The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd May to 13th May, 1946

One Hundred and Twenty-Sixth Day: Friday, 10th May, 1946
(Part 5 of 12)

[SIR DAVID MAXWELL FYFE continues his cross examination of Karl Donitz]

[Page 280]

Q. Well, now, just look at Page 29 in the English Document Book, or Page 58 in the German, whichever you care to look at. It is Document 191-C, Exhibit GB 193. This is the 22nd of December, nineteen days after the beginning of the war.
"Flag Officer U-boat intends to give permission to U- boats to sink without warning any vessel sailing without lights. Previous instructions, permitting attacks on French war and merchant ships only as a defensive measure, purely French or Anglo-French convoys only North of the Latitude of Brest, and forbidding attacks on all passenger ships, give rise to great difficulties to U- boats, especially at night. In practice, there is no opportunity for attacking at night, as the U-boat 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 measure 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 verbal approval of the Naval War Staff. U-boat commanders would be informed by word of mouth..." and note the last line "... and the sinking of a merchant ship must be justified in the war diary as due to possible confusion with a war ship or an auxiliary cruiser."
Now, just tell me - take your choice - do you consider that sailing without lights is either persistent refusal to stop on being duly summoned or active resistance to visit and search, within the Treaty? Which of either of these things do you consider it to be?

A. If a merchant ship acts like a warship -

Q. First of all, you must answer my question, if the Tribunal does not rule otherwise, and then you can give your explanation. My question is this: Do you consider that sailing without lights is either persistent refusal to stop or active resistance to visit and search? Do you consider it to be either one or the other or both of these things? Do you?

A. The question is not correctly expressed; because we are dealing here with a certain operational area in which British and French -

THE PRESIDENT: Defendant, you will answer the question, please.

THE WITNESS: I did not understand it.


Q. Do you consider that sailing without lights is either persistent refusal to stop on being duly summoned, which is one of the matters in the Treaty, or active resistance to visit and search which is the other matter set out in the Treaty? Now, do you consider that sailing without lights is either or both of these matters mentioned in the Treaty?

A. If a merchant ship sails without lights, it must run the risk of being taken for a warship, because at night it is not possible to distinguish between a merchant ship and a warship. At the time the order was issued, it concerned an operational area in which blacked-out troop transports were travelling from England to France.

Q. Your answer is that it is not covered by the Treaty but by one of the matters in the Treaty, but your explanation was that you thought you were entitled to torpedo without warning any ship that might be mistaken for a warship. That is your answer, is it?

[Page 281]

A. Yes.

Q. Why didn't the defendant von Ribbentrop and all these naval advisers stipulate for that, when Germany adhered to this Treaty, if you were going to interpret it in that way? Were you ever asked about it before Germany adhered to this Treaty in 1936?

A. I was not asked before Germany signed this Treaty; Germany adhered to the Treaty in practice, as I know very well, until counter measures were introduced and then I received the orders to act accordingly.

Q. Just let us go through this document and see if you can help me perhaps a little more on some other points. Why was this action to be based on the verbal approval of the Naval War Staff P Why hadn't the Naval War Staff the courage to speak its approval in an ordinary written order if it was all right?

A. Yes; the paper you are showing me is a note or memorandum made by a young expert in the Naval War Staff. In fact, it was the idea of that particular officer in the Naval War Staff, and, as I have pointed out here, I did not know of the matter. In actual fact, the Naval War Staff never gave me such an order. The contents of that paper are fiction.

Q. No, of course. They weren't to issue an order at all, you see. This states with great frankness that you were to act on the verbal approval of the Naval War Staff, so that the Naval War Staff could say, as you have said now, "We did not issue an order," and the junior officers would be acting on the spoken word, and I want to know - you have been Commander-in-Chief of the German Navy - why was it done in this way?

A. No, that is not correct. That was this young officer's idea. The order which I received from the Naval War Staff stated explicitly that blacked-out vessels could be sunk in this area, where English transports were travelling from England to France. So, you see, it contained none of the things stated in this memorandum. There is no doubt that the Section Head and likewise the chief of the Naval War Staff refused and rejected that entirely impossible idea and gave me an explicit order.

Q. Are you suggesting to the Tribunal that on these vitally important points, verbal approval of the Naval War Staff, U- boat commanders informed by word of mouth, that a young staff officer is allowed to put in an incorrect memorandum and get away with it uncorrected? Was that the way, was that the state of efficiency of the staff of the German navy?

