PRESIDENT: You may continue.
DR. SIEMERS: Reaction against such violation of neutrality is primarily directed against the adversary, not against the neutral party. Legal relationship deriving from neutrality exists not only between the neutral party and the two belligerent parties, but the neutrality of the state in question is at the same time a factor in direct relations existing between the belligerent parties. If the relationship of neutrality between one of the belligerent parties and the neutral power suffers disturbance, the neutral power can in no way file complaint if the other belligerent power takes appropriate action; at the same time it is entirely immaterial whether the neutral state is unable or unwilling to protect its neutrality (Document Number Raeder-66).
The legal title under which the belligerent power thus placed at a disadvantage can proceed to take countermeasures is the “right of self-defense” (das Recht der Selbsterhaltung; le droit de défense personelle). As brought out in detail by this opinion, this right of self-defense is generally recognized by international law. It suffices to point out here that this basic law is not affected by the Kellogg Pact, which has so often been mentioned in this Court. In this connection I ask permission to offer the following brief quotation from the circular memorandum of the U.S. Secretary of State, Kellogg, dated 23 June 1938:
“There is nothing in the American draft of an antiwar treaty which restricts or prejudices the right of self-defense in any manner. That right is inherent in every sovereign state and is implied in every treaty.”
Justice Jackson will permit me to mention that he himself, in his opening speech of 21 November 1945, referred to the “right of legitimate self-defense.”
It is interesting that in his address before Parliament on 8 February 1940, the Swedish Foreign Minister, Guenther, recognized this concept, although he represented the interests of a state whose neutrality was endangered at the time, and in addition was speaking before Germany proceeded to retaliatory measures in Norway (Document Number Raeder-66). In that address Guenther expressed his opinion with regard to the British declaration that Sweden’s neutrality would be respected only as long as it was respected by Britain’s enemies. Guenther recognized the fact that Sweden, in her relationship to England, would lose her neutrality should Germany violate Sweden’s neutrality and should Sweden be neither willing nor able to prevent such violation of her neutrality by Germany. Consequently, Guenther said, Great Britain would no longer be required to treat Sweden as a neutral country. It is obvious that the conclusions drawn by Guenther in the event of a breach of Sweden’s neutrality by Germany must also apply to the three-cornered legal relationship between Great Britain, Germany, and Norway. What was involved, however—and this I shall set forth in my presentation of evidence—was not Great Britain’s mine-laying activity in Norwegian coastal waters but a much more far-reaching Anglo-French scheme aiming at the occupation of Norwegian bases and of a portion of the Norwegian home territory. The mine-laying activity enters into the picture merely as a part of the total plan.
According to Mosler’s opinion and in the light of the above remarks, it is absolutely clear that Germany was justified in occupying Norway had the Allies carried part of their plan into effect by landing at a Norwegian base before German troops made their appearance. This, however, was not the case. Rather, as I will show, was the situation such that Germany anticipated an Anglo-French landing; in other words, she decided on countermeasures in anticipation of the imminent danger which threatened.
Another legal question arises therefrom: Assuming the same conditions, are countermeasures by a belligerent permitted only after the opposing belligerent has proceeded to violate neutrality, or is a reaction permitted beforehand in view of the imminently threatening violation of neutrality, in order to head off the enemy’s attack which can be expected at any moment?
According to the well-founded opinion of Dr. Mosler preventive countermeasures are permissible; and an impending violation of neutrality, which can be expected with certainty, is considered equal to a completed violation of neutrality.
The well-known English specialist on international law, Westlake, states with regard to the question of measures: