and accurate explanation regarding where and when this information was given. I, personally, only received the information -- and I think Reichsmarshall Goering has talked about it -- according to which the Fuehrer was upset because our western front wasn't holding. It was so because these people liked to become American and English prisoners of war; and that was the cause of the whole affair, and that was the original information which I've received. As far as these records, compiled by an officer or some officers whom I don't know, is something I can't talk about. He could tell you in more detail how these things happened. I can't tell you any more than that under my oath. It was my thought that the renunciation of the Geneva Convention was in principle a great mistake and was wrong. My feelings regarding the treatment of prisoners of war is something I've just mentioned and everything else is wrong. against you as 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 suggest is the effect of the last sentence, especially when read with these words in the first paragraph.
A I beg your pardon, but may I say one more word? If you introduce measures against inclinations to run over to the enemy, and if you introduce measures which would have a scaring-off value, then any secret background to the matter is perfectly all right; it is something I've never thought of. To the contrary, it was my own thought in my considerations: "How can one leave the Geneva Convention?" And that's 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: put up to 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?
to the German Foreign Office? a memorandum of that kind, if it was ever made.
Q Now, I want you to try and remember because it's 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 don't know. I cannot remember that the naval warfare command ever told me about such a letter to the Foreign Office. I don't believe they did; I can't say. at the letter.
My Lord, this is document D-851 and it will become Exhibit No. GB-451. 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's signed by A lbrecht 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 regard ding the prosecution of economic warfare;
"b. a military operation of this kind could not be justified on the basic the hitherto generally accepted principles of international law."
informed you before these data were submitted to the Foreign Office? randum of the Chief of the Operational Department to the Secretary of State, that is to say, a negotiation between Berlin and the Foreign Office in which the from commander, who was at the coast and was in charge of the U-boats, was not partic pating.
I don't know that letter. gining of the war without knowing that this was the view of the Naval High Command
A I did not have any knowledge of this letter. I have said already that my knowledge of it -
THE PRESIDENT(Interposing): That wasn't an answer to the question. The quation was whether you knew at the time that this was the view of the Naval High Command.
A No, I did not know that. I knew about the opinion of the Naval High Command, that step by step it tended to act according to the measures of the enemy. That I knew.
Q But you see, that is the entire difference, Defendant. That is what you said at great lengthin 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 didn't 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? I don't even know whether that was the view of Admiral Raeder. I don't know that.
Q Well, again I don't want to argue with you, but if the Commander in Chief of the Navy -- and I think at that time he called himself Chief of the Naval 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 porward 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 of ficer to put forward that view to the Foreign Office unless he held it, would he
A I ask you to question the Commander of the Navy, Raeder. I could not give any information as to how this letter was written I don't know it. moment, you see, I have got to question you on the matters that you put forward and my next question is: dum that the U-boat command disregarded from the start the London Treaty about warning ships?
A No, on the contrary, quite on the contrary. In the West we wanted to avoid any more severe measures, and we attempted, as long as it was possible, to fight according to the London Agreement. That can be seen from all the directive 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 center of England speels 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 favor 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."
BY SIR DAVID MAXWELL FYFE: at on considerations of foreign politics? Did you hear anything about that? 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 FYFE:
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 subject.
"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 crow 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." to you upon it. English document book -- it is either page 50 or 51 in the German document bookwhere there are some figures set out.
Have you got the page?
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 this 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." ships where any measures had been taken for the safety of the crew, and secondly, it excludes convoy ships. without warning in the first year of the war?
A Yes. These figures cannot be checked. Yesterday I stated that on the basis of the use of arms by the ships, we had to take other measures legally. So I cannot check whetherin this report, which for other reasons looks propagandistic to me, that attitude of the crews and the resistance forces is taken into consideration. That is to say, the basis or checking of these figures is impossible for me. armament and on the basis of the messages and the use of these ships as members of the information system, it was legal, and that now, without warning, action would be taken against these ships. nations acted accordingly.
Q I am going to ask you some questions about that, but let's 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 sinking of an auxiliary cruiser without warning is quite legal. I have also stated already that after thorough examinationof the case, I expected more care of the commander, and that is why he was punished. 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? treated according to the Prize Ordinance. If it does not, then the submarine has to proceed to the attack. That is legal and right according to International Law, and it was no different from what happened to German cruisers.
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? war, and in other cases during the war suffering exists.
Q Do you view with pride of achieve ment the fact that thirty-five thousand British merchant seamen lost their lives during the war?
Do you view it as a proud achievement or do you view it with regret?
A Men are killed during wars. Nobody is proud of that; that is the wrong explanation. It is a necessity, a harsh necessity of warfare. page 58 in theGerman, whichever you care to look at. It is document C-191, 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-beats, especially at night. In practice, there is no opportunity for attacking at night, as the U-boat cannot identify 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 unspoken approval of the Naval War Staff. U-boat commanders would be informed by word of mouth..." and not e 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." 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? if the Tribunal rule otherwise, and then you can give your explanation. My question is this: Do youconsider 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?
certain area of operation, the ocean area where British troop transports went from England to France --
THE PRESIDENT: Defendant, you will answer the question, please.
THE WITNESS: I did not understand. BY SIR DAVID MAXWELL FYFE: 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? risk to be taken for a warship, because during the night it is not possible to distinguish between a merchant ship and a warship and during that time, when our order was issued, that was an operational area where troop transports went from England to France, which were sailing without lights. 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?
Q Why didn't the defendant von Ribbentrop and all these naval advisors 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? Germany practically adhered to that Treaty, as I know, as Flag Officer U-boats, as I know very well, until counter measures were taken and then I received the orders to act accordingly. perhaps a little more on some other points. Why was this action to be based on the unspoken approval of the Naval war Staff? Why hadn't the Naval War Staff the courage to speak its approval in an ordinary order if it was all right? record made by a young man in the naval command. In fact, that is to say, it is the idea of that particular officer in the naval command, such as I have pointed out here, I did not know about the matters. As a matter of fact, the naval war command never issued an order of that kind to me; this is novel, this is 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 unspoken approval of the naval warstaff, so that the naval war staff could say, as you have said now, "We didn't issue an order," and the junior officers would be acting on an unspoken word, and I want to know -- You have been Commander in Chief of the German Navy -- why is it done in this way, why is it done by unspoken words on oral orders?
A No, that is not correct. That was an idea of that young officer. The order which I received from the Naval Warfare Command stated explicitly that in this area, primarily English transports from England to France would sail and that in this area, ships without lights could be sunk -- period.!. That is all. No further things which are stated here in the memorandum that is to say, without doubt, even the chief of that department -- but certainly the chief of the Naval Warfare Command had refused that quite unnecessary idea because that was a legal proceeding and gave me a short and clear order.
points, unspoken approval of the 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? Is that the way, is that the state of efficiency of the staff of the German navy?
A No, that was misunderstood. It has been corrected. That is an entry made on the day before by the officer in the Naval Warfare Command, and his superiors in the Naval Warfare Command did not confirm it. It was corrected. It was no unspoken agreement but an open and clear order to me, so in the Naval Warfare Command already, that idea of that young officer has been rejected.
Q You know that the original is initialed by Admiral von Friedeborg?
A No, that is wrong, that is impossible. It says there "SSG". That means Fraesdorf, not Friedeborg. That wasthe Kapitaenleutnant Fraesdorf. He was the officer in theNaval Warfare Command and not Friedeborg. He was a young officer and in the first department of the Naval Warfare Command, those are things about which I found out here, who made and wrote that memorandum; andhis chief of department, Admiral Wagner, rejected it already, so it was not Friedeborg but Fraesdorf. That is the way he thought about it, this young officer, but in fact, I received orders, the clear definite order concerning that area of troop transports.
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 taking the records after you have sunk a ship?
A No, and it was not done. That also belongs to the imagination, the ideas of that officer; never an order has been given accordingly. The order of the Naval Warfare Command in that connection exists and that is the clear and concise order, without these things, as I mentioned, in here. 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, un spoken approval, oral instructions to commanders, and faking the orders?
You say that these existed only in the mind of a Kapitaenleutnant? Is that what you are telling the Tribunal?
by the Naval War Command to me, whole these things were not included. And, quite as clearly, I gave my orders to the submarines where all these points are not included. That is what it is, this memorandum, and these thoughts of that officer were already disapproved by his chief of department in Berlin. order to the submarines, and there was nothing in there about war diary and all these things mentioned here. That order is available. It can be seen. where this Kapitaenleutnant got hold of these ideas, is that so, or whether he made them out? Is that what you are telling us, that Wagner willbe able to deal with this, will he? was in his department in Berlin.
Q I see. Well, if you put that on to the Kapitaenleutnant, let's pass on to another point. in mid-November -
A (interposing) I am not accusing anybody of anything, but they are thoughts of a young officer which were already disapproved by his chief of department. 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 gun fire 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.
BY SIR DAVID MAXWELL-FYFE:
the warning, that you would sink merchant ships, if armed, made no difference warning. the order for 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? makes use of it. It would have been a unilateral obligation if that submarine, in a suicidal way, would wait until the other one fired the first shot. That is a two-sided thing that one cannot expect, that under any circumstances the submarine waits until it gets the first hit. And, as I have stated before, practically as soon as the steamers got within reach they used their guns. known in the last War. It was well known for 20 years before this Treaty was signed. And you will agree with me, won't you, that there is not a word i n 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 can't 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 against the Treaty. I am no international lawyer. I am just a soldier; and I acted according to my military orders. Of course it is suicide for a submarine if it waits until it receives the first hit. That is a matter of course, that the steamer is not carrying guns for the fun of it, but to make use of then.
And in what way use was made of then I have already explained. in view of your evidence. resistance? Did you consider that the use of wireless for merchant ships was active resistance within the Treaty?
Q (interposing) No, no, just answer the question first, Defendant, and then give your explanation. I said that to you quite 20 times yesterday and today. Did you consider the use of wireless by merchant ships as active resistance? merchantman who uses the radio when it is stopped for messages can be attacke by arms. That can be found also in the French Ordinance, for instance. used this interpretation. Only at the end of September when I received a definite order or permission to do so, then that absolutely legal rule according to international law was put into effect.
Q Tell me, didn't the German Admiralty know in 1936 that most merchantmen had wireless? international law--that I happen to know, because thatwas as a footnote in the Prize Ordinance--according to that conference of 1923, they were not permitted to make use of it when they were stopped. That is international law.
Q I see. Well, I am very glad to learn -
A (Interposing) And that can be soon in all instructions. I know for sure that the French instructions were accordingly. Office did not make any mention of use of wireless in this Treaty. you were not bothering about this Treaty at all in any case where it didn't suit you in the operations in this war.
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 lot'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." to another as war ships, 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 in the North Sea, a tanker going from one neutral port to another.
A Yes. The submarine commander in this case could not know or could not see that the ship wont from one neutral port to the other.
A (Interposing) No, not for that reason, no. But that ship was on course to England, and he confused that ship with an enemy ship, with an English ship, and that is why he torpedoed it. I know of that case.
Q You approve of that action by the submarine commander?
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 your assertion. And if in my clean U-boat warfare of five and a half years you can find one or two instances of confusion, this does not prove anything and certainly contradicts your assertion.
Q Yes. Well, now, lot's look at your clean U-boat warfare if you want Will you turn to page 30 of the English book? U-boat warfare. You say that on directive of the Armed Forces High Command of 30 December--this is on the 1st of January 1940--the Fuehrer on 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 U.S.A."
SIR DAVID MAXWELL FYFE: There is a mistake, My Lord, in the translation. You see it says "blockaded by the U.S.A. and Britain." The proper translation should be "in the zone around Britain declared barred by the U.S.A." BY SIR DAVID MAXWELLFYFE:
Q Now, Defenda,t I don't want to make any bad point, at any rate intentionally. Were you including Greek ships because you believed that most of the Greek merchant navy was on British charter, was being chartered by Britain? Was that the reason?
A. Yes. Those may have been the reasons of the Naval Warfare Command for that order, because the Greek Fleet was sailing for England. But I assumed that those were the reasons of the Naval Warfare Command.
Q. Assume that was the reason. I do not want to occupy time on the point What I want to know is this: Did that mean that any Greek ship in these waters would be sunk without warning?
A. Yes. It can be soon here that they are to be treated like enemy ships.
Q. In sum, then that means that a Greek merchantman from that on would be sunk without warning if it came into the zone around the British coast. tion of the next sentence. You say all ships may be attacked without warning.
I just want to get it clear from you. You are not suggesting that the reason of the Naval High Command was to conceal the maze of operations of the U-boats; the reason was to avoid trouble with neutrals whose good will you wanted to keep, was it not?
A. I explained that I already stated my position on that yesterday. These are matters of the political leadership which are known to me. I have looked only for the military advantage as commander of the U-boats, or military necessity, such as has been done by England in similar cases. What the political reasons may have been, I could not say.
Q. That is my whole suggestion to you, you know, Defendant, that you were acting on the military necessity stated in that memorandum of the naval command that the maximum damage to England could be achieved only with unstricted use of arms without warning. But let us just look at the next one now.
A. Those were certain areas of which the neutrals had been warned. I already stated yesterday that in English operational areas the same methods were used. If a neutral entered these areas where military actions were constantly going on and if he entered in spite of the warning that he had, then he had to run the risk of damage for doing so.
Those were the reasons which may have led the Naval Warfare Command to take these steps.
Q. As you mentioned that, I shall deal first with your areas. Your zone, which was published, was from the Faroes to Bordeaux and 500 miles west of Ireland. That is, your zone was 750,000 square miles; isn't that right? Your zone around Britain was from the Faroes to Bordeaux, and 500 miles west of Ireland?
A. Yes, that is the operational area of August, 1940.
Q. Yes, of August, 1940.
A. And it is quite in accord with the so-called combat zone, the entry into which America prohibited to her merchant ships.
Q. You say it is in accord. Let us just look at it and see what the two things were. The United States at that time said that its merchant ships were not to come into that zone. You said that if any merchant ship came into that zone, 750,000 square miles in extent, none of the laws and usages of war applied, and that ship could be destroyed by any means you chose.
That was your view, was it not?
A. Yes, that is the German point of view in international law, which has also been used by other nations, that operational areas around the enemy are admissable. On the whole, I can say again that I am not a specialist in international law. I am a soldier, and I judge according to common sense. I consider it a matter of course that an ocean area, or an ocean zone, around England could not be left to the enemy without interference.
Q. I do not think you are disputing it at all; but I want to get it quite clear. It was your view that it was right that if you fixed an operational zone of that extent, any neutral ship -- and you agree that it is a neutral ship -- coming unarmed into that zone could be destroyed by any means that you cared to use?