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However, not even the prosecution will be able to maintain
this any longer, and it has already indirectly indicated
that by no longer taking up these points during the cross-examination of the witnesses.

2. The position is somewhat different with regard to the
charge which the prosecution discussed in detail only during
cross-examination, the charge concerning the participation
of the German Navy in U-boat constructions in Holland; in
this connection the prosecution has relied upon Document 156-C, the book by Naval Captain Schussler entitled The Navy s
Struggle Against Versailles, as well as on statements
contained in the notes of the naval historian, Admiral
Assmann, found in Document 854-D.

These documents prove that the German Navy had a part in a U-boat designing office in Holland, namely the firm N. V.
Ingenieurskantoor voor Scheepsbouw. This participation falls
into the period before the Navy was under Raeder's command.
The Tribunal will recall that Raeder did not become head of
the Navy until 1st October, 1928, whereas participation in
the designing office in Holland dates back to 1923 and the
following years.

May I emphasize, however, that in not a single case was a U-
boat built for the German Navy and that consequently no U-
boats were obtained or put into commission by the German
Navy. In this connection, I refer to the Versailles Treaty,
Raeder Exhibit No. 1.; Article 188 of the Treaty of
Versailles contains the term, with regard to the Navy.
According to Article 188, Germany was bound to deliver her U-
boats to the Allied Nations, or to dismantle them. This
obligation Germany fulfilled completely. Moreover, Article
191 stipulates the following:

  "The construction and purchase of all underwater vessels,
  even for commercial purposes, is forbidden in Germany."

It appears from this clear treaty clause that the
participation in the Dutch firm was not a violation of the
Treaty of Versailles. According to Article 191, Germany was
only forbidden to construct or purchase U-boats, and
moreover, strictly speaking, only in Germany.

                                                   [Page 34]

As a matter of fact, no U-boat was built in Germany in
violation of the Treaty, and no U-boat was built for Germany
abroad, either. Participation in a foreign designing office
was not. forbidden; nor was this the sense of the Treaty of
Versailles. The decisive point was merely that Germany
should not create a U-boat force for herself. The Navy,
however, was permitted to participate in a designing office
so as in this way to be kept informed in the field of modern
submarine construction, to gather information for the
future, and to lay the foundation for a possible
construction of submarines later on, when permitted-by
training technical experts. (See Raeder Exhibit No. 2,
Lohmann Affidavit.)

The above-mentioned documents, submitted by the prosecution,
prove that the submarines designed by the Dutch firm and
built abroad were put into service abroad, namely by Turkey
and by Finland.

Even if one took the view that designing work also was
prohibited, then what was said under (1) also applies. The
designing was limited to only a few submarines, so that this
small number in itself proves that there cannot have been
any intention to wage wars of aggression.

3. If the High Tribunal is unwilling to follow this train of
thought unless further reasons are given, one might say in
addition that the lack of an aggressive intention is also
evident from the fact that the trivial violations of the
treaty were in a certain way compensated. I refer to the
second affidavit of Admiral Lohmann, Raeder Exhibit No. 8,
which shows that according to the Treaty of Versailles,
Germany was allowed to build eight armoured ships, but, in
fact, only built three armoured ships; it shows also that
instead of eight cruisers, only 6 cruisers were built up to
1935, and that instead of thirty-two destroyers or torpedo
boats, only twelve destroyers and no torpedo boats were
built. In fact, with regard to the really important weapons,
and especially those which may be considered as offensive
weapons, the Navy stayed far behind the maximum permitted by
the Treaty of Versailles, and indeed to such an extent that
in comparison the trivial violations in naval matters hardly
count.

4. According to the Weimar Constitution of 11th August,
1919, articles 47 and 50 (Raeder Exhibit No. 3) the
President of the Reich has supreme command of all the armed
forces. In order to be valid the decrees of the President of
the Reich required the counter-signature of the Chancellor
of the Reich or the competent Reich Minister, in this case,
the Minister of National Defence. I quote:

  "Responsibility is assumed through the counter-
  signature."

Thus, from the point of view of constitutional law, it is
absolutely clear that the responsibility rests with the
Minister of National Defence, or the Reich Cabinet and the
President of the Reich. It is, of course, true that before
1928, that is, before Raeder became the responsible Chief of
the Naval Command, the Navy took a number of measures
without the knowledge of the Reich Cabinet. But the evidence
which I presented, especially the statement of the former
Reich Minister Severing, shows that, contrary to the
statements of the prosecution, no secret measures were taken
after Raeder became Chief of the Naval Command. Severing has
confirmed that the Muller-Stresemann-Severing Cabinet, in a
Cabinet meeting of 18th October, 1928, obtained a clear
picture of the secret measures of the armed forces by
interrogating Raeder as Chief of the Naval Command and Heye
as Chief of the Army Command.

Both Raeder and Heye, after they had given an explanation,
were obliged by direction of the Cabinet, in conformity with
the above-mentioned paragraphs of the Reich Constitution, to
take no future measures without the knowledge of the
Minister of National Defence or the Cabinet. At the same
time the Cabinet established that the secret measures taken
before Raeder's time were only trifling matters, and
expressly assumed the responsibility for them. If the
Cabinet, in conformity with the Constitution, assumed the
responsibility, then this was a legally and constitutionally
effective procedure which exonerated Raeder as Chief

                                                   [Page 35]

of the Naval Command and relieved him of responsibility. It
seems, therefore, inadmissible that the defendant, who no
longer bears the responsibility, should be made responsible
for actions for which the Cabinet assumed the
responsibility.

The attitude of the Cabinet in the Cabinet meeting of 18th
October, 1928, further shows that all these actions cannot
have had as their basis any criminal intention to wage a war
of aggression, for even the prosecution will not want to
assert that men like Stresemann, Muller and Severing
intended to wage wars of aggression, but will have to
believe Severing that Stresemann, Muller and himself only
assumed responsibility for these violations because they
were based solely on conceptions of defence. One will also
have to believe Severing that such conceptions of defence
were justified, as in the twenties the danger that Germany
would be attacked, e.g., by Poland, was real, and she would
then not have been in a position to defend herself with the
small Wehrmacht forces allowed her by the Versailles Treaty.
This danger was particularly evident in connection with
Polish border incidents in East Prussia and Silesia, and
during the occupation of Vilna, and it even grew when all
attempts of Stresemann and Muller failed to put into reality
the promise to disarm which the other powers had given in
the Versailles Treaty.

How difficult Germany's position was and how justified
measures of defence were, Justice Jackson himself admitted
in his opening speech, when he said:

  "It may be that the Germany of the 1920's and 1930's
  faced desperate problems, problems that would have
  warranted the boldest measures short of war."

I shall not even go as far as Mr. Justice Jackson, but I
believe that these measures taken by the Navy are certainly
covered by his own concept of "boldest measures".

The British Prosecutor, Mr. Elwyn Jones, attempted during
the cross-examination of Severing to prove that Raeder did
not observe the obligations imposed on him in the Cabinet
meeting of 18th October, 1928, because Severing, according
to his testimony, was not informed of the construction
abroad of the small submarines for Turkey and for Finland.
In this connection, two things must be considered:

(a) During his testimony, Severing did not remember the
details, but only the fundamental and decisive questions;
with regard to the details, he naturally relied on the
competent minister, in this case, the Reichswehr Minister.

(b) According to Severing's testimony it was an exception
that the Chief of the Navy High Command appeared before the
entire Cabinet on 18th October, 1928. Raeder as Chief of the
Navy High Command was not obliged to inform all the members
of the, Cabinet, but was, in accordance with the
Constitution, merely obliged to inform the Reichswehr
Minister, and that Raeder did. What the Reichswehr Minister
then, on his part, submitted to the other members of the
Cabinet and to the Reichstag, was not only beyond Raeder's
knowledge, it was also outside Raeder's responsibility, but
within that of the Reichswehr Minister and the Cabinet.

In conclusion, may I point out the following:

If, despite all this, the prosecution wishes to consider
these violations of the Treaty of Versailles on the part of
the Navy as evidence of an intention to wage a war of
aggression, then the Social Democratic or Democratic
Governments of that time bear the responsibility.

With this the Indictment on this point collapses, for to
hold the governments of that time to account for the
intention to wage wars of aggression would mean to carry the
prosecution on this point ad absurdum.

5. The treaty violations during the period from 1933 until
the German-English Naval Agreement of 1935 show the same
factual and juridical picture. Even during these two years,
approximately, no important expansion of naval armament took
place. The only disputable accusation made by the
prosecution in this respect is contained in Document 855-D,
which was submitted during cross-examination. It concerns
the report of Flottenintendant Thiele. According to

                                                   [Page 36]

this it was decided in March, 1935, that is a few months
before the Naval Agreement, to lay plans for the Scharnhorst
and the Gneisenau with a displacement of 27,000 tons,
although the maximum of 10,000 tons fixed by the Treaty of
Versailles was still formally in force at that time for
another three months, in contrast to the displacement of
35,000 tons provided for in the Naval Agreement of 1935.

In this connection, it should be taken into consideration
that in March, 1935, Germany could already count on the
speedy conclusion of a German-English agreement, whereas the
period between the planning and the completion of a
battleship is a much longer one, which cannot be counted in
months, but only in years. As a matter of fact, the
Scharnhorst and Gneisenau were only commissioned three and
four years respectively after the Naval Pact, namely in 1938
and 1939 respectively (see Raeder Exhibit No. 2, affidavit
Lehmann).

The other matters submitted by the prosecution are again
trifles; for instance, the selection (not the construction,
as the prosecution says) of four or five merchantmen (see
166-C), or the construction of five U-boats of 40 tons each
(see 15I-C), which, for technical reasons, were built in
place of twelve torpedo boats of 200 tons each. The
prosecution cannot in all seriousness turn these facts into
grave accusations, especially as the above-mentioned
deviations from the Versailles Treaty were known to foreign
technical specialists or - as the witness Schulte-Monting
rightly said - they were an "open secret".

6. And now I come to the decisive juridical aspect of all
developments up to the summer of 1935. In the field of
International Law the same principle applies as in the field
of internal commercial laws, breaches of agreement are
considered adjusted and settled with the signing of a new
agreement. In the present case the German-English Naval
Agreement of 18th June, 1935 - Raeder Exhibit No. 11 -
represents the new agreement. This Naval Agreement deviates
completely from the Versailles Treaty both with regard to
maximum tonnage vessels and with regard to U-boats. It is
only on the basis of what is permitted Germany by this new
agreement that the insignificance of the previous violations
of the Versailles Treaty, not at the time covered by
existing agreements, becomes apparent. 10,000-ton cruisers
were replaced by 35,000-ton warships, and the ban on the
construction of U-boats was replaced by the acknowledgement
of equal rights with regard to U-boat tonnage. Germany's
demands were not unreasonable on the contrary, in the
document mentioned, His Majesty's Government in the United
Kingdom explicitly confirmed the German proposal "as an
exceedingly important contribution to future limitation of
naval armaments".

This agreement between England and Germany settles the
argument on the Versailles Treaty both factually and
juridically, as far as the Navy is concerned.

This Naval Agreement was generally welcomed in England and
Germany at that time, and it was supplemented by a new
agreement on 17th June, 1937 (see Raeder Exhibit No. 14). As
proof of the fact that the Navy violated the Naval
Agreement, also with aggressive intentions, the prosecution
has raised two charges:

1. In the Agreement of 1937 both contracting Governments
were bound to a mutual exchange of information, which was to
take place annually, within the first four months of every
calendar year, and was to contain details of the building
programme. According to Document 23-C, the Navy violated
this obligation in so far as it gave the figures for the
displacement and the draught of the battleships Bismarck and
Tirpitz, which were being built at the beginning of 1938, as
too low, namely as 35,000 tons instead of 41,700 tons. That
this violation of the treaty occurred is openly admitted by
Raeder, but again it is not such a serious violation as the
prosecution contends, that is, it is not a violation which
shows proof of a criminal intention. This is clear from the
detailed evidence I have presented and from the testimonies
of witnesses which I need not repeat here; it will be
sufficient if I refer to the absolutely convincing expert
testimony of shipbuilding director Dr. Suechting, which I
have submitted as Raeder Exhibit No. 15. According

                                                   [Page 37]

to this, the tonnage increases demanded by the Navy during
the construction only served a defensive idea, namely the
idea to increase the armour plating of the battleships and
to arrange the bulkheads in such a way that the battleships
would be unsinkable to the greatest possible degree. This
defensive idea, Dr. Suechting emphasises, actually proved to
be correct during the attack on and the sinking of the
battleship Bismarck. If it was only a question of a
defensive idea, no aggressive intentions can be construed
from this treaty violation.

With regard to the judicial aspect, it must be added that in
the Naval Agreement of 1937, Articles 24, 25 and 26 conceded
the contracting governments the right to deviate, under
certain circumstances, from the contracted agreements and
especially from the tonnage limitation of battleships, if
any other sea powers built or acquired larger battleships.
This case stated in Article 25 occurred, and so the
violation of the agreement was this: the Navy indeed, now
had the right to build larger battleships, but Germany
should have informed England of her desire to make use of
that right. It was, therefore, only a violation of the
obligation to exchange information. How meaningless this
measure was is proved by the alteration of the German-
English Naval Agreement contained in the London Protocol of
30th June, 1938, which I have submitted as Raeder Exhibit
No. 16.

Already on 31st March, 1938, that is only six weeks after
the date of Document 23-C, England on her part had stated,
according to the London Protocol of 30th June, 1938, that
she must make use of the afore-mentioned right granted by
Article 25, and had proposed therefore that the battleship
tonnage be increased from 35,000 to 45,000. This agreement
was then signed by both countries on 30th June, 1938, and
thus the violation of the treaty evident from Document 23-C
became illusory.

2. The British prosecutor raised a second charge by
submitting Document 854-D during the cross-examination. It
concerns the notes made by Admiral Assmann for his
historical writings; on sheet 15 of these notes he writes
that Germany followed the terms of the German-English Naval
Agreement least of all in the sphere of U-boat building and
that 55 U-boats were allowed by the treaty up to 1938, but
118 were actually completed or begun. These statements by
Assmann are actually incorrect, and in reality, Germany
followed strictly all the stipulations of the German-English
Naval Agreement with regard to U-boat building. Despite the
assurance of equality of rights, Germany in the Naval
Agreement of 1935 limited herself voluntarily to 45 per
cent; but the right to increase this percentage at any time
by friendly agreement with England was reserved for her. The
presentation of evidence has shown (see the testimony of
Raeder and Schulte-Monting) that in December, 1938,
appropriate negotiations took place between the British
Admiral Lord Cunningham and the Grand Admiral Raeder, during
which his Majesty's Government approved the increase to 100
per cent. It was not clear at the time when this evidence
was presented, whether this approval had also been put in
writing as was to be assumed. Meanwhile I was able to
establish that such a document must have existed; I was able
to gather this from the afore-mentioned Assmann Document 854-
D, in which on Page 169 (in connection with Page 161) the
letter in question of 18th January, 1939, is mentioned. In
conclusion it remains to be said that the figure of 55 U-
boats mentioned by Assmann corresponds to 45 per cent
whereas the figure of 118 U-boats corresponds to loo per
cent; accordingly Assmann, and therefore the prosecution as
well, are wrong. Actually there was no violation at all of
the Naval Agreement with regard to U-boats.

THE PRESIDENT: Dr. Siemers, now that we have got a
transcript of your speech, it appears to us that you might
perhaps read a little bit faster. Perhaps you could take
that up with the interpreters.

DR. SIEMERS: Certainly, Mr. President.

(A recess was taken.)

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