Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-180.02 Last-Modified: 2000/10/06 DR. SIEMERS: Continued: It should be an uncontested fact that thereupon Germany was justified in re-establishing the disturbed equilibrium between the belligerent parties, in other words by committing its armed forces to wrest from the enemy the benefit he was deriving from violation of neutrality. Reaction against such a violation of neutrality is directed primarily against the enemy and not against the neutral. The legal relationship toward the neutrality - THE PRESIDENT: Dr. Siemers, the Tribunal would like to know what your contention is on this subject. Do you contend that any breach of neutrality of a warring State entitles one of the warring nations to enter that neutral State? DR. SIEMERS: I am sorry, Mr. President; I did not understand it all, I am afraid. THE PRESIDENT: Well, there seems to be a certain amount of electrical disturbance. What the Tribunal would like to know is whether it is your contention that any breach of neutrality by one of the warring States entitles the other warring State to enter and invade the neutral State. DR. SIEMERS: Mr. President, in this general way one certainly could not say that. It is a principle of International Law that a violation of International Law committed by one State only entitles the other warring nation to a counter-measure which is equal to the breach of neutrality. Certainly an occupation of Norway on the part of Germany would not be justified because Britain mined the coastal waters. The fact does not justify an occupation. THE PRESIDENT: Would it be your contention that it made any difference on the rights of Germany if Germany were to be held to be an aggressor in the original war? I will repeat it. According to your contention, would it make any difference that Germany was held, if it were held, to be the aggressor in the original war, out of which the occupation of the neutral country occurred? DR. SIEMERS: Mr. President, I beg to apologise, but I am afraid I cannot quite understand the sense as it comes through in translation. THE PRESIDENT: I will say it again more slowly. According to your contention, would it make any difference if the Tribunal were to think that Germany had been the aggressor in the war which led to the occupation of the neutral State? DR. SIEMERS: I cannot understand the meaning of the question. My apologies, Mr. President. Now, if I understood it correctly, you wish me to answer the question whether the fact that previously a war had been begun by Germany against Poland would influence juridical attitude toward the question of Norway. [Page 57] THE PRESIDENT: Assuming, I only say assuming that the war begun by Germany against Poland were to be held to be an aggressive war. DR. SIEMERS: Mr. President, I believe that I must answer in the negative because the individual acts under International Law must be dealt with separately. The fact that the Tribunal may possibly assume that an aggressive war was conducted against Poland cannot, from the point of view of International Law, have any effect upon subsequent years. That, incidentally, is the point of view which, I believe, was adopted by the prosecution, for Sir Hartley Shawcross also dealt with the question of Greece and the question of landings entirely from the point of view of the Greek events, and he did not say that Britain could occupy Greece because Germany had occupied Poland. He said, just as I did, that from the legal standpoint of International Law Britain could occupy Greece because Greece was threatened by a German occupation. That is what I am saying from the point of view of International Law with reference to Norway, as my further remarks will show. Other parallels I am not trying to draw. THE PRESIDENT: Yes. There is one other question which I should like to ask you. Is it your contention that Germany was entitled under International Law to use the territorial waters of Norway, either for her warships or for the transport of ore, or for the transport of prisoners of war? DR. SIEMERS: In my opinion, from the standpoint of International Law, the situation is that Germany was entitled to use the territorial waters, observing at the same time the various international rules, as, for instance, only brief stays in ports and similar rulings, the duty of submitting to investigation by neutrals, as in the case of the Altmark. But basically, carrying on shipping operations out of Narvik was justified according to International Law as far as I know. THE PRESIDENT: Continue. DR. SIEMERS: Mr. President, with reference to the last point, may I add one thing? If one were of the opinion that Germany was not allowed to use these territorial waters, then the mining of them would have been a justified breach of neutrality on Britain's part, so that, as far as I am concerned, the mining operations as grounds for this would have to be left out of my plea but not the other facts which I am referring to. Mining of territorial waters is equivalent to the use of the coastal waters. I myself consider that the mining operation was not permissible and that travelling through coastal waters was permissible, but this does not lead to any final conclusions with reference to the entire subject of the occupation of Norway. I do hope that I shall be understood correctly. I am not saying that Germany was justified in occupying Norway because Britain had mined the coastal waters. THE PRESIDENT: But you are saying, are you, that Germany