Heinz-Wilhelm Eck: Siegerjustiz and the Peleus Affair

Dwight R. Messimer

KAPITANLEUTNANT HEINZ ECK OF U-852 holds the distinction of being the only

U-boat captain tried, convicted, and executed for war crimes at the end of World War II.

But was he really a war criminal?

Both World Wars were fought against a backdrop of good versus evil. It did not matter which side you were on—yours was good and the enemy was evil; your soldiers heroes,

enemy soldiers criminals.

But the reality of both wars differed considerably from the rhetoric. After World War II,

the Allies—still under the influence of their wartime rhetoric—conducted a series of showcase war crimes trials. Many of the Axis leaders convicted during those trials deserved to be punished. But others, notably soldiers whose conduct was no different than

that of their Allied equivalents, were treated much more harshly than they deserved. Heinz

Eck was one of them.

* * *

Heinz-Wilhelm Eck was born in Hamburg on March 27, 1916, and was raised in Berlin.

He joined the Reichmarine on April 8, 1934, as a member of Crew 34, passed through a

series of training programs and specialty schools, and was commissioned Lieutenant z.S.

on April 1, 1937. He spent the next five years aboard mine sweepers, commanding one from 1939 to 1942. 1

In February 1942, Eck volunteered for U-boat assignment, was quickly accepted and reported for training at Pillau on June 8, 1942. From October 28, 1942 until February 21,

1943, he was the captain-in-training aboard the U-124, commanded by a fellow Crew 34

classmate, Kapitänleutnant Joachim Mohr. A few months later on June 15, Eck assumed command and commissioned the newly-constructed U-852. Early the following year,

January 18, 1944, her sea trials completed and fully provisioned, Eck took U-852 out of

Kiel en route to the German U-boat base at Penang in Malaya. Before he departed, the young kapitänleutnant was briefed by a Crew 34 classmate, Korvettenkapitän Adalbert Schnee. Schnee, a veteran U-boat commander and holder of the Knight’s Cross with Oak

leaves, ranked number 22 among Germany’s most successful U-boat captains. Eck

listened very carefully to what his friend told him about the dangers that lay ahead.2

Schnee reminded Eck that U-852 was among the largest, slowest and most easily hit U-boats then in service. He particularly warned him about the strong air cover in the Atlantic Narrows, especially between Freetown and Ascension Island. “Be very careful in this region,” the veteran classmate cautioned him, pointing out that traces of wreckage from a

torpedoed ship could be recognized from the air for “the next few days.” Schnee underscored his warning with the ominous news that all four type IXD2 boats that had preceded U-852 had been lost, either in the South Atlantic or near Ascension Island. The

South Atlantic zone was, in Schnee’s understated words, “very difficult for us.” That Eck

took Schnee’s warnings seriously was evidenced by what happened fifty-four days later.

Eck was also briefed by FKpt. Günter Hessler, who like Schnee was a Knight’s Cross holder and a U-boat ace. Hessler, who was Admiral Dönitz’s son-in-law, was also the chief-of-staff to Konteradmiral Eberhardt Godt, who directed the day-to-day conduct of the U-boat war. Hessler underscored the warnings Eck had received from Schnee,

emphasizing that Eck should avoid anything that would attract the enemy’s attention.

Back in Kiel, Eck received another briefing from FKpt. Karl-Heinz Moehle. Moehle discussed the Laconia incident with Eck, reminding him of what had happened to KKpt.

Werner Hartenstein. Whether or not Moehle also talked with Eck about the so-called Laconia order is not known. But the September 17, 1942 order had been read by all U-boat captains and was included in U-852’s standing orders. (The Laconia incident and its ramifications are discussed later in this essay when the issues surfaced during Eck’s trial.)3

Eck’s operational orders were direct. He was to take U-852 south, pass through the Atlantic by way of the Cape of Good Hope and operate in the Indian Ocean. He was then

to join Gruppe Monsun at Penang. U-852 sailed from Kiel on January 18, 1944, taking the

“north-about” route around Scotland and into the North Atlantic. Eck ran down the globe

toward the African west coast, running on the surface only at night to recharge his batteries. Clearly, he heeded the warnings about staying out of sight as much as possible.

It took nearly two months before U-852 reached the Equator, in the middle of the most dangerous area about which he had been warned.

On the afternoon of March 13, 1944, U-852 was patrolling about 300 miles east of the Freetown-Ascension Island line, approximately 500 miles north of Ascension Island and 700 miles south of Freetown. The U-boat was cruising on the surface when at 5:00 p.m. a

lookout spotted a freighter ahead and off the starboard bow. The ship in the distance turned out to be the SS Peleus, a Greek-registered freighter of 6,659 BRT built by William Gray & Company in 1928. Under charter to the British War Transportation Ministry, Peleus had left Freetown in ballast five days earlier bound for South America and the River Plate. She carried a crew of thirty-five. 4

Eck ordered U-852 to full speed and laid a course to put the U-boat ahead of the target.

The chase lasted two and a half hours, and it was dark by the time U-852 was in position

to attack. At 1940 Eck made a night surface attack, firing two torpedoes from the bow tubes. The torpedoes slammed into the freighter just moments apart, the first exploding in

the number two hold, the second just aft in the number three hold. From U-852’s bridge,

Kapitänleutnant Eck observed that the “detonation was very impressive.” The doomed Peleus went down like a rock.5

It is impossible to know how many of the thirty-five man crew got off the ship before she

was swallowed by the sea, but there could not have been many. Chief Officer Antonios Liossis was knocked unconscious and blown off the bridge into the water. Rocco Said, an

off-watch greaser, was on deck when the torpedoes struck. To Said, who had been at sea

since his youth, “it was clear the ship would sink immediately.” He and other crewmen who were on deck at the time determined to take their chances in the ocean.6 The freighter went down so quickly that almost none of the survivors had time to don life vests or life

belts. Those who jumped overboard clung to hatch covers, timbers, and any other piece of

wreckage that floated. Rafts that had been stowed on deck bobbed clear as the freighter went down, and some of the survivors made for them. Chief Officer Liossis and a seaman,

Dimitrios Konstantinides, swam toward a raft. While they were still in the water U-852

moved slowly among the flotsam. After the U-boat passed, Liossis and Konstantinides climbed aboard the raft.7

The only officers on U-852’s bridge at this time were Kapitänleutnant Eck and his first watch officer, Oberleutnant z.S. George Colditz. The other occupants consisted of two enlisted lookouts. As the U-boat cruised slowly among the debris, Eck and his crewmen

on the bridge could hear whistles and shouting. They also saw lights on some of the rafts.

At about this time the ship’s doctor, Oberstabsarzt Walter Weisspfennig, came on the bridge. His sole purpose for going topside was to see what was transpiring, and he stood

behind a periscope about fifteen feet away from Eck and Colditz. 8

Whenever possible, U-boat captains were supposed to question survivors about the ship,

its cargo and destination. Eck called down and ordered his chief engineer, Kapitänleutnant

(Ing.) Hans Lenz, on deck. Because Lenz spoke English, he sent the engineer forward to

the bow to question a survivor Lenz was joined in the trek forward by the second watch

officer, Lieutnant z.S. August Hoffmann. 9 Hoffmann had come off watch at 4:00 p.m., an hour before the Peleus was sighted. He had been below deck during the attack and was not scheduled to go back on watch until midnight. Hoffmann also spoke some English, but he

had not been specifically ordered to accompany Lenz to the bow. Apparently he, like Weisspfennig, was there to see what was going on.

As the two officers reached the bow, Eck maneuvered U-852 alongside one of the life rafts. The raft he picked was occupied by the Peleus’ third officer, Agis Kephalas, a greaser named Stavros Sogias, a Russian seaman named Pierre Neuman, and a Chinese fireman whose name no one recalled. Kapitänleutnant Lenz beckoned the third officer to

come aboard the U-boat. Lenz and Hoffmann questioned the man about the ship. They learned that she was in ballast and that she was sailing from Freetown and bound for the

River Plate. Third officer Kephalas also told them that another, slower ship was following

them to the same destination. With the questioning concluded, Hoffmann told the Greek officer that he and the other survivors would be picked up the next day by the British. He

helped the man back onto his raft and both officers started back toward the conning tower

to report what they had learned.

After the Greek sailor returned to his raft, Eck ordered U-852 to proceed slowly while he

listened to Lenz’s report. When Lenz told him about the Greek officer’s account of the approaching, slow moving freighter, Eck discounted the claim as “too much of a good thing. ”10

At this point there were five officers on the bridge: Eck, his first officer (Colditz), the second officer (Hoffmann), the chief engineer (Lenz), and the doctor (Weisspfennig). The

doctor was still standing away from the others and did not participate in the conversation

that followed. Apparently Hoffmann also remained far enough away from the group that

he could not clearly understand what the other three men were discussing. 11

The conversion had taken an ominous turn. Eck told Colditz and Lenz that he was concerned about the amount and size of the wreckage. He believed that the morning air patrols out of Freetown or Ascension Island would spot the wreckage and recognize it as

the result of a U-boat attack. The discovery would trigger an immediate search for the U-

boat, and given the number of U-boats lost during the previous six months, Eck felt his boat did not stand a chance if discovered by enemy aircraft. 12 His choices, however, were limited. He could leave the area and run on the surface at maximum speed until dawn, but

by the time the sun rose, U-852 would still be less than 200 miles from the scene of the

sinking—well within range of aircraft. In the time it took U-852 to travel about a half mile from the scene of the sinking, Eck decided that in order to protect his boat and his crew, he had to destroy all traces of the Peleus.13

Eck ordered two machine guns brought up on the bridge. While the weapons were being

retrieved from below, both Colditz and Lenz protested the captain’s decision. Eck listened

to both officers but dismissed their objections. According to Eck, it was necessary to destroy all traces of the sinking, and he justified the destruction of the wreckage as an operational necessity to protect his boat from discovery and destruction.14

As the U-boat turned back toward the rafts Lenz went below, leaving four officers on the

bridge: Eck, Colditz, Hoifmann and Weisspfennig. Both machine guns were brought up and mounted on the railing on the after part of the conning tower—one to port and one to

starboard. Exactly what was said and happened next is not entirely clear. Apparently Eck

made it known to the officers on the bridge that he wanted the rafts sunk. He made no mention of shooting at anyone in the water, nor did he ever give an order to kill any of the survivors. It was accepted, however, that by sinking the rafts the survivors would lose any hope for survival. Eck had chosen to use machine guns because he believed the rafts were

mounted on hollow floats, and thus piercing the floats with bullets would cause the rafts to sink. In fact, the rafts’ floats were filled with buoyant material.

It was now about 8:00 p.m., and the night was very dark and moonless. The rafts appeared

as dark shapes on the water, their lights having been extinguished by the occupants when

the U-boat first approached. Eck apparently turned to Weisspfennig, who was standing near the starboard machine gun, and ordered him to fire at the wreckage. The doctor complied with the order, directing his fire at a raft he estimated was about 200 yards away. 15 Weisspfennig’s gun jammed after he had fired just a few bursts, and he could not make it operate again. Hoffmann, still off watch, went to Weisspfennig and cleared the jam. The second officer then took over on the gun and opened fire on the raft that had been Weisspfennig’s target. The doctor took no further part in the attempt to destroy the

rafts, although he remained on the bridge.

Despite the machine gun fire directed at it, the raft refused to sink. Eck ordered the signal light turned on in order to examine the craft to determine why it was still afloat. The examination, conducted at considerable distance and in poor light, proved inconclusive.

The U-boat continued to move slowly through the wreckage, firing intermittently at the rafts. Apparently all the firing was being done from the starboard side, and at this point only Hoffmann was shooting. Weisspfennig did not shoot again, and neither Eck nor Colditz ever fired.

Nor was the firing continuous. In fact there were long periods when there was no firing at

all. In part the pauses were the result of poor visibility due to the dark, moonless night.

The other reason for the interruptions was the ineffectiveness of the machine gun fire on

the rafts. They were not sinking, despite the rounds being pumped into them. Eck’s goal of

eliminating surface wreckage was not being achieved.

