International Law: Nuremburg War Crimes Trial
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Doenitz is indicted on Counts One [Crimes Against Peace], Two, and Three [War Crimes]. In 1935 he took command of the first U-Boat flotilla commissioned since 1918, became in 1936 commander of the submarine arm, was made Vice-Admiral in 1940, Admiral in 1942, and on 30 January 1943 Commander-in-Chief of the German Navy. On 1 May 1945 he became the Head of State, succeeding Hitler.
Crimes Against Peace
Although Doenitz built and trained the German U-Boat arm, the evidence does not show he was privy to the conspiracy to wage aggressive wars or that he prepared and initiated such wars. He was a line officer performing strictly tactical duties. He was not present at the important conferences when plans for aggressive wars were announced, and there is no evidence he was informed about the decisions reached there. Doenitz did, however, wage aggressive war within the meaning of that word as used by the Charter. Submarine warfare which began immediately upon the outbreak of war, was fully co-ordinated with the other branches of the Wehrmacht. It is clear that his U-boats, few in number at the time, were fully prepared to wage war.
It is true that until his appointment in January 1943 as commander-in-chief he was not an "Oberbofehlshaber." But this statement underestimates the importance of Doenitz' position. He was no mere army or division commander. The U-Boat arm was the principal part of the German fleet and Doenitz was its leader. The high seas fleet made a few minor, if spectacular, raids during the early years of the war, but the real damage to the enemy was done almost exclusively by his submarines, as the millions of tons of allied and neutral shipping sunk will testify. Doenitz was solely in charge of this warfare. The Naval War Command reserved for itself only the decision as to the number of submarines in each area. In the invasion of Norway, for example, he made recommendations in October 1939 as to submarine bases, which he claims were no more [p. 556 Oct. 46] than a staff study, and in March 1940 he made out the operational orders for the supporting U-boats, as discussed elsewhere in this Judgment.
That his importance to the German war effort was so regarded is eloquently proved by Raeder's recommendation of Doenitz as his successor and his appointment by Hitler on 30 January 1943 as Commander-in-Chief of the Navy. Hitler too knew that submarine warfare was the essential part of Germany's naval warfare.
From January 1943, Doenitz was consulted almost continuously by Hitler. The evidence was that they conferred on naval problems about 120 times during the course of the war.
As late as April 1945 when he admits he knew the struggle was hopeless, Doenitz as its commander-in-chief urged the Navy to continue its fight. On 1 May 1945 he became the Head of State and as such ordered the Wehrmacht to continue its war in the East, until capitulation on 9 May 1945. Doenitz explained that his reason for these orders was to insure that the German civilian population might be evacuated and the Army might make an orderly retreat from the East.
In the view of the Tribunal, the evidence shows that Doenitz was active in waging aggressive war.
Doenitz is charged with waging unrestricted submarine warfare contrary to the Naval Protocol of 1936, to which Germany acceded, and 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 enemy or neutral, cynically disregarding the Protocol, and that a calculated effort was made throughout the war to disguise this practice by making hypocritical references to international law and supposed violations by the Allies.
Doenitz insists that at all times the Navy remained within the confines of international law and of the Protocol. He testified that when the war began, the guide to submarine warfare was the German Prize Ordinance, taken almost literally from the Protocol; that pursuant to the German view, he ordered submarines to attack all merchant ships in convoy and all that refused to stop or used their radio upon sighting a submarine. When his reports indicated that British merchant ships were being used to give information by wireless, were being armed and were attacking submarines on sight, he ordered his submarines on 17 October 1939 to attack all enemy [p. 557 1 Oct. 46] merchant ships without warning on the ground that resistance was to be expected. Orders already had been issued on 21 September 1939 to attack all ships, including neutrals, sailing at night without lights in the English Channel.
On 24 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-Boats and Allied merchant ships which were armed and had instructions to use those arms as well as to ram U-Boats, the safety of neutral ships in those waters could no longer be taken for granted. On I January 1940, the German U-Boat command, acting on the instructions of Hitler, ordered U-Boats to attack all Greek merchant ships in the zone surrounding the British Isles which was 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, the limits of which were defined. Finally on 18 January 1940, U-Boats were authorized to sink, without warning, all ships "in those waters near the enemy coast in which the use of mines can be pretended." Exceptions were to be made in the cases of United States, Italian, Japanese, and Soviet ships.
Shortly after the outbreak of war the British Admiralty, in accordance with its Handbook of Instructions of 1938 to the merchant navy, armed its merchant vessels, in many cases convoyed them with armed escort, gave orders to send position reports upon sighting submarines, thus integrating merchant vessels into the warning network of naval intelligence. On 1 October 1939, the British Admiralty announced British merchant ships had been ordered to ram U-Boats if possible.
In the actual circumstances of this case, the Tribunal is not prepared to hold Doenitz guilty for his conduct of submarine warfare against British armed merchant ships.
However, the proclamation of operational zones and the sinking of neutral merchant vessels which enter those zones presents a different question. This practice was employed in the war of 1914-1918 by Germany and adopted in retaliation by Great Britain. The Washington Conference of 1922, the London Naval Agreement of 1930 and the Protocol of 1936 were entered into with full knowledge that such zones had been employed in that war. Yet the Protocol made no exception for operational zones. The order of Doenitz to sink neutral ships without warning when found within these zones was, in the opinion of the Tribunal, therefore a violation of the Protocol.
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It is also asserted that the German U-Boat arm not only did not carry out the warning and rescue provisions of the Protocol but that Doenitz deliberately ordered the killing of survivors of shipwrecked vessels, whether enemy or neutral. The Prosecution has introduced much evidence surrounding two orders of Doenitz, War Order Number 154, issued in 1939, and the so-called Laconia order of 1942. The Defense argues that these orders and the evidence supporting them do not show such a policy and introduced much evidence to the contrary. The Tribunal is of the opinion that the evidence does not establish with the certainty required that Doenitz deliberately ordered the killing of shipwrecked survivors. The orders were undoubtedly ambiguous, and deserve the strongest censure.
The evidence further shows that the rescue provisions were not carried out and that the defendant ordered that they should not be carried out. The argument of the Defense is that the security of the submarine is, as the first rule of the sea, paramount to rescue and that the development of aircraft made rescue impossible. This may be so, but the Protocol is explicit. If the commander cannot rescue, then under its terms he cannot sink a merchant vessel and should allow it to pass unharmed before his periscope. These orders, then, prove Doenitz is guilty of a violation of the Protocol.
In view of all of the facts proved, and in particular of an order of the British Admiralty announced on 8 May 1940, according to which all vessels should be sunk at night in the Skagerrak, and the answer to interrogatories by Admiral Nimitz that unrestricted submarine warfare was carried on in the Pacific Ocean by the 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 law of submarine warfare.
Doenitz was also charged with responsibility for Hitler's Commando Order of 18 October 1942. Doenitz admitted he received and knew of the order when he was Flag Officer of U-boats, but disclaimed responsibility. He points out that the order by its express terms excluded men captured in naval warfare, that the Navy had no territorial commands on land, and that submarine commanders would never encounter Commandos.
In one instance, when he was Commander-in-Chief of the Navy, in 1943, the members of the crew of an Allied motor torpedo boat were captured by German naval forces. They were interrogated for intelligence purposes on behalf of the local admiral, and then turned over by his order to the SD and shot. Doenitz said that if they were captured by the Navy their execution was a violation of the Commando Order, that the execution was not announced in the Wehrmacht communiqué, and that he was never informed of the incident. He pointed out that the admiral in question was not in [p. 559 1 Oct. 46] his chain of command, but was subordinate to the Army general in command of the Norway occupation. But Doenitz permitted the order to remain in full force when he became commander-in-chief, and to that extent he is responsible.
Doenitz in a conference of 11 December 1944, said "12,000 concentration camp prisoners will be employed in the shipyards as additional labor." At this time he had no jurisdiction over shipyard construction and claims that this was merely a suggestion at the meeting that the responsible officials do something about producing ships, that he took no steps to get these workers, since it was not a. matter for his jurisdiction, and that he does not know whether they ever were procured. He admits he knew of concentration camps, A man in his position must necessarily have known that citizens of occupied countries in large numbers were confined in the concentration camps.
In 1945 Hitler requested the opinion of Jodl and Doenitz whether the Geneva Convention should -be denounced. The notes of the meeting between the two military leaders on 20 February 1945 show that Doenitz expressed his view that the disadvantages of such an action outweighed the advantages. The summary of Doenitz' attitude shown in the notes taken by an officer, included the following sentence:
"It would be better to carry out the measures considered necessary without warning, and at all costs") to save face with the outer world."
The Prosecution insisted that "the measures" referred to meant that the Convention should not be denounced, but should be broken at will. The Defense explanation is that Hitler wanted to break the Convention for two reasons: to take away from German troops the protection of the Convention, thus preventing them from continuing to surrender in large groups to the British and Americans; and also to permit reprisals against Allied prisoners of war because of Allied bombing raids. Doenitz claims that what he meant by "measures" were disciplinary measures against German troops to prevent them from surrendering and had no reference to measures against the Allies; that this was merely a suggestion, and that in any event no such measures were ever taken, either against Allies or Germans. The Tribunal, however, does not believe this explanation. The Geneva Convention was not, however, denounced by Germany. The Defense has introduced several affidavits to prove that British naval prisoners of war in camps under Doenitz' jurisdiction were treated strictly according to the Convention, and the Tribunal takes this fact into consideration and regards it as a mitigating circumstance.
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The Tribunal finds Doenitz is not guilty on Count One of the Indictment, and is guilty on Counts Two and Three.