Q Why didn't the defendant von Ribbentrop and all these naval advisors stipulate for that when Germany adhered to this Treaty, if you were going to interpret it in that way?
Were you ever asked about it before Germany adhered to this Treaty in 1936? Germany practically adhered to that Treaty, as I know, as Flag Officer U-boats, as I know very well, until counter measures were taken and then I received the orders to act accordingly. perhaps a little more on some other points. Why was this action to be based on the unspoken approval of the Naval war Staff? Why hadn't the Naval War Staff the courage to speak its approval in an ordinary order if it was all right? record made by a young man in the naval command. In fact, that is to say, it is the idea of that particular officer in the naval command, such as I have pointed out here, I did not know about the matters. As a matter of fact, the naval war command never issued an order of that kind to me; this is novel, this is fiction.
Q No, of course. They weren't to issue an order at all, you see. This states with great frankness that you were to act on the unspoken approval of the naval warstaff, so that the naval war staff could say, as you have said now, "We didn't issue an order," and the junior officers would be acting on an unspoken word, and I want to know -- You have been Commander in Chief of the German Navy -- why is it done in this way, why is it done by unspoken words on oral orders?
A No, that is not correct. That was an idea of that young officer. The order which I received from the Naval Warfare Command stated explicitly that in this area, primarily English transports from England to France would sail and that in this area, ships without lights could be sunk -- period.!. That is all. No further things which are stated here in the memorandum that is to say, without doubt, even the chief of that department -- but certainly the chief of the Naval Warfare Command had refused that quite unnecessary idea because that was a legal proceeding and gave me a short and clear order.
points, unspoken approval of the war staff, U-boat commanders, informed by word of mouth, that a young staff officer is allowed to put in an incorrect memorandum and get away with it uncorrected? Is that the way, is that the state of efficiency of the staff of the German navy?
A No, that was misunderstood. It has been corrected. That is an entry made on the day before by the officer in the Naval Warfare Command, and his superiors in the Naval Warfare Command did not confirm it. It was corrected. It was no unspoken agreement but an open and clear order to me, so in the Naval Warfare Command already, that idea of that young officer has been rejected.
Q You know that the original is initialed by Admiral von Friedeborg?
A No, that is wrong, that is impossible. It says there "SSG". That means Fraesdorf, not Friedeborg. That wasthe Kapitaenleutnant Fraesdorf. He was the officer in theNaval Warfare Command and not Friedeborg. He was a young officer and in the first department of the Naval Warfare Command, those are things about which I found out here, who made and wrote that memorandum; andhis chief of department, Admiral Wagner, rejected it already, so it was not Friedeborg but Fraesdorf. That is the way he thought about it, this young officer, but in fact, I received orders, the clear definite order concerning that area of troop transports.
Q Take the next bit. "The sinking of a merchant ship must be justified in the war diary as due to possible confusion with a warship or auxiliary cruiser." Do you agree with taking the records after you have sunk a ship?
A No, and it was not done. That also belongs to the imagination, the ideas of that officer; never an order has been given accordingly. The order of the Naval Warfare Command in that connection exists and that is the clear and concise order, without these things, as I mentioned, in here. memorandum, are to be stated without orders. There has to be no order because an order might come out -- because if it is done without an order, it won't come out. Are you suggesting, you are putting it on the shoulders of this lieutenant commander, that he invented these three damning facts, un spoken approval, oral instructions to commanders, and faking the orders?
You say that these existed only in the mind of a Kapitaenleutnant? Is that what you are telling the Tribunal?
by the Naval War Command to me, whole these things were not included. And, quite as clearly, I gave my orders to the submarines where all these points are not included. That is what it is, this memorandum, and these thoughts of that officer were already disapproved by his chief of department in Berlin. order to the submarines, and there was nothing in there about war diary and all these things mentioned here. That order is available. It can be seen. where this Kapitaenleutnant got hold of these ideas, is that so, or whether he made them out? Is that what you are telling us, that Wagner willbe able to deal with this, will he? was in his department in Berlin.
Q I see. Well, if you put that on to the Kapitaenleutnant, let's pass on to another point. in mid-November -
A (interposing) I am not accusing anybody of anything, but they are thoughts of a young officer which were already disapproved by his chief of department. I do not accuse anybody.
Q I see. I thought you were.
Well, now, let's pass to another point. In mid-November of 1939, Germany gave warning that she would sink, without warning, merchant ships, if armed. Don't you know that before that warning --if you want to see the point you will find it on page 21 of the English document book or 51 to 52 of the German document book. It is just before the break about five lines.
