Siegerjustiz and the Peleus Affair
by Dwight R. Messimer
Heinz Eck's attorney, Dr. Todsen, opened the case for the defense on the afternoon of Thursday, October 18, by admitting that the basic facts of the case were not in dispute-his client confirmed everything the five prosecution witnesses had said. But the destruction of the large rafts, argued Todsen, was an "operational necessity" created by the presence of efficient anti-submarine units-especially aircraft-in the South Atlantic. The fact that the Peleus survivors would certainly die as a result of the rafts' destruction was an unavoidable cost. He argued that there was no intent to specifically attack the survivors.
Left: Professor Albrecht Wegner
Professor Wegner, the international law expert retained on behalf of all of the defendants, stepped forward to address specific issues in his area of expertise. Wegner's presentation, similar in style to a classroom lecture, was essentially an outline of legal issues that would be fully addressed later. He began by noting that the charges against the accused were for a breach of the "customary" laws of war, not any article of any specific Convention. He stated that since 1914 there had been continued and progressive changes in the usages of war, although he did not provide any examples. He did, however, hint that the "modern conception of war crimes" was at odds with those changes.
Wegner also raised five other points without arguing any of them. Two of the points were clearly intended as the basis for an aggressive defense. First, he cited the Latin phrase Nullum crimen sine lega, Nulla poena sine lege (no crime without the preceding law, no punishment for an act committed before the law was enacted), an unambiguous reference to the vague nature of the charges against Eck and his crew. The charge of war crimes, Wegner concluded, presumes a guilty knowledge or intent. Unfortunately, the court was not going to listen to arguments based on fine legalistic grounds, and the defense was simply not aggressive or adept enough to convince it otherwise.
After Wegner concluded his lecture-style defense, Dr. Todsen again took the floor. During World War I, he argued, "both sides were, under certain conditions, allowed to attack lifeboats, even survivors." Although his reference was vaguely stated, he may have been referring to the Baralong Affair and the so-called Baralong II Affair.
The HMS Baralong, a Q-ship commanded by LCdr. Godfrey Herbert, sank U-27 and shot the survivors in the water. Some of the Germans, including SM U-27's captain, Kptlt. Bernhard Wegener, sought refuge aboard the SS Nicosian, which had been abandoned by its crew and was still afloat. Herbert sent marines aboard the Nicosian who hunted down and killed the remaining German survivors. The deed would have gone unreported except that among the Nicosian's crew were several Americans who told the story to the American press when they got home. The British response was to claim "operational necessity" based on the possibility that the Germans might have armed themselves and escaped aboard the Nicosian.
The other event to which Dr. Todsen was probably referring was the destruction of SM U-41 by the same British Q-ship on September 24, 1915. In that case the Baralong, renamed Wiarda, lured U-41 into range and sank the U-boat with gunfire. After the Wiarda left the area the only two survivors, Oberleutnant z.S. Crompton and U-Steuermann Godau, climbed aboard an abandoned lifeboat. About three hours later the Wiarda returned and deliberately ran down the lifeboat. Miraculously both men survived the ramming and, in a turn of events, were subsequently rescued up by their former attacker.
Whatever Todsen was referring to, the argument received an immediate and clever response from the prosecutor, Colonel Halse. Halse informed the court that if Todsen was going to introduce evidence to support his claim, the prosecution would have to ask for an adjournment to prepare a rebuttal. The Judge Advocate indicated that if needed, he would grant the adjournment.
At this point it became evident that Todsen was not prepared to follow-up on his claim with actual evidence. Instead, he told the court he assumed the fact was common knowledge and that the court would take judicial notice thereof. When the Judge Advocate refused to do so, Todsen let the matter drop.
Why did Eck's attorney back down so quickly? Certainly he had no way of knowing what the Americans had done in the Pacific during World War II, but he was on solid ground with several other examples from both world wars, about which there was ample information. Had he pressed the matter the court would have adjourned to give the prosecutor time to prepare. That same adjournment could have been used by the defense to obtain the documentary evidence it needed. Todsen crumbled in the face of Halse's thinly-veiled bluff, and an important opportunity to bolster his client's defense slipped past.
In Todsen's defense, he probably recognized that the court had already made its decision about the defendants' guilt, and thus further effort in obtaining such evidence was useless. It is also possible that he believed he would antagonize the court by introducing examples of similar British acts for which his client now faced execution. But by that time it was obvious which direction the court was leaning, and antagonizing the court would not have made things any worse than they already were.
