Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-126.05
Last-Modified: 2000/02/28

Q. Well, now, just look at Page 29 in the English Document
Book, or Page 58 in the German, whichever you care to look
at. It is Document 191-C, Exhibit GB 193. This is the 22nd
of December, nineteen days after the beginning of the war.

  "Flag Officer U-boat intends to give permission to U-
  boats to sink without warning any vessel sailing without
  lights. Previous instructions, permitting attacks on
  French war and merchant ships only as a defensive
  measure, purely French or Anglo-French convoys only North
  of the Latitude of Brest, and forbidding attacks on all
  passenger ships, give rise to great difficulties to U-
  boats, especially at night. In practice, there is no
  opportunity for attacking at night, as the U-boat cannot
  identify a target which is a shadow in a way that
  entirely obviates mistakes being made. If the political
  situation is such that even possible mistakes must be
  ruled out, U-boats must be forbidden to make any attacks
  at night in waters where French and English naval forces
  or merchant ships may be situated. On the other hand, in
  sea areas where only English units are to be expected,
  the measure desired by Flag Officer U-boats can be
  carried out. Permission to take this step is not to be
  given in writing, but need merely be based on the verbal
  approval of the Naval War Staff. U-boat commanders would
  be informed by word of mouth..." and note the last line
  "... and the sinking of a merchant ship must be justified
  in the war diary as due to possible confusion with a war
  ship or an auxiliary cruiser."

Now, just tell me - take your choice - do you consider that
sailing without lights is either persistent refusal to stop
on being duly summoned or active resistance to visit and
search, within the Treaty? Which of either of these things
do you consider it to be?

A. If a merchant ship acts like a warship -

Q. First of all, you must answer my question, if the
Tribunal does not rule otherwise, and then you can give your
explanation. My question is this: Do you consider that
sailing without lights is either persistent refusal to stop
or active resistance to visit and search? Do you consider it
to be either one or the other or both of these things? Do
you?

A. The question is not correctly expressed; because we are
dealing here with a certain operational area in which
British and French -

THE PRESIDENT: Defendant, you will answer the question,
please.

THE WITNESS: I did not understand it.

BY SIR DAVID MAXWELL FYFE:

Q. Do you consider that sailing without lights is either
persistent refusal to stop on being duly summoned, which is
one of the matters in the Treaty, or active resistance to
visit and search which is the other matter set out in the
Treaty? Now, do you consider that sailing without lights is
either or both of these matters mentioned in the Treaty?

A. If a merchant ship sails without lights, it must run the
risk of being taken for a warship, because at night it is
not possible to distinguish between a merchant ship and a
warship. At the time the order was issued, it concerned an
operational area in which blacked-out troop transports were
travelling from England to France.

Q. Your answer is that it is not covered by the Treaty but
by one of the matters in the Treaty, but your explanation
was that you thought you were entitled to torpedo without
warning any ship that might be mistaken for a warship. That
is your answer, is it?

                                                  [Page 281]

A. Yes.

Q. Why didn't the defendant von Ribbentrop and all these
naval advisers 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?

A. I was not asked before Germany signed this Treaty;
Germany adhered to the Treaty in practice, as I know very
well, until counter measures were introduced and then I
received the orders to act accordingly.

Q. Just let us go through this document and see if you can
help me perhaps a little more on some other points. Why was
this action to be based on the verbal approval of the Naval
War Staff P Why hadn't the Naval War Staff the courage to
speak its approval in an ordinary written order if it was
all right?

A. Yes; the paper you are showing me is a note or memorandum
made by a young expert in the Naval War Staff. In fact, it
was the idea of that particular officer in the Naval War
Staff, and, as I have pointed out here, I did not know of
the matter. In actual fact, the Naval War Staff never gave
me such an order. The contents of that paper are 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 verbal approval of the Naval War Staff, so that the
Naval War Staff could say, as you have said now, "We did not
issue an order," and the junior officers would be acting on
the spoken word, and I want to know - you have been
Commander-in-Chief of the German Navy - why was it done in
this way?

A. No, that is not correct. That was this young officer's
idea. The order which I received from the Naval War Staff
stated explicitly that blacked-out vessels could be sunk in
this area, where English transports were travelling from
England to France. So, you see, it contained none of the
things stated in this memorandum. There is no doubt that the
Section Head and likewise the chief of the Naval War Staff
refused and rejected that entirely impossible idea and gave
me an explicit order.

Q. Are you suggesting to the Tribunal that on these vitally
important points, verbal approval of the Naval 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? Was that the way, was that
the state of efficiency of the staff of the German navy?

A. No, that is a misunderstanding. It has been corrected.
That is a note, submitted by the expert on the Naval War
Staff, of which his superiors in the Naval Warfare Command
did not approve. It was corrected. There was no verbal
agreement but an explicit order to myself, so that young
officer's idea had already been forbidden by the Naval War
Staff.

Q. You know that the original is initialled by Admiral von
Friedeborg?

A. No, that is quite wrong, that is impossible. "Fd " is
written there that means Frasdorf. That was Kapitanleutnant
Frasdorf. He was an expert on the Naval War Staff; and not
Friedeborg. He was a young officer in the first department
of the Naval War Staff. Those are all things which I learnt
of here. His chief, Admiral Wagner, had condemned it
already. It was not Friedeborg, but Frasdorf. That is the
way this young officer thought about it, but actually a
definite order was issued to me concerning operations in
that area.

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
faking the records after you have sunk a ship?

A. No, and it was not done. That also belongs to the same
category - the ideas of that officer. No order for that has
even been given. The order of the Naval War Staff issued to
me in that connection has been submitted and that is a clear
and concise order, without the instruction mentioned here.

                                                  [Page 282]

Q. Of course, you appreciate that these things, according to
this 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, verbal approval, oral instructions to commanders, and
faking the orders? You say that these existed only in the
mind of a Kapitanleutnant? Is that what you are telling the
Tribunal?

A. Yes, yes, of course, because the clear, concise order was
given by the Naval War Staff to me in which these things
were not mentioned. And quite as clearly I passed my orders
on. That is how it is. This memorandum, or these ideas of
that officer were already disapproved by his chief of
department in Berlin. A clear order was given to me,
however, and there was nothing in it about a war diary and
all these things mentioned here. That order is available.

Q. Well, we shall be able to ask, I understand, Admiral
Wagner as to where this Kapitanleutnant got hold of these
ideas, is that so, or whether he made them up? Is that what
you are telling us, that Wagner will be able to deal with
this, will he?

A. Admiral Wagner ought to know all about it, because this
expert was in his department in Berlin.

Q. I see. Well, if you put that on to the Kapitanleutnant,
let's pass on to another point. In mid-November -

A. (interposing). I am not laying any blame on anybody, but
they are ideas of a young officer which were already
disapproved of by his chief of department. I am blaming no
one, 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 gunfire 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:

Q. You see, what I am suggesting, defendant, is that the
statement, the warning, that you would sink merchant ships,
if armed, made no difference to the practice you had already
adopted of sinking unarmed ships without warning.

A. In the beginning of October, if I remember correctly, I
received the order or the 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?

A. It is a matter of course that, if a ship has a gun on
board, she will use it. It would have been a one-sided
obligation if the submarine, in a suicidal way, were then to
wait until the other ship fired the first shot. That is a
reciprocal agreement and one cannot in any circumstances
expect the submarine to wait until it gets hit first. And,
as I said before, in practice the steamers used their guns
as soon as they came within range.

Q. But you know, the arming of merchant ships, defendant,
was well known in the last war. It was well known for 20
years before this Treaty was signed.

                                                  [Page 283]

And you will agree with me, won't you, that there is not a
word in 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 cannot 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 an infringement of the Treaty. I am not an
expert on international law. I am a sailor; and I acted
according to my orders. Of course, it is suicide for a
submarine to wait till it receives the first hit.

It goes without saying that the steamer is not carrying guns
for the fun of it, but to make use of them. And I have
already explained what use was made of them.

Q. Well, now, just one other matter, because I must cover
these points in view of your evidence.

Did you order your commanders to treat the use of wireless
as active resistance? Did you consider that the use of
wireless for merchant ships was active resistance within the
Treaty?

A. On the 24th of September, the Naval War Staff's order -

Q. (interposing). No, no, just answer the question first,
defendant, and then give your explanation. I said that to
you quite twenty times yesterday and today. Did you consider
the use of wireless by merchant ships as active resistance?

A. It is generally laid down by international law that a
merchant ship can be fired on if it makes use of its
wireless when stopped. That is also in the French Ordinance,
for instance. In order to avoid more severe measures, we had
not as a rule done so yet. Not until the end of September,
when I received a definite order or permission to do so, was
that rule, which is in accordance with international law,
put into effect.

Q. Tell me, didn't the German Admiralty know in 1936 that
most merchant-men had wireless?

A. Of course, but according to the International Conference
on International Law - I happen to know this because it
appeared as a footnote in the Prize Ordinance - according to
this Conference of 1923, they were not allowed to use it
when they were stopped. That is international law and is
found in all instructions. I know for certain that the
French instructions say this, too.

Q. At any rate again, the German Admiralty and the German
Foreign Office did not make any mention of use of wireless
in this Treaty. What I am suggesting - I want to put it
quite clearly to you - is that you were not bothering about
this Treaty at all in any case where it didn't suit you in
the operations in this war.

A. That is not true.

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 let'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."

Now, defendant, were you classing tankers bound from one
neutral port to another as warships, 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,
1939, in the North Sea, a tanker going from one neutral port
to another.

                                                  [Page 284]

A. Well, the submarine commander in this case could not see,
first of all, that the ship was travelling from one neutral
port to the other, but -

Q. Therefore-

A. (interposing). No, not for that reason, no. But that ship
was heading for England, and he confused it with an English
ship. That is why he torpedoed it. I know of that case.

Q. You approve of that action by the submarine commander?

A. No; that is an assertion made by yourself and is refuted
by our habitual clean submarine warfare and by the fact that
it was done by mistake.

Q. When in doubt, torpedo -

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 what you assert. If one or two
instances are given of mistakes made in the course of five
and a half years of clean submarine warfare, they prove
nothing; but they do contradict your general assertion.

Q. Yes. Well, now, let's look at your clean U-boat warfare
if you wish to do so. Will you turn to Page 30 of the
English Document Book, or Pages 59 to 60 of the German. Now,
the first of these - this is the note on the intensification
of U-boat warfare. You say that on directive of the Armed
Forces High Command of 30th December - this is on the 1st of
January, 194o-the Fuehrer on the 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
  USA."

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