"By the middle of November, a score" -- that is 20 -- "British merchantmen had already been illegally attacked by gun fire or torpedoed from submarines."
THE PRESIDENT: Which page did you say?
SIR DAVID MAXWELL-FYFE: My Lord, page 21, about ten lines before the break.
BY SIR DAVID MAXWELL-FYFE:
the warning, that you would sink merchant ships, if armed, made no difference warning. the order for permission, the legal permission, to sink armed merchantmen. From that moment on I acted accordingly.
Q Just tell me: Was it your view that the mere possession of arms, a gun on the merchant ship, constituted active resistance to visit or search within the Treaty; or was this a new addition for the guidance of German U -boat warfare which you were introducing completely independent of the Treaty? makes use of it. It would have been a unilateral obligation if that submarine, in a suicidal way, would wait until the other one fired the first shot. That is a two-sided thing that one cannot expect, that under any circumstances the submarine waits until it gets the first hit. And, as I have stated before, practically as soon as the steamers got within reach they used their guns. known in the last War. It was well known for 20 years before this Treaty was signed. And you will agree with me, won't you, that there is not a word i n the Treaty forbidding the arming of merchant ships? Why didn't you give these ships the opportunity of abstaining from resistance or of stopping? Why did you go in the face of the Treaty which you had signed only three years before? That is all I want to know. If you can't tell me, if you say it is a matter for argument, I will ask Admiral Raeder. At the moment, will you tell us, or can you tell us, why didn't you keep to the Treaty?
A That was not against the Treaty. I am no international lawyer. I am just a soldier; and I acted according to my military orders. Of course it is suicide for a submarine if it waits until it receives the first hit. That is a matter of course, that the steamer is not carrying guns for the fun of it, but to make use of then.
And in what way use was made of then I have already explained. in view of your evidence. resistance? Did you consider that the use of wireless for merchant ships was active resistance within the Treaty?
Q (interposing) No, no, just answer the question first, Defendant, and then give your explanation. I said that to you quite 20 times yesterday and today. Did you consider the use of wireless by merchant ships as active resistance? merchantman who uses the radio when it is stopped for messages can be attacke by arms. That can be found also in the French Ordinance, for instance. used this interpretation. Only at the end of September when I received a definite order or permission to do so, then that absolutely legal rule according to international law was put into effect.
Q Tell me, didn't the German Admiralty know in 1936 that most merchantmen had wireless? international law--that I happen to know, because thatwas as a footnote in the Prize Ordinance--according to that conference of 1923, they were not permitted to make use of it when they were stopped. That is international law.
Q I see. Well, I am very glad to learn -
A (Interposing) And that can be soon in all instructions. I know for sure that the French instructions were accordingly. Office did not make any mention of use of wireless in this Treaty. you were not bothering about this Treaty at all in any case where it didn't suit you in the operations in this war.
Q Now, let's pass on to neutrals. I haven't heard you suggest that you were dealing with neutrals because they were armed, but lot's take a concrete example.
"On the 12th of November 1939 -
A (Interposing) I have never said that neutrals were armed.
Q That is what I thought. Well, we will rule that out. We will take the example. My Lord, it is given on page 20 of the document book, and in the middle of the middle paragraph:
"On the 12th of November, the Norwegian 'Arne Kjode' was torpedoed in the North Sea without any warning at all. This was a tanker bound from one neutral port to another." to another as war ships, or for what reason was that ship torpedoed without warning? The master and four of the crew lost their lives. The others were picked up after many hours in an open boat. Why were you torpedoing neutral ships without warning? This is only the 12th of November in the North Sea, a tanker going from one neutral port to another.
A Yes. The submarine commander in this case could not know or could not see that the ship wont from one neutral port to the other.
A (Interposing) No, not for that reason, no. But that ship was on course to England, and he confused that ship with an enemy ship, with an English ship, and that is why he torpedoed it. I know of that case.
Q You approve of that action by the submarine commander?
A (Interposing) That is one of the cases -
Q (Interposing) Don't you approve of that, when in doubt, torpedo without warning: Is that your view?
A No, no; that is merely your assertion. And if in my clean U-boat warfare of five and a half years you can find one or two instances of confusion, this does not prove anything and certainly contradicts your assertion.
Q Yes. Well, now, lot's look at your clean U-boat warfare if you want Will you turn to page 30 of the English book? U-boat warfare. You say that on directive of the Armed Forces High Command of 30 December--this is on the 1st of January 1940--the Fuehrer on report of Defendant Raeder has decided:
"(a) Greek merchant vessels are to be treated as enemy vessels in the zone around Britain declared barred by the U.S.A."