was entitled to use the coastal waters, first of all, for the transport of ore; secondly, for her warships? DR. SIEMERS: Yes. THE PRESIDENT: And thirdly, for the transport of prisoners of war? DR. SIEMERS: Yes. It is my opinion, Mr. President, that for ore transport there is no prohibitive clause in International Law, so that this shipping was permissible. With reference to prisoners of war, may I permit myself to point out that there is only one case, and that is the case of the Altmark. If Germany was not allowed to use coastal waters for transport of prisoners of war, then that could at most bring about the consequence that Britain would adopt an equivalent individual counter-measure but it would not be justified in mining the entire coastal waters. The mining of the entire coast, from the point of view of International Law, is [Page 58] only justified if you adopt the point of view that Germany's merchant shipping was prohibited from entering those coastal waters by International Law. But that, in my opinion, is not the situation. THE PRESIDENT: You may continue. DR. SIEMERS: Reaction against such violation of neutrality is primarily directed against the adversary and not against the neutral party. Legal relationship arising from neutrality exists not only between the neutral party and the two belligerent parties; but the neutrality of the neutral State in question is at the same time a factor in direct relations existing between the belligerent parties. If the relationship of neutrality between one of the belligerent parties and the neutral power suffers disturbance, the neutral power can in no way file complaint if the other belligerent power takes appropriate action, in connection with which, it is entirely immaterial whether the neutral State is unable or unwilling to protect its neutrality. The legal title under which the prejudiced belligerent power can proceed to take counter-measures is "the right of self- preservation" ("das Recht der Selbsterhaltung"), ("le droit de defense personelle"). As brought out in detail by this opinion, this right of self-preservation is generally recognized by International Law. It suffices to point out here that this basic law is not affected by the Kellogg Pact which has so often been mentioned in this Court. In this connection I ask permission to offer the following brief quotation from the circularised memorandum of the American Secretary of State Kellogg dated 23rd June, 1928: "There is nothing in the American draft of an anti-war treaty which restricts or impairs the right of self- preservation in any manner. "That right is inherent in every sovereign State and is implicit in every treaty." So far on Kellogg. Justice Jackson will permit me to mention that he himself, in his opening speech of 21st November, 1945, referred to the "right of legitimate self-defence". It is interesting that in his address before the Parliament on 8th February, 1940, the Swedish Foreign Minister Gunther recognized this concept, although he represented the interests of a State whose neutrality was endangered at the time and in addition was speaking before Germany proceeded to retaliatory measures in Norway. In that address Gunther expressed his opinion with regard to the English declaration that Sweden's neutrality would be respected only as long as it would be respected by England's enemies. Gunther recognized the fact that Sweden, in its relationship to England, would lose its neutrality should Germany violate Sweden's neutrality and should Sweden not be willing or able to prevent such violation of neutrality by Germany. Consequently, so said Gunther, Great Britain would no longer be required to treat Sweden as a neutral country It is clear that the conclusions drawn by Gunther in the event of a breach of Sweden's neutrality by Germany must also apply to the trilateral .legal relationship: Great Britain-Germany- Norway. What was involved, however, and this I shall set forth in my presentation of evidence, was not simply Great Britain's mine-laying in Norwegian coastal waters, but a much more far-reaching Anglo-French scheme aiming at the occupation of Norwegian bases and of a portion of the Norwegian territory. The mine-laying enters into the picture merely as a part of the total plan. According to Mosler's opinion, and in the light of the above remarks, it is absolutely clear that Germany was justified in occupying Norway had the Allies carried part of their plan into effect by landing at a Norwegian base before German troops made their appearance. This, however, did not occur. Rather, as I will show the situation was that Germany, anticipating an Anglo-French landing, decided on counter-measures on account of the imminent danger which threatened. [Page 59] A second legal question should also be investigated: Assuming the same conditions, are counter-measures by a belligerent permitted only after the other belligerent has proceeded to violate neutrality, or may they be taken before in view of an imminently threatening violation of neutrality in order to head off the enemy's attack which is expected at any moment? According to the well-founded opinion of Dr. Mosler, the preventive countermeasure is permissible, and the directly impending violation of neutrality which can be expected with certainty is to be considered equal to a completed violation of neutrality. The well-known Anglo-Saxon specialist on International Law, Westlake, states with regard to the question of the preventive measure: "Such a case in its