and the commander of the submarine fleet also knew only these reasons. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses and his defense was to be led astray in this manner. It is self-evident that such misleading of the enemy is fully justified in time of war. The measures had the desired military success and in numerous cases the British Navy employed flotillas of mine sweepers, where a ship had been torpedoed, and conversely started a submarine chase where a loss had occurred through mine hits. but the political reasons which were the determining factor. These invisible attacks were meant to give an opportunity of denying before neutrals that the sinkings were due to submarines, and of tracing them back to mines. This actually happened in some cases. Does that now mean that the German Government itself considered illegal the use of surprise submarine action within the operatic area? I do not think so. has built up here and elsewhere from the camouflaging of measures, the denial of facts, I feel obliged to make a few remarks on the point as to whether there is any obligation at all in international politics to tell the truth. However, it may be in peacetime, in time of war at any rate one cannot recognize any obligation to tell the truth in a question which may be of advantage to the enemy. I need only to point to Huge Grotius who says:
"One may conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable." sinkings in the instances dealt with here, had not been denied but admitted instead? First of all, since that would have come to the knowledge of the enemy, too, we should have lost the military advantage which lay in the misleading of his defense. Furthermore - and this is no less important - we might quite possibly have furnished our enemy with allies who would have helped him with propaganda if not with their weapons. In view of the fact that some of the neutrals concerned were so dependent on England, they would probably not have recognized the German viewpoint as to the legitimacy of the operational areas, especially since this viewpoint was contrary to their own interests.
It would have led to political tensions and, possibly, to armed conflicts. Our enemies would have derived the only immediate advantage from it. From the standpoint of the law this endeavor to camouflage the use of submarines even from the neutrals, does not seem objectionable to me. But if the Prosecution uses this with the intention of moral defamation, it applies standards here which heretofore have never been applied to the conduct of a war and to the politics of any other country in the world. It was just in naval warfare in which the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared around the European coasts from Norway to Biscay were, with the exception of the Biscay area declared mine danger zones. But we know from Churchill's statement of May 1940 as well as from testimonies of witnesses that in those areas there were unlimited attacks with submarines, speedboats and above all with aeroplanes, Consequently, very often neither the German command nor the neutral country which had been attacked knew whether a loss sustained in such an area really should be traced back to a mine or to another weapon of naval warfare. To conclude that the camouflaging of a measure constitutes its illegality thus seems to me entirely without basis. ple attacked without warning. However, orders had been given to make exceptions in the case of certain neutrals, such as, in the beginning, Japan, the Soviet Union, Spain, and Italy. In this measure the Prosecution saw the endeavor of the Naval Command to terrorize the smaller neutral countries whereas it dared not pick a quarrel with the big ones. The real reason for this differential treatment is given in Document UK 65 in the notation on the report which the Commander-in-Chief of the Navy made to the Fuehrer on 16 October 1939.
According to this notation the neutral governments mentioned are requested to declare that they will not carry contraband of war, in every other respect they will be treated just like any other neutral country. This means that the reason for the different treatment was merely that certain countries were willing and in a position to forbid their boats to carry contraband of war to England, whereas others could not or would not do it became of their political attitude or their economic dependence on England. Therefore, it is not a question of terrorizing the smaller neutrals and the sparing of the bigger ones, but of preventing traffic in contraband of war and the sparing of legal commercial trade. Since no general legal maxim exists which compels the belligerent power to treat all neutral powers alike, no objection can be raised on the basis of international law. It would indeed be strange if here, in the name of humanity, the demand were made that German submarines should have sunk even those ships which they did not want to sink at all. during the further course of the war even the small powers which were the only neutral ones left, could, by virtue of shipping agreements, cross the operational area along certain routes without being molested by German submarines. In this way, for instance Sweden and Switzerland as well as Turkey could carry on their maritime trade during the entire war. were never permitted to attack neutral ships. In this respect the naval command desisted from waging any submarine warfare against neutral merchant shipping, since enemy air surveillance made stopping and searching too dangerous for German submarines. Against the disadvantage of submarine warfare within the operation area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods and were liable to be sunk because of this without being stopped.
