At Plön on the evening of
The Führer has appointed you, Herr Admiral, as his successor in place of Reichsmarschall Göring. Confirmation in writing follows. You are hereby authorized to take any measures which the situation demands.
In his Memoirs, Dönitz describes his reactions:
This took me completely by surprise. Since July 20, 1944, I had not spoken to Hitler at all except at some large gathering. ... I had never received any hint on the subject from anyone else.... I assumed that Hitler had nominated me because he wished to clear the way to enable an officer of the Armed Forces to put an end to the war. That this assumption was incorrect I did not find out until the winter of 1945-46 in Nuremberg, when for the first time I heard the provisions of Hitler's will.... When I read the signal I did not for a moment doubt that it was my duty to accept the task ... it had been my constant fear that the absence of any central authority would lead to chaos and the senseless and purposeless sacrifice of hundreds of thousands of lives ... I realized ... that the darkest moment in any fighting man's life, the moment when he must surrender unconditionally, was at hand. I realized, too, that my name would remain forever associated with the act and that hatred and distortion of facts would continue to try and besmirch my honor. But duty demanded that I pay no attention to any such considerations. My policy was simple -- to try and save as many lives as I could ...
Dönitz moved forcefully. He met with Heinrich Himmler at Plön and politely declined Himmler's offer to become the "second man" in the Dönitz government. Dönitz ordered Field Marshal Keitel and General Jodl to come to Plön so that the military situation could be assessed.
On the morning of 1 May, Dönitz received the following radio message, classified "Secret and Personal," from Bormann at the chancellery:
Will now in force. Coming to you as quickly as possible. Pending my arrival you should in my opinion refrain from public statement.
Dönitz was left to presume from the text that Hitler was dead but he knew none of the circumstances. Some public position had to be taken and immediately. He relates in his Memoirs that he felt that the announcement of Hitler's death should be couched in respectful terms:
... To denigrate him ... as, I felt, many around me would have liked me to do, would, in my opinion, have been a mean and cheap thing to do ... I believed that decency demanded that I should word my announcement in the manner in which it was, in fact, worded. Nor, I think, would I do otherwise today...
Consequently, on 1 May 1945 Dönitz made the following announcement on North German radio:
The Führer has nominated me as his successor. In full consciousness of my responsibilities I therefore assume the leadership of the German people at this fateful hour. My first task is to save German men and women from destruction by the advancing Bolshevist enemy. It is to serve this purpose alone that the military struggle continues. For as long as the British and the Americans continue to impede the accomplishments of this task, we must also continue to fight and defend ourselves against them. The British and the Americans in that case will not be fighting in the interests of their own peoples, but solely for the expansion of Bolshevism in Europe.
Dönitz also issued his Order of the Day to the Armed Forces on 1 May, covering the same points in slightly different language. And, to counter a growing lack of discipline in the armed forces, he issued the following declaration to the military services:
I expect discipline and obedience. Chaos and ruin can be prevented only by the swift and unreserved execution of my orders. Anyone who at this juncture fails in his duty and condemns German women and children to slavery and death is a traitor and a coward. The oath of allegiance which you took to the Führer now binds each and every one of you to me, whom he himself appointed as his successor.
It worked. As Dönitz relates:
The next few days showed that the German Armed Forces had accepted my authority; and that was all that mattered.
On 1 May 1945, Dönitz received a third and final radio message from the Berlin chancellery, with the same "Personal and Secret" classification but signed this time by Göbbels and Bormann:
Führer died yesterday, 1530 hours. In his will dated April 29 he appoints you as President of the Reich, Göbbels as Reich Chanceror, Bormann as Party Minister, Seyss-Inquart as Foreign Minister. The will, by order of the Führer, is being sent to you and to Field Marshal Schörner and out of Berlin for safe custody. Bormann will try to reach you today to explain the situation. Form and timing of announcement to the Armed Forces and the public is left to your discretion. Acknowledge.
In a melodramatic series of events, Martin Bormann was killed in Berlin en route to Admiral Dönitz, other ranking officials failed to arrive, and no copies of the pertinent documents ever reached Dönitz. Apparently it never occurred to the officials in the beleaguered chancellery that the entire texts of the pertinent documents could have been radioed to Dönitz. At this point, he did not even know of the subsequent suicide of Göbbels on 1 May. Dönitz correctly felt that he must make his own govern mental appointments in order to function at all. He could not logically appoint officials whose whereabouts he did not know (he did not in fact know whether they were alive or dead), or whose prominence in the Hitler government might prejudice negotiations with the Allies. Of this fateful date, 1 May 1945, Dönitz summarized the situation in his Memoirs:
... while out at sea transports filled with wounded, with refugees and with troops hurried westward, the columns of refugees fleeing overland pressed on towards their salvation and the armies in Pomerania, in Brandenburg and in Silesia continued to retire in the direction of the Anglo-American demarcation line.
It was the plan of Admiral Dönitz to accomplish a partial surrender in the west. For this purpose, the officer commanding at Hamburg was ordered to dispatch an officer with flag of truce to the British on 3 May, to offer the surrender of Hamburg and to inform them that a general delegation under Admiral von Friedeburg was en route to confer with them. Meanwhile, because of British advances, Dönitz moved his headquarters and seat of government to Mürwik near Flensburg. There he conferred with representatives of the German forces still in being and advised them to take such action as would enable them to surrender to American rather than Russian forces. He had developed a healthy respect for the American Navy, and it for him. But the American ground forces were something else again, Dönitz had not yet met political generals of the Eisenhower stamp.
There were many acts of heroism at this difficult time.
As Dönitz relates in his Memoirs, Dr. Karl Hermann Frank, Protector of Bohemia-Moravia, concerned with Czech worries over the political fate of their nation should it fall into Russian hands, sought the agreement of Dönitz to make an offer to surrender to the Americans. Dönitz thought it unlikely to succeed but worth trying, and he comments:
That Frank, regardless of his own personal safety and with but the slenderest chance of success, should have been willing to return to a country which he knew to be on the brink of revolt in order to secure for it a more humane solution of its problems should be noted to his credit.
On 4 May, Dönitz gave to Admiral von Friedeburg the full authorization to accept various terms of surrender offered by Field Marshal Bernard L. Montgomery, and von Friedeburg was flown to British headquarters with the further instructions to then proceed to General Eisenhower at Rheims to offer a German surrender in the American sector.
As Dönitz put it:
The first step towards a separate surrender to the West had been accomplished without our having been forced to abandon German soldiers and civilians to the mercy of the Russians.
Eisenhower proved to be contentious and difficult. On 6 May, Dönitz sent Col. Gen. Alfred Jodl to negotiate with the American martinet, who rejected any separate surrender and informed Jodl that the Americans would be ordered to fire upon any German troops approaching American lines with the intention of surrender, even if unarmed. This, of course, was a direct breach of the Geneva Convention but that did not concern Eisenhower, who took his political orders from the Washington regime. Eisenhower demanded unconditional surrender on 7 May, but Jodl was able to win the concession of 9 May as the date for the termination of hostilities, thus enabling Dönitz to continue moving troops and refugees out of the eastern areas. The history of the formal signing of the instrument of surrender at Rheims on 7 May 1945 is well known. Jodl and von Friedeburg signed for Germany on the first capitulation document. Dönitz authorized the German delegates -- Field Marshal Keitel, Admiral von Friedeburg, and General Stumpff -- to sign for the German Armed Forces. The ceremonies were repeated in Berlin-Karlhorst on 8 May at the demand of the Russians. As it turned out, in the course of the surrender negotiations the German representatives were treated courteously by the British and the Russians, but with hostility and child-like contempt by the Americans. This conduct was exemplified by Eisenhower himself, who later censured and otherwise hounded an American Brigadier General, Robert J. Stack, for having treated Göring with courtesy on his arrest, and who rebuked General Patch, commander of the U.S. 7th Army, for treating German prisoners of war decently. [See Leonard Mosley's book, The Reich Marshal].
The final order of the German Armed Forces, issued on 9 May 1945, stated in part:
By command of Admiral Dönitz the Armed Forces have given up the hopeless struggle. A heroic fight that has lasted for nearly six years thus comes to an end ... the German Armed Forces have succumbed to overwhelming superior strength ... Every German soldier, sailor and airman can therefore lay aside his arms with justifiable pride and turn to the task of ensuring the everlasting life of our nation ... To show obedience, discipline and absolute loyalty to our Fatherland, bleeding from innumerable wounds, is the sacred duty our dead impose upon us all.
As noted by Dönitz in his Memoirs:
I thought then, and I still think, that those words are both appropriate and just.
The surrender accomplished, and the cessation of hostilities being secured at even the most distant outposts, Dönitz turned his efforts to the processes of the government which he headed, a regime which had obtained de facto status from the Allies by their dealings with it. The legal complexities of the succession are dealt with in Regierung Dönitz by W. Lüdde-Neurath, a work published in 1950, but even that work must be read in the light of the repressive political conditions in the western zone of Germany in 1950. The author held that Hitler's nomination of Dönitz as Head of State was unquestionably legal, and that its legality was in no way affected by the loss of German sovereignty occasioned by Allied occupation. Under German law, the resignation of a head of state is possible only when a successor is named at the same time. This would, of course, apply to a self-termination by a head of state (i.e., suicide). When this measure is not taken, the office devolves upon the president of the Reich Supreme Court (Article 51 of the Weimar Constitution). An extinction of the function of head of state is therefore legally excluded.
The Act (law) of 1 August 1934 combined the offices of president and chancellor in the person of Adolf Hitler, and the German people gave its electoral approval to this in the plebiscite of 18 August 1934. Subsequently, Hitler found general recognition as head of state both in his domestic and international dealings. Furthermore, the same law expressly gave to Hitler the right to name his successor. This he did - without any opposition - in his Reichstag declaration of 1 September 1939, naming Göring and Hess in that order. Subsequent events and instruments eliminated Hess (following his flight to England) and Göring (by Hitler's interpretation of Göring's attempt to take over Hitler's leadership in late April of 1945). Therefore, Hitler's political testament of 29 April 1945 (naming Dönitz as president and Göbbels as chancellor) took precedence and was the governing authority for the Dönitz government.[On 26 April 1942, the Reichstag voted absolute wartime powers to Hitler, suspending any laws to the contrary, similar to the powers conferred on President Abraham Lincoln during the American Civil War.]
To his everlasting credit, Eamon De Valera, Prime Minister (later President) of Eire (Ireland), called personally on the German ambassador to Ireland to offer his condolences on the death of Hitler and his recognition of the new government headed by Dönitz.
There is no doubt that, had time permitted, the exchange of diplomatic representatives with neutral nations could have been achieved. Dönitz headed what he felt was, and should be, a new German government in every sense of the term. He wrote:
... it was essential that we should create the requisite state departments within the framework of a central government. It was, however, also essential that we should gather together all our best experts in these various spheres, in order to be able to offer their cooperation to the occupying powers. Our primary task was to ensure for the German people the essentials for bare survival...
The Dönitz government took form, then, to prevent famine; to restore communications, business and industry; to rebuild housing and obtain temporary quarters for the homeless; to try to hold the value of the currency and re-establish banking systems, and to aid the refugees and absorb the additional millions of Germans and non-Germans fleeing the Russian-occupied areas.
The Dönitz Cabinet took office: Graf Lutz von Schwerin-Krosigk (Foreign Minister, Minister of Finance, and presiding officer of the Cabinet), Dr. Wilhelm Stuckart (Minister of the Interior and Minister of Culture), Albert Speer (Minister of Industry and Production), Dr. Herbert Backe (Minister of Food, Agriculture and Forests), Dr. Franz Seldte (Minister of Labor and Social Affairs), and Dr. Dorpmüller (Minister of Posts and Communications). All had held secondary posts in the Hitler government but all were essentially non-political men with bureaucratic experience and technical knowledge in their fields. The choice of Speer was an unfortunate one as the man was a self-seeking chameleon and opportunist, although able in his technical fields. Speer at once initiated an internal campaign to convince the Dönitz government to resign.
As Dönitz put it:
Speer was emphatic in his opinion that we [the government] should resign. But he thought that, as far as he himself was concerned, the Americans would continue to cooperate with him.
Schwerin-Krosigk took a sounder view-that only the Armed Forces had surrendered, the German state continuing to exist with Dönitz as its legal head.
As Dönitz remarks:
The enemy themselves had recognized the fact when they insisted on my conferring plenipotentiary powers on the Chiefs of the three services, who were to sign the instrument of surrender ... I and my provisional government could not voluntarily resign. If we did, the victors could say with justification: since the properly constituted Government ... had run away, we have no option but to set up independent German governments in the individual zones and to allow our military government to exercise authority over all. of them ... I should stay until I was removed by force. Had I not done so, then ... I should have supplied the political pretext for the division of Germany that exists today ...
An Allied Control Commission under the American Major General Lowell W. Rooks and British Brigadier R.L.S. Foord arrived on the scene shortly after the capitulation, and they were later joined by Soviet Major General Nikolai Trusov. This commission conferred with the Dönitz government but gave little response to its proposals and less cooperation.
The attitude of the Allied representatives at these meetings was reserved, but correct. The courtesies of normal international usage were observed, but that I and the members of my government should have shown a like reserve and reticence was only natural.
Meanwhile, some progress was made regardless of the non-cooperation of the Allied representatives, particularly in the areas of food procurement and communications. The Cabinet met regularly and worked hard. Interestingly, bureaucracy often lives a life of its own, and some of the administrative offices of the Hitler government moved to the area and continued their work. An SS "think tank," engaged in producing reports on world political affairs, was still in business as of August 1945, and some Nazi intelligence operations were taken over intact by intelligence services of the Allies, notably that of General Reinhardt Gehlen, who had specialized in gathering intelligence concerning the Russians.
Next, a campaign against the Dönitz government was orchestrated in the Allied nations, an ominous sign.
As Dönitz observed:
The enemy press and particularly the Russian radio began to get busy about "the Dönitz Government" ... The cooperation between the provisional government and the British and American representatives in Muerwik had aroused their envy ... Churchill at first opposed my removal. He wanted to use me as a "useful tool" ... if I proved to be useful, that would have to be reckoned against my "war atrocities in command of submarines" [Churchill, Vol. V1, p646]. This was exactly the coldly calculating attitude that I expected of British policy ... Then ... on May 15 Eisenhower demanded my removal in the interests of friendship with Russia ...
The arrest of the Dönitz government is described in a cynical article by one Corporal Howard Katzander, staff correspondent, in Yank, "The Army Weekly," terming the Dönitz government "a grandiose bluff to persuade the Allied command to permit him [Dönitz] to attend to the interior reorganization of the nation's economy," coupled with the disarming of German forces under the very direction of the Oberkommando der Wehrmacht (OKW), to "keep intact the nucleus of a new Wehrmacht and a new war-minded government." [Howard Katzander [staff correspondent], in Yank: The Army Weekly (May 1945)]
On 23 May 1945, Dönitz, Jodl, von Friedeburg and others were summoned aboard the steamship Patria, whereupon General Rooks, wasting no time on protocol or courtesy, communicated Eisenhower's decision that,
... in concert with the Soviet High Command ... today the acting German government and the German high command, with the several of its members, shall be taken into custody as prisoners of war. Thereby, the acting German government is dissolved ... Troops of the 21st Army Group are taking the several members, civilian and military, and certain records, into custody...
Asked by Rooks for any comment, Dönitz replied, "Any words would be superfluous." The members of the Dönitz government and the high command were gathered and marched off, hands behind their heads and at machine-gun point, to a prisoner of war cage. Admiral von Friedeburg chose suicide over Allied detention.
Despiter the brief tenure of the Dönitz government, it had historical significance. The opposition of the Soviet Union was to be expected. Had the western Allies, however, exhibited some foresight, the history of Europe might have followed a quite different course. A legitimate government cannot be "dissolved" by military order of an external enemy, nor by taking its members forcibly under arrest. Having come legally into power, and having been recognized by the very forces which were to order its "dissolution," the Dönitz government remains in history as the last de jure and de facto government of a United Germany. The establishment by the Allies of their own puppet regimes in West Germany (the so-called Federal Republic) and in Central Germany (the so-called German Democratic Republic) merely underscores the continuing zonal occupation of the German nation almost 40 years after the military conclusion of World War II. This is well pointed up by the maintenance of the prison at Spandau in West Berlin, containing one solitary nonagenarian prisoner (Rudolf Hess), and administered in rotation by the governments of the United States, Great Britain, France, and the USSR. Despite some opposition exhibited by the Western puppet regime to its masters, any claim to genuine independence by either the western or eastern puppet regime is ludicrous in view of the continuing military presence in both those countries of the forces of the former Allies.
Grand Admiral Dönitz then, on 23 May 1945, became another prisoner of war, and the staggering burden of responsibilities for the German nation was taken from his shoulders by jailkeepers. Treated correctly at first in the Allied detention center at Bad Mondorf, Luxemburg, Dönitz had time to reflect on his long career and the events which had brought him to the situation which then faced him.
Dönitz, not born into the class which then provided officers, joined the Imperial German Navy and served on the light cruiser Breslau in the Near East, 1914-1916. Thereafter he entered the submarine service, serving as senior lieutenant on U-39 and in command of U-68. After the sinking of his submarine off Malta, he was a British prisoner of war until 1919. He continued to serve in the navy of the Weimar Republic, such as it was, and continued to rise through the grades as a surface officer. Bound by the chains of the Versailles Treaty, Germany had no submarines again until 1935. Dönitz commanded a destroyer, a destroyer flotilla, served on the staff of the Baltic naval forces, and commanded the cruiser Emden in the South Atlantic (1934) and the Indian Ocean. In 1935, he was selected to build the new submarine service. He became senior officer of submarines, and was an expert on strategy, developing the tactics used by the U-Boats in World War II, notably the "wolf pack" system which devastated Allied shipping early in the war. He rose through the flag ranks of commodore, rear admiral, vice admiral, and, in 1942, became a full admiral. On 30 July 1943, Dönitz was named a grand admiral (German equivalent of fleet admiral, a five-star rank), and became commander-in-chief of the navy, replacing Grand Admiral Erich Räder. This has been an extremely abbreviated summary of the naval service of Dönitz. Suffice it to say that he was, without a doubt, the most brilliant U-Boat tactician of all time. Submarines will never again play the major naval role they played in World War II.
