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DR. KRANZBUEHLER, Continued:

This appears to me as just, as I should hold it incompatible
with the commandants of justice if soldiers should be
charged with a criminal responsibility in deciding legal
questions, which could not be settled at international
conferences and which are hotly disputed among the experts
themselves.

In this connection I should like to mention that the London
Pact of 1930 did not adopt, from the Root Resolution of
1922, criminal prosecution for violations of the rules of U-
boat warfare. The five naval powers participating in this
conference apparently came to the conclusion that the
problems of naval warfare could not be solved by means of
penal law. And this fact applies fully today, too.

I am now coming to the second basic charge of the
prosecution - intentional killing of the shipwrecked -
brought against Admiral Donitz alone and not against Admiral
Raeder.

The legal basis for the treatment of the shipwrecked for
those ships which are entitled to the protection of the
London Agreement of 1936 is laid down in the protocol
itself. There it reads that before the sinking, crews and
passengers are to be brought to safety. This was adhered to
on the German side, and the difference of opinion with the
prosecution concerns only the question already dealt with,
i.e., which ships were entitled to the protection of the
protocol and which were not.

In the case of all ships which were not entitled to the
protection of the protocol, the sinking is to be considered
a military combat action. The legal basis, therefore, for
these cases regarding the treatment of the shipwrecked is
contained in the Hague Convention concerning the application
of the principles of the Geneva Convention for Naval Warfare
of 18th October, 1907, although it was not ratified by Great
Britain. According to this, both belligerents, after each
combat action, shall make arrangements for the search for
the shipwrecked, as far as military considerations allow
this. Accordingly, the principle applied also to the German
U-boats to help the shipwrecked of steamers sunk without
warning if by doing so (1) the boat would not be endangered;
and (2) the accomplishment of the military mission would not
be prejudiced.

These principles are generally acknowledged. In this
connection I am referring to the order of the British
Admiralty, for example, and I quote:

  "No British ocean-going merchantman shall aid a ship
  attacked by a U-boat."

I further refer to the affidavit of Admiral Rogge according
to which in two cases, personally witnessed by him, nothing
was done by a British cruiser to rescue the shipwrecked,
because U-boats were assumed to be near by, once correctly
so and once erroneously. Risk appears to exist in a higher
degree for U-boats m comparison to other types of vessels,
because of their exceptional vulnerability.

Also, in the case of the second exception from rescue duty,
the prejudice to the military mission, the U-boat is subject
to special conditions. It has no room to take guests aboard.
Its supply of food, water and fuel is limited and all space
used for other purposes prejudices its combativeness. It is
further typical for the U-boat that its task may also call
for a secret attack, and therefore exclude

                                                   [Page 16]

rescue duty. In order to present also an opinion about the
practice of the opposite side, I quote from the statement of
Admiral Nimitz:

  "In general US submarines did not rescue enemy survivors
  if it meant an unusual additional danger for the
  submarine or if the submarine was prevented from further
  carrying out its task."

In the light of these principles I will briefly consider,
the measures of rescue by U-boats until autumn, 1942. The
basic order was issued by the Naval Command on 4th October,
1939, and ordered rescue whenever possible from the military
standpoint. This was temporarily limited through the
Standing War Order 154. This order, issued in December,
1939, applied to the few submarines which at that time were
operating directly below the English coast. It may be seen
from the order itself that every paragraph deals with
protective measures for the submarine in the presence of the
enemy: The last paragraph also deals only with this battle-
situation and serves the warranted purpose of protecting the
submarine commanders from the dangers to which, under the
existing circumstances, they exposed their boats through
rescue measures in every case. When after the Norway
campaign the activity of the submarines gradually shifted
into the open Atlantic, this order became outdated and was
cancelled in the autumn of 1940. In the time that followed
the German submarine commanders enacted rescue measures
whenever they could assume such responsibility from the
military standpoint. This is known to the Tribunal from
numerous special examples cited here which were contained in
the statements of submarine commanders submitted here as
well as in the war diaries. This situation was changed
through Admiral Donitz's order of 17th September, 1942, in
which he forbade rescue measures on principle. The decisive
sentences are:

  "The rescue of the crew of a sunken ship is not to be
  attempted. Rescue is contradictory to the most primitive
  requirements of warfare, which are the annihilation of
  enemy ships and crews."

It has been disputed by the prosecution that this actually
prohibits rescue. It looks upon this order as a hidden
provocation to kill the shipwrecked, and it has gone through
the Press of the world as command for murder. If any
accusation at all has been refuted in this trial, then it
seems to be this contemptible interpretation of the order
mentioned above.

How did this order originate? Beginning with June, 1942, the
losses of German submarines through the allied air force
rose by leaps, and jumped from a monthly average of 4-5
during the first half-year of 1942 up to 10, 11, 13 and,
finally, 38 boats in May, 1943. Orders and measures coming
from the Command of Submarine Warfare rapidly followed each
other in order to counter these losses. They were of no
avail, and every day brought fresh reports of air attacks
and losses of submarines.

This was the situation when on 12th September it was
reported that the heavily-armed British troop-transport
Laconia, with 1,500 Italian prisoners of war and an Allied
crew of 1,000 men and some women and children aboard, had
been torpedoed. Admiral Donitz withdrew several submarines
from current operations for the purpose of rescuing the
shipwrecked, and thereby no difference was made between
Italians and Allies. From the very start the danger of enemy
air attacks filled him with anxiety. While the submarines
during the following days devotedly rescued, towed boats,
supplied food, etc., they received no less than three
admonitions from their commander to be careful, to divide up
the shipwrecked and at all times to be ready to submerge.
These warnings were of no avail. On 16th September one of
the submarines, displaying a Red Cross flag and towing
lifeboats, was attacked and considerably damaged by an
Allied bomber; one lifeboat was hit and caused losses among
the shipwrecked. Following this report the commander sent
three more radio messages with the order in case of danger
to submerge immediately and under no circumstances to risk
their own safety. Again without avail. In the evening of
this day, 17th September, 1942, the

                                                   [Page 17]

second submarine reported that during its rescue action it
had been taken unawares and was bombed by an aeroplane.

Notwithstanding these experiences and in spite of the
explicit order from Fuehrer Headquarters to risk no boats
under any consideration, Admiral Donitz did not stop the
rescue action but had it continued until the shipwrecked
were taken aboard French warships sent to their rescue. But
this incident was a lesson. Due to the enemy air
reconnaissance activity over the entire sea area, it simply
was no longer possible to carry out rescue measures without
risking the submarine. It was useless to give orders again
and again to the commanders to do rescue work only if their
own boat was not endangered thereby. Earlier experiences had
already shown that. For their humane desire to render aid
had led many commanders to underestimate the dangers from
the air. But it takes a submarine, with the deck clear, at
least one minute to submerge on alarm, while an aeroplane
can cover 6,000 metres in that time. This means practically
that a submarine engaged, in rescue action when sighting a
plane has not time enough to submerge.

These were the reasons which caused Admiral Donitz directly
after the close of the Laconia incident to forbid rescue
measures on principle. This was motivated by the endeavour
to preclude any calculation on the part of the commander as
to the danger of air-attack inducing him in individual cases
to do rescue work.

It is difficult to judge the actual effects of this order.
From 1943 on about 80 per cent of the submarines were
fighting against convoys where even without this order
rescue measures would have been impossible.

Whether or not one or the other of the commanders would
have, without this order, again risked concerning himself
with the lifeboats, nobody can tell with certainty. As is
known, the order existed, since the middle of 1942, to bring
in as prisoners if possible captains and leading engineers.
During the almost three years of war which followed, this
order was carried out not even a dozen times, which proves
how high the commanders themselves estimated danger to their
boats in rising to the surface. On the other hand, nothing
was more distressing for the crew of the torpedoed ships
than to be taken aboard a U-boat, because they certainly
knew that their chance of being rescued was much better in a
lifeboat than on a U-boat which had a less than 50 per cent
chance of returning to its base. I, therefore, together with
Admiral Goth arrived at the conclusion that the Donitz order
may have cost the lives of some Allied seamen just as it may
have saved the lives of others. Be that it as it may, in the
face of the enormous losses through the enemy air force the
order forbidding rescue was justified. It corresponded
completely with the basic idea of the precedence of their
own vessel and of their own task, as prevailing in all
navies; a principle which I believe I have proven as
commonly valid in view of existing British and American
orders and practices.

How then can the prosecution consider this order an "order
to murder"? Grounds for this may be the discussion between
Hitler and the Japanese Ambassador Oshima in January, 1942,
in which Hitler proposed an order to his U-boats to kill the
survivors of sunken ships. This announcement, as the
prosecution infers, Hitler doubtless made good, and Admiral
Donitz had been carrying it out by the anti-rescue order.
Actually on the occasion of a lecture on U-boat problems
which both admirals had to give in May, 1942, the Fuehrer
suggested proceeding actively against the shipwrecked in the
future, that is, to shoot them; Admiral Donitz immediately
rejected this sort of action as thoroughly impossible, and
Grand Admiral Raeder unqualifiedly agreed with him. Both
admirals specified the improvement of the torpedoes as the
only permissible course of increasing the losses among the
enemy crews. In the face of the opposition of both admirals,
Adolf Hitler dropped his proposal and, following this
lecture, no order whatever was given concerning shipwrecked
crews, let alone concerning the killing of the shipwrecked
by shooting. The destruction of the crews through improved
action of the torpedoes is an idea which for the first time
appeared in this discussion

                                                   [Page 18]

of May, 1942, and which recurs in later documents of the
Naval War Command. I must therefore express myself about the
legality of such a tendency. According to classical
International Law the destruction of combatants was a legal
goal of war actions but not the destruction of non-
combatants. In view of the development  of the fast war one
may be doubtful whether this classical theory still has any
validity. I am regarding the hunger blockade as the first
important infringement upon this theory, which, by cutting
off all food supply, was aimed at the civilian population,
therefore the non-combatants of a country, the victims of
which during the world war were estimated at 700,000 people.
Although this blockade was frequently acknowledged as
inadmissible according to International Law, it was
practised, however, and therefore it means a break of the
principle of protection for non-combatants from war
measures.

The second great break was brought on by the air war. I do
not wish to discuss the intricate question of who started
it, but only state the fact that the air war, at least in
the last two years, was aimed against the civilian
population.

If in dozens of attacks on residential quarters of German
cities thousands or tens of thousands of civilians were
among the victims and only a few dozens or a few hundreds of
soldiers, then nobody can assert that the civilian
population was not included in the target of attack. The
mass dropping of explosives and fire bombs on entire areas
does not admit a doubt, and the use of the atom bomb has
produced the final evidence thereto.

In view of the hundreds of thousands of women and children
who, in this manner, miserably died in their houses, were
buried, suffocated or burnt to death, I am surprised at the
indignation of the prosecution about the loss of about
30,000 men who lost their lives in war areas on ships which
were armed and carried war material and, often enough, bombs
which were destined for use against German cities. Moreover,
most of these men died in combat, that is by mines,
aircraft, and especially in attacks on convoys, actions
which also according to British conception were lawful.

The German Naval War Command regarded these men as
combatants. The British Admiralty takes the opposite
standpoint in the orders for the merchant navy. In this
connection, Oppenheim, the very well-known British expert on
International Law, even before the outbreak of the First
World War, defended the thesis that the crew is to be put on
the same level as combatants. He points to the century-old
and especially in England upheld practice to take the crew
of merchant ships prisoners of war. He finds this principle
confirmed in the 11th Hague Convention of 1907 and
recognises the crews of the merchant navy as potential
members of the Navy. The legal position in their defence
against a warship is described by him as "entirely
analogical to the position of the population of an
unoccupied territory who take up arms in order to combat
invading troops."

It is well known that this is considered a combat unit.
According to Article 2 of the Hague Convention for Land
Warfare, these are considered combatant irrespective of
whether or not the individual actually makes use of weapons.
Accordingly, Oppenheim also refuses to make any distinction,
among members of occupying forces, between persons who are
enrolled in the enemy navy and those who are not.

If this interpretation was already valid before the First
World War, it certainly was unassailable in the year 1942,
at a time when there were no more unarmed enemy ships and
when the neutrals who happened to enter the zone of
operations were moving in enemy convoys exclusively, which
made them, just like enemy ships, integral parts of the
enemy forces. They all had lost any peaceful character and
were considered as guilty of active resistance. Active
resistance against acts of war is not permitted to any non-
combatant in land warfare and results in his being punished
as a partisan. And in naval warfare should a ship's crew be
entitled to the combatant's privileges, without suffering
any of his disadvantages? Should a crew be permitted to
participate in all possible acts of war, even in the firing
of

                                                   [Page 19]

guns and underwater bombs, and yet remain non-combatant?
Such an interpretation renders illusory the entire concept
of a non-combatant. It cannot make any difference whether or
not only a part of the crew has anything to do with the
firing of the guns. The ship as an entirety represents a
fighting unit and on board a commercial ship more people had
actually something to do with the handling of weapons than
on board a submarine. These men were trained under military
supervision, they fired the guns along with gunners of the
Navy and the use of their weapons was regulated according to
the Admiralty's orders. The crews of ships were accordingly
combatants, and thus it was legitimate for the adversary to
try to destroy them by the use of arms.

This explains at the same time the sentence about the
destruction of ships and crews, which is considered by the
prosecution as a significant clue that the Donitz order bore
the character of a murder-order. There has been enough
discussion concerning the meaning of this sentence as an
argument for forbidding rescue work. It may, taken out of
its context, give cause for misunderstanding. But whoever
tries to read the entire order cannot misunderstand it. It
appears to me as decisive that in accordance with its origin
it was never meant to be a murder-order and has not been
interpreted as such by the commanders. This is proved by the
declarations and statements of dozens of submarine
commanders. In its context it could not even have been
interpreted as a murder-order. In fact, in the next
paragraphs it was explicitly ruled that as far as possible
certain members of the crew should be brought back as
prisoners. It stands to reason that one must credit a war
command with enough cleverness, if it gives such a murder-
order at all, also not to order to conserve a few witnesses
of its crime.

Contrary to the prosecution, the British Admiralty clearly
has not believed in such a murder-order. Otherwise it would
not have given orders to its captains and leading engineers
to escape capture by German submarines by camouflaging as
plain sailors while in the lifeboats. According to the
interpretation by the prosecution, such an order would
indeed have meant that the captain would have been shot
along with all the other members of the crew.


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