At about this time Hoffmann suggested using the 37mm gun, reasoning that its explosive

rounds would destroy the rafts. Some consideration was also given to using the 105mm deck gun, but Eck rejected both suggestions because he did not think the guns could be brought to bear at such close range. He did, however, tell Hoffmann to try the twin 20mm

anti-aircraft guns16 The attempt to sink the rafts with the 20mm guns was also a failure, prompting someone to suggest placing demolition charges aboard the rafts. Eck rejected that idea because he did not want any of his crew to leave the U-boat. Instead, he ordered

hand grenades brought up, and maneuvered U-852 within thirty yards of a raft.17

The only person who can be identified as having thrown any grenades is Hoffmann. How

many he threw at the raft, or if he threw grenades at more than one raft, is not known. It

appears that two or three grenades were thrown, and that perhaps two of the rafts were targets. The grenades also proved to be useless in sinking the rafts. Throughout the grisly operation it was not Eck’s intent to kill any of the survivors. That they might be hit by gunfire, and would certainly die if their rafts were destroyed, was obvious to him. But he

assumed that whoever was on the rafts had jumped into the water when the shooting started. His assumption was incorrect.

Instead of diving into the sea, Chief Officer Antonios Liossis threw himself down on the

floorboards of the raft and squirmed head first under a bench when the machine gun opened fire. Behind him he heard Dimitrios Kostantinidis cry out in pain as he was hit several times. The seaman collapsed on the floor of the raft and died. Later, when the U-boat made another pass and grenades were thrown, Liossis was wounded in the back and

shoulder by shrapnel.18 Aboard another raft were the third officer, Agis Kephalas, and two seamen. Both of the latter were killed and Kephalas was badly injured in the arm. It is unclear whether these men were killed or wounded by grenade fragments or machine gun

fire. Despite his wound, Kephalas managed to roll off the raft and swim toward the boat

occupied by Liossis. 19

Seaman Rocco Said dived over the side when the firing started and was in the water near

his raft when the shooting was turned in his direction. Around him other swimmers “threw

their hands up” as they were machine-gunned, and sank below the surf ace.

Below decks in U-852 the crew was unaware of exactly what was happening topside.

Some of the men heard the firing and everyone was aware that the boat was maneuvering

slowly. Obviously they were still in the area of the sinking and many wondered why.

Some of the men knew that two machine guns had been taken up to the bridge and that hand grenades had also been requested. They could only guess at what it all meant.

Chief Engineer Lenz, who had vacated the bridge and had spent the last four hours writing

the report of his conversation with the Greek officer, supervised the reloading of the forward torpedo tubes and passed the time checking on the boat’s trim. He had to see that

the boat was, as he later put it, “ready to submerge at any time.” Lenz heard the intermittent firing and the explosions of the hand grenades. He was the only man below deck during that time who knew for a certainty what the sounds meant.

By this time it was midnight and the watch was changed. Colditz was relieved by Hoffmann and went below. The enlisted lookouts were also relieved, one of the reliefs being Matrosenobergefreiter Wolfgang Schwender. As soon as Schwender took his place

on the bridge, Eck ordered him to man the port side machine gun and fire at the large pieces of wreckage. Schwender complied with the order and opened fire on a raft that was

about thirty-five yards away. 21 After firing one burst Schwender’s gun jammed. He was clearing the jam when Lenz came up on the bridge. Schwender had just cleared the jam and was preparing to fire again when Lenz shoved him roughly aside, took control of the

gun, and opened fire on the raft. Schwender assumed his duties as a lookout and did not

fire again.

How long Kapitänleutnant Lenz manned the port side machine gun is not clear. But it appears that he fired only at one raft and then quit firing. The question that bears asking is why was he firing at all? The captain had given the assignment to Schwender, not Lenz.

The answer to that question is hard for many people to comprehend. According to Lenz,

he took the gun from Schwender because he thought the Greek officer he had questioned

might be on that raft. He didn’t want him “hit and killed by bullets which had been fired

by a soldier who in my view was bad.” To Lenz it was a matter of honor, consideration and duty to insure that if anyone was killed, he was killed by a bullet fired by an honorable man.

By 1:00 a.m. on March 14, 1944, Eck had tried to sink the rafts with machine guns, 20mm

anti-aircraft guns, hand grenades and ramming. His attempts to destroy all traces of the sinking had failed utterly. Worse, U-852 had spent nearly five hours on the scene and dawn was only six hours away. It was long past time to go. Realizing the precariousness of

his situation, Eck took U-852 out of the area at maximum speed shortly thereafter, leaving

behind four survivors on two rafts. Three lived to be rescued thirty-five days later.

While U-852 was steaming through the night, news of the attack on the wreckage spread

through the boat and seriously affected morale. “I was under the impression that the mood

on board was rather a depressing one,” Eck later said. “I myself was in the same mood.”

In view of the crew’s sullen attitude, Eck felt obligated to explain why he had made the

decision to destroy the wreckage. He addressed his men over the boat’s loudspeaker system, telling them that he had made the decision “with a heavy heart,” and that he regretted that some of the survivors may have been killed during the attempt to sink the rafts. He acknowledged that, in any event, without the rafts the survivors would surely die.

He warned his crew about being “influenced too much by sympathy,” citing that “we must

also think of our wives and children who at home die as victims of air attack.” 25 The explanation failed to ameliorate the crew’s sinking morale or dispel their distaste for what had transpired. In addition, Eck had failed to explain to them the circumstances that caused him to see the destruction of the rafts as an operational necessity.

Despite having lingered for so long at the scene of the Peleus’ destruction, U-852

managed to avoid the enemy and slip away to the south. The two and a half weeks following the sinking were uneventful. U-852 moved steadily south along the west coast

of Africa toward the Cape of Good Hope. Although Eck was being very careful, the British knew he was there. Eck had sent a radio message on March 15 regarding the Peleus’ sinking, and the transmission had been picked up by radio direction finders. 27

According to U-boat Headquarters (BdU) records, U-852 maintained radio silence until April 4. On March 30, however, British anti submarine warfare forces in Capetown were

warned that radio traffic from a U-boat had been picked up, indicating a submarine was northwest of Capetown. 28 Two days later, on April 1, Eck torpedoed the 5,277 ton freighter SS Dabomian ten miles west-south-west from Cape Point. This time he made no attempt to identify the vessel, and the forty-nine survivors were rescued by two South African mine sweepers the next day. Crew members described this successful attack as being “in order.” Morale on U-852 improved.

The Dahomian was the first U-boat success in South African waters since August 1, 1943.

In response, the British dispatched a strong anti-submarine warfare group to hunt down the U-boat responsible for the sinking. The search, which lasted through April 3, did not

find so much as a trace of the offending submarine. On the following day Eck broadcast

his success in a lengthy transmission to BdU that was intercepted by the British. They finally found their U-boat, its position fixed only 150 miles east-south-east of Point Agulhas.30

U-852 remained in the Capetown area until mid-April, vainly looking for targets. Eck fired a spread of three torpedoes at what he thought was a troopship, but all missed. The

area around Capetown offered too many risks and too few vessels to warrant staying there

any longer, and Eck started north toward Penang.

Eck’s luck, however, was slowly running out. On April 20, 1944, only a few days after Eck headed north, survivors from the Peleus were rescued by the Portuguese steamer SS

Alexandre Silva. Three men, chief officer Antonios Liossis, greaser Rocco Said, and seaman Dimitrios Argiros, were still alive. The third officer had died twenty-five days after the attack from gangrene and yellow fever.32 When the Alexandre Silva docked in Lobito, Angola, one week later, the British learned for the first time of the events that occurred on the night of March 13-14. At the time there was little they could do since they did not know which U-boat had sunk the Peleus. After caring for the survivors, they filed their reports and passed the information on to the Admiralty.

While the three Peleus survivors were being questioned by British intelligence officers, Eck was moving into very dangerous waters. The defenses in the area had been beefed up

with the addition of a hunter-killer group composed of nine frigates and sloops, plus the

escort carriers HMS Begum and HMS Shah. The shipping zones were heavily patrolled by aircraft, and air bases were located on both Addu Atoll and Diego Garcia. 33 On the last day of April, British radio intelligence placed U-852 approaching Cape Guardafui on the

southern tip of the Gulf of Aden. RAF Wellingtons were sent out from Aden to hunt the

U-boat. On May 2, they found her.34

It was just after dawn. U-852 was cruising on the surface and Leutnant Hoffmann was the

watch officer when the British bombers caught the U-boat completely by surprise. Coming

out of the sun, the British planes strafed and bombed the doomed boat. Six depth charges

straddled her, one of them damaging the 37mm antiaircraft gun on platform II. As tons of

water crashed down on U-852, Hoffmann frantically ordered the U-boat to dive. 35

U-852 managed to submerge before the Wellingtons could make a second run, but the situation was serious. In addition to flooding, deadly chlorine gas, caused by burst battery cells, was filling the boat. Fifteen minutes after she went under, U-852 shot to the surface at a 60° angle. The steep slant caused the batteries to spill even more acid, increasing the levels of chlorine gas inside the boat. 36

As U-852 broke the surface her gun crews swarmed out and manned the antiaircraft guns.

Even as the crewmen were reaching their battle stations, the Wellingtons were starting their second strafing run. The planes roared overhead and smothered the boat with fire.

Oberleutnant Georg Colditz and Matrosenobergefreiter Josef Hofer both died on the bridge. 37 U-852 was down by the stern, unable to dive and under attack. By this time it was clear to Eck that his boat was finished. While he could not save his boat, he was determined to save his crew, and his only hope of accomplishing that was to beach U-852

on the Somaliland coast before the British sank her.38

Although doomed the U-boat managed to hold off the British throughout much of the day,

her gunners beating off each aerial attack. Several of the crewmen were killed or wounded

during the repeated strafing runs, but casualties were surprising light given the circum stances. That afternoon, while still under attack, Eck managed to save the bulk of his crew by beaching his battered boat off the Somaliland coast at Ras Hafun. 39 After grinding to a halt, Eck ordered the crew to abandon ship and set about to destroy U-852. Exactly what

happened next is not clear, but two things are certain. First, Eck’s attempt to destroy his boat with demolition charges was only partially successful, and one crewman was killed in

the process. Second and more important to the events that would follow, Eck somehow failed to destroy the boat’s war diary—the Kriegstagebuch. The oversight would cost him

and two of his officers their lives.

Beached, listing heavily to port, her bow a twisted mass of junk, U-852 was obviously finished. But the British aircraft continued to attack, shifting their attention to U-852’s crewmen who were coming out of the hatches and leaping into the water. Many were already swimming toward shore, and a few were clinging to rubber rafts filled with wounded that bobbed near the hulk. August Hoffmann was helping a badly wounded

sailor into a raft when the Wellington’s made their pass. Machine gun bullets frothed the

sea around him, hitting men in the water and puncturing the raft. Hoffmann was hit in the

leg by one of the rounds. Despite his wound, the young officer continued to help the wounded sailor toward shore. British aircraft continued to strafe the Germans who were struggling through the surf toward the beach.40

Exhausted and with several crewmen wounded and some dying, U-852’s crew lay on the

beach and waited for whatever was going to happen next. It was not long in coming. The

following day, a British naval landing party supported by a unit of the Somaliland Camel

Corps, took the surviving members of U-852’s crew prisoner.41 The British boarding party that entered U-852 found more than just a battered hulk. She yielded a wealth of information which, coupled with the capture of the entire crew, proved to be enormously

important. But the most significant discovery was the intact Kriegstagebuch (KTB), U-852’s war log. The KTB would eventually link Eck and U-852 to the Peleus sinking and the harrowing events described by the three survivors. But that relationship, which was not immediately apparent, would only come about through the joint efforts of two navy intelligence officers, Lieutenant Burnett, RNVR and Lt. J.T Rugh, USNR. Both officers were assigned to the Naval Section, Combined Special Detachment, Intelligence

Collection (CSDIC). 42

On May 17, two weeks after their capture, thirty-four of U-852’s crew arrived on Cairo from Aden, where they had been screened by Lieutenant Burnett. Burnett, who was in charge of the Naval Section, CSDIC, sent orders that twelve of the men, among them the

medical officer, Weisspfennig, were to be separated and sent to another camp.43 Lieutenant Rugh, apparently unaware of why Burnett wanted the twelve separated from the others,

“spent two hours with the medical officer as a courtesy to a non-combatant, protected person whose early repatriation was to be expected.” 44

During the two hours Rugh spent with Weisspfennig, all the prisoners were processed in

Cairo before the twelve special prisoners were taken away. As soon as the twelve were gone, Rugh started questioning each of the remaining twenty-two Germans. He spent two

weeks, working until after midnight each night, questioning the prisoners and writing his

interrogation reports. It was during those interrogations that stories about the machine-gunning of the Peleus survivors began to leak out.45

On May 20, Rugh went to Heliopolis to pick up nine more men from U-852, including Heinz Eck. Rugh escorted Eck back to Cairo, but did not question him. Within two days,

Eck and four unnamed crew men were aboard an airplane bound for England. 46

Rugh sent a telegram on May 23 to the Admiralty reporting that U-852 was the U-boat that had sunk the Peleus. The information was required in London to assist intelligence officers at the Admiralty who were about to question Eck on routine intelligence matters.

