Enemy ships which could have been sunk lawfully were permitted to go free in order to send the crews of ships previously sunk to part aboard then. It is, therefore, only correct if Mr. Roger Allen stated that the German U-Boats during the first weeks of the war adhered strictly to the London regulations.
Why was this procedure not kept up? Because the conduct of the enemy made such a procedure militarily impossible and created at the same time the legal prerequisites for its modification. the war started, U-Boat reports reached the commander of the Uboat fleet at the Naval High Command stating that hardly an enemy ship submitted voluntarily to stopping and examination. The merchant vessels were not content with their attempt to escape, be it through fleeing or be it by changing their course, to bear directly upon the U-boat thus forcing it to dive. On the contrary every sighted U-boat was reported at once by radio and subsequent; in the shortest space of time, it was attacked by enemy air planes or naval forces. The complete armament of the enemy merchant vessels, however, settled the matter. As early as 6 September 1939 a German U-boat was shelled by the British Steamship "Manaar and that was the starting signal for the great struggle which took place between the U-boats on the one hand and the armed merchant vessel equipped with guns and depth charges on the other hand, as equal military opponents. the adversary, I have presented the Tribunal with some examples which I do not wish to repeat. They unequivocally show that a further action against enemy merchant ships according to the regulations governing prize Ordinance was no longer possible from the military standpoint and meant suicide for the submarine. Nevertheless the German High Command continued, for long weeks, to proceed according to the regulations governing Prize Ordinance. Only after it was established that everytime there was any action on the part of enemy merchant ships, and especially of armed action, it was not a question of an individual case of a generally ordered measure, the order was given on 4 October 1939 to attack all armed enemy merchant ships without warning.
of this submarine warfare against armed merchant vessels should have been discontinued. In the last war the most terrible weapons of warfare were ruthlessly employed on both sides both on land and in the sir. In view of this experience, the thesis can hardly be upheld today that in naval warfare one of the parties waging war can be expected to give up using an effective weapon after the adversary has taken measures making the use of it impossible in its previous forms. In any case, such a renunciation could only be considered if the novel utilization of the weapon were undeniably illegal. But this is not the case for the utilization of German submarines against enemy merchant shipping, because the measures taken by the enemy did not only change the military situation but also the legal one.
utilized for battle does not come under the provisions granting protection against sinking without warning, as provided by the London Pact for merchant ships. I wish to stress the fact that the merchant ship is not thereby denied the right to carry weapons and to fight. From this fact the conclusion was drawn, as reflected in the well-known formula: "He who uses weapons himself must expect weapons to be used against him." tion of the London Protocol as dishonest. It admits only the closest literal interpretation and considers the sinking of a merchant ship as admissible only if the latter has offered active resistance. It is not the first time that fundamental differences of opinion exist between contracting parties, with respect to the interpretation of a treaty and the extremely different interpretations of the meaning of the Potsdam Agreement of 2 August 1945 provide a very timely example. Diversity of conception, therefore, does not allow for the conclusion that the one or the other party has acted dishonestly during the signing or the subsequent interpretation of a treaty. I will endeavour to show how unjustified this reproach is in respect also of the German interpretation of the London Submarine Protocol. tion, namely that of "merchant vessdl" and "offer of active resistance." prehensive expose. I can only touch the problems and due to lack of time I must also limit myself when mentioning scientific sources. I shall preferentially refer to American sources, because the interests of naval strategy of this nation were not fixed to the same extent as those of the European nations and therefore its science can probably claim great objectivity. declaration which was signed at the London Naval Conference of 1930. The committee of jurists appointed at that time, expressed its opinion concerning the greatly disputed definition of a merchant vessel in the report of 3 April 1930;
"The committee wishes to place on record that the expression 'merchant vessel' where it is employed in the declaration is not to be understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to cause her to lose her right to the immunities of a merchant vessel." vessel, flying a merchant flag, may lay claim to being treated as a merchant vessel in the sense of the London agreement. Beyond this, the explanation has few positive aspects because the question of by which kind of participation in hostilities a vessel looses her right to the immunity of a merchant vessel is again subjected to the interpretation of the individual contracting parties. The London Conference, as far as I can see, did not consider this ticklish question any further and one probably does not go wrong by assuming, that this astonishing reserve is based on experiences which the same powers had gathered in Washington 8 years ago. of the First World War, and, therefore, it is no wonder that the naval power, Great Britain, which during the World War had suffered most from German submarine warfare, now tried to outlaw and abolish altogether by International Law the submarine warfare against merchant shipping. The resolution named after the American main delegate, Root, which in its first part substantially corresponded to the London text of 1930, served that aim. But in the second part the Root-Resolution goes further and stipulates chat any commander, who, no matter whether he acted with or without higher orders, violated the rules established for the sinking of merchant vessels should be punished as a war criminal like a pirate. Finally it was recognized, that under the conditions stipulated in the resolution submarine warfare against merchant shipping was impossible, and was therefore renounced altogether by the contracting powers. The Root-Resolution designates these principles as an established part of International Law. As such, it was accepted by the delegates, but none of the 5 participating naval powers, USA, England, France, Japan and Italy ratified it.
