NUREMBERG PAPERS m / 7 Q - No. 4. 23rd Novembor.1946.

UNITED NATIONS WAR HRTMRH (YMfrflflTnw|

Soft Waj^orc In the Hurogfoorg

By Egon Sohwolb. Logoi Offioor.

COKTBWTfi.

It Sea Warfare In the Charter and in the Indictment» , II. Crimeb comitted on the High Scaa in the General Peart af tho Judgment. i n . The Defendant Edo nit 2. Hie alleged implication in the cannon plan and conspiracy and his part in the crime against peace* IV. Doenitz. His indication in n r crimes. V. Analysis of the Judgment against Doenitz. VI. Doenitz' responsibility for the application of unrestricted submarine warfare In its application to British armod merchant ships* VII. Doonitz' responsibility for the proclamation of operational zones and tho application of unrestricted stfbmarine warfare by sinking neutral merchant vessels» VIII. ftie allegation that Doe nits deliberately ordered the killing of survivors of ship-wrooked vessels* IX. • Disregard of the Hesons Provisions, X. Doonitz1 responsibility for tho Caanando Order, for tho use of concentration oamp labour, and for violations of tho Prisoner of Tfcr Convention. XI. An attompt at establishing the principles on whioh the Court acted. XU. Reeder, His Implication In crimes against peace. XIn. Rooter. His implication in war crimes. XIV. Attempt at a sumAjy of tho Tribunal's opinion,.

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- 2 - I. Sea Warfare in the Charter and In tho Indictment.

The Charter of the International Military Tribunal mention* warfare' at sea in its Article 6(b) only by saying that violations of the laws or customs of war shall include, but not be limited to, murder or ill- treatment of persons on the seas.

The Indictment also doss not go into detail when dealing with war crimsB ooaodtted on tho High Seas. In Count “murder and ill-* treatment of civilian populations of or in occupied territory or on the high ^ seas" is contained under the heading "A” (page 34 of Coenand Paper

The Indlotment sqrs of tho dofondant Boeder that he authorised, directed and participated in tho war crimes sot forth in Count 3, including particularly war crimes arising out of soa warfare, (p.40 of Canaond Paper 6696).

The defendant Doonitz 1b charged in tho Indictment with havic« authorized, dhootcd and porticipatod in tho war crimes set forth in Count 3 of tho Indictment particularly crimes against persons and property on the high soaifrtidUfcidl*», «.... _ II. Crinos committed on the High Soas In tho General Etart of tho Judgment.

The General part of the Judgment dooo not contain specific observations oli war crinos cocrdttod on tho high seas. The Judgment refers on pp.16887 and 16925 to the text of Art.6(b) of the Charter which has boen quoted in paragraph I of this paper; The Tribunal's opinion on questions of sea warfare is therefore only to be found in tho Judgment on the dofendants Doonitz, (pp.17023 et seq), and Boeder, (pp. 17031 et seq). III. The defendant Doonitz. His alleged implication in the coupon plan and conspiracy and his part in the crime against peace.

Doonitz was indicted on Counts 1 (conspiracy), 2 (crimes against poaco) and 3 (war crimes). Tho Tribunal found him not guilt? on Q Count 1 of the Indictment and guilty of Counts 2 and 3* With regard to his allegod responsibility for the oaamon plan and conspiracy and with regard to his part in.tho crime against peace, the Tribunal otatod on p«17023: n Although Doonitz built and trained tho German U-Boat ana, the evidence does not show ho was privy to the conspiracy to wage aggres­ sive wars or that he prepared and initiated such tots. He was a lino officer performing strictly tactical dutios. He tos not present at tho important conferences when plans for aggressive wars were announced, and thero is no evidence he m s informed about the decisions roached thore, Doonitz’¿idydMfflSVoi^TOgo aggro s s ivo w o r slthi n t he meaning of that word os usod by the Chartoi?****^ubiflOTW 'JOTftrrf'wffch began taodiatoly upon tho outbroak of war, was fully co-ordinated with tho othor branches of tho Wohrmocht. ‘ It 1b cloar that his U-boats, few in number at tho time, wore fully prepared to wago war. It is true that until his appointment in January 1943» as Canmander-in-Chief ho was not an n0berbofohlshabor". But this statemnt underestimates tho importance of Doonitz* position. no was no more Arry or division coranandor. Tho U-boat arm was the principle part of tho German floot and Doonitz was its leader. The Hi#i Seas fleet made a few miner, if spectacular, raids during tho early

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.1 years of tho war but tho real damage to the enony v/as dono almost exclusively by his submarines asthefcillionsaf tons of allied and neutral shipping sunk wi,ll tostify, Doenits was sololy In ohasge of this warfare, ; ®ho Naval War Oocuaond reserved for itself only the deoision as to the nunber of submarines in eaoh area, . Zn the invasion of Norway, for example, Doenitz made reocnaendations in October 1939 as to submarine bases, which he claims ware no more than & staff study, and in iioroh 1940, he made out the operational orders for tho supporting U-boats, as discussed elsewhere in this Judgment, Shat his importance to the German war effort was so regarded is eloquently proved by Raeder's reccnmendation of Doenitz as his sucoesoor and his appointment by Hitler on 30 January 1943 as Coranander-in-Chief of the Navy, Hitlpr too, knew that submarine warfare wcus the essential part of Germany’s naval warfare.

From January 1943» Doenitz was consulted almost continuously by Hitler, Hie evidence was that they conferred on naval problems about 120 times during the courso of tho war. As late as April 1945 when he admits he knew the struggle was hopeless, Doonitz as its Canoander-in-Chiof urged the Navy to continue its fight. On 1 May 1945 he became tho Head cf State and as such orderod tho Wohnaacht to continue its war in the East, until capitulation on 9 Hay 1945« Doonitz oxplainod that his reason for “those orders was to insure that the German c ivilian population might be evacuated and the Arny might make an orderly retreat frcn the East, In the view of tho Tribunal, the ovidenoo shows that Doonitz was active in waging aggressive war, " IV, Doenitz. His implication in war crlnes, The following is said with regard to Doenitz1 port in the canals si on of war crimes* " Doenitz is charged with waging unrestricted submarine warfare contrary to the Naval Protocol of 1936, to which Germany acceded, end which reaffirmed the rules of submarine warfare laid down in the London Naval Agreement of 1930# The prosecution has submitted that on 3 September 1939, the German* U-boat arm began to wage unrestricted submarine warfare upon all merchant ships, whether enocy ar neutral, cynically disregarding tho R*otocol; and that a calculator effort was made throughout the war to disguido this practice by making hypocritical references to international law and • supposed violations by tho Allies, Doonitz insists that at all ttos the Navy remainod within tho confines of international law and of tho Protocol, He tostiflod that when the war began, the guide to submarine warfare was the Gorman Prize Ordinal»ce taken almost literally from tho Protocol, that pursuant to th~ German view, ho ordered submarines to attack all merchant ships in convoy, and ail that rofusod to stop or used their radio upon sighting a submarine. When his roports indicated that British merchant ships wore being used to give information by wireless, were boing armed and wore attacking submarines on sight, ho ordered his submarines on 17 October 1939 to attack all enony merchant ships without warning on the ground that resistanoo was to be oxpoctod. Orders already had been issued on 21 September 1939 to attack.all ships, including neutrals, sailing at night without lights in tho English Channel*

PURL: https://www.legal-tools.org/doc/8758d0/ On 24th November 1939, the, German Government issued a warning to neutral shipping that, owing to the frequent engagements taking place in the waters around the British Isles and the French Coast between U-boat3 and Allied merchant ships which «ere armed and had instructions to use those aims as «ell as to ram U-boats, the safety of neutral ships in those mters could no longer be . taken for granted* On the first of January, 1940, the German U-boat canmand, acting on tho instruc­ tions of Hitler, ordered U-boats to attack all Greek merchant ships in the zone surrounding the British Isles which «as banned by the United States to its own ships and also merchant ships of every nationality in the limited area of the Bristol Channel* Five days later a further order was given to U-boats to "make immediately unrestricted use of weapons against all ships" in an area of the North Sea, tho limits of which «ere defined. Finally on the 18th January, 1940, the U-boatn were authorized to sink, without warning, all ships "in • thoso waters near the eneny coasts in which the uso of mines can bo protended". Exooptions wore to bo made in tho cases of Uni tod States, Italian, Japanese and Soviet ships. o Shortly after tho outbreak of war tho British Admiralty, in accordance with tho Handbook of Instructions of 1938 to the merchant navy, aimed its merchant vossols, in many cases convqyed them with armed escort, gave orders to sond position roports upon sighting submarines, thus integrating merchant vessols into tho warning network of naval intelligence. On 1st Octobor 1939, the British Admiralty announced British merchant ships had boon ardorod to ram U-boats if possible. In the actual circumstancos of this case, tho Tribunal is not prepared to hold Doonitz guilty for his conduct af siibmarino warfaro against British armed merchant ships. Howover, tho proclamation of operational zonos and the sinking of neutral merchant vossols which ontor those zones presents a different . question. This practico was omplqyod in tho War of 1914-1918 by Germany and adopted in retaliation by Great Britain. Tho TTashington conference of 1922, the London Naval Agrdomont of 1930 and the Protocol of 1936 were entered into w ith full knowledge that such zonos had been employed In tho First World War. Yot tho Protocol mado no cxcoption for operational zonos* Tho order of Doonitz to sink neutral ships without warning whon found within thoso zones was, thoroforo, in the opinion of tho Tribunal, a violation of tho Protocol* It is also assorted that tho Gorman U-boat ana not only did not carry out tho warning and resouo provisions of tho Krotoool but that Doenitz deliberately ordered the killing of survivors of shipwrockod vossols, iftiethor enony or neutral. The prosecution has introduced munh ovidenco surrounding two orders of Doenitz, War Order No.154, *. issued in 1939» and the so-called "Laconia" ardor of 191*2* Dio dofonoe argues that those orders and the ovidcnoe supporting thorn do not show such a polioy and introduced much ovidenco to the contrary. Tho Tribunal Is of tho opinion that tho ovidenco doos not establish with the certainty required that Dconitz deliberately ordered tho killing of shipwrecked survivors. Tho orders woro undoubtedly arfciguous, and dosurvo tho strongost oonsure.

