WAR TREATIES
[Sidenote: That Faith must be kept even with an Enemy.]
In the following pages we have only to do with war treaties in the
narrower sense, that is such as are concluded during the war itself and
have as their object either the regulation of certain relations during
the period of the war, or only an isolated and temporary measure. It
is a principle of all such treaties that: Etiam hosti fides servanda.
Every agreement is to be strictly observed by both sides in the spirit
and in the letter. Should this rule not be observed by one side then
the other has the right to regard the treaty as denounced.
How a treaty is to be concluded depends on the discretion of those who
conclude it. Drafts or models of treaties do not exist.
A.--_Treaties of Exchange_
[Sidenote: Exchange of Prisoners.]
These have for their object the mutual discharge or exchange of
prisoners of war. Whether the opponent will agree to an offer of this
kind or not, depends entirely upon himself.
The usual stipulation is: An equal number on both sides. That is only
another way of saying that a surplus of prisoners on the one side need
not be handed over.
The restitution of a greater number of common soldiers against officers
can be stipulated; in that case, the relative value of different grades
must be precisely fixed in the treaty.
B.--_Treaties of Capitulation_
[Sidenote: Capitulations--they cannot be too meticulous.]
The object of these is the surrender of fortresses or strong places as
also of troops in the open field. Here again there can be no talk of a
generally accepted model. The usages of war have, however, displayed
some rules for capitulations, the observance of which is to be
recommended:
1. Before any capitulation is concluded, the authority of the
Commander who concludes it should be formally and unequivocally
authenticated. How necessary a precaution of this kind is, is
shown by the capitulations of Rapp at Danzig, and of Gouvion
St. Cyr at Dresden, in 1813, which were actually annulled by
the refusal of the General Staff of the Allies to ratify them.
At the trial of Bazaine the indictment by General Rivière
denied the title of the Marshal to conclude a capitulation.
2. If one of the parties to the treaty makes it a condition that
the confirmation of the monarch, or the Commander-in-Chief,
or even the national assembly is to be obtained, then this
circumstance must be made quite clear. Also care is to be
taken that in the event of ratification being refused every
advantage that might arise from an ambiguous proceeding on the
part of one opponent, be made impossible.
3. The chief effect of a capitulation is to prevent that portion
of the enemy’s force which capitulates from taking any part
in the conflict during the rest of the war, or it may be for
a fixed period. The fate of the capitulating troops or of the
surrendered fortress differs in different cases.[80] In the
Treaty of Capitulation every condition agreed upon both as to
time and manner must be expressed in precise and unequivocable
words. Conditions which violate the military honor of those
capitulated are not permissible according to modern views.
Also, if the capitulation is an unconditional one or, to use
the old formula, is “at discretion,” the victor does not
thereby, according to the modern laws of war, acquire a right
of life and death over the persons capitulating.
4. Obligations which are contrary to the laws of nations, such
as, for example, to fight against one’s own Fatherland during
the continuation of the war, cannot be imposed upon the troops
capitulating. Likewise, also, obligations such as are forbidden
them by their own civil or military laws or terms of service,
cannot be imposed.
5. Since capitulations are treaties of war they cannot contain,
for those contracting them, either rights or duties which
extend beyond the period of the war, nor can they include
dispositions as to matters of constitutional law such as, for
example, a cession of territory.
6. A violation of any of the obligations of the treaty of
capitulation justifies an opponent in immediately renewing
hostilities without further ceremony.
[Sidenote: Of the White Flag.]
The external indication of a desire to capitulate is the raising of a
white flag. There exists no obligation to cease firing immediately on
the appearance of this sign (or to cease hostilities). The attainment
of a particular important, possibly decisive, point, the utilization of
a favorable moment, the suspicion of an illicit purpose in raising the
white flag, the saving of time, and the like, may induce the commanding
officer to disregard the sign until these reasons have disappeared.
If, however, no such considerations exist, then humanity imposes an
immediate cessation of hostilities.
C.--_Safe-conducts_
[Sidenote: Of Safe-Conducts.]
The object of these is to secure persons or things from hostile
treatment. The usages of war in this matter furnish the following rules:
1. Letters of safe-conduct, for persons, can only be given to such
persons as are certain to behave peaceably and not to misuse
them for hostile purposes; letters of safe-conduct for things
are only to be granted under a guarantee of their not being
employed for warlike purposes.
2. The safe-conducts granted to persons are personal to them,
_i.e._, they are not available for others. They do not extend
to their companions unless they are expressly mentioned.
An exception is only to be made in the case of diplomatists of
neutral States, in whose case their usual entourage is assumed
to be included even though the members are not specifically
named.
3. The safe-conduct is revocable at any time; it can even be
altogether withdrawn or not recognized by another superior, if
the military situation has so altered that its use is attended
with unfavorable consequences for the party which has granted
it.
4. A safe-conduct for things on the other hand is not confined to
the person of the bearer. It is obvious that if the person of
the bearer appears at all suspicious, the safe-conduct can
be withdrawn. This can also happen in the case of an officer
who does not belong to the authority which granted it. The
officer concerned is in this case fully responsible for his
proceedings, and should report accordingly.
D.--_Treaties of Armistice_
[Sidenote: Of Armistices.]
By armistice is understood a temporary cessation of hostilities by
agreement. It rests upon the voluntary agreement of both parties. The
object is either the satisfaction of a temporary need such as carrying
away the dead, collecting the wounded, and the like, or the preparation
of a surrender or of negotiations for peace.
A general armistice must accordingly be distinguished from a local or
particular one. The general armistice extends to the whole seat of war,
to the whole army, and to allies; it is therefore a formal cessation
of the war. A particular armistice on the contrary relates only to
a part of the seat of war, to a single part of the opposing army.
Thus the armistice of Poischwitz in the autumn of 1813 was a general
armistice; that of January 28th, 1871, between Germany and France, was
a particular or local one, since the South-Eastern part of the theater
of war was not involved.
The right to conclude an armistice, whether general or
particular, belongs only to a person in high command, _i.e._, the
Commander-in-Chief. Time to go and obtain the consent of the ruling
powers may be wanting. However, if the object of the armistice is
to begin negotiations for peace, it is obvious that this can only be
determined by the highest authorities of the State.
If an agreement is concluded, then both sides must observe its
provisions strictly in the letter and the spirit. A breach of the
obligations entered into on the one side can only lead to the immediate
renewal of hostilities on the other side.[81] A notification is in this
case only necessary if the circumstances admit of the consequent loss
of time. If the breach of the armistice is the fault of individuals,
then the party to whom they belong is not immediately responsible and
cannot be regarded as having broken faith. If, therefore, the behavior
of these individuals is not favored or approved by their superiors,
there is no ground for a resumption of hostilities. But the guilty
persons ought, in such case, to be punished by the party concerned.
Even though the other party does not approve the behavior of the
trespassers but is powerless to prevent such trespasses, then the
opponent is justified in regarding the armistice as at an end. In
order to prevent unintentional violation both parties should notify
the armistice as quickly as possible to all, or at any rate to the
divisions concerned. Delay in the announcement of the armistice through
negligence or bad faith lies, of course, at the door of him whose
duty it was to announce it. A violation due to the bad faith of an
individual is to be sternly punished.
No one can be compelled to give credit to a communication from the
enemy to the effect that an armistice has been concluded; the teaching
of military history is full of warnings against lightly crediting such
communications.[82]
A fixed form for the conclusion of an armistice is not prescribed.
A definite and clear declaration is sufficient. It is usual and is
advisable to have treaties of this kind in writing in order to exclude
all complication, and, in the case of differences of opinion later on,
to have a firm foundation to go upon.
During the armistice nothing must occur which could be construed
as a continuation of hostilities, the _status quo_ must rather be
observed as far as possible, provided that the wording of the treaty
does not particularize anything to the contrary. On the other hand
the belligerents are permitted to do everything which betters or
strengthens their position after the expiry of the armistice and
the continuation of hostilities. Thus, for example, troops may
unhesitatingly be exercised, fresh ones recruited, arms and munitions
manufactured, and food supplies brought up, troops shifted and
reenforcements brought on the scene. Whether destroyed or damaged
fortifications may also be restored is a question to which different
answers are given by influential teachers of the law of nations. It is
best settled by express agreement in concrete cases, and so with the
revictualing of a besieged fortress.
As regards its duration, an armistice can be concluded either for a
determined or an undetermined period, and with or without a time for
giving notice. If no fixed period is agreed upon, then hostilities can
be recommenced at any time. This, however, is to be made known to the
enemy punctually, so that the resumption does not represent a surprise.
If a fixed time is agreed on, then hostilities can be recommenced the
very moment it expires, and without any previous notification. The
commencement of an armistice is, in the absence of an express agreement
fixing another time, to date from the moment of its conclusion; the
armistice expires at dawn of the day to which it extends. Thus an
armistice made to last until January 1st comes to an end on the last
hour of December 31st, and a shorter armistice with the conclusion
of the number of hours agreed upon; thus, for example, an armistice
concluded on May 1st at 6 P.M. for 48 hours last until May 3rd at 6
P.M.
PART II
USAGES OF WAR IN REGARD TO ENEMY TERRITORY AND ITS INHABITANTS
CHAPTER I
RIGHTS AND DUTIES OF THE INHABITANTS
[Sidenote: The Civil Population is not to be regarded as an enemy.]
It has already been shown in the introduction that war concerns not
merely the active elements, but that also the passive elements are
involved in the common suffering, _i.e._, the inhabitants of the
occupied territory who do not belong to the army. Opinions as to the
relations between these peaceable inhabitants of the occupied territory
and the army in hostile possession have fundamentally altered in the
course of the last century. Whereas in earlier times the devastation of
the enemy’s territory, the destruction of property, and, in some cases
indeed, the carrying away of the inhabitants into bondage or captivity,
were regarded as a quite natural consequence of the state of war, and
whereas in later times milder treatment of the inhabitants took place
although destruction and annihilation as a military resource still
continued to be entertained, and the right of plundering the private
property of the inhabitants remained completely unlimited--to-day,
the universally prevalent idea is that the inhabitants of the enemy’s
territory are no longer to be regarded, generally speaking, as enemies.
It will be admitted, as a matter of law, that the population is, in
the exceptional circumstances of war, subjected to the limitations,
burdens, and measures of compulsion conditioned by it, and owes
obedience for the time being to the power _de facto_, but may continue
to exist otherwise undisturbed and protected as in time of peace by the
course of law.
[Sidenote: They must not be molested.]
It follows from all this, as a matter of right, that, as regards the
personal position of the inhabitants of the occupied territory, neither
in life or in limb, in honor or in freedom, are they to be injured,
and that every unlawful killing; every bodily injury, due to fraud
or negligence; every insult; every disturbance of domestic peace;
every attack on family, honor, and morality and, generally, every
unlawful and outrageous attack or act of violence, are just as strictly
punishable as though they had been committed against the inhabitants
of one’s own land. There follows, also, as a right of the inhabitants
of the enemy territory, that the invading army can only limit their
personal independence in so far as the necessity of war unconditionally
demands it, and that any infliction that needlessly goes beyond this is
to be avoided.
[Sidenote: Their duty.]
As against this right, there is naturally a corresponding duty on the
part of the inhabitants to conduct themselves in a really peaceable
manner, in no wise to participate in the conflict, to abstain from
every injury to the troops of the power in occupation, and not to
refuse obedience to the enemy’s government. If this presumption is not
fulfilled, then there can no longer be any talk of violations of the
immunities of the inhabitants, rather they are treated and punished
strictly according to martial law.
[Sidenote: Of the humanity of the Germans and the barbarity of the
French.]
The conception here put forward as to the relation between the army
and the inhabitants of an enemy’s territory, corresponds to that of
the German Staff in the years 1870-71. It was given expression in
numerous proclamations, and in still more numerous orders of the
day, of the German Generals. In contrast to this the behavior of the
French authorities more than once betrays a complete ignorance of the
elementary rules of the law of nations, alike in their diplomatic
accusations against the Germans and in the words used towards their
own subjects. Thus, on the outbreak of the war, a threat was addressed
to the Grand Duchy of Baden, not only by the French Press but also
officially (von amtlicher Stelle),[83] “that even its women would not
be protected.” So also horses of Prussian officers, who had been shot
by the peasants, were publicly put up to auction by the murderers. So
also the Franctireurs threatened the inhabitants of villages occupied
by the Germans that they would be shot and their houses burnt down
if they received the enemy in their houses or “were to enter into
intercourse with them.” So also the prefect of the Cote d’Or, in an
official circular of November 21st, urges the sub-prefects and mayors
of his Department to a systematic pursuit of assassination, when he
says: “The Fatherland does not demand of you that you should assemble
_en masse_ and openly oppose the enemy, it only expects that three
or four determined men should leave the village every morning and
conceal themselves in a place indicated by nature, from which, without
danger, they can shoot the Prussians; above all, they are to shoot at
the enemy’s mounted men whose horses they are to deliver up at the
principal place of the Arrondissement. I will award a bonus to them
(for the delivery of such horses), and will publish their heroic deed
in all the newspapers of the Department, as well as in the _Moniteur_.”
But this conception of the relation between the inhabitants and the
hostile army not only possessed the minds of the provincial authorities
but also the central government at Tours itself, as is clear from the
fact that it held it necessary to stigmatize publicly the members of
the municipal commission at Soissons who, after an attempt on the life
of a Prussian sentry by an unknown hand, prudently warned their members
against a repetition of such outrages, when it [the central government]
ordered “that the names of the men who had lent themselves to the
assistance and interpretation of the enemy’s police be immediately
forthcoming.”[84] And if, on the French side, the proclamation of
General von Falckenstein is cited as a proof of similar views on the
German side--the proclamation wherein the dwellers on the coast of the
North Sea and the Baltic are urged to participate in the defense of
the coast, and are told: “Let every Frenchman who sets foot on your
coast be forfeit”--as against this all that need be said is that this
incitement, as is well known, had no effect in Germany and excited the
greatest surprise and was properly condemned.
* * * * *
[Sidenote: What the Invader may do.]
Having thus developed the principles governing the relation between
the hostile army and the inhabitants, we will now consider somewhat
more closely the duties of the latter and the burdens which, in a
given case, it is allowable to impose upon it. Obviously a precise
enumeration of every kind of service which may be demanded from them is
impossible, but the following of the most frequent occurrence are:
1. Restriction of post, railway and letter communication,
supervision, or, indeed, total prohibition of the same.
2. Limitation of freedom of movement within the country,
prohibition to frequent certain parts of the seat of war, or
specified places.
3. Surrender of arms.
4. Obligation to billet the enemy’s soldiers; prohibition of
illumination of windows at night and the like.
5. Production of conveyances.
6. Performance of work on streets, bridges, trenches (_Gräben_),
railways, buildings, etc.
7. Production of hostages.
As to 1, the necessity of interrupting, in many cases, railway, postal,
and telegraph communication, of stopping them or, at the least,
stringently supervising them, hardly calls for further proof. Human
feeling on the part of the commanding officer will know what limits to
fix, where the needs of the war and the necessities of the population
permit of mutual accommodation.
As to 2, if according to modern views no inhabitant of occupied
territory can be compelled to participate directly in the fight
against his own Fatherland, so, conversely, he can be prevented from
reenforcing his own army. Thus the German staff in 1870, where it had
acquired authority, in particular in Alsace-Lorraine, sought to prevent
the entrance of the inhabitants into the French army, even as in the
Napoleonic wars the French authorities sought to prevent the adherence
of the States of the Rhine Confederation to the army of the Allies.
[Sidenote: A man may be compelled to betray his Country.]
The view that no inhabitant of occupied territory can be compelled to
participate directly in the struggle against his own country is subject
to an exception by the general usages of war which must be recorded
here: the calling up and employment of the inhabitants as guides on
unfamiliar ground. However much it may ruffle human feeling, to compel
a man to do harm to his own Fatherland, and indirectly to fight his
own troops, none the less no army operating in an enemy’s country will
altogether renounce this expedient.[85]
[Sidenote: And Worse.]
But a still more severe measure is the compulsion of the inhabitants to
furnish information about their own army, its strategy, its resources,
and its military secrets. The majority of writers of all nations are
unanimous in their condemnation of this measure. Nevertheless it cannot
be entirely dispensed with; doubtless it will be applied with regret,
but the argument of war will frequently make it necessary.[86]
[Sidenote: Of forced labor.]
[Sidenote: Of a certain harsh measure and its justification.]
As to 5 and 6, the summoning of the inhabitants to supply vehicles and
perform works has also been stigmatized as an unjustifiable compulsion
upon the inhabitants to participate in “Military operations.” But it is
clear that an officer can never allow such a far-reaching extension of
this conception, since otherwise every possibility of compelling work
would disappear, while every kind of work to be performed in war, every
vehicle to be furnished in any connection with the conduct of war,
is or may be bound up with it. Thus the argument of war must decide.
The German Staff, in the War of 1870, moreover, rarely made use of
compulsion in order to obtain civilian workers for the performance of
necessary works. It paid high wages and, therefore, almost always had
at its disposal sufficient offers. This procedure should, therefore,
be maintained in future cases. The provision of a supply of labor is
best arranged through the medium of the local authorities. In case of
refusal of workers punishment can, of course, be inflicted. Therefore
the conduct of the German civil commissioner, Count Renard--so strongly
condemned by French jurists and jurists with French sympathies--who, in
order to compel labor for the necessary repair of a bridge, threatened,
in case of further refusal, after stringent threats of punishment
had not succeeded in getting the work done, to punish the workers by
shooting some of them, was in accordance with the actual laws of war;
_the main thing was that it attained its object_, without its being
necessary to practise it. The accusation made by the French that, on
the German side, Frenchmen were compelled to labor at the siege works
before Strassburg, has been proved to be incorrect.
[Sidenote: Hostages.]
7. By hostages are understood those persons who, as security or bail
for the fulfilment of treaties, promises or other claims, are taken or
detained by the opposing State or its army. Their provision has been
less usual in recent wars, as a result of which some Professors of the
law of nations have wrongly decided that the taking of hostages has
disappeared from the practise of civilized nations. As a matter of fact
it was frequently practised in the Napoleonic wars; also in the wars
of 1848, 1849, and 1859 by the Austrians in Italy; in 1864 and 1866 by
Prussia; in the campaigns of the French in Algiers; of the Russians in
the Caucasus; of the English in their Colonial wars, as being the usual
thing. The unfavorable criticisms of it by the German Staff in isolated
cases is therefore to be referred to different grounds of applied
expedients.[87]
[Sidenote: A “harsh and cruel” measure.]
A new application of “hostage-right” was practised by the German Staff
in the war of 1870, when it compelled leading citizens from French
towns and villages to accompany trains and locomotives in order to
protect the railways communications which were threatened by the
people. Since the lives of peaceable inhabitants were without any
fault on their part thereby exposed to grave danger, every writer
outside Germany has stigmatized this measure as contrary to the law
of nations and as unjustified towards the inhabitants of the country.
As against this unfavorable criticism it must be pointed out that
this measure, which was also recognized on the German side as harsh
and cruel, was only resorted to after declarations and instructions
of the occupying[88] authorities had proved ineffective, and that in
the particular circumstance it was the only method which promised to
be effective against the doubtless unauthorized, indeed the criminal,
behavior of a fanatical population.
[Sidenote: But it was “successful.”]
Herein lies its justification under the laws of war, but still more
in the fact that it proved completely successful, and that wherever
citizens were thus carried on the trains (whether result was due
to the increased watchfulness of the communes or to the immediate
influence on the population), the security of traffic was restored.[89]
To protect oneself against attack and injuries from the inhabitants and
to employ ruthlessly the necessary means of defense and intimidation
is obviously not only a right but indeed a duty of the staff of the
army. The ordinary law will in this matter generally not suffice, it
must be supplemented by the law of the enemy’s might. Martial law and
courts-martial must take the place of the ordinary jurisdiction.[90]
To Martial law are subject in particular:
1. All attacks, violations, homicides, and robberies, by soldiers
belonging to the army of occupation.
2. All attacks on the equipment of this army, its supplies,
ammunition, and the like.
3. Every destruction of communication, such as bridges, canals,
roads, railways and telegraphs.
4. War rebellion and war treason.
Only the fourth point requires explanation.
[Sidenote: War Rebellion.]
By war rebellion is to be understood the taking up of arms by the
inhabitants against the occupation; by war treason on the other hand
the injury or imperiling of the enemy’s authority through deceit or
through communication of news to one’s own army as to the disposition,
movement, and intention, etc., of the army in occupation, whether the
person concerned has come into possession of his information by lawful
or unlawful means (_i.e._, by espionage).
Against both of these only the most ruthless measures are effective.
Napoleon wrote to his brother Joseph, when, after the latter ascended
the throne of Naples, the inhabitants of lower Italy made various
attempts at revolt: “The security of your dominion depends on how
you behave in the conquered province. Burn down a dozen places which
are not willing to submit themselves. Of course, not until you have
first looted them; my soldiers must not be allowed to go away with
their hands empty. Have three to six persons hanged in every village
which has joined the revolt; pay no respect to the cassock. Simply
bear in mind how I dealt with them in Piacenza and Corsica.” The Duke
of Wellington, in 1814, threatened the South of France; “he will,
if leaders of factions are supported, burn the villages and have
their inhabitants hanged.” In the year 1815, he issued the following
proclamation: “All those who after the entry of the (English) army
into France leave their dwellings and all those who are found in the
service of the usurper will be regarded as adherents of his and as
enemies; their property will be used for the maintenance of the army.”
“These are the expressions in the one case of one of the great masters
of war and of the dominion founded upon war power, and in the other,
of a commander-in-chief who elsewhere had carried the protection of
private property in hostile lands to the extremest possible limit. Both
men as soon as a popular rising takes place resort to terrorism.”[91]
[Sidenote: “War Treason” and Unwilling Guides.]
A particular kind of war treason, which must be briefly gone into here,
inasmuch as the views of the jurists about it differ very strongly
from the usages of war, is the case of deception in leading the way,
perpetrated in the form of deliberate guiding of the enemy’s troops by
an inhabitant on a false or disadvantageous road. If he has offered
his services, then the fact of his treason is quite clear, but also
in case he was forced to act as guide his offense cannot be judged
differently, for he owed obedience to the power in occupation, he durst
in no case perpetrate an act of open resistance and positive harm but
should have, if the worst came to the worst, limited himself to passive
disobedience, and he must therefore bear the consequence.[92]
[Sidenote: Another deplorable necessity.]
However intelligible the inclination to treat and to judge an offense
of this kind from a milder standpoint may appear, none the less the
leader of the troops thus harmed cannot do otherwise than punish the
offender with death, since only by harsh measures of defense and
intimidation can the repetition of such offenses be prevented. In this
case a court-martial must precede the infliction of the penalty. The
court-martial must however be on its guard against imputing hastily
a treasonable intent to the guide. The punishment of misdirection
requires in every case proof of evil intention.
Also it is not allowable to diplomatic agents to make communications
from the country which they inhabit during the war to any side as
to the military situation or proceedings. Persons contravening this
universally recognized usage of war may be immediately expelled or in
the case of great danger arrested.
CHAPTER II
PRIVATE PROPERTY IN WAR
[Sidenote: Of Private Property and its immunities.]
Since, according to the law of nations and the law of war to-day, war
makes enemies of States and not of private persons, it follows that
every arbitrary devastation of the country and every destruction of
private property, generally speaking every unnecessary (_i.e._, not
required by the necessity of war) injury to alien property is contrary
to the law of nations. Every inhabitant of the territory occupied is
therefore to be protected alike in his person and in his property.
