NOTES
[12] Vanselow, Völkerrecht, Berlin, 1931, Figure 226 i.
[13] 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.
[14] Théories stratégiques IV, Page 323: “Même en zone de guerre n’aura-t-on pas contre sol le damné article 22 du traité de Londres?”
[15] 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.
[16] Sperrgebiete im Seekrieg, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Volume VIII, 1938, Page 671.
[17] French Yellow Book, La Conférence de Washington, Page 88.
[18] Report of 8 October 1940, Page 3: “One thing is certain, namely, apart from vessels in declared war zones, destruction of a merchant vessel is envisaged if even only after capture.”
[19] Commander Russel Grenfell, R.N., The Art of the Admiral, 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.”
[20] De jure pacis ac belli, Book III, Chapter I, Paragraph 6, citation Augustin: “One may conceal the truth wisely,” and Cicero: “Dissimulation is absolutely necessary and unavoidable, especially for those to whom the care of the state is entrusted.”
[21] Admiral King, Report of the American High Command.
[22] John Chamberlain, “The man who pushed Pearl Harbor,” Life, of 1 April 1946.
[23] Manual for Courts Martial U.S. Army, 1928, Page 10.
[24] In this connection I mention the extensive literature dealing with the right of self-preservation in cases of urgent necessity. The surprise attack on the Danish fleet, 1807, as well as the hunger blockade against Germany are based on that.
[25] Freiherr von Freytagh-Loringhoven, Völkerrechtliche Neubildungen im Kriege, Hamburg 1941, Page 5.
[26] Quoted from “Neue Auslese,” 1946, Number 1, Page 16.
[27] Not always acknowledged by English authors. Compare for instance A. C. Bell, A History of the Blockade of Germany, et cetera, London, 1937, Page 213: “The assertion that civilians and the Armed Forces have been treated only since 1914 as a uniform belligerent body is one of the most ridiculous ever made.”
[28] Grenfell, The Art of the Admiral, London, 1937, Page 45: “By the early part of 1918, the civil population of Germany was in a state of semistarvation, and it has been calculated that, as a result of the blockade, over 700,000 Germans died of malnutrition.”
[29] See also protest of the Soviet Government to the British Ambassador of 25 October 1939, printed as Number 44 in “Urkunden zum Seekriegsrecht,” Volume I, edited by the High Command of the Navy.
[30] See for instance Wheaton’s International Law, 5th Edition, Page 727, Liddell Hart, “The Revolution in Naval Warfare,” Observer of 14 April 1946.
[31] Oppenheim, Die Stellung des Kauffahrteischiffes im Seekrieg, Zeitschrift für Völkerrecht, 1914, Page 165.
[32] Concerning the execution of these orders in the first World War, Vidaud, in “Les navires de commerce armés pour leur défense,” Paris, 1936, Pages 63-64 says as follows: “Les équipages eux-mêmes sont militarisés et soumis à la discipline militaire, ainsi que le capitaine Alfred Sheldon, appartenant à la réserve de la Marine Royale, a été condamné, le 8 Septembre 1915 par le conseil de guerre de Devonport, pour n’avoir pas attaqué un sousmarin allemand.”
[33] Compare for instance “Submarines in the Atomic Era” in the New York Herald Tribune, European Edition, of 27 April 1946, Page 2.
[34] A. C. Bell, Historical Section, Committee of Imperial Defense, A History of the Blockade of Germany and of the Countries Associated with Her in the Great War 1914-1918—The introduction contains the remark: “This history is confidential and for official use only.” (Quoted from the German edition by Böhmert, Die englische Hunger-blockade im Weltkrieg, Essen, 1943).
[35] Hugo Grotius, De jure pacis ac belli, Book II, Chapter XXI.
[36] Hugo Grotius, De jure pacis ac belli, Book II, Chapter XXVI. Paragraph 4, “He can believe that in a matter of doubt he must obey his superior.”
[37] See Wheaton’s International Law, 5th Edition, Pages 543-5.
[38] Claud Mullins, The Leipzig Trials, London, 1921.
[39] See Document Book 1, Documents Numbers Raeder-3 and 4, Page 9 et sequentes.
[40] Especially the following documents are concerned:
C-140, USA-51 of 25 October 1933; C-159, USA-54 of 2 March 1936; C-194, USA-55 of 6 March 1936; C-175, USA-69 of 24 June 1937; 388-PS, USA-26 of 20 May 1938; C-136, USA-104 of 21 October 1938.
[41] Record of 4 December 1945, Volume III, Page 95.
[42] Record of 4 December 1945, Volume III, Page 110.
[43] Reich Defense Law of 4 September 1938.
[44] For instance under Balfour and Churchill.
[45] Document Book 1, Document Number Raeder-4, Page 12.
[46] Document Book 6, Document Number Raeder-121, Page 524.
[47] Refer also to Ronneberger Affidavit, Document Book 6, Document Number Raeder-126, Page 543 et sequentes which point to the same subjects, especially to the strong Christian belief of Raeder and to the pronounced opposition to Christianity and Church by Bormann.
[48] Second Lohmann Affidavit, Document Number Raeder-8, Document Book 1, Page 41.
[49] Refer to Documents 386-PS, USA-25; L-79, USA-27; 798-PS, USA-29; 1014-PS, USA-30; 769-PS, USA-23.
[50] Document Book 2, Document Number Raeder-27, Page 144 et sequentes.
[51] See Hossbach Document.
[52] Record of 19 March 1946, Volume IX, Page 463.
[53] Record of 19 March 1946, Volume IX, page 481.
[54] Record of 16 May 1946, Volume XIV, Page 35.
[55] Record of 22 May 1946, Volume XIV, Page 314.
[56] Record of 22 May 1946, Volume XIV, Page 306.
[57] Record of 22 May 1946, Volume XIV, Page 306.
Affidavit Generaladmiral Böhm, Document Number Raeder-129.
Affidavit Generaladmiral Albrecht, Document Number Raeder-128.
[58] Record of 22 May 1946, Volume XIV, Page 306.
[59] See Documents Numbers 798-PS, USA-29; 1014-PS, USA-30, Document Book 2. Page 144, Document Number Raeder-77.
[60] Record of 26 November 1945, Volume II, Page 292.
[61] Raeder Document Book 2, Page 144.
[62] See Document 789-PS, USA-93.
[63] Document Book 2, Pages 116-117, Document Number Raeder-19.
DR. SIEMERS: Yesterday I dealt with the events before the outbreak of war. Now I shall turn to the events which occurred during the war.
I think I have shown that the Navy had an extremely insignificant part in all events prior to the war, and that the transactions in which the Navy was authoritatively involved were carried out on a peace basis, namely, on the basis of the naval agreements with England. When the war nevertheless ultimately broke out, involving England, too, on 3 September 1939, a regrettable incident occurred on the very first day, through the sinking of the Athenia, from which the Prosecution endeavors by the use of exaggerated terms to construe a grave moral charge against Raeder, not so much indeed on the basis of its actual military aspect, that is, the sinking, which my colleague Dr. Kranzbühler has already discussed, as on account of an article published in the Völkischer Beobachter of 23 October 1939 entitled “Churchill Sinks the Athenia.” Were the facts as brought forward by the Prosecution correct, the moral accusations against Raeder and the Navy would be justified, even though, of course, an untruthful newspaper article is no crime. Consequently the accusation brought by the Prosecution is made for the sole purpose of vilifying Raeder’s personality in contrast to the lifelong esteem which Raeder has enjoyed in the whole world, in fact especially abroad.
I think the evidence has sufficiently revealed that the statement of facts presented by the Prosecution is not correct. It is quite plausible that at first sight the Prosecution should have believed that the odious article in the Völkischer Beobachter could not have appeared without the knowledge of the naval command. The Prosecution believed this because, in view of their conspiracy theory, they are inclined to assume in every case that there was constant discussion and close co-operation among the various departments. The course of the Trial has shown that this assumption is far from correct. The contrast between the various departments, and especially between the Navy and the Propaganda Ministry, or Raeder and Goebbels, was far greater than the contrast between departments in a democratic state. In addition, the testimonies of the witnesses Raeder, Schulte-Mönting, Weizsäcker, and Fritzsche, together with the documents, establish the following facts absolutely clearly:
(1) In early September 1939 Raeder himself firmly believed that the sinking was not to be imputed to a German U-boat, because it was revealed by the reports that the nearest German U-boat was at least 75 nautical miles away from the spot of the sinking.
(2) Accordingly Raeder, as stated in Document D-912, published a bona fide denial and gave statements to this effect to the American Naval Attaché and to the German State Secretary, Baron Weizsäcker.
(3) Raeder did not realize the mistake until after the return of U-30 on 27 September 1939.
(4) Hitler insisted, as evidenced by witnesses Raeder and Schulte-Mönting, that no rectification of the facts should be made to any other German or foreign department, that is to say, that the sinking should not be acknowledged as caused by a German U-boat. He apparently let himself be guided by political considerations and wished to avoid complications with the U.S.A. over an incident which could not be remedied, however regrettable it was. Hitler’s order was so strict that the few officers who were informed were put under oath to keep it secret.
(5) Fritzsche disclosed, that after the first investigation by the Navy in early September 1939, he made no further investigation and that the Völkischer Beobachter article appeared as the result of an agreement between Hitler and Goebbels, without previous notice to Raeder. On this point the testimonies of Raeder and Schulte-Mönting coincide. It is consequently clear that Raeder—contrary to the claim of the Prosecution—was not the author of the article and, moreover, knew nothing about the article before its appearance. I regret the fact that in spite of this clarification the Prosecution are apparently intent upon persisting in their claim by the submission, on 3 July 1946, of a new document, D-912. This newly-submitted document only contains radio broadcasts by the propaganda Ministry, which are of the same nature as the Völkischer Beobachter article. These radio broadcasts were a propaganda instrument of Goebbels and cannot, any more than the article, be brought up as a charge against Raeder, who in fact was at the time informed only of the article, not of the radio broadcasts. Even the fact that Raeder, after being informed of the article, did not attempt to obtain a rectification, cannot be made a moral charge against him, since he was bound by Hitler’s order and had no idea at the time that Hitler himself had had a hand in the article, which Weizsäcker aptly described as perverse fantasy.
In this connection I would remind the Tribunal that it is a well-known fact that precisely at the beginning of the war inaccurate reports also appeared in the English press about alleged German atrocities, which, even after their clarification, were not rectified, as for instance, the false report about the murder of 10,000 Czechs in Prague by German elements in September 1939, although the matter had been cleared up by a commission of neutral journalists.
The Prosecution professes to possess overwhelming material against all the defendants. If this presumption were correct with reference to Raeder, the Prosecution would scarcely have felt the need of bringing forward this Athenia case, of all things, in such ponderous and injurious terms for the sole purpose of discrediting the former Commander-in-Chief of the Navy.
Concerning Greece, the Prosecution accuses Raeder of violation of neutrality and breach of international law on two counts, namely:
(1) On the basis of Document C-12, according to which Hitler decided, basing on a report by Raeder on 30 December 1939, that:
“Greek merchant ships in the zone around England which the U.S.A. declared prohibited will be treated like enemy ships.”
(2) According to Document C-176, on the occasion of the delivery of a report to Hitler on 18 March 1941, Raeder asked for confirmation that “all of Greece was to be occupied, even in case of peaceful settlement.”
In the course of the Trial both accusations have turned out to be untenable; in both cases there is no action which violated international law.
With reference to the first accusation it should be pointed out that Raeder and the German Naval Command learned in October or November 1939 that quite a number of Greek merchant ships had been put at the disposal of England, either at the request or with the approval of the Greek Government (Documents Number Raeder-53, 54). This fact cannot be reconciled with strict neutrality, and according to the principles of international law that gave Germany the right to take an equivalent countermeasure. This justified countermeasure consisted in treating Greek ships heading for England as enemy ships from the moment they entered the zone around England which had been declared prohibited by the United States.
