File No. 763.72/1481
The Ambassador in Germany (Gerard) to the Secretary of State
[Received February 19, 8.35 a. m.]
1621. Following is the text of the reply of the German Government to my note communicating the substance of your 1063 [1163], February 10, 1 p. m.1
In reference to the note of the twelfth instant, Foreign Office No. 2260, relative to the German measures respecting the theater of war in the waters surrounding England, the undersigned has the honor to reply to his excellency the Ambassador of the United States, James W. Gerard, as follows:
The Imperial German Government have examined the communication of the Government of the United States in the same spirit of good will and friendship which seems to have prompted this communication.
The Imperial German Government are in entire accord with the Government of the United States that it is in the highest degree desirable for all parties to avoid the misunderstanding which might arise from the measures announced by the German Admiralty and to avert the intrusion of events calculated to interrupt the most friendly relations which have so happily existed between the two Governments up to this time.
On this assurance the German Government believe that they may depend on full understanding on the part of the United States, all the more because the action announced by the German Admiralty, as was dwelt upon at length in the note of the fourth instant, is in nowise directed against the legitimate trade and navigation of neutral states, but merely represents an act of self-defense which Germany’s vital interests force her to take against England’s method of conducting maritime war in defiance of international law, which no protest on the part of neutrals has availed to bring into accordance with the legal status generally recognized before the outbreak of hostilities.
In order to exclude all possible doubt on this cardinal point the German Government beg to set forth once more the actual situation.
Up to now Germany has scrupulously observed the existing provisions of international law relative to maritime war. In particular she assented without delay to the proposal made by the American Government directly after the war began to ratify Declaration of London and embodied the contents thereof without change in her prize law, even without formally binding herself in this direction. The German Government have adhered to these provisions even where they conflicted with military interests. Our Government at the same time have permitted the supply of food by Denmark to England until the present, although they could well have prevented this traffic by means of their naval forces.
In direct opposition to this England has not shrunk from grave violations of international law wherever she could thereby cripple Germany’s peaceable trade with neutral countries. It will not be necessary for the German Government to go into great detail on this point, especially since the American note to the British Government dated December 28, 1914,2 which has been brought to their knowledge, has dealt with this point very aptly if not very exhaustively on the ground of the experiences of months.
It is conceded that the intention of all these aggressions is to cut of Germany from all supplies and thereby to deliver up to death by famine a peaceful [Page 113] civilian population, a procedure contrary to law of war and every dictate of humanity.
The neutrals have not been able to prevent this interception of different kinds of trade with Germany contrary to international law. It is true that the American Government have protested against England’s procedure, and Germany is glad to acknowledge this, but in spite of this protest and the protests of the other neutral governments England has not allowed herself to be dissuaded from the course originally adopted. Thus the American ship Wilhelmina was recently brought into port by England although her cargo was destined solely for the civil population of Germany and was to be used only for this purpose according to an express declaration of the German Government.
In this way the following has been created: Germany is to all intents and purposes cut off from oversea supplies with the toleration, tacit or protesting, of the neutrals regardless of whether it is a question of goods which are absolute contraband or only conditional contraband or not contraband at all, following the law generally recognized before the outbreak of the war. On the other hand England with the indulgence of neutral governments is not only being provided with such goods as are not contraband or merely conditional contraband, namely, foodstuffs, raw material, et cetera, although these are treated by England when Germany is in question as absolute contraband, but also with goods which have been regularly and unquestionably acknowledged to be absolute contraband. The German Government believe that they are obliged to point out very particularly and with the greatest emphasis, that a trade in arms exists between American manufacturers and Germany’s enemies which is estimated at many hundred million marks.
The German Government have given due recognition to the fact that as a matter of form the exercise of rights and the toleration of wrong on the part of neutrals is limited by their pleasure alone and involves no formal breach of neutrality. The German Government have not in consequence made any charge of formal breach of neutrality. The German Government can not, however, do otherwise, especially in the interest of absolute clearness in the relations between the two countries, than to emphasize that they, in common with the public opinion in Germany, feel themselves placed at a great disadvantage through the fact that the neutral powers have hitherto achieved no success or only an unmeaning success in their assertion of the right to trade with Germany, acknowledged to be legitimate by international law, whereas they make unlimited use of their right to tolerate trade in contraband with England and our other enemies. Conceded that it is the formal right of neutrals not to protect their legitimate trade with Germany and even to allow themselves knowingly and willingly to be induced by England to restrict such trade, it is on the other hand not less their good right, although unfortunately not exercised, to stop trade in contraband, especially the trade in arms, with Germany’s enemies.
In view of this situation the German Government see themselves compelled after six months of patience and watchful waiting to meet England’s murderous method of conducting maritime war with drastic counter measures. If England invokes the powers of famine as an ally in its struggle against Germany with the intention of leaving a civilized people the alternative of perishing in misery or submitting to the yoke of England’s political and commercial will, the German Government are to-day determined to take up the gauntlet and to appeal to the same grim ally. They rely on the neutrals who have hitherto tacitly or under protest submitted to the consequences detrimental to themselves of England’s war of famine to display not less tolerance toward Germany, even if the German measures constitute new forms of maritime war, as has hitherto been the case with the English measures.
In addition to this, the German Government are determined to suppress with all the means at their disposal the supply of war material to England and her allies and assume at the same time that it is a matter of course that the neutral Governments which have hitherto undertaken no action against the trade in arms with Germany’s enemies do not intend to oppose the forcible suppression of this trade by Germany.
Proceeding from these points of view the German Admiralty has declared the zone prescribed by it the seat of war; it will obstruct this area of maritime war by mines wherever possible and also endeavor to destroy the merchant vessels of the enemy in any other way.
[Page 114]It is very far indeed from the intention of the German Government, acting in obedience to these compelling circumstances, ever to destroy neutral lives and neutral property, but on the other hand they can not be blind to the fact that dangers arise through the action to be carried out against England which menace without discrimination all trade within the area of maritime war. This applies as a matter of course to war mines, which place any ship approaching a mined area in danger even if the limits of international law are adhered to most strictly.
The German Government believe that they are all the more justified in the hope that the neutral powers will become reconciled with this, just as they have with the serious injury caused them thus far by England’s measures, because it is their will to do everything in any way compatible with the accomplishment of their purpose for the protection of neutral shipping even within the area of maritime war.
They furnish the first proof of their good will by announcing the measures intended by them at a time not less than two weeks beforehand, in order to give neutral shipping an opportunity to make the necessary arrangements to avoid the threatening danger. The safest method of doing this is to stay away from the area of maritime war. Neutral ships entering the closed waters in spite of this announcement, given so far in advance, and which seriously impairs the accomplishment of the military purpose against England, bear their own responsibility for any unfortunate accidents. The German Government on their side expressly decline all responsibility for such accidents and their consequences.
Furthermore, the German Government announced merely the destruction of enemy merchant vessels found within the area of maritime war, and not the destruction of all merchant vessels, as the American Government appear to have erroneously understood. This limitation which the German Government have imposed upon themselves impairs the military purpose, especially since the presumption will prevail, even in the case of neutral ships, that they have contraband on board, in view of the interpretation of the idea of contraband in which the English Government have indulged as regards Germany and which the German Government will accordingly apply against England.
Naturally the Imperial Government are not willing to waive the right to establish the presence of contraband in the cargoes of neutral ships and, in cases requiring it, to take any action necessary on the grounds established. Finally the German Government are prepared to accord, in conjunction with the American Government, the most earnest consideration to any measure that might be calculated to insure the safety of legitimate shipping of neutrals within the seat of war. They can not, however, overlook the fact that all efforts in this direction are considerably hampered by two circumstances: First, by the misuse of the neutral flag by English merchant vessels, which in the meantime has probably been established beyond a doubt by the American Government likewise. Second, by the above-mentioned trade in contraband, especially war materials, by neutral merchant vessels. In regard to the latter point, the German Government ventures to hope that the American Government upon reconsideration will see their way clear to a measure of intervention in accordance with the spirit of true neutrality.
As regards the first point, the secret order of the British Admiralty has already been communicated to the American Government by Germany. It recommends English merchant vessels to use neutral flags and has in the meantime been confirmed by a statement of the British Foreign Office which refers to the municipal law of England and characterizes such action as quite unobjectionable. The English merchant marine has followed this counsel without delay, as is probably known to the American Government from the cases of the Lusitania and Laertes. Moreover, the British Government have armed English merchant vessels and instructed them to resist by force the German submarines. In these circumstances it is very difficult for the German submarines to recognize neutral merchant vessels as such, for even a search will not be possible in the majority of cases, since the attacks to be anticipated in the case of a disguised English ship would expose the commanders conducting a search and the boat itself to the danger of destruction.
The British Government would then be in a position to render the German measures illusory if their merchant marine persists in the misuse of neutral flags and neutral vessels are not marked in some other manner admitting of no possible doubt. Germany must, in the exigency into which she has unlawfully been forced, make her measures effective at all events in order thereby to [Page 115] compel her adversary to conduct maritime warfare in accordance with international law and thus to reestablish the freedom of the seas which she has ever advocated and for which she is fighting likewise to-day.
The German Government therefore welcome the fact that the American Government have made representations to the British Government relative to the use of their flag contrary to law and give expression to the expectation that this action will cause England to respect the American flag in future.
In this expectation the commanders of the German submarines have been instructed, as was already stated in the note of fourth instant, to abstain from violence to American merchant vessels when they are recognizable as such.
In order to meet in the safest manner all the consequences of mistaking an American for a hostile merchant vessel the German Government recommended that (although this would not apply in the case of danger from mines) the United States convoy their ships carrying peaceable cargoes and traversing the English seat of maritime war in order to make them recognizable. In this connection the German Government believe it should be made a condition that only such ships should be convoyed as carry no merchandise which would have to be considered as contraband according to the interpretation applied by England against Germany. The German Government are prepared to enter into immediate negotiations with the American Government relative to the manner of convoy. They would, however, be particularly grateful if the American Government would urgently advise their merchant vessels to avoid the English seat of maritime war, at any rate until the flag question is settled.
The German Government resign themselves to the confident hope that the American Government will recognize the full meaning of the severe struggle which Germany is conducting for her very existence and will gain full understanding of the reasons which prompt Germany and the aims of the measures announced by her from the above explanations and promises.
The German Government repeat that in the scrupulous consideration for neutrals hitherto practised by them they have determined upon the measures planned only under the strongest compulsion of national self-preservation. Should the American Government at the eleventh hour succeed in removing, by virtue of the weight which they have the right and ability to throw into the scales of the fate of peoples, the reasons which have made it the imperative duty of the German Government to take the action indicated, should the American Government in particular find a way to bring about the observation of the Declaration of London on the part of the powers at war with Germany and thereby to render possible for Germany the legitimate supply of foodstuffs and industrial raw materials, the German Government would recognize this as a service which could not be too highly estimated in favor of more humane conduct of war and would gladly draw the necessary conclusions from the new situation thus created.
The undersigned requests the Ambassador to bring the above to the attention of the American Government and avails himself [etc.]
Berlin , February 16, 1915.
Von Jagow