Whether these areas are designated as military area, barred zone, operational area or danger zone, the point always was that the naval forces in the announced area had permission to destroy any ship encountered there. After the world war the conviction of naval officers and experts in international law alike was in general that the operational area would be maintained as a means of naval warfare. The development typical for the rules of naval warfare. The development typical for the rules of navalwarfare was confirme here, namely, that the modern technique of war forcibly leads to the use of war methods which at first are introduced on the grounds of being reprisals, but which are gradually being used also without such a justification as are recognized as legitimate.
The technical reasons for such a development are very obvious. The improvement of mines made it possible to endanger large sea areas by mines. 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 traiditional institution of the blockade directly outside enemy ports and coasts by mines, submarines and aircraft was practically made impossible so that the sea powers had to look for new ways to bar the approach to enemy coasts effectively. Consequently, it was these necessities which were the compelling factors in bringing about the recognition of the operational area. ning 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. Also the conferences of 1922 and 1930 did not change anything in that respect. This is shown by the efforts which were also after 1930, exerted especially by American politicians and experts in international law for a solution of this question tail and, therefore, it must suffice for the purposes of the defense to stat that during the conferences in Washington in 1922 and in London in 1930 the operational area was an institution known to all powers concerned, an institution operating in a way which had been determined by both sides in the first world war to the effect that all ships encountered in it would be subject to immediate destruction.
If this institution were to have been abolished in the 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 at least in the negotiations. The transcripts show nothing of the kind. The relationship between operational area and London protocol remained unsttled. The French admiral Gaston has the same viewpoint. Admiral Bauer, Commander of Submarines in the first world war, in 1931 stated his disappreval of the application of the London rules in the operational area and this opinion was absolutly known to the British Navy. In a thorough study of Erns Schmitz of 1938 a merchant vessel which enters an operational area despited general prohibition is regarded as being guilty of "persistent refusal to stop". The powers"participating in the conferences in Washington and London consciously avoided, in these as in other cases, to start controversial questions on which no accord could be reached. Therefore, every power maintained a free hand to champion in practice that opinion which corresponded to its can interests. and I have as a witness for this no one less important than French Minister for Foreign Affairs of that time, Briand. In his instruction of 30 December 1921 to Sarraut, the French chief delegate in Washington, he announces the basic readiness of concluding an agreement about submarine warefare. However he then points out a series of questions as being essential parts of such an agreement, among them the arming of merchant ships and the defenition of com 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 aircraf in order not to establish ineffective and deceptive stipulations." 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 will be able to designate the German conception as fraudulent' according to which ships in declared, areas of operation are n under the protection of the London protocol. Even Mr. Reger Allen's report concedes this.
Therefore the attacks of the Prosecution seem to be directed, as I understand from the cross examination, less against the existence of such zones than against their extent and wehave repeatedly heard the figure of 750.
000 square miles. Incidentally, it is to be noticed that this figure includes the land area of Great Britain, Ireland and Western France; the area of water alone amounts only to 600.000 square miles. I quite agree, however, that through operational areas of such a size the interests of the neutrals werebadly prejudiced. for an agreement 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 isto include the waters up to a distance of 50 sea miles from the blockaded coast.
THE PRESIDENT: Dr.Kranzbuehler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.
DR. KRANZBUEHLER: I have already mentioned this draft sot up by American professors, dealing with the rights and duties of neutrals in sea warfare, the professors Jessup, Orchard and Charles Warren. It was published in the American Journal of International Law of July 1939.
THE PRESIDENT: Jessup and Warren, you say?
DR.KRANZBUEHLER: Jessup, Orchard, and Charles Warren.
THE PRESIDENT: Thank you.
DR. KRANZBUEHLER: This would correspond to a large extent to the area of waters in which surprise attacks were authorized until 17 August 1940 it covers 200.000 square sea miles approximately. However it seems to me almost impossible to approach from a scientific angle such an eminently practical question as that of the expansion 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 ofview and what is politically possible. It seeps to me that laws are only violated when a belligerent misuses his power against neutrals. The question as to whether such a misuse exists should be made dependent upon the attitude of the opponent towards the neutrals as well as upon the measures taken by the neutrals themselves.
THE PRESIDENT: One minute. Dr. Kranzbuehler, doesn't the right to declare a certain zone as an operational zone depend upon the power to enforce it?
DR. KRANZBUEHLER: Mr. President, I do not quite follow the sense 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 re an operational zone, if there is such a right, doesn't 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.
DR. KRANZBUEHLER: In my opinion, Mr. President, there are no unified estimates available in science regarding that question. Contrary to the blockade zone in a classical sense, where full effect is necessary, the operational zone only provides for effective endangering through continuous combat actions. This effective threat was present in the German operational zone, and I refer in that connection to theproclamation of President Roosevelt regarding the United States of America, combat zone where the entering of that zone was prohibited, pointing out that because of the combat actions there 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?
DR. KRANZBUEHLER: Yes, indeed. I am referring only to my establishing proof of the German statement that this area was endangered, and this effective endangering 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
DR. KRANZBUEHLER: Mr. President, in that case I would say that at the beginning of the war that would not have been possible, for the Ger armed forces at that time were, without doubt, not an effective danger to the entire sea traffic. I am of the opinion 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 hand, the danger zone of course expanded, and therefore the development of this war quitelogically led to the point that operational zones gradually were 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 ?
DR. KRANZBUEHLER: Yes.
THE PRESIDENT: You say it depends upon the possibility of danger in the zone?
DR. KRANZBUEHLER: I would not say the possibility;r of danger, Mr. President, but the probability of danger, and the impossibility of the belligerent's protecting neutral shipping against this clanger.
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?
DR. KRANZBUELER: Mr. President, I am referring, as a legal basis, to the practice of the first World War, the practice that was current then, and thestatements made by scientists after the First world War, and I am referring to the generally recognized rules about mined areas. The mined areas, for a fact, proved to be operational zones in this war, in which every means of sea warfare was used. I shall later refer to this topic once mere.
THE PRESIDENT: Thank you.
DR. KRANZBUEHLER: During theproduction 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 in so far as they are indispensable for the legal argumentation. The following points are the essential ones:
1) The British regulations of 3 September 1939 concerning contraband Germany through the introduction of the so-called"hunger blockade".
2) The decree concerning control ports for contraband goods
3) The introduction of an export-blockade against Germany on
4) The introduction of the Navicert-System in connection with the towards 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 any which did not arouse more or less vehement protests, as for instance on the part of Spain, the Netherlands, Sovi Russia and the United Sates. From the beginning, the British Government on its side had prevented any legal examination of its measures by freeing itself from the optional clauses of the Permanent International Tribunal at the Hague, through a note of 7 September 1939, This step was expressly based on the necessity of providing the British Navy with full freedom of action. already and has been emphasized eversince that British measures did indeed prejudice the interests and possibly the rights, too, of the neutrals. However, they did not imperil either the ships or the crows and are therefore considered morally superior to the inhuman German measures. First, as mentioned before, the obligation of entering control "ports was dangerous for neutral ships and crows and for this very reason neutral countries protested against it. But apart from this, it scorns to me that the actual difference between the British and German measures for blockading the adversary are not founded upon moral differences but rather upon differences in their sea power. In the waters where the British Navy did not exercise naval supremacy, namely around the coasts we were occupying as well as in the Baltic son, it used the same methods of naval warfare as we did. measures against neutrals were inadmissible, and the Reich Government formulated against the neutral powers the accusation that they protested indeed but actually submitted to the British measures. This is clearly stated in the proclamation issue on the occasion of the proclamation 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 ground, 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, therefore illegal from the point of view of international law.
2) The Neutrals submitted, in practice, to all British measures even when those measures were in contradiction with their own interests and their own conception of locality. 3) Thus, the Neutrals directly supported British warfare. For, by submitt ing to the British control system in their own country, they saved the British Navy the use of large fighting forces which, according to the hitherto existing international law should have exercised the trade control at sea and which were now available for other war tasks. Therefore, the German Command, in determining its operational area in order to prevent the illegal traffic from reaching England, saw no reason for giving preference to the considerations towards the neutrals, to the detriment of its own military requirements. This all the less as the neutral shipping, which despite all warnings continued to travel to England, took big money far this increased risk and still considered therefore the trade with England as a lucrative business. which can be regarded as a completely now interpretation of the existing laws of naval welfare. All American countries jointly proclaimed the PanAmerican safety zone, an area along the American coast up to a distance of approximately 300 sea miles. In those waters, comprising altogether several million square miles, they ask the belligerents to give up the exercise of those rights which according to the hitherto existing International Law naval forces of the belligerents were authorized 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 to travel within an area of waters expanding over approximately 1 million square miles along the European coast. Thus the development of the laws of naval warfare, under leading participation of the neutrals, forcibly led to a recognition of large areas reserved either for the purpose of safety or for that of combat proclamation that the maritime zone he had had closed was endangered by combat action as a result of technical developments.
