Chapter XVIII: Part 4: , Book 20, as follows (3)

In connection with the Root Resolution, however, another question was discussed which is of the greatest importance for the interpretation of the London Protocol, namely, the definition of the term “merchantman.” Here the two conflicting views in the entire U-boat question became clearly evident. On the one side there stood Britain, on the other France[4], Italy, and Japan, while the United States took the position of a mediator. According to the minutes of the Washington Conference, the Italian delegate, Senator Schanzer, opened the offensive of the weaker naval powers by expressly emphasizing that a merchantman, when regularly armed, might be attacked by a submarine without preliminaries. In a later session Schanzer repeated his statement that the Italian delegation applied the term of “merchantman” in the resolution only to unarmed merchant vessels. He declared this to be in explicit accordance with the existing rules of international law.[5]

The French delegate, M. Sarraut, at that time received instructions from his Foreign Minister, M. Briand, to second the reservations of the Italian delegate.[6] He thereupon moved to have the Italian reservations included in the minutes of the session.

The Japanese delegate, Hanihara, supported this trend with the statement that he thought it was clear that merchant vessels engaged in giving military assistance to the enemy ceased in fact to be merchant vessels.[7] It can therefore be seen that in 1922, three of the five powers represented expressed the opinion that armed merchant vessels were not to be regarded as merchant vessels in the sense of the Agreement.

Since the whole resolution threatened to collapse because of this difference of opinion, a way out was found which is typical of conferences of this kind. Root closed the debate with the statement that in his opinion the resolution held good for all merchant ships as long as the ship remained a merchant vessel.[8] With this compromise a formula was created which, while representing a momentary political success, would not however carry any weight in the case of war, for it was left to every participating power to decide whether or not it would grant the armed merchant vessels the protection of the resolution in case of war.

I have described these events of the year 1922 a little more in detail because the powers which took part in them were the same as those which participated in the London Naval Conference of 1930. The London Conference was the continuation of the Washington Conference, and the subjects that had been discussed and included in the minutes of the first conference were of great importance for the second conference. Experts too—and by no means only German but above all American and French experts—based their examinations on the close connection of both conferences, and it was precisely for that reason that they declared the result achieved in the question of submarines to be ambiguous and unsatisfactory. Here I merely wish to point to Wilson’s summarizing report on the London Naval Treaty.[9]

This report, besides the ambiguity of the concept “merchant vessel,” also stresses the uncertainty connected with the words “active resistance”; and it is with these very words that an exception from the protection of the merchantman is connected, an exception which likewise is not contained in the actual text of the London Agreement but which nevertheless is generally recognized. I am referring to merchantmen in an enemy convoy. If the London Agreement were interpreted literally, it would be understood that even merchantmen in an enemy convoy must not be attacked without warning but that an attacking warship would have to put the escort vessels out of action first and then stop and search the merchantmen. However, this suggestion, which is impossible from a military point of view, evidently is not made even by the Prosecution. In the report of the British Foreign Office, which has been mentioned several times, it says:

“Ships sailing in enemy convoys are usually deemed to be guilty
of forcible resistance and therefore liable to be sunk
forthwith.”

Here even the Prosecution accepts an interpretation of the words “active resistance,” an interpretation which results in no way from the treaty itself but is simply a consequence of military necessity and thus dictated by common sense.

And this very same common sense demands also that the armed merchantman be held just as guilty of forcible resistance as the convoyed ship. Let us take an extreme instance in order to make the matter quite clear. An unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots, may be sunk without warning, because it has placed itself under the protection of the trawler and thereby made itself guilty of active resistance. If, however, this same merchant ship does not have the protection of the trawler and instead the 2 guns, or even 4 or 6 of them, are placed on its decks, thus enabling it to use its full speed, should it in this case not be deemed just as guilty of offering active resistance as before? Such a deduction really seems to me against all common sense. In the opinion of the Prosecution the submarine would first have to give the merchant ship, which is far superior to it in fighting power, the order to stop and then wait until the merchant ship fires its first broadside at the submarine. Only then would it have the right to use its own weapons. Since, however, a single artillery hit is nearly always fatal to a submarine but as a rule does very little harm to a merchant ship, the result would be the almost certain destruction of the submarine.

“When you see a rattlesnake rearing its head, you do not wait
until it jumps at you but you destroy it before it gets the
chance.”

These are Roosevelt’s words, in which he justified his order to the United States naval forces to attack German submarines. This reason seemed sufficient to him to order the immediate use of arms even without the existence of a state of war. It is a unique instance in the history of warfare, however, to grant one of two armed opponents the right to fire the first shot and to make the other wait to be hit first. Such an interpretation is contradictory to all military reason. It is no wonder, therefore, if in view of such divergent opinions, the experts on international law, even after the London Treaty and the signing of the London Protocol of 1936, consider the treatment of armed merchant vessels in naval warfare to be an unsolved question. Here too I should like to refer to only one source of research, which enjoys especially high authority. It is the draft of an agreement on the rights and duties of neutrals in naval warfare, an agreement which leading American professors of international law, such as Jessup, Borchard, and Charles Warren, published in the _American Journal of International Law_ of July 1939 and which includes arguments which furnish an excellent idea of the latest trend of opinion. Article 54 of this draft corresponds word for word to the text of the London Agreement of 1936, with one notable exception: The term “merchant vessel” is replaced by “unarmed vessel.” The next article then continues:

“In their action with regard to enemy armed merchant vessels,
belligerent warships, whether surface or submarine, and
belligerent military aircraft are governed by the rules
applicable to their action with regard to enemy warships.”

