Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-179.05 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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