The Nizkor Project: Remembering the Holocaust (Shoah)

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It is evident that one is not actually a Reich Minister
merely by being invested with the rank of Reich Minister.
Also one is not a member of the Cabinet if one is only
permitted to participate in it upon special orders. This
implies exactly that he was only to be consulted on
professional problems, but never had the authority to gather
information about other departments, not to mention giving
his advice. One cannot, however, speak of a political task
and a political responsibility without the existence of such
an authority. For an activity as a minister, any legal basis
is lacking. According to the German compulsory service law
there existed for the entire Wehrmacht but one minister, the
Reich War Minister. This position remained unoccupied after
the resignation of Field-Marshal von Blomberg. The business
of the Ministry was conducted by the Chief of the High
Command of the Wehrmacht. A new Ministry was not created,
neither for the Army nor for the Navy. The Commanders-in-
Chief of the Army and of the Navy therefore would have had
to be ministers without portfolio. Since, however, they each
headed a department, namely the Army and the Navy, such an
appointment would have constituted a contradiction to all
legal customs of the State. The countersigning of such laws
in which the minister participates within his jurisdiction
must be considered the basic symbol of all ministerial
activity. There is not a single law which has been
countersigned by the Supreme Commander of the Navy. I have
shown this to the Tribunal by the example of the Prize
Ordinance. That is to say, that even applying, and exactly
applying, the legal standards of a democratic system, the
Supreme Commander of the Navy cannot be designated as a
member of the Reich Cabinet, because he lacked all authority
of participation in legislative acts and every collective
responsibility for policies assumed. His task was and
remained a military one even though, for reasons of
etiquette, he was put on an equal basis in rank with other
Reich Ministers.

The prosecution itself realised that a Reich Cabinet in the
constitutional sense no longer existed during the war and
consequently stated that the actual governing was carried
out by those who participated in the discussions of the
situation in the Fuehrer's headquarters.

As all witnesses examined here stated, we are concerned here
with events of a purely military nature, where incoming
reports were presented, military measures discussed and
military orders issued. Questions of foreign policy were
only very rarely touched upon if they had any connection
with military problems; they were, however, never discussed
and no decision was rendered on them in these Fuehrer
conferences on the situation. Internal policy and the
security system were never on the agenda. In so far as non-
military persons participated, they were attendants,
listeners, who gathered information for their respective
departments.

The SS Reichsfuehrer or his deputy was present for the
Command of Waffen SS and during the last year of war also
for the reserve army.

The Grand Admiral always participated in these Fuehrer
conferences when he was at the Fuehrer's headquarters. Notes
taken down by whoever accompanied him on all these meetings
and discussions of the Supreme Commander are all in
possession of the prosecution. As the prosecution has not
presented a single one of these notes, from which it would
appear that the Supreme Commander participated in reporting
on or in discussing and deciding affairs of a political
nature, one can assume that such notes do not exist.

Thus the testimony of witnesses has been confirmed,
according to which the Fuehrer conferences had nothing to do
whatever with governing in a political sense, but were
exclusively an instrument of the military leadership.

Therefore, an overall responsibility of the Grand Admiral
for all events that occurred since 1943 which in the course
of this trial have been denoted as criminal, does not exist
at all. Consequently I shall deal only with those individual
allegations by which the prosecution tries to directly
connect Admiral Donitz with the

                                                   [Page 25]

conspiracy. I believe I am the more justified to proceed in
that manner, as a short time ago the Tribunal refused the
cross-examination of witnesses in the Katyn case with the
argument that no one was accusing Admiral Donitz in
connection with this case. I conclude, therefore, that at
any rate in the eyes of the Tribunal he is only accused of
such cases wherein he allegedly directly participated.

To begin with, this does not apply to the Fuehrer's order
for the extermination of sabotage commandos dated 18th
October, 1942. The prosecution has tried to establish that
this order had been expounded to Admiral Donitz in detail,
together with all possible objections, shortly after his
assumption of the position of Commander-in-Chief of the
Navy. It has failed to establish such a claim. In fact,
Donitz, as he himself admits, did read or had explained to
him the order in question, in the autumn of 1942, in his
capacity of commander of submarines, and in the same form in
which the front commanders received it.

