In the World War

by Graf Ottokar Theobald Otto Maria Czernin von und zu Chudenitz

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.