_Submarines_
GERMANY AND THE HAGUE
Sir,--One excuse for German atrocities put forward, as you report, in
the _Kolnische Zeitung_, ought probably not to pass unnoticed, denying,
as it does, any binding authority to the restrictions imposed upon the
conduct of warfare, on land or at sea, by The Hague Conventions of 1907.
It is true that each of these Conventions contains an article to the
effect that its provisions "are applicable only between the contracting
Powers, and only if all the belligerents are parties to the Convention."
It is also true that three of the belligerents in the world-war now
raging--namely, Serbia, Montenegro, and, recently, Turkey--although they
have (through their delegates) signed these Conventions, have not yet
ratified them. Therefore, urges the _Zeitung_, the Conventions are, for
present purposes, waste paper. The argument is as technically correct as
its application would be unreasonable; and I should like to recall the
fact that, in the important prize case of the _Möwe_, Sir Samuel Evans,
in a considered judgment, pointed out the undesirability of refusing
application to the maritime conventions because they had not been
ratified by Montenegro, which has no navy, or by Serbia, which has no
seaboard; and accordingly, even after Turkey, which also has not
ratified, had become a belligerent, declined to deprive a German
shipowner of an indulgence to which he was entitled under the Sixth
Hague Convention.
Admiral von Tirpitz was perhaps not serious when he intimated to the
representative of the United Press of America that German submarines
might be instructed to torpedo all trading vessels of the Allies which
approach the British coasts. The first duty of a ship of war which
proposes to sink an enemy vessel is admittedly, before so doing, to
provide for the safety of all its occupants, which (except in certain
rare eventualities) can only be secured by their being taken on board of
the warship. A submarine has obviously no space to spare for such an
addition to its own staff.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 26 (1914).
The charitable view taken in the last paragraph has, of course,
not been justified.
For the _Möwe_, see 2 Lloyd, 70. On the restrictive article in
The Hague Convention, _cf. passim_.
"THE PIRATES"
Sir,--Would it not be desirable, in discussing the execrable tactics of
the German submarines, to abandon the employment of the terms "piracy"
and "murder," unless with a distinct understanding that they are used
merely as terms of abuse?
A ship is regarded by international law as "piratical" only if, upon the
high seas, she either attacks other vessels, without being commissioned
by any State so to do (_nullius Principis auctoritate_, as Bynkershoek
puts it), or wrongfully displaces the authority of her own commander.
The essence of the offence is absence of authority, although certain
countries, for their own purposes, have, by treaty or legislation, given
a wider meaning to the term, e.g., by applying it to the slave-trade.
"Murder" is such slaying as is forbidden by the national law of the
country which takes cognizance of it.
In ordering the conduct of which we complain, Germany commits an
atrocious crime against humanity and public law; but those who, being
duly commissioned, carry out her orders, are neither pirates nor
murderers. The question of the treatment appropriate to such persons,
when they fall into our hands, is a new one, needing careful
consideration. In any case, it is not for us to rival the barbarism of
their Government by allowing them to drown.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 13 (1915)
SUBMARINE CREWS
Sir,--My letter in _The Times_ of March 15 with reference to the conduct
of certain of the German submarines has been followed by a good many
other letters upon the same subject. Some of your correspondents have
travelled far from the question at issue into the general question of
permissible reprisals, into which I have no intention of following them.
But others, by exhibiting what I may venture to describe as an
_ignoratio elenchi_, have made it desirable to recall attention to the
specific purport of my former letter. It was to the effect--(1) that the
acts of those who, in pursuance of a Government commission, sink
merchant vessels without warning are not "piracy," the essence of that
offence at international law being that it is committed under no
recognised authority; and that neither is it "murder" under English law;
(2) that the question of the treatment appropriate to the perpetrators
of such acts, even under the orders of their Government, is a new one,
needing careful consideration. I was, of course, far from stating, as a
general rule, that Government authority exempts all who act under it
from penal consequences. The long-established treatment of spies is
sufficient proof to the contrary.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 22 (1915).
MR. WILSON'S NOTE
Sir,--I may perhaps be permitted to endorse every word of the high
praise bestowed in your leading article of this morning upon the Note
addressed to Germany by the Government of the United States. The
frequent mentions which it contains of "American ships," "American
citizens," and the like, were, no doubt, natural and necessary, as
establishing the _locus standi_ of that Government in the controversy
which it is carrying on. But we find also in the Note matters of even
more transcendent interest, relating to the hitherto universally
accepted doctrines of international law, applicable to the treatment of
enemy as well as of neutral vessels.
It may suffice to cite the paragraph which assumes as indisputable
"the rule that the lives of non-combatants, whether they be
of neutral citizenship or citizens of one of the nations at
war, cannot lawfully or rightfully be put in jeopardy by the
capture or destruction of unarmed merchantmen,"
as also
"the obligation to take the usual precaution of visit and
search to ascertain whether a suspected merchantman is in
fact of belligerent nationality, or is in fact carrying
contraband under a neutral flag."
[I assume that the word "unarmed" here does not exclude the case of a
vessel carrying arms solely for defence.]
The Note also recognises, what you some time ago allowed me to point
out,
"the practical impossibility of employing submarines in the
destruction of commerce without disregarding those rules of
fairness, reason, justice, and humanity which modern opinion
regards as imperative."
Adding:--
"It is practically impossible for them to make a prize of
her, and if they cannot put a prize crew on board, they
cannot sink her without leaving her crew and all on board her
to the mercy of the sea in her small boats."
Nothing could be more satisfactory than the views thus authoritatively
put forth, first as to the applicable law, and secondly as to the means
by which its prescriptions can be carried out.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, May 15 (1915).
_Cf. supra_, p. 70.
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