With reference to the second accusation it must be noted that Germany, especially the High Command of the Navy, had received reports that certain Greek military and political circles had maintained very close connections with the Allied General Staff ever since 1939. As time went by more and more reports came in. What the Allies were planning in the Balkans is known; the intentions were to erect a Balkan front against Germany. For this purpose local conditions in Greece, as well as in Romania, were examined by Allied officers on behalf of the Allied General Staff in order to establish airplane bases there. Furthermore, preparations were made to land in Greece. As proof I have presented, as Exhibit Number Raeder-59, the minutes of the session of the French War Committee of 26 April 1940, which shows that the War Committee was at that time already examining the question of possible operations in the Caucasus area and in the Balkans and which further reveals the activity of General Jauneaud in Greece for the purpose of continuing investigations and preparations and shows how he endeavored to camouflage his trip by making it in civilian clothing (Document Number Raeder-63).
This attitude of Greece, and especially her falling in with Allied plans, represents a violation of neutrality on the part of Greece; for Greece did not appear as England’s ally but formally continued to maintain her neutrality. Therefore, Greece could no longer expect that Germany would fully respect Greek neutrality. Germany nevertheless did do so for a long time. The occupation of Greece took place in April 1941 only after British troops had already landed in southern Greece on 3 March 1941.
The fact that Greece agreed to the British landing is, according to generally recognized rules, without significance in international legal relations and with regard to the international legal decision between Germany and England and between Germany and Greece; it has importance only in the legal relations between England and Greece.
The British Prosecution tried to justify the occupation of Greece by pointing to the fact that Greek neutrality was menaced by Germany, especially by the occupation of Bulgaria on 1 March 1941. In this connection the Prosecution is overlooking the fact that not only did the occupation of Greece by British forces start considerably earlier than the German planning, but also the planning of the Allies. But be that as it may, in any case, no accusation whatever can be made against Raeder, because the date of the document submitted by the Prosecution is 18 March 1941, which means that it is 14 days later than the landing of the British in southern Greece. At that time Greece could certainly no longer demand that her alleged neutrality be respected. It is also an unjustified charge when the Prosecution points out that Raeder asks for confirmation that all of Greece will be occupied. This request by Raeder cannot be made responsible for the fact that all of Greece was occupied, for Hitler had already provided in his Directive Number 20 of 13 December 1940 that the entire Greek mainland was to be occupied, in order to frustrate British intentions of creating a dangerous basis for air operations under the protection of a Balkan front, especially for the Romanian oil district. In addition to that, the inquiry of Raeder on 18 March 1941 was justified on strategic grounds, because Greece offered many landing possibilities for the British and the only possible defense was for Greece to be firmly in the hands of Germany, as the witnesses Raeder and Schulte-Mönting have explained.
This strategic conception of Raeder had nothing to do with plans of conquest or thirst for glory, as the Prosecution thinks, for the Navy won no glory whatsoever in Greece, since the occupation was a land operation. The occupation of an originally neutral country is simply the regrettable consequence of such a large-scale war; it cannot be charged to one belligerent if both belligerents had plans concerning the same state, and carried out these plans.
I should like now to go on to the subject of Norway. On 9 April 1940 troops of all three branches of the German Armed Forces occupied Norway and Denmark. From this and the preceding plans, the Prosecution have brought the gravest accusation against Grossadmiral Raeder, together with the collective charge of participation in a conspiracy.
The British prosecutor pointed out that it was Raeder who first suggested the occupation of Norway to Hitler, and believes that Raeder did so out of a spirit of conquest and vainglory. I shall demonstrate that this argumentation is incorrect. One thing is true, that is that in this single instance Raeder took the initiative of first approaching Hitler on the subject of Norway, namely on 10 October 1939. However, I shall show that in fact in this connection he acted not as a politician but exclusively as a soldier. Raeder sensed purely strategic dangers and pointed out these strategic dangers to Hitler, because he assumed that the Allies were contemplating the establishment of a new front in Scandinavia and in Norway, in particular, and realized that an occupation of Norway by Britain might have militarily disastrous consequences for Germany. I shall show that Germany committed no violation of international law by the occupation of Norway. Before I state the legal foundation and connect the facts established by the appraisal of evidence with the principles of international law, I should like first to state an important fact:
As Raeder’s examination shows and as disclosed by Schulte-Mönting’s interrogations, he very reluctantly advocated the Norwegian campaign as Commander-in-Chief of the Navy. Raeder had the natural feeling born of justice that a neutral state could not be drawn into the existing war without an absolutely imperative emergency. During the period between October 1939 and spring 1940, Raeder always upheld the theory that by far the best solution would be for Norway and all Scandinavia to remain absolutely neutral.
Raeder and Schulte-Mönting were in agreement on this point during their interrogations; and it is, moreover, proved by documents. For this, I refer to Exhibit Number Raeder-69 where the conviction of Raeder is expressed that the most favorable solution would undoubtedly be the preservation of the strictest neutrality by Norway; this is entered in the War Diary on 13 January 1940. Raeder clearly saw that an occupation of Norway by Germany, for reasons of international law or strategy, could only be conceivable if Norway could not or would not maintain absolute neutrality.
The Prosecution has referred to the treaties between Germany and Norway, in particular to Document TC-31, by which the Reich Government, on 2 September 1939, expressly assures Norway of her inviolability and integrity. In this memorandum, however, the following legitimate remark is added:
“As the Reich Cabinet makes this declaration, it naturally also expects that Norway in turn will observe irreproachable neutrality toward the Reich and that it will not tolerate breaches of Norwegian neutrality, should attempts along that line be made by third parties.”
If, despite this fundamental attitude, Germany decided to occupy Norway, this was done because the plans of the Allies made imminent the danger of an occupation of Norwegian bases by them. In his opening speech Sir Hartley Shawcross declared that Germany’s breach of neutrality and her war of aggression against Norway remained criminal in the sense of the Indictment even if Allied plans for the occupation had been correct, and he added that in reality such plans were not true. I believe that the argument advanced here by Sir Hartley Shawcross is contrary to accepted international law. If Allied plans for the occupation of Norwegian bases existed and there was a risk that Norway neither would nor could maintain strict neutrality, then accepted standards of international law did sanction Germany’s Norwegian campaign.
I would first like to bring up the juridical viewpoints based on prevailing international law in order to create a foundation for my own statements, and thereby at the same time to set forth those legal viewpoints which contradict the Prosecution’s interpretation. In order to save time in this legal exposition and make the subject matter clearer I have submitted as Exhibit Number Raeder-66 an opinion on international law with regard to the Norway campaign by Dr. Hermann Mosler, professor of international law at the University of Bonn. The High Tribunal will remember that I was given permission to make use of this opinion for purposes of argumentation, and I would therefore refer at this point to this detailed scientific compilation and findings. For the purpose of final plea I shall confine myself to a summary of the essential concepts of the opinion.
Articles 1 and 2 of the Hague Convention on Rights and Obligations of Neutrals in the event of warfare at sea stipulate that the parties at war are bound to respect the rights of sovereignty of neutral powers in the territory and coastal waters of the neutral power, and all hostile acts of warships of the belligerent parties within the coastal waters of a neutral power are strictly banned as violations of neutrality. Contrary to these stipulations Great Britain violated Norway’s neutrality through the laying of mines in Norwegian coastal waters for the purpose of obstructing the legitimate passage of German warships and merchantmen, especially in order to cut off shipments of iron ore from Narvik to Germany. In the letter from the British Foreign Office which I received in reply to my petition for authorization to submit files of the British Admiralty, confirmation as per Exhibit Number Raeder-130 was received to the effect that His Majesty’s forces laid mine fields in Norwegian waters, and in addition it was stated that this was a well-known fact (Documents Number Raeder-83, 84, 90).
The fact is presumably uncontested that thereupon Germany was justified in restoring the equilibrium between the belligerent parties, in other words by setting her Armed Forces to wrest from the enemy the benefit he was deriving from a violation of neutrality. Reaction against such a violation of neutrality is directed primarily against the enemy, not against the neutral. The legal relationship to neutrality ...
PRESIDENT [Interposing]: Dr. Siemers, the Tribunal would like to know what your contention is on this subject. Do you contend that any breach of neutrality of a warring state entitles one of the warring nations to enter that neutral state?
DR. SIEMERS: Mr. President, in this general way one certainly could not say that. It is a principle of international law that a violation of international law committed by one state only entitles the other warring nation to a countermeasure in proportion to the breach of neutrality committed. Certainly an occupation of Norway on the part of Germany would not be justified because Britain mined the coastal waters. The fact does not justify an occupation.
PRESIDENT: Would it be your contention that it made any difference on the rights of Germany if Germany were to be held to be an aggressor in the original war?
I will repeat it. According to your contention, would it make any difference that Germany was held, if it were held, to be the aggressor in the original war out of which the occupation of the neutral country occurred?
DR. SIEMERS: Mr. President, I beg to apologize, but I am afraid I cannot quite understand the sense as it comes through in translation.
PRESIDENT: I will say it again more slowly. According to your contention, would it make any difference if the Tribunal were to think that Germany had been the aggressor in the war which led to the occupation of the neutral state?
DR. SIEMERS: My apologies, Mr. President. Now, if I understood that correctly, you wish me to answer the question whether the fact that previously a war had been begun by Germany against Poland would influence juridical attitude toward the question of Norway.
PRESIDENT: Assuming, I only say assuming that the war begun by Germany against Poland were to be held to be an aggressive war.
DR. SIEMERS: Mr. President, I believe that I must answer in the negative, because the individual facts under international law must be dealt with separately. The fact that the Tribunal may possibly assume that an aggressive war was conducted against Poland cannot, from the point of view of international law, have any effect upon subsequent years.
That, incidentally, is the point of view which, I believe, was adopted by the Prosecution, for Sir Hartley Shawcross also, dealt with the question of Greece and the question of landings entirely under the aspect of Greek events and did not contend that Britain could occupy Greece because Germany had occupied Poland. He said, just as I did, that from the legal standpoint of international law Britain could occupy Greece because Greece was threatened by a German occupation. That is what I am saying from the point of view of international law with reference to Norway; as my further remarks will show, I am not trying to draw any other parallels.
PRESIDENT: Yes. There is one other question which I should like to ask you. Is it your contention that Germany was entitled under international law to use the territorial waters of Norway, either for her warships or for the transport of ore, or for the transport of prisoners of war?
DR. SIEMERS: In my opinion, from the standpoint of international law, the situation is that Germany was entitled to use the coastal waters, observing at the same time the various international rules, such as for instance, only brief stays in ports and similar rulings like the obligation to submit to investigation by neutrals in the case of the Altmark. But basically, carrying on shipping operations from Narvik was justified according to international law as far as I know.
PRESIDENT: Continue.
DR. SIEMERS: Mr. President, with reference to the last point, may I add one thing? Should the view be adopted that Germany was not allowed to use these coastal waters, then the mining of these coastal waters would have been a justified breach of neutrality on Britain’s part, so that, as far as I am concerned, the mining operation as grounds for this would have to be left out of my plea, though not the other facts I am citing. Mining the waters is in equivalent proportion to the use of the coastal waters. I myself consider that the mining operation was not permissible, while passage through coastal waters was; but this does not affect the entire subject of the occupation of Norway. I hope I shall be understood as not meaning that Germany was justified in occupying Norway because Britain had mined the coastal waters.
PRESIDENT: But you are saying, are you, that Germany was entitled to use the coastal waters, first of all, for the transport of ore; secondly, for her warships?
DR. SIEMERS: Yes.
PRESIDENT: And thirdly, for the transport of prisoners of war?
DR. SIEMERS: Yes. It is my opinion, Mr. President, that as to ore shipments there is no prohibitive clause in international law, so that this shipping was permissible.
