SECTION 5

_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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Letters to "The Times" upon War and Neutrality (1881-1920) · 第 5 / 17 章