CHAPTER IX

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”.

The War Book of the German General Staff Being "The Usages of War on Land" Issued by the Great General Staff of the German Army · 第 9 / 9 章