The ovidenco furthor shows that tho rescue provisions wore not carried out and that tho dofondant ordered that they should not be carriod out* The argument of the tofonco is that tho socurity of tho submarine is, as tho first rule of tho sea, paramount to rcscuo and that the development of aircraft mado roscuo impossiblo. This :aoy be so, but tho Protocol is oxplicit. If tho cor-.-aandcr cannot rescue,

PURL: https://www.legal-tools.org/doc/8758d0/ then under its torms ho. cannot sink a merchant vossol and should allow it tp pass harmless before his periscope* Those ardors, then, prove Doe nits Is guilty of a violations the Protocol. In view of all of tho facts proved and In particular of an order of the British Admiralty announced on tho 8 May 1940, according to which all vessels should be sunk at night in ’the Skagerrak, nnfl the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by 1to United States from the first day that nation entered the war, the sentence of Doenitz is not assessed on the ground of his breaches of the international lav/ of submarine warfaro,

Doenitz was also charged with responsibility for Hitler's Gbonondo Order of 18 October 1942# Doenitz admitted he received and knew of the order *hon ho was Flag Officer of U-boats, but disclaimed responsibility. He points out that tho order by its express torms jxcluded men captured in naval warfare, that the Navy had no territorial ccraoands on land, and that submarlno cccmanders would never encounter cocxaandos. In one instanco, vjhen he was Commandor-in-Chief of the Navy, In 1943, the menfcers of an allied motor torpedo boat wore captured by German Naval Forces, They w re Interrogated far intelligence purposes on behalf of tho local admiral, and then turned over by his order to the SDand shot« Doenitz said that if they were captured by tho Navy their execution was a violation of the oosmando order, that tho execution was not announced In the Wohrmaoht communique, and that he was never informed of the incident. He pointed out that the admiral in. question was not in his chain af command, but was subordinate to the a n y general in coomond of the Norway occupation. But Doenitz permitted tho order to reran!n in full foroe when ho became connander-in-ohicf, and to that extent ho is responsible« In a conference af 11 Decembor 1944» Doenitz said: "12,000 concentra­ tion camp prisoners will be employed in tho shipyards as additional labour," At this time, Doenitz had no jurisdiction over shipyard construction, and claims that this was merely a suggestion at tho meeting that the responsible officials do somethin about the production of ships, that he took no steps to got the so workers since it was not a matter for his jurisdiction and that he does not know whether they woro ever procured. He admits he knew of concentration camps* A man in his position must necessarily have known that citizons of occupied countries in large nunbors were confined in the concentration oanps. In 1945, Hitler requested tho opinion nf Jodi and Doenitz whether the Genova Convention should be denounced. The notes of the meeting between the two military leadors on 20 February 1945 show that Doenitz expressed his view that tho disadvantages of such an action outweighed tho advantages* Tho sunraary of Doonitz* attitude shown in tho notes taken by an officer, included tho following sente nee t " It would bo bettor to carry out tho measures considered necessary without warnir^, and at all costs to save face with the outer world, " Tho prosocution insisted that "the measures" referred to meant tho Convention should not be donouncod, but should be broken at will. The defence explanation is that Hitler wanted to brook the Convention far two reasons: to take away from Gorman troops tho protection of the Convention, thus preventing them from continuing to surrender in large groups to tho British and Americans; and also to permit reprisals against Allied prisoners of war bocauso of Allied bombing raids« Doenitz claims that what ho meant by "measures" woro disciplinary measuros against German troops to prevent them from surrendering, and that his w>rds had

PURL: https://www.legal-tools.org/doc/8758d0/ no reference to ssasures against the Allies; moreover that this «0« merely a suggestion, and that 1b any event, no suoh measures were ever taken, either against Allies or Germans« % e Tribunal, however, doea not beliove this explanation. The Go nova Convention w&s not, however, donounood by Germany* The defenoe has Introduced several affidavits to prove that British naval prisoners of war in coups under Doenitz' juris diction were treated Strlotly according to the Convention, and the Tribunal takea this foot into consideration, regarding it as a mitigating circumstance, ** V, Analysis of -the Judgment agalnat Doonitz. .

(Freon the text as roproduoed in paragraphs m and 17 of this paper, it appears that Doenitz was acquitted of the charge of being a partici­ pant In the criminal conspiracy to wage aggressive war (Count 1) and that he was also found not guilty of having planned, prepared or initiated aggressive war« His implication in the crime against peace waa only his part in the waging of a war of aggression for the initiation of vihich he has not been Tounc responsible, ^

Vlth respect to Doenitz* implication in war crises, we oust d is tin- w guish the following different questions dealt with in the Judgment, (a) The unrestricted submarine warfare In its application 1o British armed merchant ships. Ho re Docnltz was found not guilty« (see below, * paragraph M, ) (b) The proclamation of operational zones and the application of unres­ tricted submarine warfare by sinldng neutral merchant vessels« Here Doe nit z was found guilty, but no punishment was awarded for this offence, (Soe below, paragraphVH),

(o) She allegation that Dbenitz deliberately ordered the killing of survivors. of ship-wreoked vessels. Here Doonitz was found not guilty, (See below, paragraph VHl). i i+x.r*** . . . # (d) The disregard of resoue provisions« Here Doenitz was found guilty but no punishment was awarded for this offonoe, (See below, paragraph IX)^ (e) Doonitz1 responsibility for Hitler's Conmnndo Order of 18th October w 19if2. , / (f) Doonitz* implication in the use of oonoentration camp labour, (g) Doonitz* responsibility for violations of the Rriaoner of War Convention, With roapoot to tho facts under (e), (f) and (g), ifoich have no bearing on the law of sea warfare, Doonitz was found guilty in a more • or loss remote way« VI. Doonitz responsibility for the application of unrestricted Submarine warfare in its application to British armed merchant ships,

Oppenhoin-Lauturpaoht say, in "International Law", 6th (revisod) Edition, lSUk9 Volume 2, paragraph 181(a), on pp«362 et seq., on defensively anaed merchant vessels, the following: •" ... '<■ • n In 1913 the British Admiralty announced that in tho event of war it was their intention to supply British merchant vessels with guns and ammunition for the purpose of defending themselves, thus reviving the former practice by which merchant veBsels always carried defensive armament. In maldng that announce mo nt the British Government insisted

PURL: https://www.legal-tools.org/doc/8758d0/ on the cloor distinction between converted. armed merchant cruisers and dofonaivoly armed morchantmoo, She methods of oubnaiiuo warfare adopted by tho Central Powers in the World War oalled for the execution of this policy, and accordingly it became the practice of tho Allied Powers in that war to arm their merchant vessels defensively, and so onable them more offootively to exercise their right, as above stated, of resisting attack by force. . An'overwhelming weight of authority recognised that thoir defensive armnmont in no way altered the legal status of these vessels*

At “the Borne time, it is dear that the arming of merchant vessels raises problems of substantial difficulty# In the first place, it is not easy to draw a lino of distinction between defensive and offensive acts« Secondly, tho encouragement of even defensive hostilities on the part of private vessels is frought with danger inasmuch as it threatens to undermine the abolition of privateering by the Declaration of Paris of 1856 between coEB&ssioned and non-cooaissionod vessels* thirdly, the fact that a merchantman is armed and that she is entitled to resist actual or anticipated attack maloos it impossible for enecy submarines to exorcise their right of visit and capture in accordance with International Law without running the risk af destruction by the superior armament of the merchant vessel or by being rasmed by her« It has boon rightly suggested that the obvious consequence of the inability of submarines to exorolBc tho oustomary rights of visit and capture in relation to defensively armed merchantmen in accordance with International Law is abstention from activities prohibited by the law« She novelty of a weapon does not by itself cany with it a legitimate claim to a change in the existing rules of war« The same principle applies with regard to capture and attack by aircraft in relation to morchantiaan. " As statod by Oppenhoim-Lautorpacht, "an overwhelming weight of authority recognized that tho defensive armaments of merchant vessels in no way altered their legal status"« Xt. appears that the Tribunal did not follow this weight of authority, and prooeoded on tho basis that the British merchantman which were armed or which were convoyed ' . with armod escort or which had received orders to send position reports upon-sighting submarines, and had thus been integrated into the network of Naval Intelligence^ and had been ordered to ram U-boats if possible, had thereby lost thoir status as merchantmen and did not partake of. the protection afforded by customary and conventional International Low to merchant vessels, their passengers, crews and papers. The controversy which existod on this point appears to have been solved by the Tribunal in favour of tho greater freedom of action af submarines*

Doenltz was accordingly found not guilty for his conduct of submarine warfare against British armed merchant ships* VIL Doenltz1 responsibility for the tnroolamatlon af operational zones and tho application of unrestricted submarine warfare by sinking neutral" merchant vessels« She Tribunal pointed out that the proclamation of operational zones and the winking of neutral merchant vessels which entered those zones, presented a question different from fie conduct af submarine warfare against British (i*e. from the German point cf view, enemy) armed merchant ships* The Tribunal rooalled that this practice was employed in the war of 1914-1918 "by Gorraaay, and adopted in retaliation by Great Britain. It referred to three international documents which must now be examined in greater detail:

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if! ' -8- M ^ho Washington Treaty of 6th February 1922 (Ccanand Paper 1627).

w The International Treaty tat the Limitation and Reduotion of Nacral Armaments, dated London 22nd April 1930, (Command Paper 3758), (o)The London Protocol relating to the Rules of Submarine Warfare of 6th November 1936, (Command Paper 5302)» (a), The laahington Treaty,

The Washington Treaty which was signed by the United States of America, the British &npire, France, Italy and Japan, but never ratified, was concluded in the desire "to make more effective the rules adopted by civilised nations for the protection of the lives of neutrals and non- oonfcatantB at sea, at time of war,”

Die abortive Treaty oontained, inter alia, the following provisions: " Article I. ^-'1 "*# . **:ri -*•'*!< O Die Signatory Powers declare that among the rules adopted by n- civilised nations for the protection of the lives of neutrals and non- oonbatanta at aea in. timo of war, the following are to be deemed an established part of international law:-

1, A merchant vessel must be ordered to submit'to visit* and -search to determine its charaoter before it oan be seised, A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning, or to proceed as directed after seizure, A merchant Vessel must not be destroyed unless the crew and ->**sec3ers have been first placed in safety« 2, Belligerent submarines are not under any oirotmstanoes exenpt from the univorsal rules above stated; and if a submarine cannot capture a merchant vessel in oonfoxmity with these rules the existing law ct nations requires it to desist from attack and from seizure and to permit tho merchant vessel to proceed unmolested, Artiole H . The Signatory Powers invite all other civilized Powers to express their assent to t ho foregoing statement of established law so that there may bo a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents, Artiole HI. The Signatory Powers, desiring to ensure the enfcroomcnt of the humzxio rules of existing law declared by them with respect to attacks upon and the seizure and destruction cf merchant ships, further deolarc that any person in the service of any Powor who shall violate any of those rules, whother or not such person is under orders of a govern­ mental superior, s hall bo deemed to have violated the laws of war and shall be liable to trial and punishment sb if for on act of piracy and may bo brought to trial before the civil or military authorities of any powor -within the jurisdiction of which he may be found.

PURL: https://www.legal-tools.org/doc/8758d0/ Article IV.

3ho Signatory Powers reoogniao the practical impossibility of uaing submarines as commerce destroyers without violating, aa they were violated in the rooent war of 1914-1918» the requirements universally accepted by civilised nations fir the protection of the livea of neutrala c- and non-combatants, and to the end that the prohibition of the use of submarines aa cconerce destroyers shall be universally accepted as a part of Uie law of nations they now accept that prohibition as henceforth binding as between themselves and they invito all other nations to adhere thereto* " The work, "The International Law of the Sea”, by Higgins and Colombos contains, inter alia, in paragraph 418, the comment that the Treaty re­ affirmed a principle for whioh Great Britain and her allies stood during the late war (the war of 1914-1918), naraoly, tho maintenance of the rule of InternationalLaw forbidding tho sinking of merchant ships on sight, whether such ships be eneny or neutral, and requiring that crows and passongors be placod in safety if the vessel is destroyed owing to unavoidable circumstances. This rule had never in the past been violated by any State till the Gorman submarine campaign (of the 1914- 1918 war) began,

(b) The London Naval Treaty of 1930. The London Naval Treaty of 1930 bctweon tho United States, Great 3ritain, the British Dominions and India, France, Italy and Japan, contains in its Part IV, tho provision of Art,22 whioh reads as follows:

" Article 22, The following are accepted as established rules of International Law: (1) In their action with regard to merchant ships, submarines must conform to the rules of International Law to which surface vessels are sub ject, (2) In particular, except in tho oaae of poraiatont refusal to stop on boing duly sunmonod, or of activo resistance to visit ar searoh, a warship, whothor surface vessel or submarino, may not sink or render incapable of navigation a merchant vessol without having first placed passongors, crow 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 safoty of the passengers and crow is aaaured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board. The High Contracting Parties invite all other Powers to express thoir assent to tho sbovo rules, " 5Jiis part of tho Treaty must, as Oppenheim-Lautorpocht pointed out, bo deemed %o bo declaratory of International Law as it existed prior to its conclusion. It was laid down in Part V (Art,23) tt/xt Part IV, the text of which has just been quoted, shall remain in forco /dthout limit of time, iVccordingly, when the Treaty of 1930 was allowed to oxpire on 31st Docei/bcr 1936,* its Part IV remained binding upon the par_ties, However, with a view to enlarging tho number of States oxprossly accepting tho obligations in question, tho United States, Great Britain, the British Dominions and India, France, Italy and Japan signed, on 6th November 1936, tho Protocol incorporating verbatim tho provisions of Part IV of the 1930 Naval Treaty relating to submarines.

PURL: https://www.legal-tools.org/doc/8758d0/ (o) The London Protocol of 1936, * « • ;‘-:j >*.» v' i' i. . According to HlgglnsrColcoibos, I.e., paragraph 420, States, including Germany, Italy and Japan, had adhered to the London Protocol of 6th November 1936, by the end of August' 1959* The rules expressed in Apt.22 of the .1930 Treaty having been eafcodied in the London Protocol of 1936, constituted, therefore, immediately before the outbreak of 1fce Sooond World War, conventional international law agreed to by almost alX seafaring nations. . Mention should, in this oonnootion, also be made of the Internationa. Agreement for Oolleotive Measures against Statical Attacks in the Mediterranean by Submarines, concluded at Itycn on 14th Septenfcer 1937, (the so-called Nyon Agreomont. Cmd.5568)« In the Breanfclo to this Agreement, which oonoemed attacks by submarines against merchant vessels in tho ccurse of tho Spanish oivil war, the provisions of the Naval Treaty of 1930 and of the London Protocol of 1936 were referred to, in effeot, os declaratory of International Law« (Oppenheim-Lautorpacht, II, page 381, Note 1)« Tho.Preamble to the Uron Agreement, speaks of r > attacks which "are violations of the rules of International Lear referred^* to in Part IV of tho Treaty, of London of 22nd April 1930, with regard to the sinking of merchant ships and constitute acts contrary to the most elementary dictates of hwanity, which should be justly treated as aots of piracy. " The Tribunal proceeded on the basis of these rules forming part of valid International Low, but only as far as neutral ships wore the victims of illegal attacks« ¡Therefore the Tribunal found that the order of Doe nits to sink neutral ships without warning tfien found within the operational zones, was a violation of the Protocol* Although the Court asserted the further existence of this rule as far as neutral merchantmen were concerned, it considered them only, as it were, as a lex inmorfoota. The Tribunal found Doenitz guilty of this violation, but it stated with regard to it, that the sentence on Doenitz was not assessod on tho ground of his breaches of the International Law of submarine warfare«

VICL The allegation that Doenitz deliberately ordered tho _ killing of survivors of ship-wrecked y o b b o Is. With regard to tho assertions by the Prosecution that Doenitz deliberately ordered the killing of survivors of ship-wrecked vessels, both o no ray ana neutral, the Tribunal exprossed the opinion that the . ovldonce did not establish with the certainty required, that Doenitz deliberately ordered the killing of shipwrooked survivors. His ordors were, howovor, undoubtedly anfeiguous and deserved tho strongest censure« It appears that Doenitz was, in effect, ecquittod of this part of the . accusation, -.f* • IX. Disregard of tho Rescue Provisions. Under the London Treaty and undor tho tondon Protocol, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation, a merchant vessel without having first placed passongers,‘ crew and ship's papers in a place of safety. An exception is made only in the case of persistent rofusal to stop on boing duly summoned or of active reaistonoe to visit or searoh, *orthe purpose of this provision, the ship* b boats aro not rcgardod as a place of safety unless the safety of tho passongors and crew is assured, in oxisting sea and weather ; conditions by tho proximity of land, or tho proBenoo of another vessel whioh is in a position to take them on board.

PURL: https://www.legal-tools.org/doc/8758d0/ 3ho ovidonco allowed that tho roocuo provisions of tto London ftrotocol were not carriod out and that the defendant Doenitz ordered that they should not be carriod out. The argument of tho defonce was that the security of the submarine was, as the first rule of the sea, paramount to roscuo, and that tho development of aircraft made rescro impossible. • ( To this the Court replied that this might be so, but the Protocol was explicit. If tho commander could not rosoue, then, under its terms, ho could not sink a merchant vessel, and should allow it to pass unharmed before his porisocpo, . The opinion adoptod by the Court, is therefore in lino with what has been quoted above from Oppenheim-Lauterpacht, paragraph 181(a), which is to tho effoct that -it has been rightly suggostod that the obvious consoquencos cf tho inability of submarines to exercise tho customary rights in accordance with International Law, is abstention from aotivitios prohibited by the law". This order, tho Court continued, then proved Doonitz guilty of a violation of the Protocol. I But also with rogord to this violation by Doenitz of the rules of International Law, the Court, though it found Doenitz guilty, stated that his sentonco was not assessed on tho ground of his breaches of tho International Law of Submarino warfare. This conclusion was based on all tho facts proved and, in particular, on an order of the British Admiralty announcod on 8th May 1940, according to whioh all vessels should bo sunk on sight(*0 in tho Skegorrak and the ansvrors to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from tho first day that nation entered tho war. X. Doenitz1 responsibility for tho Commando Order for the use of Concentration Comp labour, and for violations of the Prisoner of War Convention«

Thosd charges, dealt with in the Judgment against Doonitz, do not concern tho law of 3ca warfare, and arc thoroforo outsido the scope of this paper.

XI. An attempt at establishing tho principles on which the Court acted. It will be soon that with rogord to the unrestricted submarino warfare against British armed merchant ships, (Supra, V(a) and VI), tho Tribunal came to tho conclusion that Doenitz had not coumittod an offonco at all. With regard to tho proclamation of operational zones, and tho application of unrestricted submarino warfare to neutral vessels, and with respect to the disrogard of the rescue provisions of tho London Protocol, (supra V(b) and (d) and paragraphs V H and IX), tho Tribunal found Doenitz guilty, but imposed no tontonco on him* As all those activities, both against British merchant vessels and against noutral merchant ships, were technically violations of tho laws as laid down in tho London Protocol, it is important to find out tho principle on which tho Tribunal acted when acquitting Doonitz entirely in tho case where British ships were the victims, and when abstaining from imposing the penalty where the victims wore neutral merchantmen.

(x) Tho copy of tho transcript availablo to this Secretariat says "at night”, but probably tho correct meaning is "at sight”, as contained in tho text of this paper*

PURL: https://www.legal-tools.org/doc/8758d0/ In tho caso of British armed, merchantmen, the Tribunal appears to have basod its judgment on tho consideration that In boing not only dofensively armed and convoyed by armed escort, "but having accepted ordors to send position reports upon sighting submarines and to ram U-boats if possible, the British armed merchantman had oeasod, for the purposos of naval warfaro, to be morchant ships and had be con» parts of tho British bolligeront naval forces^V As far as the second problem is conoornod, namely that tho ®«irt abstained from imposing penaltios for what it established to bo' violations of tho lavra of sea warfaro, the Tribunal referred to tho * foot thst similar procticos Uad been adoptod by the British and American navies«.

With regard to tho cdoption of similar practices by the British and American navies, tho following has boon stated by Higgins-Coloribos, paragraph 437.: * \; " In spite of her aignaturo of tho L6ndon Protocol, Germany, in « Soptombor 1939 proclaimed a Gorman naval cubmorino campaign conoentrated upon. 11 tho blockade of Engiandr, which went beyond aqjrthijjg attenptod during tho unrestricted aubmcalno warfaro of 1917-1918• ’ ,,vfhe Gorman Government had in advanco macb up its mind to rosort to an indiscriminate attack upon all shipping whatsoever and as a result had placed German submarines, in position before tho outbreak of the war. ’• I • ..... It a bleach of tho obligation to which it had solemnly subsoribod was 11.01X3 fore quite flagrant" and dcdborate, and its example was after­ wards followed by tho two other members of the ¡’Axis” alliance, Italy and Japan. As a retaliatory jaousure, Great Britain and the United States also euployed their submarines in 1942 fpr the destruction of onony merchant vosBels carrying supplies and munitions* of war, but only * after all their protost'3 against the barbarous methods adopted by their onemio8 had proved unavailing, .**

Aa the exhibits of the Nuroniborg trial, particularly tho answers to^~) intorrogatorios by Admiral Nimiiz, are not available at the present moment, it is not possible tc arrive at a final conclusion, with rogard to tlic prinoiplp on which tlia Court aotod, If tho statement by Higgins- Colombos is corroot, and Groat Britain and the United States employed their submarines for tho destruction of onony merchant vessels only after all thpir protosta against tho barbarous methods adopted by tho enony had boon Unavailing, as a retaliatory moasuro, the following problem arise a; tho adoption of measures which cthorvriLso would bo illegal, is legitimate when thoso measures aro adopted as logitimato reprisals» Tho position then is that an act done by tho 3ido which initiated tho illegal warfaro is illegal, and is, as a roprisal, not illegal when applied by the other belligerent. If, on the other hand,'tho activities by tho British and United States navi os wore not reprinoxa; but in the opinion of the Tribunal, illegitimate acts, then, in strict theory,.there was-still less reason to abstain from enforcing a penalty, Iho perpetrator of a crime A. is not oxoused by tho, fact that anothor perpetrator B has connLtted the same act. . * . ■ r • •/., ’ ' 3hin is not to imply that tho result at which tho Tribunal has arrived does .not roproscnt a just and appropriate-decision. It is, on tho contrary,- a cane whoro a disrogard for technicalities and tho avoidance of applying moroly theoretical conclusions to practical ,• factc, load to a higher justico than a mechanical application of legal principles would do.»

(*) It should be borna in mind that the viotims ware neutral vessels and- towards them at least, tho disregard of valid provisions even by both belligerents would not make an illegal act legitimate.PURL: https://www.legal-tools.org/doc/8758d0/ Mention should bo raodo in this connection of an opinion oxprussod by Professor iAUtorpacht in his ortiole "The law of nations and tho punishment of war crimes", in the British Year Book of International ¿aw, 1944, on page 77# Professor Lautorpaoht «rites: " Moreover, there is room for the view that if tho victorious belligerent has himself, in pursuanoo of reprisals; set as^Ldo international law in a particular sphere, he cannot properly malco such acts on the port of his opponent tho subject of prosecution for a war orisn, " '.

XIH Raedor. His Implication in primes agalrst peace.

The Tribunal stated with regard to Raoder(s implication in crimes against peace, the following, (p,17031): " In the 15 years ho conmanded it, Raedor built and directed the German Navy; he accepts full responsibility until rotiroment in 1943« He admits the Navy violated the Versailles Treaty, insisting it was a matter of honour for every non” to do so, and alleges that the • violations were for the most part minor, and Germany built loss than her allowable strength. Those violations, as well as those of the Anglo-German Naval Agreement of 1935, have already been discussed elsewhere in this Judgment*

Raeder received the directive of 24 Juno 1937 from von Blonfcerg requiring special preparations for war against Austria, Ho was one of the five leaders present at the Hoszbaoh Conference of 5 November 1937* Ho claims Hit la r merely wished by this conference to spur tho Army to faster rearmament, insists ho believod tho questions of Austria and Czechoslovakia would bo settled peacefully, as they were, and points to tho new naval treaty with England which had just been signed. Ho received no orders to speod construction of U-boatB, indicating that Hitler nos not planning war. Rood or received directives on "Fall Gmbh* and tho 4lr*e%ivai on •Pall Weiss* beginning with that of 3 April 1919» the latter direct®# the Navy to support the A m y by intervention fi*om the sea* He was •Iso one of the few chief leadors present at tho mooting of 23 May 1939« He attended tho Oborsalzburç tyj,efing of 22 August 19)9. The conception of the invasion of Norway first aroso in the mind of Raeder and not that of Hitler, Despite Hitler's desiro, as shown by hi8 directive of October 1939, to keep Scandinavia neutral, tho Navy examined the advantages of naval bases thero as early as October. Admiral Karls originally suggested to Raedor the désirable aspect of baseB in Norway. A questionnaire, dated 3 October 1939, which sought caaaonts on tho desirability of such baaos, was circulated within SKL, On 10 October Raeder discussed the matter with Hitler; his War Diary entry for that day says Hitler intended to give *he matter consideration. A few months later Hitler talked to Raoder, Quisling, Keitel and Jodi; OCW began its planning and the Naval War Staff nortod with CKW staff officers* Raoder received Keitel's directive tor Norway on 27 January 19J*0 and tho subsequent diroctivo of 1 March, signed by Hitler.

Raeder defends his actions on tho ground it was a move to forestall the British, It is not neoessary again to discuss this defence, which tho Tribunal have heretofore treated in some detail, concluding that Gornxmy's invasion of Noiwny and Denmark was aggressive war. In a letter to tho Navy, Boeder said: "The operations of the Navy in fie occupation of Norway will for all tirao remain the great contribution of the Navy to this war, "

PURL: https://www.legal-tools.org/doc/8758d0/ - 3 4 - Raeder received tho directivos, including tho innumoflBle post­ ponements, for the attaok in the Vast* In a mooting of IB March 1941, with Hitler, bo urged the occupation of all Qreeoo* He claims this was only after tho British had landed and Hitlor had ordered the attack, and points out the Navy had no intorcst in Groece« He rocoived Hitler*s directive on Yugoslavia* Raedor endeavoured to dissuade Hitler from onbarldng upon the invasion of the USSR* In September 1940, ho urged on Hitler an aggres­ sive Mediterranean policy as an alternative to an attaok on Russia* On 14 Noverrbor 1940, he urged the war against England "as our main enony" and that submarino and naval air forco construction be continuad He voiced "serious objections against the Russian campaign before the defeat of England?, according to tho notes of tho German Naval War Staff* He claims his objections were basod on the violation of the Non» Aggression Poot as well as strategy* But onoo the decision had been made, he gave permission six days before the invasion of tho Soviet Union to attaok Russian submarines in the Baltio Sea within a specified warning area and defends this aotion because these submarines were "snooping" on German activities« It is clear from this evidence that Raodor participated in the planning and waging of aggressive war* "

It will bo seen that as distinguished from Doe nit z, Raeder was found guilty not only of waging aggressive war, but also of participation in tho conspiracy (Count l) and in tho planning, in addition to waging, of aggressive war* (Count 2). ¿jg, Raedor. His implication in war crimes. - '******»■*."¡ ¿V«ijfjr* V VVfj'* » %r[ ' i» **,•/-■ * Raeder was also found guilty of Count 3 (War Crimes) for the reasons statod on pp*17033A» 818 follows: * * Raoder is oharged with war criaos on the high soas* The "Athenia", an unarmed British passenger liner, was sunk on 3 September 1939# #iile outward bound for America« The Germans two months later oharged that MrtOhuchill deliberately sank tho "Athenia" to encourage «taorican hostility to Germany* In fact, it was sunk by the German U- boat 30« ; • Raeder claims that an inexperienced U-boat oomoander sank it in mistake for an armed merchant cruiser, that this was not known until the U-30 returned several weeks after tho Germern denial and that Hitler then dirooted tho Navy and Foreign Office to oontinuo denying it* Raeder denied knowledge of tho propaganda campaign attacking Mr .Churchill* Tho most serious charge against Raeder is that he carried out un­ restricted submarine warfare, inoluding sinking of unarmed merchant ships, of neutrals, non-rescue and machine-gunning of survivors, contrary to the London Protocol of 1936* Tribunal makes the saiae finding on 3aodor on this oharge as it did as to Doenitz, which has already boen announced, up until 30 January 1943, when Raodor retired. ühe Caamando Ordor of tho 18 Ootobcr 1942 which expressly did not apply to naval warfare, was transmitted by the Naval War Staff to the lower naval commanders with tho direction it should bo distributed • orally by flotilla leaders and section ooomandors to their subordinates. Hie commandos wero put to death by tho Navy, and. not by the SD, at Bordeaux, on the 10th Decenfcer 1942« The comment of the Naval War Staff was that this was "in accordance with tho Fuehrer’s spocinl order, but is nevertheless something new in international law, sinco tho soldiers were in uniform"• Raedor admits he passed the order down through the chain of command, and be did not objocto Hitler« "

PURL: https://www.legal-tools.org/doc/8758d0/ With regard to tho probloms of sea warfaro, the Tribunal the same finding on Raodor, as on Doenitz, up until 30th Januaxy 1943, when Raedor retired. XV. Attempt at a summary of tho Tribunal*a opinion. >

From what has been oaid it follows that tho Tribunal oonsiders the London Protocol to continue to be binding International Law af war. In view of the actual development during World War II, tho Tribunal has, however, intorproted tho provision of the Protocol in favour of greater liborty of action by submarines. This restriotivo interpretation has two consequences: (a) tho scope of the application of the London irotoool has been narrowed by exempting from its protection merchantmen of enemy nationality which are (1) armed, (2) under armed escort, (3) helping their navies in tho detection of submarines, (4) have received orders to ram U-boats. (b) The second narrowing of tho scope of the Brotocol is that although its violations remain technically war crimes, no punishment is inflicted for such violations as have been conmitted also by the other belligerent. With regard to this second restriction, it is not clear from tho material at present available to this writer, whether the abstaining from inposing penalties is conditioned by tho fact that tho other belligerent conmitted the some act on his own initiative, or whether it also applies whon tho othor belligerent conmitted tho same act as a legitimate reprisal.

PURL: https://www.legal-tools.org/doc/8758d0/