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                                                    [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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