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2. The position is somewhat different with regard to the charge which the prosecution discussed in detail only during cross-examination, the charge concerning the participation of the German Navy in U-boat constructions in Holland; in this connection the prosecution has relied upon Document 156-C, the book by Naval Captain Schussler entitled The Navy's Struggle Against Versailles, as well as on statements contained in the notes of the naval historian, Admiral Assmann, found in Document 854-D.

These documents prove that the German Navy had a part in a U-boat designing office in Holland, namely the firm N. V. Ingenieurskantoor voor Scheepsbouw. This participation falls into the period before the Navy was under Raeder's command. The Tribunal will recall that Raeder did not become head of the Navy until 1st October, 1928, whereas participation in the designing office in Holland dates back to 1923 and the following years.

May I emphasize, however, that in not a single case was a U- boat built for the German Navy and that consequently no U- boats were obtained or put into commission by the German Navy. In this connection, I refer to the Versailles Treaty, Raeder Exhibit No. 1.; Article 188 of the Treaty of Versailles contains the term, with regard to the Navy. According to Article 188, Germany was bound to deliver her U- boats to the Allied Nations, or to dismantle them. This obligation Germany fulfilled completely. Moreover, Article 191 stipulates the following:

"The construction and purchase of all underwater vessels, even for commercial purposes, is forbidden in Germany."

[Page 34]

The above-mentioned documents, submitted by the prosecution, prove that the submarines designed by the Dutch firm and built abroad were put into service abroad, namely by Turkey and by Finland.

Even if one took the view that designing work also was prohibited, then what was said under (1) also applies. The designing was limited to only a few submarines, so that this small number in itself proves that there cannot have been any intention to wage wars of aggression.

3. If the High Tribunal is unwilling to follow this train of thought unless further reasons are given, one might say in addition that the lack of an aggressive intention is also evident from the fact that the trivial violations of the treaty were in a certain way compensated. I refer to the second affidavit of Admiral Lohmann, Raeder Exhibit No. 8, which shows that according to the Treaty of Versailles, Germany was allowed to build eight armoured ships, but, in fact, only built three armoured ships; it shows also that instead of eight cruisers, only 6 cruisers were built up to 1935, and that instead of thirty-two destroyers or torpedo boats, only twelve destroyers and no torpedo boats were built. In fact, with regard to the really important weapons, and especially those which may be considered as offensive weapons, the Navy stayed far behind the maximum permitted by the Treaty of Versailles, and indeed to such an extent that in comparison the trivial violations in naval matters hardly count.

4. According to the Weimar Constitution of 11th August, 1919, articles 47 and 50 (Raeder Exhibit No. 3) the President of the Reich has supreme command of all the armed forces. In order to be valid the decrees of the President of the Reich required the counter-signature of the Chancellor of the Reich or the competent Reich Minister, in this case, the Minister of National Defence. I quote:

"Responsibility is assumed through the counter- signature."

Both Raeder and Heye, after they had given an explanation, were obliged by direction of the Cabinet, in conformity with the above-mentioned paragraphs of the Reich Constitution, to take no future measures without the knowledge of the Minister of National Defence or the Cabinet. At the same time the Cabinet established that the secret measures taken before Raeder's time were only trifling matters, and expressly assumed the responsibility for them. If the Cabinet, in conformity with the Constitution, assumed the responsibility, then this was a legally and constitutionally effective procedure which exonerated Raeder as Chief

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The attitude of the Cabinet in the Cabinet meeting of 18th October, 1928, further shows that all these actions cannot have had as their basis any criminal intention to wage a war of aggression, for even the prosecution will not want to assert that men like Stresemann, Muller and Severing intended to wage wars of aggression, but will have to believe Severing that Stresemann, Muller and himself only assumed responsibility for these violations because they were based solely on conceptions of defence. One will also have to believe Severing that such conceptions of defence were justified, as in the twenties the danger that Germany would be attacked, e.g., by Poland, was real, and she would then not have been in a position to defend herself with the small Wehrmacht forces allowed her by the Versailles Treaty. This danger was particularly evident in connection with Polish border incidents in East Prussia and Silesia, and during the occupation of Vilna, and it even grew when all attempts of Stresemann and Muller failed to put into reality the promise to disarm which the other powers had given in the Versailles Treaty.

