Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-179.02 Last-Modified: 2000/09/24 [Page 6] THE PRESIDENT: One minute, Dr. Kranzbuehler, does not the right to declare a certain zone as an operational zone depend upon the power to enforce it? DR. KRANZBUEHLER: 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 an operational zone, if there is such a right, does not 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 attacked. DR. KRANZBUEHLER: In my opinion, Mr. President, there is no agreement of unified expert opinion 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 in my opinion, and I refer in that connection to the proclamation of President Roosevelt regarding the USA 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: I am referring to it only to establish proof of the German interpretation 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, I would say that at the beginning of the war that would not have been possible, for the German armed forces at that time were, without doubt, not an effective danger to the entire Atlantic sea traffic. I am of the opinion, however, that with the increase in the number of U-boats on the one hand, and with the increase of defence by enemy aircraft on the other hand, the danger zone of course expanded, and therefore, the development of this war quite logically led to the point where operational zones were gradually 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 of danger, Mr. President, but the probability of danger, and the impossibility for the belligerent to protect neutral shipping against this danger. 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. KRANZBUEHLER: I am referring, as a legal basis, especially to the practice of the First World War, and the statements made by experts after the First World War, and to the generally recognized rules about mined areas. The mined areas, in fact, proved to be operational zones in this war; in which every means of sea warfare were used to sink without warning. I shall later refer to this topic once more. [Page 7] THE PRESIDENT: Thank you. DR. KRANZBUEHLER: During the presentation 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 essential: 1. The British regulations of 3rd September, 1939, concerning contraband goods, which practically prevented neutral mercantile traffic with Germany through the introduction of the so-called "hunger blockade". 2. The decree concerning control ports for contraband goods, which compelled neutral ships to make great detours through the middle of the war zone, and to which must be imputed without doubt a series of losses of neutral ships and crews. 3. The introduction of an export blockade against Germany on 27th November, 1939, by means of which the importation of German goods was cut off for neutrals. 4. The introduction of the Navicert System in connection with the black lists, which put the whole of neutral trade under British control and which made ships which did not accept this system liable to be seized and confiscated. I am not considering the question here whether these British measures 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, Soviet Russia and the United States. 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 in the Hague, through a note of 7th September, 1939 This step was expressly based on the necessity of providing the British Navy with full freedom of action. On the British side, the fact was emphasized in the First World War and has been emphasized ever since, that British measures probably did prejudice the interests and possibly the rights, too, of the neutrals. However, they did not imperil either the ships or the crews 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 crews and for this very reason neutral countries protested against it. But apart from this, it seems 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 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 Sea, it used the same methods of naval warfare as we did. In any case, the official German opinion was that the British control measures against neutrals were inadmissible, and the Reich Government accused the neutral powers of indeed. protesting, but of actually submitting to the British measures. This is clearly stated in the proclamation issued on the occasion of the proclamation of the blockade on 17th 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 these measures were in contradiction to their own interests and their own conception of legality. [Page 8] 3. Thus, the neutrals directly supported British warfare. For, by submitting to the British control system in their own country, they permitted the British Navy to economise 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 much money for this increased risk and therefore, despite all danger still considered the trade with England as a lucrative business. In addition to that, the most important neutrals took measures themselves which can be regarded as a completely new interpretation of the existing laws of naval warfare. All American countries jointly proclaimed the Pan-American safety zone, an area along the American coast up to a distance of approximately 300 sea miles. In these waters, comprising altogether several million square miles, they asked 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 4th November, 1939, USA citizens and ships to travel within an area of waters covering approximately one million square miles along the European coast. Thus the development of the laws of naval warfare, under the influence of the neutrals, forcibly led to a recognition of large areas reserved either for the purpose of safety or for that of combat. In this connection the American President explicitly stated in his proclamation that the maritime zone he 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 land supervision of maritime n traffic over dozens of sea-miles, and particularly the increased speed and range of aircraft. From this development, the German Naval Command drew the same conclusion as the above-mentioned neutrals, namely that defensive and offensive action 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 the German Naval Command was adapting itself to a system which was also recognized by the other powers as legitimate. In order to examine the legality of the German measures on the basis of 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 judgement as one of coastal length and of strategic position on the sea. This 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 7th December, 1941, when the Chief of the Naval High Command ordered unrestricted submarine warfare against Japan [Page 9] It is not my business to examine whether this order, issued on the 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. The prosecution attaches special blame to the orders to carry out 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 24th 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 these alone were known to the commander of the submarine fleet. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses and his defence 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. For the Supreme Command, however, it was not the military 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 area of operation? I do not think so. In view of the repeated accusations which the prosecution 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 peace time, 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 Hugo Grotius who says: "One may conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable." What would it have meant for the military situation if U- boat sinkings in the instances dealt with here had not been denied but admitted? 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 defence. Furthermore - and this is no less important - we might quite possibly have furnished our enemy with allies who would have helped him, at least 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 endeavour 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 precisely 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 these areas there were [Page 10] 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. Within the German operational zone all ships were on principle 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 endeavour of the Naval Command to terrorise 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 65-UK in the notes on the report which the Commander-in-Chief of the Navy made to the Fuehrer on 16th October, 1939. According to this the neutral governments mentioned are requested to declare that they will not carry contraband of war, otherwise they will be treated just like any other neutral country. 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 because of their political attitude or their economic dependence on England. Therefore, it is not a question of terrorising the smaller neutrals and the sparing of the bigger ones, but of preventing traffic in contraband of war and the protection of legitimate 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.
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