The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/09/24

Further on, the prosecution has quoted the order to attack
so-called "rescue-ships" as an evidence of the intention to
kill shipwrecked people. However, only the individual who is
either in the water or in the lifeboat is shipwrecked. A
shipwrecked combatant who is again on board a ship is
nothing but a combatant and accordingly the legitimate aim
of an attack. I have already pointed out, during the hearing
of evidence, the shooting-down of German sea rescue planes
with intent to kill the rescued airmen, in order to show
that the enemy acted according to the same conception.

I shall discuss as briefly as possible the depositions of
witnesses on which the prosecution tries to base its
interpretation of the Donitz order. In my opinion, the
deposition of Oberleutnant zur See Heisig, as made here
before the Tribunal, is irrelevant. His former affidavit is
wrong and we know why from the witness Wagner. Here, before
the Tribunal, Heisig has explicitly denied that in Grand
Admiral Donitz's address to the cadets of the submarine
school in September, 1942, there was any question that
shipwrecked people should be shot at. Rather he personally
drew the conclusion from these words that totalitarian war
must be waged against ship and crew, and from the mention of
bombardments. His interpretation may be explained by the
fresh impression of the bombing of Lubeck, which he had just
experienced. The other listeners did not share this
interpretation. In fact, they did not even think of it. This
is evident according to the deposition of three persons who
have heard the address. The further assertion of Heisig,
that an officer unknown to him had taught him, on an unknown
occasion, that one should order the men below deck when
exterminating shipwrecked people, I consider as an
improvisation of his fantasy, which appears to be easily
excited. If such had really been the case, then such an
astonishing occurrence, which would have been in
contradiction to all training principles of the Navy, would
have made

                                                   [Page 20]

so great an impression on a young officer that he would have
conserved some recollection of the full circumstances of an
instruction of this kind.

The testimony of Korvettenkapitan Mohle must be taken much
more seriously, because he had - there is no doubt about it
- at least hinted to a few submarine commanders that the
Donitz order demanded or at least approved of the killing of
shipwrecked. Mohle received this interpretation neither from
Admiral Donitz himself, nor from the Chief of Staff, nor
from the first assistant, Fregattenkapitan (Commander)
Hessler, that means from none of the officers who alone
would have been authorized to transmit such an
interpretation to the chief of a flotilla.

How Mohle actually arrived at this interpretation has not
been explained by the trial in my opinion. He maintains that
it was due to the fact that Korvettenkapitan Kuppisch from
the staff of the C.-in-C. Submarine Fleet had told him the
story of U-386, a boat the commander of which had been
reprimanded for not having shot Allied airmen drifting in a
rubber boat. This explanation of Mohle cannot be correct. It
is proven beyond any doubt by the war diary and by witnesses
that the commander of U-386 had been reprimanded because he
did not take on board the airmen concerned and bring them
back. The whole affair with U-386, furthermore, took place a
year after the Laconia incident in September, 1943, and
Kuppisch who was supposed to have told it had already been
killed in action as U-boat commander in August, 1943. It is
not my task to try to explain how Mohle actually acquired
his knowledge about the Donitz order. One thing at any rate
has been proven, Admiral Donitz and his staff had not caused
this briefing to be given nor did they know anything about
it. Considering the frequent personal contacts between the U-
boat commanders and the staff of the C.-in-C. Submarine
Fleet this can only be explained by the fact that the few
commanders who Mohle thus briefed did not take his words
seriously.

Is Admiral Donitz now responsible for this interpretation of
his order,
given by Mohle? Criminal responsibility presupposes in the
first place some kind of guilt, i.e., the possibility to
foresee the result. Considering the close contact with his
flotilla chiefs and commanders, for whom alone this order
was intended, Admiral Donitz could not foresee that a
flotilla chief could give such an interpretation to that
order without making any attempt to be enlightened by the C.-
in-C. Submarine Fleet. Such a conduct is beyond anything
that could reasonably be expected.