Thus, the neutral vessel outside the operational area was only in danger if it behaved in a suspicious or hostile way or if it was not clearly marked as neutral. And the German Naval Command again and again called the attention of the neutral powers to this necessity. according to which United States vessels within the operational area were assimilated to all other neutrals, i. e. they could be attacked without warning. The Prosecution has seen in this an especial proof that the submarine warfare against neutrals was waged in a 'cynical and opprtunist' way. If this is to mean, that it was also influenced by political considerations, then I an ready to admit it. But I do not consider it a reproach; since war itself is a political weapon, it is in keeping with its essence, if individual sectors of it are placed under the leadership of politics. In particular, no reproach should be seen in the orders of the German leadership as regards the utilization of submarines against the United States, because it is just they which are a proof of the efforts to avoid any conflict with the United States. of witnesses the ships of the United States during the first years of the war were exempt from all measures of naval warfare, and this was true as well when, contrary to the original American legislation, they sailed into the USA combat zone and thus into the German operational area in order to carry war material to England. This policy was changed only when in addition to the many unneutral acts of the past the active employment of the American Navy had been ordered for the protection of British supply lines. Well known are the statements of President Roosevelt which he made at that time about the "bridge of boats over the Atlantic" and the support which should be given to England "by every means short of war." It may be doubtful whether the realistic attitude which the USA Naval and air forces were ordered to take, at that time, did not already constitute an illegal war as was claimed just now by some American sources.
At least the United States had abandoned its neutrality and claimed the position of a "Nonbelligerent", which was also a new aspect of International Law in this war. If in this connection one wished to raise the charge of cynicism, it should be directed against the orders which were issued in justification of the consequences of the American attitude. the essential orders issued, and to say a few things in respect of their legality. No doubt, there were instances of attacks on ships which according to the orders mentioned should not have bee attacked. There are only a few such cases, and some of them have been brought up at this trial. The best known concerns the sinking of the British passenger vessel "Athenia" on September 3, 193 by the "U-30" under the command of Lieutenant Captain Lemp. The sinking of this ship was due to the fact that the commander took it by mistake for an auxiliary vessel. If the Tribunal still hesitated to believe the concurring statements of all the witness es heard here in this critical and so much talked of case, these doubts would be removed by the behavior of the same commandant in the days and weeks following the sinking. Lt. Captain Lemp, as the log of "U 30" of that time shows, adhered strictly to the prize ordinance and from this log I was able to submit several examples of the fair and gentlemanly conduct of German commandants even when by such conduct they greatly endangered their submarines of September 1939 were the Commander of submarines and the Commander-in-Chief of the navy fully informed of the whole affair of the sinking of the "Athenia." Upon his return the commandant reported to the U boat commander the mistake which he himself recognized as such and was sent to Berlin to report in person.
Dr. Siemers will deal with the political development of this matter. I only mention the military occurrences: Admiral Doenitz received the following communication from the Naval High Command:
1. That the affair be further dealt with politically in Berlin. 2. That Court-martial proceedings were not necessary since the 3. That the entire matter be kept in strict secrecy. for the report on the sinking of the "Athenia" to be removed from the log of the "U 30" and gave instructions that the log be completed in such a manner as to make the absence of on entry inconspicuous. satisfactorily, obviously for the reason that the officer in charge had no experience whatever of such measures. as a particularly criminal act of falsification. This it seems to me, is based on a misunderstanding of the facts. The war diary is nothing else but a military report by the commandant to his superior commands. What occurrences should or should not be included in reports of this kind is not decided by any legal or moral principle but is solely a matter of military regulations. The war diary was meant to be secret; however, it was - like many secret matters - accessible to a very large group of people. This is already apparent from the fact that it had been issued in 9 copies, of which some were intended not only for the higher staffs but for schools and for training flotillas as well. Therefore, whenever an occurrence was to be restricted to the knowledge of a small group of individuals, it was not to be reported in the war diary. Since the war diary war kept consecutively, the missing period necessarily had to be filled in with another, ergo, incorrect entry. I can see nothing immoral in such a measure, much less anything illegal. As long as there is secrecy in time of war - and this is the case in all countries - it means that all facts cannot be told to everybody, and therefore one sometimes has to make incorrect statements, too. A certain moral offense could perhaps be seen in such action if thereby a falsification of his tory for all times had been intended.
This, however, was by no means the case. The Commandant's report in regard to the sinking of the "Athenia" was of course submitted in the original form to the immediate superiors, the Commander of the U-boats and the Commander-in-Chief of the Navy, and was also kept there. not to enter certain happenings into the war diary, has never existed.
The "Athenia" case shows one more thing: the manner in which the compliances of U-boat commandants with issued orders was enforced. In spite of the justified conception of the Naval High Command that the commandant acted in good faith, he was punished with arrest by Admiral Doenitz because by employing greater caution he perhaps might have recognized that this was not an auxiliary cruiser. Punishment was meted out in other cases too, where the orders had been mistakenly violated. 1942, by which on the occasion of the sinking of "Monte Gorbea" the commandant had been informed that upon his return he will have to face court martial proceedings for violation of orders regarding the conduct toward neutrals. All commandants received notice of this measure. mean to a commandant at sea. If the directives of the American Manual for Courts-Martial were to be considered as a basis, then court martial proceedings against officers should only be initiate in cases where dismissal from the service seems warranted.
T hat should never be the case when the violation of an order is an accidental one.
For a commander who is supposed to make war and gain successes with his soldiers, it is extremely hard and, in fact, under certain circumstances actually a mistake to have one of his commanders on his return from a successful operation tried before a court martial because of one failure which occurred in that action. principles. In this connection I will refer to the unlimited commendation which the commander of the British destroyer "Coassack" received for setting free the prisoners of the "Altmark" in spite of the incidents which occurred during this action and which were probably regretted by the British, too. sation that any sinkings carried out against orders were sanctioned afterwards by the High Command in so far as not drastic steps were taken against the commanders. Especially in the field of submarine warfare compliance with orders issued was ensured by the continuous personal contact of the commanders With their commander. After the conclusion of every enemy operation, an oral report had to be made, and all measures taken were subjected to sharp criticism, simultaneously whilst preventive instructions were given at the same time for future behaviour. operations during this war. In the course of them, orders issued were violated only in very rare instances. If one considers how difficult it is for a submarine to establish its exact position and the boundaries of an operational area and to distringuish an armed from an unarmed merchant vessel, a passenger ship from a troop transport, or a neutral from an enemy ship, the low number of sinkings which were considered illegal by the Germans too, must be taken as proof of an especially effective and conscientious leadership. After this discussion of the factual development of German submarine war-fare, I still rave to deal with the accusations built up by the prosecution from some preparatory deliberations on the subject of the organization of submarine warfare.
1939, in which German submarines were ordered to comply in their operations strictly with the Prize Ordinance, an order was prepa red in the Naval High Command decreeing action without warning in case the one my merchantman were armed. In addition to this, earning the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones. of the will to conduct a war against international Law from the very start. I on the other hand, regard those same documents as proof of the fact that the naval Command was fully unprepared for a war with England, and that it was only when the British had already declared war that it began to set about thinking in the most primitive way how such a war should be conducted . Since neither surprise attacks on armed merchant vessels no the declaration of prohibited zones violate International Law a belligerent should be allowed just to think even on the outbreak of war if and when he wants to wake use of those opportunities. As we know from the above-mentioned orders of the British Admiralty as early as 1938 the latter had made a thorough study of all the possibilities resulting iron the war upon commercial shipping and had been worked out in a practical way. the Navel High Command of 15 October 1939, which has been quoted several times by the Prosecution. Its very heading shows that it is a study.
"Possibilities for the Intensification of Naval Warfare." examination of military demands for effective naval warfare against England and the legal possibilities for fulfilling these demands.
The result was the order of 17 October 1939, decreeing the immediate use of arms against all enemy merchant vessels, justification for which resulted as we have already shown, from their having been armed and incorporated into the military system. Beyond this, no intensifying measures were recognized as justified for the time being, and the suggestion made was to wait and see what the further conduct of the enemy would be like. on the part of the Prosecution. It says that naval warfare must be kept as a matter of principle within the frame-work of existing International Law. But measures which might result in successes decisive for the war would have to be taken, however, even if now laws of naval warfare were created thereby. Bees this really constitute a renunciation of International Law? Quite the contrary. A departure from existing International Law is made depedent only on two quite limited conditions:
1. A military one, namely, that is measures are involved which were of decisive importance for the outcome of the war i.e that would at the same time shorten the war.
2. A moral one, namely if the nature of the new measures makes them suitable for incorporation into the new International Law. only within tin frame-work of the laws of military combat ethics and a demand is therefore made for rigid adhereence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating of new international laws. Frhr. von Freytach-Loringhevens :
"It has always been war which has given its strangest impulses to International Law.
Sometimes they have been of positive and sometimes of a negative nature.
They have led to further development of already existing to failures". serve the development of International Law, the possibility of such a development cannot be denied.
THE PRESIDENT: We will adjourn.
(A recess was taken.)
have led to further development of already existing to failures". serve the development of International Law, the possibility of such a development cannot be denied.
THE PRESIDENT: We will adjourn.
(A recess was taken.)
THE PRESIDENT: The Tribunal will not sit in open session after 1 o'clock tomorrow, Wednesday; it will sit in closed session during the afternoon. The Tribunal will not sit in open session on Saturday; it will sit in closed session Saturday morning.
DR. KRANZBUEHLER: Before the recess I was speaking about the possibities of developments of naval law. President of the United States with regard to this problem, expressed his opinion as follows, and I quote: "International Law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in International Law are brought about by the action of governments, designed to meet a change in circumstances. It grows, as did the Common law, through decisions reached from time to time in adapting settled principles to new situations." prosecution in the memorandum of the Naval High Command. And that the Allies too deemed war-deciding measures justified, even though they were contradictory to the present views of international law, is proven by the use of the atom-bomb against Japanese cities. High command in Germany, I did not consider who of the two Admirals accused carries more or less responsibility for one or for the other measure. As a formal basis, in nearly all cases a Fuehrer-decree exists. Both Admirals, however, stated here, that they consider themselves fully responsible for all orders of the naval war which they gave or which they transmitted. I should like to add to that only two remarks: war, the commander-in-chief of the Navy had no influence on them. The commander of the U-boats was not even notified of these considerations, just as little as of the political settlement of incidents which arose through U-boats. commander may be held responsible for the accuracy of legal considerations which he does not make himself, but which are delivered to him by the first experts of his country who are not just small-town lawyers.
For the commander of Uboats, it is to be added that he had only tactical tasks and that his staff contained only a few officers, none of whom had the ability to examine questions of international law of the importance mentioned here. He therefore had to rely on the fact that the orders issued by the Naval War Command were examined as to their legality and were in order. That is probably being handled in a like manner in every navy of the world. A professional seaman is not competent for legal questions; with this reasoning the Tribunal cut off a remark by Admiral Donitz about a legal question. This condition must, however, be considered in applying principles which the German Supreme Court, during the war crimes trials after the first world War, formulated in this way, and I quote "The culprit must be conscious of the violation of international law by his doings."
the commandments of justice if soldiers would be charged with a criminal responsibility in deciding legal questions, which could not be settled at international conferences and which are hotly disputed in the field of science. 1930 did not adopt, from the Root-resolution of 1922, the criminal prosecution for violations of the rules of U-boat warfare. The five naval powers participation in this conference apparently came to the conclusion that the problems of naval warfare cannot be solved by means of penal law. And this wisdom applies fully today. the one of the intentional killing of the shipwrecked. It is aimed at Admiral Doenitz alone and not at Admiral Raeder.The legal basis for the treatment of the shipwrecked for those ships which are entitled to the protection of the London Protocol of 1936, is laid down in the protocol itself, There it reads that before the sinking, crews and passengers are to be brought to safety. This was adhered to on the German side, and the difference of opinion from the prosecution concerns only the question already dealt with, which ships were entitled to the protection of the protocol and which were not. of the protocol, the sinking is to be considered a military combat action. The legal basis, therefore, for these cases regarding the treatment of the shipwrecked is contained in the Hague Convention concerning the application of the principles of the Geneva Convention for Naval Warfare of 18 October 1907, although it was not ratified by Great Britain. arrangements for the search for the shipwrecked, as far as military purposes allow this. Accordingly the principle applied to the German U-boats to help the shipwrecked of steamers sunk without warning if by doing so (1) the boat would not be endangered; and (2) the accomplishment of the military mission would not be prejudiced.
These principles are generally acknowledged. In this connection I am referring to the order of the British Admiralty,for example, and I quote: "No British ocean-going merchantman shall aid a ship attacked by a U-boat."
which in to cases, personally witnessed by him, nothing was done by a British cruiser to rescue the shipwrecked, because U-boats were assumed to be nearby, once correctly so and once erroneously. A self-endangering appears to exist in a higher degree for U-boats in comparison to other types of vessels, because of their special sensitiveness to hits. the prejudice to the military mission, the U-boat is subject to special conditions. It has no room to take guests aboard. Its supply of food, water and fuel is limited and each considerable allocation is destructive to its combat-mission. It is further typical for the U-boat that the combatmission may also call for an unnoticeable attack and therefore exclude the rescue duty. opposite side, I quote from the statement of Admiral Nimitz:
"In General US submarines did not rescue enemy survivors if it meant an unusual additional danger for the submarine or if the submarine was prevented from further carrying out its mission."
rescue by U-boats until autumn 1942. The basic order was issued by the Naval Warfare Command on 4 October 1939 and ordered rescue whenever possible from the military standpoint. This was temporarily limited through the Standing Order for War 154. This order, issued in December 1939 applied to the few submarines which at that time were operating directly below the English coast. It may be seen from the order itself that every paragraph deals with combat in the presence of enemy forces for security purposes. The last paragraph also deals only with this battle-situation and serves the warranted purpose of protecting the submarine-commanders from the dangers to which, under the existing circumstances they exposed their boats through rescue-measures in every case. When after the Norway campaign the activity of the submarines gradually shifted into the open Atlantic, this order became outdated and was cancelled in the fall of 1940. In the time that followed the German submarine commanders enacted rescue measures whenever they could assume such responsibility from the military standpoint. This is known to the Tribunal from numerous special examples cited here which were contained in the statements of submarine commanders submitted here as well as in the war-diaries.
This situation was changed through Admiral Doenitz's order of 17 September 1942 in which he did forbid rescue measures on principle. The decisive sentences are:
"The rescue of members of a sunken ship is not to be attempted. Rescue is contradictory to the nest primitive requirements of warfare which are the annihilation of enemy ships and crown." rescue. It looks upon this order as a hidden provocation to kill the shipwrecked, and it has gone through the press of the world as command for murder. If any accusation at all has been refuted in this trial, then it seems to be this contemptible interpretation of the order mentioned above.
How was this order brought on? Beginning with June 1942 the losses of German submarines through the allied air-force rose by leaps and jumped from monthly average of 4-5 up to 10, 11, 13, during the first half-year of 1942 up to finally 38 boats in May 1943.
warfare in order to counter these losses. They availed nothing andevery day brought fresh reports of air-attacks and losses of submarines. heavily armed British troop-transport "Laconia" with 1500 Italian prisoners of war and an allied crew of 1,000 men and some women and children aboard had been torpedoed. Admiral Doenitz withdrew several submarines from current operations for the purpose of rescuing the shipwrecked and thereby no difference was made between Italians and Allies. From the very start the danger of enemy air attacks filled him with anxiety. While the submarines during the following days devotedly rescued, towed boats, supplied food etc. they received no less than 3 admonitions from their commander to be careful, to divide up the shipwrecked and at all times to be ready to submerge. These warnings were of no avail. On 16 September one of the submarines with a red cross flag laid out, was attacked and considerably damaged by an allied bomber while towing life-boats, one of which was hit and caused losses among the shipwrecked. Following this report the commander sent 3 more radio messages with the order in case of danger to submerge immediately and under no circumstances to risk their own safety. Again without avail. In the evening of this day, 17 September 1942 the second submarine reported that during its rescue action it had been taken unawares and was bombed by an airplane. Fuehrer-Headquarters to risk no boats under any consideration, Admiral Doenitz did not stop the rescue-action but had it continued until the shipwrecked were taken on by a French warship sent to their rescue.
But this incident was a lesson. Due to the enemy air-scout activity over the entire sea-area, it simply was no longer possible to carry out rescuemeasures without risking the submarine. It was useless to again and again give orders to the commanders to do rescue work only if their own boat was not endangered thereby. render aid had led many commanders to underestimate the dangers from the air.
But it takes a submarine, with the deck clear, at least one minute to submerge on alarm while an airplane can cover 6,00 motors in that time. This means practically that a submarine engaged in rescue-action when sighting a plane has not time enough to submerge. close of the "Laconia" incident to forbid rescue-measures on principle. The formulation was motivated by the and your to preclude the commander's discretion and to suppress every thought of estimating the danger of air-attack in the individual case and then according to the occasion still do rescue-work.
It is difficult to judge the actual effects of this order. From 1943 on about 80% of the boats were fighting against conveys where even without this order rescue-measures would have been impossible. this order, risked it once more to concern himself with the life-beats, no body can tell with certainty. As is known there was the order since the middle of 1942 if possible to bring in as prisoners captains and leading engineers. During the almost 3 years of war which followed this order was carried out not even a dozen times which proves how high the commanders themselves estimated danger to their beats in rising to the surface. torpedoed ships then to be taken aboard a U-boat, because they know exactly that their chance of being rescued was much better in a lifeboat than on a U-boat which, with a probability of 50 and mere percent, would not return to its base. I therefore together with Admiral Godt arrived at the conclusion that the Laconia order may have cost the lives of some Allied seamen at the same time as it may have saved the lives of others. As this may be, in the face of the enormous losses through the enemy air force the order forbidding rescue was justified. It corresponded completely with the basic idea of the precedence of the own vessel and of the own task, as prevailing in all navies; a principle which I believe I have proven as commonly valid in view of existing British and American orders and practices. order an "order to murder"? Its origin is the discussion between Hitler and the Japanese Ambassador Oshima in January 1942 in which Hitler proposed an order to his U-boats to kill the survivors of sunk ships.
This announcement as the prosecution infers, Hitler doubtless made good, and Admiral Doenitz had been carrying it out by the Laconia order. Admirals had to give in May 1942, the Fuehrer suggested proceeding actively against the shipwrecked, in the future, that is, to shoot them. Admiral Doenitz immediately rejected this sort of action as thoroughly impossible and Grand Admiral Raeder unqualifiedly concurred with him. Both admirals specified the improvement of the torpedes as the only permissible course of raising the losses among the crews. In the face of the opposition of both admirals, Adolf Hitler dropped his proposal and following this lecture there, no order whatever was given concerning shipwrecked, let alone concerning the killing of the shipwrecked by sheeting. an idea which for the first time appeared in this discussion of May 1942 and which returns in later documents of the naval warfare command. I am therefore to express myself about the legality of such a tendency. According to classical international law the Gestruction of combatants was a legal goal of war actions but not of non-combatants. In view of the development of the last wars one may be doubtful whether this classical theory still has any validity. I am regarding the hunger blockade as the first important infringement upon this theory, which, by cutting all food supply, was aimed at the civilian population, therefore the no-combatants of a country, the victims of which during the world war were estimated at 700,000 people. according to international law, it was practiced however, and therefore it means breaking with the principle of protection for non-combatants from war measures.
The second great change was brought on by the air war. I do not wish to discuss in detail the unsolvable question of who had started, but only state fact that the air war, at least in the last two years, was aimed against the civilian population. If in dozens of attacks on residential quarters of Ger cities after an attack thousands or tens of thousands of civilians were among the victims and only a few dozens or a few hundreds of soldiers, then nobody can assert that the civilian population was not the goal of the attack.