Sea Control 258 – The Ship with Maj Gen Mick Ryan

By Jared Samuelson

Australian Army Major General Mick Ryan joins the program for a wide-ranging discussion sparked by his reading of C.S. Forester’s classic, The Ship. We discuss “useful fiction,” lessons learned from Forester, and a whole raft of reading recommendations (see the show notes!).

Download Sea Control 258 – The Ship with Maj Gen Mick Ryan

Links

1. The Ship by C.S. Forester, reprint of the ed. published by Sun Dial Press in 1944.
3. Ghost Fleet, by Peter W. Singer and August Cole, Eamon Dolan Books, 2016. 
4. Burn In, by P.W. Singer and August Cole, 2020. 

6. Zero Day Code: A novel of the End of Days: a cyberwar apocalypse, by John Birmingham, Gigantic Bombs Corporation, 2021.

Jared Samuelson is Executive Producer and Co-Host of the Sea Control podcast. Contact him at Seacontrol@cimsec.org.

A Conversation with Capt. Tom Culora (ret.) on Leading Naval Warfare Studies

By Dmitry Filipoff

Captain Tom Culora (ret.) served as the Dean of the Center for Naval Warfare Studies (CNWS) at the Naval War College for seven years (2014-2021). CNWS is the primary research organization of the Naval War College. CNWS conducts independent and sponsored unclassified and classified research on issues of war, peace, national security, and international law, with particular attention to issues related to the maritime domain and naval warfare. CNWS comprises several departments, including the Strategic and Operational Research Department (SORD), the Wargaming Department, the Stockton Center for International Law, and the Naval War College Press. Each has its own mission and study and research groups.

In this conversation, Capt. Culora discusses the value of directed student research, how the fleet can leverage hybrid research groups, and how to identify what is most worth studying.

How can a hybrid research group be employed to address the needs of the fleet?

Today’s fleet is facing a set of “wicked hard” problems and complex challenges. Addressing and solving these challenges requires a level of creativity and a blended intellectual approach that can best be addressed through hybrid research. This means bringing together diverse subject matter experts (SMEs) who possess deep knowledge with researchers coupled with analysts who can apply a range of established research methodologies to gain insight into these complex challenges. Enlisting SMEs who can effectively collect and translate diverse and complicated information allows the research team to approach these problems from different perspectives and provides opportunities to apply undiscovered or non-traditional solutions. Teaming these SMEs with researchers who can apply a range of analytical methodologies and who also possess specialized information of their own, provides a potent way to devise, test, and confirm these solutions. The output that emerges from this marriage of detailed information and expert methodology delivers to leaders expanded knowledge and insights that they can have confidence in and that they can act upon.

How can civilian researchers without operational experience complement servicemembers, and vice versa?

Given the research construct outlined above, civilian researchers bring top-tier analytical skills and nearly all are experienced in multiple methodologies. Moreover, civilian researchers also possess knowledge in domains relevant to military operations, strategy, international law, and defense issues that complements the information possessed by servicemembers. Servicemembers, for their part, bring a deep understanding of the profession of arms and firsthand experience in operating in complex environments. This blending of civilian researchers with servicemembers is a powerful formula for getting after these “wicked hard” problems and in developing and testing multiple solutions.

How would you describe the particular value of directed student research?

The Naval War College has multiple ways students can get involved with directed research. Within the Center for Naval Warfare Studies (CNWS), three Advanced Research Project (APRs) groups recruit students who volunteer to engage in directed research through individual academic efforts and group projects. Currently, the three ARPs: Halsey Alfa, Halsey Bravo, and the Holloway Group each look at a different region of the world and are led by civilian and military faculty members with knowledge and experience in these areas. The value of this directed student research is fourfold.

First, most military students arriving at the Naval War College for JMPE Phase I have minimal academic experience or knowledge in national and grand strategy, national security decision-making, and complex joint and combined operations—the broad areas covered by the core curriculum. There are of course exceptions, but most are novitiates in these areas. Conversely, when they join one of the ARPs from the fleet, they arrive with a mid-career professionals’ specialized subject matter expertise in their principal warfighting specialty—essentially the SMEs of the research construct outlined above. The value is that they actively and critically provide up-to-date information and experience from the fleet and force. Moreover, they can relay and translate specialized and complicated information that is used directly in the ARPs’ ongoing research.

Second, these select students produce analytical products that contribute to the overall research of the ARP groups themselves. As part of their curriculum in these advanced groups, they are required to individually research and analyze systems, intelligence, operations, and strategies. Unlike the War College’s core curriculum, which is taught at the unclassified level, the content that is presented and research output in the ARPs is mostly classified. Students matriculating through the ARPs contribute to a classified body-of-knowledge that is used by both the fleet and the Navy staff.

Third, students participating in the ARPs are exposed to range of research methodologies while sifting through and evaluating primary and secondary sources. However, the prime methodology used by the APRs is a form of wargaming that examines key operational problems and uncovers best practices through iterative gaming, testing, and analysis. Through this process, students are often conducting original research and discovering new and novel approaches to complex issues and problems. They come away from their time in the APRs with a journeyman’s understanding of the iterative wargaming process and a baseline appreciation of operations analysis methodologies.

Lastly, students become immersed in the issues and details in the theater of operations that their respective ARP group is focused on. They emerge from this experience with an expanded and sophisticated understanding of the entire theater of operations and return to fleet units and senior staffs where they apply this broadened knowledge to plan and execute the missions of their new organizations.

How do you view the relationship between theory and practice, and what are the related implications for making research relevant to the fleet?

The relationship between theory and practice is cyclical. In the best of circumstances, ideas and theories are developed from research and analysis that would not otherwise emerge elsewhere. Some theories emerge from well-grounded and detailed information and data where the distance between theory and practice is small. However, other theories emerge from conjecture and creativity—here the distance between theory and practice is usually much greater. Regardless of their origin, by definition, theories are untested and only represent a notional approach to solving a complex problem. Through the process of wargaming, modeling and simulation, concept development, and fleet experimentation a theory is “operationalized” where it can then have practical application for planners and warfighters.

But the process cannot stop here. Ideally, through experimentation and the practical application of theories and ideas, lessons are developed and data is collected that is then fed back into the cycle to refine existing theories and ideas—and to develop new ones as well. In a large and dispersed organization like the Navy, this virtuous cycle can be messy and sometimes illusive. But efforts have been underway for some time now to converge the theory and practice cycles into an Analytic Master Plan (AMP) for the Navy where the individual activities and outputs in these cycles are codified, organized, aligned, and shared.

Among the many demands and interests that can occupy the attention of a dean or research group director, how can you determine what is most worth studying?

As a former dean, for me there are two components that determine what is most worth studying—interest and impact.

First, the best research and analysis is accomplished by folks who are immediately and deeply interested in the topic. High quality research takes a level of energy and commitment that can only be sustained through keen interest and curiosity—and the best researchers are those who have an almost obsessive interest in the topic they are examining. Moreover, I know many talented and skilled researchers, polymaths really, who are often interested in multiple topics. Yet even here, the trend is that they are deeply immersed and interested in the immediate topic at hand. This is where the best research emerges. An essential role of a dean is finding and aligning researchers with relevant topics they are most interested in to produce high-quality analysis.

The second component is impact—and there are two avenues to follow here. The first is responding to a request for research into a particular topic or issue. This “demand” aspect of the research is where the CNO, a senior commander, or other DoD leader asks for analytical support. By design, this avenue is primed to have impact as the person or entity requesting this support has one of those “wicked hard” problems that they need the Center’s professional research help to solve. The findings from this research have a ready-made audience and often the impact is immediate and noticeable. However, if an organization like CNWS only waits to be told what to research by senior officers and officials, we are not really doing our job. This is where the second avenue of impact “speculation,” or spec-work as I like to call it, comes in.

There is a general misunderstanding that CNWS only conducts directed research for the Navy and other DoD stakeholders. While in any given fiscal year roughly 60 to 80 percent of the research conducted is the result of someone requesting analytical support— the remaining 20 to 40 percent is spec-work. This research emerges from researchers and analysts anticipating and identifying questions and challenges before the fleet or staffs recognize them. If the first time we hear of a wicked hard problem is from a senior decision-maker or leader asking for help—we are already woefully behind. Our fundamental role is to anticipate problems—and there are multiple examples at the Naval War College where the research faculty were prescient in identifying an emerging challenge, quickly developed a program of research to examine the challenge, and were ready to provide detailed information and analysis when the first call for assistance was received. It is often this intellectual preparedness and anticipation that has had the most impact and influence on the fleet and within the service.

It is the confluence of interest and impact, either from demand or speculation, that shapes the research roadmap and drives decisions on where to put resources—faculty, time, and funding—on what is most worth studying.

What do you hope students who attended the Naval War College and participated in CNWS activities take away from their experience?

I know from experience serving in an operational unit, on a senior warfighting staff, and as a member of a joint or service staff that the demands on servicemembers’ time, energy, and headspace can be severe—with scant opportunity to reflect and absorb everything that is going on around you and minimal space to dig deep into issues and ideas. Nearly all of our students will return to this environment when they leave CNWS and the College. My hope is that they will have used this opportunity to reflect on their profession, taken the time to deeply explore issues and challenges that have interested them, and leveraged the very talented and committed faculty to increase their knowledge and critical thinking skills.

I also hope they have made lasting connections with their peers and the faculty. Alumni of our research programs often reach back to the Center where they find faculty members willing to aid them in their fleet and staff responsibilities by providing advice and input, and serving as a sounding board for ideas and concepts. Moreover, the faculty also benefits from these relationships as it is an indispensable way to stay connected to the fleet.

Lastly, my ongoing hope as I finished my term as Dean of CNWS is that the organization can continue building thinkers and warfighters who will lead effectively and intelligently into what looks to be a very challenging future.

Professor Culora served as dean, Center for Naval Warfare Studies from 2014 until 2021. He is currently on sabbatical finishing a graduate degree in counseling psychology. A retired Navy captain and naval aviator, he served in operational billets including commanding officer of helicopter maritime strike squadron (HSM-47) and commanding officer of USS Boxer (LHD-4). His staff tours include the Joint Chiefs of Staff where he helped shape and coordinate national and military policy to expand NATO. He has also had fellowships at Harvard University and at the Council in Foreign Relations. He will return to the campus in 2022 to teach and research in NWC’s College of Leadership and Ethics. He holds a BFA and maintains an active career as an artist. His work can be found at www.tomculora.com.

The views presented by Professor Culora do not reflect official positions of the Naval War College, DON, or DOD.

Dmitry Filipoff is CIMSEC’s Director of Online Content. Contact him at Content@cimsec.org.

Featured Image: SOUTH CHINA SEA (May 22, 2021) Arleigh Burke-class guided-missile destroyer USS Curtis Wilbur (DDG 54) transits the South China Sea. (U.S. Navy photo by Mass Communication Specialist 3rd Class Zenaida Roth)

Sea Control 257 – Embracing Cognitive Diversity with Rachel Foote & Charlotte Mundy

By Anna McNeil

LCDR Rachel Foote and CDR Charlotte Mundy of the U.S. Coast Guard join us to discuss the complex definition of cognitive diversity, bias, organizational culture and more!

Download Sea Control 257 – Embracing Cognitive Diversity with Rachel Foote & Charlotte Mundy

Links

1. “Embrace Cognitive Diversity,” by LCDR Rachel Foote, USNI Proceedings, December 2020.
2. “Teams Solve Problems Faster When They’re Cognitively Diverse,” by Alison Reynolds and David Lewis, Harvard Business Review, March 30, 2017. 

