In the World War

by Graf Ottokar Theobald Otto Maria Czernin von und zu Chudenitz

2

Note from Count Czernin to the American Government, dated March 5, 1917

From the aide-mémoire of the American Ambassador in Vienna, dated February 18 of this year, the Imperial and Royal Ministry for Foreign Affairs understands that the Washington Cabinet entertains some doubt, in view of the statements issued by the Imperial and Royal Government on February 10 and January 11 of this year, as to what attitude Austria-Hungary contemplates adopting for the future with regard to submarine warfare, and whether the assurance given by the Austrian Government to the Washington Cabinet in the course of the proceedings with regard to the case of the vessels Ancona and Persia might not be taken as altered or withdrawn by the statements mentioned.

The Austrian Government is most willing to meet the desire of the United States Government that this doubt should be removed by a clear and final declaration.

It should here be permitted first of all to touch very briefly on the methods adopted by the Allied Powers in marine warfare, since these form the starting-point of the aggravated submarine warfare put into practice by Austria-Hungary and her allies, besides throwing a clear light upon the attitude hitherto adopted by the Austrian Government in the questions arising therefrom.

When Great Britain entered upon the war with the Central Powers, but a few years had elapsed since the memorable time when Great Britain itself, together with the remaining states, had commenced at the Hague to lay the foundations of a modern code of law for marine warfare. Shortly after that the English Government had brought about a meeting of representatives of the principal naval Powers, assembling in London, in order further to carry forward the work commenced at the Hague, presumably in a spirit of reasonable compromise between the interests of belligerents and those of neutrals. The unexpected success of these endeavours, which aimed at nothing less than concerted establishment of legal standards calculated to maintain the freedom of the seas and the interests of neutrals even in time of war, was not to be long enjoyed by the peoples concerned.

Hardly had the United Kingdom decided to take part in the war than it also began to break through the barriers with which it was confronted by the standards of international law. While the Central Powers immediately on the outbreak of war had announced their intention of observing the Declaration of London, which also bore the signature of the British representative, England discarded the most important points in that Declaration. In the endeavour to cut off the Central Powers from all supplies by sea, England gradually extended the list of contraband until it included everything now required by human beings for the maintenance of life. Great Britain then placed all the coasts of the North Sea—an important transit-way also for the maritime trade of Austria-Hungary—under the obstruction of a so-called "blockade," in order to prevent the entry into Germany of all goods not yet inscribed on the contraband list, as also to bar all neutral traffic with those coasts, and prevent any export from the same. That this method of proceeding stands in the most lurid contradiction to the standards of blockade law arrived at and established by international congress has already been admitted by the President of the United States in words which will live in the history of the law of nations. By this illegally preventing export of goods from the Central Powers Great Britain thought to be able to shut down the innumerable factories and industries which had been set up by industrious and highly-developed peoples in the heart of Europe; and to bring the workers to idleness and thence to want and revolt. And when Austria-Hungary's southern neighbour joined the ranks of the enemies of the Central Powers her first step was to declare a blockade of all the coasts of her opponent—following the example, of course, of her Allies—in disregard of the legal precepts which Italy had shortly before helped to lay down. Austria-Hungary did not fail to point out to the neutral Powers at once that this blockade was void of all legal validity.

For two years the Central Powers have hesitated. Not until then, and after long and mature consideration for and against, did they proceed to answer in like measure and close with their adversaries at sea. As the only belligerents who had done everything to secure the observance of the agreement which should provide for freedom of the seas to neutrals, it was sorely against their wishes to bow to the need of the moment and attack that freedom; but they took that step in order to fulfil their urgent duty to their peoples and with the conviction that the step in question must lead towards the freedom of the seas in the end. The declarations made by the Central Powers on the last day of January of this year are only apparently directed against the rights of neutrals; as a matter of fact, they are working toward the restitution of those rights which the enemy has constantly infringed and would, if victorious, annihilate for ever. The submarines, then, which circle round England's shores, announce to all peoples using and needing the sea—and who does not need it?—that the day is not far off when the flags of all nations shall wave over the seas in newly acquired freedom.

It may doubtless be hoped that this announcement will find echo wherever neutral peoples live, and that it will be understood in particular by the great people of the United States of America, whose most famous representative has in the course of the war spoken up with ardent words for the freedom of the seas as the highway of all nations. If the people and the government of the Union will bear in mind that the "blockade" established by Great Britain is intended not only to force the Central Powers to submission by starvation but ultimately to secure undisputed mastery of the sea for itself, and thereby ensure its supremacy over all other nations, while on the other hand the blockading of England and its Allies only serves to render possible a peace with honour for these Powers and to guarantee to all peoples the freedom of navigation and maritime trade, thus ensuring their safe existence, then the question as to which of the two belligerent parties has right on its side is already decided. Though the Central Powers are far from wishing to seek for further allies in their struggle, they nevertheless feel justified in claiming that neutrals should appreciate their endeavours to bring to life again the principles of international law and the equal rights of nations.