This opinion is first of all explained by historical development. During the time when it was customary to arm merchant vessels, that is, until the end of the last century, there was no question of any protection for the merchant vessel against immediate attack by an enemy warship. With the introduction of armor plating the warship became so superior to the armed merchant vessel that any resistance on the part of the latter was rendered futile, and the arming of merchant ships therefore gradually ceased. Only this defenselessness against warships, and this alone, granted merchant vessels the privilege of not being attacked without warning by the enemy: “As merchantmen lost effective fighting power they acquired a legal immunity from attack without warning.”

This immunity was never conceded to the merchant vessel as such but only to the defenseless and harmless merchant vessel. In regard to this the American expert on international law, Hyde,[10] stated in 1922, that is, after the Washington Conference and the afore-mentioned Root Resolution on U-boat warfare:

“Maritime states have never acquiesced in a principle that a
merchant vessel so armed as to be capable of destroying a vessel
of war of any kind should enjoy immunity from attack at sight,
at least when encountering an enemy cruiser of inferior
defensive strength.”

Legal as well as practical considerations, therefore, led the above-mentioned American authorities, after the signing of the London Agreement and shortly before the outbreak of this war, to form the opinion that armed merchant ships do not enjoy protection from attacks without warning.

Here the old discrimination between defensive and offensive armaments is also rejected as inapplicable. It is a well-known fact that the American Secretary of State, Lansing, in his note to the Allies on 18 January 1916, took the point of view that any kind of armament aboard a merchant vessel will make its fighting power superior to that of a submarine and that such armament is therefore of an offensive nature.[11]

In the later course of the first World War, the United States changed its opinion and declared that mounting guns on the stern could be taken as proof of the defensive character of the armaments. This standpoint was adopted in some international agreements and drafts, as well as by British jurists in particular. It does not do justice to the practice of naval warfare.

First of all, in this war the guns on many vessels were mounted from the very start in the bows, for instance, regularly on fishing trawlers. Furthermore, the antiaircraft weapons of the merchant vessel, which were especially dangerous for the submarine, were frequently placed on the bridge, and could therefore be used in all directions. Besides, there can be no differentiation between defensive and offensive armaments as to the way the weapons are placed.

In this respect orders alone and the way in which these weapons are meant to be employed are the decisive factors. Soon after the war had started the orders of the British Admiralty had already fallen into German hands. A decision of the Tribunal has made it possible for me to submit them. They are contained partly in the _Confidential Fleet Orders_, chiefly, however, in the _Defense of Merchant Shipping Handbook_. They were issued in 1938. They do not therefore deal with countermeasures against illicit German actions but, on the contrary, were already issued at a time when warfare in accordance with the London Agreement was the only form of submarine warfare taken into consideration in Germany.

The instructions further show that all British merchant vessels acted, from the first day of the war, according to orders received from the British Admiralty. These involved the following points with respect to submarine warfare:

(1) Reporting of submarines by radio telegraphy.

(2) The use of naval artillery.

(3) The use of depth charges.

These instructions were supplemented on 1 October 1939, when a call was transmitted over the radio to ram all German submarines.

It might seem unnecessary after this survey to make any mention at all of the defensive and offensive character of such orders. The orders on the use of artillery by merchant vessels, however, do make such differentiation; that is, guns are to be used for defense only, as long as the enemy on his part adheres to the regulations of international law, and for the offensive only when he no longer does. The orders covering the practical execution of these directives reveal, however, that there is no difference at all between defensive and offensive use. Admiral Dönitz explained this in detail when he was heard in Court, and I do not want to repeat it. Actually, from the very beginning of the war merchant vessels were under orders to fire on every occasion on every submarine which came within range of their guns. And that is what the captains of British merchant vessels did. The reason for this offensive action can certainly not be found in the conduct of German submarines during the first weeks of the war, for even the Foreign Office report admits that this conduct was correct. On the other hand, British propaganda may have had great influence, since in connection with the unintentional sinking of the Athenia on 3 September 1939, it disseminated through Reuters on 9 September the assertion that unrestricted submarine warfare was in progress and upheld this assertion notwithstanding the fact that the conduct of German submarines during the first weeks of the war refuted this accusation. Together with the announcement of the British Admiralty’s ramming orders of 1 October 1939, the merchant navy was again officially informed that the German U-boats had ceased to respect the rules of naval warfare and that merchant vessels were to adjust their conduct accordingly. It seems to me of no importance that a corresponding written supplement to Admiralty orders was not issued until the spring of 1940, because nowadays a naval war is not directed by letters but by wireless. But according to the latter, the British captains, as from 9 September or 1 October 1939 at the latest, were directed to use their guns offensively against the German U-boats in accordance with the Admiralty’s instructions as contained in its handbook. The German order to attack armed enemy merchant vessels without warning was issued only on 4 October. Thus it was justified in any case, even if one did acknowledge a difference in treatment for vessels with defensive and offensive armament.