How difficult Germany's position was and how justified measures of defence were, Justice Jackson himself admitted in his opening speech, when he said:

"It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war."

The British Prosecutor, Mr. Elwyn Jones, attempted during the cross-examination of Severing to prove that Raeder did not observe the obligations imposed on him in the Cabinet meeting of 18th October, 1928, because Severing, according to his testimony, was not informed of the construction abroad of the small submarines for Turkey and for Finland. In this connection, two things must be considered:

(a) During his testimony, Severing did not remember the details, but only the fundamental and decisive questions; with regard to the details, he naturally relied on the competent minister, in this case, the Reichswehr Minister.

(b) According to Severing's testimony it was an exception that the Chief of the Navy High Command appeared before the entire Cabinet on 18th October, 1928. Raeder as Chief of the Navy High Command was not obliged to inform all the members of the, Cabinet, but was, in accordance with the Constitution, merely obliged to inform the Reichswehr Minister, and that Raeder did. What the Reichswehr Minister then, on his part, submitted to the other members of the Cabinet and to the Reichstag, was not only beyond Raeder's knowledge, it was also outside Raeder's responsibility, but within that of the Reichswehr Minister and the Cabinet.

In conclusion, may I point out the following:

If, despite all this, the prosecution wishes to consider these violations of the Treaty of Versailles on the part of the Navy as evidence of an intention to wage a war of aggression, then the Social Democratic or Democratic Governments of that time bear the responsibility.

With this the Indictment on this point collapses, for to hold the governments of that time to account for the intention to wage wars of aggression would mean to carry the prosecution on this point ad absurdum.

5. The treaty violations during the period from 1933 until the German-English Naval Agreement of 1935 show the same factual and juridical picture. Even during these two years, approximately, no important expansion of naval armament took place. The only disputable accusation made by the prosecution in this respect is contained in Document 855-D, which was submitted during cross-examination. It concerns the report of Flottenintendant Thiele. According to

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In this connection, it should be taken into consideration that in March, 1935, Germany could already count on the speedy conclusion of a German-English agreement, whereas the period between the planning and the completion of a battleship is a much longer one, which cannot be counted in months, but only in years. As a matter of fact, the Scharnhorst and Gneisenau were only commissioned three and four years respectively after the Naval Pact, namely in 1938 and 1939 respectively (see Raeder Exhibit No. 2, affidavit Lehmann).

The other matters submitted by the prosecution are again trifles; for instance, the selection (not the construction, as the prosecution says) of four or five merchantmen (see 166-C), or the construction of five U-boats of 40 tons each (see 15I-C), which, for technical reasons, were built in place of twelve torpedo boats of 200 tons each. The prosecution cannot in all seriousness turn these facts into grave accusations, especially as the above-mentioned deviations from the Versailles Treaty were known to foreign technical specialists or - as the witness Schulte-Monting rightly said - they were an "open secret".

6. And now I come to the decisive juridical aspect of all developments up to the summer of 1935. In the field of International Law the same principle applies as in the field of internal commercial laws, breaches of agreement are considered adjusted and settled with the signing of a new agreement. In the present case the German-English Naval Agreement of 18th June, 1935 - Raeder Exhibit No. 11 - represents the new agreement. This Naval Agreement deviates completely from the Versailles Treaty both with regard to maximum tonnage vessels and with regard to U-boats. It is only on the basis of what is permitted Germany by this new agreement that the insignificance of the previous violations of the Versailles Treaty, not at the time covered by existing agreements, becomes apparent. 10,000-ton cruisers were replaced by 35,000-ton warships, and the ban on the construction of U-boats was replaced by the acknowledgement of equal rights with regard to U-boat tonnage. Germany's demands were not unreasonable on the contrary, in the document mentioned, His Majesty's Government in the United Kingdom explicitly confirmed the German proposal "as an exceedingly important contribution to future limitation of naval armaments".