Heinz Eck took the stand that afternoon. If Todsen was hoping the ex-U-boat commander's testimony would bolster the sagging defense, he was sadly mistaken, for Eck did nothing to help his case. His answers, short and often abrupt, failed to explain why he had been so concerned about the threat from aircraft. Todsen also turned in another weak effort by failing to provide Eck with the opportunity to expand on his answers. It was a poor performance by both men.
Eck did establish, however, that his sole intent was to destroy the rafts because he believed they would have been easily spotted by aircraft the following morning. He also told the court he had been concerned about the possibility that the rafts might have been equipped with emergency radio transmitters. But he insisted that though he knew, and accepted, that the survivors would die as a result of his action, it was never his intent to kill them. Eck also explained that he thought the rafts were built on hollow floats and would sink if the floats were punctured by machine gun fire. When that did not happen, he had the signal light turned on so that they could examine the rafts and determine why they would not sink. The decision to use hand grenades to blow up the life rafts came about only because the machine guns had failed to do the job. Nevertheless, he continued to fire at the rafts with machine guns because there did not seem to be any other way to accomplish his goal.
Eck insisted he never saw any signs that the rafts were occupied during the attack because it was too dark to see clearly. The rafts, he testified, were simply large, dark forms on the water, and he assumed the occupants had jumped off at the first machine gun burst. He admitted, however, that he realized there might be people on the rafts even after the firing started. Regardless of whether or not he knew there were survivors in the water, he was forbidden by orders from rescuing them or offering any assistance. Eck concluded with an explanation of why he felt it had been necessary to explain the action to his crew. He said that he had "made the decision with a heavy heart." At this point the Judge Advocate interrupted the questioning.
Judge Advocate "What decision?"
Eck's answered the court in German, which was translated by a court interpreter. "To destroy the remainder of the sunken ship." A problem arose at this point from the English translation of the German word, "Überreste." Dr. Todsen, who spoke English, quickly objected to "the remainder of the sunken ship" being the translation for "Überreste." "That is not quite a translation," he told the Judge Advocate. "It could be wreckage or it could be rafts."
"In French it would be debris-wreckage?" queried the Judge.
Todsen, still speaking in English, handed the Judge Advocate an opening to exploit. "Literally it means all that has been left by the sunken ship."
Judge Advocate, exploiting the opening, addressed his question to Eck, "That would include survivors, did it not?"
Eck answered in German which was translated, "I cannot remember the verbal message any more."
"That is not what I am asking," said the Judge Advocate. "Did you say just now that you had made your decision with a heavy heart?"
Eck answered, "yes."
"That was the decision to destroy what you call the Überreste?"
"The Überreste included survivors, did it not?" pressed the Judge Advocate. Eck's answer in German translated as, "I do not know exactly the words I did use at that time." Eck's answer sounds evasive, but it may not have been. He certainly used the word "Überreste" in court. But on the night of March 13, he may have used the term "Schiffstrümmer," a nautical expression for wreckage. In any event, he should have stated clearly that "Überreste" meant the wreckage, and had nothing to do with human survivors.
In a stunning legal lapse, Dr. Todsen, whose command of English was excellent, failed to intervene on his client's behalf and blunt what was clearly a prejudicial attack from the bench. Todsen could easily have made it clear that the German word for survivors is "Schiffsbrüchige." By failing to act forcefully on behalf of his client, Todsen allowed the court to equivocate an act in which the intent was limited to the destruction of wreckage, with an act that included the intent to kill the survivors. Todsen tried to recover some of the lost ground. What, he inquired, would "your enemy have done in a similar position?"
He knew the direction he wanted to go with the question. He was trying to open the issue of the Laconia Affair to support his claim that the usages of war had changed and the Allies also were willing to justify killing shipwreck survivors as an operational necessity. The Laconia Affair seemed to be safe ground because it involved American servicemen instead of British personnel. Thus, bringing it up might not antagonize the court.
The Laconia, a 19,700 ton former Cunard liner, was torpedoed and sunk by Kkpt. Werner Hartenstein in U-156 on September 12, 1942. Unbeknownst to Hartenstein, the Laconia carried some 3,250 people, among them eighty British women and children, 160 Polish ex-POWs, 188 British service personnel and 1,800 Italian POWs. After he sank the liner, Hartenstein surfaced and discovered to his astonishment over 2,000 people struggling in the water, many of them Italian POWs. Hartenstein immediately began rescue operations and notified BdU. Admiral Dönitz ordered two other submarines, U-506 and U-507, to the area to assist in the rescue. The Italian submarine Cappellini also raced toward the scene. Even the Vichy French were asked to assist. In clear English Hartenstein broadcast that if he was not attacked, he would not interfere with any ship aiding in the rescue.
The recovery of survivors was still in progress on the morning of September 16. By this time Hartenstein's U-156 was crowded above deck and below with 110 British and Italian survivors, including five women. The U-boat also had four lifeboats in tow filled with additional victims. She was cruising on the surface for a rendezvous position with a French ship when an American B-24 from Ascension Island came into view at 930 a.m. The other U-boats (U-506 and 507) were similarly loaded with survivors. Hartenstein ordered a Red Cross flag draped across the forward deck gun and sent light signals to the bomber asking for assistance. The B-24, piloted by Lt. James D. Harden turned away and radioed Ascension Island for orders. It should have been clear to him that a rescue operation was underway.
The officer called upon to make a decision that day was Capt. Robert C. Richardson III. As he saw the situation, he had two choices. He could recall the B-24, which would mean that the U-boats would later be able to attack Allied shipping. Or, he could order an attack, accepting the fact that many of the survivors would certainly be killed. The signal sent to the B-24 was short and direct "Sink sub."
Harden turned his B-24 back toward the scene and dropped down to make a low-level attack with bombs and depth charges. One bomb fell among the four lifeboats being towed behind the U-156, while the others exploded around the U-boat. Under attack, Hartenstein was left with no choice. He ordered the survivors huddled on deck back into the water, and sought the safety of the deep. Captain Richardson justified his decision as an "operational necessity" based on the need to protect Allied shipping from future attacks. The fact that shipwrecked survivors-including women and children-would probably be killed was an unfortunate reality that had to be accepted.
Eck told the court what he knew of the Laconia Affair, and concluded with about the strongest statement he made in his own defense. "This case showed me that the enemy's military reasons go before human reasons, before saving the lives of survivors. For that reason, I thought my measures justified."
Todsen completed his direct examination of his client, and Colonel Halse rose to cross-examine Eck. His opening questions were intended to reestablish the facts of the case in Eck's own words, an easily obtained goal. Over time the tone of the questions subtly changed as Halse laid the groundwork to snare Eck. By precisely choosing the right words in his queries, and getting Eck to use specific words in response, Halse depicted Eck as a heartless brute. Certainly the manner in which Eck's answers were translated for the court was important in helping to develop the desired effect.
First, Halse compelled Eck to admit that U-852 had been on the surface during daylight despite the threat of being discovered by aircraft. He then concentrated on the attack on the rafts, which lasted for five hours. Picking his questions carefully, Halse secured from Eck an estimate as to the number of survivors in the water during the attack on the rafts. Eck estimated the number to be about twelve. Halse now had the information he wanted. Having established that Eck had at least some idea about how many people were in the water, the colonel struck hard and fast.
"It was essential that the rafts should be destroyed?" asked Halse, knowing there was only one consistent answer Eck could provide.
"Yes," came Eck's reply.
"And at one o'clock the rafts were not destroyed?" Halse further inquired, once again knowing in advance the answer to the question.
"Why did you stop firing at the rafts at one o'clock?" Halse was carefully setting his verbal trap for the unsuspecting Eck.
"I saw no further possibility to destroy the rafts," explained Eck. "I had tried it with machine gun fire, hand grenades and ramming, but it was no good."
Halse sprung his trap. "Was it not because there were no more survivors left?"
"I did not concern myself with that," Eck responded. Given the line of questioning the answer was a good answer. It was not the best answer he could have given, however, and the damage was done.
Halse, however, was far from finished. Questions about the speech Eck made to the crew and the reason for the speech set up the ex-U-boat commander for the next body blow.
According to Eck, he had told his crew "If we are influenced by too much sympathy, we must also think of our wives and children who at home die as the victims of air attack."
"Sympathy about wreckage?" Halse asked incredulously (and disingenuously).
