dtufail/nuremberg-trials-corpus huggingface dataset:
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): An unarmed merchant ship of 20,000 tons and a speed of 20 knots, which is convoyed by a trawler with, let us say, 2 guns and a speed of 15 knots, may be sunk without warning, because it has placed itself under the protection of the trawler and thereby made itself guilty of active resistance. If, however, this same merchant ship does not have the protection of the trawler and instead the 2 guns, or even 4 or 6 of them, are placed on its decks, thus enabling it to use its full speed, should it in this case not be deemed just as guilty of offering active resistance as before? Such a deduction really seems to me against all common sense. In the opinion of the Prosecution the submarine would first have to give the merchant ship, which is far superior to it in fighting power, the order to stop and then wait until the merchant ship fires its first broadside at the submarine. Only then would it have the right to use its own weapons. Since, however, a single artillery hit is nearly always fatal to a submarine but as a rule does very little harm to a merchant ship, the result would be the almost certain destruction of the submarine. "When you see a rattlesnake rearing its head, you do not wait until it jumps at you but you destroy it before it gets the chance." These are Roosevelt's words, in which he justified his order to the United States naval forces to attack German submarines. This reason seemed sufficient to him to order the immediate use of arms even without the existence of a state of war. It is a unique instance in the history of warfare, however, to grant one of two armed opponents the right to fire the first shot and to make the other wait to be hit first. Such an interpretation is contradictory to all military reason. It is no wonder, therefore, if in view of such divergent opinions, the experts on international law, even after the London Treaty and the signing of the London Protocol of 1936, consider the treatment of armed merchant vessels in naval warfare to be an unsolved question.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): Here too I should like to refer to only one source of research, which enjoys especially high authority. It is the draft of an agreement on the rights and duties of neutrals in naval warfare, an agreement which leading American professors of international law, such as Jessup, Borchard, and Charles Warren, published in the American Journal of International Law of July 1939 and which includes arguments which furnish an excellent idea of the latest trend of opinion. Article 54 of this draft corresponds word for word to the text of the London Agreement of 1936, with one notable exception: The term "merchant vessel" is replaced by "unarmed vessel." The next article then continues: "In their action with regard to enemy armed merchant vessels, belligerent warships, whether surface or submarine, and belligerent military aircraft are governed by the rules applicable to their action with regard to enemy warships." This opinion is first of all explained by historical development. During the time when it was customary to arm merchant vessels, that is, until the end of the last century, there was no question of any protection for the merchant vessel against immediate attack by an enemy warship. With the introduction of armor plating the warship became so superior to the armed merchant vessel that any resistance on the part of the latter was rendered futile, and the arming of merchant ships therefore gradually ceased. Only this defenselessness against warships, and this alone, granted merchant vessels the privilege of not being attacked without warning by the enemy: "As merchantmen lost effective fighting power they acquired a legal immunity from attack without warning." This immunity was never conceded to the merchant vessel as such but only to the defenseless and harmless merchant vessel.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): In regard to this the American expert on international law, Hyde,* stated in 1922, that is, after the Washington Conference and the afore-mentioned Root Resolution on U-boat warfare: "Maritime states have never acquiesced in a principle that a merchant vessel so armed as to be capable of destroying a vessel of war of any kind should enjoy immunity from attack at sight, at least when encountering an enemy cruiser of inferior defensive strength." Legal as well as practical considerations, therefore, led the above-mentioned American authorities, after the signing of the London Agreement and shortly before the outbreak of this war, * Hyde, International Law, 1922, Vol. II, Page . 469. to form the opinion that armed merchant ships do not enjoy protection from attacks without warning. Here the old discrimination between defensive and offensive armaments is also rejected as inapplicable. It is a well-known fact that the American Secretary of State, Lansing, in his note to the Allies on 18 January 1916, took the point of view that any kind of armament aboard a merchant vessel will make its fighting power superior to that of a submarine and that such armament is therefore of an offensive nature.* In the later course of the first World War, the United States changed its opinion and declared that mounting guns on the stern could be taken as proof of the defensive character of the armaments. This standpoint was adopted in some international agreements and drafts, as well as by British jurists in particular. It does not do justice to the practice of naval warfare. First of all, in this war the guns on many vessels were mounted from the very start in the bows, for instance, regularly on fishing trawlers. Furthermore, the antiaircraft weapons of the merchant vessel, which were especially dangerous for the submarine, were frequently placed on the bridge, and could therefore be used in all directions. Besides, there can be no differentiation between defensive and offensive armaments as to the way the weapons are placed.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): In this respect orders alone and the way in which these weapons are meant to be employed are the decisive factors. Soon after the war had started the orders of the British Admiralty had already fallen into German hands. A decision of the Tribunal has made it possible for me to submit them. They are contained partly in the Confidential Fleet Orders, chiefly, however, in the Defense of Merchant Shipping Handbook. They were issued in 1938. They do not therefore deal with countermeasures against illicit German actions but, on the contrary, were already issued at a time when warfare in accordance with the London Agreement was the only form of submarine warfare taken into consideration in Germany. The instructions further show that all British merchant vessels acted, from the first day of the war, according to orders received from the British Admiralty. These involved the following points with respect to submarine warfare: (1) Reporting of submarines by radio telegraphy. (2) The use of naval artillery. (3) The use of depth charges. * U. S. Foreign Relations, 1916, Supplement Page 147. These instructions were supplemented on 1 October 1939, when a call was transmitted over the radio to ram all German submarines. It might seem unnecessary after this survey to make any mention at all of the defensive and offensive character of such orders. The orders on the use of artillery by merchant vessels, however, do make such differentiation; that is, guns are to be used for defense only, as long as the enemy on his part adheres to the regulations of international law, and for the offensive only when he no longer does. The orders covering the practical execution of these directives reveal, however, that there is no difference at all between defensive and offensive use. Admiral Doenitz explained this in detail when he was heard in Court, and I do not want to repeat it. Actually, from the very beginning of the war merchant vessels were under orders to fire on every occasion on every submarine which came within range of their guns.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): And that is what the captains of British merchant vessels did. The reason for this offensive action can certainly not be found in the conduct of German submarines during the first weeks of the war, for even the Foreign Office report admits that this conduct was correct. On the other hand, British propaganda may have had great influence, since in connection with the unintentional sinking of the Athenia on 3 September 1939, it disseminated through Reuters on 9 September the assertion that unrestricted submarine warfare was in progress and upheld this assertion notwithstanding the fact that the conduct of German submarines during the first weeks of the war refuted this accusation. Together with the announcement of the British Admiralty's ramming orders of 1 October 1939, the merchant navy was again officially informed that the German U-boats had ceased to respect the rules of naval warfare and that merchant vessels were to adjust their conduct accordingly. It seems to me of no importance that a corresponding written supplement to Admiralty orders was not issued until the spring of 1940, because nowadays a naval war is not directed by letters but by wireless. But according to the latter, the British captains, as from 9 September or 1 October 1939 at the latest, were directed to use their guns offensively against the German U-boats in accordance with the Admiralty's instructions as contained in its handbook. The German order to attack armed enemy merchant vessels without warning was issued only on 4 October. Thus it was justified in any case, even if one did acknowledge a difference in treatment for vessels with defensive and offensive armament. The guns on the merchant vessels and the orders concerning their use were, however, only a part of a comprehensive system of the use of merchant vessels for military purposes.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): Since the end of September 1939 the fastest vessels, that is, those ships that were the least endangered by submarines but, on the other hand, were especially suited for chasing U-boats, received depth charge chutes, that is, armaments which call for location of a submerged submarine and thus may be judged as typical weapons for the offensive. However, another factor of greater general importance, and also of greater danger to the submarines, was the order to report every enemy ship on sight, giving its type and location. This report was destined, so said the order, to facilitate taking advantage of an opportunity, which might never recur, to destroy the enemy by naval or air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service with intent directly to injure the enemy. If one considers the fact that according to the hospital ship agreement even the immunity of hospital ships ceases, if they relay military information of this type, then one need have no doubts about the consequences of such behavior on the part of a commercial vessel. Any craft putting out to sea with the order and intention of using every opportunity that occurs to send military reports about the enemy to its own naval and air forces is taking part in hostilities during the entire course of its voyage and, according to the aforementioned report of 1930 of the committee of jurists, has no right to be considered a merchant vessel. Any different conception would not do justice to the immediate danger which a wireless report involves for the vessel reported and which subjects it, often within a few minutes, to attack by enemy aircraft. All of the Admiralty's directives, taken together, show that British merchant vessels, from the very first day of the war, closely co-operated with the British Navy in combating the enemy's naval forces.
FLOTTENRICHTER OTTO KRANZBUEHLER (Counsel for the Defendant Doenitz): They were part of the military communications network of the British naval and air forces and their armament of guns and depth charges, the practical training in manipulation of the weapons, and the orders relative to their use, were actions taken by the British Navy. We consider it out of the question that a merchant fleet in this manner destined and utilized for combat should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the basis of this conception and in connection with the arming of all enemy merchant vessels, which was rapidly being completed, an order was issued on 17 October 1939 to attack all enemy merchant ships without warning.
THE PRESIDENT: Dr. Kranzbuhler, we may as well break off now.
SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but I promised to tell the Tribunal about the two affidavits put forward for the Defendant Seyss-Inquart. We have no objection to them. I promised to tell Your Lordship today. I am sorry to have to detain you. [The Tribunal adjourned until 16 July 1946 at 1000 hours.7]
FLOTTENRICHTER KRANZBUEHLER: 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 construction of the London Agreement of 1936, in the light of the position taken by some of the powers involved, as generally known to all experts, as well as according to the opinion of numerous and competent jurists of all countries, was in no way fraudulent. If I were to express myself with all 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 for issuing its orders on a sensible and perfectly fair basis. We have shown that these orders were given only in consequence of the conditions created by publication of the British measures, which, according to the German concept of law, justified the orders issued. Before I leave this subject I should like to recall to the mind of the Tribunal the special protection which the German orders provided for passenger vessels. These passenger vessels 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 indicate very clearly that the accusation of disregard and brutality is unjustified. The passenger vessels were only included in the orders concerning other vessels when in the spring of 1940 there was no longer any harmless passenger traffic at all, and when these ships, because of their great speed and heavy armament, proved to be particularly dangerous enemies of the submarines. If therefore Mr. Roger Allen's report cites as an especially striking example of German submarine cruelty the sinking of the City of Benares in the autumn of 1940, then this example is not very well chosen because the City of Benares was armed and went under convoy.
FLOTTENRICHTER KRANZBUEHLER: 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 cites 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 prepared to ram 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 boat. This one example is just to show how different things look if not only the result in the form of 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 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 blacked-out in the war area. On 26 September 1939 the Commander of U-boats asked the High Command of the Navy for permission to attack without warning vessels proceeding in the Channel without lights. The reason was clear. At night the enemy's troop and materiel shipments were taking place, 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 French ships could not be distinguished from English vessels at night, submarine warfare in the Channel would have had to be discontinued completely after dark in compliance with this order.
FLOTTENRICHTER KRANZBUEHLER: 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 an occurrence in war is grotesque and therefore of course the Naval Operations Staff approved the request of the Commander of U-boats. The Prosecution has now made much ado about a note written on this occasion by an assistant at the Naval Operations Staff, Kapitaenleutnant Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of the opinions expressed in this note; therefore they did not result in corresponding orders. The order to attack blacked-out ships was issued by radio without any further addition on the part of the Naval Operations Staff and on 4 October it was extended to further regions along the British coast, and again without any addition 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 light voluntarily renounces during the hours of darkness all claim to immunity from attack without being stopped." I furthermore refer to Churchill's declaration, made in the House of Commons on 8 May 1940, concerning the action of British sum marines in the Jutland area. Since the beginning of April they had had orders to attack all German vessels without warning during the daytime, and all vessels, and thus all neutrals, as well, at night. This amounts to recognition of the legal standpoint as presented. It even goes beyond the German order, insofar 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 Operations Staff saw to it that this was done.
FLOTTENRICHTER KRANZBUEHLER: On 28 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, blacking out, noncompliance with the request to stop, et cetera. 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. If therefore, as a result of suspicious or hostile conduct, neutral ships were treated like enemy ships, they have only themselves to blame for it. The German submarines were not allowed to attack any one 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: On 24 November 1939 the Reich Government sent a note to all seafaring neutrals in which it pointed out the use of enemy merchant ships for aggressive purposes, as well as 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, * Vanselow, Volkerrecht, Berlin, 1931, Figure 226 i. the so-called U.S.A. 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 then recommends as shipping lanes between neutral powers certain sea routes which are not endangered by German naval warfare and, furthermore, recommends legislative measures according to the example set by the United States.
FLOTTENRICHTER KRANZBUEHLER: In concluding, the Reich Government rejects responsibility for any consequences which might follow if warning and recommendation should not be complied with. This note constituted the announcement of an operational area equivalent in size to the U.S.A. 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 Operations Staff did indeed observe this limitation. The neutral powers had more than 6 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, certain accurately defined zones around the British coast, in which an attack without warning against all ships sailing there was admissible. The naval chart on which these zones had been marked was submitted to the Tribunal. The chart shows that these zones, and only these, were gradually set up where, as a result of mutually increasing attacks and defensive actions at sea and in the air, engagements continually occurred, so that any ship entering this area was operating in the direct presence of the naval forces of both powers. The last of these zones was designated in May 1940. These zones were not, and need not have been, announced because they were all within the area of operations as proclaimed on 24 November 1939. The distance of these zones from the enemy coast was on the average 60 sea miles. Outside their boundaries the declaration concerning the area of operations of 24 November was not observed, that is to say, neutral ships could be stopped and sunk only in accordance with the Prize Ordinance. This situation changed when, after the collapse of France in the summer of 1940, the British Isles became the center of war operations.