is of the greatest importance for the interpretation of the London Protocol, namely the definition of the word "vessel". Here the two fronts in the entire U-boat question became clearly evident. On the one side there stood England, on the other France, Italy and Japan, while the US took the position of a mediator. According to the protocol of the Washington conference the Italian delegate, Senator Schanzer, initiated the advance of the weaker naval powers by expressly emphasizing that a merchantman, regularly armed, may 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 explicitly declared this to be in accordance with the existing rules of International Law.
The French delegate, M. Sarraut, at that time received instruction from the Foreign minister Briand to second the reservations of the Italian delegate. He thereupon moved to have the Italian reservations included in the records of the session. that he thought it was clear that merchant vessels, engaged in giving military assistance to the enemy, ceased in fact to be merchant vessels. It can, therefore, be seen that in 1922, 3 of the 5 powers represented expressed the opinion that armed merchant vessels should not be regarded as merchant vessels in thesense of the agreement. difference of opinion, a way-out was found which is typical for 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. with this compromise a formula was created which, to be sure could represent a momentary political success, but which, however, would carry no 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. because the same powers took part in them as participated in the London Naval Conference of 1930.
The London conference was thecontinuation of the Washington conference and what had been discussed and included in the records at the first one had its full importance for the second one.
Science, too, and by no means only German, but especially American and French science, based its 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. Were I only want to point to Wilson's summarizing report on the London Naval Treaty. concept "merchant vessel" the uncertainty connected with the words "Active resistance" is pointed out, and it is these very words with which an exception from the protection of the merchantman is connected, on 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 convey If the London agreement is interpreted literally, the opinion would have to be upheld that merchantmen in an enemy convey must also not be attacked without warning, but that an attacking battle ship would just have to put out of action the escort vessels first and then stop and search the merchantmen afterwards. However, this militarily impossible demand evidently is not made by the Prosecution, either. It says in the report of the British Foreign Office which has been mentioned several times: "Ships sailing in enemy conveys are usually deemed to be guilty of forcible resistance and therefore liable to be sunk forthwith." "active resistance", an interpretation, which results in no way from the treaty itself but is simply a consequence of military necessity and is thus dictated by common sense. ship be held just as guilty of forcible resistance as the conveyed ship. Let us take an extreme instance-in order to make the matter quite clear. An unarmed merchant ship of 20,000 tons and with a speed of 20 knots which is conveyed by a trawler with, let us say, 2 guns and a speed of 15 knots, may be sunk without warning, because it 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, enabling it to use its full speed, should it not in this case be found just as guilty of offering active resistance as before?
Such deductions really seem to me against all common sense. In the opinion of the Prosecution the submarine would first have to give the merchantship which is far superior to it in fighting power, the order to stop and wait until the merchantship 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 for a submarine although it harms a merchant ship very little as a rule, 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. The reason seemed sufficient to him to order the immediate use of arms even without the existence ofa state of a war. It is a solitary instance in war, however, to grant one or two armed opponents the right to fire the first shot and to make it the other's to wait for the first hit. Such an interpretation, however, is contradictory to any 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 the armed merchant vessels in naval warfare to be an unsolved question. In this instance, too, I should like to point to only one scientific source 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, Herchard and Charles Warren published in the "American Journal of International Law" of July 1939, simultaneously giving reasons, which furnish an excellent idea of the most recent state of opinion.
Article 54 of this draft corresponds literally to the text of the London Agreement of 1936 with one noticeable 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 war ships, whether surface or submarine, and belligenent military aircraft are governed by the rules applicable to their action with regard to enemy war ships."
This opinion is first based on the historical development. At 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.
"As merchantmen lost effective fighting power they acquired a legal immunity from attack without warning." to the defenseless and harmless merchant vessel. In respect of which the American expert on International Law Hyde stated in 1922, i.e. after the Washington conference and the afore-mentioned Root resolution on U-boat warfare:
"Maritime states have never acquiesed in a principle that a merchant vessel so armed 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." mentioned American authorities after the signing of the London Agreement and shortly before the outbreak of the war to form the opinion that armed merchant ships are not protected from attacks without warning. also rejected as inapplicable. It is well known that the American Secretary of State Lansing in his mote 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 strength superior to that of a submarine and that such an armament is therefore of an offensive nature.
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. in the bows, e.g. as a matter of principle on steam-propelled fishing boats. Furthermore, the anti-aircraft 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 which there can be no discrimination between defensive and offensive armaments on the basis of the way the weapons are placed. which these weapons are meant to be employed. 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" and chiefly in the "Defense of Merchant Shipping Handbook". They were issued in 1938. They, therefore, do not deal with counter measures against illicit German actions, but, on the contrary, they were already issued at a time when in Germany warfare in accordance with the London Agreement was the only form of submarine warfare taken into consideration. from the first day of the war according to orders received from the British Admiralty. These involved the following points in respect of submarine warfare:
1). the report of submarines by radio telegraphy.
2). the use of naval artillery.
3). the use of depth charges.
transmitted over the radio to arm all submarines. of the defensive and offensive meaning of such orders. The orders on the use of artillery by merchant vessels, however, make a great differentiation; that is, cannons are to be used only for the defense as long as the enemy on his part adheres to the regulations of international law, and for the offensive only when he does not. The orders covering the practical execution of these directives reveal, however, that there is no difference between defensive and offensive use. Admiral Doenitz 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 shoot on every occasion at every submarine which came within range of their runs. And that is what the captain of British merchant vessels did. The reason for this offensive action can certainly not be found in transgressions committed by 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 the British propaganda may have had great importance which in connection with the mistaken sinking of the "Athenia" on September 3, 1939, disseminated through Reuter on the 9th of September the statement of unrestricted submaring warfare and upheld it, notwithstanding the fact that the conduct by the German submarines during the first weeks of the war proved to be the contrary of this accusation. Together with the announcement of the British Admiralty's ram-order of October 1, 1939, the Merchant Navy was again informed officially that the German U-boats had ceased to respect the rules of naval warfare and merchant vessels should adjust their conduct accordingly. It seems to me of no importance that a written supplement to the Admiralty-orders was issued as late as spring of 1940, because nowadays a naval war is not directed by letters but by wireless. But according to the latter, the British captains were directed to use their guns offensively against the German U-boats in accordance with the Admiralty's instructions contained in its handbook, beginning September 9th, or October 1st at the latest. The German order to attack armed enemy merchant vessels without warning was issued on 4 October only.
Thus it was justified in any case, even if one wanted to acknowledge difference in treatment for vessels with defensive and offensive armament. however, only a part of a comprehensive system for the military use of merchant vessels. Since the end of September 1939, the fastest vessels, that is those ships that were the least endangered by submarines, but were especially suited for chasing submarines, received depth chargesprojectors, that is armaments which make it possible to find the submerged submarines and which thus may be counted as typical weapons for the offensive.
for the submarines was the order to support every enemy ship on sight, giving its type and location. This report was supposed, so said the order, to take advantage of an opportunity which might never recur to destroy the enemy by their own -- the British -- naval and air force. This is an unequivocal utilization of all merchant vessels for military intelligence service to directly injure the enemy. If one considers the fact that according to the hospitalship-agreement even the immunity of hospital ships ceases if they relay military information of such a kind, then one need have no doubts about the consequences of such behaviour on the part of a commercial vessel. Whatever craft puts 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 the hostilities during the entire course of its voyage. and, based on the afore mentioned report of 1930 of the Committee of Jurists, has no right to be considered as a merchant vessel. Any other conception but this would not do justice to the immediate danger which a wireless report means to the reported vessel and which subjects it, often within a few minutes, to attacks by enemy aircraft. All of the Admiralty's directives from the very first day of the war show that British merchant vessels were firmly organized within the system of the British Navy for combating the enemy's naval forces. They were part of the military communications network of the British navy and air force, and their arming with cannon and depth charge projectors, all the practical training and orders relative to the service were matters that concerned the British Navy. destined and utilized for battle should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the ground of this conception, in connection with the arming of all enemy merchant vessels which was rapidly being completed , an order was issued on the 17th of October 1939 to attack all hostile merchant ships without warning.
THE PRESIDENT: Dr. Kransbuehler, we may as well break off now.
SIR DAVID MAXWELL FYFFE: 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)
DR. HANS KRANZBUEHIER (Counsel for the defendant Doenitz): Mr. President, Gentlemen of the Jury: crimes against enemy merchant vessels: I believe that the German conception of the London Protocol of 1936, according to the position generally taken by the experts of the powers involved as well as according to the wellknown opinion of numerous and competent scientists of all countries, had no trace of dishonesty in it. If I were to express myself with 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, if it issued its orders on a sensible and perfectly fair basis. We have shown that these orders were given only after such conditions had been created by the exposure of British measures as justfied the orders issued according to the concepts of German law. the special protection which the German orders provided for passenger vessels. These passenger vessels were excluded for a long time from all sinking measures, even when they sailed in an enemy convey and, therefore, could have been sunk immediately, according to the British conception too. These measures point out especially 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 more harmless passenger traffic at all, and just these ships, because of their great speed and heavy armaments, proved to be particularly dangerous enemies for submarines. If, therefore, Mr. Roger Allen's report cites as an especially good example of German submarine cruelty the sinking in the autumn of 1940 of the "City of Benares", then this example is not very happily selected, because the "City of Benares" was armed and went under convey. submarine warfare, and I can at once point again in this connection to the example which Mr. Roger Allen holds up especially for the sinking of a neutral against international law.
It is a question of 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 began preparations for ramming 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. look if not only the result, namely 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 in effect not to attack merchantmen recognized as neutral. There were some accurately defined exceptions to this order, exceptions of w hich theneutral 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. in the war area with dimmed lights. On 26 September 1939 the commander of the submarine fleet asked the high command of the navy for permission to attack without warning vessels proceeding in the channel with dimmed lights. The reason was clear. It is there where at night the enemy's troop and material shipments took place through which the second wave of the British expeditionary army was ferried across the Channel to France. At that time the order still was in effect that French ships not be attacked at all. But since at night French ships could not be distinguished from English vessels, submarine warfare in the Channel would have had to be halted completely in compliance with this order. The Tribunal heard from a witness that in this way a 20,000 ton troop transport passed by the torpedo tubes of a German submarine unmolested. Such a happening in a war is grotesque and it goes without saying that, therefore, the naval command approved the request of the commander of the submarine fleet. occasion by an assistant at the Naval Command, Lieutenant Commander Fresch. Already the Chief of Section, Admiral Wagner, did not approve of the opinions expressed in it, and, therefore, they did not lead to corresponding orders.
The order to attack blacked-cut ships was issued by radio without any further explanation on the part of the Naval command, and on 4 October it was extended to further regions surrounding the English coast, and again without any explanation in the sense of the above-mentioned note. Vanselow , the wellknown expert on the law of naval warfare, makes the following remark:
"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 lights, voluntarily renounces during the hours of darkness all its right 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 Skagerrak. Since the beginning of April, the latter had had the order to attack all German vessels without warning during the daytime, and all vessels and so allneutrals, as well at night. This implies recognition of the legal standpoint. It even goes beyond the German order, insofar as neutral merchant vessels navigating with all lights on were sunk without warning in these waters during the night. to give an express warning to neutral shipping against suspicious or hostile conduct. Nevertheless, the naval command (Seekriegsleitung) saw to it that this was done. 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, dimming, or non-compliance with the request to step etc. 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. Therefore, if, as aresult 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 hundred s of examples to prove that such attacks never did occur.
shipping: the zones of operations. The actual development was briefly summed up as follows: seafaring neutrals in which it points to the use of enemy merchantships for attacking purposes as well as to the fact that the Government of the United Stateshad barred to its own shipping a carefully defined naval zone around the Central European coast, the so-called USA-combat zone.
As the note states, these two facts give the Reich Government cause "to warn anew and more strongly that in viewof the fact that the actions are carried on with all means of modern war techniques 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." sea routes which are not endangered by German means of naval warfare and, fur thermore, it recommends legislative measures according to the example set by the USA. In concluding the Reich Government rejects the responsibility for consequences which would follow if warning and recommendation should not be complied with. This note constituted the announcement of an operational area of the US combat zone with the limitation that only in these sea zones which are actually endangered by actions against the enemy, consideration conot longer be given to neutral shipping.
The Naval High Command (Seekriegsleitung) indeed observed this limitation. In the beginning the neutral powers had more than six months in which to take the measures recommended by the German Government forthe 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, accurately defined zones around the English 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 gradually those zones and only these were taken in which, as a result of mutually increasing attacks and defensive actions at sea and in the air, engagements continually occurred so that every ship entering this area was operating with the naval forces of both powers nearby. The last one of these zones was designated late in May 1940. These zones were not and needed not be 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 these boundaries the declaration concerning the area of operations of 24 November was not observed, i.e., neutral ships could be stopped and sunk only in accordance with the Prize Ordinance.
of 1940, the British Isles became the center of the war. On 17 August 1940 the Reich Government sent to the neutral governments a declaration in which the entire area of the US combat zone around England without any limitation was designated as 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 warns once more, and urgently against entering the endangered area." arms against the craft encountered in it was permitted to all naval and air forces insofar as special exceptions had not been ordered. The entire development described was openly dealt with in the German pressnand Grand Admiral 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. areas of operation as such constitute and admissible measure. Here, too, the prosecution will take the position that in the London Protocol of 1936, no exceptions of any kind were made for areas of operation and, therefore, sue exceptions naturally do not exist. 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 justified on the basis that it was a reprisal against alleged German violations of international law. Since this justification naturally was net recognized, the imperial government replied on 4 Feburary 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 sagacious legal deductions which were made from their wording for or against the admissibility of these declarations.