Rugh did not mention the alleged shootings because at that time he lacked confirmation of

the story. 47

In the meantime, Burnett visited the wreck of U-852 and returned to Cairo with the U-boat’s KTB. After conferring with Rugh and com paring notes, Burnett confronted the chief engineer, Hans Lenz, with the incriminating evidence. According to Burnett, his

“accusation of murder on the high seas to the engineer officer produced confirmation of that story.” Not only did Lenz confirm the sordid tale, he signed an affidavit detailing the event.48

Rugh and Burnett next visited Matrosenobergefreiter Johann Coirniak and

Obersteuermann Wilhelm Schmidtz. Both men had been lookouts on the bridge during the

torpedo attack and during most of the time Eck was trying to destroy the wreckage. Both

men signed affidavits as to what had transpired.49 Based on the veracity of the information the two intelligence officers gathered from U-852’s crewmen, the Admiralty flew the three

Peleus survivors to Capetown. There, on June 7, 1944, the three men signed sworn affidavits describing the events. As the Greek sailors were preparing their accounts, Rugh

was detailed to escort Dr. Weisspfennig, Coirniak and Schmidtz to London. His task was

to prevent Weisspfennig from suspecting why he was being sent to England, and to

“prevent the medical officer from knowing that the witnesses were also going to the United Kingdom.” 50

Eck, Lenz, Hoffmann, Weisspfennig and Schwender arrived in England by June 8. By that

time they must have suspected that the British were planning to try them as war criminals,

though they had not yet been charged with any crimes. The trial, however, was postponed

until Germany’s defeat, which by June 1944 was a virtual certainty. Until then, the British classified the Eck- Peleus affair as Top Secret.51

Five months after the war in Europe ended, Heinz Eck, August Hoffmann, Dr. Walter Weisspfennig, Hans Lenz and Wolfgang Schwender were moved to the Altona prison in Hamburg. On October 6, 1945, they were formally charged with war crimes. There were

two charges against Eck and his four crewmen. The first count illustrates that the British, even by this late date, had still not accepted the reality of unrestricted submarine warfare.

The defendants were accused of sinking the Peleus “in the violation of the laws and usages of war.” The phrase “violations of the laws and usages of war,” refers to the Prize

Rules that were still in effect during the First World War (1914-1918). Under the Prize Rules, torpedoing a merchant vessel without warning was a crime. By 1939, however, the

Prize Rules no longer applied, for the usages of war with respect to unrestricted submarine warfare had changed.52

The second count accused the Germans of being “concerned in the killing of members of

the crew…by firing and throwing grenades at them.” This charge, of course, was the underlying issue in the whole trial. The defense against this count, at least in Eck’s case, hinged on two legalistic arguments. First, there was no specific intent to kill the crew; and second, the usages of war with respect to killing survivors had changed from absolute prohibition to acceptance under conditions of operational necessity. The basic defense for

the other four defendants was that they were following Eck’s orders.53

Judge Helmut Sieber, the only active German navy judge in Hamburg after the war, organized the defense. He selected Fregattenkapitän Hans Meckel to be the special advisor

to the defense, and Dr. Harold Todsen, a fifty-one year old Hamburg attorney, to represent

Heinz Eck. Two other German attorneys, Dr. Max Pabst, age seventy-four, and Dr. Gerd-

Otto Wulf, age forty-six, represented Hoffmann jointly, while Dr. Pabst alone represented

Schwender. Lenz selected his own attorney, Major Lermon, Barrister at Law, Headquarters

8th Corps District. Dr Albrecht Wegner, a sixty-two year old expert on international law,

was retained on behalf of all the accused.

Dr Pabst got his look at the case on October 9, but could not make any preparation because he was sitting as a judge in Cuxhaven. He would not be available to start preparing a defense until after October 12. The other attorneys were not notified of the case until October 13.55

Day One

The trial opened four days later on Wednesday, October 17, 1945, in Hamburg, Germany,

under the authority of a Royal Warrant issued on June 14, 1945. The Warrant empowered

British military courts to try cases of “violations of the laws and usages of war committed during any war in which we have been or may have been engaged at any time after 2

September 1939.” 56

The Judge Advocate presiding over the trial was Maj. A. Melford Stevenson, K.C.; the prosecutor was Colonel Halse of the Advocate General’s Office. The members of the court, essentially the jury were three British army officers, two Royal Navy officers and two officers of the Royal Hellenic Navy. The outcome of the trial was evident from the moment it opened.

There were several features about the case that made defending Eck and his men a daunting task. First, there was the deep seated British resentment toward the Germans’ use

of unrestricted submarine warfare in two back-to-back wars. In addition British

dissatisfaction still lingered over the sentences handed down by the German Supreme Court in the Llandoveiy Castle case in 1921. More immediate than the quarter-century old trial was the Allies’ reaction to the brutal excesses of the Nazis, which caused them to tar all Germans with the same brush.

On its face, the Peleus Affair seemed to justify the popular opinion that Nazi excesses were common to all Germans. The killing of ship wrecked sailors, whether deliberately or

as the result of some other intended act, is atrocious. Heinous acts, however, were regularly committed by all the belligerents of World War II. In fact, war itself is atrocious.

But the fact that a medical officer took part in the killing made the act even more odious.

As the course of the trial demonstrated, Judge Advocate Stevenson believed the

defendants were guilty before the trial even started. That opinion was probably also shared by the seven members of the court who acted as the jury. The predisposition of the court

toward a speedy conviction and sentencing was made clear from the beginning of the proceedings when Major Lermon, on behalf of all the defendants, requested a one week postponement so that the lawyers might have time to prepare an adequate defense. Lermon

pointed out that none of the defense lawyers, including himself, had had more than three

days to view documents and prepare their respective case strategies. He also noted that witnesses who were vital to the defense had not yet arrived, and there had been no time to

order documents needed for the defense. Lermon also made it clear that the defense lawyers needed additional time to study legal references on military and international law, which were not yet available for such study. In fact, Dr. Pabst had received just one book

on international law the night before the day the trial was set to begin. Compounding the

problems of the defense, explained Lermon, none of the German attorneys were familiar

with British court procedures and practices, and thus they would need time to learn them. 57

Despite these compelling arguments, Judge Advocate Stevenson refused the request for adjournment. Instead, he ordered the prosecutor to present his case, at the end of which the matter of witnesses for the defense could be reexamined if they had not yet arrived. The

question of the documents needed by the defense was not even addressed. It was to be a

speedy trial.58

The charges drawn up against Eck and the others were flawed. In the charge sheet, the defendants were alleged to have “…sunk the steamship “Peleus” in violation of the laws

and usages of war…” According to that wording, they were being charged with a violation

of international law as it was understood during World War I. That is, they sank the Peleus without warning in violation of the Prize Rules.