In this sense spoke King William to the French at the beginning of the
Campaign of 1870: “I wage war with the French soldiers and not with the
French citizens. The latter will therefore continue to enjoy security
for their person and their goods, so long as they do not by hostile
undertakings against German troops deprive me of the right to afford
them my protection.”
The question stands in quite another position if the necessity of war
demands the requisition of the stranger’s property, whether public or
private. In this case of course every sequestration, every temporary
or permanent deprivation, every use, every injury and all destruction
are permitted.
The following principles therefore result:
1. Prohibited unconditionally are all aimless destructions,
devastations, burnings, and ravages of the enemy’s country. The
soldier who practises such things is punished as an offender
according to the appropriate laws.[93]
2. Permissible on the other hand are all destructions and injuries
dictated by military considerations; and, indeed,
(_a_) All demolitions of houses and other buildings, bridges,
railways, and telegraphic establishments, due to the
necessity of military operations.
(_b_) All injuries which are required through military
movements in the country or for earthworks for attack or
defense.
Hence the double rule: No harm must be done, not even the very
slightest, which is not dictated by military consideration; every kind
of harm may be done, even the very utmost, which the conduct of war
requires or which comes in the natural course of it.
Whether the natural justification exists or not is a subject for
decision in each individual case. The answer to this question lies
entirely in the power of the Commanding Officer, from whose conscience
our times can expect and demand as far-reaching humanity as the object
of war permits.
On similar principles must be answered the question as to the temporary
use of property, dispositions as to houses and the like: no inhabitant
of the occupied territory is to be disturbed in the use and free
disposition of his property, on the other hand the necessity of war
justifies the most far-reaching disturbance, restriction, and even
imperiling of his property. In consequence there are permitted:
1. Requisitions of houses and their furniture for the purpose of
billeting troops.
2. Use of houses and their furniture for the care of the sick and
wounded.
3. Use of buildings for observation, shelter, defense,
fortification, and the like.
Whether the property owners are subjects of the occupied territory
or of a Foreign State is a matter of complete indifference; also the
property of the Sovereign and his family is subject to no exception,
although to-day it is usually treated with courtesy.
[Sidenote: Of German behavior.]
The conception of the inviolability of private property here depicted
was shared by the Germans in 1870 and was observed. If on the French
side statements to the contrary are even to-day given expression,
they rest either on untruth or exaggeration. It certainly cannot be
maintained that no illegitimate violations of private property by
individuals ever occurred. But that kind of thing can never be entirely
avoided even among the most highly cultivated nations, and the best
disciplined armies. In every case the strictest respect for private
property was enjoined[94] upon the soldiers by the German Military
Authorities after crossing the frontier, and strong measures were taken
in order to make this injunction effective; the property of the French
was indeed, as might be shown in numerous cases, protected against the
population itself, and was even in several cases saved at the risk of
our own lives.[95]
[Sidenote: The gentle Hun and the looking-glass.]
In like manner arbitrary destructions and ravages of buildings and
the like did not occur on the German side where they were not called
forth by the behavior of the inhabitants themselves. They scarcely
ever occurred except where the inhabitants had foolishly left their
dwellings and the soldiers were excited by closed doors and want of
food. “If the soldier finds the doors of his quarters shut, and the
food intentionally concealed or buried, then necessity impels him to
burst open the doors and to track the stores, and he then, in righteous
anger, destroys a mirror, and with the broken furniture heats the
stove.”[96]
If minor injuries explain themselves in this fashion in the eyes of
every reasonable and thinking man, so the result of a fundamental and
unprejudiced examination has shown that the destructions and ravages
on a greater scale, which were made a reproach against the German
Army, have in no case overstepped the necessity prescribed by the
military situation. Thus the much talked of and, on the French side,
enormously exaggerated, burning down of twelve houses in Bazeilles,
together with the shooting of an inhabitant, were completely justified
and, indeed, in harmony with the laws of war; indeed one may maintain
that the conduct of the inhabitants would have called for the complete
destruction of the village and the condemnation of all the adult
inhabitants by martial law.
CHAPTER III
BOOTY AND PLUNDERING
[Sidenote: Booty.]
In section 1, the inhabitant of the enemy’s territory was described
as a subject of legal rights and duties, who, so far as the nature of
war allows, may continue to live protected as in time of peace by the
course of law; further, in section 2, property, whether it be public
or private, was likewise, so far as war allows it, declared to be
inviolable--it therefore follows logically that there can exist no
right to the appropriation of the property, _i.e._, a right to booty
or plundering. Opinions as to this have, in the course of the last
century, undergone a complete change; the earlier unlimited right of
appropriation in war is to-day recognized in regard to public property
as existing only in defined circumstances.
In the development of the principles recognized to-day we have to
distinguish.
1. State property and unquestionably:
(_a_) immovable,[97]
(_b_) movable.[97]
2. Private property:
(_a_) immovable,
(_b_) movable.
Immovable State property is now no longer forfeited as booty; it may,
however, be used if such use is in the interests of military operation,
and even destroyed, or temporarily administered. While in the wars of
the First French Empire, Napoleon, in numerous cases, even during the
war itself, disposed of the public property of the enemy (domains,
castles, mines, salt-works) in favor of his Marshals and diplomatists,
to-day an appropriation of this kind is considered by international
opinion to be unjustified and, in order to be valid, requires a formal
treaty between the conqueror and the conquered.
[Sidenote: The State realty may be used but must not be wasted.]
The Military Government by the army of occupation is only a
Usufructuary _pro tempore_. It must, therefore, avoid every purposeless
injury, it has no right to sell or dispose of the property. According
to this juristic view the military administration of the conqueror
disposes of the public revenue and taxes which are raised in the
occupied territory, with the understanding, however, that the regular
and unavoidable expenses of administration continue to be defrayed. The
military authority controls the railways and telegraphs of the enemy’s
State, but here also it possesses only the right of use and has to give
back the material after the end of the war. In the administration of
the State forests, it is not bound to follow the mode of administration
of the enemy’s Forest authorities, but it must not damage the woods by
excessive cutting, still less may it cut them down altogether.
[Sidenote: State Personalty is at the mercy of the victor.]
Movable State property on the other hand can, according to modern
views, be unconditionally appropriated by the conqueror.
This includes public funds,[98] arms, and munition stores, magazines,
transport, material supplies useful for the war and the like. Since
the possession of things of this kind is of the highest importance for
the conduct of the war, the conqueror is justified in destroying and
annihilating them if he is not able to keep them.
On the other hand an exception is made as to all objects which serve
the purposes of religious worship, education, the sciences and arts,
charities and nursing. Protection must therefore be extended to:
the property of churches and schools, of libraries and museums,
of almshouses and hospitals. The usual practise of the Napoleonic
campaigns[99] so ruthlessly resorted to of carrying off art treasures,
antiquities, and whole collections, in order to incorporate them in
one’s own art galleries, is no longer allowed by the law of nations
to-day.[100]
[Sidenote: Private realty.]
Immovable private property may well be the object of military
operations and military policy, but cannot be appropriated as booty,
nor expended for fiscal or private purposes of acquisition. This also
includes, of course, the private property of the ruling family, in so
far as it really possesses this character and is not Crown Lands, whose
fruits are expended as a kind of Civil List or serve to supplement the
same.
[Sidenote: Private personalty.]
Movable private property, finally, which in earlier times was the
undeniable booty of the conqueror, is to-day regarded as inviolable.
The carrying off of money, watches, rings, trinkets, or other objects
of value, is therefore to be regarded as criminal robbery and to be
punished accordingly.
The appropriation of private property is regarded as partially
permissible in the case of those objects which the conquered combatant
carries on his own person. Still here also, opinions against the
practise make it clear that the taking away of objects of value, money,
and such-like is not permissible, and only those required for the
equipment of troops are declared capable of appropriation.
The recognition of the inviolability of private property does not of
course exclude the sequestration of such objects as can, although they
are private property, at the same time be regarded as of use in war.
This includes, for example, warehouses of supplies, stores of arms
in factories, depots of conveyances or other means of traffic, as
bicycles, motor cars, and the like, or other articles likely to be of
use with advantage to the army, as telescopes, etc. In order to assure
to the possessors compensation from their government, equity enjoins
that a receipt be given for the sequestration.
[Sidenote: “Choses in action.”]
Logically related to movable property are the so-called “incorporeal
things.” When Napoleon, for example, appropriated the debts due to
the Elector of Hesse and thus compelled the Elector’s debtors to pay
their debts to him; when he furthermore in 1807 allowed the debts owed
by the inhabitants of the Duchy of Warsaw to Prussian banks and other
public institutions, and indeed even to private persons in Prussia, to
be assigned by the King of Prussia, and then sold them to the King of
Saxony for 200 million francs, this was, according to the modern view,
nothing better than robbery.
[Sidenote: Plundering is wicked.]
Plundering is to be regarded as the worst form of appropriation of
a stranger’s property. By this is to be understood the robbing of
inhabitants by the employment of terror and the abuse of a military
superiority. The main point of the offense thus consists in the fact
that the perpetrator, finding himself in the presence of the browbeaten
owner, who feels defenseless and can offer no opposition, appropriates
things, such as food and clothing, which he does not want for his own
needs. It is not plundering but downright burglary if a man pilfers
things out of uninhabited houses or at times when the owner is absent.
Plundering is by the law of nations to-day to be regarded as invariably
unlawful. If it may be difficult sometimes in the very heat of the
fight to restrain excited troops from trespasses, yet unlawful
plundering, extortion, or other violations of property, must be
most sternly punished, it matters not whether it be done by members
of unbroken divisions of troops or by detached soldiers, so-called
marauders, or by the “hyenas of the battlefield.” To permit such
transgressions only leads, as experience shows, to bad discipline and
the demoralization of the Army.[101]
In the Franco-Prussian War, plundering and taking of booty were on
the German side sternly forbidden. The Articles of War in question
were repeatedly recalled to every soldier just as in time of peace,
also numerous orders of the day were issued on the part of the higher
authorities. Transgressions were ruthlessly punished, in some cases
even after the War.
CHAPTER IV
REQUISITIONS AND WAR LEVIES
[Sidenote: Requisitions.]
By requisitions is to be understood the compulsory appropriation of
certain objects necessary for the army which is waging war. What things
belong to this category is quite undetermined. They were primarily
the means to feed man and beast, next to clothe and equip the members
of the army, _i.e._, to substitute clothing and equipment for that
which has worn out or become insufficient in view of the altered
circumstances and also to supplement it; furthermore, there will be
such objects as serve for the transport of necessaries, and finally all
objects may be demanded which serve to supply a temporary necessity,
such as material and tools for the building of fortifications,
bridges, railways and the like. That requisitions of this kind are
unconditionally necessary and indispensable for the existence of the
army, no one has yet denied; and whether one bases it legally upon
necessity or merely upon the might of the stronger is a matter of
indifference as far as the practise is concerned.
[Sidenote: How the docile German learnt the “better way.”]
The right generally recognized by the law of nations of to-day to
requisition is a child of the French Revolution and its wars. It is
known that as late as in the year 1806, Prussian battalions camped
close to big stacks of corn and bivouacked on potato fields without
daring to appease their hunger with the property of the stranger; the
behavior of the French soon taught them a better way. Every one knows
the ruthless fashion in which the army of the French Republic and of
Napoleon satisfied their wants, but of late opinion laying stress
upon the protection of private property has asserted itself. Since a
prohibition of requisitions would, considering what war is, have no
prospect of acceptance under the law of nations, the demand has been
put forward that the objects supplied should at least be paid for.
This idea has indeed up till now not become a principle of war, the
right of requisitioning without payment exists as much as ever and will
certainly be claimed in the future by the armies in the field, and
also, considering the size of modern armies, must be claimed; but it
has at least become the custom to requisition with as much forbearance
as possible, and to furnish a receipt for what is taken, the discharge
of which is then determined on the conclusion of peace.
[Sidenote: To exhaust the country is deplorable but we mean to do it.]
In order to avoid overdoing it, as may easily happen in the case of
requisitions, it is often arranged that requisitions may never be
demanded by subordinates but only by the higher officers, and that the
local civil authorities shall be employed for the purpose. It cannot,
however, be denied that this is not always possible in war; that on the
contrary the leader of a small detachment and in some circumstances
even a man by himself may be under the necessity to requisition what
is indispensable to him. Article 40 of the Declaration of Brussels
requires that the requisitions (being written out) shall bear a direct
relation to the capacity and resources of a country, and, indeed, the
justification for this condition would be willingly recognized by every
one in theory, but it will scarcely ever be observed in practise. In
cases of necessity the needs of the army will alone decide, and a man
does well generally to make himself familiar with the reflection that,
in the changing and stormy course of a war, observance of the orderly
conduct of peaceful times is, with the best will, impossible.
In the Franco-Prussian War of 1870: much was requisitioned on the
German side. According to the opinion of all impartial writers it was
done with moderation and the utmost tenderness for the inhabitants,
even if in isolated cases excesses occurred. Receipts were always
furnished. Later, in the case of the army on the Meuse, as early as
the middle of October requisitions were, wherever it was possible,
entirely left out of account and everything was paid for in cash. Later
proceedings were frequently and indeed studiously conducted with a
precise estimate of the value in thalers or francs.[102] “Moreover,
military history knows of no campaign in which the victualing of an
army at such a distance from home was so largely conducted with its own
stores.”[103]
[Sidenote: “Buccaneering Levies.”]
By war levies or contributions is to be understood the raising of
larger or smaller sums of money from the parishes of the occupied
territory. They are thus to be distinguished from requisitions
since they do not serve for the satisfaction of a momentary want
of the army and consequently can only in the rarest cases be based
upon the necessity of war. These levies originated as so-called
“Brandschatzungen,” _i.e._, as a ransom from plundering and
devastation, and thus constituted, compared with the earlier looting
system, a step in the humanizing of war. Since the law of nations
to-day no longer recognizes any right to plundering and devastation,
and inasmuch as the principle that war is conducted only against
States, and not against private persons, is uncontested, it follows
logically that levies which can be characterized as simply booty-making
or plundering, that is to say, as arbitrary enrichment of the
conquerors, are not permitted by modern opinion. The conqueror is, in
particular, not justified in recouping himself for the cost of the war
by inroads upon the property of private persons, even though the war
was forced upon him.
War levies are therefore only allowed:
1. As a substitute for taxes.
2. As a substitute for the supplies to be furnished as
requisitions by the population.
3. As punishments.
As to 1: This rests upon the right of the power in occupation to raise
and utilize taxes.
As to 2: In cases where the provision of prescribed objects in a
particular district is impossible, and in consequence the deficiency
has to be met by purchase in a neighboring district.
As to 3: War levies as a means of punishing individuals or whole
parishes were very frequently employed in the Franco-Prussian War.
If French writers accuse the German staff of excessive severity
in this respect, on the other hand it is to be remarked that the
embittered character which the war took on in its latest stage, and
the lively participation of the population therein, necessitated the
sternest measures. But a money tax, judging by experience, operates,
in most cases, on the civil population. The total sum of all the
money contributions raised in the War of 1870 may be called a minimum
compared with the sums which Napoleon was accustomed to draw from the
territories occupied by him. According to official estimates, havoc
amounting to about six milliards of francs was visited upon the four
million inhabitants of Prussia in the years 1807-13.
In regard to the raising of war levies it should be noted that they
should only be decreed by superior officers and only raised with the
cooperation of the local authorities. Obviously an acknowledgment of
every sum raised is to be furnished.
1. In the military laws of different countries the right of
levying contributions is exclusively reserved to the
Commander-in-Chief.
2. The usual method of raising taxes would, in consequence of
their slowness, not be in harmony with the demands of the War;
usually, therefore, the Civil Authorities provide themselves
with the necessary money by a loan, the repayment of which is
provided for later by law.
CHAPTER V
ADMINISTRATION OF OCCUPIED TERRITORY
[Sidenote: How to administer an Invaded Country.]
According to earlier views right up to the last century, a Government
whose army had victoriously forced itself into the territory of a
foreign State could do exactly as it pleased in the part occupied.
No regard was to be paid to the constitution, laws, and rights of
the inhabitants. Modern times have now introduced, in this respect,
a change in the dominant conceptions, and have established a certain
legal relationship between the inhabitants and the army of occupation.
If, in the following pages, we develop briefly the principles which are
applied to the government of territory in occupation, it must none the
less be clearly emphasized that the necessities of war not only allow a
deviation from these principles in many cases but in some circumstances
make it a positive duty of the Commander.
The occupation of a portion of the enemy’s territory does not amount
to an annexation of it. The right of the original State authority
consequently remains in existence; it is only suspended when it comes
into collision with the stronger power of the conqueror during the
term of the occupation, _i.e._, only for the time being.[104]
But the administration of a country itself cannot be interrupted by
war; it is therefore in the interest of the country and its inhabitants
themselves, if the conqueror takes it in hand, to let it be carried on
either with the help of the old, or, if this is not feasible, through
the substitution of the new, authorities.
From this fundamental conception now arises a series of rights and
duties of the conqueror on the one side and of the inhabitants on the
other.
[Sidenote: The Laws remain--with qualification.]
Since the conqueror is only the substitute for the real Government, he
will have to establish the continuation of the administration of the
country with the help of the existing laws and regulations. The issue
of new laws, the abolition or alteration of old ones, and the like,
are to be avoided if they are not excused by imperative requirements
of war; only the latter permit legislation which exceeds the need of
a provisional administration. The French Republic, at the end of the
eighteenth century, frequently abolished the preexisting constitution
in the States conquered by it, and substituted a Republican one, but
this is none the less contrary to the law of nations to-day. On the
other hand, a restriction of the freedom of the Press, of the right
of association, and of public meeting, the suspension of the right of
election to the Parliament and the like, are in some circumstances a
natural and unavoidable consequence of the state of war.
[Sidenote: The Inhabitants must obey.]
The inhabitants of the occupied territory owe the same obedience to the
organs of Government and administration of the conqueror as they owed
before the occupation to their own. An act of disobedience cannot be
excused by reference to the laws or commands of one’s own Government;
even so an attempt to remain associated with the old Government or
to act in agreement with it is punishable. On the other hand, the
provisional Government can demand nothing which can be construed as
an offense against one’s own Fatherland or as a direct or indirect
participation in the war.
[Sidenote: Martial Law.]
The civil and criminal jurisdiction continues in force as before. The
introduction of an extraordinary administration of justice--martial law
and courts-martial--is therefore only to take place if the behavior of
the inhabitants makes it necessary. The latter are, in this respect,
to be cautioned, and any such introduction is to be made known by
appropriate means. The courts-martial must base any sentence on
the fundamental laws of justice, after they have first impartially
examined, however summarily, the facts and have allowed the accused a
free defense.
The conqueror can, as administrator of the country and its Government,
depose or appoint officials. He can put on their oath the civil
servants, who continue to act, as regards the scrupulous discharge of
their duties. But to compel officials to continue in office against
their will does not appear to be in the interest of the army of
occupation. Transgressions by officials are punished by the laws of
their country, but an abuse of their position to the prejudice of the
army of occupation will be punished by martial law.
Also judicial officers can be deposed if they permit themselves to
oppose publicly the instructions of the provisional Government. Thus
it would not have been possible, if the occupation of Lorraine in the
year 1870-71 had been protracted, to avoid deposing the whole bench
of Judges at Nancy and substituting German Judges, since they could
not agree with the German demands in regard to the promulgation of
sentence.[105]
[Sidenote: Fiscal Policy.]
The financial administration of the occupied territory passes into
the hands of the conqueror. The taxes are raised in the preexisting
fashion. Any increase in them due to the war is enforced in the
form of “War levies.” Out of the revenue of the taxes the costs of
the administration are to be defrayed, as, generally speaking, the
foundations of the State property are to be kept undisturbed. Thus the
domains, forests, woodlands, public buildings and the like, although
utilized, leased, or let out, are not to be sold or rendered valueless
by predatory management. On the other hand it is permitted to apply all
surplus from the revenues of administration to the use of the conqueror.
The same thing holds good of railways, telegraphs, telephones, canals,
steamships, submarine cables and similar things; the conqueror has the
right of sequestration, of use and of appropriation of any receipts, as
against which it is incumbent upon him to keep them in good repair.
If these establishments belong to private persons, then he has indeed
the right to use them to the fullest extent; on the other hand he
has not the right to sequestrate the receipts. As regards the right
of annexing the rolling-stock of the railways, the opinions of
authoritative teachers of the law of nations differ from one another.
Whilst one section regard all rolling-stock as one of the most
important war resources of the enemy’s State, and in consequence claim
for the conqueror the right of unlimited sequestration, even if the
railways belonged to private persons or private companies,[106] on the
other hand the other section incline to a milder interpretation of
the question, in that they start from the view that the rolling-stock
forms, along with the immovable material of the railways, an
inseparable whole, and that one without the other is worthless and is
therefore subject to the same laws as to appropriation.[107] The latter
view in the year 1871 found practical recognition in so far as the
rolling-stock captured in large quantities by the Germans on the French
railways was restored at the end of the war; a corresponding regulation
was also adopted by the Hague Conference in 1899.
[Sidenote: Occupation must be real not fictitious.]
These are the chief principles for the administration of an occupied
country or any portion of it. From them emerges quite clearly on the
one hand the duties of the population, but also on the other the limits
of the power of the conqueror. But the enforcement of all these laws
presupposes the actual occupation of the enemy’s territory and the
possibility of really carrying them out.[108] So-called “fictitious
occupation,” such as frequently occurred in the eighteenth century
and only existed in a declaration of the claimant, without the
country concerned being actually occupied, are no longer recognized
by influential authorities on the law of nations as valid. If the
conqueror is compelled by the vicissitudes of war to quit an occupied
territory, or if it is voluntarily given up by him, then his military
sovereignty immediately ceases and the old State authority of itself
again steps into its rights and duties.
PART III
USAGES OF WAR AS REGARDS NEUTRAL STATES
[Sidenote: What neutrality means.]
By the neutrality of a State is to be understood non-participation
in the war by third parties; the duly attested intention not to
participate in the conduct of the war either in favor of, or to the
prejudice of, either one of the two belligerents. This relationship
gives rise in the case of the neutral State to certain rights but also
to fixed duties. These are not laid down by international regulations
or international treaties; we have therefore here also to do with
“Usages of War.”
[Sidenote: A neutral cannot be all things to all men; therefore he must
be nothing to any of them.]
What is principally required of a neutral State is equal treatment
of both belligerents. If, therefore, the neutral State could support
the belligerents at all, it would have to give its support in equal
measure to both parties. As this is quite impossible and as one of the
two parties--and probably every one of them--would regard itself as
injured in any case, it therefore follows as a practical and empirical
principle “not to support the two [_i.e._, either or both] belligerents
is the fundamental condition of neutrality.”
[Sidenote: But there are limits to this detachment.]
But this principle would scarcely be maintained in its entirety,
because in that case the trade and intercourse of the neutral
State would in some circumstances be more injured than that of the
belligerents themselves. But no State can be compelled to act against
its own vital interests, therefore it is necessary to limit the above
principle as follows: “No neutral State can support the belligerents as
far as military operations are concerned. This principle sounds very
simple and lucid, its content is, however, when closely considered very
ambiguous and in consequence the danger of dissensions between neutral
and belligerent States is very obvious.”
In the following pages the chief duties of neutral States are to be
briefly developed. It is here assumed that neutrality is not to be
regarded as synonymous with indifference and impartiality towards the
belligerents and the continuance of the war. As regards the expression
of partizanship all that is required of neutral States is the
observance of international courtesies; so long as these are observed
there is no occasion for interference.
[Sidenote: Duties of the neutral.]
The chief duties of neutral States are to be regarded as:
[Sidenote: Belligerents must be warned off.]
1. The territory of neutral States is available for none of the
belligerents for the conduct of its military operations.[109]
The Government of the neutral State has therefore, once War is
declared, to prevent the subjects of both parties from marching
through it; it has likewise to prevent the laying out of
factories and workshops for the manufacture of War requisites
for one or other of the parties. Also the organization of
troops and the assembling of “Freelances” on the territory of
neutral States is not allowed by the law of nations.[110]
[Sidenote: The neutral must guard its inviolable frontiers. It must
intern the Trespassers.]
2. If the frontiers of the neutral State march with those of the
territory where the War is being waged, its Government must
take care to occupy its own frontiers in sufficient strength to
prevent any portions of the belligerent Armies stepping across
it with the object of marching through or of recovering after
a Battle, or of withdrawing from War captivity. Every member
of the belligerent Army who trespasses upon the territory of
the neutral State is to be disarmed and to be put out of action
till the end of the War. If whole detachments step across, they
must likewise be dealt with. They are, indeed, not prisoners of
War, but, nevertheless, are to be prevented from returning to
the seat of War. A discharge before the end of the War would
presuppose a particular arrangement of all parties concerned.
If a convention to cross over is concluded, then, according to
the prevalent usages of War, a copy of the conditions is to
be sent to the Victor.[111] If the troops passing through
are taking with them prisoners of War, then these are to be
treated in like fashion. Obviously, the neutral State can later
demand compensation for the maintenance and care of the troops
who have crossed over, or it can keep back War material as a
provisional payment. Material which is liable to be spoilt, or
the keeping of which would be disproportionately costly, as,
for example, a considerable number of horses, can be sold, and
the net proceeds set off against the cost of internment.
[Sidenote: Unneutral service.]
[Sidenote: The “sinews of war”--loans to belligerents.]
3. A neutral State can support no belligerent by furnishing
military resources of any kind whatsoever, and is bound to
prevent as much as possible the furnishing of such wholesale on
the part of its subjects. The ambiguity of the notion
“Kriegsmittel” has often led to complications. The most
indispensable means for the conduct of a War is money. For this
very reason it is difficult to prevent altogether the support of
one or other party by citizens of neutral States, since there
will always be Bankers who, in the interest of the State in whose
success they put confidence, and whose solvency in the case
of a defeat they do not doubt, will promote a loan. Against
this nothing can be said from the point of view of the law of
nations; rather the Government of a country cannot be made
responsible for the actions of individual citizens, it could
only accept responsibility if business of this kind was done by
Banks immediately under the control of the State or on public
Stock Exchanges.
[Sidenote: Contraband of War.]
It is otherwise with the supply of contraband of war, that is
to say, such things as are supplied to a belligerent for
the immediate support of war as being warlike resources and
equipment. These may include:
(_a_) Weapons of war (guns, rifles, sabers, etc., ammunition,
powder and other explosives, and military conveyances,
etc.).
(_b_) Any materials out of which this kind of war supplies
can be manufactured, such as saltpeter, sulphur, coal,
leather, and the like.
(_c_) Horses and mules.
(_d_) Clothing and equipment (such as uniforms of all kinds,
cooking utensils, leather straps, and footwear).
(_e_) Machines, motor-cars, bicycles, telegraphic apparatus,
and the like.
[Sidenote: Good business.]
All these things are indispensable for the conduct of war,
their supply in great quantities means a proportionately
direct support of the belligerent. On the other hand, it
cannot be left out of account that many of the above-mentioned
objects also pertain to the peaceable needs of men, _i.e._,
to the means without which the practise of any industry
would be impossible, and the feeding of great masses of the
population doubtful. The majority of European States are, even
in time of peace, dependent on the importation from other
countries of horses, machines, coal, and the like, even as
they are upon that of corn, preserved foods, store cattle,
and other necessaries of life. The supply of such articles by
subjects of a neutral State may, therefore, be just as much an
untainted business transaction and pacific, as a support of
a belligerent. The question whether the case amounts to the
one or the other is therefore to be judged each time upon its
merits. In practise, the following conceptions have developed
themselves in the course of time:
[Sidenote: Foodstuffs.]
(_a_) The purchase of necessaries of life, store cattle,
preserved foods, etc., in the territory of a neutral, even
if it is meant, as a matter of common knowledge, for the
revictualing of the Army, is not counted a violation of
neutrality, provided only that such purchases are equally
open to both parties.
[Sidenote: Contraband on a small scale.]
(_b_) The supply of contraband of war, in small quantities,
on the part of subjects of a neutral State to one of
the belligerents is, so far as it bears the character
of a peaceable business transaction and not that of an
intentional aid to the war, not a violation of neutrality.
No Government can be expected to prevent it in isolated
and trivial cases, since it would impose on the States
concerned quite disproportionate exertions, and on their
citizens countless sacrifices of money and time. He who
supplies a belligerent with contraband does so on his own
account and at his own peril, and exposes himself to the
risk of Prize.[112]
[Sidenote: And on a large scale.]
(_c_) The supply of war resources on a large scale stands in
a different position. Undoubtedly this presents a case of
actual promotion of a belligerent’s cause, and generally
of a warlike succor. If, therefore, a neutral State wishes
to place its detachment from the war beyond doubt, and to
exhibit it clearly, it must do its utmost to prevent such
supplies being delivered. The instructions to the Customs
authorities must thus be clearly and precisely set out,
that on the one hand they notify the will of the Government
to set their face against such wanton bargains with all
their might, but that on the other, they do not arbitrarily
restrict and cripple the total home trade.
[Sidenote: The practise differs.]
In accordance with this view many neutral States, such
as Switzerland, Belgium, Japan, etc., did, during the
Franco-Prussian War, forbid all supply or transit of arms to a
belligerent, whilst England and the United States put no kind
of obstacles whatsoever in the way of the traffic in arms,
and contented themselves with drawing the attention of their
commercial classes to the fact that arms were contraband, and
were therefore exposed to capture on the part of the injured
belligerent.[113]
It is evident, therefore, that the views of this particular
relation of nations with each other still need clearing up,
and that the unanimity which one would desire on this question
does not exist.
[Sidenote: Who may pass--the Sick and the Wounded.]
4. The neutral State may allow the passage or transport of wounded
or sick through its territory without thereby violating its
neutrality; it has, however, to watch that hospital trains do
not carry with them either war personnel or war material with
the exception of that which is necessary for the care of the
sick.[114]
[Sidenote: Who may not pass--Prisoners of War.]
5. The passage or transport of prisoners of war through neutral
territory is, on the other hand, not to be allowed, since this
would be an open favoring of the belligerent who happened to be
in a position to make prisoners of war on a large scale, while
his own railways, water highways, and other means of transport
remained free for exclusively military purposes.
These are the most important duties of neutral States so far as land
warfare is concerned. If they are disregarded by the neutral State
itself, then it has to give satisfaction or compensation to the
belligerent who is prejudiced thereby. This case may also occur if the
Government of the neutral State, with the best intentions to abstain
from proceedings which violate neutrality, has, through domestic or
foreign reasons, not the power to make its intentions good. If, for
example, one of the two belligerents by main force marches through the
territory of a neutral State and this State is not in a position to put
an end to this violation of its neutrality, then the other belligerent
has the right to engage the enemy on the hitherto neutral territory.
[Sidenote: Rights of the neutral.]
The duties of neutral States involve corresponding rights, such as:
[Sidenote: The neutral has the right to be left alone.]
1. The neutral State has the right to be regarded as still at
peace with the belligerents as with others.
[Sidenote: Neutral territory is sacred.]
2. The belligerent States have to respect the inviolability of the
neutral and the undisturbed exercise of its sovereignty in its
home affairs, to abstain from any attack upon the same, even
if the necessity of war should make such an attack desirable.
Neutral States, therefore, possess also the right of asylum for
single members or adherents of the belligerent Powers, so far
as no favor to one or other of them is thereby implied. Even
the reception of a smaller or larger detachment of troops which
is fleeing from pursuit does not give the pursuer the right
to continue his pursuit across the frontier of the neutral
territory. It is the business of the neutral State to prevent
troops crossing over in order to reassemble in the chosen
asylum, reform, and sally out to a new attack.
[Sidenote: The neutral may resist a violation of its territory
“with all the means in its power.”]
3. If the territory of a neutral State is trespassed upon by one
of the belligerent parties for the purpose of its military
operations, then this State has the right to proceed against
this violation of its territory with all the means in its
power and to disarm the trespassers. If the trespass has been
committed on the orders of the Army Staff, then the State
concerned is bound to give satisfaction and compensation; if
it has been committed on their own responsibility, then the
individual offenders can be punished as criminals. If the
violation of the neutral territory is due to ignorance of its
frontiers and not to evil intention, then the neutral State
can demand the immediate removal of the wrong, and can insist
on necessary measures being taken to prevent a repetition of
such contempts.
[Sidenote: Neutrality is presumed.]
4. Every neutral State can, so long as it itself keeps faith,
demand that the same respect shall be paid to it as in time of
peace. It is entitled to the presumption that it will observe
strict neutrality and will not make use of any declarations
or other transactions as a cloak for an injustice against
one belligerent in favor of the other, or will use them
indifferently for both. This is particularly important in
regard to Passes, Commissions, and credentials issued by a
neutral State.[115]
[Sidenote: The property of neutrals.]
5. The property of the neutral State, as also that of its
citizens, is, even if it lies within the seat of war, to
be respected so far as the necessity of war allows. It
can obviously be attacked and even destroyed in certain
circumstances by the belligerents, but only if complete
compensation be afterwards made to the injured owners. Thus--to
make this clear by an example from the year 1870--the capture
and sinking of six English colliers at Duclaix was both
justified and necessary on military grounds, but it was, for
all that, a violent violation of English property, for which on
the English side compensation was demanded, and on the German
side was readily forthcoming.
[Sidenote: Diplomatic Intercourse.]
6. Neutral States may continue to maintain diplomatic intercourse
with the belligerent Powers undisturbed, so far as military
measures do not raise obstacles in the way of it.
THE END
FOOTNOTES
[1] _Il Principe_, cap. 18.
[2] No! the Hague Regulations, Art. 44: “Any compulsion by a
belligerent on the population of occupied territory to give information
as to the army of the other belligerent, or as to his means of defense,
is prohibited.”
[3] No! the English _Manual of Military Law_, ch. xiv, sec. 463.
[4] Yes! the Hague Regulations, Art. 52: “They must be in proportion
to the resources of the country”; and to the same effect the English
_Manual of Military Law_, sec. 416, and the British Requisitioning
Instructions.
[5] Yes! the Hague Regulations, Arts. 23 and 52; also _Actes et
Documents_ (of the Conference), III, p. 120.
[6] Yes! the Hague Regulations, Art. 2: “The population of a territory
which has not been occupied who on the approach of the enemy
spontaneously take up arms to resist the invading troops, without
having had time to organize themselves in accordance with Article I,
shall be regarded as belligerents.”
[7] The whole of these propositions, revolting as they may appear, are
taken almost literally from the text of the War Book, to which I refer
the reader for their context.
[8] Clausewitz: _Vom Kriege_, I, Kap. 1 (2).
[9] _Ibid._ V, Kap. 14 (3). Clausewitz’s definition of requisitions is
“seizing everything which is to be found in the country, without regard
to _meum_ and _tuum_.” The German War Book after much prolegomenous
sentiment arrives at the same conclusion eventually.
[10] _Kriegsraison_ I have translated as “the argument of war.”
“Necessity of war” is too free a rendering, and when necessity is
urged “_nötig_” or “_Notwendigkeit_” is the term used in the original.
_Kriegsmanier_ is literally the “fashion of war” and means the
customary rules of which _Kriegsraison_ makes havoc by exceptions.
[11] Holtzendorff, IV, 378.
[12] In Holtzendorff’s _Handbuch des Völkerrechts_, _passim_.
[13] Baron Marshall von Bieberstein. _Actes et Documents_ (1907), J. 86.
[14] _Actes et Documents_ (1907), I, 281 (Sir Edward Satow).
[15] _Ibid._, p. 282 (Baron Marschall von Bieberstein), and p. 86.
[16] Holtzendorff, III, pp. 93, 108, 109.
[17] _Ibid._ The whole subject (of the neutrality of Belgium) is
examined by the present writer in _War, its Conduct and its Legal
Results_ (John Murray).
[18] _Vom Kriege_, VIII, Kap. 6 (B).
[19] _The Nation in Arms_, sec. 3: “Policy _creates_ the total
situation in which the State engages in the struggle”; and again, “it
is clear that the political action and military action ought always to
be closely united.”
[20] _Germany and the Next War_: “The appropriate and conscious
employment of war as a political means has always led to happy
results.” And again, “The relations between two States must often be
termed _a latent war_ which is provisionally being waged in peaceful
rivalry. Such a position justifies the employment of hostile methods,
just as war itself does, since in such a case both parties are
determined to employ them.”
[21] The Bundesrath is a Second Chamber, a Cabinet or Executive
Council, and a Federal Congress of State Governments all in one.
Indeed, its resemblance to a Second Chamber is superficial. It can
dissolve the Reichstag when it pleases. See Laband, _Die Entwickelung
des Bundesraths, Jahrbuch des Oeffentlichen Rechts_, 1907, Vol. I, p.
18, and also his _Deutsches Staatsrecht_, Vol. I, _passim_.
[22] I have based the remarks which follow on a close study of German,
French, and English authorities--among others upon the following:
Bismarck, _Gedanken und Erinnerungen_; Hohenlohe, _Denkwürdigkeiten_;
Hanotaux, _Histoire de la France Contemporaine_; de Broglie, _Mission
de M. de Gontaut-Biron_; Fitzmaurice, _The Life of Lord Granville_. All
these are the works of statesmen who could legitimately say of their
times _quorum pars magna fui_. Lord Fitzmaurice’s book, apart from its
being the work of a statesman, whose knowledge of foreign affairs is
equaled by few and surpassed by none, is indispensable to a study of
Anglo-German relations since 1850, being based on diplomatic sources,
in particular the despatches of Lord Odo Russell. Some passages in _The
Life of Lord Lytton_ are also illuminating, likewise the essays of that
prince of French historians, Albert Sorel. But I have, of course, also
gone to the text of treaties and original documents.
[23] The study which follows is based on cosmopolitan materials: The
reader must exercise great caution in using political memories such as
those of Bismarck. In autobiography, of all forms of history, as Goethe
observes in the preface to _Wahrheit und Dichtung_, it is supremely
difficult for the writer to escape self-deception; he is so apt to
read himself backwards and to mistake society’s influence upon him for
his influence upon society. In the case of Bismarck in particular, his
autobiography often took the form of apologetics, and he invests his
actions with a foresight which they did not always possess, while, on
the other hand, he is so anxious to depreciate his rivals (particularly
Gortchakoff) that he often robs himself of the prestige of victory.
Hohenlohe is, in this respect, a far safer guide. He was not as great a
man as Bismarck, but he was an infinitely more honest one.
[24] _Gedanken und Erinnerungen_, Bd. II, Kap. 29, p. 287.
[25] Notes of Lord Odo Russell, British Ambassador at Berlin, of a
conversation with Bismarck, reported in a despatch of November 22nd,
1870, to Lord Granville, and published in the Parliamentary Papers of
1871 [Cd. 245].
[26] _Gedanken und Erinnerungen_, II, Kap. 23.
[27] See the remarkable articles, based on unpublished documents by
M. Hanotaux, in the _Revue des deux Mondes_, Sept. 15th and Oct. 1st,
1908, on “Le Congrès de Berlin.”
[28] “No man ever had a more effective manner of asseverating, or made
promises with more solemn protestations, or observed them less,” _Il
Principe_, Cap. 18.
[29] Cf. Lord Ampthill’s despatch (Aug. 25th, 1884). “He has discovered
an unexplored mine of popularity in starting a colonial policy which
public opinion persuades itself to be anti-English, and the slumbering
theoretical envy of the Germans at our wealth and our freedom has taken
the form of abuse of everything English in the Press.”--Fitzmaurice’s
_Granville_, II, 358.
[30] For a careful examination of the story see Fitzmaurice, II, 234
and 429.
[31] There is a spirited, but not altogether convincing, vindication
of Ferry in Rambaud’s _Jules Ferry_, p. 395. It is not Ferry’s honesty
that is in question, but his perspicacity.
[32] Its profound reactions have been worked out by the hand of a
master in Sorel’s _L’Europe et la Révolution française_, and, in
particular, in his _La Question d’Orient_, which is a searching
analysis of these tortuous intrigues.
[33] Cf. Bismarck’s _Erinnerungen_ (the chapter on the Alvensleben
Convention): “It was our interest to oppose the party in the Russian
Cabinet which had Polish proclivities ... because a Polish-Russian
policy was calculated to vitalize that Russo-French sympathy against
which Prussia’s effort had been directed since the peace of Paris.”
[34] _Life of Lord Lytton_, II, pp. 260 _seq._ On the whole story see
Hohenlohe _passim_; also Hanotaux, Vol. III, ch. iv; de Broglie’s
_Gontaut-Biron_ and Fitzmaurice’s _Granville_. The cheerfully
malevolent Busch is also sometimes illuminating.
[35] It was on this occasion that, according to Hanotaux, quoting from
a private document of the Duc Decazes, Lord Odo Russell reported an
interview with Bismarck, in which the latter said he wanted “to finish
France off.”
[36] Cf. Albert Sorel: “La diplomatie est l’expression des moeurs
politiques”; and cf. his remarkable essay, “La Diplomatie et le
progrés,” in _Essais d’histoire et de critique_.
[37] June 3rd, 1906, in a remarkable article entitled “Holstein,” which
is a close study of the inner organization of the German Foreign Office
and its traditions.
[38] [The word used is “geistig,” as to the exact meaning of which
see translator’s footnote to page 72. What the passage amounts to is
that the belligerent should seek to break the spirit of the civil
population, terrorize them, humiliate them, and reduce them to
despair.--J. H. M.]
[39] Moltke, in his well-known correspondence with Professor
Bluntschli, is moved to denounce the St. Petersburg Convention which
designs as “le seul but légitime” of waging war, “l’affaiblissement
des forces militaires,” and this he denies most energetically on the
ground that, on the contrary, all the resources of the enemy, country,
finances, railways, means of subsistence, even the prestige of the
enemy’s government, ought to be attacked. [This, of course, means the
policy of “Terrorismus,” _i.e._, terrorization.--J. H. M.]
[40] [“Den geistigen Strömungen.” “Intellectual” is the nearest
equivalent in English, but it barely conveys the spiritual aureole
surrounding the word.--J. H. M.]
[41] [The General Staff always refers to the war of 1870 as “the
German-French War.”--J. H. M.]
[42] Art. 9 (1).
[43] The necessity of an adequate mark of distinction was not denied
even on the part of the French in the violent controversy which
blazed up between the German and French Governments on the subject
of the Franctireurs in the war of 1870-1. The dispute was mainly
concerned with the question whether the marks worn by the Franctireurs
were sufficient or not. This was denied on the German side in many
cases with all the greater justification as the usual dress of the
Franctireurs, the national blue, was not to be distinguished from the
customary national dress, as it was merely a blouse furnished with a
red armlet. Besides which, on the approach of German troops, the armlet
was often taken off and the weapons were concealed, thereby offending
against the principle of open bearing. These kind of offenses, as also
the lack of a firm organization and the consequent irregularities,
were the simple reason why stern treatment of the Franctireurs in the
Franco-Prussian War was practised and had necessarily to be practised.
[44] The effacement of the distinction between fighting forces and
peaceful population on the part of the Boers no doubt made many of the
severities practised by the English necessary.
[45] [_i.e._, the condition as to having a distinctive mark. So too,
the Hague Regulations dispense with the other condition (of having a
responsible leader and an organization) in such a case of a _levée en
masse_. See Regulations, Art. II.--J. H. M.]
[46] Professor Dr. C. Lüder, _Das Landkriegsrecht_, Hamburg, 1888.
[This is the amiable professor who writes in Holtzendorff’s _Handbuch
des Völkerrechts_ (IV, 378) of “the terrorism so often necessary in
war.”--J. H. M.]
[The above paragraph, it will be observed, completely throws over
Article II of the Hague Regulations extending protection to the
defenders of their country.--J. H. M.]
[47] Notoriously resorted to very often in the war of the Spanish
against Napoleon.
[48] Napoleon was, in the year 1815, declared an outlaw by the Allies.
Such a proceeding is not permissible by the International Law of to-day
since it involves an indirect invitation to assassination. Also the
offer of a reward for the capture of a hostile prince or commander as
occurred in August, 1813, on the part of the Crown Prince of Sweden in
regard to Napoleon, is no longer in harmony with the views of to-day
and the usages of war. [But to hire a third person to assassinate one’s
opponent is claimed by the German General Staff (see II, b, below) as
quite legitimate.--J. H. M.]
[49] As against this there have been many such offenses committed
in the wars of recent times, principally on the Turkish side in the
Russo-Turkish War.
[50] This prohibition was often sinned against by the French in the
war of 1870-71. Cp. Bismarck’s despatches of Jan. 9th and Feb. 7th,
1871; also Bluntschli in _Holtzendorff’s Jahrbuch_, I, p. 279, where a
similar reproach brought against the Baden troops is refuted.
[51] If we have principally in view the employment of uncivilized and
barbarous troops on a European seat of war, that is simply because
the war of 1870 lies nearest to us in point of time and of space.
On a level with it is the employment of Russo-Asiatic nationalities
in the wars of emancipation, of Indians in the North-American War,
of the Circassians in the Polish Rising, of the Bashi-bazouks in
the Russo-Turkish War, etc. As regards the Turcos, a Belgian writer
Rolin-Jacquémyns said of them in regard to the war of 1859, “les
allures et le conduite des Turcos avaient soulevé d’universels
dégoûts.” On the other side it is not to be forgotten that a section
of the French Press in 1870 praised them precisely because of their
bestialities and incited them to such things, thus in the _Independance
algerienne_: “Arrière la pitié! arrière les sentiments d’humanité!
Mort, pillage et incendie!”
[52] Recent examples: the capture of the King of Saxony by the Allies
after the Battle of Leipzig, and also of Napoleon, that of the Elector
of Hesse, 1866, Napoleon III, 1870, Abdel-Kader, 1847, and Schamyl,
1859.
[53] In this light must be judged the measures taken in 1866 by General
Vogel von Falckenstein against certain Hanoverian citizens although
these measures have often been represented in another light.
[54] Thus the French prisoners in 1870-1 were very thankful to find
employment in great numbers as harvest workers, or in the counting
houses of merchants or in the factories of operatives or wherever an
opportunity occurred, and were thereby enabled to earn extra wages.
[55] Thus General von Falckenstein in 1870, in order to check the
prevalent escaping of French officers, commanded that for every
escape ten officers whose names were to be determined by drawing lots
should be sent off, with the loss of all privileges of rank, to close
confinement in a Prussian fortress, a measure which was, indeed, often
condemned but against which nothing can be said on the score of the law
of nations.
[56] [Professor] Lueder, _Das Landkriegsrecht_, p. 73.
[57] What completely false notions about the right of killing prisoners
of war are prevalent even among educated circles in France is shown
by the widely-circulated novel _Les Braves Gens_, by Margueritte, in
which, on page 360 of the chapter “Mon Premier,” is told the story,
based apparently on an actual occurrence, of the shooting of a captured
Prussian soldier, and it is excused simply because the information
given by him as to the movements of his own people turned out to be
untrue. The cowardly murder of a defenseless man is regarded by the
author as a stern duty, due to war, and is thus declared to be in
accordance with the usages of war. [The indignation of the German
General Staff is somewhat overdone, as a little further on (see the
chapter on treatment of inhabitants of occupied territory) in the War
Book they advocate the ruthless shooting or hanging of an inhabitant
who, being _forced_ to guide an enemy army against his own, leads them
astray.--J. H. M.]
