dtufail/nuremberg-trials-corpus huggingface dataset:
FLOTTENRICHTER KRANZBUEHLER: On 17 August 1940 the Reich Government sent to the neutral governments a declaration in which the entire area of the U.S.A. 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 once more urgently warns against entering this endangered area." From this time on the area was fully utilized and the immediate use of arms against craft encountered in it was permitted to all naval and air forces, except where special exceptions had been ordered. The entire development described was openly dealt with in the German press, and Grossadmiral 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 cannot complain about not having been warned explicitly and urgently beforehand. This statement in itself has not much meaning in the question of whether areas of operation as such constitute an admissible measure. Here, 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 that therefore such exceptions do not exist. It is a well-known fact that operational areas were originally proclaimed in the first World War. The first declaration of this kind came from the British Government on 2 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 4 February1915 by designating the waters around England as a military area. On both sides certain extensions were made subsequently.
FLOTTENRICHTER KRANZBUEHLER: I do not wish to go into the individual formulations of these declarations and into the judicial 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 area determined had permission to destroy any ship encountered there. After the World War the general conviction of naval officers and experts on international law alike was that the operational area would be maintained as a means of naval warfare. A 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 in the guise of reprisals, but which gradually come to be employed 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 render large sea areas dangerous. 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 off enemy ports and coasts by mines, submarines, and aircraft was made practically 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.
FLOTTENRICHTER KRANZBUEHLER: The conferences of 1922 and 1930 did not change anything either in that respect, as can be seen, for instance, 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 at my disposal to discuss these questions in detail and therefore it must suffice for the purposes of the defense 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 were to have been abolished in the afore-mentioned 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 minutes 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, voiced his disapproval in 1931 of the application of the London rules in the operational area, and this opinion was not unknown to the British Navy.*** In a thorough study published by Professor Ernst Schmitz**** in 1938 a merchant vessel which enters an operational * In 1935, the American Senator Ney demanded the prohibition of operational areas. In 1937 Charles Warren made a request for discussion of the subject in the Society for International Law. And also the afore-mentioned draft of a convention by American jurists of 1939 deals with this question. *' Theories strategiques IV, Page 323: "Meme en zone de guerre n'aura-t-on pas contra sol le damne article 22 du traits de Londres?" *** Bauer, Das U-Boot, 1931, Report on it by Captain G. P. Thomson, R. N. in The Journal of the Royal News Instruction 1931, Page 511.
FLOTTENRICHTER KRANZBUEHLER: ·"' Sperrgebiete im Seekrieg, Zeitsehrift fin auslandisehes offentliches Reebt und Volkerreebt, Volume vm, 1938, Page 671. area despite general prohibition is deemed to be guilty of "persistent refusal to stop." The powers participating in the conferences in Washington and London carefully refrained; as also in other cases, from tackling controversial questions on which no accord could be reached. Therefore every power remained at liberty to champion in practice such an opinion as corresponded with its own interests. There was no doubt left in the minds of the participants as to this fact, and I have as a witness for this no less a person than the French Minister for Foreign Affairs at that time, M. Briand. In his instruction of 30 December 1921 to Sarraut, the French chief delegate in Washington, he announces his basic readiness to conclude an agreement on submarine warfare. However, he then points out a series of questions described as 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 characterizes the submarine rules as being "ineffective and deceptive." After this testimony nobody would designate the German conception as fraudulent, according to which ships in declared areas of operation forfeit the protection under the London Agreement. 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, not so much against the existence of such zones as against their extent, and we have repeatedly heard the figure of 750,000 square sea miles.
FLOTTENRICHTER KRANZBUEHLER: Incidentally, it must be noted that this figure includes the territorial area of Great Britain, Ireland, and western France; the maritime area only amounts 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 afore-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, was to include the waters up to a distance of 50 sea miles from the blockaded coast. * French Yellow Book, La Conference de Washington, Page 88. " Report of 8 October 1940, Page 3: "On- thing is certain, namely, apart from vessels in declared war zones, destruction of a merchant vessel is envisaged if even only after capture."
THE PRESIDENT: Dr. Kranzbuehler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.
FLOTTENRICHTER KRANZBOHLER: It is the draft set up by the American Professors Jessup Borchard 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?
FLOTTENRICHTER KRANZBUEHLER: Jessup Borchard and Charles Warren.
THE PRESIDENT: Thank you.
FLOTTENRICHTER KRANZBUEHLER: This would correspond roughly to the area of waters in which attacks without warning were authorized until 17 August 1940; it covers approximately 200,000 square sea miles. However, it seems to me almost impossible to approach from a juridical angle such an eminently practical question as that of the extent 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 the law is only violated when a belligerent misuses his power against neutrals. The question as to whether such misuse takes place should be made dependent both upon the attitude of the enemy toward the neutrals and upon the measures taken by the neutrals themselves.
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?
FLOTTENRICHTER KRANZB0HLER: I do not quite follow the point 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 shot.
FLOTTENRICHTER KRANZBUEHLER: I do not believe, Mr. President, that there exists agreement of expert opinion regarding that question. In contrast to the blockade zone in a classical sense where full effect is necessary, the operational zone only provides for practical endangering through continuous combat actions. This practical 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 U.S.A. combat zone, where the entering of that zone was prohibited, because as a result of combat actions 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?
FLOTTENRICHTER KRANZENBUEHLER: I am referring to it only to establish proof of the German interpretation that this area was endangered, and practical danger 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?
FLOTTENRICHTER KRANZBOHLER: Mr. President, I would say that at the beginning of the war that would not have been possible, for the German forces at that time, without doubt, did not constitute 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 defense by hostile aircraft on the other, 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?
FLOTTENRICHTER KRANZBUEHLER: Yes.
THE PRESIDENT: You say it depends upon the possibility of danger in the zone?
FLOTTENRICHTER KRANZBOHLER: 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?
FLOTTENRICHTER 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 also to the generally recognized rules about mined areas. The mined areas actually in this war proved to be operational zones where every means of sea warfare was used to sink without warning. I shall later refer to this topic once more.
THE PRESIDENT: Thank you.
FLOTTENRICHTER 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 insofar as they are indispensable for the legal argumentation. The following points are essential: (1) The British regulations of 3 September 1939 concerning contraband goods, which practically precluded 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 right through 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 27 November 1939, by means of which the importation of German goods was cut off for neutrals. (4) The introduction of the navicert system and the black lists, which put the whole of neutral trade under British control and which made ships refusing to accept this system liable to be seized and confiscated. I do not have to examine the question here whether these British measures toward 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 a single one which did not bring forth' more or less vehement protests, for instance from Spain, the Netherlands, Soviet Russia, and the United States. From the beginning, the British Government for its part had forestalled any legal examination of the measures by renouncing the optional clause of the Permanent International Tribunal in The Hague, through a note of 7 September 1939. This step was expressly vindicated by the necessity for providing the British Navy with full freedom of action.
FLOTTENRICHTER KRANZBUEHLER: On the British side the fact was emphasized in the first World War and ever since that although British measures did prejudice the interests and possibly also the rights of the neutrals, they did not imperil either the ships or the crews and were therefore to be considered morally superior to the inhuman German measures. Actually, as mentioned before, the obligation to enter control ports was dangerous for neutral ships and crews and for this very reason the neutral countries protested against it. But apart from this, it seems to me that the actual divergence between the British and German measures for blockading the adversary is not founded upon moral differences, but rather upon difference in sea power. In the waters where the British Navy did not exercise naval supremacy, namely, off the coasts we occupied, and 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 aforementioned British control measures against neutrals were inadmissible, and the Reich Government reproached the neutral powers with the fact that, although protesting, they in point of fact submitted to the British measures. This is clearly stated in the proclamation issued on the occasion of the declaration of the blockade on 17 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 grounds 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 and therefore illegal from the point of view of international law. (2) The neutrals in practice submitted to all British measures, even when these measures were contrary to their own interests and their own conception of legality.
FLOTTENRICHTER KRANZBUEHLER: (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 economize considerably on fighting forces which, according to the hitherto existing international law, should have exercised trade control at sea and which were now available for other war tasks. Therefore the German Government, in determining its operational area with a view to preventing illegal traffic from reaching England, saw no reason for giving preference to the neutrals over its own military requirements, all the less so since neutral shipping, which despite all warnings continued to head for England, demanded a great deal of money for this increased risk and therefore despite all risks still considered trade with England a profitable business.* * Commander Mussel Grenfell, R. N., The Art of the Admira1, London, 1937, Page 80. "The neutral merchants, however, are not likely to relinquish a highly lucrative trade without a struggle and thus there arises the acrimonious wrangle between belligerents and neutrals which is a regular feature of maritime warfare, the rules for which are dignified by the name of international law." In addition to that, the most important neutrals themselves took measures which can be regarded as a completely novel interpretation of the existing laws of naval warfare. All the American countries jointly proclaimed the Pan-American safety zone, an area along the American coast within a distance of approximately 300 sea miles. In these waters, comprising altogether several million square miles, they required belligerents to forego the exercise of these rights which, according to hitherto existing international law, the naval forces of the belligerents were entitled to apply to neutrals. On the other hand, as I have already mentioned, the President of the United States prohibited, on 4 November 1939, U.S. citizens and ships from entering the waters extending over approximately one million square miles along the European coast.
FLOTTENRICHTER KRANZBUEHLER: Thus the development of the laws of naval warfare, under the influence of the neutrals, necessarily led to the 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 thus only took into account 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 coastal supervision of maritime traffic over large areas; 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 through arbitrary action 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 recognized by the other powers also as justified. 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 judgment as one of coastal length and of strategic position on the sea. This observation is confirmed by the American practice against Japan, as described by Admiral Nimitz. 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.
FLOTTENRICHTER KRANZBUEHLER: All ships therein, with the exception of U.S. and Allied, and hospital ships, were sunk without warning. The order was issued on the first day of the war, on 7 December 1941, when the Chief of the Admiralty ordered unrestricted submarine warfare against Japan. It is not for me 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 what actual practice looked like, and that is unequivocal. The Prosecution finds particularly blameworthy the orders to carry out attacks without warning in the operational areas, if possible without being noticed, so that mine hits could be claimed. Orders to this effect existed for the period between January and August 1940, that is to say, during the period when submarines were not permitted to act without warning throughout the operational area of 24 November 1939, but only in the specially defined areas off the British coast. In this camouflage the Prosecution sees proof of a bad conscience amounting to the recognition of wrongdoing. The real reasons for the measures ordered were both military and political. For the admirals concerned the military reasons, of course, took first place, and these alone were known to the Commander of U-boats. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses, and his defense was to be led astray in this manner. It is obvious 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 on the spot 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 that were the determining factor. These invisible attacks were meant to provide an opportunity of denying to the neutrals that the sinkings were due to submarines, and of tracing them back to mines.