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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
16th July to 27th July 1946

One Hundred and Seventy-Ninth Day: Tuesday, 16th July, 1946
(Part 4 of 11)

[Page 15]


This appears to me as just, as I should hold it incompatible with the commandants of justice if soldiers should be charged with a criminal responsibility in deciding legal questions, which could not be settled at international conferences and which are hotly disputed among the experts themselves.

In this connection I should like to mention that the London Pact of 1930 did not adopt, from the Root Resolution of 1922, criminal prosecution for violations of the rules of U- boat warfare. The five naval powers participating in this conference apparently came to the conclusion that the problems of naval warfare could not be solved by means of penal law. And this fact applies fully today, too.

I am now coming to the second basic charge of the prosecution - intentional killing of the shipwrecked - brought against Admiral Donitz alone and not against Admiral Raeder.

The legal basis for the treatment of the shipwrecked for those ships which are entitled to the protection of the London Agreement of 1936 is laid down in the protocol itself. There it reads that before the sinking, crews and passengers are to be brought to safety. This was adhered to on the German side, and the difference of opinion with the prosecution concerns only the question already dealt with, i.e., which ships were entitled to the protection of the protocol and which were not.

In the case of all ships which were not entitled to the protection of the protocol, the sinking is to be considered a military combat action. The legal basis, therefore, for these cases regarding the treatment of the shipwrecked is contained in the Hague Convention concerning the application of the principles of the Geneva Convention for Naval Warfare of 18th October, 1907, although it was not ratified by Great Britain. According to this, both belligerents, after each combat action, shall make arrangements for the search for the shipwrecked, as far as military considerations allow this. Accordingly, the principle applied also to the German U-boats to help the shipwrecked of steamers sunk without warning if by doing so (1) the boat would not be endangered; and (2) the accomplishment of the military mission would not be prejudiced.

These principles are generally acknowledged. In this connection I am referring to the order of the British Admiralty, for example, and I quote:

"No British ocean-going merchantman shall aid a ship attacked by a U-boat."
I further refer to the affidavit of Admiral Rogge according to which in two cases, personally witnessed by him, nothing was done by a British cruiser to rescue the shipwrecked, because U-boats were assumed to be near by, once correctly so and once erroneously. Risk appears to exist in a higher degree for U-boats m comparison to other types of vessels, because of their exceptional vulnerability.

Also, in the case of the second exception from rescue duty, the prejudice to the military mission, the U-boat is subject to special conditions. It has no room to take guests aboard. Its supply of food, water and fuel is limited and all space used for other purposes prejudices its combativeness. It is further typical for the U-boat that its task may also call for a secret attack, and therefore exclude

[Page 16]

rescue duty. In order to present also an opinion about the practice of the opposite side, I quote from the statement of Admiral Nimitz:
"In general US submarines did not rescue enemy survivors if it meant an unusual additional danger for the submarine or if the submarine was prevented from further carrying out its task."
In the light of these principles I will briefly consider, the measures of rescue by U-boats until autumn, 1942. The basic order was issued by the Naval Command on 4th October, 1939, and ordered rescue whenever possible from the military standpoint. This was temporarily limited through the Standing War Order 154. This order, issued in December, 1939, applied to the few submarines which at that time were operating directly below the English coast. It may be seen from the order itself that every paragraph deals with protective measures for the submarine in the presence of the enemy: The last paragraph also deals only with this battle- situation and serves the warranted purpose of protecting the submarine commanders from the dangers to which, under the existing circumstances, they exposed their boats through rescue measures in every case. When after the Norway campaign the activity of the submarines gradually shifted into the open Atlantic, this order became outdated and was cancelled in the autumn of 1940. In the time that followed the German submarine commanders enacted rescue measures whenever they could assume such responsibility from the military standpoint. This is known to the Tribunal from numerous special examples cited here which were contained in the statements of submarine commanders submitted here as well as in the war diaries. This situation was changed through Admiral Donitz's order of 17th September, 1942, in which he forbade rescue measures on principle. The decisive sentences are:
"The rescue of the crew of a sunken ship is not to be attempted. Rescue is contradictory to the most primitive requirements of warfare, which are the annihilation of enemy ships and crews."
It has been disputed by the prosecution that this actually prohibits rescue. It looks upon this order as a hidden provocation to kill the shipwrecked, and it has gone through the Press of the world as command for murder. If any accusation at all has been refuted in this trial, then it seems to be this contemptible interpretation of the order mentioned above.

How did this order originate? Beginning with June, 1942, the losses of German submarines through the allied air force rose by leaps, and jumped from a monthly average of 4-5 during the first half-year of 1942 up to 10, 11, 13 and, finally, 38 boats in May, 1943. Orders and measures coming from the Command of Submarine Warfare rapidly followed each other in order to counter these losses. They were of no avail, and every day brought fresh reports of air attacks and losses of submarines.

