Report to Hitler on the option of repudiating the international agreements on the conduct of war, advising against repudiation mainly on the grounds of propaganda effects

Operational Staff of the Armed Forces.
Foreign branch No. 313/45. Top Secret.
Internationa] Bureaux.
Berlin the 20th Feb 1945. Top Secret
3 Copies, 1st Copy.
Subject: Denunciation of agreements based on International Law.
A. The agreements in question are mainly the following:
I. Regarding the general conduct of war:
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(1) The Hague Convention of the 18.10.1907 concerning the laws and usages of war on land.
(2) Convention of 27.7.1927 concerning the treatment of P.W.
(3) The Geneva Convention of 27.7.1929 for improving the lot of the wounded and sick.
(4) The Geneva Protocol of 17.6.1925 concerning the prohibition of chemical warfare.
II. Regarding the conduct of war at sea:
(1) The XIII Hague Convention of 18.10.1907 concerning war at sea.
(2) The Submarine Convention of 1925.
III. Regarding the conduct of war in the air, no international regulations have so far been laid down.
B. Concerning the consequences of a possible denunciation of agreements based on International Law:
(1) Strictly formally, a denunciation of the agreements is not possible. The conventions concerning P.W. and wounded provide for no denunciation, the Hague Convention admits a denunciation only if one year's notice is given.
(2) On the basis of the practice of states in the wars of the last centuries, there exists the "International Law of usage" which can not be done away with unilaterally. It comprises the latest principles of a humane conduct of war; it is not laid down in writing. To respect it is however considered a prerequisite for membership of the community of states. (Prohibition on misusing the flag of truce, killing of defenseless women and children etc.)
Consequently Germany will by no means free herself from this essential obligation of the laws of war by a denunciation of the conventions on the laws of war.
C. The effects on:
(a) the conduct of,war:
(1) The denunciation gives the enemy the pretext to declare the employment of any means of warfare on his part to be admissible. The consequence: the combatting of new means of warfare (gas, germs) is not possible for us with the same success as the combatting of the means so far admissible (e.g. the Panzerfaust [a kind of A/T rifle] tanks, mortars etc.). The unrestricted use of means of warfare has — according to experience — a much greater effect in a limited space than on an attacker who,- thanks to the extent of his space, can more easily escape the effects of such warfare.
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(2) Favorable repercussions on the German deserter problem can not be expected from the denunciation, because, according to the practice to date, a corresponding enemy counter propaganda starts immediately (assurances of good treatment).
(3) When occupying German territory, the enemy is no longer bound by the regulations of the Hague laws of land warfare. The German civil population is therefore not only practically but also legally put in considerably greater danger than before, owing to the cessation of the clear protective regulations of the Hague Convention. Germany thereby herself gives up the possibility of branding corresponding conduct by the enemy by propaganda.
(4) All kinds of militia (Volksturm and military auxiliaries provided with yellow armlets) are legalized only by the Hague Convention (Article 1). Its denunciation would make a partisan of the Volksturm man and of the fighter marked with the yellow armlet.
(b) in the sphere of the convention concerning wounded:
( 1 ) After the denunciation, there is no longer a legal possibility of a counter-propaganda against the bombing of field hospitals, hospitals, hospital trains, hospital ships, and ambulances, carried out by the enemy to date.
(2) Medical personnel who fall into enemy hands will no longer enjoy the protection of the convention concerning wounded. The current and future possibilities of exchange will cease.
(3) Medical personnel on the field of battle will not enjoy the protection of the convention concerning wounded. The possibility of collecting wounded on the field of battle cannot take place under the protection of the Red Cross. .
(c) P.W. questions:
No protecting power with all the corresponding consequences, particularly for our conduct of the war. Our P.W.—including officers—can be used for any kind of work. Thereby a strengthening of the enemy's fighting power. Apart from that, the possibility of employing German P.W. for the purposes of the enemy's conduct of the war.
Consequences
(1) For us small advantage, because enemy P.W. here are working any way and are in practice also being used for all fortification tasks.
