Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-179.01 Last-Modified: 2000/09/24 [Page 1] HUNDRED AND SEVENTY-NINTH DAY TUESDAY, 16th JULY, 1946 DR. HANS KRANZBUEHLER (counsel for the defendant Donitz): Mr. President, gentlemen of the Tribunal: I would like to sum up my statements of yesterday and make the following remarks regarding the conduct of German U- boats against enemy merchant vessels: I believe that the German conception of the London Agreement of 1936, according to the well-known position taken by the experts of some of the powers involved, as well as according to the well-known opinion of numerous and competent scientists of all countries, could in no way be considered specious. 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 because of the conditions created by the notification of the British measures, which justified the orders issued according to the concepts of German law. Before I leave this subject I should like to recall to the Tribunal the special protection which the German orders provided for passenger ships. These passenger ships were excluded for a long time from all measures involving sinking of ships, even when they sailed in an enemy convoy and, therefore, could have been sunk immediately according to the British conception. These measures point out very clearly that the accusation of disregard and brutality is unjustified. The passenger ships 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 when these very ships, because of their great speed and heavy armaments, proved to be particularly dangerous enemies of the 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 well chosen, because the City of Benares was armed and sailed under convoy. I shall turn now to the treatment of neutrals in the conduct of German submarine warfare, and I can at once point again in this connection to the example which Mr. Roger Allen holds up especially for the sinking of a neutral vessel contrary to International Law. It concerns the torpedoing of the Danish steamer Vendia which occurred at the end of September, 1939. The Tribunal will recall that this ship was stopped in a regular way and was torpedoed and sunk only when it 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 ship. This one example may show only how different things 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 not to attack merchantmen recognized as neutral. There were some accurately defined exceptions to this order, about which the neutral powers [Page 2] had been notified. They affected in the first place ships which conducted themselves in a suspicious or hostile manner, and secondly ships in announced operational areas. To the first group belonged, above all, those vessels which sailed in the war area with dimmed lights. On 26th 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. At night the enemy's troop and material shipments took place there, by which the second wave of the British expeditionary army was ferried across to France. At that time the order was still in effect that French ships were not to be attacked at all. But since at night French ships could not be distinguished from English vessels; submarine warfare in the Channel at night would have had to be stopped completely in compliance with this order. The Tribunal heard from a witness that in this way a 20,000-ton troop transport passed unmolested in front of the torpedo tubes of a German submarine. Such a happening in a war is grotesque and therefore, of course, the Naval Command approved the request of the commander of the submarine fleet. The prosecution has now made much ado about a note written on this occasion by an assistant at the Naval Command, Kapitanleutnant (naval lieutenant) Freedorf. Even the Chief of Section, Admiral Wagner, did not approve of the opinions expressed in this tone, and, therefore, they did not lead to corresponding orders. The order to attack blacked-out ships was issued by radio without an further explanation on the part of the Naval Command, and on 4th October it was extended to further regions surrounding the English coast, and again without any explanation in the sense of the above- mentioned note: Examining the question of blacked -out vessels from the legal standpoint, Vanselow, the well-known expert on the law governing naval warfare, makes the following remark: "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 8th May, 1940, concerning the action of British submarines in the Skagerrak. Since the beginning of April, they had had the order to attack all German vessels without warning during daytime, and all vessels and so all neutrals as well at night. This means recognition of the legal standpoint presented. It even goes beyond the German order, in so far as neutral merchant vessels navigating with all lights on were sunk without warning in these waters. In view of the clear legal aspect it would hardly have been necessary to give an express warning to neutral shipping against suspicious or hostile conduct. Nevertheless, the Naval Command (Seekriegsleitung) saw to it that this was done. On 28th September, 1939, the first German note was sent to the neutral governments with the request that they warn their merchant ships against any suspicious conduct such as changes in course and the use of wireless upon sighting German naval forces, dimming, or non-compliance with the request to stop, 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 a result of suspicious or hostile conduct, neutral ships were treated like enemy ships, they had only themselves to blame for it. The German submarines were not allowed to attack anyone who as a neutral maintained a correct attitude during the war, and there are hundreds of examples to prove that such attacks never did occur. Now I wish to deal with the second danger which threatened neutral shipping the zones of operations. The actual development briefly summed up was as follows: [Page 3] On 24th November, 1939, the Reich Government sent a note to all seafaring neutrals in which it pointed to the use of enemy merchant ships for aggressive purposes as well as to the fact that the Government of the United States had barred to its own shipping a carefully defined naval zone around the Central European coast, the so-called USA combat zone. As the note states, these two facts give the Reich Government cause (I quote): "to warn anew and more strongly that in view of the fact that the actions are carried on with all the technical means of modern warfare, and in view of the fact that these actions are increasing in the waters around the British Isles and near the French coast, these waters can no longer be considered safe for neutral shipping." The note thereupon recommends for the shipping between neutral powers certain sea routes which are not endangered by German means of naval warfare and, furthermore, it recommends legislative measures according to the example set by the U.S.A. 