I do not wish to speak here of the circumstances which led
to objections against this order on the part of the OKW.
Indeed, all these circumstances could not be discernible to
one who received this order at the front. For such a man it
was a matter of reprisal against saboteurs who only seemed
to be soldiers but who did not fight according to the
regulations which are binding to soldiers. Whether such
reprisals were admissible at all according to the Geneva
Convention, and to what extent, could not be judged, nor did
that fall within the competence of the recipient of the
order. Every superior officer, at any rate, probably
recognized that the order not to grant any pardon and to
deliver such persons, in certain cases, to the SD, was in
itself an offence against the rules of war. However, as the
essence of any reprisal is to avenge a wrong on the part of
the enemy with wrong on one's own part, this does not prove
anything concerning the legitimacy or illegitimacy of the
reprisal order. If no one but the leadership of the State is
competent to order reprisals, then hundreds or thousands of
German officers cannot be required today to consider
themselves also competent, and to be presumptuous enough to
verify orders whose actual and legal basis were entirely
unknown to them. In this case the principle prevails, at
least for the front commander, that the subordinate may,
when in doubt, rely on the order as given.

Now, the prosecution seems to be of the opinion that Admiral
Donitz a few months later, when he had become Commander-in-
Chief of the Navy, had the opportunity and also the
obligation to inform himself as to the basis of the Commando
Order. This conception fails to recognize the duties of a
Commander-in-Chief of the Navy. He has to wage naval war.
The whole German naval war, especially the submarine war,
was, in the spring of 1943, owing to huge losses inflicted
by the enemy air force, on the verge of collapse. These were
the worries with which the new Commander-in-Chief had to
cope in addition to an abundance of new problems concerning
the Navy, which were coming up. How can one require such a
man as in the quietest of times, to cope with an order of
remote date, which had nothing whatever to do with naval
warfare. On the contrary, a special paragraph explicitly
excluded prisoners taken during naval operations.

A word or two on the channels of command. The naval units
were under the control of the Naval Command only in those
matters which belonged to the duties of the Navy, i.e.,
naval warfare and artillery coast defence.

Concerning so-called territorial questions they were not
under the jurisdiction of the Naval War Command but of the
Wehrmacht commander of the theatre of war in which their
basis was established. Orders concerning such measures of
war on land were given without any collaboration on the part
of the Naval War Command and their execution was not
reported to it. Just as hardly anyone can think seriously of
holding a general responsible for the German submarine war,
just as little, in my opinion, does it seem justified to
hold an Admiral responsible for orders given in land
warfare.

Mr. President, I have come to the end of a section.

                                                   [Page 26]

THE PRESIDENT: Certainly. We will break off.

(A recess was taken until 1400 hours.)

DR. KRANZBUEHLER: Before the noon recess I was discussing
the fact that units of the Navy were not subordinate to the
SKL in matters affecting warfare on land.

This channel of orders for territorial questions also
explains the complete ignorance of Admiral Donitz and of his
colleagues in the Naval War Command about the handing over
to the Security Service of the crew of the Norwegian torpedo
boat MTB 345 after its capture by units of Admiral von
Schrader. As the testimony of witnesses and the records of
the Oslo War Crimes Court show, the Naval War Command
received only an operational report about the capture of the
boat and the number of prisoners. All other details, the
discovery on board of material for sabotage, of civilian
suits, and of sabotage orders and the treatment of the crew
as saboteurs according to the Commando Order were regarded
as territorial matters, and as such dealt with by Admiral
von Schrader and the Wehrmacht Commander in Norway. The
decision regarding the fate of the crew came from the
Fuehrer's headquarters in reply to an inquiry from Gauleiter
Terboven. Not only is there no proof that the Naval War
Command took part in those territorial questions, but this
must, in fact, be considered refuted on the basis of the
evidence submitted and of the chain of command which has
been explained.

