Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-126.04 Last-Modified: 2000/02/28 BY SIR DAVID MAXWELL FYFE: Q. Defendant, would you return to the last document, 158-C. That's the one about the Geneva Convention; it's Page 69 of the English book; 102 of the German, whichever you're following. The Sergeant major will help you to find it. Now, if you'll look at the first paragraph, after the sentence I read, "The Fuehrer is considering whether or not Germany should renounce the Geneva Convention," it goes on: [Page 276] "Not only the Russians, but also the Western Powers, are violating International Law by their actions against the defenceless population and the residential districts of the towns. It appears expedient to adopt the same course in order to show the enemy that we are determined to fight with every means for our existence, and, also, through this measure to urge our people to resist to the utmost." Were not these, that are referred to there as "the same course," were not these the measures considered necessary to which you were referring in the second minute? A. The witness who drew up these two records will be able to explain exactly where and when this information was given. I myself was only told - just as the Reichsmarschall testified - that the Fuehrer was upset because our western front was not holding, and men were quite pleased to become American and English prisoners of war. That was how the whole thing began; and that was the information which I originally received. I cannot give an opinion on these minutes, which were drawn up by an officer. The best thing would be for Admiral Wagner to give more exact details of these matters. I cannot say mop than that under oath. I was of the opinion that the renunciation of the Geneva Convention was, in principle, a great mistake and was wrong. I have given practical proof of my views on the treatment of prisoners of war. Q. I want to make quite clear that the point that the prosecution is putting against you is this: That you were prepared not to denounce the Convention, but you were prepared to take action contrary to the Convention and say nothing about it; and that's what I suggested is the effect of the last sentence, especially when read with these words in the first paragraph. My Lord, I am going to pass on to the war at sea. A. I beg your pardon, but may I say one thing more? If measures are taken against desertion, they must be made public. They must have a deterrent effect; and so it never entered my head to keep them secret. On the contrary, my only thought was: "How is it possible to leave the Geneva Convention at all?" And that is what I was expressing. SIR DAVID MAXWELL FYFE: The document is clear. THE PRESIDENT: The Tribunal will adjourn. (A recess was taken.) BY SIR DAVID MAXWELL FYFE: Q. Defendant, did you know that, on the first day of the war, the Navy informed the Foreign Office that the maximum damage to England could only be achieved with the naval forces you had, if U-boats were permitted the unrestricted use of arms without warning against allied and neutral shipping in a wide area? From the first day of the war, did you know that the Navy expressed that view to the German Foreign Office? A. I do not believe that the Naval War Staff at the time sent me a memorandum of that kind, if it was ever drawn up. Q. Now, I want you to try and remember because it is quite important. You say that the Naval Command never informed the Flag Officer of U-boats that that was their view of the war? A. I do not know. I cannot remember that the Naval War Staff ever informed me of such a communication to the Foreign Office. I don't believe they did; I don't know. Q. Well, then, perhaps it would assist your memory if you looked at the letter. My Lord, this is Document 851-D, and it will become Exhibit GB 451. A. No, I do not know this letter. [Page 277] Q. Now, I will just take it by stages because, of course, you wouldn't know the first part, but I'll read it to you and then we'll look at the memorandum together. "Submitted respectfully to the Secretary of State" - that would be Baron von Weizsaecker - "with the enclosed memorandum. "The Chief of the Operational Department of the Naval Command, Captain Fricke, informed me by telephone that the Fuehrer was already dealing with this matter. The impression had, however, arisen here that the political connections had again to be gone into and brought to the Fuehrer's notice anew. Captain Fricke had, therefore, sent Lt.-Commander Neubauer to the Foreign Office in order to discuss the matter further." That is signed by Albrecht on the 3rd of September, 1939. Then there is the memorandum: "The question of an unlimited U-boat war against England is discussed in the enclosed data submitted by the Naval High Command. "The Navy has arrived at the conclusion that the maximum damage to England, which can be achieved with the forces available, can only be attained if the U-boats are permitted an unrestricted use of arms without warning against enemy and neutral shipping in the prohibited area indicated in the enclosed map. "The Navy does not fail to realize that: "(a) Germany would thereby publicly disregard the agreement of 1936 regarding the prosecution of economic warfare.; "(b) A military operation of this kind could not be justified on the basis of the hitherto generally accepted principles of international law." And then it goes on to deal with it. Are you telling the Tribunal that the defendant Raeder never consulted, or informed you, before these data were submitted to the Foreign Office? A. No, he did not do so, and that is shown by the fact that it is a memorandum from the Chief of the Operations Section to the Secretary of State, that is to say, a negotiation between Berlin and the Foreign Office; and the front commander, whose station was on the coast and who, for all practical purposes, was in charge of the U-boats, had nothing to do with it. I don't know this letter. Q. Well, are you saying that you went on with your activities at the beginning of the war without knowing that this was the view of the Naval High Command? A. I was not informed about this letter. I have said already that my knowledge of it - THE PRESIDENT: (Interposing). That wasn't an answer to the question. The question was whether you knew at the time that this was the view of the Naval High Command. Answer the question. A. No, I did not know that. I knew about the view of the Naval High Command, that, step by step, it intended to act according to the measures used by the enemy. I knew that. SIR DAVID MAXWELL FYFE: But you see, that is the entire difference, defendant. That is what you said at great length in giving your evidence the day before yesterday and yesterday, that you were answering step by step, the measures of the enemy. You gave that evidence. Do you say that you did not know that this was the view of the defendant Raeder, formed on the first day of the war? Do you say you didn't know it at all, you had no inkling that that was Raeder's view? A. No; I did not know that because I did not know of this letter; and I do not know if that was the view of Admiral Raeder. I do not know. Q. Well, again I do not want to argue with you, but if the Commander, the Chief of the Navy - and I think at that time he called himself Chief of the Naval [Page 278] Staff as well - allows the chief of his Operational Department to put this view forward to the Foreign Office - is it the practice of the German Navy to allow post captains to put forward a view like that when it is not held by the Commander-in-Chief? It is ridiculous, isn't it? No commander-in-chief would allow a junior officer to put forward that view to the Foreign Office unless he held it, would he? A. Will you please ask the Commander of the Navy, Raeder. I cannot give any information as to how this letter came to be written. Q. I will do that with very great pleasure, defendant, but at the moment, you see, I have got to question you on the matters that you put forward, and my next question is: Was it not in pursuance of the view and desire expressed in that memorandum, that the U-boat command disregarded from the start the London Treaty about warning ships? A. No, on the contrary, entirely on the contrary. In the West we wanted to avoid any more severe measures, and we attempted as long as possible to fight according to the London Agreement. That can be seen from all the directives that the U-boats received. THE PRESIDENT: Sir David, ought you perhaps to draw his attention to the penultimate paragraph in that memorandum? SIR DAVID MAXWELL FYFE: My Lord, I probably should. My Lord, I will read the three, because if you will notice it goes on:- "The High Command does not assert that England can be beaten by unrestricted U-boat warfare. The cessation of traffic with the world trade centre of England spells serious disruptions of their national economy for the neutrals, for which we can offer them no compensation. "Points of view based on foreign politics would favour using the military method of unrestricted U-boat warfare only if England gives us a justification, by her method of waging war, to order this form of warfare as a reprisal. "It appears necessary, in view of the great importance in the field of foreign politics of the decision to be taken, that it should be arrived at not only as a result of military considerations, but taking into full account the needs of foreign politics." I am greatly obliged, your Lordship. BY SIR DAVID MAXWELL FYFE: Q. Did you hear of any qualification of this view which was arrived at on considerations of foreign politics? Did you hear anything about that? A. No, I can only repeat that I saw this document here for the first time. Q. I see. Well now, I would like you, just before we go on to the questions, to look at Page 19 of the English Document Book, Page 49, of the German. SIR DAVID MAXWELL FYFE: My Lord, the whole of the treaty, which is very short, is set out there. My Lord, I have the formal copy if your Lordship would like to see it, but it is set out in these two paragraphs. BY SIR DAVID MAXWELL FYFF: Q. You see:- "1. In action with regard to merchant ships, submarines must conform to the rules of International Law to which surface vessels are subjected. "2. In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether a surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew, and ship's papers in a place of safety. For this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the existing sea and weather conditions by the proximity of land, or the presence of another vessel which is in position to take them on board." [Page 279] I had better remind you of that because I have some questions to put to you upon it. Would you turn over the page and look at the foot of Page 20 in the English Document Book - it is either Page 50 or 51 in the German Document Book - where there are some figures set out. Have you got the page? A. Yes, I have read it. Q. You read it. You see that it says in the two sentences before "In a certain number of early cases, the German commander allowed the crew of the merchant vessel to get clear, and he even made some provision for them before he destroyed the vessel. Such destruction was in accordance with Article 72 of the Prize Ordinance, and therefore, for the purpose of this paper the Germans have been given the benefit of the doubt in such cases." The following are the figures on record. This is for the first year of the war:- "Ships sunk: 241. " Recorded attacks: 221. "Illegal attacks: 112. At least 79 of these 112 ships were torpedoed without warning. This does not, of course, include convoy ships." I wanted you to be quite clear, defendant, that it excludes, first of all ships where any measures had been taken for the safety of the crew, and secondly, it excludes convoy ships. Now, do you dispute these figures in any way, that there were 79 attacks without warning in the first year of the war? A. Yes. These figures cannot be checked. Yesterday I stated that in consequence of the use of arms by ships, we had to take other measures. So I cannot check whether this report takes into consideration, which for other reasons looks very like propaganda to me, the behaviour of the crews and their resistance, etc. That is to say, it is impossible for me to check these figures or to say on what they are based. At any rate, the German point of view was that it was legal, considering that the ships were armed and that they transmitted intelligence - were part of an intelligence organization - and that from now on action would be taken against these ships without warning. I have already mentioned the fact that England acted in exactly the same way; and so did other nations. Q. I am going to ask you some questions about that, but let us just take one example. Was any warning given before the Athenia was sunk? A. No, I have already stated that that was a mistake; the Athenia was taken for an auxiliary cruiser. The sinking of an auxiliary cruiser without warning is quite legal. I have also stated already that on a thorough examination of the case, it was found that the commander should have been more cautious and that is why he was punished. Q. I just want to get your view, defendant. Did it ever occur to you that in the case of a merchant ship, if it were sunk without warning, it meant either death or terrible suffering to the crew and to these merchant seamen? Did that ever occur to you? A. If merchant ships- Q. just answer the question. A. If a merchant ship acts like a merchant ship, it is treated as such. If it does not, then the submarine must proceed to the attack. That is legal and in accordance with International Law. The same thing happened to the crews of German merchant ships. Q. That isn't what I asked you. I wanted to know, because it is important on some of these points: Did it ever occur to you; did you ever consider that you were going to cause either death or terrible suffering to the crews of merchant ships who were sunk without warning? Just tell us, did it occur to you or didn't it? A. Of course, but if a merchant ship is sunk legally, that is just war, and there is suffering in other places too, during a war. [Page 280] Q. Do you view with pride of achievement the fact that thirty-five thousand British merchant seamen lost their lives during the war? Do you view it as a proud achievement of do you view it with regret? A. Men are killed during wars and no one is proud of it. That is badly expressed. It is a necessity, the harsh necessity of war.
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