dtufail/nuremberg-trials-corpus huggingface dataset:
FLOTTENRICHTER KRANZBUEHLER: This actually did happen in some cases. Does that mean that the German Government itself considered the use of submarine action without warning within the area of operations to be illegal? I do not think so. In view of the repeated accusations which the Prosecution have construed here and elsewhere from the camouflaging of measures and the denial of facts, I feel obliged to make a few remarks on the point as to whether there is any obligation at all in international politics to tell the truth. However things may be in peacetime, in times of war at any rate one cannot recognize any obligation to tell the truth in a question which may be of advantage to the enemy. I need only point to Hugo Grotius who says: "It is permissible to conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable."* What would it have meant for the military situation if U-boat sinkings such as in the instances dealt with here had not been denied but admitted instead? First of all, since that would have come to the knowledge of the enemy too, we should have lost the military advantage which lay in misleading his defense. Furthermore-and this is no less important-we might quite possibly have furnished our enemy with allies who would have helped him at least with propaganda, if not with their weapons. 'In view of the fact that some of the neutrals concerned were so dependent on England, they probably would not have recognized the German viewpoint as to the legitimacy of the operational areas, especially since this viewpoint was contrary to their own interests. It would have led to political tensions, and possibly to armed conflicts. Our enemies would have derived the only immediate advantage from it. From the standpoint of the law this endeavor to camouflage the use of submarines with regard to the neutrals does not seem objectionable to me. But if the Prosecution uses this with the intention of moral defamation, it is applying standards which heretofore have never been applied to the conduct of a war and to the politics of any other country in the world.
FLOTTENRICHTER KRANZBUEHLER: It was precisely in naval warfare that the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared off the European coasts from Norway to Biscay were, with the exception of the Biscay area, declared mine danger zones. But we know from Churchill's statement of May 1940, as well as from testimonies of witnesses, that in these areas there were unlimited attacks with submarines, speedboats and, above all, with airplanes. Consequently very often neither the German command nor the neutral country which had been attacked knew whether a loss sustained in such an area really should be traced back to a mine or to another weapon of naval warfare. To conclude that the camouflaging of a measure constitutes its illegality thus seems to me entirely without basis. Within the German operational zone all ships were on principle attacked without warning. However, orders had been given to make exceptions in the case of certain neutrals, such as, in the beginning, Japan, the Soviet Union, Spain, and Italy. In this measure the Prosecution saw the endeavor of the Naval Operations Staff to terrorize the smaller neutral countries whereas it dared not * De jure pacis ac belli, Book III, Chapter I, Paragraph 6, citation Augustin: "One may conceal the truth wisely,'' and Cicero: "Dissimulation is absolutely necessary and unavoidable, especially for those to whom the care of the state is entrusted." pick a quarrel with the big ones. The real reason for this differentiating treatment is given in Document UK-65 in the notation on the report which the Commander-in-Chief of the Navy made to the Fuehrer on 16 October 1939. According to this the neutral governments mentioned are requested to declare that they will not carry contraband; otherwise they would be treated just like any other neutral country.
FLOTTENRICHTER KRANZBUEHLER: The reason for the different treatment was merely that certain countries were willing and able to forbid their vessels from carrying contraband to England, whereas others could not or would not do so because of their political attitude or their economic dependence on England. Therefore it is not a question of terrorizing the smaller neutrals and sparing the bigger ones, but of preventing traffic in contraband and sparing legal commercial trade. Since no general legal maxim exists which compels the belligerent power to treat all neutral powers alike, no objection can be raised on the basis of international law. It would indeed be strange if here in the name of humanity the demand were made that German submarines should have sunk even those ships which they did not want to sink at all. The Tribunal saw from the standing war orders submitted that during the further course of the war even the small powers, which were the only neutral ones left, could by virtue of shipping agreements cross the operational area along certain routes without being molested by German submarines. In this way for instance Sweden and Switzerland as well as Turkey could carry on their maritime trade during the entire war. Outside the operational area announced the German submarines were never permitted to attack neutral ships. In this respect the Naval Command refrained from waging any submarine warfare against neutral merchant shipping, since enemy air surveillance made stopping and searching too dangerous for German submarines. Against the disadvantage of submarine warfare within the operational area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods, which fact in itself made them liable to be sunk after being stopped. Thus a neutral vessel outside the operational area was only in danger if it behaved in a suspicious or hostile way or if it was not clearly marked as neutral. The German Naval Operations Staff again and again called the attention of the neutral powers to this necessity.
FLOTTENRICHTER KRANZBUEHLER: In this connection I must mention the order of 18 July 1941, according to which United States vessels within the operational area were placed on an equal basis with all other neutrals, that is to say, could be attacked without warning. The Prosecution have seen in this special proof that the submarine warfare against neutrals was wage* in a "cynical and opportunist" way. If this is meant to convey that it was influenced also by political considerations, then I am ready to admit it. But I do not consider this a reproach; since war itself is a political instrument, it is in keeping with its essence if individual parts of it are placed under the leadership of politics. In particular, no reproach should be seen in the orders of the German Command as regards the utilization of submarines against the United States, because they precisely furnish proof of the efforts to avoid any conflict with the United States. As the Tribunal knows from documents and the testimonies of witnesses, the ships of the United States during the first years of the war were exempt from all measures of naval warfare, and this applied even when contrary to the original American legislation they sailed into the U.S.A. combat zone and thus into the German operational area in order to carry war materiel to England. This policy was not changed until, in addition to the many unneutral acts of the past, the active employment of the American Navy had been ordered for the protection of British supply lines. Everybody is familiar with the statements of President Roosevelt, which he made at that time, about the "bridge of boats over the Atlantic" and the support which should be given to England "by every means short of war." It may be considered a matter of doubt whether the "realistic attitude"* which the U. S.
FLOTTENRICHTER KRANZBUEHLER: naval and air forces were ordered to take at that time did not already constitute an illegal war, as has been claimed just now on the part of the Americans.** At least the United States had abandoned her neutrality and claimed the status of a "nonbelligerent," which also presented a new aspect of international law in this war. If in this connection one wishes to raise the charge of cynicism, it should hardly be directed against the orders which were issued as a justified reaction to the American attitude. I have endeavored to present to the Tribunal a survey of the essential orders issued, and to say a few things with respect to their legality. No doubt there were instances of attacks on ships which according to the orders mentioned should not have been attacked. There are just a few such cases, and some of them have been brought up at this Trial. The best known concerns the sinking of the British passenger vessel Athenia on 3 September 1939 by U-30 under the command of Kapitanleutnant Lemp. The sinking of this * Admiral King, Report of the American High Command. ** John Chamberlain, "The man who pushed Pearl Harbor," Life, of 1 April 1946. ship was due to the fact that the commander mistook it for an armed merchant cruiser. If the Tribunal should still hesitate to believe the concurring statements of all the witnesses heard here on this critical instance, which was used especially for propaganda purposes, these doubts ought to be removed by the behavior of the same commander in the days and weeks following the sinking. Kapitanleutnant Lemp, as the log of U-30 at that time shows, adhered strictly to the Prize Ordinance, and from this log I was able to submit several examples of the fair and gentlemanly conduct of German commanders even when by such conduct they greatly endangered their submarines. Only on the return of U-30 from the operations at the end of September 1939 were the Commander of U-boats and the Commander-in-Chief of the Navy fully informed of the whole affair of the sinking of the Athenia.
FLOTTENRICHTER KRANZBUEHLER: Upon his return the commander immediately reported to the Commander of U-boats the mistake which he himself meanwhile recognized as such, and was sent to Berlin to report in person. Dr. Siemers will deal with the political aspect of this matter. I only mention the military occurrences. Admiral Doenitz received the following communication from the Naval Operations Staff: (1) The affair was further to be dealt with politically in Berlin. (2) Court-martial proceedings were not necessary since the commander acted in good faith. (3) The entire matter was to be kept in strict secrecy. On the grounds of this order the Commander of U-boats gave orders that the report on the sinking of the Athenia be deleted from the log of U-30 and that the log be complemented in such a manner as to make the absence of the entry inconspicuous. As the Tribunal has seen, this order was not adequately carried out, obviously for the reason that the officer in charge had no experience whatever in such dealings. The Prosecution pointed to this changing of the War Diary as a particularly criminal act of falsification. This, it seems to me, is based on a misunderstanding of the facts. The War Diary is nothing but a military report by the commander to his superiors. What occurrences should or should not be included in reports of this kind is not decided by any legal or moral principle, but is solely a matter of military regulations. The War Diary was meant to be secret; however, it Divas-like many secret matters-accessible to a very large group of people. This is already apparent from the fact that it had been circulated in eight copies, of which some were intended not only for higher staffs but for schools and for training flotillas as well. Therefore, whenever an occurrence was to be restricted to a small group of individuals, it was not to be reported in the War Diary. Since the sequence of the War Diary continued, the missing period had to be filled in with another, necessarily incorrect, entry. I can see nothing immoral in such a measure, much less anything illegal.
FLOTTENRICHTER KRANZBUEHLER: As long as there is secrecy in time of war-and that is the case in all countries-it means that not all facts can be told to everybody, and therefore one sometimes may have to make incorrect statements. A certain moral offense could perhaps be seen in such action in the case of the Athenia if thereby a falsification for all times had been intended. This, however, was by no means the case. The commander's report with regard to the sinking of the Athenia was of course submitted in the original form to the immediate superiors, the Commander of U-boats and the Commanderin-Chief of the Navy, and kept in both their offices. I should like further to say briefly that a general order not to enter certain happenings into the War Diary has never existed. The Athenia case brings another fact to light and that is the manner in which the compliance of U-boat commanders with any orders issued was enforced. In spite of the justified conception of the Naval Operations Staff that the commander acted in good faith, he was put under arrest by Admiral Doenitz because by exercising greater caution he perhaps might have recognized that this was not an auxiliary cruiser. Punishment was meted out in other cases, too, where orders had been mistakenly violated. The Tribunal is familiar with the wireless communications of September 1942, by which, on occasion of the sinking of the Monte Corbea, the commander had been informed that upon his return he would have to face court-martial proceedings for violation of orders regarding conduct toward neutrals. All commanders received notice of this measure. The Tribunal will please consider what such strict warnings mean to a commander at sea. If the directives of the American manual for courts-martial were to be considered as a basis, then court-martial proceedings against of fleers should only be initiated in cases where dismissal from the service seems warranted.* That should never be the case when the violation of an order is an accidental one.
FLOTTENRICHTER KRANZBUEHLER: For a commanding officer who is supposed with his soldiers to wage war and gain successes, it is extremely hard and, in fact, under certain circumstances actually a mistake to have one of his commanders on his return from a successful operation tried before a court-martial because of a single slip which occurred in that action. Every military command acts in accordance with these principles. In this connection I will refer to the unreserved recognition which * Manual for Courts Martial U. S. Army, 1928, Page 10. the commander of the British destroyer Cossack received for setting free the prisoners of the Altmark in spite of the incidents which occurred during this action, which were probably regretted by the British too. I had to go into those matters in order to meet the accusation that all sinkings carried out against orders were afterward sanctioned by the High Command in that no drastic steps were taken against the commanders. Especially in the field of submarine warfare compliance with orders issued was insured by the continuous personal contact of the commanders with their commanding officer. Upon conclusion of every enemy operation an oral report had to be made, and all measures taken were subjected to sharp criticism, while instructions were given at the same time for future behavior. The German submarines undertook many thousands of combat operations during this war. In the course of these, orders issued were violated only in very rare instances. If one considers how difficult it is for a submarine to establish its exact position and the boundaries of an operational area, and to distinguish an armed from an unarmed ship, a passenger ship from a troop transport, or a neutral from an enemy ship, the low number of sinkings considered unjustified by the Germans, too, must be taken as proof of an especially effective and conscientious leadership.
FLOTTENRICHTER KRANZBUEHLER: After this discussion of the factual development of German submarine warfare, I still have to deal with the accusations built up by the Prosecution from certain preparatory deliberations on the subject of the organization of submarine warfare. Simultaneously with the combat instructions of 3 September 1939, whereby German submarines were ordered to adhere in their operations strictly to the Prize Ordinance, an order was prepared in the Naval Operations Staff decreeing action without warning in case the enemy merchantmen were armed. In addition to this, during the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones. The Prosecution looks upon these two documents as proof of the intention to conduct a war contrary to international law from the very start. I, on the other hand, regard these same documents as proof of the fact that the Naval Operations Staff was fully unprepared for a war with England, and that it was only when the British had already declared-war that they began to set about thinking in the most elementary manner on how such a war should be conducted. Since neither surprise attacks on armed merchant vessels nor the declaration of prohibited zones violate international law, a belligerent might well be allowed to consider after the outbreak of war if and when he wants to make use of these opportunities. As we know from the aforementioned of the British Admiralty, as early as 1938 a thorough study of all the possibilities resulting from the war upon commercial shipping had been made and elaborated for practical purposes. This same standpoint holds good also for the memorandum of the Naval Operations Staff of 15 October 1939, which has been quoted several times by the Prosecution.
FLOTTENRICHTER KRANZBUEHLER: Its very heading shows that it is a study: "Possibilities for the Intensification of Naval Warfare." In accordance with the heading, the memorandum provides an examination of the military demands for effective naval warfare against England, and of the legal possibilities for fulfilling these demands. The result was the order of 17 October 1939, decreeing the immediate use of arms against all enemy merchant vessels, since, as we have already shown, they had been armed and incorporated into the military system. Further intensifying measures were for the time being recognized as not yet justified, and the suggestion was made to wait and see what the further conduct of the enemy would be. One sentence in this memorandum arouses special suspicion on the part of the Prosecution. It says that naval warfare must, as a matter of principle, be kept within the framework of existing international law. However, measures which might result in successes decisive for the war would have to be taken even if new laws of naval warfare were created thereby. Does this really constitute a renunciation of international law? Quite the contrary. A departure from existing international law is made dependent only on two quite limited conditions: (1) A military one, namely, that measures are involved which are of decisive importance for the outcome of the war, that is, also of importance in shortening the war;* (2) a moral one, namely, the nature of the new measures makes them suitable for incorporation into the new international law. The memorandum itself states that this would be possible only within the framework of the laws of military combat ethics and a demand is therefore made for rigid adherence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating new international laws. · In this connection I mention the extensive literature dealing with the right of self-preservation in cases of urgent necessity.
FLOTTENRICHTER KRANZBUEHLER: The surprise attack on the Danish fleet, 1807, as well as the hunger blockade against Germany are based on that The well-known expert on international law, Baron von Freytagh-Loringhoven says, and I quote: ". . . always been war which has given its strongest impulses to international law. Sometimes they have been of a positive, sometimes of a negative nature. They have led to further development of already existing institutions and norms, to the creation of new forms or the reversion to old ones, and not infrequently also to failures."* Especially in this Trial, which itself is supposed to serve the development of new international law, the possibility of such a development cannot be denied.
THE PRESIDENT: We will adjourn. [A recess was taken.]
THE PRESIDENT: The Tribunal will not sit in open session after 1 o'clock tomorrow, Wednesday; it will sit in closed session during the afternoon. The Tribunal will not sit in open session on Saturday; it will sit in closed session on Saturday morning.
FLOTTENRICHTER KRANZBUEHLER: Before the recess I was speaking about the possibilities of development of naval law. The American prosecutor, Justice Robert Jackson, in his report to the President of the United States with regard to this problem, expressed his opinions as follows, and I quote:** "International law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in international law are brought about by the action of governments, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations." These words carry a full justification of the clause objected to by the Prosecution in the memorandum of the Naval Operations Staff'. And the fact that the Allies also deemed war-deciding measures to be justified even though they were contradictory to hitherto valid concepts of international law is proved by the use of the atomic bomb against Japanese cities. Since I am interested in justifying the actual measures taken by the Naval Command in Germany, I have not dealt with the point as to which one of the two admirals accused carried greater or lesser * Freiherr van Freytagh-Loringhoven, Volkerrechtliche Neubi1dungenim Rriege, Hamburg 1941, Page 5. ·' Quoted from "Neue Auslese," 1946, Number 1, Page 16. responsibility for one or another. As a formal basis in nearly all cases a Fuehrer decree exists. Both admirals, however, stated here that they considered themselves fully responsible for all orders of naval war which they gave or transmitted. I should like to add to that only two remarks. As far as political considerations were decisive for orders of the U-boat war, the Commander-in-Chief of the Navy had no influence on them. The Commander of U-boats had not been notified of such considerations any more than of the political settlement of incidents which arose through U-boats.