The guns on the merchant vessels and the orders concerning their use were, however, only a part of a comprehensive system of the use of merchant vessels for military purposes. Since the end of September 1939 the fastest vessels, that is, those ships that were the least endangered by submarines but, on the other hand, were especially suited for chasing U-boats, received depth charge chutes, that is, armaments which call for location of a submerged submarine and thus may be judged as typical weapons for the offensive.

However, another factor of greater general importance, and also of greater danger to the submarines, was the order to report every enemy ship on sight, giving its type and location. This report was destined, so said the order, to facilitate taking advantage of an opportunity, which might never recur, to destroy the enemy by naval or air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service with intent directly to injure the enemy. If one considers the fact that according to the hospital ship agreement even the immunity of hospital ships ceases, if they relay military information of this type, then one need have no doubts about the consequences of such behavior on the part of a commercial vessel. Any craft putting out to sea with the order and intention of using every opportunity that occurs to send military reports about the enemy to its own naval and air forces is taking part in hostilities during the entire course of its voyage and, according to the afore-mentioned report of 1930 of the committee of jurists, has no right to be considered a merchant vessel. Any different conception would not do justice to the immediate danger which a wireless report involves for the vessel reported and which subjects it, often within a few minutes, to attack by enemy aircraft.

All of the Admiralty’s directives, taken together, show that British merchant vessels, from the very first day of the war, closely co-operated with the British Navy in combating the enemy’s naval forces. They were part of the military communications network of the British naval and air forces and their armament of guns and depth charges, the practical training in manipulation of the weapons, and the orders relative to their use, were actions taken by the British Navy.

We consider it out of the question that a merchant fleet in this manner destined and utilized for combat should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the basis of this conception and in connection with the arming of all enemy merchant vessels, which was rapidly being completed, an order was issued on 17 October 1939 to attack all enemy merchant ships without warning.

THE PRESIDENT: Dr. Kranzbühler, we may as well break off now.

SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but I promised to tell the Tribunal about the two affidavits put forward for the Defendant Seyss-Inquart. We have no objection to them. I promised to tell Your Lordship today. I am sorry to have to detain you.

[_The Tribunal adjourned until 16 July 1946 at 1000 hours._]

NOTES

-----

[2] _De jure pacis ac belli_, Book II, Chapter XXIV, Paragraph 10.

[3] Lord Edward Grey: “Twenty-five Years of Politics 1892-1916.” (Retranslated into English from the German edition published by Bruckmann, Munich 1926). “International Law has always been very flexible.... A belligerent possessing an over-powerful navy has at all times been in search of an interpretation of International Law which would justify a maximum of intervention in respect of merchandise liable to reach the enemy. This attitude was naturally adopted by Great Britain and the Allies owing to their supremacy at sea. The British position on this subject had not always been the same. When we figured among the neutrals, we naturally contested the right to maximum intervention claimed by the belligerents.”

[4] Yamato Ichihalie, _The Washington Conference and After_, Stanford University Press, Cal., 1928, Page 80, “The chief reason for the British plea was the apprehension of the craft in the hands of the French navy.”

[5] _Conference on the Limitation of Armaments_, Washington, November 12, 1921-February 6, 1922, Washington, Government Printing Office, 1922, Pages 606, 688, 692.

[6] _French Yellow Book_, La Conférence de Washington, Page 93.

[7] Protocol Pages 693, 702.

[8] Protocol Page 704.

[9] _American Journal of International Law_, 1931, Page 307.

[10] Hyde, _International Law_, 1922, Vol. II, Page 469.

[11] _U.S. Foreign Relations_, 1916, Supplement Page 147.

ONE HUNDRED
AND SEVENTY-NINTH DAY
Tuesday, 16 July 1946

_Morning Session_

FLOTTENRICHTER KRANZBÜHLER: Mr. President, Gentlemen of the Tribunal: I would like to sum up my statements of yesterday and make the following remarks regarding the conduct of German U-boats against enemy merchant vessels.

I believe that the German construction of the London Agreement of 1936, in the light of the position taken by some of the powers involved, as generally known to all experts, as well as according to the opinion of numerous and competent jurists of all countries, was in no way fraudulent. If I were to express myself with all caution, I would say that it is, legally, at least, perfectly tenable, and thus not the slightest charge can be raised against the German Naval Command for issuing its orders on a sensible and perfectly fair basis. We have shown that these orders were given only in consequence of the conditions created by publication of the British measures, which, according to the German concept of law, justified the orders issued.