(2) Probability that unrest in P.W. camps will increase. Considering the present inadequate guarding, possibility of uprisings with corresponding effect on the civil population.
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(3) Decreased willingness to work among the enemy P.W.
(4) Possibility of increased number of acts of sabotage. Effectiveness of threats of punishment considerably weakened because the P.W. believe anyway that they have no rights and that they are at the mercy of arbitrariness.
Decreased encouragement to behave decently.
(5) By cancellation of the protecting power, Germany loses the most important possibility of checking up on the treatment of her own soldiers who have fallen into enemy hands.
(d) The civil population:
(1) There is no certainty that a denunciation of the conventions will be understood by the civil population in the way it is meant; to this extent there exists the danger that the denunciation will at first have a very disturbing effect.
(2) People will immediately reckon with gas attacks.
(3) Owing to the enemy's present air superiority, there is the danger that the German civil population will begin to believe in still severer terror measures by the enemy, namely after the enemy's will to destroy Germany completely was expressed in the Yalta decisions.
(4) Similarly to enemy P.W., foreign workers can also become restless after having the feeling of being deprived of all legal basis for their treatment.
(e) Enemies and Neutrals;
The denunciation of the conventions will without doubt be used to the highest degree in an anti-German sense abroad.
This applies in particular to the convention concerning wounded, in the conclusion of which strong sentimental tendencies played their part.
The advantage of stimulating still more the anger of the German civil population will have to be weighed against the above.
Operational Staff of the Armed Forces/Op.(M).
No. 00 1859/45 Top Secret
Fuehrer's HQ, 21 February 1945.
3 Copies, 3rd Copy. Top Secret.
Re: Geneva Convention.
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Memorandum
With reference to Ops. Staff of the Armed Forces/Qu 2/1 No.
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001825/45 top secret, the attitude of the Supreme Commander of the Navy on the question of withdrawing from the Geneva Convention is presented :
"By withdrawing from the Geneva Convention, the Navy would be essentially affected in 3 points:
(1) Treatment of prisoners of war.
(2) Saving of the shipwrecked.
(3) Protection of hospital ships.
Re. (1) The fear that good treatment of prisoners of war may serve as a stimulus for preferring captivity to fighting does not apply to sea warfare, since the prospects of being taken prisoner of war on board on giving up fighting are extremely remote and do not depend on the will of the individual. Added to this is the fact that the members of the Navy are trained in such a way that, with captivity, the war does not- cease for them, but that there too they try by all means at their disposal to create difficulties for their enemies and thus continue to act both morally and actually, along the lines of their own prosecution of the war.
Re. (2) To cease saving the shipwrecked—a thing which is in any case possible only on rare occasions—would, in the present situation, hit us harder than the enemy, since our U-boats, left to rely upon themselves, move exclusively in enemy waters, where there is no question of taking our own measures for life saving. It would only lead to the loss of German lives without corresponding compensation.
Re. (3) A withdrawal from the Geneva Convention would result in the immediate loss of our hospital ships. We could indeed proceed against enemy hospital ships too by U-boat attacks. But this we can do also without withdrawing from the Geneva Convention. The other consequences connected with withdrawing from the Geneva Convention (protocol against gas warfare, the Hague Convention on shelling by naval forces and the London regulations on U-boat warfare) are in part of little importance for naval warfare and in part no longer play any part in the present stage of the war. It results that, from the military point of view, to withdraw from the Hague Convention brings more disadvantages than advantages to the Navy. Over and above this, it appears in general too to be more correct to apply measures which are considered necessary for military or other reasons and which are in contradiction to the Geneva Convention, according to the situation of the moment, without previously announcing them by a withdrawal. One thus succeeds in maintaining outward
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appearances without the measures necessary in the interests of the conduct of the war suffering thereby.'
The C in C of the Navy File No Admz bV
516/45 Top Secret.
Distribution *
Chief OKW via Chief, Ops. Staff of the Wehrmacht Deputy Chief/War Diary Qu
1st Copy. 2nd Copy. 3rd Copy.