Therefore, any guilt is excluded. Criminal responsibility
requires another criterion, namely results must be proved.
This also is entirely lacking. The prosecution has not even
made a serious attempt to prove that one of the commanders,
briefed by Mohle in that direction, ever actually shot at
shipwrecked. As far as we are informed, such a case happened
only once in this war on the German side, the case of
Kapitanleutnant Eck. It is significant that this case was
not presented by the prosecution but by the defence. For the
conduct of Eck has nothing whatsoever to do with the Donitz
order as the prosecution  wants it understood. He was not
concerned with the destruction of human lives, but with the
removal of wreckage, and floats from which the Allied
aeroplanes could deduce the presence of a German U-boat in
the area. For this conduct he and two of his officers were
condemned to death and thereby punished with a severity
which less agitated times will no longer comprehend.

The two cases presented by the prosecution, in which
shipwrecked allegedly were shot at, are so obviously
unsuitable for proving this accusation that I need not deal
with them any further. The testimony about the sinking of
the Noreen Mary bears the stamp of fantasy in various points
and, in the case of the attack on the Antonico, the
intention to destroy shipwrecked is out of the question
because all was over in twenty minutes and the night was
dark.

I was in the fortunate position to be able to present to the
Tribunal a compilation of the Naval War Command concerning a
dozen cases in which Allied forces had

                                                   [Page 21]

allegedly shot at German shipwrecked. It appears to me that
every one of these instances is better than that of the
prosecution and some appear rather convincing. I value
therefore all the more the sober attitude assumed by the
Naval War Command when giving their opinion on these cases
to the Fuehrer's Headquarters.

It points out that:

1. Part of the incidents occurred during combat operations.

2. Shipwrecked, swimming in the water, might easily believe
that a miss on other targets is aimed at them.

3. So far no written or verbal order for the use of arms
against shipwrecked has been traced.

I can only request that these principles be applied also to
the incidents presented by the prosecution.

In the same written opinion to the Fuehrer's Headquarters
the Naval War Command rejects reprisals by destroying enemy
shipwrecked; that was on 14th September, 1942, three days
before the Donitz order. As this came to the knowledge of
the Naval War Command as a wireless order, it would
doubtless have been cancelled in accordance with the
opposite viewpoint just expressed to Fuehrer's Headquarters
if it had been understood as an order for the shooting of
the shipwrecked.

And now I am coming to the positive counter evidence against
the opinion of the prosecution. It consists in the first
place of the number of the rescued Allied sailors. It
amounted, according to a survey of the British Minister of
Transport in 1943, to 87 per cent of the crews. Such a
result is simply not compatible with an order for
destruction.

Furthermore, it has been established that Grand Admiral
Donitz in 1943, that is after the anti-rescue order,
rejected all consideration of actions against shipwrecked.

In a written opinion given to the Foreign Office on 4th
April, 1943, a directive to the U-boats to take action
against lifeboats or shipwrecked was considered unbearable
by the Naval War Command, as it was contrary to the
innermost feeling of every sailor. In June, 1943, the Grand
Admiral, when receiving reports from Leutnant-Kommander Witt
about British aviators shooting at the shipwrecked of German
submarines, most decidedly rejected the idea to attack the
foe who has become defenceless in combat as it was
incompatible with our principles of warfare.

Summing up, I am convinced that the assertion of the
prosecution that German submarines had received an order to
murder the shipwrecked has been strikingly disproved. Grand
Admiral Donitz stated here that he would never have allowed
the spirit of his submarine men to be endangered by mean
acts. With losses from 70 to 80 per cent, he could only
replenish his troops with volunteers if he kept the fight
clean, in spite of its being tough. And if the Tribunal
remembers the declaration of the 67 commanders in British
captivity, it will have to admit that he induced a morale
and a spirit which survived defeat.

I have endeavoured to present to the Tribunal the most
important facts and several legal considerations regarding
naval warfare, in order to clarify the most important
problems to be discussed here from the point of view of the
defence. We are concerned with the examination of the
behaviour of admirals in naval warfare, and the question of
what is permissible according to International Law is most
closely connected with what is necessary according to the
military standpoint. I, therefore, in examining this very
point of the Indictment, deeply regret that the Charter of
this Tribunal deprives the accused officers of a privilege
guaranteed them by the Geneva Convention as, prisoners of
war, i.e., the passing of judgement by a military tribunal
making use of the laws and regulations applicable to its own
officers. According to Article 3 of the Charter, I am not
allowed to question the competency of this Tribunal. I can
therefore only request the Tribunal to make up for the
unfairness that I see in the above-mentioned article of the
Charter by applying the same standards, where military
evaluation and

                                                   [Page 22]

moral justification of actions of these German admirals is
concerned, as the Tribunal would apply to admirals of their
own countries. A soldier, due to his practical knowledge of
procedure in warfare not only on the part of his own country
but also of the adversary, is keenly perceptive of the
dividing line between combat and war crimes. He knows that
the interpretation of International Law concerning what is
allowed or forbidden in naval warfare is decisively governed
by the interests of his country. An insular power like Great
Britain, having long and sensitive sea lanes and a strong
surface fleet, has always looked at these questions from a
different angle than the continental powers. The attitude of
the United States, from the renunciation of submarine
warfare by the Root Resolution of 1922 to the unrestricted
submarine warfare against Japan in 1941, reveals how a
change in strategic position entails also a change in legal
evaluation. No one can tell to what extent a changed
strategical position at sea will cause a modification of
legal conception. No one can know to what degree the
development of air forces and the efficacy of bombs will
increasingly force navies under water and render obsolete
all previous conceptions of submarine warfare.

For a naval officer these are obvious reflections, and they
should prevent a lawyer from settling controversial
questions of law and policy pertaining to naval war at the
expense of those whose professional duty it is to direct
navies.

In the First World War German submarine war was accompanied
by a storm of indignation. It seems significant to me today
that the English historian Bell judges, in a paper intended
only for official use of the Foreign Office, the right to
such indignation, as follows

  "It is an old rule of military honour never to belittle
  the deeds of an enemy who has put up a stiff and brave
  fight. If this rule had been followed in England, the
  public would better appreciate the place which the war
  between submarines and commerce will occupy in the
  history of strategy and of war. It is unfortunate that
  the cries of terror as well as the unseemly insults by
  journalists were repeated by responsible people, with the
  result that the slogans 'piracy ' and 'murder' entered
  the vocabulary and have engendered the corresponding
  feelings in the hearts of the people."

I must now treat the other points of the Indictment against
Grand Admiral Donitz which are not concerned with naval war.
To begin with, there is the charge of preparation of
aggressive wars. It is known how much this very accusation
is being contradicted by the professional officers of
probably all Allied countries. In answer to such attacks in
public, Justice Jackson formulated for the Press (4th
December, 1945, Stars and Stripes, European Ed., 5th
December; 1945) the ideas of the prosecution regarding this
subject, as follows:

  "I have made it clear that we do not prosecute these
  militarists because they served their country, but
  because they dominated it and led it into war. Not
  because they conducted the war, but because they have
  been driving to war."

If this standard is used, then for the defence of Grand
Admiral Donitz against the charge of preparing aggressive
wars I need only point to the result of the evidence: At the
beginning of the war he was a relatively young commander;
his only task was the training and commanding of submarine
crews; he did not belong to the General Staff in the meaning
of the Indictment and did not participate in any of the
addresses which were presented here as proof of war
intentions. The charge that he had advocated the occupation
of submarine bases in Norway is likewise disproved. The same
applies to the allegation that in 1943 he had proposed an
attack upon Spain in order to capture Gibraltar. The
conquest of Gibraltar against the will of Spain was
absolutely impossible and out of the question during the
entire war, and especially so in 1943.