This was the situation when on 12th September it was reported that the heavily-armed British troop-transport Laconia, with 1,500 Italian prisoners of war and an Allied crew of 1,000 men and some women and children aboard, had been torpedoed. Admiral Donitz withdrew several submarines from current operations for the purpose of rescuing the shipwrecked, and thereby no difference was made between Italians and Allies. From the very start the danger of enemy air attacks filled him with anxiety. While the submarines during the following days devotedly rescued, towed boats, supplied food, etc., they received no less than three admonitions from their commander to be careful, to divide up the shipwrecked and at all times to be ready to submerge. These warnings were of no avail. On 16th September one of the submarines, displaying a Red Cross flag and towing lifeboats, was attacked and considerably damaged by an Allied bomber; one lifeboat was hit and caused losses among the shipwrecked. Following this report the commander sent three more radio messages with the order in case of danger to submerge immediately and under no circumstances to risk their own safety. Again without avail. In the evening of this day, 17th September, 1942, the

[Page 17]

second submarine reported that during its rescue action it had been taken unawares and was bombed by an aeroplane.

Notwithstanding these experiences and in spite of the explicit order from Fuehrer Headquarters to risk no boats under any consideration, Admiral Donitz did not stop the rescue action but had it continued until the shipwrecked were taken aboard French warships sent to their rescue. But this incident was a lesson. Due to the enemy air reconnaissance activity over the entire sea area, it simply was no longer possible to carry out rescue measures without risking the submarine. It was useless to give orders again and again to the commanders to do rescue work only if their own boat was not endangered thereby. Earlier experiences had already shown that. For their humane desire to render aid had led many commanders to underestimate the dangers from the air. But it takes a submarine, with the deck clear, at least one minute to submerge on alarm, while an aeroplane can cover 6,000 metres in that time. This means practically that a submarine engaged, in rescue action when sighting a plane has not time enough to submerge.

These were the reasons which caused Admiral Donitz directly after the close of the Laconia incident to forbid rescue measures on principle. This was motivated by the endeavour to preclude any calculation on the part of the commander as to the danger of air-attack inducing him in individual cases to do rescue work.

It is difficult to judge the actual effects of this order. From 1943 on about 80 per cent of the submarines were fighting against convoys where even without this order rescue measures would have been impossible.

Whether or not one or the other of the commanders would have, without this order, again risked concerning himself with the lifeboats, nobody can tell with certainty. As is known, the order existed, since the middle of 1942, to bring in as prisoners if possible captains and leading engineers. During the almost three years of war which followed, this order was carried out not even a dozen times, which proves how high the commanders themselves estimated danger to their boats in rising to the surface. On the other hand, nothing was more distressing for the crew of the torpedoed ships than to be taken aboard a U-boat, because they certainly knew that their chance of being rescued was much better in a lifeboat than on a U-boat which had a less than 50 per cent chance of returning to its base. I, therefore, together with Admiral Goth arrived at the conclusion that the Donitz order may have cost the lives of some Allied seamen just as it may have saved the lives of others. Be that it as it may, in the face of the enormous losses through the enemy air force the order forbidding rescue was justified. It corresponded completely with the basic idea of the precedence of their own vessel and of their own task, as prevailing in all navies; a principle which I believe I have proven as commonly valid in view of existing British and American orders and practices.

How then can the prosecution consider this order an "order to murder"? Grounds for this may be the discussion between Hitler and the Japanese Ambassador Oshima in January, 1942, in which Hitler proposed an order to his U-boats to kill the survivors of sunken ships. This announcement, as the prosecution infers, Hitler doubtless made good, and Admiral Donitz had been carrying it out by the anti-rescue order. Actually on the occasion of a lecture on U-boat problems which both admirals had to give in May, 1942, the Fuehrer suggested proceeding actively against the shipwrecked in the future, that is, to shoot them; Admiral Donitz immediately rejected this sort of action as thoroughly impossible, and Grand Admiral Raeder unqualifiedly agreed with him. Both admirals specified the improvement of the torpedoes as the only permissible course of increasing the losses among the enemy crews. In the face of the opposition of both admirals, Adolf Hitler dropped his proposal and, following this lecture, no order whatever was given concerning shipwrecked crews, let alone concerning the killing of the shipwrecked by shooting. The destruction of the crews through improved action of the torpedoes is an idea which for the first time appeared in this discussion

[Page 18]

of May, 1942, and which recurs in later documents of the Naval War Command. I must therefore express myself about the legality of such a tendency. According to classical International Law the destruction of combatants was a legal goal of war actions but not the destruction of non- combatants. In view of the development of the fast war one may be doubtful whether this classical theory still has any validity. I am regarding the hunger blockade as the first important infringement upon this theory, which, by cutting off all food supply, was aimed at the civilian population, therefore the non-combatants of a country, the victims of which during the world war were estimated at 700,000 people. Although this blockade was frequently acknowledged as inadmissible according to International Law, it was practised, however, and therefore it means a break of the principle of protection for non-combatants from war measures.

The second great break was brought on by the air war. I do not wish to discuss the intricate question of who started it, but only state the fact that the air war, at least in the last two years, was aimed against the civilian population.

If in dozens of attacks on residential quarters of German cities thousands or tens of thousands of civilians were among the victims and only a few dozens or a few hundreds of soldiers, then nobody can assert that the civilian population was not included in the target of attack. The mass dropping of explosives and fire bombs on entire areas does not admit a doubt, and the use of the atom bomb has produced the final evidence thereto.

In view of the hundreds of thousands of women and children who, in this manner, miserably died in their houses, were buried, suffocated or burnt to death, I am surprised at the indignation of the prosecution about the loss of about 30,000 men who lost their lives in war areas on ships which were armed and carried war material and, often enough, bombs which were destined for use against German cities. Moreover, most of these men died in combat, that is by mines, aircraft, and especially in attacks on convoys, actions which also according to British conception were lawful.

The German Naval War Command regarded these men as combatants. The British Admiralty takes the opposite standpoint in the orders for the merchant navy. In this connection, Oppenheim, the very well-known British expert on International Law, even before the outbreak of the First World War, defended the thesis that the crew is to be put on the same level as combatants. He points to the century-old and especially in England upheld practice to take the crew of merchant ships prisoners of war. He finds this principle confirmed in the 11th Hague Convention of 1907 and recognises the crews of the merchant navy as potential members of the Navy. The legal position in their defence against a warship is described by him as "entirely analogical to the position of the population of an unoccupied territory who take up arms in order to combat invading troops."

It is well known that this is considered a combat unit. According to Article 2 of the Hague Convention for Land Warfare, these are considered combatant irrespective of whether or not the individual actually makes use of weapons. Accordingly, Oppenheim also refuses to make any distinction, among members of occupying forces, between persons who are enrolled in the enemy navy and those who are not.

If this interpretation was already valid before the First World War, it certainly was unassailable in the year 1942, at a time when there were no more unarmed enemy ships and when the neutrals who happened to enter the zone of operations were moving in enemy convoys exclusively, which made them, just like enemy ships, integral parts of the enemy forces. They all had lost any peaceful character and were considered as guilty of active resistance. Active resistance against acts of war is not permitted to any non- combatant in land warfare and results in his being punished as a partisan. And in naval warfare should a ship's crew be entitled to the combatant's privileges, without suffering any of his disadvantages? Should a crew be permitted to participate in all possible acts of war, even in the firing of

[Page 19]

guns and underwater bombs, and yet remain non-combatant? Such an interpretation renders illusory the entire concept of a non-combatant. It cannot make any difference whether or not only a part of the crew has anything to do with the firing of the guns. The ship as an entirety represents a fighting unit and on board a commercial ship more people had actually something to do with the handling of weapons than on board a submarine. These men were trained under military supervision, they fired the guns along with gunners of the Navy and the use of their weapons was regulated according to the Admiralty's orders. The crews of ships were accordingly combatants, and thus it was legitimate for the adversary to try to destroy them by the use of arms.

This explains at the same time the sentence about the destruction of ships and crews, which is considered by the prosecution as a significant clue that the Donitz order bore the character of a murder-order. There has been enough discussion concerning the meaning of this sentence as an argument for forbidding rescue work. It may, taken out of its context, give cause for misunderstanding. But whoever tries to read the entire order cannot misunderstand it. It appears to me as decisive that in accordance with its origin it was never meant to be a murder-order and has not been interpreted as such by the commanders. This is proved by the declarations and statements of dozens of submarine commanders. In its context it could not even have been interpreted as a murder-order. In fact, in the next paragraphs it was explicitly ruled that as far as possible certain members of the crew should be brought back as prisoners. It stands to reason that one must credit a war command with enough cleverness, if it gives such a murder- order at all, also not to order to conserve a few witnesses of its crime.

Contrary to the prosecution, the British Admiralty clearly has not believed in such a murder-order. Otherwise it would not have given orders to its captains and leading engineers to escape capture by German submarines by camouflaging as plain sailors while in the lifeboats. According to the interpretation by the prosecution, such an order would indeed have meant that the captain would have been shot along with all the other members of the crew.

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