I regard as the second attempt of the prosecution to
establish a participation in the alleged conspiracy to
commit war crimes, the submission of Admiral Wagner's record
on the question of withdrawal from the Geneva Convention in
the spring of 1945. The details are contained in Wagner's
testimony according to which the Fuehrer pointed out in a
conference on 17th February that the enemy propaganda about
the good treatment of prisoners of war was clearly having an
influence on the units fighting on the Western front, and
that many cases of desertion to the enemy were being
reported. He ordered that the question of a withdrawal from
the Geneva Convention be investigated.

In this way he wanted to convince his own soldiers that they
could no longer rely upon good treatment as prisoners of
war, and thus create a counter-effect against enemy
propaganda. Two days later Hitler came back to this idea,
but then another reason was put forward as the main one. He
termed enemy warfare in the East and the bomb attacks on the
German population as an outright renunciation of
International Law by the enemy, and he, on his side, also
wanted to free himself from all obligations by withdrawing
from the Geneva Convention. Once more, he asked for the
attitude of the Wehrmacht in this matter and addressed
himself directly to the Grand Admiral, who did not answer.
The attitude of the military leaders on this matter was
unanimously negative.

On the next day, just before the daily discussion of the
situation, a ten minutes' conversation took place between
Grand Admiral Donitz, Colonel-General Jodl and Ambassador
Hewel; in the course of this conversation Donitz expressed
his negative attitude. According to the notes of Admiral
Wagner he said that:

  "It would be better to take the measures considered
  necessary without previous announcement and, at any rate,
  to save face before the world."

The prosecution sees in this the readiness and the design to
expose hundreds of thousands of Allied prisoners of war to
arbitrary murder.

Admiral Donitz himself has no recollection of this sentence.
That is not surprising, as this is not a record but a
condensation of a lengthy conversation into four sentences,
the condensation being worded on the day after the
conversation, by Admiral Wagner. This condensation admits
that the Grand Admiral disapproved of any "wild measures"
which would put us in the wrong from the beginning, and
considered justifiable only measures actually warranted by
the conduct of the enemy in each case. Since Wagner himself,
as the author of the

                                                   [Page 27]

transcript, should know best what he meant by this, I
personally cannot add anything to this statement. The
interpretation of the prosecution is also not supported by
other circumstances. There was no question at all of keeping
any measures secret; they had to be made known, regardless
of whether they were meant to deter our own deserters or to
be reprisals. But Wagner's note does not mention any kind of
concrete measures to be taken, and all witnesses present at
this situation conference in Hitler's headquarters state
that not a word was spoken on that subject. The idea of
killing prisoners of war could not, therefore, have been
present in the mind of any of the participants of this
discussion, which Wagner noted down.

Now it has come to light here, through the statements of the
defendants Ribbentrop and Fritzsche, that apart from the
action for which he was preparing the ground during the
discussion with the generals, Hitler had evidently at the
same time planned a second action, in which only Goebbels
and Himmler were to participate and which by chance also
came to Ribbentrop's knowledge. For this action the shooting
of thousands of prisoners of war seems to have been
contemplated as a reprisal for the air attack on Dresden.
Hitler, very wisely, did not give the slightest indication
of such a plan to the generals. This plan was not followed
up and reprisals were not taken.

And now I come back to the facts. It is a fact that Admiral
Donitz disapproved of the withdrawal from the Geneva
Convention, and that Hitler, in view of the attitude of all
military leaders, who clearly opposed it, did not follow up
the idea any further. It is also a fact that no measures in
violation of International Law were taken by the Germans as
a result of this remark which the prosecution has
criticized, and finally, it is a fact that enemy sailors who
were captured were sent to a naval prisoner-of-war camp
where they were treated in an exemplary way up to the last
day of the war.