"It was quite clear that the survivors would also die," Eck responded. Again, Eck had missed an opportunity to blunt Halse's pointed attack. He should have told the court he had sympathy for the survivors, and their inevitable death was a source of grave concern to him. That he was faced with an operational necessity, and the survivors' deaths were a tragic consequence of war. He said none of these things.
"You did not mind whether they died or not?" Halse continued.
There was a hint of irritation in Eck's answer. "In my remarks over the loudspeaker I had said that I did care about it." Either Eck was angry or the translation was particularly prejudicial.
Dr. Todsen reexamined Eck in an attempt to plaster over some of the damage Colonel Halse had inflicted. Unfortunately for Eck, Todsen's questioning was once again unimaginative, and Eck's answers did little in the way of assisting his defense. With little or no new ground being covered by Todsen's line of questioning, the Judge Advocate again interrupted with his own line of inquiry.
"How many times have you seen a ship sunk?" was how he opened his examination. Clearly the Judge Advocate had been pondering Eck's claim that he was trying to eliminate all traces of the sinking.
"Five times," Eck answered, referring to his training war patrol aboard Mohr's U-124.
"Have you ever seen a ship sunk that did not leave a large patch of oil on the surface?" The thrust of the question was clear, but either Eck missed the point or the question was incorrectly translated into German. In any event, his answer did not match the question.
"They were not all tankers," he answered.
"I am not talking about tankers. I am talking about traces of oil from ships of any kind."
"I tried twice to find any traces from ships," Eck replied, "but I was unable to find any."
This response provided Todsen an opening to exploit. Here was an opportunity to discuss the effect that weather and the speed with which a ship sank might have on whether a ship left oil behind, or how visible on the surface that substance might or might not be. Todsen failed to grasp the opportunity.
"Do you say that such a ship as the Peleus can be sunk without a trace of
oil?" continued the Judge Advocate.
"If it is a coal burning ship, it is possible," came Eck's poorly-worded reply. Eck knew the Peleus was not a coal burner. At best the answer made him appear to be splitting hairs or, more likely, evading the question.
The Judge Advocate changed tack with a series of hard hitting questions that would have been better asked by the prosecutor. "Would it not have been much safer for you and your boat to clear out as soon as possible?" he asked, wanting to learn why Eck had not used his ability to cruise at high speed on the surface to leave the area, instead of lingering around the scene of the sinking for five hours.
He also asked if Eck had made any attempt to find out if the rafts were in fact equipped with radios. When Eck said he had not, the Judge Advocate asked, "You could have done so; could you not?"
The Judge Advocate also revealed for the first time that first watch officer Gerhard Colditz had objected to the decision to destroy the rafts. Then came a slanted-and loaded-question "When you said that you regretted your decision, was that not a reference to a decision to kill survivors?" (emphasis added). Eck's response, if it had been consistent with his previous testimony, would have been that he had never made a decision to kill survivors. Instead he simply said, "yes."
The Judge Advocate continued the attack, asking why Eck had chosen to use machine guns to destroy the rafts instead of the 105mm deck gun. The range, Eck replied, was too short to accurately aim the gun. Again, Eck left himself vulnerable and the Judge Advocate jumped at the opportunity. "Of course, if you only wanted to destroy survivors, a machine gun would be a better weapon; would it not?"
Yet again Dr. Todsen tried to mend the damage wrought by the Judge Advocate's questions and Eck's poorly-worded replies, but his indifferent questioning led nowhere and Eck's answers were too brief.
The second day of the trial ended at 500 p.m. with Eck still on the stand. The other defense counsels would have an opportunity to cross-examine Eck when the court reconvened at 1000 a.m. the next day.
While it had not been a good day for Heinz Eck, neither was it for the remaining defendants. Unlike Eck's situation, the defense of Weispfennig, Hoffmann, Schwender and Lenz rested on the concept that they were following orders, a requirement essential to military order and discipline in all armies. The issue at hand, however, was not a matter of simply following an order. In this court there was a higher standard-the order had to be a legal order. Therefore, it was essential that Eck's "operational necessity" defense succeed. If Eck was found guilty, the others would likewise be convicted.
Friday, October 19, was the first full day the court was in session. In cross-
examining Eck, the defense of the remaining four defendants had to establish
that in the German navy, disobeying an order was a capital offense. In fact,
anyone disobeying an order could be shot on the spot by his superior officer.