L. Burkner 24/2,
Viceadmiral. OU, 23.2,1945.
' [initialled] J [Jodi]
Sir Colonel General,
On the 20.2., the Chief of the Supreme Command of the Armed Forces raised the question to the Chief of the Foreign Branch of the Ops. Staff of the Armed Forces, of a possible repudiation by Germany of certain treaties on international law.
In itself this is essentially a political concern; since, however, it falls within the section of your official sphere of competence which is directed by me, the following observations—over and above the opinion given officially to the Ops. Staff of the Armed Forces— can perhaps be briefly added to this:
(1) If such a repudiation were to be announced, it appears expedient to refer to the atrocities of only one enemy party, namely the Soviet Union or the Anglo-Americans—preferably the latter.
This would at once carry the momentum of the breach between the Allies to the expected storm.
(2) Perhaps it would also be better not to come forth at once with the full weight of a plain repudiation, but just to ask the Anglo-Americans at first, through the protecting powers, the question whether it is henceforth their intention to place in the foreground of their "warfare" attacks on women and children (Dresden).
(3) May I, in conclusion, only repeat: International law is not a juridical affair, but a collection of the experiences of soldiers in numerous wars.
Heil Hitler, Sir Colonel General
Yours Obediently, [sgd] L. Burkner.
The affair will presumably blow over, [initialled] J [Jodi] 25/2.
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Ops. Staff of the Wehrmacht QU. 2.(1)
No.001825/45 Top Secret.
20.2.1945. Top Secret. 6 Copies. 6th Copy.
Draft.
Ref: Present value and lack of value of international obligations, such as the Geneva Convention, the Hague land warfare regulations etc.
The daily terror attacks on the German civil population, which in their extent put in the shade all the atrocities of history, force one to wonder whether there is any sense whatever in Germany maintaining the limitations of international law regarding the conduct of war, and whether the people can be burdened with it.
The following statements intentionally leave out considerations based purely on theoretical law. They are intended clearly and soberly to compare the advantages and disadvantages of withdrawing at the present time from the international laws of war. The considerations refer mainly to the Western Powers, as the Soviet Union in any case does not keep to the usages and treaties of international law.
The international laws of war are supposed to "mitigate the sufferings of war in so far as military interests permit" in addition to rules which are recognized tacitly (customary law), the following agreements come mainly under consideration:
(1) The Hague land warfare regulations, dated 18.10.1907;
(2) ,The agreement on the prohibition of chemical warfare (gas warfare agreement) dated 17.6.1925;
(3) The Geneva convention for the amelioration of the lot of the wounded and sick of the army in the field, dated 27.7.1929. (Red Cross agreement).
(4) The agreement regarding the treatment of Prisoners of War, dated 27.7.1929.
(5) The agreement regarding sea warfare (of enclosed opinion of the OKM/lst naval operational staff).
Aerial warfare has not yet been regulated by international agreements.
I. Advantages and disadvantages of a withdrawal from the obligations of international law regarding the conduct of war.
{a) Gas and bacteriological warfare.
The surprise introduction of gas and bacillae for fighting the
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enemy can, in the present emergency lead, owing to the surprise and shock effect, to considerable initial successes.
As against this there are the following disadvantages. The enemy has air superiority. The German population which is at present crowded into a narrow area—with anything up to a six fold overcrowding of the remaining houses—would, in a very short time, be subjected to counter blows. In this connection one must take into consideration, that the refugees particularly have no means of gas protection at their disposal. As the war is being fought out at present on German soil both in the East and in the West, the German population in the enemy occupied territory would also be affected by our own gas warfare. Finally German gas warfare could not reach either Russia's wide spaces or, above all, the United States of America.
Conclusion. The introduction of gas and bacillae as a war measure must work out to our disadvantage.
(b) Red Cross agreement.
