[Page 284]

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

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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

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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."

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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]

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."

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."

"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?

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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