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the flag of truce, abuse of the Red Cross flag and badge and other violations of the Geneva Convention, use of civilian clothing by troops to conceal their military character during battle, bombardment of hospitals and other privileged buildings, improper use of privileged buildings for military purposes, poisoning of wells and streams, pillage and purposeless destruction, ill-treatment of inhabitants in occupied territory. It is important, however, to note that members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government or by their commanders are not criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress, which are dealt with in this chapter.” The other means” are reprisals; but that is a separate subject to be dealt with later. Whilst nearly all these crimes have been charged against the German troops in Belgium, France and Africa, they have not been alleged against the submarine officers. Moreover, the offense which they are charged has undoubtedly, and on the admission of their own Government, been ordered by that Government. It is clear, therefore, that the concluding sentences in the paragraph quoted forbid their punishment.
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THE SINKING of neutral ships stands on a different footing to the sinking of enemy merchant ships. By no possibility can it be construed as war treason, or a war crime, though it may be construed as an act of war against the neutral State affected. Though Articles 49 and 50 of the Declaration of London conditionally admit the practice as an exception, nevertheless, if the conditions are not observed and the exception becomes the rule, it would be impossible for a neutral State to ignore attacks on vessels on the high seas. Lord Lansdowne has stated (Times, July 13th, 1904), “Speaking generally a British ship on the high seas is regarded as British territory,” and this view is held almost universally by all nationalities, so that an attack on a neutral ship on the high seas is an attack on neutral territory. It is not surprising, therefore, that the American Government should have addressed the following warning to Germany: “To declare or exercise the right to attack or destroy any vessel entering the prescribed area on the high seas without first determining its belligerent nationality, and the contraband character of its cargo, is an act so unprecedented in naval warfare that this Government is reluctant to believe that the Imperial Government of Germany in this case contemplates it as possible. If commanders of German vessels of war act on the · presumption that the flag of the United States is not used in
good faith and should destroy on the high seas an American vessel and the lives of American citizens, it would be difficult for the
Government of the United States to view such an act in any other light than an indefensible violation of neutral rights, which it would be very hard indeed to reconcile with the friendly relations now happily existing between the two Governments. The United States Government would be constrained to hold the Imperial Government to strict accountability for such acts and to take any steps that might be necessary to safeguard American lives and property.” Nothing could be plainer—the destruction of a neutral ship is not a war crime against the belligerent, but an act of war against the neutral involving all the risks of such an act. It is for the neutral Government to protect its own subjects and their property. But in no case is it incumbent on the British Government, as a belligerent, to take action against the German subordinate officer for an offense against a neutral flag.
THEREFORE, says Sir Graham Bower, the action of the German submarine officers cannot be classified as espionage or as a war crime. But some newspapers have described the destruction of merchant ships as piracy and the officers as pirates. That the destruction of merchant ships, whether belligerent or nentral, when it is impossible to save the passengers and crew, is an act of cruelty and inhumanity as well as a gross violation of the Conventional Law is admitted by all who are capable of dispassionate judgment, but it is not piracy. Mr. Hall defines piracy as follows: “Piracy includes acts differing much from each other in kind and in moral value; but one thing they all have in commonthey are done under conditions which render it impossible or unfair to hold any State responsible for their commission. A pirate either belongs to no State, or organized political party, or by the nature of his act he has shown his intention to reject the authority of that to which he is properly subject.” The sinking of merchant ships under the conditions stated is certainly reprehensible, but Germany has accepted responsibility and the German officers and men have not shown any intention to reject the authority of their Government. Therefore they are not pirates. If they commit, as they have been alleged to commit, acts contrary to the laws of war and humanity—acts which are the more reprehensible, inasmuch as they have no military value—and can in no way influence the ultimate decision, the blame does not rest with them, but with their superiors.
CONSIDER, says Sir Graham Bower, how that doctrine if accepted would affect the British navy. The Naval Discipline
1 See Hall, 5th Edition, p. 619.
Act provides for the discipline of the navy in war and peace, and the penalties imposed for misconduct in times of war are severe. Article 4 of the Naval Discipline Act of 1866 enacts as follows: “When any action or any service is commanded every person subject to this Act who shall presume to delay or discourage the said action or service upon any pretense whatsoever, or in the presence or vicinity of the enemy shall desert his post or sleep upon his watch shall suffer death, or such other punishment as is hereinafter mentioned.” It is evident, therefore, 'that if a British submarine officer received an order from a lawful authority, e. g., the British Admiralty, to sink a German merchant ship without notice, and if he attempted “to delay or discourage” this service on the plea that the order violated the laws of war, he would be liable to the death penalty, and rightly so, for no army or navy could exist if every subordinate were permitted or required to constitute himself a judge of the legality or morality of the orders received from his superiors. It may happen that an order which, on the face of it, is a violation of the laws of war is justified. It may be an act of reprisal, or it may be that the superior authority has information not in the possession of the subordinate, as for instance, that the merchant vessel is sending wireless messages of military importance, but the subordinate cannot know and cannot judge. To make him responsible is to strike at the foundations of discipline in every army or navy in the world.
IN HIS JUDGMENT, therefore, says Sir Graham, whilst the indignation caused by the killing of non-combatants, including women and children is natural and justified, the differential treatment of submarine officers should be abolished. And since his paper was written the differential treatment of German submarine officers has been canceled and the British Government, on further examination, has adopted the conclusions here put forward.
THE QUESTION of Reprisals is then discussed. “Reprisals between belligerents are retaliation for illegitimate acts of warfare for the purpose of making the enemy comply in future with the recognized laws of war. . . . Reprisals are an extreme measure, because in most cases they inflict suffering upon innocent individuals. In this, however, their coercive force exists, and they are indispensable as a last resource. . . . An infraction of the laws of war having been definitely established every effort should first be made to detect and punish the actual offenders. Only if this is impossible should other measures be taken in case the injured belligerent thinks that the facts warrant them. As a rule the injured party would not at once resort to reprisals, but
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would first lodge a complaint with the enemy in the hope of stopping any repetitions of the offense, or of securing the punishment of the guilty. This course should always be pursued unless the safety of the troops requires immediate drastic action and the persons who actually committed the offense cannot be secured.” (British Manual of Military Law, pp. 452, 454, 456.) The regulations do not apparently distinguish between retaliatory measures and reprisals, nevertheless there is a distinction which in the interest of humanity should be emphasized. For instance, if the enemy used a prohibited weapon, then it would be permissible to retaliate by the adoption of the same or a similar weapon. But there is a clear moral distinction between such an act of retaliation and the destruction, let us say, of a defenseless town as a reprisal for a military offense.
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It is to be noticed also that the regulations enjoin the despatch of a threat or warning before recourse is had to reprisals. This point is important. For whilst the French maxim les représailles ne valent rien is true, and though reprisals generally lead to counter reprisals and a competition in barbarism, the same cannot be said of the threat of reprisals. The following is an extract from Sir Herbert Maxwell's “Life of Wellington” (Vol. I., p. 351): “As October drew to a close, however, the reports from Pamplona showed that the garrison were in the last extremity. Deserters brought word that the whole place had been mined and that the Governor intended to destroy it. In this Wellington perceived an intention to do injury to the Spanish nation contrary to the laws of civilized war, and he sent strict orders to Don Carlos de Espana who was conducting the blockade that if this project were carried out the Governor, all the officers and noncommissioned officers, and every tenth man of the garrison should be put to death. It has been supposed that this was an empty menace, and that Wellington dared not carry it into execution. Be it remembered that the order to Don Carlos was explicit; that it was delivered on 20th October when the Governor was treating for surrender, and that Don Carlos was not one to be squeamish about carrying it out to the letter. Happily the threat proved enough. Pamplona was delivered unmarmed into the hands of Don Carlos on 31st October.” Here there was a threat of reprisals, of reprisals against the military, not the civil population, and it succeeded. The Manual of Military Law gives the following examples of reprisals, and the threat of reprisals: “Early in 1813 the British Government having sent to England to be tried for treason 23 Irishmen naturalized in the United States who had been captured on vessels of the United States, Congress authorized the President to retaliate. Under this Act General Dearborn placed in close confinement 23 prisoners taken at Fort
George. General Prevost, under the express direction of Lord Bathurst, ordered the close imprisonment of double the number of commissioned and non-commissioned United States officers. This was followed by a threat of unmitigated severity against American citizens and villages in case the system of retaliation was pursued. Mr. Madison retaliated by putting into confinement a similar number of British officers taken by the United States. General Prevost immediately retaliated by subjecting to the same discipline all his prisoners whatsoever. ... A better temper, however, soon came over the British Government, by whom the system had been initiated. A party of United States officers who were prisoners of war in England were released on parole with instructions to state to the President that the 23 prisoners who had been charged with treason in England had not been tried but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all officers on both sides. (Wharton: Digest of International Law.) During the Franco-Prussian War, 1870-1, the French captured 40 merchant ships and made their crews prisoners of war. Count Bismarck, who considered it contrary to International Law to retain these men as prisoners, demanded their liberation, and when the French refused it ordered by way of reprisals 40 French private individuals of local importance to be arrested and sent as prisoners of war to Bremen, where they were kept until the end of the war. (Count Bismarck, as it happened, was decidedly wrong, for France had, as the laws then stood, in no way committed an illegal act by retaining the German crews as prisoners of war.) The Germans in 1870-1 by way of reprisals for offenses committed by inhabitants in taking part in the attack on troops, convoys, messengers, etc., exacted fines or burnt down buildings. At Charmes the town casino was burnt down as punishment for inhabitants having fired on the escort of a convoy of prisoners of war (Von Widdern, IV., 2, p. 33). The village of Fontenay was burnt down and a fine of 10,000,000 francs levied on the Province of Lorraine on account of the railway bridge near the village having been destroyed with the alleged connivance of inhabitants (Idem, IV., 2, pp. 290-303). In his proclamations of 31st May, 16th June, and 19th June, 1900, Field Marshal Lord Roberts threatened reprisals for wanton damage to property, and damage to railway and telegraph lines by the burning of the houses and farms in the vicinity of the places where damage was done.”
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SO FAR THE Manual of Military Law. To these examples may be added the Proclamation issued by General Von Kummer at Metz on October 30, 1870, which ran as follows: “If I encounter disobedience or resistance I shall act with all severity and according to the Laws of War. Whoever shall place in danger the