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, the size of the USA combat zone, with the specified limitation that only in those sea zones which were actually endangered by actions against the enemy, consideration could no longer be given to neutral shipping. The Naval Command (Seekriegsleitung) indeed observed this limitation. The neutral powers had more than six weeks in which to take the measures recommended by the German Government for the safety of their own shipping and to direct their shipping along the routes announced. Starting in January, the German Command then opened up to the German naval forces within the operational area announced, accurately defined zones around the English coast in which an attack without warning against all ships was admissible. The naval chart on which these zones had been marked was submitted to the Tribunal. The chart shows that gradually these zones, and only these, were set up, 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 in the direct presence of the naval forces of both powers. The last one of these zones was designated late in May, 1940. These zones were not and did not need to be announced because they were all within the area of operations as proclaimed on 24th 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 24th November was not observed, i.e., neutral ships could be stopped and sunk only in accordance with the Prize Regulations. This situation changed when, after the collapse of France in the summer of 1940, the British Isles became the centre of the war operations. On 17th August, 1940, the Reich Government sent to the neutral governments a declaration in which the entire area of the USA combat zone around England without any limitation was designated as an operational area. "Every ship," so the note reads, "which sails in this area exposes itself to destruction not only by mines, but also by other combat means. Therefore the German Government warns once more and urgently against entering this danger area." From this time on the area was fully utilised and the immediate use of arms against the craft encountered in it was permitted to all naval and air forces, in so far as special exceptions had not been ordered. The entire development described was openly dealt with in the German Press and 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 could not complain about not having been warned explicitly and urgently beforehand. This statement alone has not much meaning in the question of whether proclaiming areas of operation as such constitutes an admissible measure. Here, [Page 4] too, the prosecution will take the position that in the London Agreement of 1936, no exceptions of any kind were made for areas of operation and, therefore, such exceptions naturally do not exist. As is well known, operational areas were first proclaimed in the First World War. The first declaration of this kind came from the British Government on 2nd November, 1914, and designated the entire area of the North Sea as a military area. This declaration was intended as a reprisal against alleged German violations of International Law. Since this justification naturally was not recognized, the Imperial Government replied on 4th February, 1915, by designating the waters around England as a military area. On both sides certain extensions were made subsequently. I do not wish to go into the individual formulations of these declarations and into the sagacious legal deductions which were made from their wording for or against the admissibility of these declarations. Whether these areas are designated as military area, barred zone, operational area or danger zone, the point always remained that the naval forces in the announced area had permission to destroy any ship encountered there. After the World War the general conviction of naval officers and experts in international Law alike was that the operational area would be maintained as a means of naval warfare. The development typical for the rules of naval warfare was confirmed here, namely, that the modern technique of war forcibly leads to the use of war methods which at first are introduced as so-called reprisals, but which are gradually used also without such a justification and recognized as legitimate. The technical reasons for such a development are obvious: The improvement of mines made it possible to endanger large sea areas. But if it was admissible to destroy by mines every ship sailing, despite warning, in a designated sea area, one could see no reason why other means of naval warfare should not be used in this area in the same way. Besides, the traditional institution of the blockade directly 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. Consequently, it was these necessities which were the compelling factors in bringing about the recognition of the operational area. It is true that there was by no means a uniform interpretation concerning the particular prerequisites under which the declaration of such areas would be considered admissible, just as there was none with regard to the designation which the belligerent power must choose. Also the conferences of 1922 and 1930 did not change anything in that respect, as can be seen, e.g., from the efforts made after 1930 especially by American politicians and experts in International Law for a solution of this question. Unfortunately, there is no time here to discuss these questions in detail and; therefore, it must suffice for the purposes of the defence to state that during the conferences in Washington in 1922 and in London in 1930 the operational area was an arrangement or system known to all Powers concerned, which operated in a way determined by both sides in the First World War, that is, that all ships encountered in it would be subject to immediate destruction. If the operational area was to have been abolished in the aforementioned conferences, especially in the treaty of 1930, an accord should have been reached on this question, if not in the text of the agreement, then at least in the negotiations. The transcripts show nothing of the kind. The relationship between operational area and the London Agreement remained unsettled. The French Admiral Castex has the same viewpoint. Admiral Bauer, Commander of Submarines in the First World War, in 1931 stated his disapproval of the application of the London rules in the operational area and this opinion was absolutely known to the British Navy. In a thorough study by Ernst Schmitz, of 1938, a merchant vessel which enters an operational area despite general prohibition is regarded as being guilty of "persistent refusal to stop." The [Page 5] powers participating in the conferences in Washington and London consciously avoided, in these as in other cases, opening 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 own interests. There was no doubt left in the minds of the participants on this point, and I have as a witness for this no less important a person than the French Minister for Foreign Affairs of that time, Briand. In his instruction of 30th December, 1921, to Sarraut, the French chief delegate in Washington, he announces his basic readiness of concluding an agreement about submarine warfare. 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 definition of combat zones. The instruction goes on: "It is indispensable to examine these questions and to solve them by a joint agreement, for surface vessels as well as for submarines and aircraft, in order not to establish ineffective and deceptive stipulations." Particularly with respect to the question concerning the area of operations, Briand characterises the submarine rules as being "ineffective and deceptive." After this testimony nobody will be able to designate the German conception, according to which ships in declared areas of operation are not under the protection of the London Agreement, as mistaken. Even Mr. Roger 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 we have repeatedly heard the figure of 750,000 square sea miles. Incidentally, it is to be noticed that this figure includes the land area of Great Britain, Ireland and Western France; the water area 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 were badly prejudiced. It is all the more remarkable that the above-mentioned American draft of the convention of 1939, which concerns the rights and duties of neutrals, provides for a considerable expansion of the operational area. Such an area, which is termed "Blockade Zone" in the draft, is to 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: It is the draft set up by the American professors Jessup Orchard and Charles Warren dealing with the rights and duties of neutrals in sea warfare. It was published in the American Journal of International Law of July, 1939. THE PRESIDENT: Jessup and Warren, you say? 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 17th August, 1940; it covers approximately 200,000 square sea miles. 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 of view and what is politically possible. It seems 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.
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