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THE TRIBUNAL (Mr. Biddle): According to this document, the
Germans have been given the benefit of the doubt.

COLONEL PHILLIMORE: Oh, yes, I should have read that
sentence; I am obliged to your Honour.

I pass to the second report, D641/b. It is part of the same
document and is put in as Exhibit GB 191. It is a report
covering the next six months from 1st September, 1940 -

THE PRESIDENT: Are you not reading Page 3?

COLONEL PHILLIMORE: If your Lordship pleases, I have read a
great deal of the report and there, are passages that I had
not considered important.

THE PRESIDENT: I have not myself read it, but I think -

COLONEL PHILLIMORE: If I might read the first two paragraphs
on Page 3:

   "By the middle of October, submarines were sinking
   merchant vessels without any regard to the safety of the
   crews. Yet four months later the Germans were still
   officially claiming that they were acting in accordance
   with their Prize Ordinance. Their own semi-official
   commentators, how-ever, had made the position clear. As
   regards neutrals, Berlin officials had early in February
   stated that any neutral ship that is either voluntarily
   or under compulsion bound for an enemy port - including
   contraband control harbours - thereby loses its
   neutrality and must be considered hostile. At the end of
   February the cat was let out of the bag by a statement
   that a neutral ship which obtained a navicert from a
   British Consul, in order to avoid putting into a British
   contraband control base, was liable to be sunk by German
   submarines, even if it was bound from one neutral port
   to another. As regards Allied ships, in the middle of
   November, 1939, a Berlin warning was issued against the
   arming of British vessels. By that date a score of
   British merchantmen had been illegally attacked by
   gunfire or torpedo from submarines, and after that date
   some fifteen more unarmed Allied vessels were torpedoed
   without warning. It is clear therefore, that not only
   was the arming fully justified as a defensive measure,
   but also that neither before nor after this German
   threat did the German submarines discriminate between
   armed and unarmed vessels."

The last paragraph is merely a summing up; it does not add
anything.

Turning to 641/b, which is a similar report covering the
next six months, if I might read the first five paragraphs
of Page 1:

   "On the 30th January, 1941, Hitler proclaimed: 'Every
   ship, with or without convoy, which appears before our
   torpedo tubes is going to be torpedoed.'"

                                                  [Page 234]


On the face of it, this announcement appears to be
uncompromising; and the only qualification provided by the
context is that the threats immediately preceding it are
specifically addressed to the peoples of the American
Continent. German commentators, however, subsequently tried
to water it down by contending that Hitler was referring
only to ships which attempted to enter the area where the
German "total blockade" was alleged to be in force.

   "From one point of view it probably matters little what
   exactly was Hitler's meaning, since the only conclusion
   that can be reached, after a study of the facts of enemy
   warfare on merchant shipping, is that enemy action in
   this field is never limited by the principles which are
   proclaimed by enemy spokesmen, but solely by the
   opportunities or lack of them which exist at any given
   time."

THE PRESIDENT: Colonel Phillimore, is not this document you
are now reading really legal argument?

COLONEL PHILLIMORE: My Lord, some of it is. The difficulty
is to leave those parts and take in the facts.

THE PRESIDENT: Very well.

COLONEL PHILLIMORE: The third paragraph, if I might leave
the rest of the second, is as follows:

   "The effect of the German total blockade is to prohibit
   neutral ships from entering an enormous stretch of sea
   round Britain (the area extends to about 500 miles west
   of Ireland, and from the latitude of Bordeaux to that of
   the Faroe Islands), upon pain of having their ships sunk
   without warning and their crews killed. As a matter of
   fact, at least thirty-two neutral ships, exclusive of
   those sailing in British convoys, have been sunk by
   enemy action since the declaration of the 'total
   blockade.'"

Then the last sentence in the following paragraph deals with
the sinking of merchant ships without warning:

   "Yet, though information is lacking in many cases,
   details are available to prove that, during the period
   under review, at least thirty-eight Allied merchant
   ships exclusive of those in convoys have been torpedoed
   without warning in or near the 'total blockade' area.
   
   That the Germans themselves have no exaggerated regard
   for the area is proved by the fact that of the thirty-
   eight ships referred to at least sixteen were torpedoed
   outside the limits of the war-zone."

My Lord, the next page deals with a specific case
illustrating the matter set out above. It is in the first
paragraph of that page, the third sentence:

   "The sinking of the City of Benares on the 17th
   September, 1940, is a good example of this. The City of
   Benares was an 11,000-ton liner with 191 passengers on
   board, including nearly 100 children. She was torpedoed
   without warning just outside the 'war zone,' with the
   loss of 258 lives, including 77 children. It was blowing
   a gale, with hail and rain squalls and a very rough sea
   when the torpedo struck her at about 10 p.m. In the
   darkness, and owing to the prevailing weather
   conditions, at least four of the twelve boats lowered
   were capsized. Others were swamped and many people were
   washed right off. In one boat alone 16 people, including
   11 children, died from exposure; in another 22 died,
   including 15 children: In a third 21 died. The point to
   be emphasised is not the unusual brutality of this
   attack, but rather that such results are inevitable when
   a belligerent disregards the rules of sea warfare as the
   Germans have done and are doing."

