The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. KRANZBUEHLER, Continued:

The Tribunal saw from the Standing War Orders submitted that
during the further course of the war even the small powers
which were the only neutral ones left could, by virtue of
shipping agreements, cross the operational area along
certain routes without being molested by German submarines.
In this way, for instance, Sweden and Switzerland as well as
Turkey could carry on their maritime trade during the entire
war.

Outside the operational area announced the German submarines
were never permitted to attack neutral ships. In this
respect the Naval Command desisted from waging any submarine
warfare against neutral merchant shipping, since enemy air
surveillance made stopping and searching too dangerous for
German submarines. Against the disadvantage of submarine
warfare within the operational area, the neutrals had,
outside the area, the advantage of remaining completely
unmolested, even if they were shipping contraband goods,
which fact in itself made them liable to be sunk after being
stopped. Thus, the neutral vessel outside the operational
area was only in danger if it behaved in a suspicious or
hostile way or if it was not clearly marked as neutral. And
the German, Naval Command again and again called the
attention of the neutral powers to this necessity.

In this connection I must mention the order of 18th July,
1941, according to which United States vessels within the
operational area were placed on an equal basis with all
other neutrals, i.e., they could be attacked without
warning. The prosecution has seen in this an especial proof
that the submarine warfare against neutrals was waged in a
"cynical and opportunist" way. If this is to mean that it
was also influenced by political considerations, then I am
ready to admit it. But I do not consider it a reproach;
since war itself is a political instrument, it is in keening
with its essence if individual parts of it are placed under
the directives of politics. In particular, no reproach
should be seen in the orders of the German leadership as
regards the utilization of submarines against the United
States, because they are exactly a proof of the efforts to
avoid any conflict with the United States.

                                                   [Page 11]

As is known to the Tribunal from documents and the
testimonies of witnesses, the ships of the United States
during the first years of the war were exempt from all
measures of naval warfare, and this was true as well when,
contrary to the original American legislation, they sailed
into the USA combat zone and thus into the German
operational area in order to carry war material to England.

This policy was changed only when, in addition to the many
unneutral acts of the past, the active employment of the
American Navy had been ordered for the protection of British
supply lines.

Well known are the statements of President Roosevelt which
he made at that time about the "bridge of boats over the
Atlantic" and the support which should be given to England
"by every means short of war". It may be doubtful whether
the "realistic attitude" which the USA naval and air forces
were ordered to take at that time did not already constitute
an illegal war, as has been claimed just now on the part of
the Americans, in respect of German policy.

At least the United States had abandoned its neutrality but
claimed the position of a "non-belligerent", which was also
a new aspect of International Law in this war. If in this
connection one wished to raise the charge of cynicism, it
should hardly be directed against the orders which were
issued in justification of the consequences of the American
attitude.

I have endeavoured to present to the Tribunal a survey of
the essential orders issued, and to say a few things in
respect to their legality.

No doubt there were instances of attacks on ships which,
according to the orders mentioned, should not have been
attacked. There are only a few such cases, and some of them
have been brought up at this trial. The best known concerns
the sinking of the British passenger vessel Athenia on 3rd
September, 1939, by the U-30 under the command of
Kapitanleutnant Lemp. The sinking of this ship was due to
the fact that the commander mistook it for an armed merchant
cruiser.

If the Tribunal still hesitated to believe the concurring
statements of all the witnesses heard here in this critical
case, which was used especially for propaganda purposes,
these doubts would be removed by the behaviour of the same
commandant in the days and weeks following the sinking.
Lemp, as the log of U-30 of that time shows, adhered
strictly to the Prize Ordinance, and from this log I was
able to submit several examples of the fair and gentlemanly
conduct of German commanders even when by such conduct they
greatly endangered their submarines.

Only on the return of the U-30 from its operations at the
end of September, 1939, were the C.-in-C. Submarine Fleet
and the Commander-in-Chief of the Navy fully informed of the
whole affair of the sinking of the Athenia. Upon his return
the commander immediately reported to the C.-in-C. Submarine
Fleet the mistake which he himself meanwhile recognized as
such, and he was sent by the C.-in-C. to Berlin to report in
person.

Dr. Siemers will deal with the political aspect of this
matter. I only mention the military occurrences. Admiral
Donitz received the following communication from the Naval
High Command:

1. The affair was further to be dealt with politically in
Berlin.

2. Court-martial proceedings were not necessary since the
commander acted in good faith.

3. The entire matter was to be kept in strict secrecy.

On the grounds of this order the C.-in-C. Submarine Fleet
gave orders that the report on the sinking of the Athenia be
removed from the log of the U-30 and that the log be
completed in such a manner as to make the absence of the
entry inconspicuous.

As the Tribunal has seen, this order was not carried out
satisfactorily, obviously for the reason that the officer in
charge had no experience whatever in such measures.

                                                   [Page 12]


The prosecution pointed out this changing of the war dory as
a particularly         criminal act of falsification.This,
it seems to me, is based on a misunderstanding of the facts.
The war diary is nothing else but a report by the commander
to  his superior commands. What occurrences should or should
not be included in reports of this kind is not decided by
any legal or moral principle but is solely a matter of naval
regulations. The war diary was meant to be secret; however,
it was - like many secret matters - accessible to a very
large group of people. This is already apparent from the
fact that it had been issued in eight copies, of which some
were intended not only for the higher staff but for schools
and for training flotillas as well. Therefore, whenever an
occurrence, was to be restricted to the knowledge of a small
group of individuals, it was not to be reported in the war,
diary. Since the war diary was kept consecutively, the
missing period necessarily, had to be filled in with
another, ergo, incorrect, entry. I can see nothing immoral
in such a measure, much less anything illegal. As long as
there is secrecy in time of war - and this is the case in
all countries - it means that all facts cannot be told to
everybody, and therefore one sometimes has to make incorrect
statements. A certain moral offence could perhaps be seen in
such action in the case of the Athenia if thereby  a
falsification for all time had been intended. This, however,
was by no means the case. The commandant's report in regard
to the sinking of the Athenia was of course submitted in the
original form to the immediate superiors; the C.-in-C.
Submarine Fleet and the Commander-in-Chief of the Navy, and
kept in both their offices.

I should like further to say briefly that a general order
not to enter certain happenings into the war diary has never
existed.

The Athenia case brings another fact to light, that is the
manner in which t compliance of U-boat commanders with
issued orders was enforced. In spite of the justified
conception of the Naval Command that the commandant acted in
good faith, he was arrested by Admiral Donitz because, by
employing greater caution, he perhaps might have recognized
that this was not an auxiliary cruiser Punishment was meted
out in other cases, too, where the orders had been
mistakenly violated.

The Tribunal knows the wireless communications of September,
1942, which, on the occasion of the sinking of the Monte
Gorbea, the commander had been informed that upon his return
he would have to face court-martial proceedings for
violation of orders regarding the conduct toward neutrals.
All commanders received notice of this measure.

The Tribunal will please consider what such strict threats
mean to a commander at sea. If the directives of the
American Manual for Courts Martial were to be considered as
a basis, then court-martial proceedings against officers
should only be initiated in cases where dismissal from the
service seems warranted. That should never be the case when
the violation of an order is an accidental one. For a C.-in-
C. who is supposed to wage war and gain successes with his
soldiers, it is extremely hard and, in fact, under certain
circumstances actually a mistake, to have one of his
commanders on his return from a successful operation tried
before a court martial because of one failure which occurred
in that action.

Every military leadership acts in accordance with these
principles. In this connection I will refer to the
unreserved recognition which the commander of the British
destroyer Cossack received for setting free the prisoners of
the Altmark in spite of the incidents which occurred during
this action and which were probably regretted by the British
too.

I had to go into those matters in order to meet the
accusation that any sinkings carried out against orders were
sanctioned afterwards by the High Command in so far as
drastic steps were not taken against the commanders.
Especially in the: field of submarine warfare compliance
with orders issued was ensured by the continuous personal
contact of the commanders with their commander-in-chief.
After the conclusion of every enemy operation, an oral
report had to be made, and

                                                   [Page 13]

all measures taken were subjected to sharp criticism, while
instructions were given at the same time for future
behaviour.

The German submarines undertook many thousands of combat
operations during this war. In the course of them, orders
issued were violated only in very rare instances. If one
considers how difficult it is for a submarine to establish
its exact position and the boundaries of an operational area
and to distinguish an armed from an unarmed ship, a
passenger ship from a troop transport, or a neutral from an
enemy ship, the low number of sinkings which were considered
illegal by the Germans, too, must be taken as proof of an
especially effective and conscientious leadership.

After this discussion of the factual development of German
submarine warfare, I still have to deal with the accusations
built up by the prosecution from certain introductory
remarks on the subject of the organization of submarine
warfare.

Simultaneously with the combat instructions of 3rd
September, 1939, in which German submarines were ordered to
comply in their operations strictly with the Prize
Ordinance, an order was prepared in the Naval High Command
decreeing action without warning in case the enemy
merchantmen were armed.

In addition to this, during the first days of the war there
was an exchange of correspondence with the Foreign Office on
the subject of declaring prohibited zones.

The prosecution looks upon these two documents as proof of
the will to conduct a war contrary to International Law from
the very start. I, on the other hand, regard these same
documents as proof of the fact that the Naval Command was
fully unprepared for a war with England, and that it was
only when the British had already declared war that it began
to set about devising even the most elementary methods for
conducting such a war. Since neither surprise attacks on
armed merchant vessels nor the declaration of prohibited
zones violate International Law, a belligerent should well
be allowed to consider after the outbreak of war if and when
he wants to make use of these opportunities. As we know from
the above-mentioned orders of the British Admiralty, as
early as 1938 a thorough study of all the possibilities
resulting from the war upon commercial shipping had been
made and had been worked out in a practical way.

