« PreviousContinue »
Law will be degraded, if not destroyed, and civilization itself will be in danger.
The paper on Neutrality and War Zones is of special interest to American lawyers, for it is written (in collaboration with Mr. Malcolm Carter) by Dr. T. J. Lawrence, than whom no English law writer is better known here and whose manual on the Principles of International Law has been for a decade the authorized text book on International Law in most of the law schools in the United States. In all great wars in the past, says Dr. Lawrence, there has been a tendency on the part of belligerents to disregard or minimize the rights of neutrals when their own warlike aims are checked and limited thereby. But the terrible conflict now being waged in almost every part of the world has already won for itself a bad preeminence in this, as in other kinds of wrong-doing. Neither side is blameless; but on the part of Germany there has been utter disregard of neutral life, as well as lawless interference with neutral property. Her theory appears to be that there is no rule, human or divine, that may not be set aside on the plea of military necessity or national self-assertion. The issue thus raised must be decided by civilized mankind. But meanwhile neutrals, and all who care for neutrality, are faced by the question whether hostilities may be carried on without regard to neutral rights, or only according to the rules that create and protect such rights. The importance of this matter can hardly be exaggerated. Those who deal with it must first make up their minds whether they desire the international society of the future to be organized and governed in the interests of war or of peace.
THREE hundred years ago powerful belligerents were apt to regard States who held aloof from the contest as white-livered cowards or calculating scoundrels. Those who were determined to avoid the risks of war, or to make profit for themselves out of the dangers and difficulties of their neighbors, might possibly, as a great favor, be allowed to remain neutral. But to respect their territory and do no violence to their sovereignty was more than could be expected of high-spirited combatants when military advantages were to be gained by disregarding them. Gradually the public opinion of the civilized world came to demand even these hard things, and the performance of them was laid as an obligation on belligerent powers, coupled with a corresponding obligation on the part of neutrals to aid neither party in the war but maintain an even balance between them. Custom followed in the wake of opinion. Internatoinal Law grew clearer and clearer; till at length the Hague Conference of 1907 laid down in its Fifth Convention that “The territory of neutral Powers is inviolable” (Art. I), and in its Thirteenth that “Belligerents are bound to respect the sovereign rights of neutral Powers” (Art. I).
GERMANY accepted both these Conventions, and made no reservations with regard to the Articles just quoted. Yet she commenced the present war by invading Belgian territory. German troops crossed the frontier on the evening of Monday, August 3, 1914, while negotiations were still going on with the Government of Brussels, which declined to allow its country to be used as a passageway into France, and declared that Belgium was prepared to defend its neutrality by force of arms. The next day General von Emmich, the commander of the invading forces, issued a Proclamation in which he demanded a free passage on pain of "the horrors of war,” a threat which the Report of the Bryce Committee, backed up as it is by similar Reports from a Belgian Commission, shows to have been carried out with true Teutonic thoroughness. The German General seems to have felt that his procedure required justification. Accordingly, he explained that he was constrained “by sheer necessity, the neutrality of Belgium having already been violated by French officers who have been through Belgian territory in a motor car, disguised, on their way into Germany" (Blue Bk., Cd. 7895, Appendix C., p. 183). Marvelous officers, who heroically invaded the enemy's country without any men to follow them, and cleverly went the longest way round in order to make their attack a complete surprise! The German Chancellor spoke the truth when he said to the Reichstag on August 4 that: “Our troops have occupied Luxemburg, and perhaps are already on Belgian soil. Gentlemen, this is contrary to the dictates of International Law;" and on subsequent occasions when he endeavored to make out that Belgium was the aggressor or a willing partner in the aggression of others he spoke what is not the truth..
BUT BAD as the German case would be if the country whose neutrality Germany violated were an ordinary State, it is made far worse by the fact that Belgium was not merely neutral, but neutralized. A neutralized State is one which is not free to make or abstain from war as it pleases, but is bound by international convention to observe neutrality towards all other States as long as they do not attack her independence or territorial integrity. The Convention which imposes this obligation on her gives her the guarantee of the other signatory Powers that they will protect her soil and sovereignty as long as she fulfils her duty of perpetual neutrality. Belgium was placed in the position just described by the Treaty of January, 1831, as confirmed by the Treaty of April, 1839. The Guaranteeing Powers were Great Britain, Austria, France, Prussia and Russia; and the obligations of Prussia in such matters have since descended on, and been assumed by, the German Empire. Nor have they become obsolete through disuse; for in 1870 Germany signed a treaty with Great Britain and Belgium, binding her to assist the former in defending the latter,
was 331, as eps were obligati
Brussels and as latehas had no intend given
if France violated Belgian neutrality in the course of the war then raging. Moreover, in 1911, Germany had given a diplomatic assurance to Belgium that she had no intention of violating Belgian neutrality; and as late as July 31, 1914, the German Minister at Brussels had informed the Belgian Foreign Office that he knew of these assurances and was certain that “the sentiments expressed at the time had not changed.” Two days later the same Minister presented to the same Foreign Office an ultimatum demanding passage on pain of instant war in case of refusal; and three days later the German troops crossed the Belgian frontier ! There is nothing more to tell except that on the night of August 1 Germany seized Luxemburg, whose neutrality she had covenanted to respect by the Treaty of 1867. There she met with no armed opposition, and there her forces still remain. The heroic Kingdom is castigated well nigh to death for keeping her plighted word; but the submissive Duchy is not relieved of her burden because she accepted it without resistance. In both cases the offense of Germany is continuous as well as flagrant. Every day that passes adds to the weight of her guilt.
