Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-179.06 Last-Modified: 2000/09/24 It is evident that one is not actually a Reich Minister merely by being invested with the rank of Reich Minister. Also one is not a member of the Cabinet if one is only permitted to participate in it upon special orders. This implies exactly that he was only to be consulted on professional problems, but never had the authority to gather information about other departments, not to mention giving his advice. One cannot, however, speak of a political task and a political responsibility without the existence of such an authority. For an activity as a minister, any legal basis is lacking. According to the German compulsory service law there existed for the entire Wehrmacht but one minister, the Reich War Minister. This position remained unoccupied after the resignation of Field-Marshal von Blomberg. The business of the Ministry was conducted by the Chief of the High Command of the Wehrmacht. A new Ministry was not created, neither for the Army nor for the Navy. The Commanders-in- Chief of the Army and of the Navy therefore would have had to be ministers without portfolio. Since, however, they each headed a department, namely the Army and the Navy, such an appointment would have constituted a contradiction to all legal customs of the State. The countersigning of such laws in which the minister participates within his jurisdiction must be considered the basic symbol of all ministerial activity. There is not a single law which has been countersigned by the Supreme Commander of the Navy. I have shown this to the Tribunal by the example of the Prize Ordinance. That is to say, that even applying, and exactly applying, the legal standards of a democratic system, the Supreme Commander of the Navy cannot be designated as a member of the Reich Cabinet, because he lacked all authority of participation in legislative acts and every collective responsibility for policies assumed. His task was and remained a military one even though, for reasons of etiquette, he was put on an equal basis in rank with other Reich Ministers. The prosecution itself realised that a Reich Cabinet in the constitutional sense no longer existed during the war and consequently stated that the actual governing was carried out by those who participated in the discussions of the situation in the Fuehrer's headquarters. As all witnesses examined here stated, we are concerned here with events of a purely military nature, where incoming reports were presented, military measures discussed and military orders issued. Questions of foreign policy were only very rarely touched upon if they had any connection with military problems; they were, however, never discussed and no decision was rendered on them in these Fuehrer conferences on the situation. Internal policy and the security system were never on the agenda. In so far as non- military persons participated, they were attendants, listeners, who gathered information for their respective departments. The SS Reichsfuehrer or his deputy was present for the Command of Waffen SS and during the last year of war also for the reserve army. The Grand Admiral always participated in these Fuehrer conferences when he was at the Fuehrer's headquarters. Notes taken down by whoever accompanied him on all these meetings and discussions of the Supreme Commander are all in possession of the prosecution. As the prosecution has not presented a single one of these notes, from which it would appear that the Supreme Commander participated in reporting on or in discussing and deciding affairs of a political nature, one can assume that such notes do not exist. Thus the testimony of witnesses has been confirmed, according to which the Fuehrer conferences had nothing to do whatever with governing in a political sense, but were exclusively an instrument of the military leadership. Therefore, an overall responsibility of the Grand Admiral for all events that occurred since 1943 which in the course of this trial have been denoted as criminal, does not exist at all. Consequently I shall deal only with those individual allegations by which the prosecution tries to directly connect Admiral Donitz with the [Page 25] conspiracy. I believe I am the more justified to proceed in that manner, as a short time ago the Tribunal refused the cross-examination of witnesses in the Katyn case with the argument that no one was accusing Admiral Donitz in connection with this case. I conclude, therefore, that at any rate in the eyes of the Tribunal he is only accused of such cases wherein he allegedly directly participated. To begin with, this does not apply to the Fuehrer's order for the extermination of sabotage commandos dated 18th October, 1942. The prosecution has tried to establish that this order had been expounded to Admiral Donitz in detail, together with all possible objections, shortly after his assumption of the position of Commander-in-Chief of the Navy. It has failed to establish such a claim. In fact, Donitz, as he himself admits, did read or had explained to him the order in question, in the autumn of 1942, in his capacity of commander of submarines, and in the same form in which the front commanders received it. I do not wish to speak here of the circumstances which led to objections against this order on the part of the OKW. Indeed, all these circumstances could not be discernible to one who received this order at the front. For such a man it was a matter of reprisal against saboteurs who only seemed to be soldiers but who did not fight according to the regulations which are binding to soldiers. Whether such reprisals were admissible at all according to the Geneva Convention, and to what extent, could not be judged, nor did that fall within the competence of the recipient of the order. Every superior officer, at any rate, probably recognized that the order not to grant any pardon and to deliver such persons, in certain cases, to the SD, was in itself an offence against the rules of war. However, as the essence of any reprisal is to avenge a wrong on the part of the enemy with wrong on one's own part, this does not prove anything concerning the legitimacy or illegitimacy of the reprisal order. If no one but the leadership of the State is competent to order reprisals, then hundreds or thousands of German officers cannot be required today to consider themselves also competent, and to be presumptuous enough to verify orders whose actual and legal basis were entirely unknown to them. In this case the principle prevails, at least for the front