The Anglo-Americans have undoubtedly repeatedly not respected the Red Cross in this war, have sunk hospital ships and have also fired upon clearly marked ambulances, and have not spared hospitals in their terror attacks. Nevertheless it is to be noted that on the whole they still respfect the Geneva convention as was again confirmed not so long ago by the report of the army doctor concerning observations in the zone of the H.Q. of the 6th Panzer army in the West. Owing to enemy air superiority it would be absolutely impossible to carry out any kind of orderly care of the wounded any longer, should the protection of the Red Cross be entirely withdrawn. We must also not fail to recognize that, on the German side too, the Red Cross has often been misused for other purposes (Transport of munitions and fuel, transport of personnel to the front) as the report of the Army Doctor confirms once more. Should the Red Cross Convention be dropped entirely it would be easy for the Anglo-Americans to smash all hospitals and transport for the wounded. Owing to the lack of our own air superiority, there are no effective counter-measures available. The continuation of the Geneva convention is therefore an advantage for us.
(c) Prisoner of war agreement.
There are 230,000 Anglo-American prisoners of war in German hands (168,000 British, 62,000 USA soldiers), against whom there are 441,000 German soldiers in Anglo-American hands, of whom
307,000 are in the hands of the USA and 134,000 in the hands of the British. Reprisal measures against them therefore work out
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to our disadvantage. We have indeed also in our hands people from the Western auxiliary countries: 920,000 French prisoners of war and, in addition, 64,000 Belgians and 10,000 Dutchmen; whereas against these there are only an estimated 80,000 German prisoners of war in the hands of de Gaulle's France. But it is probably quite indifferent to the Anglo-Americans (apart from propaganda exploitation) what we do with the French, Belgians or Dutch; whether France, especially, is further weakened by reprisals or not will in no way influence them in their measures against us.
To this must be added the following war experience: Bad treatment of prisoners of war mainly strengthens the opponent's will to resist. The problem of our own deserters would presumably not be eliminated by bad treatment of prisoners, as our opponent would make all sorts of promises to further deserters so that actually only those German soldiers whom he captured in honorable combat would be badly treated.
Only one advantage can be reckoned in breaking away from the agreement regarding the treatment of prisoners of war, this being that the prisoners of war (including officers) can then be forced to do all important war work. Naturally however, this would again require more» guard personnel.
(d) Provisioning of the islands in the Aegean and the Channel Islands.
Experiences in Crete, Rhodes and the Channel Islands have shown that the German garrisons there can only be maintained if the civil population which, especially in the Channel Islands, has been obtained to work for the troops, has the minimum necessary for keeping alive. The provisioning of this civil population only takes place, however, through agreements with the enemy based on international law. If the agreements regarding the provisioning of the island population go, then, in the end, not only the civilians would starve, but also the German occupation forces, if the enemy so wishes.
II. Effects of the repudiation of all obligations based on international law.
(a) On our own troops:
Experiences in this war show that the troops in the West and South maintain their positions in spite of pattern bombing and the very great weight of enemy material, whereas in the East, if they believe themselves to be outflanked, they do not always stand firm in a crisis. This certainly rests partly on the soldier's de-
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liberations that, after an honorable fight against the Anglo-Americans, he would only become a prisoner of war, whereas in the East he does not remain steadfast, out of fear of Bolshevik cruelty. It is to be feared that, by repudiating all international obligations, the same thing would occur on the Western and Southern fronts as has happened on the Eastern front. The partial failure to hold out of strongpoints in the West, is to be attributed less to the soldiers expectation that it will not be so bad in Anglo-American captivity than to the fact that it is mainly a question of personnel who, owing to 4 years of garrison life in France, had no fighting value. Moreover, the behavior of St. Malo and of the Atlantic fortresses stands out against this failure.
The repudiation of all obligations of international law brings therefore the advantage of very strong resistance in the case of encircled troops, who have no longer a way, out, whilst it can be prejudicial to the holding of positions. Accordingly an overwhelming advantage is not to be found here either.
(b) Effect on our own population.