No such interpretation of the law existed during World War II, and thus as charged, the defendants were clearly innocent. The mistake might have been exploited by the

defendants’ lawyers. On the other hand, given the attitude of the court, letting the charge stand probably would not have helped the defense.

When the charges were read and the defendants asked to plead guilty or not guilty, Major

Lermon objected, pointing out that if it was the contention that the Peleus was sunk in contravention of the laws and usages of war, it was a bad charge. The Judge Advocate and

the prosecutor agreed, and the charge sheet was amended to show only one charge and not

two. It was a small victory for the defense, and the only victory.

The case for the prosecution was presented in less than three hours. Colonel Halse began

by introducing three affidavits signed by the three Peleus survivors, after which he called five former U-852 crewmen to the stand. Thereafter Halse introduced admiralty

documents showing that the Peleus was under charter to the British, and that the men who had signed the affidavits were in fact crew members. The defense strenuously objected to

admitting the affidavits because there was no opportunity for cross-examination regarding

the truth of their content. The defense also strongly objected to admitting hearsay evidence contained in one of the affidavits, arguing to the court that all three Greek seamen were within the reach of the Admiralty and could be produced in court. The objection was overruled.59

The Judge Advocate’s ruling was a major setback, which was compounded by a lackluster

cross-examination of the five German witnesses. But even the indifferent questioning produced the fact that none of the German witnesses supported the prosecution’s

contention that the Peleus survivors had been intentionally fired upon. At the close of the prosecution’s case, the defense reopened the request for a one week adjournment. They needed witnesses, documents and time to prepare. As the discussion continued it became

evident that the Judge Advocate was not interested in delaying the proceedings. Nor was

he interested in having witnesses called. In fact, one witness he rejected was

Konteradmiral Karl Schmidt, who had been in command of the destroyer Erich Giese on April 13, 1940. 60 Admiral Schmidt’s testimony was vital to Dr. Todsen’s argument that the usages of war had changed with respect to attacks on survivors. Todsen’s defense of Eck

was based on “operational necessity,” and thus it was critical that he demonstrate that throughout World War II, all of the belligerents had justified attacks on shipwrecked survivors on that basis.

The case of the German destroyer, Erich Giese, sunk near Narvik on April 13, 1940, is but one well-documented example. After the Erich Giese had been sunk, British destroyers fired on the 200 German survivors who were flailing about in the water and clinging to life rafts. The British had claimed the killing was an “operational necessity” to prevent the German sailors from reaching shore and joining the German troops in Narvik.

Killing shipwrecked survivors to prevent them from joining their own forces was not unique to the British. Dr. Todsen, however, was probably unaware of two other similar incidents that had occurred in the South Pacific during World War II. On January 26, 1943, the USS Wahoo, on her third war patrol, sank a Japanese troopship off the New Guinea coast. The Wahoo’s skipper, LCdr. Dudley W. “Mush” Morton, surfaced to charge his batteries and, according to his own operational report, “destroy the estimated twenty troop boats now in the water” “We surfaced in a sea of Japanese,” Lt. George W. Grider

wrote. “They were on every piece of flotsam, every broken stick, in lifeboats everywhere.”

According to Lt. Richard O’Kane, the Wahoo’s executive officer, the captain said to him,

“I will prevent these soldiers from getting ashore…“ O’Kane, however, was careful to avoid the accusation that the Wahoo’s fire, which was “methodical…sweeping abeam forward like fire hoses sweeping a street,” was specifically aimed at the Japanese.

According to O’Kane, “Some Japanese troops were undoubtedly hit in this action. But no

individual was deliberately shot in the boats or in the sea. ”62

The second incident occurred during and after the Battle of the Bismarck Sea, March 2-5,

1943. According to Capt. Robert R. Buckley, Jr USNR (Ret.), “thousands of Japanese troops from sunken transports were adrift in collapsible boats.” On March 4, those survivors became the targets of repeated air attack, and for several days American PT

boats hunted down and sank the rafts. The justification was to prevent the survivors from

reaching the New Guinea coast. The explanation was so plausible that the attacks were widely reported in Newsweek and Life. The Americans, at least, made no secret that the usages of war, with regard to shipwrecked survivors, had drastically changed. 63

The defense attorneys continued to ask for a one week adjournment. They still needed time to prepare, and there was much to do. Bending slightly, the Judge Advocate granted

them an adjournment until 2:15 p.m. the following day.

Day Two

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 necessit0y” 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.

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. 64 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. 65 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 U-27’s captain, Kaptlt. Bernhard

Wegner, 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.66

The other event to which Dr. Todsen was probably referring was the destruction of 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. 69

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?”

Eck, “Yes.”

“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. 70

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 9:30 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. 71

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. ”72

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. 73

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.74

“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 Georg 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?” 75

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 5:00 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 10:00 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 Weisspfennig, 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.

Day Three

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. 76

“For not carrying out an order in the face of an enemy,” Eck flatly stated, “one is punished with death.”

125“Who can carry out that punishment?” Lermon asked.

“At sea the commander has the right of doing that,” Eck told him.

The cross-examination by Drs. Pabst and Wuif 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. ”78

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.” 79

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. ”80

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 be

havior 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. 81

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.82

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?” 84

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?”

Scbnee 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. 85

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. WuIf, 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 WuIf 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. 88

“We had to assume that,” Hoffmann answered.

“You fired at the rafts?” It was as much a statement as a question.

“Yes.”

“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.89

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 Weisspfennig followed Hoffmann to the stand. Of all the defendants, Weisspfennig’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 Weisspfennig could answer that would mitigate his position. The role Weisspfennig 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.

Chief Engineer Lenz followed Weisspfennig. 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. 91

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. 92

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. 93

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. ”94

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 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. 95

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.” 96

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 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.” 97

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. 98

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.99

The court adjourned at 5:00 p.m., exactly on time.

