The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Eighth Day: Monday, 15th July, 1946
(Part 9 of 10)

[Page 392]

By DR. DIX, Continued:

If the prosecution now finally argues, on the basis of the text of the aforementioned memorandum of the Board of Directors of the Reichsbank, that an opposition to war is not evident from the memorandum, but only technical reflections on finance and currency, then I have only to refer in this respect to my previous statement and the testimony of Vocke. And the presentation of facts by Schacht himself would not even be necessary to refute this argumentation. Vocke declared quite unequivocally in his capacity as closest collaborator, that Schacht wished to limit and sabotage rearmament from the moment when he recognized that it became a potential war danger. The sworn affidavit of Hulse and the sworn affidavits of all the collaborators of Schacht in the Reich Ministry of Economics agree with the testimony of Vocke in this respect. I need not quote them individually. They are known to the Tribunal. The Tribunal does not need the commentary of a defence counsel on them. They speak for themselves. If the prosecution now finally bases its argument on the text of the memorandum, which, it is true, actually only deals with financial problems, then again I cannot omit the remark that such an argumentation moves in a vacuum in so far as one does not take the experiences of history and the general experiences of life into consideration. Naturally, as I have already said, the Board of Directors of the Reichsbank could only operate with arguments which came from their department, particularly so if it meant dealing with Hitler. One hits the pannier but the blow is intended for the donkey.

If the directorate of the Reichsbank, along with its President Schacht, had made public its true purpose in this memorandum, namely to avert the danger of war and to combat Hitler's will of aggression, then it would have deprived itself of the effect of a positive departmental influence. Hitler very well understood the purpose of this memorandum when he shouted, after reading it: "That is mutiny." With this, Hitler recognized the only thing that can be said of Schacht as conspirator: He was never a mutineer and conspirator against world peace, but, so far as he was a conspirator and mutineer, he was this only against Adolf Hitler and his regime.

Again in this case I must ask the High Tribunal to turn their attention to Appendix No. II, which I must insert at this moment, because the matter that is dealt with here did not reach me for translation until after I had submitted my final speech.

I said that Schacht, in so far as he was a conspirator, was only one against Hitler.

As such, he was the subject of ironic belittling by Colonel- General Jodl and my colleague Nelte in the epithet "Frock- coat and drawing-room revolutionary." Now, history teaches that the quality of the tailor does not play any role in the case of the revolutionary. And as far as the drawing-room is concerned, well - shacks have no revolutionary preference over palaces. I only call to mind the political drawing- rooms of the great French Revolution, or for example (one of many) the elegant officers' club of the feudal Preobraschensk regiment under many a Tsar. Even if the gentlemen of the Tribunal are of the opinion that Schacht and his accomplices themselves should have done the shooting, then I can only say: Well, if the solution had been as easy as that, Schacht would have loved to have done the shooting himself; he exclaimed that here spontaneously. But it was not possible without having the power to master the confusion inevitably following and make the attempt a revolutionary success. Therefore generals with troops were necessary. I do not wish to repay Colonel-General Jodl with the same coin, and therefore do not say "a necessary evil."

[Page 393]

The further reproach of the basic lack of working-class elements to strengthen the putsches is contradicted by the social composition of the revolutionaries of 20th July. As I stated before, all this is irrelevant for the decision of the Tribunal. But my client has a moral right that his defence counsel does not completely ignore this ironic polemic which took place in the spotlight of the public world.

