The all but decisive character of the submariner’s work in the last war, evident to the public only in dry statistics, has been largely obscured by the spectacular and well publicized results of mass bombing, observed and feared by millions of people. But Winston Churchill has said, “The only thing that ever really frightened me during the war was the U-boat peril,” and again, “The U-boat attack was our worst evil. It would have been wise for the Germans to stake all upon it.” These appraisals of the magnitude of the submarine threat in World War II came from one who had led his country through the dark days of the air “Battle of Britain” and had seen the apparently invincible German land armies sweep the continent of Europe. They were prompted by Allied losses to submarines of 2,770 ships with a total displacement of 14,500,000 tons. Yet the Germans were not alone in the successful employment of the submarine weapon. Submarines of the United States Navy sank a total of 1,750 steel ships—5,850,000 tons—of the Empire of Japan, virtually eliminating her merchant fleet. The strangling effect of these losses on Japan, totally dependent upon external sources for many such vital materials as oil, was incalculable. The war-making potential of Japan had been destroyed long before the first atomic bomb burst at Hiroshima.
How is this immensely successful weapon, the submarine, to be used in the future? That the United States intends to maintain a sizeable and efficient underseas fleet there can be no doubt.1 The first atomic-powered ships of the U. S. Navy are submarines. There is every reason to believe that these and similar submarines will play a major part in denying the use of the seas to any future aggressor. An even cursory examination of the authorities in international law, however, will disclose a general view that there are stringent legal doctrinal limitations on the use of submarines which, if given effect, will limit the effectiveness of this weapon. It would seem to be of the highest importance to scrutinize critically these doctrines to determine their validity. If they are legally or morally binding, the limitations imposed thereby should be carefully considered by those charged with the planning for our national defense. If they are not, the United States should make its position clear while there is still time, lest we later stand condemned before the neutral nations of the world as did Germany in World Wars I and II.
A good starting point for a critical study of existing legal doctrine is afforded by the trial of Admiral Doenitz, the naval officer who directed the German U-boat campaign during the last war. This trial was conducted before the International Military Tribunal at Nürnberg, Germany, the judgment being delivered on October 1, 1946. Doenitz was sentenced to ten years imprisonment as a war criminal.2 The United States has since taken a leading part before the United Nations in “affirming” the principles which emerged from the Nürnberg trials. Mr. Francis Biddle, the American member of the Tribunal, has stated, “That [these principles] are now a part of the fabric of international law cannot be debated.” What are these principles which we have affirmed and presumably intend to honor?
Doenitz was indicted under Article 6 of the Nürnberg Tribunal Charter on two counts: (1) Crimes against the peace, and (2) War Crimes.3 The first count includes both preparation for and waging of aggressive war. Doenitz was found not guilty of preparing or initiating such a war, the Tribunal stating that “he was a line officer, performing strictly tactical duties.” He was, however, found guilty of waging aggressive war. Having some bearing on this finding was the fact that Doenitz had made certain recommendations in October, 1939, regarding submarine bases in Norway, and that, having succeeded Hitler on May 1, 1945, as Head of State, he ordered the army to continue its fight in the east against the Russians. Doenitz, among the military leaders tried at Nürnberg, serves as a particularly appropriate subject for the study of the question of “waging” aggressive war. Admiral Raeder and Generals Keitel and Jodi were all convicted of both planning and waging the war. It is unfortunate, therefore, that the Tribunal did not, in the Doenitz trial, define the crime with greater clarity or isolate with more certainty the factors which led to a finding of guilt on this count. The judgment as it stands places the professional military officer in an awkward position. Since, however, the problem of possible guilt for waging aggressive war is not peculiar to the submarine officer, it will not be considered here.
The most serious charge against Doenitz was that he carried out unrestricted submarine warfare in violation of the Naval Protocol of 1936. The Protocol reaffirmed Article 22 of the London Naval Treaty of 1930, and provides as follows:
(1) In their action with regard to merchant ships, submarines must conform to the rules of international law to which surface vessels are subject.
(2) In particular, except in the case of persistent refusal to stop on being summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship’s papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them aboard.
After an extended discussion of German submarine activities, the Tribunal came to the conclusion that since British merchantmen were armed from the beginning of the war and had been ordered by the Admiralty to ram U-boats if possible, they were not entitled to the warning provisions of the Protocol. The establishment by the Germans of “operational zones,” however, and the sinking without warning of all neutral merchant ships found therein were held to constitute a violation of the Protocol. The Tribunal’s decision that the operation zone concept was barred by the Protocol of 1936 was based on the fact that no exceptions were made therein to the general warning and rescue provisions, even though the signatory powers were well aware that such practices had been initiated by Germany in World War I and adopted by Great Britain in retaliation.
