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.
The mass dropping of explosives and fire bombs on entire areas does not tolerate a doubt and the use of the atom bomb has produced the final evidence thereto. manner, miserably died in their houses, were buried, suffocated or burnt to death, I am surprised at the indignation of the Prosecution about the loss of about 30,000 men who lost their lives on the battle field or on ships which were a rmed and carried war material and often enough bombs which were destined for the attack on German cities. Moreover, most of these men died in combat, that is by mines, aircraft and especially in attacks on convoys, actions which also according to British conception were lawful.
The German Naval Warfare Command regarded these men as combatants. The British Admiralty takes the opposite standpoint in the orders for the merchant navy, although Oppenhein, the well known British export of international law, even before the outbreak of the first world war, defended the thesis that the crew is to be treated the same as combatants. He points to the century old and especially in England upheld practice to take the crew of merchant ship prisoners of war. He finds this principle confirmed in the 11th Hague convention of 1907 and recognizes the crew of the merchant navy as potential members of the navy. The legal position in their defense against a war ship is described as "entirely analogical to the position of the population of an unoccupied territory who takes up arms in order to combat inva ding troops."
It is wellknown that this unit is a combat one, according to para.2 of the Hague Convention on land warfare, and without considering whether the individual actually makes use or not of his weapon. Accordingly, Oppenheim refuses to make any distinction, among members of occupying forces, between persons who are enrolled in the enemy navy and those who are not. it certainly was unassailable in the year 1942, at a time when there were no more unarmed enemy ships and when the neutrals who happened to enter at all the zone of operations were moving in enemy convoys exclusively, which made them, just like enemy ships, solid members of the military system of the enemy forces. They all had lost any peaceful character and were considered as guilty of active resistance. Active resistance against acts of war is not permitted to any non-combatant in land warfare and results in his being punished as a partisan. And should in the war on sea, a ship's crew be entitled to the combatant's privileges, without suffering any of its disadvantages? Should this crew be permitted to participate in all possible acts of war, even in the firing of guns and underwater bombs, and yet remain noncombatant? Such an interpretation renders illusory the entire concept of a non-combatant. It cannot make any difference, whether or not only a part of the crew has anything to do with the serving of the guns. The ships as an entirety represents a fighting unit and on board a commercial ship more people had actually something to do with the serving of weapons as on board a submarine. the guns along with gunners of the Navy and the use of their weapons was regulated according to the admiralty's orders. The crows of ships were accordingly combatants and thus it was a legitimate aim of hostilities to destroy them by the use of arms. of ships and crews, which is considered by the prosecution as a particular sign that the "laconia" order bore the character of a murder-order. There has been enough discussion concerning the meaning of this sentence as an argument for the prohibition of saving. It may, taken out of its context,give cause for misunderstanding.
But whoever tries to read the entire order, cannot misunderstand it. It appears to me as decisive that in accordance with its origin, it was never meant to be a murder-order and has not been interpreted as such by the commanders. This is proven by the declarations and statements of dozens of submarine commanders. In its context, it could not even have been interpreted as a murder-order. In fact, in the next paragraphs it was explicitly ruled that as far as possible certain members of the crew should be brought back as prisoners. enough cleverness not to conserve, if it gives such a murder-order at all, a few witnesses of its crime. not believed in such a murder-order. Otherwise it would not have given order to its captains and leading engineers to escape capture by German submarines, by camouflaging as plain sailors while in the life-boats. According to the interpretation by the Prosecution, such an order would indeed have meant that the captain would have been shot by the submarine along with all the other members of the crew. "rescue-ships" as an evidence of the intention to kill shipwrecked people. However, only the individual, who is either in the water or in the life-boat is shipwrecked. A shipwrecked combatant who is again on board a ship is nothing but a combatant and accordingly the legitimate aim of an attack. I have already pointed out, during the hearing of evidence, the shooting-down of German sea rescue planes with intent to kill the rescued airmen, in order to show that the enemy command acted according to the very same interpretation. deposition of witnesses, on which the Prosecution tries to base its interpretation of the "Laconia" order. In my opinion, the deposition of the first naval lieutenant Heisig, as made here before the Tribunal, is irrelevant. His former affidavit is wrong and we know why, from the witness Wagner. Here, before the Tribunal, Heisig has explicitly denied that in Grand-Admiral Doenitz address to the cadets of the submarine school in September 1942 there has been any question that shipwrecked people should be shot at. Rather he has personally drawn a conclusion out of the words that totalitarian war must be waged against ship and crew, and by the reference to bombing war.
His interpretation may be explained by the fresh impression of the bombing of Luebeck, whi he had just experienced. The other listeners did not share this interpretation. In fact, they did not even think of it. This is evident according to the deposition of 3 persons who have heard the address. The further assertion of Heissig, that an officer unknown to him had taught him, on an unknown occasion, that one should order the men below deck, when exterminating shipwrecked people, I consider as an improvisation of his phantasy, which appears, to be easily excited. If such had really been the case, then such astonishing an occurrence, which would have been in contradiction with all educational principlesof the navy, would have made such an impression on a young officer, that he would have conserved some recollection of the full circumstances of such an instruction.
ly. Because he had - there is no doubt about it - at least hinted to a few submarine commanders that the "Laconia" order demands or at least approves of the killing of shipwrecked. Moehle received this interpretation neither from Admiral Doenitz himself, nor from the chief of staff, nor from the first assistant, Commander Hessler, that means from none of the officers who alone would have been authorized to transmit such an interpretation to the chief of a flotilla. How Moehle actually arrived at this interpretation has not found any explanation by the trial in my opinion. He maintains: by the fact that Korvettenkapitaen (Lt. Com.) Kuppisch from the staff of the BdU (Commander of the Submarines) had told him the story of "U 386" a boat, the Commander of which had been reprimanded for not having shot Allied airmen drifting in a rubber boat. This explanation of Moehle cannot be correct. It is proven beyond any doubt by the war diary and by witnesses that the commander of "U 386" had been reprimanded because he did not take on board the airmen concerned and brought them back. The whole affair with "U 386", furthermore, took place a year after the Laconia incident in September 1943 and Lt. Cmdr. Kuppisch who was supposed to have told it had already been killed in action as U-Boat commander in August 1943. about the "Laconia" order. not caused this briefing to be given nor did they know anything about it. Considering the frequent personal contacts between the U-Boat commanders and the staff of the Commander of the U-Boats this can only be explained by the fact that the few commanders who Moehle thus briefed did not take his words seriously. order, given by Moehle? Criminal responsibility presupposes in the first place some kind of guilt, i.e. the possibility to foresee the result. Considering the close contact with his flotilla chiefs and commanders, for whom alone the Laconia order was intended, Admiral Doenitz could not foresee that a flotilla chief could give such an interpretation to that order without making any attempt for clearing it up with the commander of the U-Boats. Such a conduct is beyond anything that could reasonably be expected. Therefore, any guilt is excluded. Criminal responsibility requires another criterion, namely results must be proved.
This also is entirely lacking. The prosecution has not even made a serious attempt to prove that one of the commanders, briefed by Moehle in that direction, actually shot once at shipwrecked. in the case of Kapitaen-Leutnant (Lt. Sen. Grade) E c k. It is significant that this case was not presented by the prosecution but by the defense. as the prosecution wants it understood. He was not concerned with the destruction of human lives but with the removal of wreckage and floats from which the Allied airplanes could deduce the presence of a German U'boat in this area. For this conduct two of his officers together with him have been condemned to death and hereby punished with a severity which will not be understood any more in normal times. ly has been shot at are so obviously unsuitable for proofing this accusation that I need not deal with it any further. The testimony about the sinking of the "Noreen Mary" bears the stamp of phantasy in various points and, in the case of the attack on the "Antonico", the intention to destroy shipwrecked is out of question because all was over in 20 minutes and the night was dark. of the Naval Warfare Command concerning a dozen cases in which Allied forces had allegedly shot at German shipwrecked. It appears to me that every one of these instances is better than that of the prosecution and some appear rather convincing. I value therefore all the more the sober attitude taken up by the Naval War Command of these cases when giving their opinion on these cases to the Fuehrer's Headquarters.
It namely points out that:
1. Part of the incidents occurred during combat operations.
2. shipwrecked, swimming in the water, might easily 3. so far no written or verbal order by an command for incidents presented by the prosecution.
In the same written opinion to the Fuehrer's Headquarters the Naval Warfare Command rejects reprisals by destroying enemy shipwrecked; that was on 14 September 1942, three days before the "Laconia order". As the latter Came to the Knowledge of the Naval Warfare Command as a wireless order, it would doubtlessly have been cancelled in accordance with the opposite view point just expressed to Fuehrer's Headquarters if it had been understood as an order for the shooting of ship-wrecked. of the prosecution. It consists in the first place of the number of the rescued allied sailors. It amounted, according to a survey of the British Minister of Transport in 1943, to 87% of the crows. Such a result is simply not compatible with an order for destruction. that is after the Laconia order, rejected allconsiderations of actions against shipwrecked. directive to the U-boats to take action against life boats or shipwrecked was considered unbearable by the Naval warfare Command, as it was against the innermost feeling of every sailor. Command Witt about British aviators shooting at the shipwrecked of submarines, most decidedly rejects the idea to attack the foe who has become defenseless in combat as it was incompatible with our principles of warfare. German submarines had received an order to murder the shipwrecked has been strikingly disproved. The Grand Admiral Doenitz stated here that he had never allowed the spirit of his submarine men to be endangered by mean acts. With losses from 70 to 80 %, he could only replenish his troops with volunteers if he kept the fight clean, in spite of its being tough. And if the Tribunal remembers the declaration of the 67 commanders in British captivity, it will have to admit that he created a bearing and a spirit which survived defeat.
and several legal considerations regarding naval warfare, in order to clarify the most important problems discussed here from the point of view of the defense. in naval warfare, and the question of what is permissible according to international law is most closely connected with what is necessary according to the military standpoint. I, therefore, in examining this point of the indictment, deeply regret that the Charter of this Tribunaldeprives the accused offices of a privilege guaranteed them by the Geneva Convention. i.e., the passing of judgment by a military tribunal making use of the laws and regulations applicable to its own officers. According to Article 3 of the Charter, I am not allowed to question the competency of this tribunal. I can therefore only request the Tribunal to make up for the unfairness that I see in the above mentioned article of the Charter by applying the same standards, where military evaluation and moral justification of actions of these German Admirals is concerned, as the tribunal would apply to Admirals of their own countries. A soldier, due to his practical knowledge of procedure in warfare not only on the part of his own country but also of the adversary, is keenly perceptive of the dividing line between combat and war crimes. He knows that the interpretation of international law concerning what is allowed or forbidden in naval warfare is decisively governed by the interests of his country. An insular power like Great Britain, having long and sensitive sea lanes and a strong surface fleet, has always looked at these questions from a different angle than the continental powers. The The attitude of the United States, from the renunciation of submarine warfare by the Root-resolution of 1922 to the unrestricted submarine warfare against Japan in 1941, reveals how a change in strategic position entails also a change in legal evaluation. No one can know to what degree the development of airforces and the efficacy of bombs will increasingly force navies under water and render obsolete all previous conceptions of submarine warfare.
prevent a man of law from settling controversial questions of law and policy pertaining to naval war at the expense of those whose professional duty it is to direct navies. storm of indignation. It seems significant to me that the English historian Bell judges in these very days, in a paper intended only for official use of the Foreign Office, the right to such indignation, as follows:
"It is an old rule of military honornever to belittle the strategy and of war.
It is unfortunate that the cries people". Grand Admiral Doenitz which are not concerned with naval war.
To begin with there is the charge of preparation of aggressive wars. It is known how much this very accusation is being contradicted by the professional officers of probably all allied countries. In answer to such attacks in public, Justice Jackson formulated for the press (4th December 1945 Stars and Stripes, European:Ed., 5 December 1945,) the ideas of the prosecution regarding this subject, as follows:
"I have made it clear that we do not prosecute these militarists and lead it into war.
Not because they conducted the war, but because they have been driving to war."
of Grand Admiral Doenitz against the charge of preparing aggressive wars I need only point to the result of the evidence. At the beginning of the war he was/relatively young commander; his only task was the training and instruction of submarine crows; he did not belong to the General Staff in the meaning of the indictment and did not participate in any of the addresses which were presented here as proof of war intentions. The charge that he had advocated the occupation of submarine bases in Norway is likewise disproved. attack upon Spain in order to capture Gibraltar. The conquest of Gibraltar against the will of Spain was absolutely impossible and out of the question during the entire war, and especially so in 1943. dangerous setbacks on all fronts, at the time when Admiral Doenitz was appointed Supreme Commander of the Navy on 1 February 1943. This fact may be significant for the participation in the so-called conspiracy. The prosecution is not very clear about the precise moment at which they want to fix the beginning of the responsibility of participation. In the indictment of individuals, intimate connection with Hitler since 1932 is mentioned. This, however, is obviously an error. Admiral Doenitz became acquainted with Hitler only in the fall of 1943, on the occasion of submitting a military report, and in the following years talked to him briefly, and always only about military problems, altogether 8 times and never alone. Since, aside from this fact, thedefendant never belonged to any organization which is accused of conspiracy by the prosecution, I see no connection of any kind to this conspiracy prior to 1 February 1943. as has been illustrated by the British prosecutor by the example of the railroad assassins. This idea of guilt, retroactive on past events, is very difficult to absorb for the German Jurist. The continental concept of law is reflected by the formulation of Huge Grotius: