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This definition clarifies at least one thing, that by no
means every vessel flying s 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 through which kind of
participation in hostilities a vessel loses her right to the
immunity of a merchant vessel is again subject 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 is probably s
not wrong in assuming that this astonishing reserve is based
on experiences which the same Powers had accumulated in
Washington eight years ago.

The Washington Conference of 1922 was still under the fresh
impression of the First World War, and, therefore, it is no
wonder that the naval Power, Great

                                                  [Page 397]

Britain, which during the World War had suffered most from
German submarine warfare, now tried to outlaw and abolish
altogether by International Law submarine warfare against
merchant shipping. The resolution named after the American
chief 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 farther and
stipulates that 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, to be sure, accepted by the delegates, but none
of the five participating naval Powers, USA, England,
France, Japan and Italy ratified it.

Apropos 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 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, opened the offensive 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 declared this to be explicitly in accordance
with the existing rules of International Law.

The French delegate, M. Sarraut, at that time received
instructions from 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

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. 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 m the sense of the

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. With this compromise, a formula was created
which, to be sure, could represent a momentary political
success, but which, however, could 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.

I have described these events of the year 1922 a little more
in detail because the Powers who took part in them were the
same as those who 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 records at 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 summarising report
on the London Naval Treaty.

It is there in particular where, besides the ambiguity of
the concept "merchant vessel," the uncertainty connected
with the words "active resistance" is pointed out, and it is
with these very words that an exception from the protection
of the

                                                  [Page 398]

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
is interpreted literally, one would have to be of the
opinion that merchantmen in an enemy convoy must also not be
attacked without warning, but that an attacking battleship
would simply have to put the escort vessels out of action
first and then stop and search the merchantmen. However,
this demand, impossible from a military point of view,
evidently is not made by the prosecution either. 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 gives an interpretation of the
word "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. And
this very same common sense demands also that the armed
merchant ship 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 with a speed of 20 knots which is
convoyed by a trawler with, let is say, two 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 two guns, or even four or six of them, are
placed on its decks, thus 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 a deduction
really seems to me to be sound common sense. However, 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 wait until the
merchant ship fires its first broadside at the submarine.
Only then would the submarine have the right to use its own
weapons. Since, however, a single artillery hit is nearly
always fatal for 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 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 refer 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, Borchard and Charles Warren published in the
American journal of International Law of July, 1939, which
gives arguments furnishing an excellent idea of the most
recent trend 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 warships, whether surface or
  submarine, and belligerent military aircraft are governed
  by the rules applicable to their action with regard to
  enemy warships."

                                                  [Page 399]

This opinion is first of all based on 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 armour-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
defencelessness 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 defenceless and harmless merchant
vessel. In regard to this 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 had been passed:

  "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 are
not protected from attacks without warning.

Here the old discrimination between defensive and offensive
armaments is also rejected as inapplicable. It is well known
that the American Secretary of State, Lansing, in his note
to the Allies on 18th 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 armament is therefore of an offensive nature.

In the later course of the World War, the USA 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, e.g.,
principally 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, there can be no differentiation between
defensive and offensive armaments on the basis of 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," and chiefly in the "Defence 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 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) The report of submarines by radio telegraphy.
  (2) The use of naval artillery.
  (3) The use of depth charges.

                                                  [Page 400]

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

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, make such differentiation; that is,
cannons are to be used only for the defence 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 at
all between defensive and offensive use. Admiral Donitz
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 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, the British propaganda may have had great
importance, in connection with the unintentional sinking of
the Athenia on 3rd September, 1939, when it disseminated
through Reuter on 9th September the assertion that
unrestricted submarine warfare was in progress and upheld
this assertion, notwithstanding the fact that the conduct of
the German submarines during the first weeks of the war
refuted this accusation. Together with the announcement of
the British Admiralty's ram order of 1st October, 1939, the
Merchant Marine was again informed officially that the
German U-Boats had ceased to respect the rules of naval
warfare and merchant vessels were to adjust their conduct
accordingly. It seems to me of no importance that a
corresponding written supplement to the Admiralty orders was
issued only in 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 were directed
to use their guns offensively against the German U-Boats in
accordance with the Admiralty's instructions contained in
its handbook, beginning 9th September or 1st October, 1939,
at the latest. The German order to attack armed enemy
merchant vessels without warning was issued only on 4th
October. Thus it was justified in any case, even if one
wanted to acknowledge a difference in treatment for vessels
with defensive and offensive armament.

The guns on the merchant vessels and the orders about their
use were, however, only a part of a comprehensive system of
the use of merchant vessels for combatant 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 especially suited for chasing
submarines, received depth-charge projectors, that is,
armaments which make it possible to find the submerged
submarines and which thus may be judged as typical weapons
for the offensive.

However, what was of more general importance and also of
greater danger to is the submarines was the order to report
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 the British naval and air forces. 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 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 behaviour
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 the hostilities
during the entire course of its voyage, and, based on the
aforementioned 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

                                                  [Page 401]

reported vessel and which subjects it, often within a few
minutes, to attacks 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 arming with cannon 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
which is thus destined and utilised for battle should be
considered as being 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 17th October, 1939, to attack all
enemy merchant ships without warning.

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

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 16th July, 1946, at 1000 hours.)

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