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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Seventy-Ninth Day: Tuesday, 16th July, 1946
(Part 3 of 11)

[Page 10]


The Tribunal saw from the Standing War Orders submitted that 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.

Outside the operational area announced the German submarines 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 operational area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods, which fact in itself made them liable to be sunk after 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.

In this connection I must mention the order of 18th July, 1941, according to which United States vessels within the operational area were placed on an equal basis with 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 opportunist" way. If this is to mean that it was also influenced by political considerations, then I am ready to admit it. But I do not consider it a reproach; since war itself is a political instrument, it is in keening with its essence if individual parts of it are placed under the directives 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 they are exactly a proof of the efforts to avoid any conflict with the United States.

[Page 11]

As is known to the Tribunal from documents and the testimonies 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 has been claimed just now on the part of the Americans, in respect of German policy.

At least the United States had abandoned its neutrality but claimed the position of a "non-belligerent", 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 hardly be directed against the orders which were issued in justification of the consequences of the American attitude.

I have endeavoured to present to the Tribunal a survey of the essential orders issued, and to say a few things in respect to their legality.

No doubt there were instances of attacks on ships which, according to the orders mentioned, should not have been 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 3rd September, 1939, by the U-30 under the command of Kapitanleutnant Lemp. The sinking of this ship was due to the fact that the commander mistook it for an armed merchant cruiser.

If the Tribunal still hesitated to believe the concurring statements of all the witnesses heard here in this critical case, which was used especially for propaganda purposes, these doubts would be removed by the behaviour of the same commandant in the days and weeks following the sinking. 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 commanders even when by such conduct they greatly endangered their submarines.

Only on the return of the U-30 from its operations at the end of September, 1939, were the C.-in-C. Submarine Fleet and the Commander-in-Chief of the Navy fully informed of the whole affair of the sinking of the Athenia. Upon his return the commander immediately reported to the C.-in-C. Submarine Fleet the mistake which he himself meanwhile recognized as such, and he was sent by the C.-in-C. to Berlin to report in person.

Dr. Siemers will deal with the political aspect of this matter. I only mention the military occurrences. Admiral Donitz received the following communication from the Naval High Command:

1. The affair was further to be dealt with politically in Berlin.

2. Court-martial proceedings were not necessary since the commander acted in good faith.

3. The entire matter was to be kept in strict secrecy.

On the grounds of this order the C.-in-C. Submarine Fleet gave orders that the report on the sinking of the Athenia be removed from the log of the U-30 and that the log be completed in such a manner as to make the absence of the entry inconspicuous.

As the Tribunal has seen, this order was not carried out satisfactorily, obviously for the reason that the officer in charge had no experience whatever in such measures.

[Page 12]

The prosecution pointed out this changing of the war diary 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 report by the commander 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 naval 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 eight copies, of which some were intended not only for the higher staff 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 was 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. A certain moral offence could perhaps be seen in such action in the case of the Athenia if thereby a falsification for all time 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 C.-in-C. Submarine Fleet and the Commander-in-Chief of the Navy, and kept in both their offices.

I should like further to say briefly that a general order not to enter certain happenings into the war diary has never existed.

The Athenia case brings another fact to light, that is the manner in which t compliance of U-boat commanders with issued orders was enforced. In spite of the justified conception of the Naval Command that the commandant acted in good faith, he was arrested by Admiral Donitz 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.

The Tribunal knows the wireless communications of September, 1942, which, on the occasion of the sinking of the Monte Gorbea, the commander had been informed that upon his return he would have to face court-martial proceedings for violation of orders regarding the conduct toward neutrals. All commanders received notice of this measure.

The Tribunal will please consider what such strict threats mean to a commander 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 initiated in cases where dismissal from the service seems warranted. That should never be the case when the violation of an order is an accidental one. For a C.-in- C. who is supposed to wage 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.

Every military leadership acts in accordance with these principles. In this connection I will refer to the unreserved recognition which the commander of the British destroyer Cossack 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.

I had to go into those matters in order to meet the accusation that any sinkings carried out against orders were sanctioned afterwards by the High Command in so far as drastic steps were not 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-in-chief. After the conclusion of every enemy operation, an oral report had to be made, and

[Page 13]

all measures taken were subjected to sharp criticism, while instructions were given at the same time for future behaviour.

The German submarines undertook many thousands of combat 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 distinguish an armed from an unarmed ship, 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 warfare, I still have to deal with the accusations built up by the prosecution from certain introductory remarks on the subject of the organization of submarine warfare.

Simultaneously with the combat instructions of 3rd September, 1939, in which German submarines were ordered to comply in their operations strictly with the Prize Ordinance, an order was prepared in the Naval High Command decreeing action without warning in case the enemy merchantmen were armed.

In addition to this, during the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones.

The prosecution looks upon these two documents as proof of the will to conduct a war contrary to International Law from the very start. I, on the other hand, regard these 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 devising even the most elementary methods for conducting such a war. Since neither surprise attacks on armed merchant vessels nor the declaration of prohibited zones violate International Law, a belligerent should well be allowed to consider after the outbreak of war if and when he wants to make use of these opportunities. As we know from the above-mentioned orders of the British Admiralty, as early as 1938 a thorough study of all the possibilities resulting from the war upon commercial shipping had been made and had been worked out in a practical way.

This same standpoint holds good also for the memorandum of the Naval Command of 15th 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."
In accordance with the heading, the memorandum reveals an examination of the military demands for effective naval warfare against England and the legal possibilities for fulfilling these demands. The result was the order of 17th 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, intensifying measures were recognized as not yet justified for the time being, and the suggestion made was to wait and see what the further conduct of the enemy would be.

One sentence in this memorandum arouses special distrust on the part of the prosecution. It says that naval warfare must be kept as a matter of principle within the framework of existing International Law. But measures which might result in successes decisive for the war would have to be taken, even if new laws of naval warfare were created thereby.

Does this really constitute a renunciation of International Law? Quite the contrary. A departure from existing International Law is made dependent only on two quite limited conditions:

1. A military one, namely, that measures are involved which are of decisive importance for the outcome of the war, i.e., also of importance in shortening the War.

[Page 14]

2. A moral one, namely, the nature of the new measures makes them suitable for incorporation into the new International Law.

The memorandum itself states that this would be possible only within the framework of the laws of military combat ethics and a demand is therefore made for rigid adherence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating new International Laws.

The well-known expert on International Law, Freiherr von Freytagh-Loringhoven, says:

"It has always been war which has given its strongest impulses to International Law. Sometimes they have been of a positive and sometimes of a negative nature. They have led to further development of already existing institutions and norms, to the creation of new forms or the reversion to old ones, and not infrequently also to failures."
Especially in this trial, which itself is supposed to 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 on Saturday morning.

DR. KRANZBUEHLER: Before the recess I was speaking about the possibilities of development of International Law.

The American Prosecutor, Justice Robert Jackson, in his report to the President of the United States with regard to this problem, expressed his opinion as follows:

"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."
These words carry a full justification of the clause objected to by the 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.

As I am interested in justifying the actual measures taken by the Naval 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 considered 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.

As far as political considerations were decisive for orders of the U-boat 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.

My second remark concerns the question to what extent a 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 leading experts of his country who, after all, are not just small-town lawyers. For the C.-in-C. Submarine Fleet, 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

[Page 15]

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 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 regard, and I quote:
"The culprit must be conscious of his violation of International Law."

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