The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

One Hundred and Seventy-Eighth Day: Monday, 15th July, 1946
(Part 10 of 10)

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This definition clarifies at least one thing, that by no means every vessel flying s a merchant flag may lay claim to being treated as a merchant vessel in the sense of the London Agreement. Beyond this, the explanation has few positive aspects, because the question through which kind of participation in hostilities a vessel loses her right to the immunity of a merchant vessel is again subject to the interpretation of the individual contracting parties. The London Conference, as far as I can see, did not consider this ticklish question any further, and one is probably s not wrong in assuming that this astonishing reserve is based on experiences which the same Powers had accumulated in Washington eight years ago.

The Washington Conference of 1922 was still under the fresh impression of the First World War, and, therefore, it is no wonder that the naval Power, Great

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Britain, which during the World War had suffered most from German submarine warfare, now tried to outlaw and abolish altogether by International Law submarine warfare against merchant shipping. The resolution named after the American chief delegate, Root, which in its first part substantially corresponded to the London text of 1930, served that aim. But in the second part, the Root Resolution goes farther and stipulates that any commander who, no matter whether he acted with or without higher orders, violated the rules established for the sinking of merchant vessels should be punished as a war criminal like a pirate. Finally, it was recognized that under the conditions stipulated in the resolution submarine warfare against merchant shipping was impossible, and was therefore renounced altogether by the contracting Powers. The Root Resolution designates these principles as an established part of International Law. As such it was, to be sure, accepted by the delegates, but none of the five participating naval Powers, USA, England, France, Japan and Italy ratified it.

Apropos the Root Resolution, however, another question was discussed which is of the greatest importance for the interpretation of the London Protocol, namely the definition of the term "merchantman." Here the two fronts in the entire U-Boat question became clearly evident. On the one side there stood England, on the other France, Italy and Japan, while the US took the position of a mediator. According to the protocol of the Washington Conference, the Italian delegate, Senator Schanzer, opened the offensive of the weaker naval Powers by expressly emphasizing that a merchantman, regularly armed, may be attacked by a submarine without preliminaries. In a later session Schanzer repeated his statement that the Italian delegation applied the term of "merchantman" in the resolution only to unarmed merchant vessels. He declared this to be explicitly in accordance with the existing rules of International Law.

The French delegate, M. Sarraut, at that time received instructions from Foreign Minister Briand to second the reservations of the Italian delegate. He thereupon moved to have the Italian reservations included in the records of the session.

The Japanese delegate Hanihara supported this trend with the statement that he thought it was clear that merchant vessels, engaged in giving military assistance to the enemy, ceased in fact to be merchant vessels. It can, therefore, be seen that in 1922 three of the five Powers represented expressed the opinion that armed merchant vessels were not to be regarded as merchant vessels m the sense of the agreement.

Since the whole resolution threatened to collapse because of this difference of opinion, a way out was found which is typical of conferences of this kind. Root closed the debate with the statement that in his opinion the resolution held good for all merchant ships as long as the ship remained a merchant vessel. With this compromise, a formula was created which, to be sure, could represent a momentary political success, but which, however, could carry no weight in the case of war. For it was left to every participating Power to decide whether or not it would grant the armed merchant vessels the protection of the resolution in case of war.

I have described these events of the year 1922 a little more in detail because the Powers who took part in them were the same as those who participated in the London Naval Conference of 1930. The London Conference was the continuation of the Washington Conference, and the subjects that had been discussed and included in the records at the first conference were of great importance for the second conference. Experts, too, and by no means only German, but above all American and French experts, based their examinations on the close connection of both conferences, and it was precisely for that reason that they declared the result achieved in the question of submarines to be ambiguous and unsatisfactory.

Here I merely wish to point to Wilson's summarising report on the London Naval Treaty.

It is there in particular where, besides the ambiguity of the concept "merchant vessel," the uncertainty connected with the words "active resistance" is pointed out, and it is with these very words that an exception from the protection of the

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merchantman is connected, an exception which likewise is not contained in the actual text of the London Agreement, but which nevertheless is generally recognized. I am referring to merchantmen in an enemy convoy. If the London Agreement is interpreted literally, one would have to be of the opinion that merchantmen in an enemy convoy must also not be attacked without warning, but that an attacking battleship would simply have to put the escort vessels out of action first and then stop and search the merchantmen. However, this demand, impossible from a military point of view, evidently is not made by the prosecution either. In the report of the British Foreign Office, which has been mentioned several times, it says:
"Ships sailing in enemy convoys are usually deemed to be guilty of forcible resistance and therefore liable to be sunk forthwith."
Here even the prosecution gives an interpretation of the word "active resistance," an interpretation which results in no way from the treaty itself but is simply a consequence of military necessity and is thus dictated by common sense. And this very same common sense demands also that the armed merchant ship be held just as guilty of forcible resistance as the convoyed ship. Let us take an extreme instance in order to make the matter quite clear. An unarmed merchant ship of 20,000 tons and with a speed of 20 knots which is convoyed by a trawler with, let is say, two guns and a speed of 15 knots, may be sunk without warning, because it 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 two guns, or even four or six of them, are placed on its decks, thus enabling it to use its full speed, should it not in this case be found just as guilty of offering active resistance as before? Such a deduction really seems to me to be sound common sense. However, 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 wait until the merchant ship fires its first broadside at the submarine. Only then would the submarine have the right to use its own weapons. Since, however, a single artillery hit is nearly always fatal for 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 any 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 the armed merchant vessels in naval warfare to be an unsolved question. In this instance, too, I should like to refer to only one scientific source 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, which gives arguments furnishing an excellent idea of the most recent trend of opinion: Article 54 of this draft corresponds literally to the text of the London Agreement of 1936 with one noticeable 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."

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This opinion is first of all based on 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 armour-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 defencelessness 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 defenceless and harmless merchant vessel. In regard to this the American expert on International Law, Hyde, stated in 1922, i.e., after the Washington Conference and the afore-mentioned Root Resolution on U-Boat warfare had been passed:
"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 to form the opinion that armed merchant ships are not protected from attacks without warning.

Here the old discrimination between defensive and offensive armaments is also rejected as inapplicable. It is well known that the American Secretary of State, Lansing, in his note to the Allies on 18th January, 1916, took the point of view that any kind of armament aboard a merchant vessel will make its fighting strength superior to that of a submarine and that such armament is therefore of an offensive nature.

In the later course of the World War, the USA 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, e.g., principally on steam-propelled fishing boats. Furthermore, the anti-aircraft 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 on the basis of the way the weapons are placed.

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," and chiefly in the "Defence of Merchant Shipping Handbook." They were issued in 1938. They, therefore, do not deal with counter-measures against illicit German actions, but, on the contrary, they 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) The report of submarines by radio telegraphy.
(2) The use of naval artillery.
(3) The use of depth charges.

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These instructions were supplemented on 1st 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, make such differentiation; that is, cannons are to be used only for the defence as long as the enemy on his part adheres to the regulations of International Law, and for the offensive only when he does not. The orders covering the practical execution of these directives reveal, however; that there is no difference at all between defensive and offensive use. Admiral Donitz 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 shoot on every occasion at every submarine which came within range of their guns. 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, the British propaganda may have had great importance, in connection with the unintentional sinking of the Athenia on 3rd September, 1939, when it disseminated through Reuter on 9th September the assertion that unrestricted submarine warfare was in progress and upheld this assertion, notwithstanding the fact that the conduct of the German submarines during the first weeks of the war refuted this accusation. Together with the announcement of the British Admiralty's ram order of 1st October, 1939, the Merchant Marine was again informed officially that the German U-Boats had ceased to respect the rules of naval warfare and merchant vessels were to adjust their conduct accordingly. It seems to me of no importance that a corresponding written supplement to the Admiralty orders was issued only in 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 were directed to use their guns offensively against the German U-Boats in accordance with the Admiralty's instructions contained in its handbook, beginning 9th September or 1st October, 1939, at the latest. The German order to attack armed enemy merchant vessels without warning was issued only on 4th October. Thus it was justified in any case, even if one wanted to acknowledge a difference in treatment for vessels with defensive and offensive armament.

The guns on the merchant vessels and the orders about their use were, however, only a part of a comprehensive system of the use of merchant vessels for combatant purposes. 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 especially suited for chasing submarines, received depth-charge projectors, that is, armaments which make it possible to find the submerged submarines and which thus may be judged as typical weapons for the offensive.

However, what was of more general importance and also of greater danger to is the submarines was the order to report every enemy ship on sight, giving its type and location. This report was supposed, so said the order, to take advantage of an opportunity, which might never recur, to destroy the enemy by the British naval and air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service to directly 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 behaviour 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 the hostilities during the entire course of its voyage, and, based on the aforementioned report of 1930 of the Committee of jurists, has no right to be considered as a merchant vessel. Any other conception but this would not do justice to the immediate danger which a wireless report means to the

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reported vessel and which subjects it, often within a few minutes, to attacks 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. They were part of the military communications network of the British naval and air forces, and their arming with cannon 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 which is thus destined and utilised for battle should be considered as being 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 17th October, 1939, to attack all enemy merchant ships without warning.

THE PRESIDENT: Dr. Kranzbuehler, 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 16th July, 1946, at 1000 hours.)

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