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pedoing occurred, so that, in the event of the sinking of the Llandovery Castle becoming known, no official enquiries into the matter could connect him with it. But his precautions extended further. The promise to maintain silence, which he extracted from the accused, has already been put in its true light. If it covered no more than the quite well-known fact of the torpedoing, Patzig would certainly have found ways and means of releasing his subordinates from this promise, after proceedings had been instituted against them. But, on the contrary, he endeavored to bind to silence the remainder of the crew of the U-boat with regard to the events of the 27th June. He called them together on the following day and made a speech to them, in the course of which he requested them to say nothing about the happenings of the previous day.
the previous day. He laid emphasis in his speech on the fact that, for what had taken place, he would be responsible to God and to his own conscience. It is hardly necessary to draw attention to the fact that behavior of this nature on the part of a commander towards his crew is unusual and striking. Although Patzig in this speech may have made no special mention of gunfire, he certainly would have alluded to it, specially had not his request for silence covered the subsequent firing. The view of the crew that the shooting was directed entirely against the lifeboats cannot have been hidden from him. It was also entirely within his power to correct this opinion when he was speaking to them about the events of the 27th June, and to explain to them, if their opinion was wrong, the real object of the firing.
The promise which the accused Boldt exacted from the two English prisoners, who were in the U-boat (the witnesses Potts and Crosby), to the effect that they should keep silent until the end of the war with regard to their detention on board the U-boat, is not of importance. A promise of this kind must, as the naval expert points out, necessarily be given by prisoners on board a U-boat. There is, therefore, nothing remarkable about this incident.
The naval expert has also to admit that the whole episode, as set forth in the evidence, is very much to the discredit of the U-boat, and that it compels the impression that all was not as it should be. He himself admits that his own efforts to explain away the circumstances, merely as signs of negligence on the part of Patzig, are not entirely satisfactory. The only way, in which he can suggest that a conclusion of deliberate intention can be avoided, is by a refusal to recognize the force of the overwhelming evidence. The firing on the boats on a dark night—though with good visibility—may not furnish complete proof of their destruction. Perhaps, if the U-boat had approached the lifeboats and had thrown hand-grenades at them, there might have been a better chance of success. But there was always the possibility of their object being attained in the way which the officers chose to pursue. So it is not inconceivable that Patzig, in the position in which he found himself placed as the result of the torpedoing of the Llandovery Castle, adopted a
method whereby there was a constant risk of something miscarrying. How easy it was to fire on the boats, is shown by the threat made when the captain's boat was stopped, as has already been mentioned, to the effect that, if it did not approach it would be fired on with the big gun. The number of the boats and their position must have been quite well known to Patzig, when one takes into account for how long a time he had been cruising around. The fact that the captain's boat rowed away may easily be explained by the darkness of the night. The attempt of the U-boat did not meet with full
The English prisoners on board the U-boat were not able to give a definite account of the events. With reference to them, the fact must not be overlooked that it was not until after the war was over that they could be in a position to state what they had seen and heard.
If finally the question is asked—what can have induced Patzig to sink the lifeboats, the answer is to be found in the previous torpedoing of the Llandovery Castle. Patzig wished to keep this quiet and to prevent any news of it reaching England. He may not have desired to avoid taking sole responsibility for the deed. This fits in with the descriptions given of his personality. He may have argued to himself that, if the sinking of the ship became known (the legality of which he, in view of the fruitlessness of his endeavors to prove the misuse of the ship, was not able to establish), great difficulties would be caused to the German Government in their relations with other powers. Irregular torpedoings had already brought the German Government several times into complications with other states, and there was the possibility that this fresh case might still further prejudice the international position of Germany. This might bring powers, that were still neutral, into the field against her. Patzig may have wished to prevent this, by wiping out all traces of his action. The false entries in the log-book and the chart, which have already been mentioned, were intended, having regard to his position in the service, to achieve this object. This illusion could be, however, of but short duration, if the passengers in the lifeboats, some of whom had been on board the U-boat, and who, therefore, could fully describe it, were allowed to get home. It was, therefore, necessary to get rid of them, if Patzig did not wish the sinking of the Llandovery Castle to be known. Herein is to be found the explanation of the unholy decision, which he came to and promptly carried out after his fruitless examination of the boats.
On these various grounds the court has decided that the lifeboats of the Llandovery Castle were fired on in order to sink them. This is the only conclusion possible, in view of what has been stated by the witnesses. It is only on this basis that the behavior of Patzig and of the accused men can be explained.
The court finds that it is beyond all doubt that, even though no witness had direct observation of the effect of the fire, Patzig attained his object so far as two of the boats were concerned. The universally known efficiency 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