This agreement between England and Germany settles the argument on the Versailles Treaty both factually and juridically, as far as the Navy is concerned.

This Naval Agreement was generally welcomed in England and Germany at that time, and it was supplemented by a new agreement on 17th June, 1937 (see Raeder Exhibit No. 14). As proof of the fact that the Navy violated the Naval Agreement, also with aggressive intentions, the prosecution has raised two charges:

1. In the Agreement of 1937 both contracting Governments were bound to a mutual exchange of information, which was to take place annually, within the first four months of every calendar year, and was to contain details of the building programme. According to Document 23-C, the Navy violated this obligation in so far as it gave the figures for the displacement and the draught of the battleships Bismarck and Tirpitz, which were being built at the beginning of 1938, as too low, namely as 35,000 tons instead of 41,700 tons. That this violation of the treaty occurred is openly admitted by Raeder, but again it is not such a serious violation as the prosecution contends, that is, it is not a violation which shows proof of a criminal intention. This is clear from the detailed evidence I have presented and from the testimonies of witnesses which I need not repeat here; it will be sufficient if I refer to the absolutely convincing expert testimony of shipbuilding director Dr. Suechting, which I have submitted as Raeder Exhibit No. 15. According

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With regard to the judicial aspect, it must be added that in the Naval Agreement of 1937, Articles 24, 25 and 26 conceded the contracting governments the right to deviate, under certain circumstances, from the contracted agreements and especially from the tonnage limitation of battleships, if any other sea powers built or acquired larger battleships. This case stated in Article 25 occurred, and so the violation of the agreement was this: the Navy indeed, now had the right to build larger battleships, but Germany should have informed England of her desire to make use of that right. It was, therefore, only a violation of the obligation to exchange information. How meaningless this measure was is proved by the alteration of the German- English Naval Agreement contained in the London Protocol of 30th June, 1938, which I have submitted as Raeder Exhibit No. 16.

Already on 31st March, 1938, that is only six weeks after the date of Document 23-C, England on her part had stated, according to the London Protocol of 30th June, 1938, that she must make use of the afore-mentioned right granted by Article 25, and had proposed therefore that the battleship tonnage be increased from 35,000 to 45,000. This agreement was then signed by both countries on 30th June, 1938, and thus the violation of the treaty evident from Document 23-C became illusory.

2. The British prosecutor raised a second charge by submitting Document 854-D during the cross-examination. It concerns the notes made by Admiral Assmann for his historical writings; on sheet 15 of these notes he writes that Germany followed the terms of the German-English Naval Agreement least of all in the sphere of U-boat building and that 55 U-boats were allowed by the treaty up to 1938, but 118 were actually completed or begun. These statements by Assmann are actually incorrect, and in reality, Germany followed strictly all the stipulations of the German-English Naval Agreement with regard to U-boat building. Despite the assurance of equality of rights, Germany in the Naval Agreement of 1935 limited herself voluntarily to 45 per cent; but the right to increase this percentage at any time by friendly agreement with England was reserved for her. The presentation of evidence has shown (see the testimony of Raeder and Schulte-Monting) that in December, 1938, appropriate negotiations took place between the British Admiral Lord Cunningham and the Grand Admiral Raeder, during which his Majesty's Government approved the increase to 100 per cent. It was not clear at the time when this evidence was presented, whether this approval had also been put in writing as was to be assumed. Meanwhile I was able to establish that such a document must have existed; I was able to gather this from the afore-mentioned Assmann Document 854- D, in which on Page 169 (in connection with Page 161) the letter in question of 18th January, 1939, is mentioned. In conclusion it remains to be said that the figure of 55 U- boats mentioned by Assmann corresponds to 45 per cent whereas the figure of 118 U-boats corresponds to loo per cent; accordingly Assmann, and therefore the prosecution as well, are wrong. Actually there was no violation at all of the Naval Agreement with regard to U-boats.

THE PRESIDENT: Dr. Siemers, now that we have got a transcript of your speech, it appears to us that you might perhaps read a little bit faster. Perhaps you could take that up with the interpreters.

DR. SIEMERS: Certainly, Mr. President.

(A recess was taken.)

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