Day Four

The trial reconvened on Saturday, October 20, at 10:00 a.m., for what would be the longest day of the trial—the closing arguments. Dr. Todsen began his close in English, arguing that there had been no evidence to show that the survivors were intentionally killed. He also argued that Eck had no motive to kill the survivors, as had the officers of U-86 in the Llandovery Castle case. Therefore, the judgment in that case could not apply to this one. Todsen restated the “operational necessity” defense, citing the strength of Allied aircraft in the area and the fates of four previous Type IXD2 boats that had passed

through that sector. Where did a U-boat captain’s priority lay, Todsen asked the court rhetorically, with the boat and his crew, or with the survivors?

Dr. Todsen missed two chances to expand on the argument that the usages of war had changed by not arguing the belligerents’ bombing raids against cities and the Allied killing of survivors in the Laconia Affair. He touched on both subjects, but did not elaborate. In the end he tried to hook up with Dr. Wegner’s weak Caroline argument, but even then, he made only a passing reference to it.

Dr. Pabst addressed the court in German on behalf of Dr. Weisspfennig, August Hoffmann

and Wolfgang Schwender. Pabst, who read quite clearly the grim writing on the wall, followed a new line of reasoning instead of merely rehashing what the court had already

heard. If the court found the accused guilty, Pabst maintained, then the court must decide

if the men were guilty of murder, manslaughter or involuntary manslaughter. In an obvious attempt to sway the court away from a murder finding and open at least the possibility of a conviction of manslaughter, Pabst asserted that the judgment of the defendants was clouded by excitement and strain on the night the Peleus was sunk.

Switching gears, Pabst devoted some time and hit hard on the defense that the crewmen

were obeying orders, and thus on March 13, 1944, the accused were subject to German military law. And, he added, as POWs they were still subject to German military law. He

then addressed the case of each man individually, beginning with Wolfgang Schwender.

None of the testimony established that Schwender had actually aimed at a human being. In

fact, the evidence showed that he had fired only at wreckage, and for only a very short time. Schwender had, argued Pabst, not participated in the killing of human beings.

August Hoffmann and Dr. Walter Weisspfennig posed more difficult problems. Hoffmann

had never been given a direct order to fire (and yet did so), while as a doctor, Weisspfennig was prohibited from taking any offensive action (although he too had used a

machine gun). With little choice, Pabst fell back on the simple plea of superior orders, citing German regulations found in the Militärstrafgesetzbuch. Since they acted on a binding order, the order lifted responsibility from them. He, too, cited the Caroline case, reciting the observation that “the English government recognizes the fact that the order of a superior does not make the subordinate responsible.” He followed that with reference to

the 1921 German court decision in the Dover Castle case. 100

The hospital ship Dover Castle, sunk on May 26, 1917, by UC-67 in the Mediterranean, was carrying wounded from Malta to Gibraltar. Six men were lost. UC-67’s captain, Oberleutnant z.S. Karl Neumann, was never charged with a war crime, but at the direction

of the German Attorney General, “an enquiry was held to decide the point whether the accused on 26 May 1917, intentionally killed six men… .“ The proceedings ended in his

acquittal. The court ruled that Neumann was following orders when he torpedoed the hospital ship.101

Seizing on this case as precedent, Dr. Pabst argued that because the British had never protested the decision, they accepted the principle of superior orders. In the Llandovery Castle case, the judgment against the two officers was based on the grounds that they knew the order they had received was illegal. In the case of Weisspfennig and Hoffmann,

they did not know.

Engineer Hans Lenz’s counsel, Major Lermon, opened his closing statement by restating a

portion of Dr. Pabst’s closing argument: no witness had testified that any of the survivors had actually been shot at. The only contrary evidence were the affidavits signed by the three Peleus survivors, and the major wondered aloud why the three crewmen had not been brought into court so they could be faced by the accused. He pointed out that the prosecution had fourteen months to arrange for their appearance in court.

Lermon lectured the court on the issue of “superior orders”:

If you hold that superior orders are no defense to an individual, then you are putting in an impossible situation any individual who is subject to military law and to military discipline, particularly any member of the German Wehrmacht. As you have already heard

from Dr Pabst, and as you have already heard in evidence, under German law, when on active service, if a person refuses to obey an order, his superior has the right to mete out a death penalty. If you decide that superior orders are no defense, you put the individual into this impossible position that if he disobeys the order he is liable to be shot immediately; but if he obeys the order he is liable to come before a court and be charged on a capital

offense with a war crime. 102

While his argument was cogent and focused, he still had to somehow explain why Lenz took the machine gun from Schwender and opened on the rafts. And, of course, there was

little he could say except to restate that for Lenz, it was a matter of honor.

Colonel Halse wasted little time in getting to the heart of his argument against Eck and his crew members. Eck’s orders on the night of March 13, argued Halse, were illegal in light

of the German court’s ruling in the Llandovery Castle case. Therefore, there could be no defense of superior orders for Weisspfennig, Hoffmann and Schwender. Eck’s directives,

he said, amounted to “cold blooded murder.” 103 Halse also told the court that the case against Hoffmann had been fully proven. Hoffmann admitted firing the machine gun, and

he said he was the only one who threw hand grenades. One of the three survivors testified

in an affidavit that one of the men on a raft had been killed by a hand grenade.

The prosecutor made his strongest attack on Dr. Weisspfennig, saying that “his case is made the worse by reason of the fact that he is of the medical profession, and has no right to bear arms at all….” Passing on to Lenz, he called his reason for taking the gun from Schwender “absurd.” He allowed that Schwender was “in a curious position” because he

was the only rating involved. But, argued Halse, “he must have known they were firing at

human targets.”

Colonel Halse’s speech was the last made during the morning session. When the court reconvened at 2:15 p.m., the Judge Advocate began summing up the proceedings. He addressed each defense argument point by point in a manner more suited to a prosecutor’s

closing statement than an impartial jurist. He left the seven jurors no choice but to return a guilty verdict.

The seven members of the court took just forty minutes to reach a verdict of guilty on all

counts for each defendant. There remained only the arguments for mitigation of the sentence.

Dr. Todsen made two points in his argument. The first was that the Llandovery Castle case and the Peleus case were considerably different. In the first case the sinking of a hospital ship was clearly a crime, and the captain was trying to hide his crime when he fired on the survivors. In Eck’s case, he argued, the sinking of the Peleus was a legal act, and Eck’s attempt to destroy the rafts was an “operational necessity.”