Whoever, in his own sphere, behaved as Admiral Donitz did
with regard to the prisoners of war of the Navy may
reasonably not be charged with having thrown overboard all
standards of law and morals applying to prisoners of war. A
British Commander has certified that: when the prisoner-of-
war camp of the Navy was taken over by British troops, all
prisoners without exception said that they had been treated
with fairness and consideration. The Tribunal will, no
doubt, appreciate such unanimous expression of views,
especially after what has come to light elsewhere in these
proceedings with regard to the breakdown in the proper
treatment of prisoners of war, not only on the German side.

I shall now deal with the conspiracy to commit crimes
against humanity, and I should like, first of all, to point
out that Admiral Donitz is not accused under Count 4 of the
Indictment, direct commission of crimes against humanity.
Not even participation in the conspiracy to commit crimes
against humanity was contended in the detailed charges.
That, I would say, is an admission that there was in fact no
relation between his activity and the crimes against
humanity of which the prosecution has brought evidence.
Nevertheless the prosecution presented some documents which
are apparently meant to prove his participation in the
responsibility for certain crimes against humanity.

In judging these documents the most important question
always is: What did Admiral Donitz know of those alleged
crimes?

On this subject I should like to make one point clear.
During the entire war he resided and lived at his staff
headquarters, first on the North Sea coast, after 1940 in
France, in 1943 for a short time in Berlin and then in the
camp "Koralle" near Berlin. When he was at the Fuehrer's
headquarters, he lived with the naval staff there. Thus,
when off duty, he spent his time almost exclusively with
naval officers. This may have been a weakness, but it is a
fact which gives an additional explanation of his lack of
knowledge of many events.

The fact that the defendant forwarded a proposition of the
Ministry for Armaments to employ 12,000 men from
concentration camps as workers in the

                                                   [Page 28]

shipyards proves, according to the prosecution, that Admiral
Donitz knew and approved of the arrest of countess innocent
people and their ill-treatment and killing in concentration
camps.

He actually knew, of course, that concentration camps
existed and he also knew that, apart from the professional
criminals, people arrested for political reasons were kept
there. As has already been explained here, the protective
custody of political opponents, for reasons of safety, is a
measure adopted by all States at least in times of danger
and knowledge of such a measure can therefore incriminate no
one. However, an unusually high number of political
prisoners - out of proportion with the number of the
population - may stamp a regime as a regime of terror, but
taking into account a population of 80 million in the fifth
year of a grim war, even twice or three times the number of
1 2,000 men, which is the number mentioned by Admiral Donitz
would not indicate a regime of terror, and the prosecution
will hardly claim that.

Admiral Donitz stated here that the Commander-in-Chief of
the Navy, as well as his collaborators and the great
majority of the German people, did not know of the abuses
and killings that occurred in the concentration camps. All
that the prosecution has put forward against this are
assumptions, but no proofs.

On this point, therefore, I will only refer now to the
statement of the then Minister for Armaments, Speer,
according to which the inmates of concentration camps were
much better off in industrial work than in camp, and that
they tried by all means to be employed in such work. The
proposition forwarded therefore did not imply anything
inhuman, but rather the opposite.

In the same proposition there is a suggestion to take
energetic measures against sabotage in Norwegian and Danish
shipyards where seven out of eight new constructions had
been affected. If need be, the personnel should be entirely
or in part replaced by "KZ workers"; because, so it says,
sabotage of such dimensions is only possible if all the
workers silently condone it. This, then, is a proposition
for security measures to keep the workers, who actively or
passively participated in sabotage, in a camp close to the
shipyard so that their connection to sabotage agents would
be cut off. I do not believe that juridical objections can
be raised against such measures of security. According to
the practice of all occupation troops even measures of
collective punishment would be justified in such cases.

Actually the proposed measures were never carried out and
the prosecution very likely presents them only to accuse
Admiral Donitz quite generally of a brutal attitude towards
the inhabitants of occupied territories. For this purpose it
even refers to a statement of the Fuehrer at a conference on
the military situation in the summer of 1944, according to
which terror in Denmark must be fought with terror. Admiral
Donitz's only connection with this statement was that he
heard it and that his companion, Admiral Wagner, wrote it
down. The Navy had no part in this statement, nor did it
take any measures as result of it.


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