With reference to prisoners of war, may I point out that only one case arose and that is the case of the Altmark. If Germany was not deemed authorized to use coastal waters for the transport of prisoners of war, then that could at most lead to Britain’s adopting an equivalent single countermeasure; but she would not be justified in mining the entire coastal waters. The mining of the entire coast, from the point of view of international law, is only justified if you adopt the point of view that Germany’s merchant shipping was prohibited from entering those coastal waters by international law. But that, in my opinion, is not the situation.
PRESIDENT: You may continue.
DR. SIEMERS: Reaction against such violation of neutrality is primarily directed against the adversary, not against the neutral party. Legal relationship deriving from neutrality exists not only between the neutral party and the two belligerent parties, but the neutrality of the state in question is at the same time a factor in direct relations existing between the belligerent parties. If the relationship of neutrality between one of the belligerent parties and the neutral power suffers disturbance, the neutral power can in no way file complaint if the other belligerent power takes appropriate action; at the same time it is entirely immaterial whether the neutral state is unable or unwilling to protect its neutrality (Document Number Raeder-66).
The legal title under which the belligerent power thus placed at a disadvantage can proceed to take countermeasures is the “right of self-defense” (das Recht der Selbsterhaltung; le droit de défense personelle). As brought out in detail by this opinion, this right of self-defense is generally recognized by international law. It suffices to point out here that this basic law is not affected by the Kellogg Pact, which has so often been mentioned in this Court. In this connection I ask permission to offer the following brief quotation from the circular memorandum of the U.S. Secretary of State, Kellogg, dated 23 June 1938:
“There is nothing in the American draft of an antiwar treaty which restricts or prejudices the right of self-defense in any manner. That right is inherent in every sovereign state and is implied in every treaty.”
Justice Jackson will permit me to mention that he himself, in his opening speech of 21 November 1945, referred to the “right of legitimate self-defense.”
It is interesting that in his address before Parliament on 8 February 1940, the Swedish Foreign Minister, Guenther, recognized this concept, although he represented the interests of a state whose neutrality was endangered at the time, and in addition was speaking before Germany proceeded to retaliatory measures in Norway (Document Number Raeder-66). In that address Guenther expressed his opinion with regard to the British declaration that Sweden’s neutrality would be respected only as long as it was respected by Britain’s enemies. Guenther recognized the fact that Sweden, in her relationship to England, would lose her neutrality should Germany violate Sweden’s neutrality and should Sweden be neither willing nor able to prevent such violation of her neutrality by Germany. Consequently, Guenther said, Great Britain would no longer be required to treat Sweden as a neutral country. It is obvious that the conclusions drawn by Guenther in the event of a breach of Sweden’s neutrality by Germany must also apply to the three-cornered legal relationship between Great Britain, Germany, and Norway. What was involved, however—and this I shall set forth in my presentation of evidence—was not Great Britain’s mine-laying activity in Norwegian coastal waters but a much more far-reaching Anglo-French scheme aiming at the occupation of Norwegian bases and of a portion of the Norwegian home territory. The mine-laying activity enters into the picture merely as a part of the total plan.
According to Mosler’s opinion and in the light of the above remarks, it is absolutely clear that Germany was justified in occupying Norway had the Allies carried part of their plan into effect by landing at a Norwegian base before German troops made their appearance. This, however, was not the case. Rather, as I will show, was the situation such that Germany anticipated an Anglo-French landing; in other words, she decided on countermeasures in anticipation of the imminent danger which threatened.
Another legal question arises therefrom: Assuming the same conditions, are countermeasures by a belligerent permitted only after the opposing belligerent has proceeded to violate neutrality, or is a reaction permitted beforehand in view of the imminently threatening violation of neutrality, in order to head off the enemy’s attack which can be expected at any moment?
According to the well-founded opinion of Dr. Mosler preventive countermeasures are permissible; and an impending violation of neutrality, which can be expected with certainty, is considered equal to a completed violation of neutrality.
The well-known English specialist on international law, Westlake, states with regard to the question of measures: