The guns on the merchant vessels and the orders concerning their use were, however, only a part of a comprehensive system of the use of merchant vessels for military purposes. Since the end of September 1939 the fastest vessels, that is, those ships that were the least endangered by submarines but, on the other hand, were especially suited for chasing U-boats, received depth charge chutes, that is, armaments which call for location of a submerged submarine and thus may be judged as typical weapons for the offensive.
However, another factor of greater general importance, and also of greater danger to the submarines, was the order to report every enemy ship on sight, giving its type and location. This report was destined, so said the order, to facilitate taking advantage of an opportunity, which might never recur, to destroy the enemy by naval or air forces. This is an unequivocal utilization of all merchant vessels for military intelligence service with intent directly to injure the enemy. If one considers the fact that according to the hospital ship agreement even the immunity of hospital ships ceases, if they relay military information of this type, then one need have no doubts about the consequences of such behavior on the part of a commercial vessel. Any craft putting out to sea with the order and intention of using every opportunity that occurs to send military reports about the enemy to its own naval and air forces is taking part in hostilities during the entire course of its voyage and, according to the afore-mentioned report of 1930 of the committee of jurists, has no right to be considered a merchant vessel. Any different conception would not do justice to the immediate danger which a wireless report involves for the vessel reported and which subjects it, often within a few minutes, to attack by enemy aircraft.
All of the Admiralty’s directives, taken together, show that British merchant vessels, from the very first day of the war, closely co-operated with the British Navy in combating the enemy’s naval forces. They were part of the military communications network of the British naval and air forces and their armament of guns and depth charges, the practical training in manipulation of the weapons, and the orders relative to their use, were actions taken by the British Navy.
We consider it out of the question that a merchant fleet in this manner destined and utilized for combat should count among the vessels entitled to the protection of the London Protocol against sinking without warning. On the basis of this conception and in connection with the arming of all enemy merchant vessels, which was rapidly being completed, an order was issued on 17 October 1939 to attack all enemy merchant ships without warning.
THE PRESIDENT: Dr. Kranzbühler, we may as well break off now.
SIR DAVID MAXWELL-FYFE: My Lord, I am sorry to detain the Tribunal, but I promised to tell the Tribunal about the two affidavits put forward for the Defendant Seyss-Inquart. We have no objection to them. I promised to tell Your Lordship today. I am sorry to have to detain you.
[The Tribunal adjourned until 16 July 1946 at 1000 hours.]
NOTES
[2] De jure pacis ac belli, Book II, Chapter XXIV, Paragraph 10.