3. The War Room, U.S. Army War College podcast.

Anna McNeil is Co-Host of the Sea Control podcast. Contact the Sea Control team at SeaControl@cimsec.org.

Sinking the “Fellowship of the Sea:” Lessons from Nuremberg for Future Naval Warfare

This article was submitted in response to the call for articles on the law of naval warfare jointly issued by CIMSEC and the Stockton Center for International Law at the Naval War College.

By Dennis E. Harbin, III

The “Fellowship of the Sea” and the Law of Naval Warfare

“…may humanity after victory be the predominant feature in the British Fleet.”—Vice Admiral Horatio Nelson’s prayer prior to the Battle of Trafalgar, 1805

One of the main purposes of the law of war is “protecting combatants, noncombatants, and civilians from unnecessary suffering.”1

Given the uniqueness of the operating environment, this purpose takes on a special meaning for the conduct of operations at sea and informs the body of international law known as the law of naval warfare. These laws codify and bind belligerents to restrain their use of violence with principles of military necessity, honor, humanity, distinction, and proportionality.2

In particular, that the principle of humanity animates the law of naval warfare has a lot to do with what Professor L.F.E. Goldie described as the “fellowship of the sea.”3 If humanity as a law of war principle “forbids the infliction of suffering, injury, or destruction unnecessary to accomplish a legitimate military purpose,”4 then the law of naval warfare — whether in the age of sail or the cyber age — must conform to this special fellowship. 

 How conflict in the future maritime security environment, with technological advancements such as artificial intelligence and unmanned robotics, will stress historical interpretations of the law of naval warfare is worth discussing. However, this concern isn’t new. As Professor Goldie reflected 31 years ago, “[s]hould a contest for mastery of the oceans come about under contemporary conditions, it would be awesome in its magnitude…[and] may also challenge their humanity.”5

In 2018, then-Chairman of the Joint Chiefs of Staff General Joseph Dunford declared that “[w]hile the fundamental nature of war has not changed, the pace of change and modern technology, coupled with shifts in the nature of geopolitical competition, have altered the character of war in the 21st century.”6

While the character of war may have changed, its violent nature and challenge to virtues of humanity has not. Therefore, despite new technologies that allow access to new domains, academics and practitioners should also reexamine historical situations as well. The intent of this article is to renew focus on the law of naval warfare related to submarines and their ability to preserve the “fellowship of the sea.” 

Specifically, whether modern armed conflict at sea has modified the submarine’s obligation to rescue survivors of targeted merchant vessels is worthy of consideration. This legal issue is unique in the law of naval warfare because it has been examined under the scrutinous light of litigation, yet remains “one of the least developed areas of the law of armed conflict.”7 To aid in understanding this 20th century legal issue in light of the 21st century maritime security environment, this article will call upon a historic milestone — the 75th anniversary of the International Military Tribunal (IMT) in Nuremberg. 

Naval Warfare on Trial at Nuremberg

“Over the last six decades, the word ‘Nuremberg’ has become synonymous with humankind’s highest ideals and aspirations — a measuring stick against which all subsequent humanitarian ventures have been measured.”8 This year marks the 75th anniversary of the International Military Tribunal (IMT), when 21 senior German political and military leaders were put on trial by the Allied Powers for violations of international law.9 

“There is no doubt that, with the benefit of over six decades of hindsight, we can say that the International Military Tribunal at Nuremberg (IMT) was an event of world-historical importance. It was the first successful international criminal court, and has since played a pivotal role in the development of international criminal law and international institutions.”10 From November 1945 to October 1946, testimony was heard and documents produced that ultimately resulted in judges from the United States, United Kingdom, France, and the Soviet Union finding 19 defendants guilty of some or all of the charges of crimes against peace, war crimes, and crimes against humanity. Herman Goering would commit suicide the night before he was to be executed. Ten would hang. 

At first glance, the Nuremberg experience may have little to do with naval warfare, especially submarine warfare in the future maritime security environment. After all, most view the atrocities committed by the Nazis through the lens of the devastation of an aggressive war on the European continent and the horrors of the Holocaust. The trial of Grand Admirals Raeder and Doenitz, however, are particularly informative to understanding the law of naval warfare – especially submarine warfare in the case of Grand Admiral Doenitz.

Grand Admiral Karl Doenitz began the war as the commander of the Kriegsmarine’s submarine fleet and would end the war as Hitler’s successor as Germany’s head of state for Germany. After the dissolution of the German government on May 23, 1945, Doenitz was arrested, imprisoned, and later charged on all three counts under the Nuremberg Charter — crimes against peace, war crimes, and crimes against humanity.11 Despite succeeding Hitler at the end of the war, Doenitz would be sentenced to only ten years in prison. He was found guilty of, inter alia, breaches of the international law of submarine warfare.

Relevant to this article, the IMT found that Doenitz violated the 1936 London Naval Protocol for ordering his submarine commanders not to rescue the crews of targeted merchant vessels.12 British prosecutor Sir David Maxwell-Fyfe intended to prove that Doenitz violated international law when, in early 1940, Doenitz prohibited his U-Boat commanders from rescuing after their attacks any civilian survivors in the water. Known as Standing Order 154, Doenitz was convicted for issuing the following:

“Do not pick up survivors and take them with you. Do not worry about the merchant ship’s boars. Weather conditions and the distance to land play no part. Have a care only for your own ship and think only to attain your next success as soon as possible. WE must be harsh in this war. The enemy began the war in order to destroy us, so nothing else matters.”13

For readers that may think decisions made by the Nazi Admiralty three-quarters of a century ago has little bearing on the operations of the United States or its Allies, consider one of the reasons why Doenitz — again, Hitler’s successor — was given such a relatively light sentence.

Fleet Admiral Chester Nimitz, the U.S. Pacific Fleet Commander during World War II, is well known for his leadership and strategic contributions in the Pacific theater. His contribution in the European theater — and specifically his impact on the punishments adjudicated in Nuremberg — is much less known and is one of the more fascinating stories of the consequential IMT.

How Nimitz came to be involved in the IMT was in no small part due to the litigation skills of Doenitz’s defense counsel, Otto Kranzbuehler. Looking closely at the photos taken during the trial, one may notice a German naval officer, in uniform, but not sitting in the defendant’s box. Otto Kranzbuehler served as the Kriegsmarine’s Fleet Judge Advocate (Flottenreichter) at Germany’s surrender. In an interview for the 50th anniversary of the IMT, he told the story of his discovery of a small book about the pacific war in an American library, and how it inspired him to involve Nimitz.14

After intense litigation, it was the American judge, Francis Biddle, who ultimately insisted that the interrogatories go to Nimitz and that his answers be entered into the record in defense of Doenitz. Through his forceful arguments and creative thinking, Flottenreichter Kranzbuehler was able to produce proof for the IMT that the 1936 London Naval Protocol was, in practice, operationally deficient. 

Specifically, when Kranzbuehler asked via interrogatory whether U.S. submarines were “prohibited from carrying out rescue measures toward passengers and crews of ships sunk without warning…,”15 Nimitz responded that “on general principles the U.S. submarines did not rescue enemy survivors if undue additional hazard to the submarine resulted or [if] the submarine would thereby be prevented from accomplishing its further mission.”16 Nimitz’s sworn response not only proved that the Allies were acting similarly to the Germans on this matter, but more importantly proved the impracticality of the law itself.

Despite what Doenitz declared as the “code of hardiness,” “which forswore every principle of the sea’s fellowship – mutual help in the face of nature, instant assistance to the shipwrecked, magnanimity in victory and fair play at all times,”17 the IMT did not include the waging of unrestricted submarine warfare when calculating his sentence due, in part, to Nimitz’s answers to Kranzbuehler’s interrogatories.18 When examined under the bright light of adversarial litigation, violating the 1936 London Naval Protocol which sought to enforce the “fellowship of the sea,” became an unpunishable offense.

State of the Law of Submarine Warfare

Before discussing how submarines will likely play a critical role in the future maritime security environment, it is helpful to examine the current state of the law by examining three relevant sources related to the law of naval warfare and submarine operations.

1. 1936 London Naval Protocol

A history of the 1936 London Naval Protocol is outside the scope of this article.19 The critical takeaways are threefold. First, the IMT used the Protocol to determine Grand Admiral Doenitz’s criminality. Second, submarines in their operations against merchant ships are obligated to adhere to the same visit and search, as well as rescue, rules for surface vessels. Specifically, the Protocol states: 

“In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship’s papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board.”20

The final takeaway, particularly relevant to this article and for the application of the law of naval warfare in the future maritime security environment, is that while the United States remains legally bound to the terms of the 1936 London Naval Protocol, China does not. It neither signed the 1930 London Treaty nor the 1936 London Naval Protocol. 

2. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea

Prepared by a group of “legal and naval experts…the purpose of the [San Remo] Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea.”21 Although non-binding, the San Remo Manual reiterates the foundational position that submarines are obligated by the same rules as surface ships.22 In practice, a submarine may only target an enemy merchant vessel if:

(a) the safety of passengers and crew is provided for; for this purpose, the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the prevailing sea and weather conditions by the proximity of land or the presence of another vessel which is in a position to take them on board;

(b) documents and papers relating to the prize are safeguarded; and

(c) if feasible, personal effects of the passengers and crew are saved.23

3. The U.S. Navy Commander’s Handbook on the Law of Naval Operations

The U.S. Navy’s interpretation of the law of naval warfare related to submarine operations against merchants are consistent with the 1936 London Naval Protocol and the San Remo Manual. As a baseline, the Handbook still requires submarines to “search for and collect the shipwrecked, wounded, and sick following an engagement.”24

Although at first glance this may seem extreme relative to the realities of modern submarine warfare, the caveat to the rule is expansive. The Handbook continues, stating “If such humanitarian efforts would subject the submarine to undue additional hazard or prevent it from accomplishing its military mission, the location of possible survivors should be passed at the first opportunity to a surface ship, aircraft, or shore facility capable of rendering assistance.”25 Given that the purpose of the Handbook is to be of more practical usage to non-lawyer naval commanders, its discussion on these basic rules discussed above are particularly informative. Attempting to define circumstances that would “subject the submarine to undue additional hazard,” the Handbook lists the following examples: 

    1. The enemy merchant vessel persistently refuses to stop when duly summoned to do so. 2. It actively resists visit and search or capture. 
    2. It is sailing under convoy of enemy warships or enemy military aircraft. 
    3. It is armed with systems or weapons beyond that required for self-defense against terrorism, piracy, or like threats. 
    4. It is incorporated into, or is assisting in any way the enemy’s military intelligence system. 
    5. It is acting in any capacity as a naval or military auxiliary to an enemy’s armed forces. 7. The enemy has integrated its merchant shipping into war-fighting/ war-supporting/ war-sustaining effort, and compliance with the London Protocol of 1936 would, under the circumstances of the specific encounter, subject the submarine to imminent danger or would otherwise preclude mission accomplishment.26

Submarines and Merchant Vessels in the Future Maritime Environment

Upon examining the law of naval warfare related to submarines, an author in the U.S. Naval War College’s International Law Studies concluded more than 20 years ago that “it is highly probable that in any World War III belligerents will again find reasons why the 1936 London Submarine Protocol should not be applied…[and] in any future armed conflict of lesser extent than a World War III, the pressure of neutral Powers may be sufficiently strong to cause the belligerents to comply with the provisions of the 1936 London Submarine Protocol.”27

The reliance on submarines in future naval warfare is a cornerstone of the U.S. Navy’s plan to implement integrated, all-domain naval power. The Chief of Naval Operations, Admiral Michael Gilday has recognized that “the advantage we have in the undersea [environment] is an advantage that we need to not only maintain, but we need to expand.”28 His 2021 Navigation Plan acknowledges that, in order to “deliver the all-domain naval power America needs to win…the Navy requires a greater number of submarines….”29 Moreover, the Navy’s Battle Force 2045 reflects the importance of submarines in the changing character of war as well.

Then-Secretary of Defense Mark Esper remarked that “there was clear consensus over months of study and war-gaming and analysis that we need to build more submarines, more attack submarines. And if we do nothing else we should invest in attack submarines, because of the lethality that they can deliver under the sea and the survivability that they have in clear overmatch that we have when it comes to the under sea domain and submarines in particular.”30 This focus has transferred across Presidential administrations as well. As reported recently, “as the [Biden] White House positions itself to argue on behalf of its budget proposal, new attack submarines apparently are a top priority.”31

The United States is not the only great power investing in its submarine force.32 The Chinese are also investing heavily in their future submarine fleet as well.33 As reported in October 2020, satellite images showing expansive building at a Chinese naval shipyard confirms the Office of Naval Intelligence’s forecast that “China’s submarine fleet [will] grow by six nuclear-powered attack submarines by 2030.”34

In addition to the likely critical role submarines will play in the next maritime war, its impact on commerce and trade will be tremendous. As an American naval officer testified during the IMT 75 years ago, “commerce and trade are now so identified with military power in total warfare that merchant ships, armed or unarmed, are in effect warships to be attacked and sunk without warning.”35

One-third of global commerce transits the South China Sea, arguably the world’s most contested maritime security hot spot.36 “As the second-largest economy in the world with over 60 percent of its trade in value traveling by sea, China’s economic security is closely tied to the South China Sea.”37 Given China’s and the U.S.’s reliance on commercial shipping in that area, it is not difficult to imagine that merchant vessels will once again be the targets of submarines in future maritime warfare. 

Conclusion 

It is difficult, however, to imagine a nuclear submarine surfacing to take on survivors. The impracticability of this practice was evident during the IMT proceedings when Flottenreichter Kranzbuehler produced Nimitz’s sworn responses and the Allies failed to punish Doenitz for violating the 1936 London Naval Protocol, which in effect ended the “fellowship of the sea.”

 It is also not difficult to imagine that the “fellowship of the sea,” at least when it relates to submarine warfare, will continue to erode in the future maritime security environment. In fact, Nimitz is believed to have declared during the IMT that the “United States would probably wage unrestricted submarine warfare in future naval wars, based on its success in the Pacific War.”38

Maintaining rules that are impractical and operationally unrealistic undermines the rule-of-law. The IMT experience 75 years ago suggests that, when examining the law of naval warfare in the future maritime security environment, policy-makers must consider how keeping old rules may do more harm than good. As maritime security tensions again arise in the Pacific, where emerging technologies give commanders greater capability while requiring them to think faster, we need realistic rules and expectations that reflect operational realities. However, because the principle of humanity is a cornerstone of the law of naval warfare, policy-makers and commanders must strike a balance and strive to make and interpret rules that continue to uphold the centuries-old “fellowship of the sea.”

Lieutenant Commander Dennis Harbin is a Navy judge advocate currently serving on the Joint Staff. The views presented in this article are those of the author and do not necessarily represent the views of Department of Defense or the U.S. Navy.

Notes

[1] U.S. Dep’t of Def., DoD Law of War Manual para. 1.3.4, (May 2016).

[2] Ibid. at para. 1.4.2.

[3] L.F.E. Goldie, Targeting Enemy Merchant Shipping: An Overview of Law and Practice, 65 Int’l L. Studies 3 (1993).

[4] U.S. DEP’T OF DEF., DOD LAW OF WAR MANUAL para. 2.3 (May 2016).

[5] Goldie, supra note 3.

[6] Joseph Dunford, The Character of War and Strategic Landscape Have Changed, 89 Joint Forces Quarterly 2 (2nd Quarter, 2018).

[7] U.S. Dep’t of Navy., Navy Warfare Pub. 1-14M, The Commander’s Handbook on the Law of Naval Operations para 8.7.1 (2017) [hereinafter Handbook].

[8] Aaron Fichtelberg, Fair Trials and International Courts: A Critical Evaluation of the Nuremberg Legacy, 28 Criminal Justice Ethics no. 1 (2009).

[9] On November 19, 2020, The Judge Advocate General’s Legal Center and School hosted a symposium on the 75th anniversary of the International Military Tribunal in Nuremberg. For articles and presentation recordings regarding the history and legacy of the IMT, See The International Military Tribunal at Nuremberg: Examining Its Legacy 75 Years Later

[10] Fichtelberg, supra note 7. 

[11] Trial of the Major War Criminals Before the International Military Tribunal 310 (1947) [hereinafter Judgement].

[12] Ibid. at 313.

[13] The Trial of Admiral Doenitz, 1 The ONI Review no. 12, October 1946, at 33.

[14] For recording of interview, see https://www.roberthjackson.org/nuremberg-event/nimitz-doenitz/.

[15] 17 Nuremberg Trial Proceedings (July 2, 1946), 

[16] Ibid. 

[17] Goldie, supra note 3.

[18] Judgement, supra note 10 at 313. 

[19] See Howard Levie, Submarine Warfare: With Emphasis on the 1936 London Protocol, 65 Int’l L. Studies 325-26 (1993). Provides an expert and through history on the development of the 1936 London Naval Protocol.

[20] See Procès-verbal relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 22 April 1930. London, 6 November 1936.

[21] See Int’l Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Lousie Doswald-Beck ed., 1995) [hereinafter San Remo Manual], 

[22] San Remo Manual, supra note 20, art. 45.

[23] San Remo Manual, supra note 20, art. 139.

[24] Handbook, supra note 6, para 8.7.

[25] Ibid. 

[26] Handbook, supra note 6.

[27] Howard Levie, Submarine Warfare: With Emphasis on the 1936 London Protocol, 65 Int’l L. Studies 325-26 (1993).

[28] Sam LaGrone, CNO Gilday Lays Out Priorities for ‘DDG Next’ Warship, New Attack Submarine, USNI News (Oct. 14, 2020).

[29] U.S. Dep’t of Navy, CNO NAVPLAN (January 2021).

[30] Mark Esper, Secretary of Defense Remarks at CSBA on the NDS and Future Defense Modernization Priorities (Oct. 6, 2020).

[31] David Axe, Joe Biden Wants To Spend Big On U.S. Navy Submarines, Forbes (Apr. 12, 2021).

[32] Daniel Vegel, A Silent Destabilizer in the Indo-Pacific, Proceedings (March 2021).

[33] H. I. Sutton, Chinese Increasing Nuclear Submarine Shipyard Capacity, USNI News (Oct. 12, 2020).

[34] Ibid. 

[35] Joel Holwitt, Execute Against Japan 178 (2009).

[36] How Much Trade Transits the South China Sea?, CSIS China Power Project (last viewed May 13, 2021).

[37] Ibid. 

[38] Holwitt, supra note 34.

Featured image: Artwork of German sailors on the conning tower of a U-boat that has surfaced after sinking a British cargo ship during World War II). Survivors are seen in lifeboats. This 1941 painting is by German artist Adolf Bock (1890-1968) via Library of Congress.

Fostering the Discussion on Securing the Seas.