[58] In Austria the giving of one’s parole whether by troops or
officers is forbidden.
[59] Monod, _Allemands et Français, Souvenirs de Campagne_, p. 39: “I
saw again at Tours some faces which I had met before Sedan; among them
were, alas! officers who had sworn not to take up arms again, and who
were preparing to violate their parole, encouraged by a Government in
whom the sense of honor was as blunted as the sense of truth.”
[60] In the year 1870, 145 French officers, including three Generals,
one Colonel, two Lieutenant-Colonels, three Commandants, thirty
Captains (Bismarck’s Despatch of December 14th, 1870), were guilty
of breaking their parole. The excuses, afterwards put forward, were
generally quite unsound, though perhaps there may have been an element
of doubt in some of the cases so positively condemned on the German
side. The proceedings of the French Government who allowed these
persons without scruple to take service again were subsequently
energetically denounced by the National Assembly.
[61] To a petition of the diplomatists shut up in Paris to be allowed
to send a courier at least once a week, Bismarck answered in a document
of September 27th, 1870, as follows: “The authorization of exchange of
correspondence in the case of a fortress is not generally one of the
usages of war; and although we would authorize willingly the forwarding
of open letters from diplomatic agents, in so far as their contents
be not inconvenient from a military point of view, I cannot recognize
as well founded the opinion of those who should consider the interior
of the fortifications of Paris as a suitable center for diplomatic
relations.”
[62] “In the year 1870 the greatest mildness was practised on the
German side towards the French fortresses. At the beginning of the
siege of Strassburg it was announced to the French Commander that free
passage was granted to the women, the children, and the sick, a favor
which General Uhrich rejected, and the offer of which he very wisely
did not make known to the population. And when later three delegates
of the Swiss Federal Council sought permission in accordance with the
resolution of the Conference at Olten, of September 7th, to carry food
to the civil population in Strassburg and to conduct non-combatants out
of the town over the frontier, both requests were willingly granted
by the besieger and four thousand inhabitants left the fortress as a
result of this permission. Lastly, the besiegers of Belfort granted to
the women, children, aged, and sick, free passage to Switzerland, not
indeed immediately at the moment chosen by the commander Denfert, but
indeed soon after” (_Dahn_, I, p. 89). Two days after the bombardment
of Bitsch had begun (September 11th) the townsfolk begged for free
passage out of the town. This was, indeed, officially refused; but,
none the less, by the indulgence of the besieger, it was effected by a
great number of townspeople. Something like one-half of the 2,700 souls
of the civil population, including the richest and most respectable,
left the town (_Irle, die Festung Bitsch. Beiträge zur Landes- und
Völkerkunde von Elsass-Lothringen_).
[63] Hartmann, _Krit. Versuche_, II, p. 83.
[64] _Staatsanzeiger_, August 26th, 1870.
[65] Considering the many unintelligible things written on the French
side about this, the opinion of an objective critic is doubly valuable.
Monod, p. 55, _op. cit._, says: “I have seen Bazeilles burning; I have
informed myself with the greatest care as to how things happened.
I have questioned French soldiers, Bavarian soldiers, and Bavarian
inhabitants present at this terrible drama; I am able to see in it
only one of the frightful, but inevitable, consequences of the war.”
As to the treatment of Chateaudun, stigmatized generally on the French
side as barbarous, the author writes (p. 56): “The inhabitants of
Chateaudun, regularly organized as part of the National Guard, aided
by the franctireurs of Paris, do not defend themselves by preparing
ambushes but by fighting as soldiers. Chateaudun is bombarded; nothing
could be more legitimate, since the inhabitants made a fortress of it;
but once they got the upper hand the Bavarians set fire to more than
one hundred houses.” The picture of outrages by Germans which follows
may be countered by what the author writes in another place about
the French soldiers: “The frightful scenes at the taking of Paris by
our troops at the end of May, 1871, may enable us to understand what
violences soldiers allow themselves to be drawn into, when both excited
and exhausted by the conflict.”
[66]
[Sidenote: The apophthegm of Frederick the Great.]
“One makes use in war of the skin of the lion or the fox indifferently.
Cunning often succeeds where force would fail; it is therefore
absolutely necessary to make use of both; sometimes force can be
countered by force, while on the other hand force has often to yield
to cunning.”--Frederick the Great, in his _General Principles of War_,
Art. xi.
[67] Also the pretense of false facts, as, for example, practised by
Murat on November 13th, 1805, against Prince Auersperg, in order to
get possession of the passage of the Danube at Florisdorf; the like
stratagem which a few days later Bagration practised against Murat
at Schongraben; the deceptions under cover of their word of honor
practised by the French Generals against the Prussian leaders in 1806
at Prenzlau; these are stratagems which an officer in the field would
scarcely dare to employ to-day without being branded by the public
opinion of Europe.
[68] In the most recent times a change of opinion seems to have
taken place. Bluntschli in his time holds (sec. 565) the use of the
distinguishing marks of the enemy’s army--uniforms, standards, and
flags--with the object of deception, to be a doubtful practise, and
thinks that this kind of deception should not extend beyond the
preparations for battle. “In battle the opponents should engage one
another openly, and should not fall on an enemy from behind in the
mask of a friend and brother in arms.” The Manual of the Institute of
International Law goes further. It says in 8 (_c_ and _d_): “Il est
interdit d’attaquer l’ennemi en dissimulant les signes distinctifs de
la force armée; d’user indûment du pavillon national, des insignes
militaires ou de l’uniforme de l’ennemi.” The Declaration of Brussels
altered the original proposition, “L’emploi du pavillon national ou des
insignes militaires et de l’uniforme de l’ennemi est interdit” into
“L’abus du pavillon national.”
[69] Cp. Boguslawski, _Der kleine Krieg_, 1881, pp. 26, 27.
[70] [The Hague Regulations, Art. 23, to which Germany was a party,
declares it is prohibited: “To make improper use of a flag of truce,
the national flag, or military ensigns and the enemy’s uniform, as well
as the distinctive badges of the Geneva Convention.”--J. H. M.]
[71] [This represents the German War Book in its most disagreeable
light, and is casuistry of the worst kind. There are certain things
on which International Law is silent because it will not admit the
possibility of their existence. As Professor Holland well puts it
(_The Laws of War on Land_, p. 61), in reference to the subject
of reprisals the Hague Conference “declined to seem to add to the
authority of a practise so repulsive” by legislating on the subject.
And so with assassination. It can never be presumed from the Hague or
other international agreements that what is not expressly forbidden is
thereby approved.]
[72] [Professor] Bluntschli, _Völkerrecht_, p. 316.
[73] [Professor] Lüder, _Handbuch des Völkerrechts_, p. 90.
[74] To judge espionage with discrimination according to motives does
not seem to be feasible in war. “Whether it be a patriot who devotes
himself, or a wretch who sells himself, the danger they run at the
hands of the enemy will be the same. One will respect the first and
despise the second, but one will shoot both.”--_Quelle_ I, 126.
This principle is very ancient. As early as 1780 a North-American
court-martial condemned Major André, an Englishman, to death by
hanging, and in vain did the English Generals intercede for him, in
vain did he plead himself, that he be shot as a soldier.
[75] The want of an adequate authorization led in 1874 to the
shooting of the Prussian newspaper correspondent Captain Schmidt by
the Carlists, which raised a great outcry. Schmidt was armed with
a revolver, with maps of the seat of war, and also with plans and
sketches of the Carlists’ positions, as against which he had only an
ordinary German passport as a Prussian Captain and was seized within
the Carlists’ outpost, and since he could not defend himself, verbally,
on account of his ignorance of the Spanish language, he was convicted
as a spy by court-martial and shot.
[76] In the Egyptian Campaign in 1882 the English War Office published
the following regulations for newspaper correspondents. [The translator
does not think it necessary to reproduce these.]
[77] In Turkey, in place of the Red Cross a red half-moon was
introduced, and was correspondingly respected by the Russians in the
campaign of 1877. Japan, on the contrary, has waived its original
objection to the cross.
[78] That in the war of 1870 the Red Cross was frequently abused on
the French side is well known, and has been the subject of documentary
proof. The escape of Bourbaki from Metz, under cover of the misuse
of the Geneva Convention, proves that even in the highest circles
people were not clear as to the binding obligation of International
Regulations, and disregarded them in the most frivolous manner.
[79] [But the English legislature has, by the Geneva Convention Act,
1911 (1 and 2 Geo. V, c. 20) made it a statutory offense, punishable
on summary conviction by a fine not exceeding £10, to use the heraldic
emblem of the Red Cross or the words “Red Cross” for any purpose
whatsoever, if the person so using it has not the authority of the Army
Council for doing so.--J. H. M.]
[80] How different the conditions of capitulation may be the following
examples will show:
Sedan: (1) The French army surrender as prisoners of war. (2) In
consideration of the brave defense all Generals, Officers, and
Officials occupying the rank of Officers, will receive their freedom
so soon as they give their word of honor in writing not to take up
arms again until the end of the war, and not to behave in a manner
prejudicial to the interests of Germany. The officers and officials who
accept these conditions are to keep their arms and their own personal
effects. (3) All arms and all war material consisting of flags, eagles,
cannons, munitions, etc., are to be surrendered and to be handed over
by a French military commission to German commissioners. (4) The
fortress of Sedan is to be immediately placed at the disposition (of
the Germans) exactly as it stands. (5) The officers who have refused
the obligation not to take up arms again, as well as the troops, shall
be disarmed and organized according to their regiments or corps to go
over in military fashion. The medical staff are without exception to
remain behind to look after the wounded.
Metz: The capitulation of Metz allowed the disarmed soldiers to keep
their knapsacks, effects, and camp equipment, and allowed the officers
who preferred to go into captivity, rather than give their word of
honor, to take with them their swords, or sabers, and their personal
property.
Belfort: The garrison were to receive all the honors of war, to keep
their arms, their transport, and their war material. Only the fortress
material was to be surrendered.
Bitsch (concluded after the settlement of peace): (1) The garrison
retires with all the honors of war, arms, banners, artillery, and
field pieces. (2) As to siege material and munitions of war a double
inventory is to be prepared. (3) In the same way an inventory is to
be taken of administrative material. (4) The material referred to
in Articles 2 and 3 is to be handed over to the Commandant of the
German forces. (5) The archives of the fortress, with the exception
of the Commandant’s own register, are left behind. (6) The customs
officers are to be disarmed and discharged to their own homes. (7) The
canteen-keepers who wish to depart in the ordinary way receive from
the local commandant a pass viséd by the German local authorities. (8)
The local Commandant remains after the departure of the troops at the
disposal of the German higher authorities till the final settlement; he
binds himself on his word of honor not to leave the fortress. (9) The
troops are transported with their horses and baggage by the railroad.
(10) The baggage left behind in Bitsch by the officers of the 1st and
5th Corps will be sent later to an appointed place in France, two
non-commissioned officers remain to guard it and later to send it back
under their supervision.
Nisch (January 10th, 1878): [The translator has not thought it
necessary to reproduce this.]
[81] Thus, in August, 1813, the numerous trespasses across the frontier
on the part of French detachments and patrols led to the entry of the
Silesian army into the neutral territory and therewith to a premature
commencement of hostilities. Later inquiries show that these trespasses
were committed without the orders of a superior and that, therefore,
the French staff cannot be reproached with a breach of the compact; but
the behavior of Blücher was justified in the circumstances and in any
case was based upon good faith.
[82] We have here in mind not exclusively intentionally untrue
communications, although these also, especially in the Napoleonic war,
very frequently occur; very often the untrue communication is made in
good faith.
During the fight which took place at Chaffois on January 29th, 1871,
when the village was stormed, the cry of Armistice was raised on the
French side. A French officer of the General Staff communicated to
the Commander of the 14th Division by the presentation of a written
declaration the news of an armistice concluded at Versailles for the
whole of France. The document presented, which was directed by the
Commander-in-Chief of the French Army in the East, General Clinchant,
to the Commander of the French Division engaged at Chaffois, ran as
follows:
“An armistice of twenty-one days has been signed on the 27th.
I have this evening received the official news. Cease fire in
consequence and inform the enemy, according to the forms followed
in war, that the armistice exists and that you are charged to bring
it to his knowledge.
(_Signed_) CLINCHANT.”
Pontarlier, January, 29th, 1871.
Of the conclusion of this armistice no one on the German side had any
knowledge. None the less hostilities ceased for the time being, pending
the decision of the higher authorities. Since on the enemy’s side
it was asserted that a portion of the French troops in Chaffois had
been made prisoners after the news of the existence of the armistice
was communicated, and the order to cease fire had been given, some
thousand French prisoners were set free again in recognition of this
possibility, and the arms which had been originally kept back from them
were later restored to them again. When the proceedings at Chaffois
were reported, General von Manteuffel decided on the 30th January as
follows:
“The news of an armistice for the Army of the South is false; the
operations are to be continued, and the gentlemen in command are on
no other condition to negotiate with the enemy than that of laying
down their arms. All other negotiations are, without any cessation
of hostilities, to be referred to the Commander-in-Chief.”
[83] [It will be observed that no authority is given for this
statement.--J. H. M.]
[84] See as to this: _Rolin-Jacquemyns_, II, 34; and Dahn, _Der
Deutsch-Französische Krieg und das Völkerrecht_.
[85] [See Editor’s Introduction for criticism of this
brutality.--J. H. M.]
[86] [_Ibid._]
[87] For example, the carrying off of forty leading citizens from
Dijon and neighboring towns as reprisals against the making prisoners
of the crew of German merchantmen by the French (undoubtedly contrary
to the law of nations), the pretense being that the crews could serve
to reenforce the German navy (a pretense strikingly repudiated by
Bismarck’s Notes of October 4th and November 16th, 1870). Lüder, _Das
Landkriegsrecht_, p. 111.
[88] Proclamation of the Governor-General of Alsace, and to the same
effect the Governor-General of Lorraine of October 18th, 1870.
[89] See Loning, _Die Verwaltung des General-gouvernements im Elsass_,
p. 107.
[90] For a state of war the provisions of the Prussian Law of June 4th,
1861, still hold good to-day. According to this law all the inhabitants
of the territory in a state of siege are subject to military courts in
regard to certain punishable proceedings.
[91] J. von Hartmann, _Kritische Versuche_, II, p. 73.
[92] Lüder, _Das Landkriegsrecht_, p. 103.
[93] Obviously we are only speaking of a war between civilized people
since, in the case of savages and barbarians, humanity is not advanced
very far, and one cannot act otherwise toward them than by devastation
of their grain fields, driving away their herds, taking of hostages,
and the like.
[94] Army Order of August 8th, 1870, on crossing the frontier:
“Soldiers! the pursuit of the enemy who has been thrust back after
bloody struggles has already led a great part of our army across
the frontier. Several corps will to-day and to-morrow set foot upon
French soil. I expect that the discipline by which you have hitherto
distinguished yourselves will be particularly observed on the enemy’s
territory. We wage no war against the peaceable inhabitants of the
country; it is rather the duty of every honor-loving soldier to protect
private property and not to allow the good name of our army to be
soiled by a single example of bad discipline. I count upon the good
spirit which animates the army, but at the same time also upon the
sternness and circumspection of all leaders.
Headquarters, Homburg, August 8th, 1870.
(_Signed_) WILHELM.”
[95] “It is well known that the vineyards in France were guarded and
protected by the German troops, but the same thing happened in regard
to the art treasures of Versailles, and the German soldiers protected
French property at the risk of their lives against the incendiary bombs
of the Paris Commune.”--Lüder, _Landkriegsrecht_, p. 118.
[96] Bluntschli, _Völkerrecht_, sec. 652.
[97] [These terms are translated literally. They are roughly
equivalent to the English distinction between “real” and “personal”
property.--J. H. M.]
[98] To be entirely distinguished from municipal funds which are
regarded as private property.
[99] How sensitive, indeed, how utterly sentimental, public opinion has
become to-day in regard to this question, is shown by the attitude of
the French and German Press in regard to some objects of art carried
away from China.
[100] As to booty in the shape of horses, the Prussian instructions
say: “Horses taken as booty belong to the State and are therefore to
be handed over to the horse depot. For every horse which is still
serviceable he who has captured it receives a bonus of 18 dollars out
of the exchequer, and for every unserviceable horse half this sum.”
[101] Napoleon, who actually permitted his soldiers to plunder in
numerous cases and in others, at least, did not do his best to prevent
it, spoke of it at St. Helena: “Policy and morality are in complete
agreement in their opposition to pillage. I have meditated a good deal
on this subject; I have often been in a position to gratify my soldiers
thereby; I would have done it if I had found it advantageous. But
nothing is more calculated to disorganize and completely ruin an army.
From the moment he is allowed to pillage, a soldier’s discipline is
gone.”
[102] Dahn, _Jahrbuch f. A.u.M._, III, 1876. Jacquemyns Revue.
[103] Dahn, _ibid._, III, 1871.
[104] The King of Denmark in 1715, whilst Charles XII, after the
Battle of Pultawa, stayed for years in Bender, sold the conquered
principalities of Bremen and Verden to the King of England, Elector
of Hanover, before England had yet declared war on Sweden. This
undoubtedly unlawful act of England first received formal recognition
in the Peace of Stockholm, 1720.
[105] The German administration desired that, as hitherto, justice
should be administered in the name of the Emperor (Napoleon III). The
Court, on the contrary, desired, after the revolution of September
4th, 1870, to use the formula: “In the name of the French Republic.”
The Court no longer recognized the Emperor as Sovereign, the German
authorities did not yet recognize the Republic. Finally the Court,
unfortunately for the inhabitants, ceased its activities. The proper
solution would have been, according to Bluntschli (547), either the use
of a neutral formula, as, for example, “In the name of the law,” or the
complete omission of the superfluous formula.
[106] Stein, _Revue 17_, Declaration of Brussels, Article 6.
[107] _Manuel 51_; Moynier, _Revue_, XIX, 165.
[108] Article 42 of the Hague Regulations runs: “Territory is
considered to be occupied when it is placed as a matter of fact under
the authority of the hostile army. The occupation extends only to
territories where that authority is established and capable of being
exercised.”
[109] The passage of French troops through Prussian territory in
October, 1805, was a contempt of Prussian neutrality.--The moment the
Swiss Government permitted the Allies to march through its territory in
the year 1814, it thereby renounced the rights of a neutral State.--In
the Franco-Prussian War the Prussian Government complained of the
behavior of Luxemburg in not stopping a passage _en masse_ of fugitive
French soldiers after the fall of Metz through the territory of the
Grand Duchy.
[110] The considerable reenforcement of the Servian Army in the year
1876 by Russian Freelances was an open violation of neutrality, the
more so as the Government gave the officers permission, as the Emperor
himself confessed later to the English Ambassador in Livadia. The
English Foreign Enlistment Act of 1870, Art. 4,[A] forbids all English
subjects during a war in which England remains neutral, to enter the
army or the navy of a belligerent State, or the enlistment for the
purpose, without the express permission of the Government. Similarly
the American law of 1818. The United States complained energetically
during the Crimean War of English recruiting on their territory.
[A] [This Act applies to British subjects wherever they may be,
and it also applies to aliens, but only if they enlisted or
promoted enlistment on British territory. For a full discussion
of the scope of the Act see _R. v. Jameson_ (1896), 2 Q.B.
425.--J. H. M.]
[111] At the end of August, 1870, some French detachments, without its
being known, marched through Belgian territory; others in large numbers
fled after the Battle at Sedan to Belgium, and were there disarmed. In
February, 1871, the hard-pressed French Army of the East crossed into
Switzerland and were there likewise disarmed.
[112] In the negotiations in 1793, as to the neutrality of North
America in the Anglo-French War, Jefferson declared: “The right of the
citizens to fashion, sell, and export arms cannot be suspended by a
foreign war, but American citizens pursue it on their own account and
at their own risk.”--Bluntschli, sec. 425 (2). Similarly in the famous
treaty between Prussia and the United States of September 10th, 1785,
it was expressly fixed in Article 13 that if one of the two States was
involved in war and the other State should remain neutral, the traders
of the latter should not be prevented from selling arms and munitions
to the enemy of the other. Thus the contraband articles were not to be
confiscated, but the merchants were to be paid the value of their goods
by the belligerent who had seized them. This arrangement was, however,
not inserted in the newer treaties between Prussia and the Union in
1799 and 1828.
[113] In the exchange of despatches between England and Germany
which arose out of the English deliveries of arms, the English
Minister, Lord Granville, declares, in reply to the complaints of the
German Ambassador in London, Count Bernstorff, that this behavior
is authorized by the preexisting practise, but adds that “with the
progress of civilization the obligations of neutrals have become more
stringent, and declares his readiness to consult with other nations
as to the possibility of introducing in concert more stringent rules,
although his expectations of a practical result are, having regard to
the declarations of the North-American Government, not very hopeful.”
President Grant had, it is true, already in the Neutrality Proclamation
of August 22nd, 1870, declared the trade in contraband in the United
States to be permitted, but had uttered a warning that the export of
the same over sea was forbidden by international law. He had later
expressly forbidden the American arsenal administration to sell arms to
a belligerent, an ordinance which was of course self-evident and was
observed even in England, but he did not attempt to prevent dealers
taking advantage of the public sale of arms out of the State arsenals
to buy them for export to the French.
[114] Belgium allowed itself, in August, 1870, owing to the opposition
of France, to be talked into forbidding the transport of wounded after
the Battle of Sedan, through Belgian territory, and out of excessive
caution interpreted its decree of August 27th as amounting to a
prohibition of the transport even of individual wounded. The French
protest was based on the contention that by the transport of wounded
through Belgium, the military communication of the enemy with Germany
was relieved from a serious hindrance. “On such a ground”--thinks
Bluntschli (p. 434)--“one might set one’s face against the transport
of large numbers but not the transport of individuals. These
considerations of humanity should decide.”
[115] Dr. A. W. Heffter, _Das Europäische Völkerrecht der Gegenwart_
(7th ed.), 1882, p. 320.
Transcriber’s Notes
Punctuation, hyphenation, and spelling were made consistent when a
predominant preference was found in this book; otherwise they were not
changed.
Simple typographical errors were corrected; occasional unbalanced
quotation marks retained.
Ambiguous hyphens at the ends of lines were retained.
Page xii: The page number for “Treatment of Wounded and Sick Soldiers”
was misprinted as “87”. The chapter actually begins on page 115 and
that number has been used in this eBook.
The “Contents of Editor’s Marginal Summary” includes an entry for “War
Treaties,” but there is no corresponding Sidenote. It also includes an
entry for “Duties of the neutral--belligerents must be warned off”, but
this actually refers to two separate Sidenotes.
Page 114: Opening quotation mark before “The ugly and inherently” has
no matching closing mark.
Page 116: “do no more harm” was misprinted as “do more harm”.
Page 135: “Etiam hosti fides servanda” was misprinted as “Etiam Zosti
fides servanda”.
Footnote 23, originally footnote 6 on page 21: “an infinitely more
honest one” was misprinted as “an infinitely more honest me”.
Some misprinted German words have been corrected: “Uebermut” was
“Uebernut”, “Jahrbücher” was “Jahrücher”, “zur Landes-” was “zur
Lander”, “weichlicher” was “weicheler”, “Weltpolitik” was “Welt
politik”, “das unsterbliche” was “dasunsterbliche”, “Fortwirken”
was “Fortwirkung”, “Gefühlsschwärmerei” was “Gefühlschwarmerei”,
“Kriegsmittel” was “Kriegs mittel”, “Kriegsmanier” was “Kreigsmanier”,
“Kriegsraison” was “Kreigsraison”, “Landkriegsrecht” was
“Landekriegsrecht”, and “im Elsass” was “en Elsass”.