One Hundred and Eightieth Day:
Wednesday, 17th July, 1946 [Page 56]
It should be an uncontested fact that thereupon Germany was
justified in re-establishing the disturbed equilibrium
between the belligerent parties, in other words by
committing its armed forces to wrest from the enemy the
benefit he was deriving from violation of neutrality.
Reaction against such a violation of neutrality is directed
primarily against the enemy and not against the neutral. The
legal relationship toward the neutrality -
THE PRESIDENT: 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: I am sorry, Mr. President; I did not understand
it all, I am afraid.
THE PRESIDENT: Well, there seems to be a certain amount of
electrical disturbance. What the Tribunal would like to know
is whether it is your contention that any breach of
neutrality by one of the warring States entitles the other
warring State to enter and invade the 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 counter-measure which is equal to the breach of
neutrality. 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.
THE 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 apologise, but I am
afraid I cannot quite understand the sense as it comes
through in translation.
THE 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: I cannot understand the meaning of the
question.
My apologies, Mr. President. Now, if I understood it
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.
[Page 57]
DR. SIEMERS: Mr. President, I believe that I must answer in
the negative because the individual acts 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 from the point of view of the Greek
events, and he did not say 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. Other parallels I am not trying
to draw.
THE 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 territorial waters, observing at the
same time the various international rules, as, for instance,
only brief stays in ports and similar rulings, the duty of
submitting to investigation by neutrals, as in the case of
the Altmark. But basically, carrying on shipping operations
out of Narvik was justified according to International Law
as far as I know.
THE PRESIDENT: Continue.
DR. SIEMERS: Mr. President, with reference to the last
point, may I add one thing? If one were of the opinion that
Germany was not allowed to use these territorial waters,
then the mining of them would have been a justified breach
of neutrality on Britain's part, so that, as far as I am
concerned, the mining operations as grounds for this would
have to be left out of my plea but not the other facts which
I am referring to. Mining of territorial waters is
equivalent to the use of the coastal waters. I myself
consider that the mining operation was not permissible and
that travelling through coastal waters was permissible, but
this does not lead to any final conclusions with reference
to the entire subject of the occupation of Norway. I do hope
that I shall be understood correctly. I am not saying that
Germany was justified in occupying Norway because Britain
had mined the coastal waters.
THE 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.
THE PRESIDENT: And thirdly, for the transport of prisoners
of war?
DR. SIEMERS: Yes. It is my opinion, Mr. President, that for
ore transport there is no prohibitive clause in
International Law, so that this shipping was permissible.
With reference to prisoners of war, may I permit myself to
point out that there is only one case, and that is the case
of the Altmark. If Germany was not allowed to use coastal
waters for transport of prisoners of war, then that could at
most bring about the consequence that Britain would adopt an
equivalent individual counter-measure but it 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
[Page 58]
THE PRESIDENT: You may continue.
DR. SIEMERS: Reaction against such violation of neutrality
is primarily directed against the adversary and not against
the neutral party. Legal relationship arising from
neutrality exists not only between the neutral party and the
two belligerent parties; but the neutrality of the neutral
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, in connection
with which, it is entirely immaterial whether the neutral
State is unable or unwilling to protect its neutrality.
The legal title under which the prejudiced belligerent power
can proceed to take counter-measures is "the right of self-
preservation" ("das Recht der Selbsterhaltung"), ("le droit
de defense personelle"). As brought out in detail by this
opinion, this right of self-preservation 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 circularised memorandum of the American
Secretary of State Kellogg dated 23rd June, 1928:
"That right is inherent in every sovereign State and is
implicit in every treaty."
Justice Jackson will permit me to mention that he himself,
in his opening speech of 21st November, 1945, referred to
the "right of legitimate self-defence".
It is interesting that in his address before the Parliament
on 8th February, 1940, the Swedish Foreign Minister Gunther
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. In that address Gunther
expressed his opinion with regard to the English declaration
that Sweden's neutrality would be respected only as long as
it would be respected by England's enemies. Gunther
recognized the fact that Sweden, in its relationship to
England, would lose its neutrality should Germany violate
Sweden's neutrality and should Sweden not be willing or able
to prevent such violation of neutrality by Germany.