With reference to the failure on the part of German U-boat commanders to rescue their shipwrecked victims, the Tribunal said:
The evidence further shows that the rescue provisions [of the Protocol] were not carried out and that the defendant [Doenitz] ordered that they not be carried out. The argument of the defense is that the security of the submarine is, as the first rule of the sea, paramount to rescue and that the development of aircraft made rescue impossible. This may be so, but the Protocol is explicit. If the commander cannot rescue, then under its terms he cannot sink a merchant vessel and should allow it to pass harmless before his periscope. These orders, then, prove Doenitz is guilty of a violation of the Protocol.
Had the judgment terminated at this point, the legal position of the submarine would have been quite clear. The Tribunal had all but conceded Doenitz’ point that rescue was no longer practicable in light of the limitations of the submarine and modern technological developments. The judgment would therefore have had the practical effect of declaring illegal the use of submarines as commerce destroyers. But the judgment continued:
In view of all the facts proved and in particular of an order of the British Admiralty announced on 8 May 1940, according to which all vessels should be sunk at night in the Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war, the sentence of Doenitz is not assessed on the ground of his breaches of the international law of submarine warfare.
We see, then, that while Doenitz was found guilty of breaches of the Protocol, he was not punished therefor. Why? The British writer on laws of the sea, H. A. Smith, draws the cynical conclusion that “ . . . a war crime ceases to be punishable if the defense can prove that similar action was taken on the victorious side.” The significant error in this reasoning is that the Tribunal did not find that Doenitz committed a war crime as a result of his leadership of German submarine warfare. It simply was stated that he was guilty of violating the Protocol. The distinction is of vital significance. Can anyone seriously believe that one accused of mistreating prisoners of war could avoid punishment by proving that there had been cases of mistreatment on the other side? Such evidence would be excluded as irrelevant, just as if an accused murderer attempted to show that others had committed murder. What, then, did the Tribunal do? The case is analogous to one in which a person is somehow brought to trial for violation of an ancient “blue law”—a “law” never repealed, definite in terms and clearly violated by the accused, but impossible generally to enforce due to changed conditions since its enactment and ignored for many years by the entire community. No legal training is required to forecast a verdict of acquittal in such a case, if indeed the judge is so lacking in resources as to allow the case to go to the jury.
The Tribunal was faced with just such a case. The legal doctrine was clearly set forth in the Protocol of 1936, which in turn was a re-enactment of Article 22 of the London Naval Treaty of 1930. Both agreements had their beginnings in the period typified by the Washington Naval Conference of 1922, a period of great idealism but little realism in the treatment of international law. The submarine had emerged from World War I as a powerful new weapon. But it had been developed and utilized effectively by only one side. There was, therefore, a wide denunciation of this “inhuman,” “unfair” and “sneaky” device. As pointed out by Admiral Rickover, history shows that similar denunciations invariably follow the introduction of every new and successful weapon.4 He cites, among others, the example of the order of a French general given soon after his opponent commenced the use of gunpowder—an order to the effect that each enemy soldier captured bearing a firearm should be summarily executed. As Mahan insisted, however, it is impossible by mere agreement to outlaw the use of a militarily effective weapon. That such agreements are recognized today by the United States as ineffective is shown by our persistent refusal to enter into an agreement to outlaw the atomic bomb without enforcement by way of adequate international control of the production of fissionable materials. We now know that agreements without sanctions work only to the advantage of aggressors.
Furthermore, experience has indicated that there is generally not even an attempt to outlaw effective weapons possessed by all sides. This fact is well illustrated by the Hague Conferences of 1907 where the high explosive shell, shrapnel, and torpedoes were recognized as legitimate weapons while the harmless free balloon was outlawed.
The legal doctrine concerning submarine warfare, then, was ill-founded.5 What was its history as contemplated by the Tribunal? Before it, of course, was the record of widespread violations by the Germans. In answers to interrogatories, Admiral Nimitz had stated, “On general principles the United States submarines did not rescue enemy survivors if undue additional hazard to the submarine resulted or the submarine would thereby be prevented from accomplishing its further mission.” When asked whether it was customary in operational zones to attack merchantmen without warning, he answered, “Yes, with the exception of hospital ships and other vessels under ‘safe conduct’ voyages for humanitarian purposes.” The British, as noted by the Tribunal, had ordered their submarines to sink all vessels at night6 in the Skagerrak. Finally, the British and the Italians in the Mediterranean as well as the Japanese in the Pacific had all carried out unrestricted submarine warfare.
