Chapter 8

STEPS TOWARDS A WRITTEN LAW OF WAR

A large body of written International Law, with reference to the conduct of warfare, has been, in the course of the last half-century, and, more especially, in quite recent years, called into existence by means of General Conventions, or Declarations, of which mention must frequently be made in the following pages. Such are:--

(i.) With reference to war, whether on land or at sea: the Declaration of St. Petersburg, of 1868, as to explosive bullets; the three Hague Declarations of 1899 (of which the first was repeated in 1907), as to projectiles from balloons, projectiles spreading dangerous gases, and expanding bullets; The Hague Convention, No. iii. of 1907 as to Declaration of War; all ratified by Great Britain, except the Declaration of St. Petersburg, which was thought to need no ratification.

(ii.) With reference only to war on land: the Geneva Convention of 1906 (superseding that of 1864) as to the sick and wounded, which was generally ratified, though by Great Britain only in 1911 (it was extended to maritime warfare by Conventions iii. of 1899 and x. of 1907, both ratified by Great Britain, _cf. infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No. iv. (superseding the Convention of 1899) as to the conduct of warfare, and No. v. as to neutrals, of which only the former has as yet been ratified by Great Britain.

(iii.) With reference only to war at sea: the Declaration of Paris, of 1856, supposed apparently to need no ratification (to which the United States is now the only important Power which has not become a party), as to privateering, combination of enemy and neutral property and blockades; The Hague Conventions of 1907, No. vi. as to enemy merchant vessels at outbreak, No. vii. as to conversion of merchantmen into warships, No. viii. as to mines, No. ix. as to naval bombardments, No. x. as to the sick and wounded, No. xi. as to captures, No. xii. as to an International Prize Court, supplemented by the Convention of 1910, No. xiii. as to neutrals. It must be observed that, of these Conventions, Great Britain has ratified only vi., vii., viii., ix., and x., the three last subject to reservations. The Declaration of London of 1909, purporting to codify the laws of naval warfare as to blockade, contraband, hostile assistance, destruction of prizes, change of flag, enemy character, convoy, resistance and compensation, and so to facilitate the working of the proposed International Prize Court, if, and when, this Court should come into existence, has failed to obtain ratification, as will be hereafter explained.

Concurrently with the efforts which have thus been made to ascertain the laws of war by general diplomatic agreement, the way for such agreement has been prepared by the labours of the Institut de Droit International, and by the issue by several governments of instructions addressed to their respective armies and navies.

The _Manuel des Lois de la Guerre sur Terre_, published by the Institut in 1880, is the subject of the two letters which immediately follow. Their insertion here, although the part in them of the present writer is but small, may be justified by the fact that they set out a correspondence which is at once interesting (especially from its bearing upon the war of 1914) and not readily elsewhere accessible.

The remaining letters in this chapter relate to the _Naval War Code_, issued by the Government of the United States in 1900, but withdrawn in 1904, though still expressing the views of that Government, for reasons specified in a note to the British _chargé d'affaires_ at Washington and printed in _Parl. Papers, Miscell._ No. 5 (1909), p. 8. The United States, it will be remembered, were also the first Power to attempt a codification of the laws of war on land, in their _Instructions for the Government of Armies of the United States_, issued in 1863, and reissued in 1898. Some information as to this and similar bodies of national instructions may be found in the present writer's _Studies in International Law_, 1898, p. 85. _Cf._ his _Manual of Naval Prize Law_, issued by authority of the Admiralty in 1888, his _Handbook of the Laws and Customs of War on Land_, issued by authority to the British Army in 1904, and his _The Laws of War on Land (written and unwritten)_, 1908. The Institut de Droit International, which has been engaged for some years upon the Law of War at Sea, by devoting the whole of its session at Oxford, in 1913, to the discussion of the subject, produced a _Manuel des Lois de la Guerre sur Mer_, framed in accordance with the now-accepted view which sanctions the capture of enemy private property at sea. It is to be followed by a manual framed in accordance with the contrary view. _Cf._ the letters upon the _Declaration of London_, in Ch. VII. Section 10, _infra_.

COUNT VON MOLTKE ON THE LAWS OF WARFARE

Sir,--You may perhaps think that the accompanying letter, recently addressed by Count von Moltke to Professor Bluntschli, is of sufficient general interest to be inserted in _The Times_. It was written with reference to the Manual of the Laws of War which was adopted by the Institut de Droit International at its recent session at Oxford. The German text of the letter will appear in a few days at Berlin. My translation is made from the proof-sheets of the February number of the _Revue de Droit International_, which will contain also Professor Bluntschli's reply.

Your obedient servant, T. E. HOLLAND. Oxford, January 29 (1881).

"Berlin, Dec. 11, 1880.

"You have been so good as to forward to me the manual published by the Institut de Droit International, and you hope for my approval of it. In the first place I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed; courage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice: the soldier gives his life. Without war the world would stagnate, and lose itself in materialism.

"I agree entirely with the proposition contained in the introduction that a gradual softening of manners ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that, two Powers being at war, the 'laws of war' had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge. Success can come only from the religious moral education of individuals and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it so far as the exceptional circumstances of war permit.

"This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times.

"A great step has been made in our own day by the establishment of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses--strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is impossible for the soldier who endures sufferings, hardships, fatigues, who meets danger, to take only 'in proportion to the resources of the country.' He must take whatever is needful for his existence. We cannot ask him for what is superhuman.

"The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable with that view to employ all methods save those which are absolutely objectionable ('dazu müssen alle nicht geradezu verwerfliche Mittel freistehen'). I can by no means profess agreement with the Declaration of St. Petersburg when it asserts that 'the weakening of the military forces of the enemy' is the only lawful procedure in war. No, you must attack all the resources of the enemy's Government: its finances, its railways, its stores, and even its prestige. Thus energetically, and yet with a moderation previously unknown, was the late war against France conducted. The issue of the campaign was decided in two months, and the fighting did not become embittered till a revolutionary Government, unfortunately for the country, prolonged the war for four more months.

"I am glad to see that the manual, in clear and precise articles, pays more attention to the necessities of war than has been paid by previous attempts. But for Governments to recognise these rules will not be enough to insure that they shall be observed. It has long been a universally recognised custom of warfare that a flag of truce must not be fired on, and yet we have seen that rule violated on several occasions during the late war.

"Never will an article learnt by rote persuade soldiers to see a regular enemy (sections 2-4) in the unorganised population which takes up arms 'spontaneously' (so of its own motion) and puts them in danger of their life at every moment of day and night. Certain requirements of the manual might be impossible of realisation; for instance, the identification of the slain after a great battle. Other requirements would be open to criticism did not the intercalation of such words as 'if circumstances permit,' 'if possible,' 'if it can be done,' 'if necessary,' give them an elasticity but for which the bonds they impose must be broken by inexorable reality.

"I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such are the rules of the manual relating to the wounded, the sick, the surgeons, and medical appliances. The general recognition of these principles, and of those also which relate to prisoners, would mark a distinct step of progress towards the goal pursued with so honourable a persistency by the Institut de Droit International.

"COUNT VON MOLTKE, Field-Marshal-General."

PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE

Sir,--In accordance with a wish expressed in several quarters, I send you, on the chance of your being able to make room for it, a translation of Professor Bluntschli's reply to the letter from Count von Moltke which appeared in _The Times_ of the 1st inst.

Your obedient servant, T. E. HOLLAND. Oxford, February (1881).

"Christmas, 1880.

"I am very grateful for your Excellency's detailed and kind statement of opinion as to the manual of the laws of war. This statement invites serious reflections. I see in it a testimony of the highest value, of historical importance; and I shall communicate it forthwith to the members of the Institut de Droit International.

"For the present I do not think I can better prove my gratitude to your Excellency than by sketching the reasons which have guided our members, and so indicating the nature of the different views which prevail upon the subject.