commander, that the subordinate may, when in doubt, rely on the order as given. Now, the prosecution seems to be of the opinion that Admiral Donitz a few months later, when he had become Commander-in- Chief of the Navy, had the opportunity and also the obligation to inform himself as to the basis of the Commando Order. This conception fails to recognize the duties of a Commander-in-Chief of the Navy. He has to wage naval war. The whole German naval war, especially the submarine war, was, in the spring of 1943, owing to huge losses inflicted by the enemy air force, on the verge of collapse. These were the worries with which the new Commander-in-Chief had to cope in addition to an abundance of new problems concerning the Navy, which were coming up. How can one require such a man as in the quietest of times, to cope with an order of remote date, which had nothing whatever to do with naval warfare. On the contrary, a special paragraph explicitly excluded prisoners taken during naval operations. A word or two on the channels of command. The naval units were under the control of the Naval Command only in those matters which belonged to the duties of the Navy, i.e., naval warfare and artillery coast defence. Concerning so-called territorial questions they were not under the jurisdiction of the Naval War Command but of the Wehrmacht commander of the theatre of war in which their basis was established. Orders concerning such measures of war on land were given without any collaboration on the part of the Naval War Command and their execution was not reported to it. Just as hardly anyone can think seriously of holding a general responsible for the German submarine war, just as little, in my opinion, does it seem justified to hold an Admiral responsible for orders given in land warfare. Mr. President, I have come to the end of a section. [Page 26] THE PRESIDENT: Certainly. We will break off. (A recess was taken until 1400 hours.) DR. KRANZBUEHLER: Before the noon recess I was discussing the fact that units of the Navy were not subordinate to the SKL in matters affecting warfare on land. This channel of orders for territorial questions also explains the complete ignorance of Admiral Donitz and of his colleagues in the Naval War Command about the handing over to the Security Service of the crew of the Norwegian torpedo boat MTB 345 after its capture by units of Admiral von Schrader. As the testimony of witnesses and the records of the Oslo War Crimes Court show, the Naval War Command received only an operational report about the capture of the boat and the number of prisoners. All other details, the discovery on board of material for sabotage, of civilian suits, and of sabotage orders and the treatment of the crew as saboteurs according to the Commando Order were regarded as territorial matters, and as such dealt with by Admiral von Schrader and the Wehrmacht Commander in Norway. The decision regarding the fate of the crew came from the Fuehrer's headquarters in reply to an inquiry from Gauleiter Terboven. Not only is there no proof that the Naval War Command took part in those territorial questions, but this must, in fact, be considered refuted on the basis of the evidence submitted and of the chain of command which has been explained. I regard as the second attempt of the prosecution to establish a participation in the alleged conspiracy to commit war crimes, the submission of Admiral Wagner's record on the question of withdrawal from the Geneva Convention in the spring of 1945. The details are contained in Wagner's testimony according to which the Fuehrer pointed out in a conference on 17th February that the enemy propaganda about the good treatment of prisoners of war was clearly having an influence on the units fighting on the Western front, and that many cases of desertion to the enemy were being reported. He ordered that the question of a withdrawal from the Geneva Convention be investigated. In this way he wanted to convince his own soldiers that they could no longer rely upon good treatment as prisoners of war, and thus create a counter-effect against enemy propaganda. Two days later Hitler came back to this idea, but then another reason was put forward as the main one. He termed enemy warfare in the East and the bomb attacks on the German population as an outright renunciation of International Law by the enemy, and he, on his side, also wanted to free himself from all obligations by withdrawing from the Geneva Convention. Once more, he asked for the attitude of the Wehrmacht in this matter and addressed himself directly to the Grand Admiral, who did not answer. The attitude of the military leaders on this matter was unanimously negative. On the next day, just before the daily discussion of the situation, a ten minutes' conversation took place between Grand Admiral Donitz, Colonel-General Jodl and Ambassador Hewel; in the course of this conversation Donitz expressed his negative attitude. According to the notes of Admiral Wagner he said that: "It would be better to take the measures considered necessary without previous announcement and, at any rate, to save face before the world." The prosecution sees in this the readiness and the design to expose hundreds of thousands of Allied prisoners of war to arbitrary murder. Admiral Donitz himself has no recollection of this sentence. That is not surprising, as this is not a record but a condensation of a lengthy conversation into four sentences, the condensation being worded on the day after the conversation, by Admiral Wagner. This condensation admits that the Grand Admiral disapproved of any "wild measures" which would put us in the wrong from the beginning, and considered justifiable only measures actually warranted by the conduct of the enemy in each case. Since Wagner himself, as the author of the [Page 27] transcript, should know best what he meant by this, I personally cannot add anything to this statement. The interpretation of the prosecution is also not supported by other circumstances. There was no question at all of keeping any measures secret; they had to be made known, regardless of whether they were meant to deter our own deserters or to be reprisals. But Wagner's note does not mention any kind of concrete measures to be taken, and all witnesses present at this situation conference in Hitler's headquarters state that not a word was spoken on that subject. The idea of killing prisoners of war could not, therefore, have been present in the mind of any of the participants of this discussion, which Wagner noted down. Now it has come to light