Proceeding now to answer the questions set forth in the memorandum of February 18 of this year, already referred to, the Austrian Government would first of all remark that in the exchange of Notes in the cases of the Ancona and Persia this Government restricted itself to consideration of the concrete questions which had up to then arisen, without setting forth the legal position in point of principle. In the Note of December 29, 1915, however, regarding the Ancona case it reserved the right to bring up the intricate questions of international law connected with the submarine warfare for discussion at a later date. In reverting now to this point, and taking up the question as to sinking of enemy ships, with which the memorandum is concerned, for brief consideration, it is with the hope that it may be made clear to the American Government that the Austrian Government now as heretofore holds immovably by the assurance already given, and with the endeavour to avoid any misunderstanding between the Monarchy and the American Union by clearing up the most important question arising out of the submarine warfare—most important as it rests on the dictates of humanity.

First and foremost the Austrian Government wishes to point out that the thesis advanced by the American Government and adopted in many learned works—to the effect that enemy merchant vessels, save in the event of attempted flight or resistance, should not be destroyed without provision for the safety of those on board—is also, in the opinion of the Austrian Government itself, the kernel, so to speak, of the whole matter. Regarded from a higher point of view, this theory can at any rate be considered in connection with possible circumstances, and its application be more closely defined; from the dictates of humanity, which the Austrian Government and the Washington Cabinet have equally adopted as their guide, we can lay down the general principle that, in exercising the right to destroy enemy merchant shipping, loss of life should be avoided as far as possible. This necessitates a warning on the part of the belligerent before exercising the right of destruction. And he can here adopt the method indicated by the theory of the Union Government referred to, according to which the commander of the warship himself issues a warning to the vessel about to be sunk, so that crew and passengers can be brought into safety at the last moment; or, on the other hand, the Government of the belligerent state can, when it is considered an imperative necessity of war, give warning, with complete effect, before the sailing of the vessel to be sunk; or, finally, such Government can, when preparing comprehensive measures against the enemy traffic at sea, have recourse to a general warning applicable to all enemy vessels concerned.

That the principle as to providing for the safety of persons on board is liable to exceptions has been admitted by the Union Government itself. The Austrian Government believes, however, that destruction without warning is not only justifiable in cases of attempted escape or resistance. It would seem, to take one instance only, that the character of the vessel itself should be taken into consideration; thus merchant ships or other private craft, placed in the service of war operations, whether as transports or guardships, or with a military crew or weapons on board for the purpose of any kind of hostilities, should doubtless, according to general law, be liable to destruction without notice. The Austrian Government need not go into the question of how far a belligerent is released from any obligation as to provision for safety of human life when his opponent sinks enemy merchant vessels without such previous warning, as in the well-known cases, previously referred to, of the Elektra, Dubrovnik, Zagreb, etc., since, in this respect, despite its evident right, the Austrian Government itself has never returned like for like. Throughout the entire course of the war Austro-Hungarian warships have not destroyed a single enemy merchant vessel without previous warning, though this may have been of a general character.

The theory of the Union Government, frequently referred to, also admits of several interpretations; the question arises, for instance, whether, as has frequently been maintained, only armed resistance can be held to justify destruction of ship and persons on board, or whether the same applies to resistance of another sort, as, for example, when the crew purposely refrain from getting the passengers into the boats (the case of the Ancona), or when the passengers themselves decline to enter the boats. In the opinion of the Austrian Government cases such as those last should also justify destruction of the vessel without responsibility for the lives of those on board, as otherwise it would be in the power of anyone on the vessel to deprive the belligerent of his right to sink the ship. For the rest it should also be borne in mind that there is no unanimity of opinion really as to when the destruction of enemy merchant tonnage is justifiable at all.

The obligation as to issuing a warning immediately before sinking a vessel will, in the view of the Austrian Government on the one hand, involve hardships otherwise avoidable, while, on the other, it may in certain circumstances be calculated to prejudice the rightful interests of the belligerent. In the first place it cannot be denied that saving lives at sea is nearly always a matter of blind uncertainty, since the only alternatives are to leave them on board a vessel exposed to the operations of the enemy, or to take them off in small boats to face the dangers of the elements. It is, therefore, far more in accordance with the dictates of humanity to restrain people from venturing upon vessels thus endangered by warning them beforehand. For the rest, however, the Austrian Government is not convinced, despite careful consideration of all legal questions concerned, that the subjects of neutral countries have any claim to immunity when travelling on board enemy ships.

