File No. 763.72111M72/9
[Enclosure—Translation]
Memorandum of the German Government Relative to
the Treatment of Neutral Members of Crews of Enemy
Merchantmen
Various neutral governments have made representations to the Imperial
German Government because German naval forces have made prisoners of
war of seamen of their respective nationality belonging to the crews
of armed enemy merchantmen. In so doing the neutral governments have
relied partly on existing treaties and partly on general principles
of international law to which this procedure is contended to be
repugnant.
I
Germany has not concluded with any power special treaties regarding
the treatment of neutral nationals who perform service on board of
merchantmen of enemy powers during a war carried on by Germany. The
German Government is not aware of any such treaties between other
countries.
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The sole treaty which might be considered in this connection is a
collective treaty, the ninth Hague convention of October 18, 1907,
regarding certain restrictions of the right of capture in maritime
war. Article 5 of this convention provides that neutral seamen
serving on board of enemy merchant ships can not be made prisoners
of war and that officers can not be made prisoners unless they
refuse to promise not to serve any more on an enemy ship.
This treaty stipulation is, however, not binding on any of the
belligerent powers in the present naval war. For pursuant to Article
9, the convention does not apply unless all the belligerents are
contracting parties; now a considerable number of the belligerents,
among them Russia and Italy in particular, have not ratified the
convention. Thus the convention has no validity in the present war,
so that no neutral power can rely on the provisions of Article
5.
II
The action of the German naval forces is likewise unimpeachable
according to general principles of international law, for these
principles undoubtedly permit neutral seamen serving on enemy
merchantmen to be made prisoners of war. In the proceedings relative
to the ninth Hague convention this was universally conceded.
Article 5 of that convention originated in a motion of the British
delegation, in the course of the discussion of which it was
established, especially by the British and the Italian delegations,
that the intention of the proposal was to create a privilege
theretofore unknown which constituted a marked advance over the
existing legal status. (Consult Akten und
Dokumente der zweiten Intemationalen Friedenshonferenz,
Band III, pp. 978, 1074.1) In agreement
with this the report of the committee set forth in detail that
according to present day practice of international law the crew, the
officers, and the captain of a captured enemy merchantman would be
treated as prisoners of war regardless of whether the crew were of
neutral or enemy nationality. In its recommendations the report
points out that this fully established practice had undergone
various [modifications] and terms the resolutions of the examining
committee the expression of the universal wish to bring about a
moderation, that is to say a change, of the existing practice. (See
ibid., pp. 1027–1028.2)
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It follows that Germany is undoubtedly justified in applying the
existing stricter rules in the treatment of neutral crews of enemy
merchantmen in the present naval war.
III
Heretofore the German Government has merely made prisoners of war of
such neutral seamen only as had permitted themselves to be hired for
service on armed enemy merchantmen. It has
already expressed its intention of making these seamen prisoners of
war in its memorandum of February 8, 1916, relative to the treatment
of armed merchantmen,1 in which it declared that it would
consider such vessels as belligerents. There was moreover agreement
at the Second Hague Peace Conference, that the privilege introduced
by Article 5 of the convention mentioned could not be extended to
the neutral crews of such enemy vessels as took any part in
hostilities.
If the German Government has occasionally made exceptions to the rule
of treating neutral members of the crews of enemy merchantmen as
prisoners of war, this was done for humanitarian reasons and after
taking into consideration the circumstance that the men concerned
had no knowledge of the armament of the ship or of its consequences
in international law when they were hired. The German Government is,
however, no longer in a position to permit any such exceptions,
since its attitude regarding this question and the general armament
of enemy merchantmen has in the meantime become generally known.
IV
The German Government must further keep a free hand for decision as
to whether it will not in future treat also the neutral members of
the crews of unarmed merchantmen as prisoners of war. It would not
only be quite justified in so doing according to the principles of
existing international law, as shown above, but such action would
also be responsive to the action of the enemies of Germany, since
they are conducting naval warfare recklessly and pitilessly in every
respect; in addition, the enemy governments have claimed the entire
merchant marines of their countries for war purposes, so that every
neutral accepting service in an enemy marine aids the war purposes
of the enemy.
V
In view of this situation the German Government expressly directs the
attention of the neutral governments to the fact that every one of
their nationals performing service on board of an enemy merchantman
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exposes himself to the
danger of becoming a prisoner of war if the ship is captured. It
therefore suggests that the neutral governments warn their subjects
not to enter the merchant marine of powers at war with Germany.