A. No, that is a misunderstanding. It has been corrected. That is a note, submitted by the expert on the Naval War Staff, of which his superiors in the Naval Warfare Command did not approve. It was corrected. There was no verbal agreement but an explicit order to myself, so that young officer's idea had already been forbidden by the Naval War Staff.

Q. You know that the original is initialled by Admiral von Friedeborg?

A. No, that is quite wrong, that is impossible. "Fd " is written there that means Frasdorf. That was Kapitanleutnant Frasdorf. He was an expert on the Naval War Staff; and not Friedeborg. He was a young officer in the first department of the Naval War Staff. Those are all things which I learnt of here. His chief, Admiral Wagner, had condemned it already. It was not Friedeborg, but Frasdorf. That is the way this young officer thought about it, but actually a definite order was issued to me concerning operations in that area.

Q. Take the next bit. "The sinking of a merchant ship must be justified in the war diary as due to possible confusion with a warship or auxiliary cruiser." Do you agree with faking the records after you have sunk a ship?

A. No, and it was not done. That also belongs to the same category - the ideas of that officer. No order for that has even been given. The order of the Naval War Staff issued to me in that connection has been submitted and that is a clear and concise order, without the instruction mentioned here.

[Page 282]

Q. Of course, you appreciate that these things, according to this memorandum, are to be stated without orders. There has to be no order because an order might come out - because if it is done without an order, it won't come out. Are you suggesting, you are putting it on the shoulders of this lieutenant commander, that he invented these three damning facts, verbal approval, oral instructions to commanders, and faking the orders? You say that these existed only in the mind of a Kapitanleutnant? Is that what you are telling the Tribunal?

A. Yes, yes, of course, because the clear, concise order was given by the Naval War Staff to me in which these things were not mentioned. And quite as clearly I passed my orders on. That is how it is. This memorandum, or these ideas of that officer were already disapproved by his chief of department in Berlin. A clear order was given to me, however, and there was nothing in it about a war diary and all these things mentioned here. That order is available.

Q. Well, we shall be able to ask, I understand, Admiral Wagner as to where this Kapitanleutnant got hold of these ideas, is that so, or whether he made them up? Is that what you are telling us, that Wagner will be able to deal with this, will he?

A. Admiral Wagner ought to know all about it, because this expert was in his department in Berlin.

Q. I see. Well, if you put that on to the Kapitanleutnant, let's pass on to another point. In mid-November -

A. (interposing). I am not laying any blame on anybody, but they are ideas of a young officer which were already disapproved of by his chief of department. I am blaming no one, I do not accuse anybody.

Q. I see. I thought you were.

Well, now, let's pass to another point. In mid-November of 1939, Germany gave warning that she would sink, without warning, merchant ships, if armed. Don't you know that before that warning - if you want to see the point you will find it on Page 21 of the English Document Book or 51 to 52 of the German Document Book. It is just before the break, about five lines.

"By the middle of November, a score" - that is 20 - "British merchantmen had already been illegally attacked by gunfire or torpedoed from submarines."
THE PRESIDENT: Which page did you say?

SIR DAVID MAXWELL FYFE: My Lord, Page 21, about ten lines before the break.


Q. You see, what I am suggesting, defendant, is that the statement, the warning, that you would sink merchant ships, if armed, made no difference to the practice you had already adopted of sinking unarmed ships without warning.

A. In the beginning of October, if I remember correctly, I received the order or the permission, the legal permission, to sink armed merchantmen. From that moment on I acted accordingly.

Q. Just tell me: Was it your view that the mere possession of arms, a gun on the merchant ship, constituted active resistance to visit or search within the Treaty; or was this a new addition for the guidance of German U-boat warfare which you were introducing completely independent of the Treaty?

A. It is a matter of course that, if a ship has a gun on board, she will use it. It would have been a one-sided obligation if the submarine, in a suicidal way, were then to wait until the other ship fired the first shot. That is a reciprocal agreement and one cannot in any circumstances expect the submarine to wait until it gets hit first. And, as I said before, in practice the steamers used their guns as soon as they came within range.

Q. But you know, the arming of merchant ships, defendant, was well known in the last war. It was well known for 20 years before this Treaty was signed.