The proclamation, thereby, only took into consideration 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 landsupervision of maritime traffic over dozens of sea-miles, and particularly the increased speed and range of aircraft. as the above mentioned neutrals, namely that defense and offense would necessarily have to cover large maritime areas in this war. It was, therefore, not from choice that the German operational area, which the Prosecution objects to, grew to such a size, it was only because it was adopting itself to a system which was also recognized by the other powers as legitimate. 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 end of strategic position on the sea. The observation is confirmed by the American practice against Japan, such as Admiral Nimitz has professed. 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 in it with the exception of their own and Allied, as well as 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 Naval High Command ordered unrestricted submarine warfare against Japan.
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 how it worked out in practice and this is unequivocal. surprise attacks in the operational areas, if possible unnoticed, so that mine hits may be pretended. Orders to this effect existed for the period from January until August 1940, i.e. during the period when submarines were permitted to act without warning not in the whole operational area of 24 November 1939 but only in the especially defined areas below the English coast. In this camouflage the Prosecution sees proof of a bad conscience and thereby the consciousness of wrong doing. The real reasons for the measures ordered were of a twofold nature: military and political. For the admirals concerned the military reasons stood, of course, in the foreground.
and the commander of the submarine fleet also knew only these reasons. 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 self-evident 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, where a ship had been torpedoed, and conversely started a submarine chase where a loss had occurred through mine hits. but the political reasons which were the determining factor. These invisible attacks were meant to give an opportunity of denying before neutrals that the sinkings were due to submarines, and of tracing them back to mines. This actually happened in some cases. Does that now mean that the German Government itself considered illegal the use of surprise submarine action within the operatic area? I do not think so. has built up here and elsewhere from the camouflaging of measures, 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, it may be in peacetime, in time 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 to point to Huge Grotius who says:
"One may conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable." sinkings 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 the misleading of his defense. Furthermore - and this is no less important - we might quite possibly have furnished our enemy with allies who would have helped him with propaganda if not with their weapons. In view of the fact that some of the neutrals concerned were so dependent on England, they would probably 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 even from the neutrals, does not seem objectionable to me. But if the Prosecution uses this with the intention of moral defamation, it applies standards here 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 just in naval warfare in which the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared around 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 those areas there were unlimited attacks with submarines, speedboats and above all with aeroplanes, 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. ple attacked without warning. However, orders had been given to make exceptions in the case of certain neutrals, such as, in the beginning, Japan, the Soviet Union, Spain, and Italy. In this measure the Prosecution saw the endeavor of the Naval Command to terrorize the smaller neutral countries whereas it dared not pick a quarrel with the big ones. The real reason for this differential treatment is given in Document UK 65 in the notation on the report which the Commander-in-Chief of the Navy made to the Fuehrer on 16 October 1939.
According to this notation the neutral governments mentioned are requested to declare that they will not carry contraband of war, in every other respect they will be treated just like any other neutral country. This means that the reason for the different treatment was merely that certain countries were willing and in a position to forbid their boats to carry contraband of war to England, whereas others could not or would not do it became of their political attitude or their economic dependence on England. Therefore, it is not a question of terrorizing the smaller neutrals and the sparing of the bigger ones, but of preventing traffic in contraband of war and the sparing of legal commercial trade. Since no general legal maxim exists which compels the belligerent power to treat all neutral powers alike, no objection can be raised on the basis of international law. It would indeed be strange if here, in the name of humanity, the demand were made that German submarines should have sunk even those ships which they did not want to sink at all. during the further course of the war even the small powers which were the only neutral ones left, could, by virtue of shipping agreements, cross the operational area along certain routes without being molested by German submarines. In this way, for instance Sweden and Switzerland as well as Turkey could carry on their maritime trade during the entire war. were never permitted to attack neutral ships. In this respect the naval command desisted from waging any submarine warfare against neutral merchant shipping, since enemy air surveillance made stopping and searching too dangerous for German submarines. Against the disadvantage of submarine warfare within the operation area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods and were liable to be sunk because of this without being stopped.
Thus, the neutral vessel outside the operational area was only in danger if it behaved in a suspicious or hostile way or if it was not clearly marked as neutral. And the German Naval Command again and again called the attention of the neutral powers to this necessity. according to which United States vessels within the operational area were assimilated to all other neutrals, i. e. they could be attacked without warning. The Prosecution has seen in this an especial proof that the submarine warfare against neutrals was waged in a 'cynical and opprtunist' way. If this is to mean, that it was also influenced by political considerations, then I an ready to admit it. But I do not consider it a reproach; since war itself is a political weapon, it is in keeping with its essence, if individual sectors of it are placed under the leadership of politics. In particular, no reproach should be seen in the orders of the German leadership as regards the utilization of submarines against the United States, because it is just they which are a proof of the efforts to avoid any conflict with the United States. of witnesses the ships of the United States during the first years of the war were exempt from all measures of naval warfare, and this was true as well when, contrary to the original American legislation, they sailed into the USA combat zone and thus into the German operational area in order to carry war material to England. This policy was changed only when in addition to the many unneutral acts of the past the active employment of the American Navy had been ordered for the protection of British supply lines. Well known are the statements of President Roosevelt which he made at that time about the "bridge of boats over the Atlantic" and the support which should be given to England "by every means short of war." It may be doubtful whether the realistic attitude which the USA Naval and air forces were ordered to take, at that time, did not already constitute an illegal war as was claimed just now by some American sources.
At least the United States had abandoned its neutrality and claimed the position of a "Nonbelligerent", which was also a new aspect of International Law in this war. If in this connection one wished to raise the charge of cynicism, it should be directed against the orders which were issued in justification of the consequences of the American attitude. the essential orders issued, and to say a few things in respect of their legality. No doubt, there were instances of attacks on ships which according to the orders mentioned should not have bee attacked. There are only a few such cases, and some of them have been brought up at this trial. The best known concerns the sinking of the British passenger vessel "Athenia" on September 3, 193 by the "U-30" under the command of Lieutenant Captain Lemp. The sinking of this ship was due to the fact that the commander took it by mistake for an auxiliary vessel. If the Tribunal still hesitated to believe the concurring statements of all the witness es heard here in this critical and so much talked of case, these doubts would be removed by the behavior of the same commandant in the days and weeks following the sinking. Lt. Captain Lemp, as the log of "U 30" of that time shows, adhered strictly to the prize ordinance and from this log I was able to submit several examples of the fair and gentlemanly conduct of German commandants even when by such conduct they greatly endangered their submarines of September 1939 were the Commander of submarines and the Commander-in-Chief of the navy fully informed of the whole affair of the sinking of the "Athenia." Upon his return the commandant reported to the U boat commander the mistake which he himself recognized as such and was sent to Berlin to report in person.
Dr. Siemers will deal with the political development of this matter. I only mention the military occurrences: Admiral Doenitz received the following communication from the Naval High Command:
1. That the affair be further dealt with politically in Berlin. 2. That Court-martial proceedings were not necessary since the 3. That the entire matter be kept in strict secrecy. for the report on the sinking of the "Athenia" to be removed from the log of the "U 30" and gave instructions that the log be completed in such a manner as to make the absence of on entry inconspicuous. satisfactorily, obviously for the reason that the officer in charge had no experience whatever of such measures. as a particularly criminal act of falsification. This it seems to me, is based on a misunderstanding of the facts. The war diary is nothing else but a military report by the commandant to his superior commands. What occurrences should or should not be included in reports of this kind is not decided by any legal or moral principle but is solely a matter of military regulations. The war diary was meant to be secret; however, it was - like many secret matters - accessible to a very large group of people. This is already apparent from the fact that it had been issued in 9 copies, of which some were intended not only for the higher staffs but for schools and for training flotillas as well. Therefore, whenever an occurrence was to be restricted to the knowledge of a small group of individuals, it was not to be reported in the war diary. Since the war diary war kept consecutively, the missing period necessarily had to be filled in with another, ergo, incorrect entry. I can see nothing immoral in such a measure, much less anything illegal. As long as there is secrecy in time of war - and this is the case in all countries - it means that all facts cannot be told to everybody, and therefore one sometimes has to make incorrect statements, too. A certain moral offense could perhaps be seen in such action if thereby a falsification of his tory for all times had been intended.
This, however, was by no means the case. The Commandant's report in regard to the sinking of the "Athenia" was of course submitted in the original form to the immediate superiors, the Commander of the U-boats and the Commander-in-Chief of the Navy, and was also kept there. not to enter certain happenings into the war diary, has never existed.
The "Athenia" case shows one more thing: the manner in which the compliances of U-boat commandants with issued orders was enforced. In spite of the justified conception of the Naval High Command that the commandant acted in good faith, he was punished with arrest by Admiral Doenitz because by employing greater caution he perhaps might have recognized that this was not an auxiliary cruiser. Punishment was meted out in other cases too, where the orders had been mistakenly violated. 1942, by which on the occasion of the sinking of "Monte Gorbea" the commandant had been informed that upon his return he will have to face court martial proceedings for violation of orders regarding the conduct toward neutrals. All commandants received notice of this measure. mean to a commandant at sea. If the directives of the American Manual for Courts-Martial were to be considered as a basis, then court martial proceedings against officers should only be initiate in cases where dismissal from the service seems warranted.
T hat should never be the case when the violation of an order is an accidental one.
For a commander who is supposed to make war and gain successes with his soldiers, it is extremely hard and, in fact, under certain circumstances actually a mistake to have one of his commanders on his return from a successful operation tried before a court martial because of one failure which occurred in that action. principles. In this connection I will refer to the unlimited commendation which the commander of the British destroyer "Coassack" received for setting free the prisoners of the "Altmark" in spite of the incidents which occurred during this action and which were probably regretted by the British, too. sation that any sinkings carried out against orders were sanctioned afterwards by the High Command in so far as not drastic steps were taken against the commanders. Especially in the field of submarine warfare compliance with orders issued was ensured by the continuous personal contact of the commanders With their commander. After the conclusion of every enemy operation, an oral report had to be made, and all measures taken were subjected to sharp criticism, simultaneously whilst preventive instructions were given at the same time for future behaviour. operations during this war. In the course of them, orders issued were violated only in very rare instances. If one considers how difficult it is for a submarine to establish its exact position and the boundaries of an operational area and to distringuish an armed from an unarmed merchant vessel, a passenger ship from a troop transport, or a neutral from an enemy ship, the low number of sinkings which were considered illegal by the Germans too, must be taken as proof of an especially effective and conscientious leadership. After this discussion of the factual development of German submarine war-fare, I still rave to deal with the accusations built up by the prosecution from some preparatory deliberations on the subject of the organization of submarine warfare.
1939, in which German submarines were ordered to comply in their operations strictly with the Prize Ordinance, an order was prepa red in the Naval High Command decreeing action without warning in case the one my merchantman were armed. In addition to this, earning the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones. of the will to conduct a war against international Law from the very start. I on the other hand, regard those same documents as proof of the fact that the naval Command was fully unprepared for a war with England, and that it was only when the British had already declared war that it began to set about thinking in the most primitive way how such a war should be conducted . Since neither surprise attacks on armed merchant vessels no the declaration of prohibited zones violate International Law a belligerent should be allowed just to think even on the outbreak of war if and when he wants to wake use of those opportunities. As we know from the above-mentioned orders of the British Admiralty as early as 1938 the latter had made a thorough study of all the possibilities resulting iron the war upon commercial shipping and had been worked out in a practical way. the Navel High Command of 15 October 1939, which has been quoted several times by the Prosecution. Its very heading shows that it is a study.
"Possibilities for the Intensification of Naval Warfare." examination of military demands for effective naval warfare against England and the legal possibilities for fulfilling these demands.
The result was the order of 17 October 1939, decreeing the immediate use of arms against all enemy merchant vessels, justification for which resulted as we have already shown, from their having been armed and incorporated into the military system. Beyond this, no intensifying measures were recognized as justified for the time being, and the suggestion made was to wait and see what the further conduct of the enemy would be like. on the part of the Prosecution. It says that naval warfare must be kept as a matter of principle within the frame-work of existing International Law. But measures which might result in successes decisive for the war would have to be taken, however, even if now laws of naval warfare were created thereby. Bees this really constitute a renunciation of International Law? Quite the contrary. A departure from existing International Law is made depedent only on two quite limited conditions:
1. A military one, namely, that is measures are involved which were of decisive importance for the outcome of the war i.e that would at the same time shorten the war.
2. A moral one, namely if the nature of the new measures makes them suitable for incorporation into the new International Law. only within tin frame-work of the laws of military combat ethics and a demand is therefore made for rigid adhereence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating of new international laws. Frhr. von Freytach-Loringhevens :
"It has always been war which has given its strangest impulses to International Law.
Sometimes they have been of positive and sometimes of a negative nature.
They have led to further development of already existing to failures". serve the development of International Law, the possibility of such a development cannot be denied.