The Nizkor Project: Remembering the Holocaust (Shoah)

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By DR. DIX, Continued:

If the prosecution now finally argues, on the basis of the
text of the aforementioned memorandum of the Board of
Directors of the Reichsbank, that an  opposition to war is
not evident from the memorandum, but only technical
reflections on finance and currency, then I have only to
refer in this respect to my previous statement and the
testimony of Vocke. And the presentation of facts by Schacht
himself would not even be necessary to refute this
argumentation. Vocke declared quite unequivocally in his
capacity as closest collaborator, that Schacht wished to
limit and sabotage rearmament from the moment when he
recognized that it became a potential war danger. The sworn
affidavit of Hulse  and the sworn affidavits of all the
collaborators of Schacht in the Reich Ministry of Economics
agree with the testimony of Vocke in this respect. I need
not quote them individually. They are known to the Tribunal.
The Tribunal does not need the commentary of a defence
counsel on them. They speak for themselves. If the
prosecution now finally bases its argument on the text of
the memorandum, which, it is true, actually only deals with
financial problems, then again I cannot omit the remark that
such an argumentation moves in a vacuum in so far as one
does not take the experiences of history and the general
experiences of life into consideration. Naturally, as I have
already said, the Board of Directors of the Reichsbank could
only operate with arguments which came from their
department, particularly so if it meant dealing with Hitler.
One hits the pannier but the blow is intended for the

If the directorate of the Reichsbank, along with its
President Schacht, had made public its true purpose in this
memorandum, namely to avert the danger of war and to combat
Hitler's will of aggression, then it would have deprived
itself of the effect of a positive departmental influence.
Hitler very well understood  the purpose of this memorandum
when he shouted, after reading it: "That is mutiny." With
this, Hitler recognized the only thing that can be said of
Schacht as conspirator: He was never a mutineer and
conspirator against world peace, but, so far as he was a
conspirator and mutineer, he was this only against Adolf
Hitler and his regime.

Again in this case I must ask the High Tribunal to turn
their attention to Appendix No. II, which I must insert at
this moment, because the matter that is dealt with here did
not reach me for translation until after I had submitted my
final speech.

I said that Schacht, in so far as he was a conspirator, was
only one against Hitler.

As such, he was the subject of ironic belittling by Colonel-
General Jodl and my colleague Nelte in the epithet "Frock-
coat and drawing-room revolutionary." Now, history teaches
that the quality of the tailor does not play any role in the
case of the revolutionary. And as far as the drawing-room is
concerned, well - shacks have no revolutionary preference
over palaces. I only call to mind the political drawing-
rooms of the great French Revolution, or for example (one of
many) the elegant officers' club of the feudal
Preobraschensk regiment under many a Tsar. Even if the
gentlemen of the Tribunal are of the opinion that Schacht
and his accomplices themselves should have done the
shooting, then I can only say: Well, if the solution had
been as easy as that, Schacht would have loved to have done
the shooting himself; he exclaimed that here spontaneously.
But it was not possible without having the power to master
the confusion inevitably following and make the attempt a
revolutionary success. Therefore generals with troops were
necessary. I do not wish to repay Colonel-General Jodl with
the same coin, and therefore do not say "a necessary evil."

                                                  [Page 393]

The further reproach of the basic lack of working-class
elements to strengthen the putsches is contradicted by the
social composition of the revolutionaries of 20th July. As I
stated before, all this is irrelevant for the decision of
the Tribunal. But my client has a moral right that his
defence counsel does not completely ignore this ironic
polemic which took place in the spotlight of the public

In summing up it must therefore be said:

After the elections in July, 1932, it was certain that
Hitler would and was bound to seize power. Previous to this,
Schacht had particularly warned the foreign countries of
this development, thus, he had not contributed to it. After
the seizure of power only two roads were open to him, as to
every German: He either had to estrange himself or he had to
enter the movement actively. The decision at these
crossroads was a purely political one without any criminal
aspect. Just as we respect the reasons which caused the
foreign countries to collaborate with Hitler much more
intensively and in a pro-German way than with the previous.
democratic governments of Germany, so we must recognize the
good faith of all those Germans who believed themselves able
to serve the country and humanity better by remaining in the
movement, that is, either within the Party or within the
organization of officialdom, because of the greater
possibilities of exerting their influence than by
grumblingly standing aside. To serve Hitler as Minister and
President of the Reichsbank was a political decision, about
whose political correctness one can easily argue ex ipso
facto, which, however, lacked any criminal character.
Schacht has always remained loyal to the motivating reason
for his decision, namely to combat any radicalism from an
influential position. Nowhere in the world which knew his
oppositional attitude could he see any signs of warning or
support. He only saw that the world trusted Hitler much
longer than he himself did, and permitted Adolf Hitler
honours and foreign political successes, which hampered
Schacht's work when it had already for a long time been
directed toward removing Adolf Hitler and his Government. He
led this struggle against Adolf Hitler and his Government
with a courage and a consequence which must make it appear
as a pure miracle that it was only after 20th July, 1944,
that the fate of the concentration camp and the danger of
losing his head, either through the People's Tribunal or
through a spectacular act of the SS, overtook him. He is
sufficiently clever and self-critical to realize that, from
a purely political consideration, the picture of his
character will waver in history, or at least in the nearest
future, due to the favour and hatred of parties. He humbly
resigns himself to the judgement of history even if one
historian or another will label his political line as
incorrect. With the pride of a good conscience he resigns
himself to the judgement of this High Tribunal. He stands
before his judges with clean hands. He also stands before
this Tribunal with confidence, as he has already manifested
in a letter which he addressed to this Tribunal before the
beginning of the proceedings, in which he states that he is
grateful to be able to expose before this Tribunal and
before the whole world his actions and doings and their
motivating reasons. He stands before this Tribunal with
confidence because he knows that the favour and hatred of
the parties will not have any effect on this Tribunal. With
full understanding of the relativity of all political
actions in such difficult times, he is completely assured
and full of confidence with regard to the criminal charges
which have been raised against him, and rightly so. Because,
whoever is guilty of being criminally responsible for this
war and the atrocities and inhuman acts committed in it,
Schacht, according to the evidence which has been given here
with minute exactness, can shout the words to that culprit
which Wilhelm Tell shouted to the Kaiser-assassin Parricida:
"I raise my clean hands to Heaven, and curse you and your

I, therefore, request the findings to be established to the
effect that Schacht is not guilty of the accusation lodged
against him and that he be acquitted.

THE PRESIDENT: I call on Dr. Kranzbuehler for the defendant
Donitz .

DR. KRANZBUEHLER (for the defendant Donitz ): Mr. President,
gentlemen of the Tribunal: "War is a cruel thing and it
brings in its train a multitude of injustices and misdeeds."

                                                  [Page 394]

With these words of Plutarch's, Hugo Grotius begins his
examination of the responsibility for war crimes and they
are as true today as they were 2,000 years ago. Acts which
were war crimes or were considered as such by the other side
have been committed by belligerents at all times. But the
consequences of this fact were always to the disadvantage of
the vanquished parties, and never to that of the victors.
The law which was applied here was necessarily always the
right of the stronger.

Whilst more or less steadfast rules have been governing land
warfare for centuries, in naval warfare the conceptions of
the parties concerned with regard to International Law have
always clashed. No one knows better than the British
statesmen to what extent these conceptions are dictated by
national or economic interests.

I refer in this respect to noted witnesses such as Lord
Fisher and Earl Grey of Fallodon. Therefore, if ever in
history a naval Power had had the idea of prosecuting a
defeated enemy admiral, and this, on grounds of its own
conception of the rules of naval warfare, the sentence would
have been pronounced simultaneously with the indictment.

At this trial two admirals are under indictment for a naval
war which has been called criminal. Thus the Tribunal is
confronted with a decision regarding conceptions of law
which are necessarily as divergent as the interests of a
naval Power and those of a land Power. Not only the fate of
both admirals is connected with this decision. It is also a
question of an honourable name for hundreds of thousands of
German seamen, who believed they were serving a good cause
and who do not deserve to be branded by history as pirates
and murderers. It is toward those men, the living as well as
the dead, that I feel I have the moral obligation to reject
the accusations raised against German naval warfare.

What are these accusations? They are divided into two large
groups: Unlawful sinking of ships and premeditated killing
of shipwrecked personnel.

I shall deal first with the accusation of the illegal
sinking of ships.

Two reports by Mr. Roger Allen of the British Foreign
Office, made in the autumn of 194o and spring of 1941, form
the nucleus of that accusation. I do not know to whom and
for what purpose these reports were made. According to their
form and content they seem to be serving propaganda
purposes, and for this reason I believe they have very
little value as evidence. Even the prosecution submitted
only part of the accusations made therein. The reports trace
only one-fifth of the total number of supposedly unlawful
attacks to submarines, whereas four-fifths are ascribed to
mines, aeroplanes or surface craft: The prosecution omits
these four-fifths and this reserved attitude may be
explained by the fact that the use of these combat means on
the British side differed in no way from that on the German

With regard to the use of submarines, however, there seems
to exist a difference between the principles followed in the
German conduct of the naval war and those of our enemies. At
any rate, the public in enemy countries and in many neutral
countries believed so during the war and still partly
believes it today. Propaganda dominated the field. At the
same time the majority of critics neither knew exactly s
which principles were valid for German U-Boat warfare, nor
on which factual and legal foundations they were based. It
shall be my task to attempt to clarify this.

The reports by Mr. Roger Allen culminate in the assertion
that the German                                   U-Boats,
beginning with the summer of 1940, torpedoed everything
coming within the view of their periscopes. Undoubtedly, the
methods of submarine warfare stiffened gradually under the
pressure of the measures directed against Germany. This war,
however, never did degenerate into a wild shooting melee,
governed only by the law of expediency. Much of what might
have been expedient for a U-Boat was left undone to the last
day of the war because it had to be regarded as legally
inadmissible, and all measures of which the German Naval
High Command is being accused today by the prosecution were
the result of a development, in which both sides partook, of
measures and counter-measures, as occurs in the course of
every war.

                                                  [Page 395]

The London Protocol of 1936 formed the legal basis for the
German submarine warfare at the beginning of this war. These
regulations were literally incorporated into Article 74 of
the German Prize Ordinance, which even Mr. Roger Allen calls
a reasonable and not inhuman instrument. This Prize
Ordinance was sent in 1938 in draft form to the two U-Boat
flotillas and to the U-Boat training school, and served as a
basis for the training of the commanders. Stopping and
examining of merchant vessels was performed as a tactical
task. In order to facilitate for the commander in economic
warfare the quick and correct evaluation of his legal
position toward ships and cargoes of the enemy and of
neutral countries, the prize disc was constructed which
through simple manipulations indicates the Articles of the
Prize Ordinance to be applied. In so far preparations had
been made at all for economic warfare through submarines
they were based exclusively on the German Prize Ordinance
and thus on the London Protocol.

The German High Command also actually adhered to this legal
foundation at the time the war broke out. The combat
instructions for U-Boats of 3rd September, 1939, ordered
clearly and distinctly that submarine warfare be carried on
in accordance with the Prize Ordinance. Accordingly,
sinkings were permissible only after stopping the ship and
examining it, unless the ship attempted to escape or offered
resistance. Some examples were submitted to the Tribunal,
from the abundance of possible instances, showing the
chivalrous spirit with which the German submarine commanders
complied with the issued instructions. Especially, the care
given to the crews of ships which were lawfully sunk after
they had been stopped and examined was carried out in part
to an extent which could scarcely be justified on military
grounds. Lifeboats were towed over long distances and,
thereby, the few available U-Boats were diverted from their
combat mission. Enemy ships which could have been sunk
lawfully were permitted to go free in order to send the
crews of ships previously sunk to port aboard them. It is,
therefore, only correct if Mr. Roger Allen stated that the
German U-Boats during the first weeks of the war adhered
strictly to the London regulations.

Why was this procedure not kept up? Because the conduct of
the enemy made such a procedure militarily impossible and
created at the same time the legal prerequisites for its

I shall consider the military side first. From the very
first day of the war, U-Boat reports reached the commander
of the U-Boat fleet and the Naval High Command stating that
hardly an enemy ship submitted voluntarily to being stopped
and examined. The merchant vessels were not content with
their attempt to escape, either through flight or by
changing their course and bearing directly down upon the U-
Boat, thus forcing it to dive. On the contrary, every U-Boat
sighted was reported at once by radio and subsequently, in
the shortest space of time, it was attacked by enemy
aeroplanes or naval forces. The complete armament of the
enemy merchant vessels, however, settled the matter. As
early as 6th September, 1939, a German U-Boat was shelled by
the British steamship Manaa, and that was the starting
signal for the great struggle which took place between the U-
Boats on the one hand and the armed merchant vessels
equipped with guns and depth charges on the other hand, as
equal military opponents.

In order to show the effect of all these measures taken by
the adversary, I have presented the Tribunal with some
examples which I do not wish to repeat. They show
unequivocally that further action against enemy merchant
ships according to the Prize Ordinance was no longer
possible from the naval standpoint and meant suicide for the
submarine. Nevertheless, the German High Command, for weeks
on end, continued to act according to the regulations
governing the Prize Ordinance. Only after it was established
that every time there was any action on the part of enemy
merchant ships, and especially armed action, it was not a
question of an individual case, but of a generally ordered
measure, was the order given on 4th October, 1939, to attack
all armed enemy merchant ships without warning.

                                                  [Page 396]

The prosecution will perhaps take the standpoint that, in
lieu of this, submarine warfare against armed merchant
vessels should have been discontinued. In the last war the
most terrible weapons of warfare were ruthlessly employed by
both sides on land and in the air. In view of this
experience, the thesis can hardly be upheld today that in
naval warfare one of the parties waging war can be expected
to give up using an effective weapon after the adversary has
taken measures making the use of it impossible in its
previous forms. In any case, such a renunciation could only
be considered if the new utilization of the weapon were
undeniably illegal. But this is not the case for the
utilization of German submarines against enemy merchant
shipping, because the measures taken by the enemy not only
changed the military but also the legal situation.

According to German legal opinion, however, a ship which is
equipped and utilised for battle does not come under the
provisions granting protection against sinking without
warning, as provided by the London Pact for merchant ships.
I wish to stress the fact that the right of the merchant
ship to carry weapons and to fight is not thereby contested.
The conclusion drawn from this fact is reflected in the well-
known formula: "He who uses weapons must expect weapons to
be used against himself."

During the cross-examination the prosecution referred to
this interpretation of the London Protocol as fraudulent. It
admits only the closest literal interpretation and considers
the sinking of a merchant ship as admissible only if the
latter has offered active resistance. It is not the first
time that fundamental differences of opinion exist between
contracting parties with respect to the interpretation of a
treaty, and the extremely divergent interpretations of the
meaning of the Potsdam Agreement of 2nd August, 1945,
provide a recent example. Diversity of conception,
therefore, does not allow for the conclusion that the one or
the other party has acted fraudulently during the signing or
the subsequent interpretation of a treaty. I will endeavour
to show how unjustified this charge is also in regard to the
German interpretation of the London Submarine Protocol.
There are two concepts which form the basis of the German
interpretation, namely, that of "merchant vessel" and "offer
of active resistance."

If I now consider some legal questions, it will in no way
represent a comprehensive exposition. I can only touch on
the problems, and due to lack of time, I must also limit
myself when mentioning authoritative sources. I shall
preferably refer to American sources, because the interests
of naval strategy of this nation were not fixed to the same
extent as those of the European nations and, therefore, its
scientific writings can probably claim greater objectivity.
The text of the London Protocol of 1936 is based, as is well
known, on a declaration which was signed at the London Naval
Conference of 1930. The committee of jurists appointed at
that time expressed its opinion concerning the greatly
disputed definition of a merchant vessel in the report of
3rd April, 1930:

  "The committee wishes to place on record that the
  expression 'merchant vessel' where it is employed in the
  declaration is not to be understood as including a
  merchant vessel which is at the moment participating in
  hostilities in such a manner as to cause her to lose her
  right to the immunities of a merchant vessel."

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