here, through the statements of the defendants Ribbentrop and Fritzsche, that apart from the action for which he was preparing the ground during the discussion with the generals, Hitler had evidently at the same time planned a second action, in which only Goebbels and Himmler were to participate and which by chance also came to Ribbentrop's knowledge. For this action the shooting of thousands of prisoners of war seems to have been contemplated as a reprisal for the air attack on Dresden. Hitler, very wisely, did not give the slightest indication of such a plan to the generals. This plan was not followed up and reprisals were not taken. And now I come back to the facts. It is a fact that Admiral Donitz disapproved of the withdrawal from the Geneva Convention, and that Hitler, in view of the attitude of all military leaders, who clearly opposed it, did not follow up the idea any further. It is also a fact that no measures in violation of International Law were taken by the Germans as a result of this remark which the prosecution has criticized, and finally, it is a fact that enemy sailors who were captured were sent to a naval prisoner-of-war camp where they were treated in an exemplary way up to the last day of the war. Whoever, in his own sphere, behaved as Admiral Donitz did with regard to the prisoners of war of the Navy may reasonably not be charged with having thrown overboard all standards of law and morals applying to prisoners of war. A British Commander has certified that: when the prisoner-of- war camp of the Navy was taken over by British troops, all prisoners without exception said that they had been treated with fairness and consideration. The Tribunal will, no doubt, appreciate such unanimous expression of views, especially after what has come to light elsewhere in these proceedings with regard to the breakdown in the proper treatment of prisoners of war, not only on the German side. I shall now deal with the conspiracy to commit crimes against humanity, and I should like, first of all, to point out that Admiral Donitz is not accused under Count 4 of the Indictment, direct commission of crimes against humanity. Not even participation in the conspiracy to commit crimes against humanity was contended in the detailed charges. That, I would say, is an admission that there was in fact no relation between his activity and the crimes against humanity of which the prosecution has brought evidence. Nevertheless the prosecution presented some documents which are apparently meant to prove his participation in the responsibility for certain crimes against humanity. In judging these documents the most important question always is: What did Admiral Donitz know of those alleged crimes? On this subject I should like to make one point clear. During the entire war he resided and lived at his staff headquarters, first on the North Sea coast, after 1940 in France, in 1943 for a short time in Berlin and then in the camp "Koralle" near Berlin. When he was at the Fuehrer's headquarters, he lived with the naval staff there. Thus, when off duty, he spent his time almost exclusively with naval officers. This may have been a weakness, but it is a fact which gives an additional explanation of his lack of knowledge of many events. The fact that the defendant forwarded a proposition of the Ministry for Armaments to employ 12,000 men from concentration camps as workers in the [Page 28] shipyards proves, according to the prosecution, that Admiral Donitz knew and approved of the arrest of countess innocent people and their ill-treatment and killing in concentration camps. He actually knew, of course, that concentration camps existed and he also knew that, apart from the professional criminals, people arrested for political reasons were kept there. As has already been explained here, the protective custody of political opponents, for reasons of safety, is a measure adopted by all States at least in times of danger and knowledge of such a measure can therefore incriminate no one. However, an unusually high number of political prisoners - out of proportion with the number of the population - may stamp a regime as a regime of terror, but taking into account a population of 80 million in the fifth year of a grim war, even twice or three times the number of 1 2,000 men, which is the number mentioned by Admiral Donitz would not indicate a regime of terror, and the prosecution will hardly claim that. Admiral Donitz stated here that the Commander-in-Chief of the Navy, as well as his collaborators and the great majority of the German people, did not know of the abuses and killings that occurred in the concentration camps. All that the prosecution has put forward against this are assumptions, but no proofs. On this point, therefore, I will only refer now to the statement of the then Minister for Armaments, Speer, according to which the inmates of concentration camps were much better off in industrial work than in camp, and that they tried by all means to be employed in such work. The proposition forwarded therefore did not imply anything inhuman, but rather the opposite. In the same proposition there is a suggestion to take energetic measures against sabotage in Norwegian and Danish shipyards where seven out of eight new constructions had been affected. If need be, the personnel should be entirely or in part replaced by "KZ workers"; because, so it says, sabotage of such dimensions is only possible if all the workers silently condone it. This, then, is a proposition for security measures to keep the workers, who actively or passively participated in sabotage, in a camp close to the shipyard so that their connection to sabotage agents would be cut off. I do not believe that juridical objections can be raised against such measures of security. According to the practice of all occupation troops even measures of collective punishment would be justified in such cases. Actually the proposed measures were never carried out and the prosecution very likely presents them only to accuse Admiral Donitz quite generally of a brutal attitude towards the inhabitants of occupied territories. For this purpose it even refers to a statement of the Fuehrer at a conference on the military situation in the summer of 1944, according to which terror in Denmark must be fought with terror. Admiral Donitz's only connection with this statement was that he heard it and that his companion, Admiral Wagner, wrote it down. The Navy had no part in this statement, nor did it take any measures as result of it.
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