character resembles that in which a belligerent has the certain knowledge that his opponent, in order to gain a strategic advantage, is just about to march an army through the territory of a neutral who is apparently too weak to resist; under these circumstances it would be impossible to refuse him the right to carry out the attack on the neutral territory first." The justification for such a preventive measure, according to Westlake, lies in the right of self-preservation, which also applies against a threatening violation of neutrality. Any other concept would also be not true to life and would not correspond to the character of the society of nations as aggregation of sovereign States with an, as yet, incompletely developed common law code. In the domestic law system of every civilised country, the prevention of an immediately threatening attack is a permissible act of defence, although there even the help of the State against the law-breaker is furnished. In the society of International Law, where this is not the case, anyway not at the beginning of and during the Second World War, the concept of self-preservation must apply in a far stronger degree. In keeping with this concept, the British Government during this war also considered the preventive measure justified when it occupied Iceland on 10th May, 1940. The British Government justified this measure clearly and correctly in accordance with International Law in an official announcement of the Foreign Office, as follows: "After the German occupation of Denmark it has become necessary to count on the possibility of a sudden German advance to Iceland. It is clear that the Icelandic Government, in case of such an attack, even if it were only carried out with very small forces, would be unable to prevent its country from falling completely into the hands of the Germans." The preventive measure was carried out by England, although Iceland expressly defended herself in a note of protest against the occupation. I also ask it to be noted that the United States agreed with this legal view, as is proven by the well-known message of the President of the United States to Congress of 7th July, 1941, and the subsequent occupation of Iceland by armed forces of the American Navy. In accordance with these basic principles of law, the facts at hand must be examined. I have tried to clarify the facts in the presentation of evidence, and I would like to summarize the major factors which actually showed a closely impending violation of neutrality on the part of the Allies through the partial occupation of Norway, and thereby justified the German campaign in Norway. At the end of September and in early October, 1939, Grand Admiral Raeder, as the evidence has shown, received various items of information through the periodic reports of Admiral Canaris as director of intelligence and through Admiral Carls, which revealed the danger that the Allies, in accordance with their plans to encircle Germany, would occupy bases in Norway in order to halt in particular the imports of ore from Scandinavia. English air crews camouflaged in civilian clothing had been seen in Oslo, and survey work by Allied officers on Norwegian bridges, viaducts, and tunnels up [Page 60] to the Swedish border had been identified. Furthermore, the secret mobilization of Swedish troops because Swedish ore- territories were endangered had become known. Raeder was justified in considering himself obliged to report these facts to Hitler and to point out to him the danger which would arise for Germany if English and French armed forces were to fortify themselves in Scandinavia. The dangers were clear. They consisted in the cutting off of all imports from the industrial areas of Scandinavia, in particular of the ore imports, as well as in the fact that the Allies would obtain a favourable base for air attacks, and last but, not least, in the fact that the German Navy would be threatened on its flank and its operational potentialities would be limited. The blockade of the North Sea and Baltic Sea would have had strategically disastrous consequences. As the information did not yet offer a final overall picture, Raeder did not suggest immediate occupation, but only pointed out the dangers in order to wait for further developments for the time being. Hitler therefore also did not make a final decision during this discussion of 10th October, 1939, but agreed to wait. Similar information was received during the months of October and November and also from the Naval Attache, Lieutenant-Commander Schreiber, who had in the meantime been sent to Oslo, to whose affidavit I would like to refer. The Norwegian shipping association had made tanker tonnage of about one million tons available to England with the consent of the Norwegian Government. In the winter of 1939-40, information took more definite shape concerning espionage missions of the English and French Secret Service to Norwegian agents and English harbour consulates for the purpose of reconnoitring landing opportunities, and examination of Norwegian railways with regard to their capacity, particularly the Narvik line, and missions concerning information about land and sea airports in Norway. By reason of the fact that the information from two different sources, namely the Naval Attache in Oslo and Admiral Canaris, coincided and gradually increased during the months of October to December, 1939, the danger seemed to become increasingly imminent.
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