Before I leave this subject I should like to recall to the mind of the Tribunal the special protection which the German orders provided for passenger vessels. These passenger vessels were excluded for a long time from all measures involving sinking of ships, even when they sailed in an enemy convoy and therefore could have been sunk immediately, according to the British conception. These measures indicate very clearly that the accusation of disregard and brutality is unjustified. The passenger vessels were only included in the orders concerning other vessels when in the spring of 1940 there was no longer any harmless passenger traffic at all, and when these ships, because of their great speed and heavy armament, proved to be particularly dangerous enemies of the submarines. If therefore Mr. Roger Allen’s report cites as an especially striking example of German submarine cruelty the sinking of the _City of Benares_ in the autumn of 1940, then this example is not very well chosen because the _City of Benares_ was armed and went under convoy.

I shall turn now to the treatment of neutrals in the conduct of German submarine warfare, and I can at once point again in this connection to the example which Mr. Roger Allen cites especially for the sinking of a neutral vessel contrary to international law. It concerns the torpedoing of the Danish steamer _Vendia_, which occurred at the end of September 1939. The Tribunal will recall that this ship was stopped in a regular way and was torpedoed and sunk only when it prepared to ram the German submarine. This occurrence led the German Government to protest to the Danish Government on account of the hostile conduct shown by a neutral boat.

This one example is just to show how different things look if not only the result in the form of the sinking of a neutral ship is known, but also the causes which led to this result. Until the last day of the war the fundamental order to the German submarines was not to attack merchantmen recognized as neutral. There were some accurately defined exceptions to this order, about which the neutral powers had been notified. They affected in the first place ships which conducted themselves in a suspicious or hostile manner, and secondly ships in announced operational areas.

To the first group belonged, above all, those vessels which sailed blacked-out in the war area. On 26 September 1939 the Commander of U-boats asked the High Command of the Navy for permission to attack without warning vessels proceeding in the Channel without lights. The reason was clear. At night the enemy’s troop and matériel shipments were taking place, by which the second wave of the British expeditionary army was ferried across to France. At that time the order was still in effect that French ships were not to be attacked at all. But since French ships could not be distinguished from English vessels at night, submarine warfare in the Channel would have had to be discontinued completely after dark in compliance with this order. The Tribunal heard from a witness that in this way a 20,000-ton troop transport passed unmolested in front of the torpedo tubes of a German submarine. Such an occurrence in war is grotesque and therefore of course the Naval Operations Staff approved the request of the Commander of U-boats.

The Prosecution has now made much ado about a note written on this occasion by an assistant at the Naval Operations Staff, Kapitänleutnant Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of the opinions expressed in this note; therefore they did not result in corresponding orders. The order to attack blacked-out ships was issued by radio without any further addition on the part of the Naval Operations Staff and on 4 October it was extended to further regions along the British coast, and again without any addition in the sense of the above-mentioned note.

Examining the question of blacked-out vessels from the legal standpoint, Vanselow, the well-known expert on the law governing naval warfare, makes the following remark:[12]

“In war a blacked-out vessel must in case of doubt be considered
as an enemy warship. A neutral as well as an enemy merchant
vessel navigating without light voluntarily renounces during the
hours of darkness all claim to immunity from attack without
being stopped.”

I furthermore refer to Churchill’s declaration, made in the House of Commons on 8 May 1940, concerning the action of British submarines in the Jutland area. Since the beginning of April they had had orders to attack all German vessels without warning during the daytime, and all vessels, and thus all neutrals, as well, at night. This amounts to recognition of the legal standpoint as presented. It even goes beyond the German order, insofar as neutral merchant vessels navigating with all lights on were sunk without warning in these waters. In view of the clear legal aspect it would hardly have been necessary to give an express warning to neutral shipping against suspicious or hostile conduct. Nevertheless, the Naval Operations Staff saw to it that this was done.

On 28 September 1939 the first German note was sent to the neutral governments with the request that they warn their merchant ships against any suspicious conduct, such as changes in course and the use of wireless upon sighting German naval forces, blacking out, noncompliance with the request to stop, _et cetera_. These warnings were subsequently repeated several times, and the neutral governments passed them on to their captains. All this has been proved by documents which have been submitted. If therefore, as a result of suspicious or hostile conduct, neutral ships were treated like enemy ships, they have only themselves to blame for it. The German submarines were not allowed to attack any one who as a neutral maintained a correct attitude during the war, and there are hundreds of examples to prove that such attacks never did occur.

Now I wish to deal with the second danger which threatened neutral shipping: The zones of operations. The actual development, briefly summed up, was as follows:

On 24 November 1939 the Reich Government sent a note to all seafaring neutrals in which it pointed out the use of enemy merchant ships for aggressive purposes, as well as the fact that the Government of the United States had barred to its own shipping a carefully defined naval zone around the central European coast, the so-called U.S.A. combat zone. As the note states, these two facts give the Reich Government cause—I quote:

“... to warn anew and more strongly that in view of the fact
that the actions are carried on with all the technical means of
modern warfare, and in view of the fact that these actions are
increasing in the waters around the British Isles and near the
French coast, these waters can no longer be considered safe for
neutral shipping.”