[Page 283]

And you will agree with me, won't you, that there is not a word in the Treaty forbidding the arming of merchant ships? Why didn't you give these ships the opportunity of abstaining from resistance or of stopping? Why did you go in the face of the Treaty which you had signed only three years before? That is all I want to know. If you cannot tell me, if you say it is a matter for argument, I will ask Admiral Raeder. At the moment, will you tell us, or can you tell us, why didn't you keep to the Treaty?

A. That was not an infringement of the Treaty. I am not an expert on international law. I am a sailor; and I acted according to my orders. Of course, it is suicide for a submarine to wait till it receives the first hit.

It goes without saying that the steamer is not carrying guns for the fun of it, but to make use of them. And I have already explained what use was made of them.

Q. Well, now, just one other matter, because I must cover these points in view of your evidence.

Did you order your commanders to treat the use of wireless as active resistance? Did you consider that the use of wireless for merchant ships was active resistance within the Treaty?

A. On the 24th of September, the Naval War Staff's order -

Q. (interposing). No, no, just answer the question first, defendant, and then give your explanation. I said that to you quite twenty times yesterday and today. Did you consider the use of wireless by merchant ships as active resistance?

A. It is generally laid down by international law that a merchant ship can be fired on if it makes use of its wireless when stopped. That is also in the French Ordinance, for instance. In order to avoid more severe measures, we had not as a rule done so yet. Not until the end of September, when I received a definite order or permission to do so, was that rule, which is in accordance with international law, put into effect.

Q. Tell me, didn't the German Admiralty know in 1936 that most merchant-men had wireless?

A. Of course, but according to the International Conference on International Law - I happen to know this because it appeared as a footnote in the Prize Ordinance - according to this Conference of 1923, they were not allowed to use it when they were stopped. That is international law and is found in all instructions. I know for certain that the French instructions say this, too.

Q. At any rate again, the German Admiralty and the German Foreign Office did not make any mention of use of wireless in this Treaty. What I am suggesting - I want to put it quite clearly to you - is that you were not bothering about this Treaty at all in any case where it didn't suit you in the operations in this war.

A. That is not true.

Q. Now, let's pass on to neutrals. I haven't heard you suggest that you were dealing with neutrals because they were armed, but let's take a concrete example.

"On the 12th of November, 1939 - "
A. (interposing). I have never said that neutrals were armed.

Q. That is what I thought. Well, we will rule that out. We will take the example. My Lord, it is given on Page 20 of the Document Book, and in the middle of the middle paragraph:-

"On the 12th of November, the Norwegian Arne Kjode was torpedoed in the North Sea without any warning at all. This was a tanker bound from one neutral port to another."
Now, defendant, were you classing tankers bound from one neutral port to another as warships, or for what reason was that ship torpedoed without warning? The master and four of the crew lost their lives. The others were picked up after many hours in an open boat. Why were you torpedoing neutral ships without warning?' This is only the 12th of November, 1939, in the North Sea, a tanker going from one neutral port to another.

[Page 284]

A. Well, the submarine commander in this case could not see, first of all, that the ship was travelling from one neutral port to the other, but -

Q. Therefore-

A. (interposing). No, not for that reason, no. But that ship was heading for England, and he confused it with an English ship. That is why he torpedoed it. I know of that case.

Q. You approve of that action by the submarine commander?

A. No; that is an assertion made by yourself and is refuted by our habitual clean submarine warfare and by the fact that it was done by mistake.

Q. When in doubt, torpedo -

A. (interposing). That is one of the cases -

Q. (interposing). Don't you approve of that, when in doubt, torpedo without warning, is that your view?

A. No, no; that is merely what you assert. If one or two instances are given of mistakes made in the course of five and a half years of clean submarine warfare, they prove nothing; but they do contradict your general assertion.

Q. Yes. Well, now, let's look at your clean U-boat warfare if you wish to do so. Will you turn to Page 30 of the English Document Book, or Pages 59 to 60 of the German. Now, the first of these - this is the note on the intensification of U-boat warfare. You say that on directive of the Armed Forces High Command of 30th December - this is on the 1st of January, 1940 - the Fuehrer on the report of defendant Raeder has decided:-

"(a) Greek merchant vessels are to be treated as enemy vessels in the zone around Britain declared barred by the USA."

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