In summing up it must therefore be said:

After the elections in July, 1932, it was certain that Hitler would and was bound to seize power. Previous to this, Schacht had particularly warned the foreign countries of this development, thus, he had not contributed to it. After the seizure of power only two roads were open to him, as to every German: He either had to estrange himself or he had to enter the movement actively. The decision at these crossroads was a purely political one without any criminal aspect. Just as we respect the reasons which caused the foreign countries to collaborate with Hitler much more intensively and in a pro-German way than with the previous. democratic governments of Germany, so we must recognize the good faith of all those Germans who believed themselves able to serve the country and humanity better by remaining in the movement, that is, either within the Party or within the organization of officialdom, because of the greater possibilities of exerting their influence than by grumblingly standing aside. To serve Hitler as Minister and President of the Reichsbank was a political decision, about whose political correctness one can easily argue ex ipso facto, which, however, lacked any criminal character. Schacht has always remained loyal to the motivating reason for his decision, namely to combat any radicalism from an influential position. Nowhere in the world which knew his oppositional attitude could he see any signs of warning or support. He only saw that the world trusted Hitler much longer than he himself did, and permitted Adolf Hitler honours and foreign political successes, which hampered Schacht's work when it had already for a long time been directed toward removing Adolf Hitler and his Government. He led this struggle against Adolf Hitler and his Government with a courage and a consequence which must make it appear as a pure miracle that it was only after 20th July, 1944, that the fate of the concentration camp and the danger of losing his head, either through the People's Tribunal or through a spectacular act of the SS, overtook him. He is sufficiently clever and self-critical to realize that, from a purely political consideration, the picture of his character will waver in history, or at least in the nearest future, due to the favour and hatred of parties. He humbly resigns himself to the judgement of history even if one historian or another will label his political line as incorrect. With the pride of a good conscience he resigns himself to the judgement of this High Tribunal. He stands before his judges with clean hands. He also stands before this Tribunal with confidence, as he has already manifested in a letter which he addressed to this Tribunal before the beginning of the proceedings, in which he states that he is grateful to be able to expose before this Tribunal and before the whole world his actions and doings and their motivating reasons. He stands before this Tribunal with confidence because he knows that the favour and hatred of the parties will not have any effect on this Tribunal. With full understanding of the relativity of all political actions in such difficult times, he is completely assured and full of confidence with regard to the criminal charges which have been raised against him, and rightly so. Because, whoever is guilty of being criminally responsible for this war and the atrocities and inhuman acts committed in it, Schacht, according to the evidence which has been given here with minute exactness, can shout the words to that culprit which Wilhelm Tell shouted to the Kaiser-assassin Parricida: "I raise my clean hands to Heaven, and curse you and your deed."

I, therefore, request the findings to be established to the effect that Schacht is not guilty of the accusation lodged against him and that he be acquitted.

THE PRESIDENT: I call on Dr. Kranzbuehler for the defendant Donitz .

DR. KRANZBUEHLER (for the defendant Donitz ): Mr. President, gentlemen of the Tribunal: "War is a cruel thing and it brings in its train a multitude of injustices and misdeeds."

[Page 394]

With these words of Plutarch's, Hugo Grotius begins his examination of the responsibility for war crimes and they are as true today as they were 2,000 years ago. Acts which were war crimes or were considered as such by the other side have been committed by belligerents at all times. But the consequences of this fact were always to the disadvantage of the vanquished parties, and never to that of the victors. The law which was applied here was necessarily always the right of the stronger.

Whilst more or less steadfast rules have been governing land warfare for centuries, in naval warfare the conceptions of the parties concerned with regard to International Law have always clashed. No one knows better than the British statesmen to what extent these conceptions are dictated by national or economic interests.

I refer in this respect to noted witnesses such as Lord Fisher and Earl Grey of Fallodon. Therefore, if ever in history a naval Power had had the idea of prosecuting a defeated enemy admiral, and this, on grounds of its own conception of the rules of naval warfare, the sentence would have been pronounced simultaneously with the indictment.

At this trial two admirals are under indictment for a naval war which has been called criminal. Thus the Tribunal is confronted with a decision regarding conceptions of law which are necessarily as divergent as the interests of a naval Power and those of a land Power. Not only the fate of both admirals is connected with this decision. It is also a question of an honourable name for hundreds of thousands of German seamen, who believed they were serving a good cause and who do not deserve to be branded by history as pirates and murderers. It is toward those men, the living as well as the dead, that I feel I have the moral obligation to reject the accusations raised against German naval warfare.

