Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-126.06
Last-Modified: 2000/02/28

SIR DAVID MAXWELL FYFE: There is a mistake, my Lord, in the
translation. You see it says "blockaded by the USA and
Britain." The proper translation should be "in the zone
around Britain declared barred by the USA."

BY SIR DAVID MAXWELL FYFE:

Q. Now, defendant, I don't want to make any bad points, 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. That was probably why the Naval War Staff gave the
order, because the Greek vessels were sailing in England's
service. I assume that those were the reasons of the Naval
War Staff.

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 says here that they were to be treated like enemy
ships.

Q. In fact, then, that means that a Greek merchantman from
that time on would be sunk without warning if it came into
the zone around the British coast. Now, you mentioned the
Bristol Channel, and you have given your explanation of the
next sentence. You say all ships may be attacked without
warning. For external information, these attacks should be
given out as hits by mines.

I just wanted 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 goodwill you wanted
to keep, was it not?

A. I already stated my position on that yesterday. These are
matters connected with the political leadership and I know
nothing about them. I myself, as C.-in-C. Submarines, looked
at them only from the angle of military advantage or
expediency, just as England and France did in similar cases.
What the political reasons may have been, I cannot 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

                                                  [Page 285]

that the maximum damage to England could only be achieved
with unrestricted use of arms without warning.

A. There were certain areas which neutrals had been warned
not to cross. I stated yesterday that the same procedure was
followed in English operational areas. If a neutral in spite
of these warnings entered those areas, where military
actions were constantly being carried on, by one side or the
other, he had to run the risk of suffering damage. Those are
the reasons which induced the Naval War Staff to issue these
orders.

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; is that not 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 corresponds in size with the so-called combat
zone, which America forbade her merchant ships to enter.

Q. You say it is in accord. Let us just took 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 was also applied by other nations, that
operational areas around the enemy are admissible. I may
repeat that I am not a specialist in International Law, but
a soldier, and I judge according to common sense. It seems
to me a matter of course that an ocean area, or an ocean
zone, round England could not be left in undisturbed
possession of the enemy.

Q. I do not think we are disputing that 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? That was your view of the way
to conduct a war at sea; that is right, is it not?

A. Yes; and there are plenty of British statements which
declare that it is perfectly in order in wartime - and we
were at war with England - to debar neutrals from entering
and giving aid to the belligerents, especially if they had
previously been warned against doing so. That is quite in
accordance with International Law.

Q. We will discuss the matter of law with the Tribunal. I
want to get at the facts. That is the position which you
take up? And equally, if you found a neutral vessel outside
the zone using its wireless, you would treat it as if it
were a ship of war of a belligerent power, would you not? If
a neutral vessel used its wireless after seeing a submarine,
you would treat it as a ship of war of a belligerent power,
would you not?

A. Yes, according to the regulations of International Law.

Q. I see. As I say, the matters of law rest with the
Tribunal. I am not going to argue these with you. But, apart
altogether from International Law, did it ever strike you
that that method of treating neutral ships was completely
disregarding the life and safety of the people on the ships?
Did that ever strike you?

A. I have already said that the neutrals had been warned not
to cross the combat zones. If they entered the combat zones,
they must run the risk of suffering damage, or else stay
away. That is what war is. For instance, no consideration
either would be shown on land to a neutral truck convoy
bringing ammunition or supplies to the enemy. It would be
fired on in exactly the same way as an enemy transport. It
is, therefore, quite admissible to regard the seas

                                                  [Page 286]

around the enemy's country as a combat area. That is the
position as I know it in International Law, although I am
only a naval officer.

Q. I see.

A. Strict neutrality would require the avoidance of combat
areas. Whoever enters a combat area must take the
consequences.

Q. I see. That is your view? I do not think it could
possibly be put more fairly.

A. And for that reason, the United States explicitly
prohibited entry into these zones in November, because they
said, " We will not enter these zones."

Q. In your view, any neutral ship which entered a zone Of
750,000 square miles around Britain was committing an
unneutral act and was liable to be sunk without warning at
sight. That is your view of how war at sea should be
conducted; that is right, is it not?

A. Yes. Special lanes were left open for the neutrals. They
did not have to enter the combat area unless they were going
to England. Then they had to run the risk of war.

Q. I just want you to tell me, if you will look back to
Document 21-C; that is, on Page 30 of the English book and
Pages 59 to 6o of the German, you see that in all these
cases - you take the one in Paragraph 2, Page 5, Conference
with the Head of Naval War Staff on the 2nd of January; that
was the intensified measures in connection with the Fall
Gelb - that is, the invasion of Holland and Belgium - the
sinking by U-boats without any warning of all ships in those
waters near the enemy coasts in which mines could be
employed. Why, if, as you have just told the Tribunal
several times, you were acting in accordance with what you
believe to be International Law, why did you so act only in
areas where mines could be employed?

A. I have already explained that that was not a question of
legality but of military expediency. For military reasons, I
cannot give the enemy explicit information as to the means
of combat I am using in an area which may be mined. You
operated in the same way. I remind you of the French danger
zone which was declared in reference to the mined areas
around Italy. They did not state which weapons they were
using, either. That has nothing to do with legality. That is
purely a question of military expediency.

Q. You see, I think you will appreciate that the point I am
putting to you is this: that you were pretending to neutrals
that you were acting in accordance with the London Treaty,
whereas you were actually acting not in accordance with the
treaty, but in accordance with instructions you laid down
for yourself, based on military necessity. What I am
suggesting to you is that what the Naval High Command was
doing was pretending to, and getting advantage fraudulently
of appearing to, comply with the treaty. And that, I
suggest, is the purpose of these orders that you would only
do this where mines could be laid. Is that not what was in
your mind?

A. It is not true that we tried to fool the neutrals. We
warned the neutrals explicitly that combat actions were
going on in these operational areas and that, if they
entered, they would find themselves in danger. We pretended
nothing; we told them explicitly: "Do not enter these
zones." England did the same.

THE PRESIDENT: Sir David, doesn't the next sentence bear
upon that?

SIR DAVID MAXWELL FYFE: Yes, your Lordship; I am very much
obliged to your Lordship.

BY SIR DAVID MAXWELL FYFE:

Q. Would you look at the next sentence, where it says the
following?

  "The Navy will authorize, simultaneously with the general
  intensification of the war, the sinking by U-boats
  without any warning of all ships in these waters near the
  enemy coasts in which mines can be employed. In this
  case, for external information, pretence should be made
  that mines are being used. The behaviour of and use of
  weapons by U-boats should be adapted for this purpose."

                                                  [Page 287]

Do you say, in the face of that sentence, that you were not
trying to fool the neutrals - to use your own phrase? Do you
still say you were not trying to fool the neutrals?

A. No, we did not fool them because we warned them
beforehand. In wartime I do not have to say what weapons I
intend to use; I may very well camouflage my weapon. But the
neutrals were not fooled. On the contrary, they were told:
"Do not enter these zones." After that, the question of
which particular military method I used in these areas no
longer concerned the neutrals.

Q. Now I want you to tell the Tribunal, what was your view
of your responsibility to the seamen from boats that were
sunk? Would you have in mind the provisions of the London
Treaty, and will you agree that your responsibility was to
save seamen from boats that were sunk wherever you could do
so without imperilling your ship? Is that, broadly, correct?

A. Of course, if the ship behaved according to the London
Agreement; that is to say, if it did not happen within the
operational areas mentioned.

Q. Oh? Do you really mean that? That is, if you sank a
neutral ship which had come into that zone, you considered
that you were absolved from any of your duties under the
London Agreement to look after the safety of the crews?

A. In operational areas I am obliged to take care of the
survivors after the engagement, if the military situation
permits. The same held good in the Baltic and in many
operational areas.

Q. That is what I put to you, defendant. Please believe me,
I do not want to make any false point. I put to you: If they
could do so without imperilling their ships, that is,
without risking losing their ships. Let us get it quite
clear. Do you say that, in the zone which you fixed, there
was no duty to provide for the safety of the crew, that you
accepted no duty to provide for the safety of the crew?

A. I have stated that I was obliged to take care of the
survivors after the engagement if the military situation
permitted. That forms part of the Geneva Convention or the
Hague Agreement about its application.

Q. Then it did not matter whether the sinking was in the
zone or out of the zone. According to what you say, you
undertook exactly the same duty towards survivors whether it
was in the zone or outside the zone. Is that right?

A. No, that is not correct, because outside the zone
neutrals were treated according to the Prize Ordinance, only
inside the zone they were not.

Q. What I cannot understand is this - and really, I hope I
am not being very stupid. What was the difference? What
difference did you consider existed in your responsibility
towards survivors if the sinking was inside the zone or
outside the zone? That is what I want to get clear.

A. The difference was that neutrals outside the zone were
treated according to the Prize Ordinance. According to the
London Agreement, we were obliged, before sinking the ship,
to see that the crew were safe and within reach of land.
There was no obligation to do so inside the zone. In that
case we acted according to the Hague Agreement for the
application of the Geneva Convention, which provides that
the survivors should be taken care of if the military
situation permits.

Q. Will you agree that an order in express terms to
annihilate, to kill, the survivors of a ship that is sunk
would be an appalling order to give?

A. I have already stated that the killing of survivors was
contrary to a sailor's idea of fair fighting, and that I
have never put my name to any order which could, in the
slightest degree, lead itself to anything of the kind - not
even when it was proposed to me as a reprisal measure.

Q. Will you agree that, even with the discipline in your own
branch of the service, there was a possibility that some U-
boat commanders would have refused to comply with an order
to annihilate survivors?

A. No such order was ever given.

Q. I think it is quite a fair question. What if it were
given in express terms, "Annihilate survivors after you sink
a ship"? You know your officers. Would

                                                  [Page 288]

there, at any rate, have been some danger that some of them
would have refused to carry out that order?

A. Yes. As I know my U-boat forces, there would have been a
storm of indignation against such an order. The clean and
honest idealism of these people would never have allowed
them to do it, and I would never have given such an order,
or permitted it to be given.

Q. Yes, that is what I put to you.

Now, just look at Page 33 of the English Document Book. That
contains your own Standing Order No. 154. Let me read it to
you, rather slowly, if the Tribunal does not mind. It says:-

"Do not pick up survivors and take them with you do not
worry about the merchant ship's boats: weather conditions
and distance from land play no part. Have a care only for
your own ship and strive only to attain your next success as
soon as possible. We must be harsh in this war."

First of all, tell me, what do you mean by "your next
success"? Does that not mean the next attack on a vessel?

A. Yes.

Q. Now, just look at that order of yours and compare it with
the words of the London Treaty. The Treaty, you remember,
says that a warship, including a submarine, may not sink or
render incapable of navigation a merchant vessel without
first having 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 crew is assured in the existing sea and
weather conditions, by the proximity of land, or the
presence of another vessel.

Defendant, you had that article of the London Treaty in
front of you, had you not, when you were drafting this
order? And you were deliberately excluding from your order
the matters mentioned in the London Treaty? Listen to your
order:-

"Do not worry about the boats; weather conditions," one
thing mentioned in the Treaty, "and distance from land,"
another thing mentioned in the Treaty, it play no part."

Your order could have been put in other language almost as
clearly:-

"Disregard all the matters that are stated in Paragraph 2 of
the London Treaty." Now tell me, did you not have the London
Treaty in front of you when you drew up that order?

A. Of course I had the London Treaty in my mind and in front
of me. I stated in detail yesterday, however, that we were
thinking in terms of an engagement, a ship under escort, as
is shown by the order as a whole. You have taken just one
paragraph. There was, therefore, no question of applying the
London Agreement, which does not refer to ships under
escort.

Secondly, we were thinking of an area in the immediate
vicinity of enemy positions, enemy defences on the British
coast, where the greatest danger existed of being attacked
by enemy escorts. The London Agreement has nothing to do
with fighting against escorted merchant ships. Those are two
entirely different things; and that order applied to this
area and the combating of ships under escort. I explained
that in detail yesterday.

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