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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