THE PRESIDENT: Is that clear to you, Dr. Kranzbühler? The argument which I understand Sir David is putting forward with reference to these interrogatories is that they are truly irrelevant because of the date at which the United States came into the war; a date when the sea war between England and Germany had, for reasons which must be investigated, arrived at the stage that submarines were attacking merchant vessels without warning, and merchant vessels were defending themselves against those attacks.
FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President. It is, however, my opinion that the conditions which developed in the sea war between Germany and England do not necessarily have a bearing on the measures applied in the sea war between the United States and Japan, as here an entirely different theater of war was involved, in which German forces did not operate. In my opinion, the directives for sea warfare in the East Asia theater of war should be based on the conditions prevailing there and not be derived from experiences made in the European theater of war.
THE PRESIDENT: Then the Tribunal will consider these arguments.
THE TRIBUNAL (Mr. Biddle): How can what any navy did show the proper construction of a law? It may show what a particular admiral thought about it, but how are we interested in knowing what one admiral or another admiral thought about the law? Isn’t that for us to decide? How is that any evidence? Isn’t that your point, Sir David?
SIR DAVID MAXWELL-FYFE: Yes.
THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the meaning of a law?
FLOTTENRICHTER KRANZBÜHLER: I do not think that the principles for the conduct of sea war originate from one admiral, but that in view of their far-reaching implications they have become a matter for the government. It is recognized in international law that it springs not only from treaties, but also from acts of governments. May I give as an example that Mr. Justice Jackson in his first report to President Truman specially emphasized that international law is developed by acts of governments. Consequently, if the London Naval Agreement of 1930 did not originally imply that merchant vessels which had orders to resist were excluded, then acts to this effect on the part of the governments of all nations would have been instrumental in creating new international law to this end. I am therefore of the opinion that the attitude taken in this question by the United States as one of the greatest sea powers is decisive as to the interpretation of the London Agreement and hence as to the legality of Germany’s conduct.
THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is ambiguous?
FLOTTENRICHTER KRANZBÜHLER: Yes.
THE TRIBUNAL (Mr. Biddle): What words in the London Agreement are ambiguous?