That point was clearly made by Major Lermon, who was defending Lenz.
"Is it a serious offense to disobey an order on active operations?" Lermon inquired of Eck.
"For not carrying out an order in the face of an enemy," Eck flatly stated,
"one is punished with death."
"Who can carry out that punishment?" Lermon asked.
"At sea the commander has the right of doing that," Eck told him.
Left: Dr. Gerd-Otto Wulf
The cross-examination by Drs. Pabst and Wulf lacked vitality and developed no information to further support what Major Lermon had established. International law specialist Dr. Wegner questioned Eck about what he had said to the crew after the shooting. At issue was the translation of the German word "Schlagwort." The court interpreter had translated it as meaning "slogan," implying that Eck addressed the crew using propaganda terms. Wegner argued that "catch-word," though not exactly proper, would have been a better translation.
Speaking in English, he told the court, "Schlagwort means to put a thing as sharp as possible. Sometimes we also say, 'to speak in telegram style.'" Then he asked Eck what he had meant by the word "Schlagwort."
Eck answered that it had been his intention "to make everything clear to the crew in short sentences. . . .That is why I gave the example of the air attacks in order to make clear to the crew that also with the enemy military reasons could lead to disregarding women and children."
British policy, which had initially refused to bomb targets in the Ruhr in 1940 for fear of damaging private property and killing women and children, evolved into the wholesale slaughter of civilians in area bombing of cities. Clearly such a policy shift constituted a major change in the usages of war. But even the British were careful not to admit that they were targeting civilians. In their words they were simply "dehousing Germans."
His testimony at an end, Heinz Eck stepped down and Dr. Todsen recalled a prosecution witness, Mr. John C. Mossop, who had been involved in the interrogations of all the U-852 defendants. It was Todsen's hope that he could use Mossop to demonstrate that the threat of air attack on U-boats in the South Atlantic was substantial. He asked Mossop about aircraft coverage between Freetown and Ascension. Mossop told him that in a maximum effort, five or six aircraft could be kept airborne between Freetown and Ascension. He also said that aircraft carriers operated in that area from time to time.
Todsen also quizzed the witness about the "Hartenstein Affair," meaning the Laconia Affair. Mossop described the event with about the same detail Eck had used when he described it on the trial's second day. Eck's counsel, however, took a different direction than that which might have been expected. Instead of using the incident to show similar behavior by the Allies, and thus demonstrate a change in the usages of war, he asked if the BdU had issued any instructions following the incident. Mossop answered, correctly, that orders were issued that no attempt of any kind should be made to rescue survivors. Todsen then called Adalbert Schnee, who was to be his star witness, to the stand. Korvettenkapitän Schnee, holder of the Knight's Cross with Oak Leaves, ranked twenty-second among the war's most successful U-boat commanders. He had commanded U-6, U-60, U-201 and an experimental Type XXI, U-2511. He had also served on the BdU staff for nearly two years. Schnee was one of the officers who had briefed Eck before U-852 went to sea.
Under direct examination Schnee essentially repeated what he had told Eck in January 1944. Todsen asked him about the effect of debris left in the wake of a sinking. Debris, Schnee responded, could be recognized from the air for several days. Todsen then asked Schnee what could be done about the wreckage. "He could try to destroy and sink all the bigger pieces below the surface," came his answer.
Todsen next turned his attention to reducing the damage done by the Judge Advocate's questions about oil left after a sinking. Schnee, an experienced U- boat captain, agreed that oil-fired steamers left large patches of oil on the surface. But, he added, "one can find on routes occasionally smaller patches of oil which do not necessarily suggest a sinking," he explained. "They also occur from the cleaning of bilges," he added.
"If you had been on Eck's boat," Todsen inquired, "and it was your intention
to sink rafts, which weapons would you have chosen to destroy them?"
Schnee told the court he would have done what Eck did-used the machine guns to sink the rafts on the grounds that the rafts were probably supported by hollow bodies. He rejected, as had Eck, the use of the deck gun and demolition charges. Coming from an experienced, highly decorated U-boat captain with an unblemished record, Schnee's testimony weakened the prosecution's case.
Colonel Halse's cross-examination started out mildly. He asked about Schnee's
experience, how many ships he had sunk, and what were the differences between
operations in the North and South Atlantic. Then the tone changed abruptly.
"What would you have done as an experienced U-boat commander, if you were in Eck's position?"
Before Schnee could answer the hypothetical question Major Lermon interrupted.
"In my submission the witness ought to be warned that he need not answer that
particular question as it might incriminate him. I do not think Dr. Todsen
realizes the position."
"I am not so sure that the witness does enjoy that privilege," the Judge Advocated answered Lermon. Then, speaking to Schnee and choosing the wording of his statement very carefully, the Judge Advocate made it clear just how thin the ice was upon which Schnee was treading.
"You can refuse to answer a question if you think it might expose you to prosecution for war crimes."
Schnee was in a tight spot. If for any reason he did not answer a question, the court would take it as an admission that he had committed some sort of war crime. Given the biased attitude of the Judge Advocate, that could lead to just one thing Schnee's arrest.
Grasping immediately the box within which the witness was now in, Colonel
Halse immediately re-asked the same question "As an experienced U-boat
commander, what would you have done if you were in Eck's position on the night
of 13 March?"
Schnee gave an honest answer. "I do not know this case well enough to give an answer."
This, of course, was not what the Judge Advocate wanted to hear. "Come; you can do a little better than that. You know the circumstances of this case, do you not? You have been giving evidence about them."
Schnee said something in German that was not translated.
"You have dealt in great detail with the propriety of leaving the site of the sinking; have you not?" continued the Judge Advocate.
Again, Schnee's answer was not translated. Whatever he said, the Judge Advocate, who spoke enough German to understand the answers, was not happy with the wary officer's replies.
"You were asked what would you have done if you had been the commander of U-852 and had just sunk the Peleus."
Schnee doggedly stuck to his position. "It is very difficult for me to give an answer to that."
"Would you try?" the Judge Advocate insisted.
"Now that the war is over, I cannot possibly put myself in such a difficult position as Captain Eck was in at that time." Schnee was dancing in a minefield.
The Judge Advocate was not having any of that. He knew the answer he wanted
and he was going to get it. "The fact that the war is over hasn't deprived you
of your imagination, has it? Just answer yes or no."
Schnee could see what was happening, and there was nothing he could do to prevent it. "No," he answered.
Having made his point, the Judge Advocate re-asked the question. "What would you have done if you had been in Eck's position?"
Schnee knew that he was beaten. All he could do now was protect himself against the court's wrath and prevent his own indictment, while doing his best to limit the damage his testimony would do to Eck. "I would under all circumstances have tried my best to save lives, as that is a measure which was taken by all U-boat commanders, but when I hear of this case, then I can only explain it as this, that Captain Eck through the terrific experience he had been through lost his nerve."
He still had not answered the question directly, and the Judge Advocate was
not going to let him off the hook. "Does that mean that you would not have
done what Captain Eck did if you had kept your nerve?"
"I would not have done it," was how Schnee finally answered the question. The Judge Advocate had beaten the witness into submission and had rehabilitated the prosecution's case at the same time. It was left to Colonel Halse to put the icing on the cake.
"Have you heard of any other U-boat commander who has done the same thing as Eck did in this case?" The question had far-reaching consequences. "No, I have not."
"Did the BdU approve of the killing of survivors?"
"No, it did not approve, not at the time when I was a member of the BdU staff," Schnee responded.
"Were orders issued that survivors were not to be killed?"
"It was not necessary because this order had already been issued at the outbreak of war."
Dr. Todsen tried to soften the Judge Advocate's attack by asking Schnee the
same question. "If you had been in Eck's position, would you have destroyed
wreckage?" Schnee, who had just testified that he would not have done as Eck
had, reversed himself and answered in the affirmative. "Yes."
The Judge Advocate quickly interrupted. "Have you ever seen a raft destroyed by machine gun fire?"
Schnee admitted he had not.
"Have you ever tried it yourself?"
Schnee answered the question with a denial.
Dr. Pabst, Schwender's individual attorney, was mainly interested in reinforcing the fact that in the face of disobedience, a German officer had the right to "make use of arms." Schnee confirmed that fact. Whether the order was legal or not, refusal to obey could result in immediate execution, a powerful motive to obey one's superior. Pabst had made his point, and Schnee stepped down from the stand.
The last witness to take the stand before the noon recess was August Hoffmann. Like Eck before him, Hoffmann's testimony did little to help his defense. Under direct examination by Pabst, Hoffmann simply restated what had already been said about the night of March 13.