What are these accusations? They are divided into two large groups: Unlawful sinking of ships and premeditated killing of shipwrecked personnel.

I shall deal first with the accusation of the illegal sinking of ships.

Two reports by Mr. Roger Allen of the British Foreign Office, made in the autumn of 194o and spring of 1941, form the nucleus of that accusation. I do not know to whom and for what purpose these reports were made. According to their form and content they seem to be serving propaganda purposes, and for this reason I believe they have very little value as evidence. Even the prosecution submitted only part of the accusations made therein. The reports trace only one-fifth of the total number of supposedly unlawful attacks to submarines, whereas four-fifths are ascribed to mines, aeroplanes or surface craft: The prosecution omits these four-fifths and this reserved attitude may be explained by the fact that the use of these combat means on the British side differed in no way from that on the German side.

With regard to the use of submarines, however, there seems to exist a difference between the principles followed in the German conduct of the naval war and those of our enemies. At any rate, the public in enemy countries and in many neutral countries believed so during the war and still partly believes it today. Propaganda dominated the field. At the same time the majority of critics neither knew exactly s which principles were valid for German U-Boat warfare, nor on which factual and legal foundations they were based. It shall be my task to attempt to clarify this.

The reports by Mr. Roger Allen culminate in the assertion that the German U-Boats, beginning with the summer of 1940, torpedoed everything coming within the view of their periscopes. Undoubtedly, the methods of submarine warfare stiffened gradually under the pressure of the measures directed against Germany. This war, however, never did degenerate into a wild shooting melee, governed only by the law of expediency. Much of what might have been expedient for a U-Boat was left undone to the last day of the war because it had to be regarded as legally inadmissible, and all measures of which the German Naval High Command is being accused today by the prosecution were the result of a development, in which both sides partook, of measures and counter-measures, as occurs in the course of every war.

[Page 395]

The London Protocol of 1936 formed the legal basis for the German submarine warfare at the beginning of this war. These regulations were literally incorporated into Article 74 of the German Prize Ordinance, which even Mr. Roger Allen calls a reasonable and not inhuman instrument. This Prize Ordinance was sent in 1938 in draft form to the two U-Boat flotillas and to the U-Boat training school, and served as a basis for the training of the commanders. Stopping and examining of merchant vessels was performed as a tactical task. In order to facilitate for the commander in economic warfare the quick and correct evaluation of his legal position toward ships and cargoes of the enemy and of neutral countries, the prize disc was constructed which through simple manipulations indicates the Articles of the Prize Ordinance to be applied. In so far preparations had been made at all for economic warfare through submarines they were based exclusively on the German Prize Ordinance and thus on the London Protocol.

The German High Command also actually adhered to this legal foundation at the time the war broke out. The combat instructions for U-Boats of 3rd September, 1939, ordered clearly and distinctly that submarine warfare be carried on in accordance with the Prize Ordinance. Accordingly, sinkings were permissible only after stopping the ship and examining it, unless the ship attempted to escape or offered resistance. Some examples were submitted to the Tribunal, from the abundance of possible instances, showing the chivalrous spirit with which the German submarine commanders complied with the issued instructions. Especially, the care given to the crews of ships which were lawfully sunk after they had been stopped and examined was carried out in part to an extent which could scarcely be justified on military grounds. Lifeboats were towed over long distances and, thereby, the few available U-Boats were diverted from their combat mission. Enemy ships which could have been sunk lawfully were permitted to go free in order to send the crews of ships previously sunk to port aboard them. It is, therefore, only correct if Mr. Roger Allen stated that the German U-Boats during the first weeks of the war adhered strictly to the London regulations.

Why was this procedure not kept up? Because the conduct of the enemy made such a procedure militarily impossible and created at the same time the legal prerequisites for its modification.

