers only 6 were built up to 1935, and that instead of 32 destroyers or torpedo boats, only 12 destroyers and no torpedo boats were built. In fact, with regard to the really important weapons, and especially those which may be considered as offensive weapons, the Navy kept far below the maximum permitted by the Treaty of Versailles, and this indeed to such an extent that by comparison the trivial violations in naval matters hardly count.

(4) According to the Weimar Constitution of 11 August 1919, Articles 47 and 50 (Exhibit Number Raeder-3), the President of the Reich had supreme command of all the Armed Forces. In order to be valid, the decrees of the Reich President required the countersignature of the Reich Chancellor or the Reich ministers concerned, in this case, the Minister of Defense. I quote: “Responsibility is assumed through the countersignature.” Thus, from the point of view of constitutional law it is absolutely clear that the responsibility rests with the Minister of Defense or the Reich Government and the President of the Reich. It is, of course, true that before 1928, that is, before Raeder became the responsible Chief of the Naval Command, the Navy took a number of measures without the knowledge of the Reich Cabinet. But the evidence which I presented, especially the statement of the former Reich Minister Severing, shows that, contrary to the statements of the Prosecution, no secret measures were taken after Raeder became Chief of the Naval High Command. Severing has confirmed that the Müller-Stresemann-Severing Cabinet, in a Cabinet meeting of 18 October 1928, obtained a clear picture of the secret measures of the Armed Forces by interrogating Raeder as Chief of the Naval High Command and Heye as Chief of the Army Command.

Both Raeder and Heye, after they had given an explanation, were obliged and directed by the Cabinet, in conformity with the afore-mentioned paragraphs of the Reich Constitution, to take no future measures without the knowledge of the Minister of Defense or the Cabinet. At the same time the Cabinet established that the secret measures taken before Raeder’s time were only trifling matters, and expressly assumed responsibility for them. If the Cabinet, in conformity with the Constitution, assumed the responsibility, this amounted to a legally and constitutionally effective procedure which exonerated Raeder as Chief of the Naval High Command and relieved him of responsibility. It appears, therefore, to be inadmissible that the defendant, who no longer bears the responsibility, should be made responsible for actions for which the Cabinet assumed responsibility.

The attitude of the Cabinet in the Cabinet meeting of 18 October 1928 further shows that none of these actions can have had as their basis any criminal intent to wage a war of aggression, for even the Prosecution will not desire to assert that men like Stresemann, Müller, and Severing intended to wage wars of aggression, but instead will have to believe Severing when he says that Stresemann, Müller, and he himself assumed responsibility for these violations only because they were based purely on conceptions of defense. One will also have to believe Severing’s words that such conceptions of defense were justified, since in the twenties the danger that Germany might be attacked, for instance by Poland, was quite real, and she would then not have been in a position to defend herself with the small Armed Forces allowed her by the Versailles Treaty. This danger was particularly evident in connection with Polish border incidents in East Prussia and Silesia and during the occupation of Vilna, and it even increased when all attempts of Stresemann and Müller failed to achieve adherence to the promise to disarm which the other powers had given in the Versailles Treaty.

How difficult Germany’s position was and how justified measures of defense were, Justice Jackson himself admitted in his opening speech, when he said, I quote:

“It is quite possible that Germany in the twenties and thirties
was confronted with desperately difficult tasks, tasks which
would have justified the boldest measures, but not war.”

I shall not even go as far as Mr. Justice Jackson, but I believe that these measures taken by the Navy are certainly covered by his own concept of “boldest measures.”

The British prosecutor, Mr. Elwyn Jones, attempted during the cross-examination of Severing to prove that Raeder did not observe the obligations imposed on him in the Cabinet meeting of 18 October 1928, because Severing, according to his testimony, was not informed of the construction abroad of the small submarines for Turkey and Finland. In this connection, two things must be considered:

a. During his testimony Severing did not remember the details, but only the fundamental and decisive questions; with regard to the details, he naturally relied on the competent minister, in this case, the Reich Defense Minister.

b. According to Severing’s testimony it was an exception that the Chief of the Naval High Command appeared before the entire Cabinet on 18 October 1928. Raeder as Chief of the Naval High Command was not obliged to inform all the members of the Cabinet, but was, in accordance with the Constitution, merely obliged to inform the Reich Defense Minister, and that Raeder did. What the Reich Defense Minister then for his part submitted to the other members of the Cabinet and to the Reichstag was not only beyond Raeder’s knowledge, it was also outside Raeder’s responsibility, and solely within that of the Reich Defense Minister and the Cabinet.

In conclusion may I point out the following: If, despite all this, the Prosecution wishes to look upon these violations of the Treaty of Versailles on the part of the Navy as evidence of an intention to wage a war of aggression, then the Social Democrat or Democrat governments of that time bear the responsibility. Thereby the Indictment on this point collapses, for to take the governments of that time to task for the intention of waging wars of aggression would lead the Prosecution on this point to an _ad absurdum_.