The American Admiral Thomas C. Hart (commander of the U.S. Asiatic Fleet at the outbreak of World War II, and later a U.S. Senator) wrote:
I rate Admiral Dönitz as the best of them all, land or sea. He was unique in his handling of the German submarines and they were our most dangerous enemy. His performance with them-and he did most of it himself-was the most outstanding Axis performance of the war. Then he succeeded to command all German Navy Forces. It was too late for real accomplishment, but he made no mistakes and no one could have done better. Then he succeeded the Führer himself, and his performance from there on seems to me to have been perfect. So I think Dönitz was the best.
~Quoted in [Lieutenant] R.M. Ancell, Jr., "Grand Admiral Karl Dönitz: Reflections at 80", U.S. Naval Institute Proceedings (March 1973)
Karl Dönitz was never a political man, and he took but little interest in the wearisome struggles of German political parties during the Weimar era. But he was an anti-Communist, a conservative, a nationalist, and, above all, a patriot. The principles of National Socialism were bound to appeal to him. According to the Dönitz biography in Encyclopedia of The Third Reich:
Dönitz was one of the few convinced National Socialists among high officers in the Navy. He praised Hitler in speeches to his sailors: 'Heaven has sent us the leadership of the Führer!' On one occasion he told a cheering crowd in Berlin that Hitler foresaw everything and made no misjudgments ... Hitler, on his side, had the utmost confidence in Dönitz ...
Dönitz wrote that his relations with Hitler were always formal and courteous:
I myself never thought about receiving presents or money from Hitler ... he only called me 'Herr Grossadmiral,' and never by any other name. I welcomed it that way.
In his Memoirs, Dönitz discusses Hitler's influence on other people, pro and con.
I myself had often been conscious of this influence, and after spending even a few days at his headquarters, I generally had the feeling that I would have to get away from Hitler's suggestive influence if I were to free myself from it. Further, to me he was not only the legitimate and legally appointed Head of the State, the man to whom I owed obedience, the statesman as distinct from the fighting man, but also a man of high intelligence and great energy ...
What was Admiral Dönitz like as a person? A gentleman of the old school, he was extremely reserved, a man of few words. He would reply to questions directly but briefly, and seldom expressed his personal feelings. He had a wry sense of humor, but was far from jocular. He had the ability to immediately see the crux of any problem and deal with it, without preliminaries. It was his natural tendency to find only good things to say about others, and in the absence of such, to say nothing. Dönitz was a family man who did not care for mixing in society, and he often expressed his fondness for dogs and children. His submariners, officers and enlisted men, were the apple of his eye, and he felt closely bound to them. He knew personally as many of them as possible, particularly his U-Boat commanders. Naval personnel uniformly respected him and referred to him as "Der Löwe" ("The Lion").
British Admiral of the Fleet Sir George E. Greasy wrote of him:
As a submarine Admiral whom I knew to be held in the deepest admiration and respect by Officers and Men of the U-Boat Fleet, I held Admiral Dönitz in respect myself, and there is no doubt that he handled his U-Boat arm with masterly skill and efficiency. In return he was served with great loyalty.
~H. Keith Thompson and Henry Strutz, Dönitz at Nuremberg: A Re-Appraisal (New York: Amber, 1976)
Dönitz, with the members of his government and other highranking members of the Hitler regime, was held at Bad Mondorf until mid-August of 1945. Conditions there were far from luxurious, but acceptable. As noted by the German historian Werner Maser, in his book Nuremberg: A Nation On Trial, many of the ranking prisoners of war at Bad Mondorf were under the misapprehension that any trials for "war crimes" would be trivial and insignificant, and that defendants would surely be protected by the fact that they had carried out directives of legally constituted superiors in a chain of command. Only after their transfer to prison at the so-called Nuremberg "Palace of justice" did they learn that Chapter VIII of the governing Charter stated:
The fact that the defendant acted pursuant to order of his government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment if the Tribunal determine that justice so requires.
~Werner Maser, Nuremberg: A Nation on Trial (New York: Scribners 1979)
Needless to say, the tribunal never made any such determination. An all-encompassing indictment was formulated, charging, as criminals, not only virtually every official of any rank in the Hitler government, military and civil, but also every party and military organization of consequence, including the Cabinet, Leadership Corps, SA, SS, SD, and even the General Staff and High Command of the Armed Forces. With the serving of the individual indictments, the status of the prisoners of war became that of accused criminals and they were confined under severe conditions, without any provisions for bail, even though unconvicted, and without any consideration for rank.
Before touching on the Dönitz case at Nuremberg, some general evaluation of the proceedings is necessary. From an analysis of the trials in general written by a distinguished American jurist, Hon. William L. Hart, Justice of the Supreme Court of Ohio (1939-1957) and lecturer on international law:
The tribunal involved was created ... by what is known as the London Charter entered into on August 8, 1945 by and between four nations-The United States, the Soviet Union, Great Britain and France-victor nations of World War II, for the purpose of designating and defining certain acts committed in the course of the war as war crimes and the prosecution of certain officials of conquered Germany charged with the commission of such crimes.
The Charter designated and defined three classes of crimes. Class A under which most of the defendants were charged and tried, defined the crime as follows: "The planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing" ... Under the heading of "Aggressor Nations," the Chicago Tribune, under date of October 2, 1946 ... carried an editorial which said: "The truth of the matter is that no one of the victors was free of the guilt which its judges attributed to the vanquished." Measured by the Code and standards applied in these trials, it is disturbing to contemplate how the officers of our American forces might have fared had they been tried for their conduct in letting loose the devastation which practically wiped out Hiroshima on August 6, 1945, and Nagasaki on August 9, 19459 the former two days before and the latter the next day after the adoption of the London Charter to which the United States was a party.
In my judgment, the procedure by which the Nuremberg Tribunal was created and the criminal trials thereunder conducted, was completely fraught with illegality ... American authorities have invariably taken the position that an individual forming a part of a nationally organized army or navy and acting under the authority of his government, cannot be held answerable as a private trespasser or criminal for acts committed under such authority. Such acts are considered acts of the state and not those of the individual...
Here, Justice Hart discusses in some detail the legal precedents, notably Dow v. Johnson, 100 U.S. 158,163, in which the U.S. Supreme Court held that an officer of the U.S. Army serving in an enemy country could not be held liable for injuries resulting from acts ordered by him in his military capacity. Also the famous McLeod Case (1840), in which Daniel Webster (then Secretary of State) held that an individual acting under the authority of his government could not be held answerable as an individual for acts performed in governmental capacity, it being "a principle of public law sanctioned by all civilized nations, and which the Government of the United States has no inclination to dispute." Justice Hart also deals at length with the attempts, after World War I, to try Kaiser Wilhelm II for alleged "war crimes," and the opposition thereto by U.S. Secretary of State Robert Lansing, and Dr. James Brown Scott, an eminent American authority on international law. Also the holding of Charles Cherry Hyde in his work on international law that no demands may be made for the surrender of individuals "to be punished criminally on account of acts which were not internationally illegal".
Justice Hart continues:
Furthermore, these four national powers instituting the Nuremberg Trials did not separately or jointly possess any sovereign power to create a special court to try alleged criminal offenses committed outside the territorial jurisdiction of any one of them- a sovereignty necessary under all systems of law to exercise authority over the fife and liberty of its subjects within its territorial jurisdiction. Nor did it possess sovereign authority to convict officers of the German forces of so-called criminal offenses not committed within such jurisdiction. It is true that some claim was made that under international law there exists certain "common law" crimes, not specifically created by legal enactment, which crimes existed and were recognized and prosecuted by the Nuremberg Tribunal. But this position was belied by the fact that the powers in question deemed it necessary to specifically define the crimes in the same joint charter which created the tribunal. The London Charter defined the offenses for which the defendants were tried in specific language heretofore quoted.
It has been generally conceded that there is no recognition of sovereign power which is the creation of or operates within the jurisdiction of international law. That none exists is to be inferred from the provisions of the Charter of the United Nations, Article 13 of which provides that the General Assembly may "initiate studies and make recommendations -- for the purpose inter alia -- of encouraging the progressive development of international law and its codification." The wording of the provision makes it clear that the Assembly itself is not empowered to create or codify international law, but to encourage the development and codification of such rules by the constituent nations or by international tribunals yet to be created.
There was also much valid criticism expressed in this country at the time of the trials, and since, to the effect that the nations involved in the prosecutions had seen fit to submit the matter of guilt and punishment to a make-shift court created by the prosecuting nations for the one special purpose and which went out of existence immediately upon securing the convictions for which it was organized. From a legal standpoint, there is no answer to this criticism. It was completely justified. The fact is that there does not exist and never has existed any international court or tribunal having jurisdiction to try offenses such as those named in the London Charter.
The designation and definition by the London Charter of the so-called crimes with which the defendants were charged, after such so-called offenses were committed, clearly violated the well-established rule against ex post facto legislation in criminal matters. The generally accepted doctrine is expressed in the adage: "Nullum Crimen Sine Lege"-a person cannot be sentenced to punishment for a crime unless he had infringed a law in force at the time he committed the offense and unless that law prescribed the penalty. Courts in passing on this proposition had declared that: "It is to be observed that this maxim is not a limitation of sovereignty, but is a general principle of justice adhered to by all civilized nations."
In my opinion, there was no legal justification for the trial, conviction or sentence of the so-called "war criminals" by the Nuremberg Tribunal. We have set a bad precedent. It should not be followed in the future.
There are many other valid reasons, not touched upon by Justice Hart, why the "trials" in general were as illegal as they were improper. To enumerate only a few: day-to-day changing of the "rules of evidence," so as to effectively deny to the accused the right of cross-examination guaranteed to them in the Charter; the manufacturing of evidence by the prosecution through the use of forged and/or unverifiable documents; admission into evidence by the prosecution of testimony known by them to be perjured; hindering access of the defendants to their counsel through delays and pettifogging; physical and psychological maltreatment of the defendants, and demoralization through the systematic looting of their personal effects, extending even to tooth powder; denial of a permissible defense in citing similar acts of Allied nations, etc.
Revisionist historians have made some headway in arguments which may hopefully lead to a general repudiation of the entire Nuremberg process. But it is at best an upstream fight against an entrenched establishment and of the mainstream publishing industry operated head-to-toe by the enemy. It is therefore particularly pleasing to see an establishment historian come to reason on the subject and successfully sneak it into print.
The British journalist-historian, Leonard Mosely, no friend of Germany or National Socialism, has authored 21 books, largely concerning World War II. In his biography of Hermann Göring, he writes:
The International Military Tribunal at Nuremberg was not a trial in the sense that is normally accepted in civilized countries. It had been officially announced before the proceedings began that it would generally follow the practices of British and American courts of law, giving the defendants the right to speak and to cross-examine. But even though the presiding judge, Lord justice Lawrence, was a venerable British jurist renowned for the impartiality of his judgments, both he and his American, French, and Russian colleagues knew what was expected of them, and that there could be no question of the principal accused winning acquittal. The defendants were doomed before the trial started, no matter what case they made for themselves in court ... It is true that three out of the twenty defendants were, in fact, acquitted. But most reporters at the trial could have guessed their number and names from the start [author's note: they were anti-Nazis] ... The purpose of the tribunal was not to give the accused a fair trial to the extent that they could introduce all kinds of relevant evidence in justification of their actions. That would have proved embarrassing ... their lawyers were warned that all attempts to implicate the Soviet Union would be disallowed ... There are some jurists who still maintain that Nuremberg was a perfectly valid legal process ... But in fact it was just as much a political trial as any which had taken place in Russia ...
~Leonard Mosley, The Reich Marshal (New York: Doubleday, 1974)
Some "liberal" elements in the U.S. continue to attempt to justify the Nuremberg process, imagining that they are thereby defending and asserting the so-called "rights of humanity." But the Nuremberg "trials," as well as the efforts to justify them, will someday be looked upon by historians and the more literate elements of the general population with the contempt which they so richly deserve. Nuremberg will come to be regarded as a monstrous error, similar in degree to the fateful intervention of the United States on the wrong side in two world wars. The World War I intervention was supposedly to "make the world safe for democracy" and to "end all wars." The first premise was undesirable, the second impossible. The equally evil intervention in World War II, a surrender to the agitation of the British, the Jews, and "internationalistic eggheads," in that order, began with "lend lease," "Bundles For Britain," and military-economic give-aways long before any formal declaration of war. It, too, was accomplished by fulsome slogans about defending the rights of humanity, saving oppressed mankind, and similar garbage. After all that saving and crusading, a new dawn of universal peace and brotherhood was supposed to follow. Take a look around you. The Nuremberg "trials" were primarily the result of neurotic hysteria, hatred, and hypocrisy. Yet there was a small, secondary, contributing element which purported to believe that "humanity" would somehow be nobly and idealistically served by the holding of such trials.
A study of recent U.S. government and Amnesty International reports on political killings should give those "humanists" some food for thought. Half a million people have been exterminated by the Khmer Rouge in Cambodia, another half a million in Indonesia, and millions more in various African "states." In the name of religious idealism, executions multiply in Iran. And in the name of Judaism, Christianity, and Islam - the three-headed beast - the killing continues in that unholiest of lands, crazily called the "Holy" Land. Meanwhile, on the domestic U.S. legal front, liberals, "humanitarians," and so-called lovers of democracy are zealous in their endeavours to protect the "rights" of real criminals, such as murderers, rapists, and thieves. These same liberal elements continually agitate for more "war crimes trials," for more hounding and hunting of alleged Nazis in this country and throughout the world, many of them refugees from Communist tyranny in Eastern Europe. These same "anti-Fascist" liberals, anxious to pursue and punish "Nazis," fail to show the same zeal for domestic criminals, real criminals, the perpetrators of violent crimes. On the contrary, they are opposed to capital punishment and obsessed with the rights of criminals.
The Nuremberg "trials" and the numerous "war crimes", "de-Nazification", and similar proceedings which followed them, are ideologically as ludicrous and deserving of contempt as America's intervention in two world wars to "make the world safe for democracy" and to "save oppressed humanity." What is not ludicrous, however, is the massive human suffering caused by the pernicious meddling of the United States of America in the affairs of its betters.
What were the real origins of the Nuremberg proceedings? How did the U.S. fall into this quagmire of hypocrisy and lend its offices and personnel to a victors' tribunal falsely represented as some sort of noble experiment in international law? Some of the sinister background is well developed in the book The Road to Nuremberg by Professor Bradley F. Smith. Certainly no friend of Germany or of revisionism (which he attacks), Prof. Smith, knowingly or not, reveals the Jewish origins of the "trials" and shows that they were essentially an American production. Among the "cast of characters" in Smith's book are Henry Morgenthau Jr., Murray C. Bernays, Sidney Alderman, Bernard Bernstein, Felix Frankfurter, Sheldon Gluck, Hersch Lauterpacht, William Malkin, Sam I. Rosenman (adviser to F.D. Roosevelt), Herbert Wechsler, Frederick Bernays Weiner, and Harry Dexter White (Weiss, the Russian agent), as well as the American Jewish Conference, to name but a few.
The struggle of Henry L. Stimson against the malicious influences of Henry Morgenthau, Jr., is interestingly recorded. Of Stimson, Smith writes:
Stimson was a social anti-Semite.... His diary entries include references to Morgenthau's 'race' and his 'Semitic' characteristics.... Stimson decried the fact that Morgenthau had taken the lead in advocating harsh peace terms. Specifically, he believed that this could rebound and provide ammunition for those who would attribute all stringent controls on Germany to a mere 'Jewish' desire for revenge.
~Bradley F. Smith, The Road to Nuremberg (New York: Basic Books, 1981)
In discussing the trials of Nazi organizations, Smith notes:
For the system to work as intended, the prosecution had to convince a court, which was trying to appear legally respectable, that it should overlook shaky evidence, as well as its scruples, and condemn millions of organization members on the basis of collective guilt.."
As a clue to the Americanization of the entire Nuremberg process, Smith writes,
After carping at American planning - filling the hallways with snide remarks - even most British officials ultimately admitted that American energy and determination had beaten the odds and turned Nuremberg into a more successful enterprise than had been thought possible.
The influence of Morgenthau and his ilk in promoting the ill-conceived doctrines of unconditional surrender, harsh occupation terms, and trials of the defeated German leadership, in fact prolonged the war.
Admiral Dönitz was well aware of this:
We knew of American Treasury Secretary Morgenthau's plan which, after victory, would have destroyed Germany to make it pasture land and an agricultural nation. If his plan would have succeeded, millions of Germans would have starved. For reasons decided at the Casablanca Conference, the Allies would have made peace with Germany but only under the condition that we surrender completely. That would have meant that German troops would stay where they stood at that time, lay down their weapons, and become prisoners of the enemy. That would have been three and-one-half million soldiers on the Eastern Front which, in 1944 and 1945, stood far inside Russia, and it would have been impossible to provide these troops with food and shelter, even with the best organization ... These were the reasons why we did not surrender. The decision to ask for unconditional surrender at Casablanca was a political mistake.
Dönitz was magnificently defended at Nuremberg by Flottenrichter Captain Otto Kranzbühler, a naval judge advocate. In a chapter on Dönitz in his book on Nuremberg, Werner Maser furnishes a lengthy account of the Dönitz defense, recommended for those interested in the details. Despite a remarkable defense supported even by American Fleet Admiral Chester W. Nimitz, Dönitz was convicted and sentenced to ten years imprisonment, a light sentence compared to others meted out, but not light for an innocent man who had to serve every day of it, and more. Of what precisely the Grand Admiral was convicted, we shall never know.
The legal authority H.A. Smith, Professor of International Law in the University of London, held that
... The clumsiness and obscurity of this language [findings in the Dönitz case] perhaps indicate the embarrassment which the members of the Tribunal felt in dealing with the case of Dönitz, and it is not easy to ascertain from the rest of the judgment the precise facts upon which he was condemned.
~H.A. Smith, The Law and Custom of the Sea (London: Stevens & Sons, seconded. 1954)
Hon. S.A. Rahman, Chief Justice of Pakistan, wrote:
... apart from the question of the validity or desirability of the Nuremberg trials, the guilt of Dönitz ... could not be said to have been established beyond a reasonable doubt on the basis of the material before the Special Tribunal.
Rear Admiral Dan V. Gallery, U.S. Navy, summed it up:
The outstanding example of barefaced hypocrisy at Nuremberg was the trial of Admiral Dönitz. We tried him on three charges: (1) Conspiring to wage aggressive war; (2) Waging aggressive war; and (3) Violation of the laws of war at sea. Even the loaded court at Nuremberg acquitted him of the first charge, but convicted him of the other two. How in the name of common sense a military officer can wage any kind of war except an aggressive one without being a traitor to his country, I'll never know.... Dönitz's conviction on charge three ... was an insult to our own submariners.... The only crime he committed was that of almost beating us in a bloody but "legal" fight.... The Nuremberg trials placed a solemn stamp of approval on a code of war at sea which we not only didn't follow ourselves in World War II but which may embarrass us in the future ...
~Dan V. Gallery [Roar Admiral, U.S.N.], Twenty Million Tons Under the Sea (Chicago: Regnery, 1957) - from the epilogue
Here it should be noted that Admiral Gallery has employed the layman's definition of "aggressive", rather than that of the international lawyer-which is absolutely permissible because the Nuremberg Tribunal failed to offer any definition of "aggressive war" whatsoever.
Dönitz himself covered the legal point in an interview with William Buchanan in The Boston Sunday Globe, 8 December 1963:
The newly created principle of law does not define clearly what an aggressive war is. Because whether a war is an aggressive one or not is purely a political question. Politics of every country will try to prove that the other is the aggressor or that one's own country must feel so threatened that it was compelled to act in self-defense. So if ... the participation of an individual soldier in an aggressive war will be punishable in future by this new Nuremberg proposition of law, every single soldier of every nation would have to be accorded the right at the outbreak of hostilities to ask his government to account for its actions and to grant him access to all political documents so that he may form his own judgment as to whether he will be taking part in a war of aggression or not.
Following his sentencing on 1 October 1946, Admiral Dönitz served his time, bravely and without complaint, at the old Spandau prison in West Berlin. Under any Western system, the conditions of imprisonment would have constituted "cruel and unusual punishment," and would have been ameliorated by courts. The German leadership was ill-treated, ill-fed, and ill-clothed, under monstrous conditions, with every manner of petty torture and indignity imposed upon the elderly prisoners. They knew little of the events of the outer world, had only a very limited and highly supervised contact with their families, and had but little contact with each other. Dönitz maintained his dignity through his inner strength, and he never wrote of his prison experiences in books or articles, unlike the little rodent, Albert Speer, who twisted facts and altered "reminiscences" to obtain fat contracts from the establishment publishers for his confessionals. Speer, anxious to "confess" to anything which the prosecutors might suggest, sought at Nuremberg to assume "moral responsibility" for anything which had transpired in Hitler Germany, even what the travelling salesman did to the farmer's daughter. He maligned those defendants who stood up to the court, including Dönitz.
In his Spandau diaries (18 March 1948), Speer noted, however:
... Dönitz; abruptly and aggressively says to me that the Nuremberg verdict made a mockery of all justice.... I cannot deny that Dönitz; is partially right in his rejection of the Nuremberg verdicts
and on 10 December 1947, Speer recorded:
For all his personal integrity and dependability on the human plane, Dönitz has in no way revised his view of Hitler. To this day, Hitler is still his commander in chief
~Albert Speer, Spandau: The Secret Diaries (New York: Macmillan, 1976)]
In an entry on 3 February 1949, Speer complained:
Schirach, Räder and Dönitz are distinctly cool toward me.... They disapprove of my consistent and basic rejection of the Third Reich.
Of special interest is a Speer diary entry of 20 January 1953, in which he quotes the reaction of Dönitz to the election of Theodor Heuss as President of puppet West Germany:
He [Heuss] was installed under pressure from the occupying powers. Until all political parties, including the National Socialists, are permitted to function and until they elect someone else, my legitimacy remains. Nothing can change that one iota. Even if I wanted it changed.... Even if I renounced the office I would remain chief of state, because I cannot renounce it until I have appointed a successor ...
During 1952-1953, a remarkable and fascinating plan was developed in West Germany, with roots extending to Spain, Argentina, and even the United States, for the liberation of the Spandau prisoners by commando-type military action, and the setting up of the Dönitz' government elsewhere as a legitimate government-in-exile. Although the financing was available, and many dedicated men were involved, security was compromised in Germany and the matter became a field day for Allied journalism, resulting in a number of arrests. The full facts were never known and never will be, even though most of those involved are now deceased, just a few years ago.
Rather, more legal attempts were made to secure the release of Grand Admiral Dönitz. On 19 May 1955, Dr. Kranzbühler requested the intervention of the West German regime with its Allied masters to secure the deletion from his sentence of 16 months spent in incarceration before and during trial. [Reuters dispatch, New York Times (19 May 1955)] Under most Western systems of jurisprudence, this is a routine procedure. On 27 May the Allies denied the request. New York Daily News (27 May 1955). Time (6 June 1955)] They were to make Dönitz serve every day of the Nuremberg sentence. The Allies regarded him as unrepentant and they feared political repercussions should Dönitz attempt to resume his function as Head of State, for which, by then, no small amount of support existed in West Germany among rightist groups, patriotic organizations, and the large associations of World War II veterans, with their growing economic and political clout.On 1 October 1956, Dönitz was released, and the event was widely heralded in the world press. On the scene, there were altercations between the police and the press. Various newsmen were clubbed in an effort to keep them from the Grand Admiral.
Time magazine, on 24 September 1956, in an article headed "The Lion Is Out," repeated old smears of Dönitz, attributing to him remarks which he never made. There were many other voices. The Chicago Tribune, in its editorial of October 6, 1956, summed it up capably:Grand Adm. Karl Dönitz ... has completed his 10 year sentence as a "war criminal" and has been released from Spandau prison in Berlin. He was sentenced by an international tribunal at Nuremberg, acting under ex post facto "law" invented for the occasion. The penalties prescribed were never legislated by any lawmakers, but by representatives of the victor countries who then took over the prosecution. The presence of Adm. Dönitz among the defendants presented the victors with an unforeseen embarrassment. He was charged with having conducted unrestricted submarine warfare. The tribunal reluctantly admitted that, in assessing this charge, an order of the British admiralty, dated May 8, 1940, directing that all vessels in the Skagerrak should be sunk without warning, could not be disregarded. The tribunal was also obliged to take cognizance of the undisputed fact that the United States, from the first day of the war, had also waged unrestricted submarine warfare ... Nevertheless, the blanket charges against the defendants of planning, preparing, initiating, or conducting aggressive war were sufficiently broad to produce a finding that Adm. Dönitz was guilty of something- probably the crime of fighting, as a professional officer, in the service of his country. He got 10 years -- a verdict proving once again that might makes right, and that hypocrisy can surmount all obstacles.
The public relations campaign for Dönitz gradually took root. On 28 August 1958, in a New York Times article captioned "Dönitz Gaining in Public Prestige", it was noted that just 22 months after his release from Spandau,
Grand Admiral Karl Dönitz has emerged as a nostalgic public figure in West Germany ... the benign ghost of Germany's old spartan naval tradition. This role, modestly played, has restored Dönitz' prestige in German naval circles ...
~Arthur J. Olsen in New York Times (28 August 1958)
While it had never been so intended, part of the Dönitz testimonial collection was published as a book, Dönitz at Nuremberg: A Re-Appraisal. Field Marshal Lord Henry Maitland Wilson of Libya, Supreme Allied Commander in the Mediterranean theatre, wrote:
During my period of Command in the Middle East and Mediterranean Theatres, there were no breaches of International Maritime Law by the Axis Powers reported to me.... the Nuremberg Trials were staged as a political stunt.
And Tom C. Clark, justice of the U.S. Supreme Court (1949-1967) and U.S. Attorney General at the time of the Nuremberg proceedings, wrote of the book:
The series of opinions expressed by executives, legislators, jurists, militarists, writers, diplomats and royalty run the gamut of concerned leaders of our time. These learned minds not only isolate the Nuremberg 'principle,' placing it in right perspective, but at the same time cite the able and devoted Admiral as a victim of the precept. I hail this anthology as required reading for all who are interested in equal justice under law for the defeated as well as the victorious.
Following his release from Spandau, Admiral Dönitz promptly went to work on his memoirs, the German edition of which (10 Jahre und 21 Tage) appeared in 1958, to be followed by an English and an American edition . Getting the memoirs of Dönitz into print in Germany in 1958 was a major problem. It would have been better to wait for some years, but of course the Grand Admiral did not know how long he would live. It was necessary to make undesired concessions. Thus the memoirs are largely concerned with the naval war and submarine strategy.
There is no discussion of the Spandau years (which, in any case, Dönitz would not discuss), criticism of the Allies is limited, and any discussion of the Nuremberg proceedings is confined to specific issues, largely concerning the conduct of the naval war. There is some criticism of National Socialism, largely confined to the "leadership principle," with a bone thrown to "democracy," and some criticism of the camps, which Dönitz opposed in principle. He was of the opinion that the concentration camp concept had first been employed by the British against the Boers in South Africa, and was amused to learn from me that "concentration camps" were originated by the American patriarch, General George Washington, to handle the troublesome Quakers during the American Revolution. Because of their opposition to war, he rounded them up and herded them into camps where he left them to starve unless fed by other Quaker sympathizers. The concept flowered again in the sinister mind of Franklin D. Roosevelt, who herded Americans of Japanese ancestry into such camps in the World War II era. All nations have had their share of detention and labor camps, even the Nazis, but it was an American concept pure and simple.
From it emerges a picture of an upright, non-political naval officer with brilliant and original ideas on the employment of U-Boats as destroyers of shipping. A man who might have won the war for Germany if he had been given the three hundred U-boats for which he asked.... Sadly, Dönitz quotes Nelson: "Only numbers can annihilate." He never had the numbers.
The Dönitz Memoirs, in their various editions, were generally well received. In reviewing the English edition, H.R.G. Whates, in an article captioned "A Formidable Antagonist of Britain," in The Birmingham Post of 9 May 1959, wrote:
On 24 December 1980, he died peacefully in his 89th year. The jackals went quickly to work. The Bonn regime denied him military honors and ordered no wearing of uniforms at his services, which were crowded with former servicemen of high and low rank, seeking to pay their last respects. The obituaries were varied, generally favorable in Germany (with notable exceptions), respectful in England, and nasty, semi-literate hack jobs in the United States. As one might expect, the wire services went right to the old World War II propaganda files and the Nuremberg garbage, with no attempt whatever to bring matters up to date. The New York Times was among the worst. H.L. Mencken had called it, "a pompously sterile sheet." At any rate, the story was over. Karl Dönitz passed into history.
With the death of the Grand Admiral, the controversy over his legitimacy as Head of State passed into limbo. During the late 1970's the matter had been revived in an unfortunate way. A right-wing radical in Germany, one Manfred Röder, sought to proclaim himself "Regent of the Reich" and issued, through a collaborator in Buffalo, N.Y., a formal protocol bearing the forged signature of Admiral Dönitz, implying his agreement to this ludicrous proposition. On 22 September 1978, an editorial in the Deutsche National Zeitung, a right-wing newspaper in Germany, stated:
Errant spirits who pass themselves off as 'rightwingers' have recently tried to create the impression that they were acting on behalf of Grand Admiral Karl Dönitz when they claim for themselves the function of a 'Regency of the Reich.' The Grand Admiral has expressed himself as follows on the subject ...[Dönitz, statement prompted by the Röder affair [with editorial comment]
~Deutsche National-Zeitung No. 39 (22 September 1978)]
There followed a lengthy statement dated at Aumühle on 2 July 1975, in which Dönitz pointed out that, after the passage of then some 30 years, the serious possibility of his claiming the office of President of the Reich had to be ruled out. He continued:
In my statement of May 1, 1945, 1 did in fact very consciously characterize myself not as President of the Reich but as Head of State. I did so in order not to render more difficult the purely factual process of the exercise of the supreme power of government by complicating it with constitutional-legal problems. This de facto exercise of the supreme governmental power most certainly came to an end decades ago. In this connection, I leave it to historians to determine the precise moment when. After my release from Spandau jail in 1956, when theoretically I might have done so, I never declared that I continued to regard myself as President of the German Reich. Because of the political circumstances which have since developed, such a declaration would not only have been of no consequence legally, but also politically unwise ... [it] ... could only have had a deleterious effect on the will to re-unification of the entire German people.
There was disagreement among those who advised Dönitz as to the wisdom of his statement. The German radical who backed Dönitz into this corner now languishes in a West German jail -- on other grounds to be sure, but the Bonn puppet has a long arm and no sense whatever of law or of individual rights. One thing seems certain: no future government of a United Germany can take office without a claim of continuity based on the Dönitz government, the last government of the Reich.