The repudiation of all obligations of international law will be welcomed by the population which is tormented by terror bombing to the extent that they will be able to deal with the terror airmen personally. Part of the population is however already going in for this settlement of accounts and it is not necessary to renounce international agreements for this. It should also be mentioned in this connection that now already the Anglo-American airmen are all equipped with firearms. If they know exactly what their fate will be in German hands, they will be still better equipped in future so as to fight their way through to the nearest front. Volksturm, Landwacht and other organs who wish to capture airmen, must reckon on suffering losses themselves. In spite of this, the population must not be prevented from taking measures of selfhelp. -It appears doubtful whether the people's will to resist will be encouraged by the repudiation of the still existing agreements regarding the conduct of the war. A great part of the population will be considerably disturbed about the fate of their relations in enemy hands. Even the stoppage of the prisoners of war mail without anything actually happening to our prisoners, would represent a further considerable burden on wide circles of the people.
Further, that part of the people who are in Anglo-American occupied territory will be particularly anxious. For the enemy is then no longer bound to the principles regarding the treatment of the civil population of an occupied territory.
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Since, as explained, terror airmen can be rendered harmless without repudiating international obligations, there is no advantage to be found here either in breaking with international law.
(c) Utilization for propaganda:
If Germany repudiates all obligations of international law, this cannot but prove useful for the enemy propaganda. Our justification that enemy terror bombing has caused us to do this will be countered by the claim that we ourselves made use of aerial warfare against the civil population. Whilst, we do not need to fear the lying enemy outcry, it would still tend to have on the not inconsiderable portions of the population in the camp of our Western enemy, who, in view of the advance of Bolshevism, perhaps begin to suspect the senselessness of the war with the Reich, the effect of turning them from these considerations once more. Our propaganda for a united Europe under German leadership would also probably be nullified thereby.
The Western enemy news, after the opening of the Russian offensive repeatedly played with the idea and even with the covert incitement, that Germany would now probably begin gas warfare against the Bolsheviks.
There is a suspicion that our opponents, by their terror attacks and also by such utterances in the press, actually want to provoke us into repudiating the obligations of international law, so as to be able then to carry out all the more brutally and openly, before the eyes of the more critical part of their peoples and of the so-called neutrals too, their real intentions of destroying the German people.
III. The attitude and suggestion of the deputy chief of the Operational Staff of the Armed Forces:
At the present moment the disadvantages of a repudiation of the obligations still kept up to the present in any case by far outweigh the advantages. Just as we were wrong in 1914 when we solemnly declared war on all the States which had for a long time already wanted to go to war with us, and thus to outward appearances took the whole responsibility for the war upon ourselves; just as it was wrong to acknowledge as our own guilt the necessary march through Belgium in 1914, so it would be wrong to repudiate now publicly all the obligations of international law which we have entered into, and thus again appeal to the outside world as the guilty party.
The adherence to the obligations entered into in no way involves our having to inforce on ourselves any limitations prejudicial to the conduct of the war. Should the British, for instance, sink a
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hospital ship, this must be used as before for propaganda purposes, this does not prevent us in any way from sinking a British Hospital Ship at once as a reprisal and then expressing our regret, in the same way as the British, that it happened owing to an oversight.
We must learn to utilise international law as a weapon particularly a propaganda weapon, in the same way as the enemy has done successfully since the first world war.
Distribution
Chief of the OKW via the Chief of the Ops.Staff of the Wehr-macht/Deputy Chief of the Ops.Staff of the Wehrmacht.
Op. (Army) from the 21.2-copy.
Op. (Navy) 3 ".
Op. (Airforce) from the 21/2 4 "
Qu Foreign Dept, via Intelligence 5 "
(Draft) 6 "
U Enclosures:
Enclosure 1. Opinion of the Staff of the Armed Forces/Agent abroad.
Enclosure 2. Opinion Navy High Command /Ski.
Enclosure 3. Opinion Airforce High Command /Lw.Fu. Staff IC.
(with reservation of the opinion of the Chief of the General Staff of the Air Force).
Enclosure 4. Extract from a report of the Fuehrer, of the Administrative Dept, of the 20.2.1945. on the state of preparations for chemical warfare on the part df enemy powers.