For Germany the war had reached the stage of defence, yes,
even of dangerous setbacks on all fronts, at the time when
Admiral Donitz was appointed Supreme Commander of the Navy
on 1st February, 1943. This fact may be significant

                                                   [Page 23]

for the participation in the so-called conspiracy. The
prosecution is not very clear about the precise moment at
which they want to fix the beginning of this participation.
In the individual Indictment, intimate connection with
Hitler since 1932 is mentioned. This, however, is obviously
an error. Admiral Donitz became acquainted with Hitler only
in the autumn of 1934, on the occasion of the submission of
a military report, and in the following years talked to him
briefly and always only about military problems, altogether
eight times, and never alone.

Since, aside from this fact, the defendant never belonged to
any organization which is accused of conspiracy by the
prosecution, I see no connection of any kind to this
conspiracy prior to 1st February, 1943.

More important is the question of the retroactive effects of
joining the conspiracy, as has been illustrated by the
British prosecutor by the example of the perpetrators of
railway sabotage. This idea of guilt, retroactive on past
events, is very difficult for the German jurist to
understand. The continental concept of law is reflected by
the formulation of Hugo Grotius:

  "To participate in a crime a person must not only have
  knowledge of it but also the opportunity to prevent it."

Considering that the entire legal concept of the conspiracy
represents a special creation of Anglo-Saxon justice in our
eyes, then this applies even more to the retroaction of the
so-called conspiracy. A judgement laying claim to
international validity, one which should be understood by
the peoples of Europe and especially by the Germans, must be
based upon generally recognized principles of law. This,
however, is not the case regarding a retroactive guilt.

Though such a legal construction may seem fitting in
combating certain typical crimes, it seems to me entirely
inapplicable in judging events such as are being discussed
here.

Admiral Donitz became the Supreme Commander of the Navy in
the course of a normal military career entirely free of
politics. The appointment was based upon the proposal of his
predecessor, Grand Admiral Raeder, for whom the proven
abilities in the guidance of U-boat warfare alone were
decisive. An acceptance of the appointment was required just
as little as was the appointment to any other military
position. Admiral Donitz entertained only the thought, as
any officer might well have done in a similar position,
whether he would be equal to the task and whether he could
accomplish it in the best interest of the Navy and of his
people. All other considerations, which the prosecution
apparently expected of him during this period, namely, the
legitimacy of the Party programme and of the policy of the
Party from 1922 on, as well as of the German internal and
foreign policy since 1933, can, be but fictitious; they have
nothing to do with the facts. Fictions of such nature are
not limited by time nor by reality. Is the responsibility
for past measures on taking over a high position to extend
only to acts of the present cabinet or is it to extend to
acts of former cabinets, and up to what period? Is it to
comprise only one's own internal and foreign policy or is it
to include one's allies? Such considerations are logically
not to be refuted; however, they lead to unacceptable
results and show the impracticability of the idea of
retroaction regarding the so-called conspiracy.

To measure by exact standards the participation in such a
conspiracy is difficult enough, if events not of a criminal
but of a military and political nature are involved. Of what
meaning are such concepts as "voluntary accession" and
"knowledge of the criminal plan" when in times of the
greatest danger an officer assumes the task to prevent the
collapse of his nation's possibilities to wage war at sea?

Even the prosecution seems to realize this. For,
corresponding to their general idea, they attempt to link
Admiral Donitz with the conspiracy in a political way. This
is accomplished by the assertion that he became a member of
the Reich Cabinet by virtue of his appointment to the
Supreme Command of the Navy. This allegation is based upon
the decree whereby the Commanders-in-Chief

                                                   [Page 24]

the Army and of the Navy were invested with the rank of
Reich Minister and upon the order of Hitler were to
participate in the Cabinet meetings.


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