I think the rest of that paragraph is not important.

I turn to the next document, D-641/C, which is part of
Exhibit GB 191.

THE PRESIDENT: It is clear, I suppose, from that statement
of facts that there was no warning whatever given?

COLONEL PHILLIMORE: No, my Lord.

THE PRESIDENT: We think that you should read the next
paragraph too.

                                                  [Page 235]

COLONEL PHILLIMORE: If your Lordship pleases.

   "There are hundreds of similar stories, stories of
   voyages for days in open boats in Atlantic gales, of men
   in the water clinging for hours to a raft and gradually
   dropping off one by one, of crews being machine-gunned
   as they tried to lower their boats or as they drifted
   away in them, of seamen being blown to pieces by shells
   and torpedoes and bombs. The enemy must know that such
   things are the inevitable result of the type of warfare
   he has chosen to employ."

My Lord, the rest is very much to the same general effect.

The next document, D-641/C, is merely a certificate giving
the total sinkings by U-boats during the War (1939 to 1945)
as 2,775 British, Allied and neutral ships totalling
14,572,435 gross registered tons.

My Lord, it is perhaps worth considering one example not
quoted in the above reports of the ruthless nature of the
actions conducted by the defendants' U-boat commanders,
particularly as both British and German versions of the
sinkings are available. I turn to the next document, "The
sinking of S.S. Sheaf Mead." That is D-644, which I put in
as Exhibit GB 192. If I might read the opening paragraph:

   "The British S.S. Sheaf Mead was torpedoed without
   warning on 27th May, 1940 - "

THE PRESIDENT: This is the German account, is it not?

COLONEL PHILLIMORE: This is actually in the form of a
British report. It includes the German account in the shape
of a complete extract from the log.

THE PRESIDENT: It bears the words, Top Secret?

COLONEL PHILLIMORE: Yes, my Lord, this was at the time a top
secret document. That was some while ago.

   "The British S.S. Sheaf Mead was torpedoed without
   warning on 27th May, 1940, with the loss of 31 of the
   crew. The commander of the U-boat responsible is
   reported to have behaved in an exceptionally callous
   manner towards the men clinging to upturned boats and
   pieces of wood. It was thought that this man was
   Kapitanleutnant Ohrn of U-37: The following extract from
   his log for 27th May, 1940, leaves no doubt on the
   matter and speaks for itself as to his behaviour."

Again, turning to the relevant extract from the log, on the
second page, the time is marked on the document as 15.54.

   "Surface. Stern is under water" - referring to the ship
   which has been torpedoed - "Stern is under water. Bows
   rise higher. The boats are now on the water. Lucky for
   them. A picture of complete order. They lie at some
   distance. The bows rear up quite high. Two men appear
   from somewhere in the forward part of the ship. They
   leap and rush with great bounds along the deck down the
   stern. The stem disappears. A boat capsizes. Then a
   boiler explosion. Two men fly through the air, limbs
   outstretched. Bursting and crashing. Then all is over. A
   large heap of wreckage floats up. We approach it to
   identify the name. The crew have saved themselves on
   wreckage and capsized boats. We fish out a buoy. No name
   on it. I ask a man on the raft. He says, hardly turning
   his head -'Nix Name.' A young boy in the water calls
   'Help, help, please!' The others are very composed. They
   look damp and somewhat tired. An expression of cold
   hatred is on their faces. On to the old course. After
   washing the paint off the buoy, the name comes to light:
   Gretastone, Glasgow, 5,006 gross registered tons."

"On to the old course" means merely that the U-boat makes
off.

Then the next page of that document contains an extract from
the report of the Chief Engineer of the Sheaf Mead. The
relevant paragraphs are the first and the last:

                                                  [Page 236]

   "When I came to the surface I found myself on the port
   side, that is, nearest to the submarine, which was only
   about five yards away. The submarine captain asked the
   steward the name of the ship, which he told him, and the
   enemy picked up one of our life-buoys, but this had the
   name Gretastone on it, as this was the name of our ship
   before it was changed to Sheaf Mead last January."

In the last paragraph:

   "She had cut-away bows, but I did notice a net-cutter.
   Two men stood at the side with boat-hooks to keep us
   off.
   