Were all of these “violations” to be dismissed as a universal moral lapse? Certainly not. They were forced upon the belligerents by the necessity of carrying out effective war in pursuit of nationally recognized values. That the sea commerce of the enemy is legitimate prey can no longer be seriously questioned. The time has long since passed when the civilian status of merchant crews could give them immunity. There is no logical distinction between the merchant ship on the one hand and the railroad train or the factory on the other. Given, then, the undoubted right to destroy the enemy’s sea sources of supply, and to do this by means of submarines, how is this to be accomplished? The Protocol would require, before the sinking of an enemy merchantman, that the “passengers, crew and ship’s papers” first be put in a place of safety. The inconsistency between this treatment and that accorded the railroad engineer or munitions worker is immediately apparent. But even assuming that somehow the merchant seaman occupies a privileged position, an attempt to carry out this provision would only end in the destruction of the submarine. Merchant ships are now armed in time of war. A surfaced submarine is no match for an armed merchantman aware of its presence. The guns of both are likely to be of comparable caliber, if the submarine is equipped with deck guns at all, and the merchantman will generally have the advantage of speed, and almost always of maneuverability. A single hit on a submarine may hole the pressure hull, resulting in its destruction. A merchant ship of any size can stand innumerable hits from guns of the caliber carried by submarines. While the submarine may use its torpedoes, the merchantman, being forewarned, may maneuver to avoid. But an even greater hazard confronts the surfaced submarine. Aircraft, if not already nearby, will be quickly summoned to the scene. Anti-submarine surface vessels will proceed to the area. The ensuing search will be immeasurably simplified by the recent fix of the submarine’s position. An extended discussion of search methods or of the high state of development of antisubmarine warfare, including the use of echoranging and listening sonic detection devices, would be out of place at this time. But suffice it to say that surface operation of the submarine in the presence of the enemy of the duration necessary to carry out the Protocol provisions have long been impossible. An alternative is first to sink the merchantman without warning, and then surface to rescue the crew. While this might or might not cut down the time on the surface, it would be highly improbable that the target would sink so quickly as to preclude the transmission of a radio message. “Well, then,” says the would-be humanitarian, “why not at least rescue the crew if, by monitoring the radio circuits, the submarine determines that no message has been sent?” It will be noted that Admiral Nimitz gave two reasons why rescues were not attempted, only one of which involved the question of additional hazard. The other is that rescue would not be attempted “ . . . where the submarine would thereby be prevented from accomplishing its further mission.” A submarine is extremely limited in space available for necessary personnel. Furthermore, a limiting factor in its endurance on patrol is the amount of food it can carry. It is difficult to see, therefore, how the taking on board of the shipwrecked crew of even one merchantman could fail to interfere with the submarine’s “further mission.”
If the submarine is to be employed for the legitimate purpose of destroying the commerce of the enemy, then it must accomplish this mission without prior warning. Undetected approach and attack is the only feasible method. But this gives rise to further problems of a more serious nature in the field of international law. In order to approach undetected, the opportunities to observe the target are extremely limited. Periscope observations must be of the briefest possible duration. How, then, is the target to be positively identified as an enemy? The answer is that it cannot be. This, however, would be true even with unlimited opportunities for observation, since false flags are an accepted means of deception. The only positive method of identification, therefore, would be to surface and send a boarding party to the ship, a course of action previously pointed out to be suicidal should the ship turn out to be an enemy. One writer has aptly illustrated the dilemma: if one wishes to determine whether or not a pipe in his possession is a genuine meerschaum, he may dip it in a certain type of acid. If the pipe dissolves, he will know that it was a genuine meerschaum. A boarding party may be termed the acid test of nationality.
Since safe and positive means of distinguishing between enemy and neutral are no longer available, operational zones must be established if the submarine is to accomplish its mission. The assumption must be made that neutrals will avoid a proclaimed danger area. It is recognized that at this point the greatest conflict exists between unrestricted submarine warfare and the traditional doctrines of international law. World conflicts of the extent to which we are becoming accustomed, however, are causing increasing hardship to such neutrals as exist. The battlefields are no longer confined to the land of the belligerents. They now include the sea approaches by which the' belligerents are supplied. It is worth noting, however, that it is in the interest of each warring nation to confine the operational zone to as small an area as possible, consistent with the destruction of the enemy’s shipping. For example, it would clearly be against the interests of the United States to proclaim the entire Atlantic Ocean an operational zone, since some of the shipping therein would be bound for the United States or England. The extensive operation zone in the Western Pacific during World War II may be explained by the fact that only Japanese ships could be expected to be found therein. Furthermore, the sinking of every neutral ship which is not bound to or from an enemy port is a waste of effort and torpedoes, and an unnecessary source of irritation in relations with neutral nations.
It is clear, therefore, that the entire legal doctrinal basis for the restrictions on submarine warfare is without merit, unsound in theory, and has been rejected in practice. It is perhaps unfortunate that Doenitz was even indicted for offenses against the international rules of submarine warfare. It is highly significant that of all the hundreds of war trials, no record of any trial concerning the illegal conduct of air warfare was ever brought to the attention of the United Nations War Crimes Commission, and yet surely such warfare, as initiated by the Germans, violated many of the provisions of the Hague Conventions of 1907. Our own air warfare could have been justified as reprisals for Coventry, Warsaw, and Rotterdam. But not even Goering, chief of the German Luftwaffe during the entire war, was condemned on this ground. It is clear, therefore, that the Tribunal was fully aware that total war had changed many of the traditional concepts. In the Doenitz case, the Tribunal recognized these fundamental changes by the simple expedient of failing to adjudge punishment for the alleged offenses. A fair appraisal of the judgment would then be this: The Protocol of 1936 is still on the books; that Doenitz violated the rules laid down therein cannot be denied; but the Protocol is no longer law; its provisions are obsolete; it is defunct.
There is no reason why we should continue to be saddled with a legal doctrine which is not in accord with either legal practice or the facts—a doctrine which cannot fail to be detrimental to our national interests. The foregoing analysis of the Nürnberg judgment reveals clearly that the law of submarine warfare should be placed on a sound legal basis. Any other course leads only to absurdity on the one hand, or agreement with those who condemn the Nürnberg trials as sheer hypocrisy on the other.
1. At the hearings before the House sub-committee on appropriations, 80th Cong., 1st Sess., Admiral Carney said with reference to proposed submarine construction, “The submarines will embody all that is known of design techniques for producing an attack ship of the highest possible performance and offensive characteristics.” The matter of submarine warfare “. . . is so clearly defined that we feel justified in beginning a submarine replacement program. As evaluation of shipping, the location of the world’s critical materials, and the political alliances and cleavages of the world, becomes more clearly defined, additional submarines will be requested in order to bring this force of proven potency up to needed strength.” Navy Department Appropriation Bill for 1948, p. 4 (1947).
2. Contrary to the ideas of many of the critics of the Nürnberg Trials, there is nothing novel in the concept of trial of those charged with war crimes. “For many years past . . . military tribunals have tried and punished individuals guilty of violating the rules of. . . warfare.” Opinion and Judgment, Nazi Conspiracy and Aggression, 50 (1947). See also The Trial of Captain Henry Wirz, 8 American State Trials 657 (1865).
There are also those who fear that the Nürnberg Trials were a bad precedent in that our own high officials could be so tried in the event of a losing war. It is obvious, however, that in the event of a totalitarian victory, we have nothing to fear from a principle which affords a fair trial before an impartial tribunal. That the Nürnberg principles would be subverted there can be little question. But the same treatment of our high officials could be expected without Nürnberg as an excuse. If Nürnberg would not help us as much as some optimists might expect, at least it could not hurt us in such a situation.
3. The applicable provisions of the Charter are as follows:
“Article 6.
(a) Crimes against the peace: Namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
(b) War crimes: Namely, violations of the laws or customs of war. Such shall include, but not be limited to murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
4. International Law and the Submarine, 61 U.S. Nav. Inst. Proc. 1213 (1935).
5. Cf. the statement by the court in the I. G. Farben trial, 10 Law Reports of War Criminals 48-49 (1949): “It must be admitted that there exist many areas of grave uncertainty concerning the laws and customs of war. . . . Technical advancements may have made obsolete ... or inapplicable some of the provisions of the Hague Regulations having to do with the . . . conduct of hostilities and what is considered legitimate warfare.” See also the trial of Karl-Heinz Moehle by a British military court, on a charge of ordering destruction of ship’s crews by U-boat commanders: “... we all concede that the real important duty of the submarine commanding officer is to insure the safety of his own ship, and if it is a question of saving life or saving his ship then he must save his ship.” 9 Law Reports of War Criminals 77 (1949).
6. Lauterpacht points out in 2 Oppenheim, International Law 492 (7th Ed., Lauterpacht, 1952), that the British version, and the only one which makes sense in the context of the judgment, was that all vessels should be sunk at sight in the Skagerrak.