When Dr. Wulf, who together with Pabst was jointly defending Hoffmann, questioned his client about his background and family, the Judge Advocate said, "This court is perfectly prepared to assume that this is a man of good character, apart from the matter which the court is now investigating." (emphasis added). Dr. Wulf asked no further questions of Hoffmann.
Colonel Halse cross-examined Hoffmann and almost immediately was able to get the young officer to contradict himself. "You knew then that there were people on the rafts?" the prosecutor inquired.
"We had to assume that," Hoffmann answered.
"You fired at the rafts?" It was as much a statement as a question.
"Knowing there were people on them?"
"No." Hoffmann said. When he realized he had been lulled into contradicting himself, Hoffmann attempted to backtrack and explain that he assumed the people had jumped into the water. But the damage was done.
Hoffmann's fate was all but sealed when Halse established that he had not actually received a direct order from Eck to fire and that Hoffmann was the only one who threw the hand grenades.
Oberstabsarzt Weispfennig followed Hoffmann to the stand. Of all the defendants, Weispfennig's case was the hardest to defend. In fact, it was impossible to defend because he was a non-combatant, specifically prohibited from taking up arms except in self-defense. Still, he plead superior orders on the grounds that he had in fact received a direct order from Eck to fire at the wreckage.
Dr. Pabst's questioning was weak. Since the facts of the case were not in dispute, however, there was little Pabst could ask or Weispfennig could answer that would mitigate his position. The role Weispfennig played in the trial was that of a millstone around the necks of the other defendants, and in his cross-examination, Colonel Halse did an efficient job of insuring that the stone was very heavy.
Left:Kapitänleutnant (Ing.) Hans Lenz
Chief Engineer Lenz followed Weispfennig. Questioning by Major Lermon established that Lenz had objected to Eck's plan "out of sympathy for the survivors," and that he was below deck during most of the shooting. Then Lermon asked Lenz to tell the court why, in view of his objection to Eck, he had taken the gun from Schwender.
"I thought that if Schwender fired on those pieces of wreckage, a human being whom I had spoken to a short while ago might be hit and killed," Lenz tried to explain, "and I did not want that that man should be hit by bullets which a soldier, who in my eyes was considered bad, had fired." It was a difficult answer to fully understand.
Under cross-examination by Colonel Halse, Lenz admitted that he had not received a direct order from Eck to fire. According to Lenz the order was "im Laufen," in the course of being carried out. He believed that though he had received no direct order, he was nonetheless bound by it since it was "im Laufen."
Lenz's justification for shoving Schwender aside, taking the gun and opening fire fit his concept of honor and chivalry. The court, however, found it absurd. As a result Lenz, too, became a millstone around the necks of his fellow crewmen.
The last defendant to take the stand was Wolfgang Schwender. His defense was by far the easiest to articulate and rested on reasonably solid ground. He was an enlisted man, hardly in a position to question an order whether it was legal or not, and he had been given a direct order to fire. His participation in the firing, such that it was, was extremely limited. He had been below deck during most of the shooting, and Lenz had taken away the gun after Schwender had fired just one burst.
When Schwender stepped down, Professor Wegner spoke at length on international law. Dr. Wegner had a distinguished legal career before the war as an expert on international law. He was the author of two books on the subject, one of them, published in 1925, defended the decisions, but not the sentences, handed down in the 1921 Leipzig trials. He had spent the war in England and was a close personal friend of Dr. George Bell, Bishop of Chichester.
But it was a thoroughly exhausted Wegner who rose to speak, asking the court for an adjournment. "I think the position is that the defending counsel would like an adjournment until ten o'clock in the morning from now," he stated. "I should like to start tomorrow morning. I must admit that I am dead tired now, because I have been working all night on it." The Judge Advocate was in no mood to grant an adjournment. "The court wants to continue until five o'clock."
Wegner opened his speech by citing the verdict handed down by the German Supreme Court in the Llandovery Castle Case. As previously alluded, the professor brought up the verdict in the 1921 case on the first day of the trial, and referred to it again on the second. If there was any hope for a defense victory, they had to defeat the opinions expressed by the German court-the very opinions that Dr. Wegner had defended in 1925.