This same standpoint holds good also for the memorandum of
the Naval Command of 15th October, 1939, which has been
quoted several times by the prosecution. Its very heading
shows that it is a study:

  "Possibilities for the Intensification of Naval Warfare."

In accordance with the heading, the memorandum reveals an
examination of the military demands for effective naval
warfare against England and the legal possibilities for
fulfilling these demands. The result was the order of 17th
October, 1939, decreeing the immediate use of arms against
all enemy merchant vessels, justification for which
resulted, as we have already shown, from their having been
armed and incorporated into the military system. Beyond
this, intensifying measures were recognized as not yet
justified for the time being, and the suggestion made was to
wait and see what the further conduct of the enemy would be.

One sentence in this memorandum arouses special distrust on
the part of the prosecution. It says that naval warfare must
be kept as a matter of principle within the framework of
existing International Law. But measures which might result
in successes decisive for the war would have to be taken,
even if new laws of naval warfare were created thereby.

Does this really constitute a renunciation of International
Law? Quite the contrary. A departure from existing
International Law is made dependent only on two quite
limited conditions:

1. A military one, namely, that measures are involved which
are of decisive importance for the outcome of the war, i.e.,
also of importance in shortening the War.

                                                   [Page 14]

2. A moral one, namely, the nature of the new measures makes
them suitable for incorporation into the new International
Law.

The memorandum itself states that this would be possible
only within the framework of the laws of military combat
ethics and a demand is therefore made for rigid adherence
without any exceptions to these ethics of warfare. Under
these conditions there can hardly be any doubt as to the
possibility of formulating new International Laws.

The well-known expert on International Law, Freiherr von
Freytagh-Loringhoven, says:

  "It has always been war which has given its strongest
  impulses to International Law. Sometimes they have been
  of a positive and sometimes of a negative nature. They
  have led to further development of already existing
  institutions and norms, to the creation of new forms or
  the reversion to old ones, and not infrequently also to
  failures."

Especially in this trial, which itself is supposed to serve
the development of International Law, the possibility of
such a development cannot be denied.

THE PRESIDENT: We will adjourn.

(A recess was taken.)

THE PRESIDENT: The Tribunal will not sit in open session
after 1 o'clock tomorrow, Wednesday; it will sit in closed
session during the afternoon. The Tribunal will not sit in
open session on Saturday; it will sit in closed session on
Saturday morning.

DR. KRANZBUEHLER: Before the recess I was speaking about the
possibilities of development of International Law.

The American Prosecutor, Justice Robert Jackson, in his
report to the President of the United States with regard to
this problem, expressed his opinion as follows:

  "International Law is not capable of development by
  legislation, for there is no continuously sitting
  international legislature. Innovations and revisions in
  International Law are brought about by the action of
  governments, designed to meet a change in circumstances.
  It grows, as did the Common Law, through decisions
  reached from time to time in adapting settled principles
  to new situations."

These words carry a full justification of the clause
objected to by the prosecution in the memorandum of the
Naval High Command. And that the Allies too deemed war-
deciding measures justified, even though they were
contradictory to the present views of International Law, is
proven by the use of the atom bomb against Japanese cities.

As I am interested in justifying the actual measures taken
by the Naval High Command in Germany, I did not consider who
of the two Admirals accused carries more or less
responsibility for one or for the other measure. As a formal
basis, in nearly all cases a Fuehrer-decree exists. Both
Admirals, however, stated here that they considered
themselves fully responsible for all orders of the naval war
which they gave or which they transmitted. I should like to
add to that only two remarks.

As far as political considerations were decisive for orders
of the U-boat war, the Commander-in-Chief of the Navy had no
influence on them. The Commander of the U-boats was not even
notified of these considerations, just as little as of the
political settlement of incidents which arose through U-
boats.

My second remark concerns the question to what extent a
commander may be held responsible for the accuracy of legal
considerations which he does not make himself, but which are
delivered to him by the leading experts of his country who,
after all, are not just small-town lawyers. For the C.-in-C.
Submarine Fleet, it is to be added that he had only tactical
tasks and that his staff contained only a few officers, none
of whom had the ability to examine questions of
International

                                                   [Page 15]

Law of the importance mentioned here. He therefore had to
rely on the fact that the orders issued by the Naval War
Command were examined as to their legality and were in
order. That is probably handled in a like manner in every
navy of the world. A professional seaman is not competent
for legal questions; with this reasoning the Tribunal cut
off a remark by Admiral Donitz about a legal question. This
condition must, however, be considered in applying
principles which the German Supreme Court, during the war
crimes trials after the First World War, formulated in this
regard, and I quote:

  "The culprit must be conscious of his violation of
  International Law."


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