"It is needless to say that the same facts present themselves in a different light and give a different impression as they are looked at from the military or the legal point of view. The difference is diminished, but not removed, when an illustrious general from his elevated position takes also into consideration the great moral and political duties of States, and when, on the other hand, the representatives of science of international law set themselves to bring legal principles into relation with military necessities.

"For the man of arms the interest of the safety and success of the army will always take precedence of that of the inoffensive population, while the jurist, convinced that law is the safeguard of all, and especially for the weak against the strong, will ever feel it a duty to secure for private individuals in districts occupied by an enemy the indispensable protection of law. There may be members of the Institut who do not give up the hope that some day, thanks to the progress of civilisation, humanity will succeed in substituting an organised international justice for the wars which now-a-days take place between sovereign States. But the body of the Institut, as a whole, well knows that that hope has no chance of being realised in our time, and limits its action in this matter to two principal objects, the attainment of which is possible:--

"1. To open and facilitate the settlement of trifling disputes between nations by judicial methods, war being unquestionably a method out of all proportion in such cases.

"2. To aid in elucidating and strengthening legal order even in time of war.

"I acknowledge unreservedly that the customs of warfare have improved since the establishment of standing armies, a circumstance which has rendered possible a stricter discipline, and has necessitated a greater care for the provisionment of troops. I also acknowledge unreservedly that the chief credit for this improvement is due to military commanders. Brutal and barbarous pillage was prohibited by generals before jurists were convinced of its illegality. If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war has also become national. Laws of war are consequently more than ever important and necessary, since, in the differences of culture and opinion which prevail between individuals and classes, law is almost the only moral power the force of which is acknowledged by all, and which binds all together under common rules. This pleasing and cheering circumstance is one which constantly meets us in the Institut de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed--Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians--are, as a rule, all of one mind as to the principles of international law.

"This is what makes it possible to proclaim an international law of war, approved by the legal conscience of all civilised peoples; and when a principle is thus generally accepted, it exerts an authority over minds and manners which curbs sensual appetites and triumphs over barbarism. We are well aware of the imperfect means of causing its decrees to be respected and carried out which are at the disposal of the law of nations. We know also that war, which moves nations so deeply, rouses to exceptional activity the good qualities as well as the evil instincts of human nature. It is for this very reason that the jurist is impelled to present the legal principles, of the need for which he is convinced, in a clear and precise form, to the feeling of justice of the masses, and to the legal conscience of those who guide them. He is persuaded that his declaration will find a hearing in the conscience of those whom it principally concerns, and a powerful echo in the public opinion of all countries.

"The duty of seeing that international law is obeyed, and of punishing violations of it, belongs, in the first instance, to States, each within the limits of its own supremacy. The administration of the law of war ought therefore to be intrusted primarily to the State which wields the public power in the place where an offence is committed. No State will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties; it will not do so even when it knows that it runs no risk of war on the part Of neutral States. Every State, even the most powerful, will gain sensibly in honour with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations.

"Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the Army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation--that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way.

"With reference to several rules being stated with the qualifications 'if possible,' 'according to circumstances,' we look on this as a safety-valve, intended to preserve the inflexible rule of law from giving way when men's minds are overheated in a struggle against all sorts of dangers, and so to insure the application of the rules in many other instances. Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable.

"I trust that your Excellency will receive indulgently this sincere statement of my views, and will regard it as an expression of my gratitude, as well as of my high personal esteem and of my respectful consideration.

"Dr. BLUNTSCHLI, Privy Councillor, Professor."

THE UNITED STATES NAVAL WAR CODE.[1]

Sir,--The "Naval War Code" of the United States, upon which an interesting article appeared in _The Times_ of Friday last, in so well deserving of attention in this country that I may perhaps be allowed to supplement the remarks of your Correspondent from the results of a somewhat minute examination of the code made shortly after its publication.

One notes, in the first place, that the Government of the United States does not shirk responsibility. It puts the code into the hands of its officers "for the government of all persons attached to the naval service," and is doubtless prepared to stand by the rules contained in it, as being in accordance with international law. These rules deal boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon which the Brussels, and after it The Hague, Conference preferred to keep silence; and they take a definite line on many questions upon which there are wide differences of opinion. On most debatable points, the rules are in accordance with the views of this country--e.g. as to the right of search (Art. 22), as to the two-fold list of contraband (Arts. 34-36), as to the moment at which the liability of a blockade-runner commences (Art. 44), and as to the capture of private property (Art. 14), although the prohibition of such capture has long been favoured by the Executive of the United States, and was advocated by the American delegates at The Hague Conference. So also Arts. 34-36, by apparently taking for granted the correctness of the rulings of the Supreme Court in the Civil War cases of the _Springbok_ and the _Peterhoff_ with reference to what may be described as "continuous carriage," are in harmony with the views which Lord Salisbury recently had occasion to express as to the trade of the _Bundesrath_ and other German vessels with Lorenzo Marques. It must be observed, on the other hand, that Art. 30 flatly contradicts the British rule as to convoy; while Art. 3 sets out The Hague Declaration as to projectiles dropped from balloons, to which this country is not a party. Art. 7 departs from received views by prohibiting altogether the use of false colours, and Art. 14 (doubtless in pursuance of the recent decision of the Supreme Court in the _Paquete Habana_), by affirming the absolute immunity of coast fishing vessels, as such, from capture.

On novel questions the code is equally ready with a solution. It speaks with no uncertain voice on the treatment of mail steamers and mail-bags (Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent points out, the views which I ventured to maintain in your columns when the question was raised during the war of 1898.[2] I may also, by the way, claim the support of the code for the view taken by me, in a, correspondence also carried on in your columns during the naval manoeuvres of 1888, of the bombardment of open coast towns.[3] Art. 4 sets out substantially the rules upon this subject for which I secured the _imprimatur_ of the Institut de Droit International in 1896.

Secondly, the code is so well brought up to date as to incorporate (Arts. 21-29) the substance of The Hague Convention, ratified only in September last, for applying to maritime warfare the principles of the Convention of Geneva. Art. 10 of The Hague Convention has been reproduced in the code, in forgetfulness perhaps of the fact that that article has not been ratified.

Thirdly, the code contains, very properly, some general provisions applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).

Fourthly, it is clearly expressed; and it is brief, consisting of only 54 articles, occupying 22 pages.

Fifthly, it deals with two very distinct topics--viz. the mode of conducting hostilities against the forces of the enemy, and the principles applicable to the making prize of merchant vessels, which as often as not may be the property of neutrals. These topics are by no means kept apart as they might be, articles on prize occurring unexpectedly in the section avowedly devoted to hostilities.

It is worth considering whether something resembling the United States code would not be found useful in the British Navy. Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 8 (1901).

NOTES - 1: Withdrawn in 1904. - 2: _Infra_, Ch. VII. Section 6. - 3: _Infra_, Ch. VI. Section 14.

A NAVAL WAR CODE

Sir,--It is now nearly a year ago since I ventured to suggest in your columns (for April 10, 1901) that something resembling the United States "Naval War Code," dealing with "the laws and usages of war at sea," would be found useful in the British Navy.

The matter is, however, not quite so simple as might be inferred from some of the allusions to it which occurred during last night's debate upon the Navy Estimates. Upon several disputable and delicate questions the Government of the United States has not hesitated to express definite views; and they are not always views which the Government of our own country would be prepared to endorse. For some remarks upon these questions in detail, and upon the code generally, I must refer to my former letter, but may perhaps be allowed to quote its concluding words, which were to the following effect:--

"Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind."

Before issuing such a code our authorities would have to decide--first, what are the classes of topics as to which it is desirable to give definite instructions to naval officers; and, secondly, with reference to topics, to be included in the instructions, as to which there exist international differences of view, what is, in each case, the view by which the British Government is prepared to stand.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 12 (1902).