I shall consider the military side first. From the very first day of the war, U-Boat reports reached the commander of the U-Boat fleet and the Naval High Command stating that hardly an enemy ship submitted voluntarily to being stopped and examined. The merchant vessels were not content with their attempt to escape, either through flight or by changing their course and bearing directly down upon the U- Boat, thus forcing it to dive. On the contrary, every U-Boat sighted was reported at once by radio and subsequently, in the shortest space of time, it was attacked by enemy aeroplanes or naval forces. The complete armament of the enemy merchant vessels, however, settled the matter. As early as 6th September, 1939, a German U-Boat was shelled by the British steamship Manaa, and that was the starting signal for the great struggle which took place between the U- Boats on the one hand and the armed merchant vessels equipped with guns and depth charges on the other hand, as equal military opponents.

In order to show the effect of all these measures taken by the adversary, I have presented the Tribunal with some examples which I do not wish to repeat. They show unequivocally that further action against enemy merchant ships according to the Prize Ordinance was no longer possible from the naval standpoint and meant suicide for the submarine. Nevertheless, the German High Command, for weeks on end, continued to act according to the regulations governing the Prize Ordinance. Only after it was established that every time there was any action on the part of enemy merchant ships, and especially armed action, it was not a question of an individual case, but of a generally ordered measure, was the order given on 4th October, 1939, to attack all armed enemy merchant ships without warning.

[Page 396]

The prosecution will perhaps take the standpoint that, in lieu of this, submarine warfare against armed merchant vessels should have been discontinued. In the last war the most terrible weapons of warfare were ruthlessly employed by both sides on land and in the air. In view of this experience, the thesis can hardly be upheld today that in naval warfare one of the parties waging war can be expected to give up using an effective weapon after the adversary has taken measures making the use of it impossible in its previous forms. In any case, such a renunciation could only be considered if the new utilization of the weapon were undeniably illegal. But this is not the case for the utilization of German submarines against enemy merchant shipping, because the measures taken by the enemy not only changed the military but also the legal situation.

According to German legal opinion, however, a ship which is equipped and utilised for battle does not come under the provisions granting protection against sinking without warning, as provided by the London Pact for merchant ships. I wish to stress the fact that the right of the merchant ship to carry weapons and to fight is not thereby contested. The conclusion drawn from this fact is reflected in the well- known formula: "He who uses weapons must expect weapons to be used against himself."

During the cross-examination the prosecution referred to this interpretation of the London Protocol as fraudulent. It admits only the closest literal interpretation and considers the sinking of a merchant ship as admissible only if the latter has offered active resistance. It is not the first time that fundamental differences of opinion exist between contracting parties with respect to the interpretation of a treaty, and the extremely divergent interpretations of the meaning of the Potsdam Agreement of 2nd August, 1945, provide a recent example. Diversity of conception, therefore, does not allow for the conclusion that the one or the other party has acted fraudulently during the signing or the subsequent interpretation of a treaty. I will endeavour to show how unjustified this charge is also in regard to the German interpretation of the London Submarine Protocol. There are two concepts which form the basis of the German interpretation, namely, that of "merchant vessel" and "offer of active resistance."

If I now consider some legal questions, it will in no way represent a comprehensive exposition. I can only touch on the problems, and due to lack of time, I must also limit myself when mentioning authoritative sources. I shall preferably refer to American sources, because the interests of naval strategy of this nation were not fixed to the same extent as those of the European nations and, therefore, its scientific writings can probably claim greater objectivity. The text of the London Protocol of 1936 is based, as is well known, on a declaration which was signed at the London Naval Conference of 1930. The committee of jurists appointed at that time expressed its opinion concerning the greatly disputed definition of a merchant vessel in the report of 3rd April, 1930:

"The committee wishes to place on record that the expression 'merchant vessel' where it is employed in the declaration is not to be understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to cause her to lose her right to the immunities of a merchant vessel."

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