SIR DAVID MAXWELL FYFE: There is a mistake, My Lord, in the translation. You see it says "blockaded by the U.S.A. and Britain." The proper translation should be "in the zone around Britain declared barred by the U.S.A." BY SIR DAVID MAXWELLFYFE:
Q Now, Defenda,t I don't want to make any bad point, at any rate intentionally. Were you including Greek ships because you believed that most of the Greek merchant navy was on British charter, was being chartered by Britain? Was that the reason?
A. Yes. Those may have been the reasons of the Naval Warfare Command for that order, because the Greek Fleet was sailing for England. But I assumed that those were the reasons of the Naval Warfare Command.
Q. Assume that was the reason. I do not want to occupy time on the point What I want to know is this: Did that mean that any Greek ship in these waters would be sunk without warning?
A. Yes. It can be soon here that they are to be treated like enemy ships.
Q. In sum, then that means that a Greek merchantman from that on would be sunk without warning if it came into the zone around the British coast. tion of the next sentence. You say all ships may be attacked without warning.
I just want to get it clear from you. You are not suggesting that the reason of the Naval High Command was to conceal the maze of operations of the U-boats; the reason was to avoid trouble with neutrals whose good will you wanted to keep, was it not?
A. I explained that I already stated my position on that yesterday. These are matters of the political leadership which are known to me. I have looked only for the military advantage as commander of the U-boats, or military necessity, such as has been done by England in similar cases. What the political reasons may have been, I could not say.
Q. That is my whole suggestion to you, you know, Defendant, that you were acting on the military necessity stated in that memorandum of the naval command that the maximum damage to England could be achieved only with unstricted use of arms without warning. But let us just look at the next one now.
A. Those were certain areas of which the neutrals had been warned. I already stated yesterday that in English operational areas the same methods were used. If a neutral entered these areas where military actions were constantly going on and if he entered in spite of the warning that he had, then he had to run the risk of damage for doing so.
Those were the reasons which may have led the Naval Warfare Command to take these steps.
Q. As you mentioned that, I shall deal first with your areas. Your zone, which was published, was from the Faroes to Bordeaux and 500 miles west of Ireland. That is, your zone was 750,000 square miles; isn't that right? Your zone around Britain was from the Faroes to Bordeaux, and 500 miles west of Ireland?
A. Yes, that is the operational area of August, 1940.
Q. Yes, of August, 1940.
A. And it is quite in accord with the so-called combat zone, the entry into which America prohibited to her merchant ships.
Q. You say it is in accord. Let us just look at it and see what the two things were. The United States at that time said that its merchant ships were not to come into that zone. You said that if any merchant ship came into that zone, 750,000 square miles in extent, none of the laws and usages of war applied, and that ship could be destroyed by any means you chose.
That was your view, was it not?
A. Yes, that is the German point of view in international law, which has also been used by other nations, that operational areas around the enemy are admissable. On the whole, I can say again that I am not a specialist in international law. I am a soldier, and I judge according to common sense. I consider it a matter of course that an ocean area, or an ocean zone, around England could not be left to the enemy without interference.
Q. I do not think you are disputing it at all; but I want to get it quite clear. It was your view that it was right that if you fixed an operational zone of that extent, any neutral ship -- and you agree that it is a neutral ship -- coming unarmed into that zone could be destroyed by any means that you cared to use?
That was your view of the way to conduct a war at sea; that is right, is it not?
A Yes; and there was a sufficient number of British statements according to which it is quite correct that during war time -- and we were at war with England -- it could not be permitted that neutrals should be in a position to support the belligerents, especially if they had been warned previously not to enter these zones. According to international law, that is quite legal.
Q We will discuss the matter of law with the Tribunal. I want to get at the facts.
That is the position which you adopt? And equally, if you found a neutral vessel outside the zone using its wireless, you would treat it as if it were a ship of war of a belligerent power, would you not? If a neutral vessel used its wireless after seeing the submarine, you would treat it as a ship of war of a belligerent power, would you not?
Q I see. As I say, the matters of law rest with the Tribunal. I am not going to argue these with you. But, apart altogether from international law, did it ever strike you that that method of treating neutral ships was completely disregarding the life and safety of the people on the ships? Did that ever strike you? danger of these zones. If they entered into these zones, they had to run the risk of damage. Otherwise, they should stay away. That is what war is. For instance, on land, one would also take no consideration if all of a sudden a neutral chain of trucks would bring ammunition or supplies to the enemy. Then we would consider it in the same light. It is, therefore, quite admissible to draw an operational area around the enemy's country in the ocean. Those are the instructions I got from international law, although I am only a soldier.
area. Whoever gets into a combat area has to take the consequences.