The note then recommends as shipping lanes between neutral powers certain sea routes which are not endangered by German naval warfare and, furthermore, recommends legislative measures according to the example set by the United States. In concluding, the Reich Government rejects responsibility for any consequences which might follow if warning and recommendation should not be complied with. This note constituted the announcement of an operational area equivalent in size to the U.S.A. combat zone, with the specified limitation that only in those sea zones which were actually endangered by actions against the enemy consideration could no longer be given to neutral shipping.

The Naval Operations Staff did indeed observe this limitation. The neutral powers had more than 6 weeks in which to take the measures recommended by the German Government for the safety of their own shipping and to direct their shipping along the routes announced. Starting in January the German command then opened up to the German naval forces, within the operational area announced, certain accurately defined zones around the British coast, in which an attack without warning against all ships sailing there was admissible. The naval chart on which these zones had been marked was submitted to the Tribunal. The chart shows that these zones, and only these, were gradually set up where, as a result of mutually increasing attacks and defensive actions at sea and in the air, engagements continually occurred, so that any ship entering this area was operating in the direct presence of the naval forces of both powers. The last of these zones was designated in May 1940. These zones were not, and need not have been, announced because they were all within the area of operations as proclaimed on 24 November 1939. The distance of these zones from the enemy coast was on the average 60 sea miles. Outside their boundaries the declaration concerning the area of operations of 24 November was not observed, that is to say, neutral ships could be stopped and sunk only in accordance with the Prize Ordinance.

This situation changed when, after the collapse of France in the summer of 1940, the British Isles became the center of war operations. On 17 August 1940 the Reich Government sent to the neutral governments a declaration in which the entire area of the U.S.A. combat zone around England without any limitation was designated as an operational area.

“Every ship”—so the note reads—“which sails in this area
exposes itself to destruction not only by mines but also by
other combat means. Therefore the German Government once more
urgently warns against entering this endangered area.”

From this time on the area was fully utilized and the immediate use of arms against craft encountered in it was permitted to all naval and air forces, except where special exceptions had been ordered. The entire development described was openly dealt with in the German press, and Grossadmiral Raeder granted interviews to the foreign press on this subject, which clearly showed the German viewpoint. If therefore in the sea zones mentioned neutral ships and crews sustained losses, at least they cannot complain about not having been warned explicitly and urgently beforehand.

This statement in itself has not much meaning in the question of whether areas of operation as such constitute an admissible measure. Here, too, the Prosecution will take the position that in the London Agreement of 1936 no exceptions of any kind were made for areas of operation and that therefore such exceptions do not exist.

It is a well-known fact that operational areas were originally proclaimed in the first World War. The first declaration of this kind came from the British Government on 2 November 1914, and designated the entire area of the North Sea as a military area. This declaration was intended as a reprisal against alleged German violations of international law. Since this justification naturally was not recognized, the Imperial Government replied on 4 February 1915 by designating the waters around England as a military area. On both sides certain extensions were made subsequently. I do not wish to go into the individual formulations of these declarations and into the judicial legal deductions which were made from their wording for or against the admissibility of these declarations. Whether these areas are designated as military area, barred zone, operational area, or danger zone, the point always remained that the naval forces in the area determined had permission to destroy any ship encountered there. After the World War the general conviction of naval officers and experts on international law alike was that the operational area would be maintained as a means of naval warfare. A development, typical for the rules of naval warfare, was confirmed here, namely, that the modern technique of war forcibly leads to the use of war methods which at first are introduced in the guise of reprisals, but which gradually come to be employed without such a justification and recognized as legitimate.

The technical reasons for such a development are obvious: The improvement of mines made it possible to render large sea areas dangerous. But if it was admissible to destroy by mines every ship sailing, despite warning, in a designated sea area, one could see no reason why other means of naval warfare should not be used in this area in the same way. Besides, the traditional institution of the blockade directly off enemy ports and coasts by mines, submarines, and aircraft was made practically impossible, so that the sea powers had to look for new ways to bar the approach to enemy coasts. Consequently it was these necessities which were the compelling factors in bringing about the recognition of the operational area.

It is true that there was by no means a uniform interpretation concerning the particular prerequisites under which the declaration of such areas would be considered admissible, just as there was none with regard to the designation which the belligerent power must choose. The conferences of 1922 and 1930 did not change anything either in that respect, as can be seen, for instance, from the efforts made after 1930, especially by American politicians and experts in international law, for a solution of this question.[13]

Unfortunately, there is no time at my disposal to discuss these questions in detail and therefore it must suffice for the purposes of the defense to state that during the conferences in Washington in 1922 and in London in 1930 the operational area was an arrangement or system known to all powers concerned, which operated in a way determined by both sides in the first World War; that is, that all ships encountered in it would be subject to immediate destruction. If the operational area were to have been abolished in the afore-mentioned conferences, especially in the treaty of 1930, an accord should have been reached on this question, if not in the text of the agreement then at least in the negotiations. The minutes show nothing of the kind. The relationship between operational area and the London Agreement remained unsettled.

The French Admiral Castex[14] has the same viewpoint; Admiral Bauer, Commander of Submarines in the first World War, voiced his disapproval in 1931 of the application of the London rules in the operational area, and this opinion was not unknown to the British Navy.[15] In a thorough study published by Professor Ernst Schmitz[16] in 1938 a merchant vessel which enters an operational area despite general prohibition is deemed to be guilty of “persistent refusal to stop.” The powers participating in the conferences in Washington and London carefully refrained, as also in other cases, from tackling controversial questions on which no accord could be reached. Therefore every power remained at liberty to champion in practice such an opinion as corresponded with its own interests. There was no doubt left in the minds of the participants as to this fact, and I have as a witness for this no less a person than the French Minister for Foreign Affairs at that time, M. Briand. In his instruction of 30 December 1921 to Sarraut, the French chief delegate in Washington, he announces his basic readiness to conclude an agreement on submarine warfare. However, he then points out a series of questions described as essential parts of such an agreement, among them the arming of merchant ships and the definition of combat zones. The instruction goes on:

“It is indispensable to examine these questions and to solve
them by a joint agreement, for surface vessels as well as for
submarines and aircraft, in order not to establish ineffective
and deceptive stipulations.”[17]

Particularly with respect to the question concerning the area of operations, Briand characterizes the submarine rules as being “ineffective and deceptive.”

After this testimony nobody would designate the German conception as fraudulent, according to which ships in declared areas of operation forfeit the protection under the London Agreement. Even Mr. Roger Allen’s report concedes this.[18] Therefore the attacks of the Prosecution seem to be directed, as I understand from the cross-examination, not so much against the existence of such zones as against their extent, and we have repeatedly heard the figure of 750,000 square sea miles. Incidentally, it must be noted that this figure includes the territorial area of Great Britain, Ireland, and western France; the maritime area only amounts to 600,000 square miles. I quite agree, however, that through operational areas of such a size the interests of the neutrals were badly prejudiced.

It is all the more remarkable that the afore-mentioned American draft of the convention of 1939, which concerns the rights and duties of neutrals, provides for a considerable expansion of the operational area. Such an area, which is termed “blockade zone” in the draft, was to include the waters up to a distance of 50 sea miles from the blockaded coast.

THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.

FLOTTENRICHTER KRANZBÜHLER: It is the draft set up by the American Professors Jessup Borchard and Charles Warren, dealing with the rights and duties of neutrals in sea warfare. It was published in the _American Journal of International Law_ of July 1939.

THE PRESIDENT: Jessup and Warren, you say?

FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and Charles Warren.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBÜHLER: This would correspond roughly to the area of waters in which attacks without warning were authorized until 17 August 1940; it covers approximately 200,000 square sea miles.

However, it seems to me almost impossible to approach from a juridical angle such an eminently practical question as that of the extent of an operational area. As long as this question is not settled by an agreement the actual determination will always be a compromise between what is desirable from a military point of view and what is politically possible. It seems to me that the law is only violated when a belligerent misuses his power against neutrals. The question as to whether such misuse takes place should be made dependent both upon the attitude of the enemy toward the neutrals and upon the measures taken by the neutrals themselves.

THE PRESIDENT: One minute. Dr. Kranzbühler, does not the right to declare a certain zone as an operational zone depend upon the power to enforce it?

FLOTTENRICHTER KRANZBÜHLER: I do not quite follow the point of your question.

THE PRESIDENT: Well, your contention is, apparently, that any state at war has a right to declare such an operational zone as it thinks right and in accordance with its interests, and what I was asking you was whether the right to declare an operational zone, if there is such a right, does not depend upon the ability or power of the state declaring the zone to enforce that zone, to prevent any ships coming into it without being either captured or shot.

FLOTTENRICHTER KRANZBÜHLER: I do not believe, Mr. President, that there exists agreement of expert opinion regarding that question. In contrast to the blockade zone in a classical sense where full effect is necessary, the operational zone only provides for practical endangering through continuous combat actions. This practical threat was present in the German operational zone in my opinion, and I refer in that connection to the proclamation of President Roosevelt regarding the U.S.A. combat zone, where the entering of that zone was prohibited, because as a result of combat actions shipping must of necessity be continuously endangered.

THE PRESIDENT: The proclamation of the President of the United States was directed, was it not, solely to United States vessels?

FLOTTENRICHTER KRANZBÜHLER: I am referring to it only to establish proof of the German interpretation that this area was endangered, and practical danger seems to be the only legal and necessary prerequisite for declaring an operational zone.

THE PRESIDENT: Would you say that it was a valid proclamation if Germany had declared the whole of the Atlantic to be an operational zone?

FLOTTENRICHTER KRANZBÜHLER: Mr. President, I would say that at the beginning of the war that would not have been possible, for the German forces at that time, without doubt, did not constitute an effective danger to the entire Atlantic sea traffic. I am of the opinion, however, that with the increase in the number of U-boats on the one hand, and with the increase of defense by hostile aircraft on the other, the danger zone of course expanded, and therefore the development of this war quite logically led to the point where operational zones were gradually extended and enlarged.