Consequently, so said Gunther, Great Britain would no longer
be required to treat Sweden as a neutral country It is clear
that the conclusions drawn by Gunther in the event of a
breach of Sweden's neutrality by Germany must also apply to
the trilateral .legal relationship: Great Britain-Germany-
Norway. What was involved, however, and this I shall set
forth in my presentation of evidence, was not simply Great
Britain's mine-laying 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 territory. The mine-laying 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, did not
occur. Rather, as I will show the situation was that
Germany, anticipating an Anglo-French landing, decided on
counter-measures on account of the imminent danger which
threatened.
[Page 59]
According to the well-founded opinion of Dr. Mosler, the
preventive countermeasure is permissible, and the directly
impending violation of neutrality which can be expected with
certainty is to be considered equal to a completed violation
of neutrality.
The well-known Anglo-Saxon specialist on International Law,
Westlake, states with regard to the question of the
preventive measure:
I also ask it to be noted that the United States agreed with
this legal view, as is proven by the well-known message of
the President of the United States to Congress of 7th July,
1941, and the subsequent occupation of Iceland by armed
forces of the American Navy.
In accordance with these basic principles of law, the facts
at hand must be examined. I have tried to clarify the facts
in the presentation of evidence, and I would like to
summarize the major factors which actually showed a closely
impending violation of neutrality on the part of the Allies
through the partial occupation of Norway, and thereby
justified the German campaign in Norway.
At the end of September and in early October, 1939, Grand
Admiral Raeder, as the evidence has shown, received various
items of information through the periodic reports of Admiral
Canaris as director of intelligence and through Admiral
Carls, which revealed the danger that the Allies, in
accordance with their plans to encircle Germany, would
occupy bases in Norway in order to halt in particular the
imports of ore from Scandinavia.
English air crews camouflaged in civilian clothing had been
seen in Oslo, and survey work by Allied officers on
Norwegian bridges, viaducts, and tunnels up
[Page 60]
The blockade of the North Sea and Baltic Sea would have had
strategically disastrous consequences.
As the information did not yet offer a final overall
picture, Raeder did not suggest immediate occupation, but
only pointed out the dangers in order to wait for further
developments for the time being. Hitler therefore also did
not make a final decision during this discussion of 10th
October, 1939, but agreed to wait. Similar information was
received during the months of October and November and also
from the Naval Attache, Lieutenant-Commander Schreiber, who
had in the meantime been sent to Oslo, to whose affidavit I
would like to refer. The Norwegian shipping association had
made tanker tonnage of about one million tons available to
England with the consent of the Norwegian Government.
In the winter of 1939-40, information took more definite
shape concerning espionage missions of the English and
French Secret Service to Norwegian agents and English
harbour consulates for the purpose of reconnoitring landing
opportunities, and examination of Norwegian railways with
regard to their capacity, particularly the Narvik line, and
missions concerning information about land and sea airports
in Norway. By reason of the fact that the information from
two different sources, namely the Naval Attache in Oslo and
Admiral Canaris, coincided and gradually increased during
the months of October to December, 1939, the danger seemed
to become increasingly imminent.
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(Part 2 of 6)
"There is nothing in the American draft of an anti-war
treaty which restricts or impairs the right of self-
preservation in any manner.
So far on Kellogg.
"Such a case in its character resembles that in which a
belligerent has the certain knowledge that his opponent,
in order to gain a strategic advantage, is just about to
march an army through the territory of a neutral who is
apparently too weak to resist; under these circumstances
it would be impossible to refuse him the right to carry
out the attack on the neutral territory first."
The justification for such a preventive measure, according
to Westlake, lies in the right of self-preservation, which
also applies against a threatening violation of neutrality.
Any other concept would also be not true to life and would
not correspond to the character of the society of nations as
aggregation of sovereign States with an, as yet,
incompletely developed common law code. In the domestic law
system of every civilised country, the prevention of an
immediately threatening attack is a permissible act of
defence, although there even the help of the State against
the law-breaker is furnished. In the society of
International Law, where this is not the case, anyway not at
the beginning of and during the Second World War, the
concept of self-preservation must apply in a far stronger
degree. In keeping with this concept, the British Government
during this war also considered the preventive measure
justified when it occupied Iceland on 10th May, 1940. The
British Government justified this measure clearly and
correctly in accordance with International Law in an
official announcement of the Foreign Office, as follows:
"After the German occupation of Denmark it has become
necessary to count on the possibility of a sudden German
advance to Iceland. It is clear that the Icelandic
Government, in case of such an attack, even if it were
only carried out with very small forces, would be unable
to prevent its country from falling completely into the
hands of the Germans."
The preventive measure was carried out by England, although
Iceland expressly defended herself in a note of protest
against the occupation.