The hospital ship Llandovery Castle was torpedoed by SM U-86 on June 27, 1918, 116 miles south-west of Fastnet. Fortunately the ship had no patients aboard when she was torpedoed, her compliment being eighty RAMC doctors, fourteen nurses and a crew of 164. After the hospital ship had gone down, U-86 surfaced and the U-boat's captain, Oberleutnant z.S. H. Patzig, two of his officers, Leutnants z.S. Ludwig Dithmar and John Boldt, and an enlisted gunner, Bootsmaat Meissner, opened fire on the life boats. Of the 258 people on board the Llandovery Castle, only twenty-four survived.
A trial over the incident was held in July 1921. Only two of the accused even showed up. The captain of U-86, Patzig, simply stayed away, while the enlisted gunner, Meissner had died by the time the trial started. That left just two officers in the dock, Ludwig Dithmar and John Boldt. They were found guilty as accessories to the crime of killing survivors in life boats and sentenced to four years imprisonment. Both men "escaped" from prison a short time later.
The leniency of the sentences handed down by the German court in 1921 was one of the reasons that Eck and the others were being tried by a British military tribunal in 1945. The British were outraged by the light sentence and determined that it would not happen again.
But the real significance of the Llandovery Castle case was that it involved two elements common to the Peleus trial the first was the ruling that "firing on the boats was an offense against the law of nations," and "the subordinate obeying an order is liable to punishment, if it was known to him that the order. . .involved the infringement of civil or international law."
Dr. Wegner noted that he had defended the court's verdict of guilty against strident nationalist opposition. But he now argued that the usages of war had changed and the principles established in the 1921 trial no longer applied. The professor was in a position to support his view that the usages of war had changed by citing specific cases. Certainly he had many from which to choose from both wars. Instead, he lapsed into gratuitous compliments on the conduct of the present court and started to recount a wartime experience he had with Dr. George Bell, Bishop of Chichester.
The Judge Advocate interrupted Wegner with an embarrassing scolding. "Professor, the court is most ready to receive any help you can give it on any question of international law, but it is not prepared to to listen to an account of your experiences with the Bishop of Chichester. Let us hear anything you have to say about international law, but please keep to that."
Despite the reprimand from the bench to focus his argument, Wegner's speech continued in the form of a lengthy dissertation without clearly defined parameters. Occasionally, however, he showed signs that he might be developing an aggressive defense. The principles established in the Leipzig trials, he argued, could not apply because "our situation is that now our accused are not before a German court, and we do not exactly know what law we are going to apply to their case." He also made perhaps his most telling contention by maintaining that "we cannot call any man a war criminal without his doing wrong and being guilty according to a law enacted before his deed."
Wegner attempted to use a dispute that had occurred between the United States and Great Britain in 1837 to show that an individual acting under orders of his government is not answerable for crimes committed during the act. The Caroline Case involved a violation of U.S. territorial waters that resulted in the death of two American citizens. Although the effort was a good one, the legal precedent was not. Wegner may have used it simply because he had nothing else and there was too little time and insufficient reference material available for him to come up with something better.
Despite these occasional flashes of sagacity, Wegner's speech was rambling and disjointed. The Judge Advocate thought so as well, for he once again interrupted the professor. "If you have found any authority which justifies the killing of survivors of a sunken ship when they are in the water, will you try to come to it quickly, because that is what we want, you know." This second reprimand notwithstanding, Wegner-apparently very tired and perhaps a bit confused-continued to ramble on. Near the end of what had become little more than a classroom lecture, Wegner expressed his true feelings about the attitude of the court and the trial's inevitable outcome. "I have no doubt that the passions of today will pass and will be replaced by calmer and more peaceful judgment on war crimes and alleged German crimes. Then he who is now yielding to the feeling and mood of the moment, or even to the mob, will be ashamed." Wegner was all but conceding the ultimate conviction and execution of Heinz Eck.
The court adjourned at 500 p.m., exactly on time.
This article was published on 28 Mar 1998.
Siegerjustiz and the Peleus Affair
Chapter One - Eck's career, U-852's only patrol and the sinking of SS Peleus and the loss of U-852 and its crew's imprisonment.
Chapter Two - The first day of the trial. The procecution and the defence prepare their cases.
Chapter Three - The second and third days of the trial.
Chapter Four - The fourth day of the trial. The execution of Eck and two of his crew members. Closing words.
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An Operational Necessity. Griffin, Gwyn, 1999. (transl.)