THE QUESTION arises whether some effective protection cannot be devised for States whose rights to remain neutral is wantonly disregarded. This is bound up with the vastly greater question of the development of international society in such a way that a proved and serious breach of the mass of rules and customs we call International Law shall be punished at the behests of an authority created by common consent. The nature of the authority, the nature of the sanction, and the nature of the rules to be sanctioned, are each and all matters which provoke great differences of opinion. This is not the occasion to discuss them. But it may be pointed out that there is a real sanction in cases where the permanent neutrality of a State is guaranteed by a great lawmaking treaty, at least if the guarantee is several and not collective merely, as seems to be the case with regard to Luxemburg. There can be no doubt that one of the reasons which impel Great Britain, France and Russia to carry on the present war is that they may punish the brutal violation of Belgium by the German forces. With Great Britain it is probably the most cogent reason of all. Indeed, it might be questioned whether she would have drawn the sword at all but for the indignation and disgust caused by Germany's bad faith. At any rate, the entire strength of the nation would not have been flung whole-heartedly into the conflict, as is the case at present. It has yet to be seen whether the statesmen of Berlin did not make, even from the point of the military interests of their country, the worst of their many mistakes when they sent von Emmich and his men across the Belgian frontier.
It was till lately regarded as an axiom of civilized warfare that
ner, bolt his held at the acquired a lawention as the Ruskor
neutral life was sacred, whatever liberties might be taken with neutral property. It is true that a neutral individual who joined the armed forces of a belligerent might be killed or wounded or taken prisoner, like any of his comrades. But that was because he had thrown off his neutral character by entering the army or navy of the enemy. And at the same time that he assumed the liabilities of a fighting man he acquired the privileges also. He was entitled to be treated in action as a lawful combatant, and if captured, he must be kept in honorable detention as a prisoner of war. But we are beginning to change all this. In the RussoJapanese war of 1904-5 submarine contact mines were used for the first time on a large scale. Some were anchored and some were not. The anchored class frequently broke loose from their moorings and got adrift; while the unanchored class were adrift from the beginning. The result was that hundreds of neutral Chinese fishermen were destroyed, in many cases long after the war was over. Their hard and cruel lot made little impression on the Second Hague Conference, though it was presented to that august body in a pathetic memorandum. The Convention on the subject, adopted at the last moment after long and weary discussions extending over four months, was admittedly an eleventh hour compromise, which satisfied nobody. Its provisions were weak in themselves, and in addition full of loopholes. Practically they allowed belligerents to sow the open seas with sudden death, and to lay in secret cordons of mines across the channels of access to an enemy's port as long as they could find some excuse for alleging that other objects than the closing of the port to commercial navigation had prompted their action. When these risks were pointed out by Sir Ernest Satow on behalf of Great Britain at the Eighth Plenary Meeting of the Conference on October 8, 1907, the late Baron Marschall von Bieberstein, who was the first Plenipotentiary of Germany, replied that it would be unwise to make rules so strict that their observance might be “rendered impossible by the nature of things.” “Conscience,” said he, “good sense, and the sentiment of duty imposed by principles of humanity will be the surest guides for the conduct of sailors, and will constitute the most effective guarantee against abuses." He went on to declare that the officers of the German Navy would always fulfil "in the strictest fashion the duties which emanate from the unwritten law of humanity and civilization," and to claim that there was no Government or country superior to his own in such matters.
THESE, says Dr. Lawrence, we 'e brave words. A brief and very incomplete record of what the German navy has done in regard to neutral life during the present war will form an instructive commentary on them. First, it laid mines along the East Anglian coast the moment war was declared, if not a good many moments
Norions of its own coastral sailors. Then here the
before, and followed this up by placing other mine fields in other parts of the North Sea fairways. Then it mined large. tracts of open sea off portions of its own coasts, and brought about thereby the death by drowning of a few neutral sailors. Then it extended its mines along the channels of the North of Ireland, where the sea tracks of vast numbers of vessels, many of them neutral, converge on their way to Scotch, Irish and British commercial ports. Then on February 4, 1915, the German Government issued a decree proclaiming as from February 18, the seas for a considerable distance round the British Isles to be a War Zone, within which all British vessels were liable to destruction by German submarines or air-craft, if necessary without warning, and neutral vessels which presumed to traverse the forbidden region were liable to share their fate. These threats were not suffered to remain unexecuted. There was action behind them; and in consequence of that action scores of innocent neutral lives have been lost. The torpedoing of the Falaba and the Lusitania, to give the two most conspicuous examples, is fresh in our minds. On both occasions American citizens perished; and on the second the horror was deepened by the terrible fact that many were women and children.
POSSIBLY these few instances may be sufficient to convince the world that even German humanity is not to be trusted with a free hand. In truth, rules to restrain the violence of combatants are urgently required, and those not vague rules full of loopholes and saving clauses, but rules that are clear, distinct and meant to be obeyed. For lack of such restraints we are rapidly going back to a warfare in some respects worse than that of savages. They slaughter the women and children of their adversaries when the blood-lust is on them. Germany slaughters in cold blood the women and children of friends as well as foes; and unless she is checked her example will be followed by other Powers.
DR. LAWRENCE then takes up the two questions: Can neutral property found on board a captured enemy vessel be destroyed when it is deemed necessary to destroy the vessel ? And have belligerents a right to sink neutral prizes at sea! On the first question, he says, a decision was given by the French Conseil d'Etat in 1871 in the cases of the Ludwig and the Vorwärts which had been captured in 1870, and burnt at sea along with their neutral cargoes because their captors could not safely spare a prize crew. Not only was the legality of the destruction upheld, but it was also maintained that no compensation was due to the neutral owners who had lost their property loaded in these vessels. The ground of the decision appears to have been that a neutral must take the chances of war if he puts himself or his goods in a poVOL. L.