Todsen’s second point had to do with the testimony given by former U-boat ace Adalbert

Schnee. Schnee was one of Germany’s most experienced U-boat captains, argued Todsen,

whereas Eck had little experience and was on his maiden patrol as a commander when Peleus was sunk. Schnee’s statement about what his probable actions would have been had he found himself in a situation similar to Eck’s represented Schnee’s greater experience and confidence.

Thereafter, character witnesses were called on behalf of Weisspfennig, Hoffmann and Schwender. Dr. Pabst offered a statement on behalf of Weisspfennig and Schwender that

stressed the requirement for unquestioning obedience in the German navy. He also cited the mutual dangers shared by a U-boat’s crew, and the effect that had on binding the men

together. “If the accused are sentenced,” Pabst told the court, “they can only be sentenced on account of their faithfulness to their commander and on account of their comradeship

to one another”

Major Lermon’s attempt at mitigation on behalf of Lenz consisted of trying to convince the court that Lenz “did not commit this crime out of any sordid motives of gain, or any

lust of cruelty.” His actions were “certainly illiogical, but not unchivalrous…. ”104

The seven members of the court left the room to deliberate. Just fifty-eight minutes later

they returned with their decisions: Heinz Eck, August Hoffmann and Dr. Walter

Weisspfennig were condemned to death by firing squad; Chief Engineer Hans Lenz was sentenced to imprisonment for life, Wolfgang Schwender to fifteen years.

All five defendants stood stiffly at attention as the sentences were intoned, first in English by the court president, Brigadier C. J. V. Jones, and then in German by an interpreter. The faces of those condemned to death were as impassive as those who avoided a capital sentence. The sentences were confirmed up the line, with the last confirmation of them made by Field Marshal Sir Bernard L. Montgomery on November 12, 1945.105

On November 30, 1945, a cold gray morning in Hamburg, Heinz Eck, August Hoffmann

and Walter Weisspfennig rose before dawn and put on their Kriegsmarine uniforms for the

last time. The condemned men were marched across the Altona Prison exercise yard and

down a tree-lined path to the prison firing range. Ahead of them were three posts side-by-

side, all uniform in height. The prisoners were tied to the posts according to standard field regulations in such a way that after they were shot, the only visible changes in body positions would be a slight sagging at the knees and heads slumped forward. The officer in

charge of the firing squad and his sergeant inspected the bindings and the latter pulled a

hood over each man’s head. At 8:40 a.m., all three were executed.106

Professor Wegner had told the court that “the passions of today will pass and be replaced

by calmer and more peaceful judgment on war crimes and alleged German war crimes.”

For Eck, Hoffmann and Weisspfennig, that day would never come. But it did for Hans Richard Lenz and Wolfgang Schwender. After a series of reviews and sentence reductions,

Schwender was released from prison on December 21, 1951; Lenz followed him to

freedom on August 27, 1952.

* * *

Were Heinz Eck and his crewmen really war criminals? The peers of the convicted crew

of U-852 argued then and still do today that they were victims of the victorious Allies’

vindictiveness, or pawns in British-Greek relations. Eck’s supporters speak darkly of the mysterious deaths of Dr. Pabst and Dr. Todsen shortly after the trial. Pabst allegedly committed suicide, while Todsen was killed when the car in which he was riding was hit

by a British army truck. Both deaths were investigated by the British Military Police, whose reports still remain sealed and unavailable. 107

A former senior German naval officer who commanded the Ger man mine sweepers

believed that Eck was guilty of an error in judgment. He added that many other actions in

war killed defenseless people and are accepted as inevitable. Not all former German navy

officers agree with that assessment. Some agree with the court’s decision, describing it as harsh, but fair. Others believe Eck was simply not guilty of any wrongdoing whatsoever. 108

Heinz Eck’s act was atrocious. He clearly overreacted to the warnings he had received from Schnee in January 1944, and perceived a greater threat of discovery than actually existed. His decision to destroy “all traces of the sinking” was unrealistic. His prolonged and futile attempt to carry out his decision showed extremely poor judgment. But poor judgment, even when it results in manslaughter, does not necessarily rise to the level of a war crime. And a conviction for manslaughter does not carry with it a death sentence. Eck

violated German military and municipal law and would probably have been convicted by a

German court. But a probability is not a certainty and the British did not want to take a chance on a repeat of the 1921 Leipzig Trials.

But the fact remains that, during World War II, the usages of war with regard to killing civilians and shipwrecked survivors changed. The American press openly reported the slaughter of thousands of Japanese survivors in the Bismarck Sea, evidence that—insofar

as the Americans were concerned—the rules had indeed changed.

The British were less open than the Americans about the brutal acts they justified as

“operational necessities.” But the British government at least tacitly approved of killing German shipwreck survivors in certain circumstances. Many belligerents in World War II

slaughtered civilians by the hundreds of thousands with massive air raids on population centers.

Allied loathing of Nazis atrocities, however, especially those in Eastern Europe, clouded

their objectivity. All Germans were classed as Nazis, and everything the Germans did was

seen as another example of Nazi barbarity. Acts committed with some regularity by virtually every army or navy in the world became war crimes when committed by

Germans. For the British and their allies, these issues were seen in black and white. There was no middle ground.

Despite all the eloquent words written and spoken about the high standards and

evenhandedness of the war crimes trials that followed World War II, Allied wartime propaganda and the excesses of the Nazi state made fair adjudications of the subject events virtually impossible. Before the war ended there was even serious discussion among the Allies about not holding trials at all. Former political leaders and soldiers charged with war crimes would simply be executed by executive action, “and those responsible for such action would answer for it at the bar of history.” 109

But such drastic measures, such a wholesale repudiation of western democratic principles,

were impossible to carry out. The solution lay in holding trials that were ostensibly equitable judicial inquiries. All the elements for such “equity” were present: regulations governing procedures, attorneys for both the prosecution and defense, witnesses, a judge

and a jury. And yet, it was under those conditions that Eck, Lenz, Hoffmann, Weisspfennig

and Schwender were brought before a British military tribunal and tried for their crimes.

Given the circumstances, it is doubtful that even the most aggressive, best prepared defense could have altered the outcome.

Regardless of whether or not Heinz Eck and the others were guilty of war crimes, poor judgment, or of just following orders, the outcome of the trial was Siegerjustiz.

* * *