THE PRESIDENT: Do you mean, then, that you are basing the power of the state to declare a certain zone as an operational zone not upon the power of the state to enforce its orders in that zone, but upon the possibility of danger in that zone?

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE PRESIDENT: You say it depends upon the possibility of danger in the zone?

FLOTTENRICHTER KRANZBÜHLER: I would not say the possibility of danger, Mr. President, but the probability of danger, and the impossibility for the belligerent to protect neutral shipping against this danger.

THE PRESIDENT: May I ask you what other legal basis there is for the theory you are putting forward, other than the adoption of the blockade?

FLOTTENRICHTER KRANZBÜHLER: I am referring as a legal basis especially to the practice of the first World War, and the statements made by experts after the first World War, and also to the generally recognized rules about mined areas. The mined areas actually in this war proved to be operational zones where every means of sea warfare was used to sink without warning. I shall later refer to this topic once more.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBÜHLER: During the presentation of documents, the Tribunal has eliminated all those which I intended to utilize in order to prove that British naval warfare also paid no attention to the interests of neutrals when they were in contradiction with their own interests. If it is the Tribunal’s wish, I will not go into the details of the British measures, and in summing up I will mention them only insofar as they are indispensable for the legal argumentation. The following points are essential:

(1) The British regulations of 3 September 1939 concerning contraband goods, which practically precluded neutral mercantile traffic with Germany through the introduction of the so-called “hunger blockade.”

(2) The decree concerning control ports for contraband goods, which compelled neutral ships to make great detours right through the war zone, and to which must be imputed without doubt a series of losses of neutral ships and crews.

(3) The introduction of an export blockade against Germany on 27 November 1939, by means of which the importation of German goods was cut off for neutrals.

(4) The introduction of the navicert system and the black lists, which put the whole of neutral trade under British control and which made ships refusing to accept this system liable to be seized and confiscated.

I do not have to examine the question here whether these British measures toward neutrals were admissible or not from the point of view of international law. In any case the neutrals themselves considered many of them inadmissible, and there was hardly a single one which did not bring forth more or less vehement protests, for instance from Spain, the Netherlands, Soviet Russia, and the United States. From the beginning, the British Government for its part had forestalled any legal examination of the measures by renouncing the optional clause of the Permanent International Tribunal in The Hague, through a note of 7 September 1939. This step was expressly vindicated by the necessity for providing the British Navy with full freedom of action.

On the British side the fact was emphasized in the first World War and ever since that although British measures did prejudice the interests and possibly also the rights of the neutrals, they did not imperil either the ships or the crews and were therefore to be considered morally superior to the inhuman German measures. Actually, as mentioned before, the obligation to enter control ports was dangerous for neutral ships and crews and for this very reason the neutral countries protested against it. But apart from this, it seems to me that the actual divergence between the British and German measures for blockading the adversary is not founded upon moral differences, but rather upon difference in sea power. In the waters where the British Navy did not exercise naval supremacy, namely, off the coasts we occupied, and in the Baltic Sea, it used the same methods of naval warfare as we did.

In any case the official German opinion was that the afore-mentioned British control measures against neutrals were inadmissible, and the Reich Government reproached the neutral powers with the fact that, although protesting, they in point of fact submitted to the British measures. This is clearly stated in the proclamation issued on the occasion of the declaration of the blockade on 17 August 1940. Consequently, the following facts confronted, the German Naval Command:

(1) A legal trade between the neutrals and the British Isles no longer existed. On the grounds of the German answers to the British stipulations concerning contraband goods and the British export blockade, any trade to and from England was contraband trade and therefore illegal from the point of view of international law.

(2) The neutrals in practice submitted to all British measures, even when these measures were contrary to their own interests and their own conception of legality.

(3) Thus, the neutrals directly supported British warfare, for by submitting to the British control system in their own country they permitted the British Navy to economize considerably on fighting forces which, according to the hitherto existing international law, should have exercised trade control at sea and which were now available for other war tasks.

Therefore the German Government, in determining its operational area with a view to preventing illegal traffic from reaching England, saw no reason for giving preference to the neutrals over its own military requirements, all the less so since neutral shipping, which despite all warnings continued to head for England, demanded a great deal of money for this increased risk and therefore despite all risks still considered trade with England a profitable business.[19]

In addition to that, the most important neutrals themselves took measures which can be regarded as a completely novel interpretation of the existing laws of naval warfare. All the American countries jointly proclaimed the Pan-American safety zone, an area along the American coast within a distance of approximately 300 sea miles. In these waters, comprising altogether several million square miles, they required belligerents to forego the exercise of these rights which, according to hitherto existing international law, the naval forces of the belligerents were entitled to apply to neutrals. On the other hand, as I have already mentioned, the President of the United States prohibited, on 4 November 1939, U.S. citizens and ships from entering the waters extending over approximately one million square miles along the European coast. Thus the development of the laws of naval warfare, under the influence of the neutrals, necessarily led to the recognition of large areas reserved either for the purpose of safety or for that of combat. In this connection the American President explicitly stated in his proclamation that the maritime zone he had closed was “endangered by combat action” as a result of technical developments. The proclamation thus only took into account the development of modern weapons; the long-range coastal artillery which, for example, could easily fire across the English Channel; the invention of locating devices which permitted coastal supervision of maritime traffic over large areas; and particularly the increased speed and range of aircraft.