Q I see. That is your view? I do not think it could possibly be put more fairly. November entry into these zones, because they said, "We do not want to enter these zones." square miles around Britain was committing an unneutral act and was liable to be sunk without warning at sight. That is your view of how war at sea should be conducted; that is right, is it not?
A Yes. For the neutrals special lanes were given. They did not have to enter the combat area unless they went to England. Then they had to run the risk of war. C 21; that is, on page 30 of the English book and pages 59 to 60 of the German, you see that in all these cases -- you take the one in Paragraph 2, Page 5, Conference with the Head of Naval War Staff on the 2nd of January; that was the intensified measures in connection with the Fall Gelb -- that is, the invasion of Holland and Belgium -- it mentions the sinking by U-boats without any warning of all ships in those waters near the enemy coasts in which mines can be employed. acting in accordance with what you believe to be international law, did you so act only in areas where mines could be employed?
A That, also, I have already explained. It is not a question of legality but of military necessity. In an area where mines can be laid, for military reasons, I cannot explain to the enemy clearly what means of combat I am using.
You operated in the same way. I remind you of the French area, the French warnings that mines had been laid around Italy. And you did not state, either, with what means or weapons you were going to operate. That has nothing to do with legality. That is purely a question of military necessity.
putting to you is this: that you were pretending to neutrals that you were acting in accordance with the London Treaty, whereas you were actually acting not in accordance with the treaty, but in accordance with instructions you laid down for yourself, based on military necessity. pretending to, and getting the advantage fraudulently of appearing to, comply with the treaty. And that, I suggest is the purpose of these orders that you would only do this where mines could be laid. Isn't that what was in your mind?
the neutrals clearly that in these areas there would be combat actions, and that if they entered they would be endangered, We did not pretend anything, but we told them definitely, "Do not enter these zones." England did the same thing.
THE PRESIDENT: Sir David, doesn't the next sentence bear upon that?
SIR DAVID MAXWELL-FYFE: Yes, Your Lordship; I am very much obliged to your Lordship. BY SIR DAVID MAXWELL-FYFE: following?
"The Navy will authorize, simultaneously with the general intensification of the war, the sinking by U-boats without any warning of all ships in those waters near the enemy coasts in which mines can be employed. In this case, for external consumption, pretense should be made that mines are being used. The behavior of and use of weapons by U-boats should be adapted for this purpose." fool the neutrals--to use your own phrase? Do you still say you were not trying to fool the neutrals?
A No, we did not fool them because we warned them before. During a war I do not nave to say what weapon I want to use; I may very well camouflage my weapon. But the neutrals were not fooled. On the contrary, they were told "Do not enter these zones." Whether I used this or that military method in these areas has nothing to do with the neutrals. responsibility tothe seamen from boats that were sunk? Would you have in mind the provisions of the London Treaty, and willyou agree that your responsibility was to save seamen from boats that were sunk wherever you could do so without imperiling your ship? Is that, broadly, correct?
A Of course, if the ship behaved according to the London Agreement itself; that is to say, if it did not occur in these zones.
Q Oh? Do you really mean that? That is, if you sank a neutral ship which had come into that zone, you considered that you were absolved from any of your duties under the London Agreement to look after the safety of the crows?
after the combat, to take care of the shipwrecked if the military situation permits, just the same as others have done in their operational areas.
Q That is what I put to you, defendant. Please believe me, I don't want to make any false point. I put to you: If they could do so without imperiling their ships, that is, without risking losing their ships. Lot us got it quite clear. Do you say that in the zone which you fixed there was no duty to provide for the safety of the crew, that you accepted no duty to provide for the safety of the crow? after combat if the military situation permitted it. That can be read in the Geneva Convention or in the agreement as to its application.
Q Then it didn't matter whethwr the sinking was in the zone or out of the zone. According to what you say, you undertook exactly the same duty towards survivors whether it was in the zone or outside the zone. Is that right? treated according to the Prize Ordinance, only inside the zone they were not.
Q What I can't understand is this--and really, I hope I am not being very stupid. What was the difference? What difference did you consider existed in your responsibility towards survivors if the sinking was inside the zone or outside the zone? That is what I want to get clear. according to the Prize Ordinance. According to the London Agreement, we were obliged, before the ship was sunk, to take all measures for the safety of the crew. That obligation was not given inside the zone. In that case the Hague Agreement for the application of the Geneva Conventionwas the basis, where care should be taken of the shipwrecked if the military situation permits.
to kill, the survivors of a ship that is sunk would be an appalling order to give? to a soldier's morals and that I have never contributed to that by any order, not even in the way of reprisals; and suggestions of that kind have been made to me. and your own branch of the service, there was a possibility that some U-boat commanders would have refused to comply with an order to annihilate survivors?
Q I think it is quite a fair question. What if it were given in express terms, "Annihilate survivors after you sink a ship"? You know your officers.
Would there, at any rate, have been some danger that some of them would have refused to carry out that order?
A Yes. As I know my U-boat forces, there would have been a storm of indignation against such an order because, in the face of the clean idealism of these people, they would never have done it. I would never have given such an order, nor would I have permitted such an order to be given.
Now, just look at page 33 of the English document book. That contains your own Standing Order No. 154. Let me read it to you, rather slowly, if the Tribunal does not mind. It says:
"Do not pick up survivors and take then with you; do not worry about the merchant ship's boats: weather conditions and distance from land play no part. Have a care only for your own ship and strive only to attain your next success as soon as possible. We must be harsh in this war."
First of all, tell me, what do you mean by "your next 12? Doesn't that mean the next attack on a vessel? of the London Treaty. The Treaty, you remember, says that a warship, including a submarine, may not sink or render incapable of navigation a merchar vessel without first having placed passengers, crew and ship's papers in a place of safety. "For this purpose, the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel." had you not, when you were drafting this order? And you were deliberately excluding from your order the matters mentioned in the London Treaty? Listen to your order:
"Do not worry about the boats; weather conditions", one thing mentione in the Treaty, "and distance from land", another thing mentioned in the Treaty, "play no part.
Your order could have been put in other language almost as clearly: "Disregard all the matters that are stated in Paragraph 2 of the London Treaty."
Now tell me, didn't you have the London Treaty in front of you when you drew that order? but I stated in detail yesterday that we dealt here with the struggle against a protected ship, an escorted ship, as can be seen from the entire order, of which you have taken just one excerpt. Therefore, the Hague Agreement, which has nothing to do with escorted ships, could not apply. Coast, the greatest danger existed of being attacked by enemy escorts. The Agreement has nothing to do with a fight against an escorted merchant ship.
Those are two entirely different things; and that order applied to this area, or this zone, for that kind of combat against an escorted ship. I explained that clearly yesterday. attacking ships in convoy, would you look at page 26 of the English document book and at page 57 of the German document book? There you will find the account of the sinking of the Sheaf Mead on the 27th of May, 1940. And if you will look at the U-boat's log, opposite the time group 1648 hours -- which is on page 27 of the English and page 57 of the German -- this is what the log says:
"A large heap of wreckage floats up. We approach it to identify the name. The crew have saved themselves on wreckage and capsized boats. We fish out a buoy; no name on it. I ask a man on the raft. He says, hardly turning his head 'Nix, Nein.' A young boy in the water calls, 'Help, help, please.' The others are vary composed", and so on. "They look tired and, naturally, they have a lock of cold hatred on their faces. Then on to the old course." English, you will find the last sentence from the survivor's report describes the submarine as doing this:
"They cruised around for half an hour, taking photographs of us in the water. Otherwise they just watched us but said nothing. Then they submerged and went off without offering us any assistance whatever."
says that there was a young boy in the water calling "Help, help, please", and your submarine takes a few photographs, submerges, and then goes off.
THE PRESIDENT: Sir David, ought you to refer to the passage just after the name of the vessel, under 1648, "It is not clear"?
SIR DAVID MAXWELL-FYFE: "It is not clear whether she was sailing as a normal merchant ship. The following seemed to point to the contrary." And then, my Lord, it gives a number of matters. I am not taking this instance as a matter of wrongful sinking; I am taking it as an instance of carrying out this order.
I am very much obliged to your Lordship, but that is why I didn't do it.
THE PRESIDENT: The Tribunal will adjourn now.
(A recess was taken until 1400 hours).
BY SIR DAVID MAXWELL-FYFE: Wasn't it your practice in May, 1940, to see personally the logs of all U-beats when they arrived? cannot hear. when they returned from their trips?
A (No response) when they returned from their trips? The logs, which arrived several weeks after the entries were made since they were written in the port, were then submitted to me by my Chief of Staff; and early, if they contained statements which were additional to the verbal report. incident?
Q Do you new observe that the "Sheaf Mead" was not sailing in convoy?
A Yes. I notice. And I also knew that it was an armed ship and that the orders which the commandant had said that he was entitled to sink it as an armed ship. It also appears from the log that he could not decide on firing torpedo until he had ascertained that the ship was armed. That is very clearly expressed in this document.