The principle that neutrals shall also in time of war enjoy the freedom of the seas extends only to neutral vessels, not to neutral persons on board enemy ships, since the belligerents are admittedly justified in hampering enemy traffic at sea as far as lies in their power. Granted the necessary military power, they can, if deemed necessary to their ends, forbid enemy merchant vessels to sail the sea, on pain of instant destruction, as long as they make their purpose known beforehand so that all, whether enemy or neutral, are enabled to avoid risking their lives. But even where there is doubt as to the justification of such proceeding, and possible reprisals threatened by the opposing side, the question would remain one to be decided between the belligerents themselves alone, they being admittedly allowed the right of making the high seas a field for their military operations, of suppressing any interruption of such operations and supremely determining what measures are to be taken against enemy ships. The neutrals have in such case no legitimate claims beyond that of demanding that due notice be given them of measures contemplated against the enemy, in order that they may refrain from entrusting their persons or goods to enemy vessels.

The Austrian Government may presumably take it for granted that the Washington Cabinet agrees with the foregoing views, which the Austrian Government is fully convinced are altogether unassailable. To deny the correctness of these views would imply—and this the Union Government can hardly intend—that neutrals have the right of interfering in the military operations of the belligerents; indeed, ultimately to constitute themselves the judges as to what methods may or may not be employed against an enemy. It would also seem a crying injustice for a neutral Government, in order merely to secure for its subjects the right of passage on enemy ships when they might just as well, or indeed with far greater safety, travel by neutral vessels, to grasp at the arm of a belligerent Power, fighting perhaps for its very existence. Not to mention the fact that it would open the way for all kinds of abuses if a belligerent were forced to lay down arms at the bidding of any neutral whom it might please to make use of enemy ships for business or pleasure. No doubt has ever been raised as to the fact that subjects of neutral states are themselves responsible for any harm they may incur by their presence in any territory on land where military operations are in progress. Obviously, there is no ground for establishing another standard for naval warfare, particularly since the second Peace Conference expressed the wish that, pending the agreement of rules for naval warfare, the rules observed in warfare upon land should be applied as far as possible at sea.

From the foregoing it appears that the rule as to warning being given to the vessel itself before such vessel is sunk is subject to exceptions of various kinds under certain circumstances, as, for instance, the cases cited by the Union Government of flight and resistance, the vessel may be sunk without any warning; in others warning should be given before the vessel sails. The Austrian Government may then assert that it is essentially in agreement with the Union Government as to the protection of neutrals against risk of life, whatever may be the attitude of the Washington Cabinet towards some of the separate questions here raised. The Austrian Government has not only put into practice throughout the war the views it holds in this respect, but has gone even farther, regulating its actions with the strictest care according to the theory advanced by the Washington Cabinet, although its assurance as published only stated that was "essentially in agreement" with the Union Government's views. The Austrian Government would be extremely satisfied if the Washington Cabinet should be inclined to assist it in its endeavours, which are inspired by the warmest feelings of humanity, to save American citizens from risk at sea by instructing and warning its subjects in this direction.

Then, as regards the circular verbal note of February 10 of this year concerning the treatment of armed enemy merchant vessels, the Austrian Government must in any case declare itself to be, as indicated in the foregoing, of the opinion that the arming of trading ships, even when only for the purpose of avoiding capture, is not justified in modern international law. The rules provide that a warship is to approach an enemy merchant vessel in a peaceable manner; it is required to stop the vessel by means of certain signals, to interview the captain, examine the ship's papers, enter the particulars in due form and, where necessary, make an inventory, etc. But in order to comply with these requirements it must obviously be understood that the warship has full assurance that the merchant vessel will likewise observe a peaceable demeanour throughout. And it is clear that no such assurance can exist when the merchant vessel is so armed as to be capable of offering resistance to a warship. A warship can hardly be expected to act in such a manner under the guns of an enemy, whatever may be the purpose for which the guns were placed on board. Not to speak of the fact that the merchant vessels of the Entente Powers, despite all assurances to the contrary, have been proved to be armed for offensive purposes, and make use of their armament for such purposes. It would also be to disregard the rights of humanity if the crew of a warship were expected to surrender to the guns of an enemy without resistance on their own part. No State can regard its duty to humanity as less valid in respect of men defending their country than in respect of the subjects of a foreign Power.