   They cruised around for half an hour, taking photographs
   of us in the water. Otherwise they just watched us, but
   said nothing. Then she submerged and went off, without
   offering us any assistance whatever."

THE PRESIDENT: Is. there any suggestion in the German report
that any warning was given?

COLONEL PHILLIMORE: No, my Lord. It is quite clear, indeed,
that it was not.

Under the time, 14.14, there is a description of the
sighting of the ship and the difficulty in identifying; and
then at the top of the page:

   "The distance apart is narrowing. The, steamship draws
   in quickly, but the position is still 40-50. I cannot
   see the stern yet. Tube ready. Shall I or not? The
   gunnery crews are also prepared. On the ship's side a
   yellow cross in a small, square, dark blue ground.
   Swedish? Presumably not. I raise the periscope a little.
   Hurrah, a gun at the stern, an ack-ack gun or something
   similar. Fire! It cannot miss..."

and then the sinking.

Now that it is possible to examine some of the actual
documents by which the defendant and his fellow conspirators
issued their orders in disregard of International Law, you
may think the compilers of the above reports understated the
case. These orders cover not only the period referred to in
the reports, but also the subsequent course of the war. It
is interesting to note in them the steps by which the
defendants progressed. At first they were content with
breaching the rules of International Law to the extent of
sinking merchant ships, including neutral ships, without
warning, where there was a reasonable prospect of being able
to do so without discovery. The facts already quoted show
that the question of whether ships were defensively armed or
outside the declared operational areas was, in practice,
immaterial.

I go to the next document in the document book, C-191, which
I put in as Exhibit GB 193. That is a memorandum by the
German Naval War Staff, dated 22nd September, 1939. It sets
out:

   "Flag Officer U-boats intends to give permission to U-
   boats to sink without warning any vessels sailing
   without lights."

Reading from the third sentence:

   "In practice there is no opportunity for attacking at
   night, as the U-boats cannot identify a target which is
   a shadow, in a way that entirely obviates mistakes being
   made. If the political situation is such that even
   possible mistakes must be ruled out, U-boats must be
   forbidden to make any attacks at night in waters where
   French and English naval forces or merchant ships may be
   situated. On the other hand, in sea areas where only
   English units are to be expected, the measures desired
   by Flag Officer U-boats can be carried out; permission
   to take this step is not to be given in writing, but
   need merely be based on the unspoken approval of the
   Naval War Staff.
   
   U-boat commanders should be informed by word of mouth,
   and the sinking of a merchant ship must be justified in
   the War Diary as due to possible confusion with a
   warship or an auxiliary cruiser. In the meanwhile, U-
   boats in the English Channel have received instructions
   to attack all vessels sailing without lights."

                                                  [Page 237]

Now I go to the next document, C-21, which I put in as
Exhibit GB 194. My Lord, this document consists of a series
of extracts from the War Diary of the German Naval War Staff
of the German Admiralty. The second extract, on Page 5,
relates a conference with the head of the Naval War Staff,
"Report on the 2nd January, 1940," and then reading:

   "(1) Report by Ia." - That is the Staff Officer
   Operations on the Naval War Staff.

THE PRESIDENT: Should not you read above that, paragraph 1
(b)?

COLONEL PHILLIMORE: Yes, if your Lordship pleases. It is
important. The others are much to the same effect. If I
might read it:

   "Report by Ia," - This is one report by Ia on Directive
   of Armed Forces High Command of 30th December.
   
   "According to this, the Fuehrer, on report of Commander-
   in-Chief in Navy, has decided:
   
   (a)Greek merchant vessels are to be treated as enemy
   vessels in the zone blockaded by U.S.A. and Britain.
   
   (b)In the British Channel all ships may be attacked
   without warning. For external consumption these attacks
   should be given out as hits by mines.
   
   Both measures may be taken with immediate effect."

The next extract, report by Ia, that is, the Staff Officer
Operations on the Naval War Staff on Directive of Armed
Forces High Command, dated 30th December:

   "Referring to intensified measures in naval and air
   warfare in connection with 'Fall Gelb.'
   
   In consequence of this directive, the Navy shall
   authorise, simultaneously with the general
   intensification of the war, the sinking by U-boats,
   without any warning, of all ships in those waters near
   the enemy coasts in which mines can be employed. In this
   case, for external consumption, pretence should be made
   that mines are being used. The behaviour of, and use of
   weapons by, U-boats should be adapted to this purpose."

And then the third extract, dated 6th January, 1940:

   " ... the Fuehrer has in principle agreed (see minutes
   of report of C.-in-C. Navy of 30th December) to
   authorise firing without warning whilst maintaining the
   pretence of mine hits, in certain parts of the American
   blockade zone."

Well, then the order is given to Flag Officer U-boats
carrying out that decision.

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