From this development the German Naval Command drew the same conclusion as the above-mentioned neutrals, namely, that defensive and offensive action would necessarily have to cover large maritime areas in this war. It was therefore not through arbitrary action that the German operational area, which the Prosecution objects to, grew to such a size; it was only because the German Naval Command was adapting itself to a system which was recognized by the other powers also as justified.

In order to examine the legality of the German measures on the basis of enemy methods, may I ask the Tribunal to recall the naval chart on which the British zones of warning and danger are marked. These zones cover about 120,000 square sea miles. Even if these dimensions are smaller than those of the German operational area, it seems to me that the difference between 100,000 and 600,000 square miles is not so much a question of legal judgment as one of coastal length and of strategic position on the sea. This observation is confirmed by the American practice against Japan, as described by Admiral Nimitz. He says:

“In the interest of the conduct of operations against Japan the
area of the Pacific Ocean is declared a zone of operations.”

This zone of operations covers more than 30 million square miles. All ships therein, with the exception of U.S. and Allied, and hospital ships, were sunk without warning. The order was issued on the first day of the war, on 7 December 1941, when the Chief of the Admiralty ordered unrestricted submarine warfare against Japan.

It is not for me to examine whether this order, issued on the first day of the war, is to be looked upon and justified as a measure of reprisal. For me the important thing is to show what actual practice looked like, and that is unequivocal.

The Prosecution finds particularly blameworthy the orders to carry out attacks without warning in the operational areas, if possible without being noticed, so that mine hits could be claimed. Orders to this effect existed for the period between January and August 1940, that is to say, during the period when submarines were not permitted to act without warning throughout the operational area of 24 November 1939, but only in the specially defined areas off the British coast. In this camouflage the Prosecution sees proof of a bad conscience amounting to the recognition of wrongdoing. The real reasons for the measures ordered were both military and political. For the admirals concerned the military reasons, of course, took first place, and these alone were known to the Commander of U-boats. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses, and his defense was to be led astray in this manner. It is obvious that such misleading of the enemy is fully justified in time of war. The measures had the desired military success, and in numerous cases the British Navy employed flotillas of mine sweepers on the spot where a ship had been torpedoed, and conversely started a submarine chase where a loss had occurred through mine hits.

For the Supreme Command, however, it was not the military but the political reasons that were the determining factor. These invisible attacks were meant to provide an opportunity of denying to the neutrals that the sinkings were due to submarines, and of tracing, them back to mines. This actually did happen in some cases. Does that mean that the German Government itself considered the use of submarine action without warning within the area of operations to be illegal? I do not think so.

In view of the repeated accusations which the Prosecution have construed here and elsewhere from the camouflaging of measures and the denial of facts, I feel obliged to make a few remarks on the point as to whether there is any obligation at all in international politics to tell the truth. However things may be in peacetime, in times of war at any rate one cannot recognize any obligation to tell the truth in a question which may be of advantage to the enemy. I need only point to Hugo Grotius who says: “It is permissible to conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable.”[20]

What would it have meant for the military situation if U-boat sinkings such as in the instances dealt with here had not been denied but admitted instead? First of all, since that would have come to the knowledge of the enemy too, we should have lost the military advantage which lay in misleading his defense. Furthermore—and this is no less important—we might quite possibly have furnished our enemy with allies who would have helped him at least with propaganda, if not with their weapons. In view of the fact that some of the neutrals concerned were so dependent on England, they probably would not have recognized the German viewpoint as to the legitimacy of the operational areas, especially since this viewpoint was contrary to their own interests. It would have led to political tensions, and possibly to armed conflicts. Our enemies would have derived the only immediate advantage from it. From the standpoint of the law this endeavor to camouflage the use of submarines with regard to the neutrals does not seem objectionable to me.

But if the Prosecution uses this with the intention of moral defamation, it is applying standards which heretofore have never been applied to the conduct of a war and to the politics of any other country in the world. It was precisely in naval warfare that the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared off the European coasts from Norway to Biscay were, with the exception of the Biscay area, declared mine danger zones. But we know from Churchill’s statement of May 1940, as well as from testimonies of witnesses, that in these areas there were unlimited attacks with submarines, speedboats and, above all, with airplanes. Consequently very often neither the German command nor the neutral country which had been attacked knew whether a loss sustained in such an area really should be traced back to a mine or to another weapon of naval warfare. To conclude that the camouflaging of a measure constitutes its illegality thus seems to me entirely without basis.