The Austrian Government is therefore of opinion that its former assurance to the Washington Cabinet could not be held to apply to armed merchant vessels, since these, according to the legal standards prevailing, whereby hostilities are restricted to organised military forces, must be regarded as privateers (freebooters) which are liable to immediate destruction. History shows us that, according to the general law of nations, merchant vessels have never been justified in resisting the exercise by warships of the right of taking prizes. But even if a standard to this effect could be shown to exist, it would not mean that the vessels had the right to provide themselves with guns. It should also be borne in mind that the arming of merchant ships must necessarily alter the whole conduct of warfare at sea, and that such alteration cannot correspond to the views of those who seek to regulate maritime warfare according to the principles of humanity. As a matter of fact, since the practice of privateering was discontinued, until a few years back no Power has ever thought of arming merchant vessels. Throughout the whole proceedings of the second Peace Conference, which was occupied with all questions of the laws of warfare at sea, not a single word was ever said about the arming of merchant ships. Only on one occasion was a casual observation made with any bearing on this question, and it is characteristic that it should have been by a British naval officer of superior rank, who impartially declared: "Lorsqu'un navire de guerre se propose d'arrêter et de visiter un vaisseau marchand, le commandant, avant de mettre une embarcation à la mer, fera tirer un coup de canon. Le coup de canon est la meilleure garantie que l'on puisse donner. Les navires de commerce n'ont pas de canons à bord." (When a warship intends to stop and board a merchant vessel the commander, before sending a boat, will fire a gun. The firing of a gun is the best guarantee that can be given. Merchant vessels do not carry guns.)

Nevertheless, Austria-Hungary has in this regard also held by its assurance; in the circular verbal note referred to neutrals were cautioned beforehand against entrusting their persons or their goods on board any armed ship; moreover, the measures announced were not put into execution at once, but a delay was granted in order to enable neutrals already on board armed ships to leave the same. And, finally, the Austro-Hungarian warships are instructed, even in case of encountering armed enemy merchant vessels, to give warning and to provide for the safety of those on board, provided it seems possible to do so in the circumstances.

The statement of the American Ambassador, to the effect that the armed British steamers Secondo and Welsh Prince were sunk without warning by Austrian submarines, is based on error. The Austrian Government has in the meantime received information that no Austro-Hungarian warships were at all concerned in the sinking of these vessels.

The Austrian Government has, as in the circular verbal note already referred to—reverting now to the question of aggravated submarine warfare referred to in the memorandum—also in its declaration of January 31 of this year issued a warning to neutrals with corresponding time limit; indeed, the whole of the declaration itself is, from its nature, nothing more or less than a warning to the effect that no merchant vessel may pass the area of sea expressly defined therein. Nevertheless, the Austrian warships have been instructed as far as possible to warn such merchant vessels as may be encountered in the area concerned and provide for the safety of passengers and crew. And the Austrian Government is in the possession of numerous reports stating that the crews and passengers of vessels destroyed in these waters have been saved. But the Austrian Government cannot accept any responsibility for possible loss of human life which may after all occur in connection with the destruction of armed vessels or vessels encountered in prohibited areas. Also it may be noted that the Austro-Hungarian submarines operate only in the Adriatic and Mediterranean Seas, and there is thus hardly any question as to any action affecting American interests on the part of Austro-Hungarian warships.

After all that has been said in the preamble to this Memorandum, it need hardly be said that the declaration of the waters in question as a prohibited area is in no way intended as a measure aiming at the destruction of human life, or even to endangering the same, but that its object—apart from the higher aims of relieving humanity from further suffering by shortening the war, is only to place Great Britain and its Allies, who have—without establishing any legally effective blockade of the coasts of the Central Powers—hindered traffic by sea between neutrals and these Powers in a like position of isolation, and render them amenable to a peace with some guarantee of permanency. That Austria-Hungary here makes use of other methods of war than her opponents is due mainly to circumstances beyond human control. But the Austrian Government is conscious of having done all in its power to avoid loss of human life. The object aimed at in the blockading of the Western Powers would be most swiftly and certainly attained if not a single human life were lost or endangered in those waters.

To sum up, the Austrian Government may point out that the assurance given to the Washington Cabinet in the case of the Ancona, and renewed in the case of the Persia, is neither withdrawn nor qualified by its statements of February 10, 1916, and January 31, 1917. Within the limits of this assurance the Austrian Government will, together with its Allies, continue its endeavours to secure to the peoples of the world a share in the blessings of peace. If in the pursuit of this aim—which it may take for granted has the full sympathy of the Washington Cabinet itself—it should find itself compelled to impose restrictions on neutral traffic by sea in certain areas, it will not need so much to point to the behaviour of its opponents in this respect, which appears by no means an example to be followed, but rather to the fact that Austria-Hungary, through the persistence and hatred of its enemies, who are determined upon its destruction, is brought to a state of self-defence in so desperate extreme as is unsurpassed in the history of the world. The Austrian Government is encouraged by the knowledge that the struggle now being carried on by Austria-Hungary tends not only toward the preservation of its own vital interests, but also towards the realisation of the idea of equal rights for all states; and in this last and hardest phase of the war, which unfortunately calls for sacrifices on the part of friends as well, it regards it as of supreme importance to confirm in word and deed the fact that it is guided equally by the laws of humanity and by the dictates of respect for the dignity and interests of neutral peoples.