« PreviousContinue »
intermittent fogs so frequent in the North Sea, so that only the light on the mast was visible.
But rejecting this hypothesis and admitting that an error of the captain of the U. B. 13 is not impossible, the Commission can not consider this fact as decisive proof that the Tubantia was not torpedoed. It must take account of the possibility that the Commander of the U. B. 13 may have acted in violation of the instructions and orders of his superiors and against the intentions and decisions of the German Government.
It is true that the indications of the logbook are confirmed to a certain degree by the depositions of the witness Dehmel. He believes that he remembers that in the critical night a vessel of medium size and entirely without lights was torpedoed, and he denies in this connection that at this time, or in general as long as he was a sailor on board the U. B. 13, a large vessel sufficiently lighted was torpedoed. But the manner in which this witness has attempted to offer his testimony in favor of a foreign government, is not likely to inspire the necessary confidence. Moreover, he has served a term in prison.
IV 8. According to the brief of the German Government, the torpedo C 45/91 No. 2033 had already been launched by the submarine 13 (Commander, the Naval Lieutenant Neumann) on March 6, 1916, at 4:43 P.M., against an English destroyer about three miles north-east of the light-ship NordHinder; the shot missed its mark. The brief is based upon an annotation in the logbook and upon the extract of the list of torpedoes employed. The Naval Lieutenant Neumann who commanded the U. B. 13 on March 6, 1916, has confirmed this annotation and has declared that he would consider an error or a change of number on the torpedo as almost impossible. Since there is no indication that the torpedo No. 2033 was recovered, the agent of the German Government concludes that the Tubantia could have been hit by this same torpedo on March 16, 1916, if as the result of a mechanical fault the torpedo launched on March 6 did not sink but continued to float and was struck in this state by the Tubantia. The agent of the Dutch Government replies that a torpedo launched on March 6, at 4:43 P.M., three miles northeast of the light-ship Nord-Hinder could not have been found on March 16 between midnight and 4 A.m. in the neighborhood where the Tubantia foundered, but that it would have reached by that time a distance of at least 19 marine miles from the point of the disaster. This assertion is based upon the reports of the expert of the Dutch Government, Dr. van der Stok, Director of the Royal Netherlands Institute of Meteorology. His report and the declarations that he has made before the Commission are based on the fact, established by numerous observations and measurements, to the effect that on the Dutch coast there is a progressive movement of the surface water in the direction of north and north-east. While taking account of the effect of periodical tidal currents, he estimates that as a result of this progressive movement a torpedo launched near the light-ship Nord-Hinder and remaining afloat would have been borne in a northerly direction to a great distance from the place of the wreck.
The expert of the German Government, Professor Dr. Mecking, has claimed that in spite of the existence of the progressive movement of the water, experiments have shown that floating bodies have moved in a direction against the progressive current. He has denied that the calculations of Dr. van der Stok are conclusive in the present case, because the method applied by him does not show the accuracy of the methods of modern oceanographic science. According to him, these observations would have had to be much more numerous and they would have had to be made at the precise depth where the torpedo floated.
Professor Mecking is of the opinion that account would have to be taken not only of the influence of the current upon the floating body, but above all of the influence of the wind; this latter influence, he says, would be considerable.
The Commission has been unable to arrive at the conviction that calculations of this nature could be conclusive and could furnish proof for an object of concrete observation, and it believes that in spite of the most minute observations of currents and winds it will not be possible to find a torpedo which has been launched and has remained afloat for ten days at the point where it ought to be according to the calculations.
The Commission can not, consequently, decide that it is impossible that a floating torpedo struck the Tubantia at the point where this vessel sank.
9. The assertion whereby the Tubantia was struck by a floating torpedo is combatted by the agent of the Dutch Government; he affirms that, in view of the size and form of the hole, the Tubantia was not struck at the water line but two or three meters below it. According to the report of the diver, the hole extends in its entire breadth as far as the planking of the surface which was torn away for several feet. The maximum size of the hole is 12 meters. The hole terminates in an angle at the foot of the “T” of the word Amsterdam. The bridge, the base and the interior bulkhead of the lower lateral bunker B were torn away to a great extent. In the ceiling of the upper lateral bunker C, and consequently, in the upper bridge there was a large hole.
The expert of the German Government Techel, doctor of engineering hon. causa, in oral explanations, has observed that it follows from experiences in the German Navy that when a torpedo moving at a normal depth explodes, the damage ceases near the water line. It has been possible to determine this damage in the case of a torpedo which burst about a meter under the water line. It follows that a torpedo floating at a slight depth can have only comparatively insignificant effects upward. The expert believes that the explosion took place about a meter under the water line. According to him this version is corroborated by the fact that fragments of bronze were found in four boats and that, consequently, still other fragments, that is a comparatively large number, struck above the water line.
The Commission does not deem it possible to fix the point where the explosion of the torpedo took place by judging only by the size and form of the hole. Nevertheless, in view of the size of the hole and the importance of the damage within the ship, it seems to the Commission more likely that the explosion of the torpedo took place several meters below the water line.
10. The thesis developed by the agent of the German Government according to which the Tubantia was struck by a floating torpedo, a thesis based on the indication of No. 2033 in the list of torpedoes that had been launched, is disputed by the agent of the Dutch Government, who opposes it with the possibility of an error. In truth, it must be admitted that such an error could easily be made, given the fact that this number had to be transcribed several times. The supposition that the error would have been found during the inspection of the torpedoes at Kiel and that then a claim would have been made upon the commander of the U. B. 13 is hardly compatible with the difficulties and exigencies of the war. It may be readily understood that errors could creep into the registers of torpedoes that had been launched.
However this may be, the fact that the same torpedo number is found in the list of torpedoes launched and on the torpedo fragments found in the boats of the Tubantia is not of sufficient importance to invalidate the depositions made by the officers and sailors of the said vessel.
11. In the last place, the Commission has had to consider the possibility of the torpedoing of the Tubantia by a vessel belonging to a power hostile to Germany.
Several witnesses relate that some hours after the catastrophe of the Tubantia the occupants of the life boats perceived a group of lights in the direction opposite that of the light-ship Nord-Hinder. Since the submarines belonging to the flotilla stationed at Zeebrugge had no search-lights on board, the presence of a non-German vessel of war must be concluded.
However, this fact can in no way justify the suspicion that some would wish to deduce therefrom. It is not at all surprising that after the explosion a non-German vessel of war should have approached the place of the disaster and should have desired to throw its search-lights about in the vicinity.
Moreover, there is not the least proof for admitting that a vessel of a power hostile to Germany torpedoed the Tubantia and that, subsequently, fragments of the German torpedo No. 2033, recovered by the enemy vessel, were surreptitiously placed in the boats. It is evident that such a procedure, as complicated as it is perfidious and destined to prejudice Germany in the eyes of the neutral countries and to provoke anti-German feelings there, could never be presumed. In default of all proof this hypothesis must be discarded.
12. After weighing all the proofs, the Commission has reached the conviction that the Tubantia was sunk on March 16, 1916, by the explosion of a torpedo launched by a German submarine. The question of determining whether the torpedoing took place knowingly or as the result of an error of the commander of the submarine must remain in suspense. It has not been possible to determine that the loss of the Tubantia was caused by striking a torpedo that had remained afloat. Although it can not be denied that a certain number of indications militate in favor of the latter possibility, the Commission, after examining them conscientiously and comparing them with the other proofs, can not recognize that these indications are conclusive and have the force of proof.
No indication permitting the assumption of any other cause for the loss of the Tubantia could be produced.
Done at The Hague, in the Palace of the Permanent Court of Arbitration on January 27, 1922.
Introduction à l'Etude du Droit Pénal International. By H. Donnedieu de
Vabres. Paris: Librairie de la Société du Recueil Sirey. 1922. pp. 482.
This book is the latest contribution to the increasing literature dealing with what the author calls the new science of international criminal law. It is a work of high scientific value and contains evidence of painstaking research and of historical erudition. At the outset he emphasizes the "frightful progress of international criminality” resulting from the development of facilities for communication and the invention of new instrumentalities for the commission of international crimes. The time has therefore arrived when the world must establish an organized, internationalized system of repression to prevent the further spread of this rapidly increasing criminality. The existing system under which the criminal law is regarded, in the main, as strictly national and territorial and in accordance with which each state punishes criminal acts (with a few exceptions) committed only within its own territories is totally inadequate to meet the situation today. The list of “extra-territorial" crimes should be enlarged and a system of international repression should be organized. M. Donnedieu, however, does not enter in details as to this. His work is mainly historical. He reviews the doctrines of the jurists, the legislation of states and the jurisprudence of the courts, principally of Rome, Greece, France, Germany, the Netherlands and Italy, from early times to the present, in regard to the competence of the courts concerning crimes committed abroad by the state's own nationals and by foreigners either against its nationals or against the security of the state itself.
The birth of modern international criminal law, he tells us, dates from the conclusion of an extradition treaty in the year 1376 between the King of France and the Count of Savoy, which he seems to regard as the first of the kind of which there is any record. (Professor J. B. Moore, however, refers to an English-Scotch extradition treaty in the twelfth century.) Grotius, who advocated the extradition of offenders against the common law including even the state's own nationals, and who recognized the right of asylum only for those who were the victims of an “undeserved hatred," he considers to have been "the most illustrious representative, after Covarruvias, of the principle of universal repression," although the earlier doctrines of Bartolus exerted great influence on the conceptions of later centuries. Throughout history there have been, he says, two opposing and contradictory ideas concerning the extra-territorial competence of the courts and as to the whole problem of international criminal repression. The first was the imperialistic or nationalistic conception which dominated the Roman law and inspired