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of our U-boat crews renders it very improbable that the firing on the boats, which by their very proximity would form an excellent target, was without effect. This must be considered in conjunction with the special circumstances in this case. As has been shown above, three boats escaped when the ship sank. In view of the danger of being drawn into the vortex of the sinking steamer, they had rowed away, and they were then in the open sea where only the perils of the sea surrounded them. These, however, at the time were not great. The wind and sea were calm. There is, therefore, no reason why the two missing boats, as well as the captain's boat which was rescued, should not have remained seaworthy until the 29th of June, 1918, when, after the latter had been picked up, a search was made in the neighboring waters. This search was thoroughly carried out by five warships, without a trace of either of the boats being discovered. The empty boat, which was encountered by the Snowdrop, was evidently, having regard to the position where it was found and the description which was given of it, the abandoned boat of the captain. The discrepancy in the reports about the number of the two boats can easily be due to a mistake. In any case, the boat which was seen by the Snowdrop, was not the boat No. 3 which was, without any dispute, proved to have been stopped by the U-boat. If the boats had not fallen victims to the gunfire, it is certain that they must have been found by the warships engaged in searching for them. For their disappearance the U-boat must be held responsible.
For the firing on the lifeboats only those persons can be held responsible, who at the time were on the deck of the U-boat; namely Patzig, the two accused and the chief boatswain's mate Meissner. Patzig gave the decisive order, which was carried out without demur in virtue of his position as commander. It is possible that he asked the opinion of the two accused beforehand, though of this there is no evidence. As Meissner was the gunlayer and remained on deck by special orders, it may be assumed with certainty that he manned the after gun which was fired. In the opinion of the naval expert, he was able to act without assistance. According to this view, owing to the nearness of the objects under fire, there was no need for the fire to be directed by an artillery officer, such as the accused Dithmar. The only technical explanation, which both the accused have given and which fits in with the facts, is that they themselves did not fire. Under the circumstances this is quite credible. They confined themselves to making observations while the firing was going on. The naval expert also assumes that they kept a look-out. Such a look-out must have brought the lifeboats, which were being fired on, within their view. By reporting their position and the varying distances of the life-boats and such like, the accused assisted in the firing on the life-boats, and this, quite apart from the fact that their observations saved the U-boat from danger from any other quarter, and that they thereby enabled Patzig to do what he intended as regards the life-boats. The statement of the accused Boldt that “so far as he took part in what happened, he acted in accordance with his orders" has reference to the question whether the accused took part in the firing on the life-boats. He does not appear to admit any participation. But the two accused must be held guilty for the destruction of the life-boats.
With regard to the question of the guilt of the accused, no importance is to be attached to the statements put forward by the defence, that the enemies of Germany were making improper use of hospital ships for military purposes, and that they had repeatedly fired on German lifeboats and shipwrecked people. The President of the court had refused to call the witnesses on these points named by the defence. The defence, therefore, called them direct. In accordance with the rules laid down by law (para. 244 St. P.O.) the court was obliged to grant them a hearing. What the witnesses have testified cannot, in the absence of a general and exhaustive examination of the events spoken to by them, be taken as evidence of actual facts. The defence refused a proposal for a thorough investigation of the evidence thus put forward having regard, particularly, to the opinion of the naval expert, Saalwächter, that throughout the German fleet it was a matter of general belief that improper use of hospital ships was made by the enemy. It must, therefore, be assumed for the benefit of the accused, that they also held this belief. Whether this belief was founded on fact or not, is of less importance as affecting the case before the court, than the established fact that the Llandovery Castle at the time was not carrying any cargo or troops prohibited under clause 10 of the Hague Convention.
The act of Patzig is homicide, according to para. 212 of the Penal Code. By sinking the life-boats he purposely killed the people who were in them. On the other hand no evidence has been brought forward to show that he carried out this killing with deliberation. Patzig, as to whose character the court has no direct means of knowledge, may very well have done the deed in a moment of excitement, which prevented him from arriving at a clear appreciation of all the circumstances, which should have been taken into consideration. The crew of a submarine, in consequence of the highly dangerous nature of their work, live in a state of constant tension. This is liable to become greater if a torpedoing takes place, particularly in the case of the commander, who is responsible for the act. Several factors were present in this case, which tended specially to deprive Patzig of the power to arrive at a calm decision. He had said that he would torpedo a hospital ship, with all its characteristic markings, in the expectation of being able to prove that it was being used for improper purposes. His hope was in vain. In spite of the most minute investigation, it was not possible for him to obtain any confirmation of his assumption. Then arose the question, how he could avert the evil consequences of his error of judgment. He had to decide quickly: he had to act quickly. Under this pressure of circumstances, he proceeded in a manner which the naval expert rightly described as imprudent. In the darkness of the night there was only a small chance of hitting all the boats. The fact that, as explained above, this did not restrain him from the act, points to the consideration that he did not allow himself time to think the matter over, so little was the idea in his mind of the far-reaching effect of his action.
In view of this state of excitement, which under the circumstances has to be taken into account, the execution of the deed cannot definitely be called deliberate (in the sense implied in para. 211 of the Penal Code).
The firing on the boats was an offence against the law of nations. In war on land the killing of unarmed enemies is not allowed (compare the Hague regulations as to war on land, para. 23(c)), similarly in war at sea, the killing of shipwrecked people, who have taken refuge in life-boats, is forbidden. It is certainly possible to imagine exceptions to this rule, as, for example, if the inmates of the life-boats take part in the fight. But there was no such state of affairs in the present case, as Patzig and the accused persons were well aware, when they cruised around and examined the boats.
Any violation of the law of nations in warfare is, as the Senate has already pointed out, a punishable offence, so far as in general, a penalty is attached to the deed. The killing of enemies in war is in accordance with the will of the State that makes war, (whose laws as to the legality or illegality on the question of killing are decisive), only in so far as such killing is in accordance with the conditions and limitations imposed by the law of nations. The fact that his deed is a violation of international law must be well-known to the doer, apart from acts of carelessness, in which careless ignorance is a sufficient excuse. In examining the question of the existence of this knowledge, the ambiguity of many of the rules of international law, as well as the actual circumstances of the case, must be borne in mind, because in war time decisions of great importance have frequently to be made on very insufficient material. This consideration, however, cannot be applied to the case at present before the court. The rule of international law, which is here involved, is simple and is universally known. No possible doubt can exist with regard to the question of its applicability. The court must in this instance affirm Patzig's guilt of killing contrary to international law.
The two accused knowingly assisted Patzig in this killing, by the very fact of their having accorded him their support in the manner, which has already been set out. It is not proved that they were in agreement with his intentions. The decision rested with Patzig as the commander. The others who took part in this deed carried out his orders. It must be accepted that the deed was carried out on his responsibility, the accused only wishing to support him therein. A direct act of killing, following a deliberate intention to kill, is not proved against the accused. They are, therefore, only liable to punishment as accessories. (Para. 49 of the Penal Code.)
Patzig's order does not free the accused from guilt. It is true that according to para. 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible. According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law. This applies in the case of the accused. It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwächter has strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of the law. They should, therefore, have refused to obey. As they did not do so, they must be punished.
The witnesses, Vice-Admiral (retired) von Trotha, and Toepffer, the President of the District Court (the latter acted during the war as an adviser to the Navy on the law relating to war), admitted frankly that in the German fleet, the impression prevailed that a naval officer, who in the course of a fight exceeded the bounds of the law, was not thereby rendered liable to punishment, although he might be answerable for his action to his superiors. The statements of these two witnesses relate, however, to the point of view, which was held by the higher command in the fleet at the time. They did not maintain that the accused shared this opinion. It appears that neither of these witnesses applied himself to the application of these ideas to the incidents now in question. These opinions are based on a misunderstanding of the law and are irrelevant here. They are of no avail for the accused, because the sinking of the life-boats was not done in the course of a fight, neither in an attack on the enemy nor in defence against him. Although a submarine, while cruising, must continually and in a special degree be ready for fighting, and is always in the sense of para. 11 of the Military Penal Code) "before the enemy," nevertheless it can do things which are not concerned with fighting.
The defence finally points out that the accused must have considered that Patzig would have enforced his orders, weapon in hand, if they had not obeyed them. This possibility is rejected. If Patzig had been faced by refusal on the part of his subordinates, he would have been obliged to de sist from his purpose, as then it would have beem impossible for him to attain his object, namely, the concealment of the torpedoing of the Llandovery Castle. This was also quite well-known to the accused, who had witnessed the affair. From the point of view of necessity (para. 52 of the Penal Code), they can thus not claim to be acquitted.
In estimating the punishment, it has, in the first place, to be borne in mind that the principal guilt rests with Commander Patzig, under whose orders the accused acted. They should certainly have refused to obey the order. This would have required a specially high degree of resolution. A refusal to obey the commander on a submarine would have been something so unusual, that it is humanly possible to understand that the accused could not bring themselves to disobey. That certainly does not make them innocent, as has been stated above. They had acquired the habit of obedience to military authority and could not rid themselves of it. This justifies the recognition of mitigating circumstances. In determining the punishment under para. 213, 49, para. 2, 44 of the State Penal Code, a severe sentence must, however, be passed. The killing of defenceless shipwrecked people is an act in the highest degree contrary to ethical principles. It must also not be left out of consideration that the deed throws a dark shadow on the German fleet, and specially on the submarine weapon which did so much in the fight for the Fatherland. For this reason a sentence of four years' imprisonment on both the accused persons has been considered appropriate.
In accordance with Section 34, para. 1, No. 2, Section 40, para. 1, No. 1, and Section 36 of the Military Penal Code, the accused, Dithmar, is dismissed from the service, and the accused, Boldt, is condemned to lose the right to wear officer's uniform.
The behavior of the accused during the proceedings has not been such as to justify reducing the period of imprisonment by the comparatively short period, during which they have already been detained.
The determination of the costs is based on para. 497 of the St. P.O., in conjunction with Art. 1, para. 4, of the law of 24th March, 1920 (R.G. Bl., page 341). The last-mentioned regulation only comes into operation in regard to a prosecution demanded by the Allied Powers in virtue of the Treaty of Peace. Such an accusation is only made against Patzig, but not against the two accused men. The proceedings against them are a direct result of the accusation made against Patzig. The concessions made by a reduction in the costs under the regulations of para. 4 are applicable in the present case.
It has therefore been requested that para. 4 may be applied. The expenses, which fall on the State Treasury, do not include those of the accused persons themselves and particularly not those of the evidence put forward in order to obtain their acquittal.