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Title: The War Book of the German General Staff - Being "The Usages of War on Land" Issued by the Great General Staff of
Author: Morgan, J. H. (John Hartman)
Language: English
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THE WAR BOOK OF THE
GERMAN GENERAL STAFF
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
TRANSLATED WITH A CRITICAL INTRODUCTION
BY
J. H. MORGAN, M.A.
PROFESSOR OF CONSTITUTIONAL LAW AT UNIVERSITY
COLLEGE, LONDON, LATE SCHOLAR OF BALLIOL
COLLEGE, OXFORD; JOINT AUTHOR OF
“WAR: ITS CONDUCT AND ITS
LEGAL RESULTS”
NEW YORK
McBRIDE, NAST & COMPANY
1915
Copyright, 1915, by
MCBRIDE, NAST & CO.
Published March, 1915
TO
THE LORD FITZMAURICE
IN TOKEN OF
FOURTEEN YEARS OF FRIENDSHIP
AND OF
MUCH WISE COUNSEL IN THE STUDY
OF FOREIGN AFFAIRS
PREFATORY NOTE
The text of this book is a literal and integral translation of the
_Kriegsbrauch im Landkriege_ issued and re-issued by the German
General Staff for the instruction of German officers. It is the most
authoritative work of its kind in Germany and takes precedence over
all other publications whether military or legal, alike over the works
of Bernhardi the soldier and of Holtzendorff the jurist. As will be
shown in detail in the critical introduction, The Hague Conventions are
treated by the authors as little more than “scraps of paper”--the only
“laws” recognized by the German Staff are the military usages laid down
in the pages of the Manual, and resting upon “a calculating egotism”
and injudicious “form of reprisals.”
I have treated the original text with religious respect, seeking
neither to extenuate nor to set down aught in malice. The text is by
no means elegant, but, having regard to the profound significance of
the views therein expressed or suggested, I have thought it my duty
as a translator to sacrifice grace to fidelity. Text, footnotes, and
capital headlines are all literally translated in their entirety. When
I have added footnotes of my own they are enclosed in square brackets.
The marginal notes have been added in order to supply the reader with
a continuous clue. In the Critical Introduction which precedes the
text I have attempted to show the intellectual pedigree of the book as
the true child of the Prussian military tradition, and to exhibit its
degrees of affinity with German morals and with German policy--with
“Politik” and “Kultur.” I have therefore attempted a short study of
German diplomacy, politics, and academic teaching since 1870, with
some side glances at the writings of German soldiers and jurists. All
these, it must be remembered, are integrally related; they all envisage
the same problem. That problem is War. In the German imagination the
Temple of Janus is never closed. Peace is but a suspension of the
state of war instead of war being a rude interruption of a state of
peace. The temperament of the German is saturated with this belligerent
emotion and every one who is not with him is against him. An unbroken
chain links together Clausewitz, Bismarck, Treitschke, von der Goltz,
Bernhardi, and the official exponents of German policy to-day. The
teaching of Clausewitz that war is a continuation of policy has sunk
deeply into the German mind, with the result that their conception of
foreign policy is to provoke a constant apprehension of war.
The first part of the Introduction appears in print for the first time.
In the second and third parts I have incorporated a short essay on
Treitschke which has appeared in the pages of the _Nineteenth Century_
(in October last), a criticism of German diplomacy and politics which
was originally contributed to the _Spectator_ in 1906 and a study of
the German professors which was published, under the title of “The
Academic Garrison,” in the _Times_ Supplement of Sept. 1st, 1914. I
desire to thank the respective Editors for their kindness in allowing
me to reproduce here what I had already written there.
J. H. M.
CONTENTS
PAGE
DEDICATION v
PREFATORY NOTE vii
INTRODUCTION--
I THE GERMAN VIEW OF WAR 1
II GERMAN DIPLOMACY AND STATECRAFT 16
III GERMAN CULTURE: THE ACADEMIC GARRISON 44
IV GERMAN THOUGHT: TREITSCHKE 53
V CONCLUSION 65
CONTENTS OF THE WAR BOOK OF THE GERMAN GENERAL STAFF--
INTRODUCTION 67
PART I
USAGES OF WAR AS REGARDS THE ENEMY’S ARMY
I WHO BELONGS TO THE HOSTILE ARMY 75
Regular Army--Irregular Troops--People’s Wars and National
Wars.
II THE MEANS OF CONDUCTING WAR 84
A.--MEANS OF WAR DEPENDING ON FORCE 85
1. Annihilation, slaughter, and wounding of hostile
combatants.
2. Capture of Enemy combatants:
Modern conception of war captivity--Who is subject
to it?--Point of view for treatment of prisoners of
war--Right to put prisoners to death--Termination
of the captivity--Transport of Prisoners.
3. Sieges and Bombardments:
(_a_) Fortresses, strong places and fortified
places. Notification of bombardment--Scope of
bombardment--Treatment of civil population within
an enemy’s fortress--Diplomatists of neutral
States within a besieged fortress--Treatment of
the fortress after storming it. (_b_) Open towns,
villages, buildings and the like, which, however,
are occupied or used for military purposes.
B.--METHODS NOT INVOLVING THE USE OF FORCE 110
Cunning and deceit--Lawful and unlawful stratagem.
III TREATMENT OF WOUNDED AND SICK SOLDIERS 115
Modern view of non-effective combatants--Geneva
Convention--Hyenas of the battlefield.
IV INTERCOURSE BETWEEN BELLIGERENT ARMIES 117
Bearers of flags of truce--Treatment of them--Forms
as to their reception.
V SCOUTS AND SPIES 124
The notion of a spy--Treatment.
VI DESERTERS AND RENEGADES 127
VII CIVILIANS IN THE TRAIN OF AN ARMY 128
General--Authorizations--The representatives of the
Press.
VIII THE EXTERNAL MARK OF INVIOLABILITY 133
IX WAR TREATIES 135
A.--TREATIES OF EXCHANGE 135
B.--TREATIES OF CAPITULATION 136
C.--SAFE-CONDUCTS 140
D.--TREATIES OF ARMISTICE 141
PART II
USAGES OF WAR IN REGARD TO ENEMY TERRITORY AND ITS INHABITANTS
I RIGHTS AND DUTIES OF THE INHABITANTS 147
General Notions--Rights--Duties--Hostages--Jurisdiction
in enemy’s provinces when occupied--War rebellion and War
treason.
II PRIVATE PROPERTY IN WAR 161
III BOOTY AND PLUNDERING 167
Real and Personal State Property--Real and Personal
Private Property.
IV REQUISITIONS AND WAR LEVIES 174
V ADMINISTRATION OF OCCUPIED TERRITORY 180
General--Legislation--Relation of inhabitants to the
Provisional Government--Courts--Officials--Administration--
Railways.
PART III
USAGES OF WAR AS REGARDS NEUTRAL STATES 187
Idea of neutrality--Duties of neutral States--Contraband
of war--Rights of neutral States.
CONTENTS
OF EDITOR’S MARGINAL COMMENTARY
PAGE
What is a State of War 67
Active Persons and Passive 67
That War is no respector of Persons 68
The Usages of War 69
Of the futility of Written Agreements as Scraps of Paper 70
The “flabby emotion” of Humanitarianism 71
That Cruelty is often “the truest humanity” 72
The perfect Officer 72
Who are Combatants and who are not 75
The Irregular 76
Each State must decide for itself 77
The necessity of Authorization 77
Exceptions which prove the rule 77
The Free Lance 78
Modern views 79
The German Military View 80
The _Levée en masse_ 81
The Hague Regulations will not do 83
A short way with the Defender of his Country 83
Violence and Cunning 84
How to make an end of the Enemy 85
The Rules of the Game 85
Colored Troops are Blacklegs 87
Prisoners of War 88
_Væ Victis!_ 89
The Modern View 89
Prisoners of War are to be Honorably treated 90
Who may be made Prisoners 91
The treatment of Prisoners of War 92
Their confinement 92
The Prisoner and his Taskmaster 93
Flight 94
Diet 95
Letters 95
Personal belongings 95
The Information Bureau 96
When Prisoners may be put to Death 97
“Reprisals” 97
One must not be too scrupulous 98
The end of Captivity 99
Parole 100
Exchange of Prisoners 102
Removal of Prisoners 102
Sieges and Bombardments: Fair Game 103
Of making the most of one’s opportunity 104
Spare the Churches 105
A Bombardment is no Respector of Persons 105
A timely severity 106
“Undefended Places” 108
Stratagems 110
What are “dirty tricks”? 111
The apophthegm of Frederick the Great 111
Of False Uniforms 112
The Corruption of others may be useful 113
And Murder is one of the Fine Arts 114
That the ugly is often expedient, and that it is a mistake to
be too “nice-minded” 114
The Sanctity of the Geneva Convention 115
The “Hyenas of the Battlefield” 116
Flags of Truce 117
The Etiquette of Flags of Truce 119
The Envoy 120
His approach 120
The Challenge--“Wer da?” 120
His reception 120
He dismounts 121
Let his Yea be Yea, and his Nay, Nay 121
The duty of his Interlocutor 121
The Impatient Envoy 122
The French again 122
The Scout 124
The Spy and his short shrift 124
What is a Spy? 125
Of the essentials of Espionage 126
Accessories are Principals 126
The Deserter is faithless, and the Renegade false 127
But both may be useful 127
“Followers” 128
The War Correspondent: his importance. His presence is desirable 129
The ideal War Correspondent 130
The Etiquette of the War Correspondent 131
How to tell a Non-Combatant 133
War Treaties 135
That Faith must be kept even with an enemy 135
Exchange of Prisoners 135
Capitulations--they cannot be too meticulous 136
Of the White Flag 139
Of Safe-Conducts 140
Of Armistice 141
The Civil Population is not to be regarded as an enemy 147
They must not be molested 148
Their duty 149
Of the humanity of the Germans and the barbarity of the French 149
What the Invader may do 151
A man may be compelled to Betray his Country 153
And worse 153
Of forced labor 154
Of a certain harsh measure and its justification 154
Hostages 155
A “harsh and cruel” measure 156
But it was “successful” 156
War Rebellion 157
War Treason and Unwilling Guides 159
Another deplorable necessity 159
Of Private Property and its immunities 161
Of German behavior 163
The gentle Hun and the looking-glass 165
Booty 167
The State realty may be used but must not be wasted 168
State Personalty is at the mercy of the victor 169
Private realty 170
Private personalty 170
“Choses in action” 171
Plundering is wicked 171
Requisitions 174
How the docile German learnt the “better way” 175
To exhaust the country is deplorable, but we mean to do it 175
Buccaneering levies 177
How to administer an invaded country 180
The Laws remain--with qualification 181
The Inhabitants must obey 182
Martial Law 182
Fiscal Policy 184
Occupation must be real, not fictitious 185
What neutrality means 187
A neutral cannot be all things to all men; therefore he must be
nothing to any of them 187
But there are limits to this detachment 188
Duties of the neutral--belligerents must be warned off 188
The neutral must guard its inviolable frontiers. It must intern
the trespassers 189
Unneutral service 191
The “sinews of war”--loans to belligerents 191
Contraband of War 191
Good business 192
Foodstuffs 192
Contraband on a small scale 193
And on a large scale 194
The practise differs 194
Who may pass--the Sick and the Wounded 195
Who may not pass--Prisoners of War 196
Rights of the neutral 196
The neutral has the right to be left alone 197
Neutral territory is sacred 197
The neutral may resist a violation of its territory “with all
the means in his power” 197
Neutrality is presumed 198
The Property of Neutrals 198
Diplomatic intercourse 199
THE WAR BOOK OF THE
GERMAN GENERAL STAFF
INTRODUCTION
CHAPTER I
THE GERMAN VIEW OF WAR
The ideal Prince, so Machiavelli has told us, need not, and indeed
should not, possess virtuous qualities, but he should always contrive
to appear to possess them.[1] The somber Florentine has been studied in
Germany as he has been studied nowhere else and a double portion of his
spirit has descended on the authors of this book. Herein the perfect
officer, like the perfect Prince, is taught that it is more important
to be thought humane than to practise humanity; the former may probably
be useful but the latter is certainly inconvenient.
Hence the peculiar logic of this book which consists for the most part
in ostentatiously laying down unimpeachable rules and then quietly
destroying them by debilitating exceptions. The civil population of
an invaded country--the young officer is reminded on one page--is to
be left undisturbed in mind, body, and estate, their honor is to
be inviolate, their lives protected, and their property secure. To
compel them to assist the enemy is brutal, to make them betray their
own country is inhuman. Such is the general proposition. Yet a little
while and the Manual descends to particulars. Can the officer compel
the peaceful inhabitants to give information about the strength and
disposition of his country’s forces?[2] Yes, answers the German War
Book, it is doubtless regrettable but it is often necessary. Should
they be exposed to the fire of their own troops?[3] Yes; it may be
indefensible, but its “main justification” is that it is “successful.”
Should the tribute of supplies levied upon them be proportioned to
their ability to pay it?[4] No; “this is all very well in theory but
it would rarely be observed in practise.” Should the forced labor of
the inhabitants be limited to works which are not designed to injure
their own country?[5] No; this is an absurd distinction and impossible.
Should prisoners of war be put to death? It is always “ugly” but it is
sometimes expedient. May one hire an assassin, or corrupt a citizen, or
incite an incendiary? Certainly; it may not be reputable (_anständig_),
and honor may fight shy of it, but the law of war is less “touchy”
(_empfindlich_). Should the women and children--the old and the
feeble--be allowed to depart before a bombardment begins? On the
contrary; their presence is greatly to be desired (_ein Vortheil_)--it
makes the bombardment all the more effective. Should the civil
population of a small and defenseless country be entitled to claim the
right, provided they carry their arms openly and use them honorably,
to defend their native land from the invader?[6] No; they act at their
peril and must, however sudden and wanton the invasion, elaborate an
organization or they will receive no quarter.[7]
We might multiply examples. But these are sufficient. It will be
obvious that the German Staff are nothing if not casuists. In their
brutality they are the true descendants of Clausewitz, the father of
Prussian military tradition.
“Laws of war are self-imposed restrictions, almost imperceptible
and hardly worth mentioning, termed ‘usages of war.’ Now
philanthropists may easily imagine that there is a skilful method
of disarming and overcoming an enemy without causing great
bloodshed, and that this is the proper tendency of the art of war.
However plausible this may appear, still it is an error which must
be extirpated, for in such dangerous things as war the errors
which proceed from the spirit of benevolence are the worst....
To introduce into the philosophy of war itself a principle of
moderation would be an absurdity.... War is an act of violence
which in its application knows no bounds.”[8]
The only difference between Clausewitz and his lineal successors is not
that they are less brutal but that they are more disingenuous. When he
comes to discuss that form of living on the country which is dignified
by the name of requisitions, he roundly says they should be enforced.
“by the fear of responsibility, punishment, and ill-treatment
which in such cases presses like a general weight on the whole
population.... This resource has no limits except those of
the exhaustion, impoverishment, and devastation of the whole
country.”[9]
Our War Book is more discreet but not more merciful. Private property,
it begins by saying, should always be respected. To take a man’s
property when he is present is robbery; when he is absent it is
“downright burglary.” But if the “necessity of war” makes it advisable,
“every sequestration, every appropriation, temporary or permanent,
every use, every injury and all destruction are permissible.”
It is, indeed, unfortunate that the War Book when it inculcates
“frightfulness” is never obscure, and that when it advises forbearance
it is always ambiguous. The reader must bear in mind that the authors,
in common with their kind in Germany, always enforce a distinction
between _Kriegsmanier_ and _Kriegsraison_,[10] between theory and
practise, between the rule and the exception. That in extreme cases
such distinctions may be necessary is true; the melancholy thing is
that German writers make a system and indeed a virtue of them. In this
respect the jurists are not appreciably superior to their soldiers.
Brutality is bad, but a pedantic brutality is worse in proportion as it
is more reflective. Holtzendorff’s _Handbuch des Völkerrechts_, than
which there is no more authoritative book in the legal literature of
Germany, after pages of sanctification of “the natural right” to defend
one’s fatherland against invasion by a _levée en masse_, terminates
the argument for a generous recognition of the combatant status of the
enemy with the melancholy qualification, “unless _the Terrorism so
often necessary in war_ does not demand the contrary.”[11]
To “terrorize” the civil population of the enemy is, indeed, a first
principle with German writers on the Art of War. Let the reader
ponder carefully on the sinister sentence in the third paragraph of
the War Book and the illuminating footnote from Moltke with which it
is supported. The doctrine--which is at the foundation of all such
progress as has been made by international law in regularizing and
humanizing the conduct of war--that the sole object of it should be
to disable the armed forces of the enemy, finds no countenance here.
No, say the German staff, we must seek just as much (_in gleicher
Weise_) to smash (_zerstören_) the total “intellectual” (_geistig_),
and material resources of the enemy. It is no exaggeration to interpret
this as a counsel not merely to destroy the body of a nation, but to
ruin its soul. The “Geist” of a people means in German its very spirit
and finer essence. It means a good deal more than intellect and but a
little less than religion. The “Geist” of a nation is “the partnership
in all science, the partnership in all art, the partnership in every
virtue, and in all perfection,” which Burke defined as the true
conception of the State. Hence it may be no accident but policy which
has caused the Germans in Belgium to stable their horses in churches,
to destroy municipal palaces, to defile the hearth, and bombard
cathedrals. All this is scientifically calculated “to smash the total
spiritual resources” of a people, to humiliate them, to stupefy them,
in a word to break their “spirit.”
Let the reader also study carefully a dark sentence in that section of
the War Book which deals with “Cunning and Deceit.” There the German
officer is instructed that “there is nothing in international law
against” (_steht völkerrechtlich nichts entgegen_) the exploitation
of the crimes of third persons, “such as assassination, incendiarism,
robbery and the like,” to the disadvantage of the enemy. “There is
nothing in international law against it!” No, indeed. There are many
things upon which international law is silent for the simple reason
that it refuses to contemplate their possibility. It assumes that
it is dealing not with brutes but with men. International law is
the etiquette of international society, and society, as it has been
gravely said, is conducted on the assumption that murder will not be
committed. We do not carry revolvers in our pockets when we enter our
clubs, or finger them when we shake hands with a stranger. Nor, to
adopt a very homely illustration, does any hostess think it necessary
to put up a notice in her drawing-room that guests are not allowed to
spit upon the floor. But what should we think of a man who committed
this disgusting offense, and then pleaded that there was nothing to
show that the hostess had forbidden it? Human society, like political
society, advances in proportion as it rests on voluntary morality
rather than positive law. In primitive society everything is “taboo,”
because the only thing that will restrain the undisciplined passions
of men is fear. Can it be that this is why the traveler in Germany
finds everything “verboten,” and that things which in our own country
are left to the good sense and good breeding of the citizen have to
be officiously forbidden? Can it be that this people which is always
making an ostentatious parade of its “culture” is still red in tooth
and claw? When a man boasts his breeding we instinctively suspect
it; indeed the boast is itself ill-bred. If the reader thinks these
reflections uncharitable, let him ponder on the treatment of Belgium.
It will be seen therefore that the writers of the War Book have taken
to heart the cynical maxim of Machiavelli that “a Prince should
understand how to use well both the man and the beast.” We shall have
occasion to observe later in this introduction that the same maxim
runs like Ariadne’s thread through the labyrinth of German diplomacy.
Machiavelli’s dark counsel finds a responsive echo in Bismarck’s
cynical declaration that a diplomatic pretext can always be found
for a war when you want one. When these things are borne in mind the
reader will be able to understand how it is that the nation which has
used the strongest language[12] about the eternal inviolability of the
neutrality of Belgium should be the first to violate it.
The reader may ask, What of the Hague Conventions? They are
international agreements, to which Germany was a party, representing
the fruition of years of patient endeavor to ameliorate the horrors of
war. If they have any defect it is not that they go too far but that
they do not go far enough. But of them and the humanitarian movement
of which they are the expression, the German Staff has but a very poor
opinion. They are for it the crest of a wave of “Sentimentalism and
flabby emotion.” (_Sentimentalität und weichlicher Gefühlsschwärmerei._)
Such movements, our authors declare, are “in fundamental contradiction
with the nature and object of war itself.” They are rarely mentioned
in this book and never respectfully. The reader will look in vain
for such an incorporation of the Hague Regulations in this official
text-book as has been made by the English War Office in our own
_Manual of Military Law_. Nor is the reason far to seek. The German
Government has never viewed with favor attempts to codify the laws
and usages of war. Amiable sentiments, prolegomenous resolutions,
protestations of “culture” and “humanity,” she has welcomed with
evangelical fervor. But the moment attempts are made to subject
these volatile sentiments to pressure and liquefy them in the form
of an agreement, she has protested that to particularize would be
to “enfeeble humane and civilizing thoughts.”[13] Nothing is more
illuminating as to the respective attitudes of Germany and England to
such international agreements than the discussions which took place
at the Hague Conference of 1907 on the desirability of imposing in
express terms restrictions upon the laying of submarine mines in order
to protect innocent shipping in neutral waters. The representatives of
the two Powers agreed in admitting that it did not follow that because
the Convention had not prohibited a certain act it thereby sanctioned
it. But whereas the English representatives regarded this as a reason
why the Convention could never be too explicit,[14] the spokesman
of Germany urged it as a reason why it could never be too ambiguous.
In the view of the latter, not international law but “conscience,
good sense, and the sentiment of duties imposed by the principles
of humanity will be the surest guides for the conduct of soldiers
and sailors and the most efficacious guarantees against abuse.”[15]
Conscience, “the good German Conscience,” as a German newspaper has
recently called it, is, as we have seen, an accommodating monitor,
and in that forum there are only too many special pleaders. If the
German conscience is to be the sole judge of the lawfulness of German
practises, then it is a clear case of “the right arm strikes and
the left arm is called upon to decide the lawfulness of the blow.”
It is, indeed, difficult to see, if Baron von Bieberstein’s view of
international agreements be the right one, why there should be any such
agreements at all. The only rule which results from such an Economy of
Truth would be: All things are lawful but all are not expedient. And
such, indeed, is the conclusion of the German War Book.
The cynicism of this book is not more remarkable than its affectation.
There are pages in it of the most admirable sentiment--witness
those about the turpitude of plundering and the inviolability of
neutral territory. Taken by themselves, they form the most scathing
denunciation of the conduct of the German army in Belgium that could
well be conceived. Let the reader weigh carefully the following:
Movable private property which in earlier times was the
incontestable booty of the victor is held by modern opinion to be
inviolable. The carrying away of gold, watches, rings, trinkets, or
other objects of value is therefore to be regarded as robbery, and
correspondingly punishable.
No plundering but downright burglary is it for a man to take away
things out of an unoccupied house or at a time when the occupant
happens to be absent.
Forced contributions (_Kriegschatzungen_) are denounced as “a form of
plundering” rarely, if ever, to be justified, as requisitions may be,
by the plea of necessity. The victor has no right, the Book adds, to
practise them in order to recoup himself for the cost of the war, or
to subsidize an operation against the nation whose territory is in his
occupation. To extort them as a ransom from the violence of war is
equally unjustifiable: thus out of its own mouth is the German staff
condemned and its “buccaneering levies” upon the forlorn inhabitants of
Belgium held up to reprobation.
Still more significant are the remarks on the right and duty of
neutrals. The inviolability of neutral territory and the sanctity of
the Geneva Convention are the only two principles of international law
which the German War Book admits to be laws of perfect obligation. A
neutral State, it declares, not only may, but must forbid the passage
of troops to the subjects of both belligerents. If either attempts it,
the neutral State has the right to resist “with all the means in its
power.” However overwhelming the necessity, no belligerent must succumb
to the temptation to trespass upon the neutral territory. If this be
true of a neutral State it is doubly true of a neutralized State. No
one has been so emphatic on this point as the German jurists whose
words the War Book is so fond of praying in aid. The Treaty of London
guaranteeing the neutrality of Belgium is declared by them to be “a
landmark of progress in the formation of a European polity” and “up
till now no Power has dared to violate a guarantee of this kind.”[16]
“He who injures a right does injury to the cause of right itself,
and in these guarantees lies the express obligation to prevent such
things.... Nothing could make the situation of Europe more insecure
than an egotistical repudiation by the great States of these duties
of international fellowship.”[17]
The reader will, perhaps, hardly need to be cautioned against the
belligerent footnotes with which the General Staff has illuminated
the text. They are, as he will observe, mainly directed towards
illustrating the peculiar depravity of the French in 1870. They
are certainly suspect, and all the more so, because the notorious
malpractices of the Germans in that campaign are dismissed, where they
are noticed at all, with the airy remark that there were peculiar
circumstances, or that they were unauthorized, or that the “necessity
of war” afforded sufficient justification. All this is _ex parte_. So
too, to a large extent, is the parade of professors in the footnotes.
They are almost always German professors and, as we shall see later,
the German professor is, and is compelled to be, a docile instrument of
the State.
The book has, of course, a permanent value apart from the light it
throws upon contemporary issues. Some of the chapters, such as that
on the right and duties of neutrals, represent a carefully considered
theory, little tainted by the cynicism which disfigures the rest of the
book. It should be of great interest and value to those of us who are
engaged in studying the problem of bringing economic pressure to hear
upon Germany, by enclosing her in the meshes of conditional contraband.
So, too, the chapter on the treatment of Prisoners of War will have
a special, and for some a poignant, interest just now. The chapter
on the treatment of occupied territory is, of course, of profound
significance in view of the present state of Belgium.
CHAPTER II
GERMAN DIPLOMACY AND STATECRAFT
Bismarck, wrote Hohenlohe, who ultimately succeeded him as Imperial
Chancellor, “handles everything with a certain arrogance (_Uebermut_),
and this gives him a considerable advantage in dealing with the timid
minds of the older European diplomacy.” This native arrogance became
accentuated after the triumphs of 1870 until, in Hohenlohe’s words,
Bismarck became “the terror” of all European diplomatists. That word
is the clue to German diplomacy. The terrorism which the Germans
practise in war they indoctrinate in peace. It was a favorite saying
of Clausewitz, whose military writings enjoy an almost apostolic
authority in Germany, that War and Peace are but a continuation of one
another--“War is nothing but a continuation of political intercourse
with a mixture of other means.”[18] The same lesson is written large
on every page of von der Goltz[19] and Bernhardi.[20] In other words,
war projects its dark shadow over the whole of German diplomacy. The
dominant postures in “shining armor” at critical moments in the peace
of Europe, and the menacing invocations of the “mailed fist” are not,
as is commonly supposed, a passionate idiosyncrasy of the present
Emperor. They are a legacy of the Bismarckian tradition. To keep Europe
in a perpetual state of nervous apprehension by somber hints of war
was, as we shall see, the favorite method by which Bismarck attained
his diplomatic ends. For the German Chancellerie rumors of wars are
of only less political efficacy than wars themselves. After 1870,
metaphors of war became part of the normal vocabulary of the German
Government in times of peace. Not only so but, as will be seen in the
two succeeding chapters, a belligerent emotion suffused the temperament
of the whole German people, and alike in the State Universities, and
the stipendiary Press, there was developed a cult of War for its own
sake. The very vocabulary of the Kaiser’s speeches has been coined in
the lecture-rooms of Berlin University.
Now War is at best but a negative conception and its adoption as the
_Credo_ of German thinkers since 1870 explains why their contributions
to Political Science have been so sterile. More than that, it accounts
for the decline in public morality. Politically, Germany, as we
shall see, has remained absolutely stagnant. She is now no nearer
self-government than she was in 1870; she is much farther removed from
it than she was in 1848. The inevitable result has been, that politics
have for her come to mean little more than intrigues in high places,
the deadly struggle of one contending faction at court against another,
with the peace of Europe as pawns in the game. The German Empire, like
the Prussian kingdom, has little more than a paper constitution, a
_lex imperfecta_ as Gneist called it. The Reichstag has little power
and less prestige, and its authority as a representative assembly has
been so enervated by the shock tactics practised by the Government
in forcing, or threatening to force, a series of dissolutions to
punish contumacious behavior, that it is little better than a debating
society. A vote of censure on the Government has absolutely no
effect. Of the two powers, the Army and the Reichstag, the Army is
infinitely the stronger; there is no law such as our Army Annual Act
which subjects it to Parliamentary control. Even the Bundesrath[21]
(or Federal Council), strong as it is, is hardly stronger than the
German General Staff, for the real force which welds the German Empire
together is not so much this council of plenipotentiaries from the
States as the military hegemony of Prussia and the military conventions
between her and the Southern States by which the latter placed their
armies under her supreme control. In this shirt of steel the body
politic is enclosed as in a vice.
* * * * *
Nothing illustrates the political lifelessness of Germany, the
arrogance of its rulers and the docility of its people (for whom,
as will be seen, the former have frequently expressed the utmost
contempt) more than the tortuous course of German diplomacy during the
years 1870-1900. I shall attempt to sketch very briefly the political
history of those years, particularly in the light of the policy of
calculated Terrorism by which the German Chancellerie sought to impose
its yoke upon Europe. Well did Lord Odo Russell say that “Bismarck’s
sayings inspired respect” (he might, had he not been speaking as an
ambassador, have used, like Hohenlohe, a stronger word) “and his
silences apprehension.”[22] If it be true, as von der Goltz says it
is, that national strategy is the expression of national character and
that the German method is, to use his words, “a brutal offensive,”
nothing could bring out that amiable characteristic more clearly than
the study of Bismarck’s diplomacy. The German is brutal in war just
because he is insolent in peace. Count Herbert “can be very insolent,”
wrote the servile Busch of Bismarck’s son, “which in diplomacy is very
useful.”[23]
Bismarck’s attitude towards treaty obligations is one of the chief
clues to the history of the years 1870-1900. International policy,
he once wrote, is “a fluid element which under certain conditions
will solidify, but on a change of atmosphere reverts to its original
condition.”[24] The process of solidification is represented by the
making of treaties; that of melting is a euphemism for the breaking of
them. To reinsure Germany’s future by taking out policies in different
countries in the form of secret treaties of alliance while concealing
the existence of other and conflicting treaties seemed to him not
only astute but admirable. Thus having persuaded Austria-Hungary to
enter into a Triple Alliance with Germany and Italy by holding out as
the inducement the promise of protection against Russia, Bismarck by
his own subsequent confession concluded a secret treaty with Russia
against Austria. To play off each of these countries against the
other by independent professions of exclusive loyalty to both was
the _Leit-motif_ of his diplomacy. Nor did he treat the collective
guarantees of European treaties with any greater respect. Good faith
was a negotiable security. Hence his skilful exploitation of the Black
Sea clauses of the Treaty of Paris (1856) when he wished to secure the
friendly neutrality of Russia during the Franco-Prussian War. Russia,
it will be remembered, suddenly and to every one’s surprise, denounced
those clauses. The European Powers, on the initiative of England,
disputed Russia’s claim to denounce _motu proprio_ an international
obligation of so solemn a character, and Bismarck responded to Lord
Granville’s initiative in words of ostentatious propriety:
“That the Russian Circular of the 19th October [denouncing the
clauses in question] had _taken him by surprise_. That while he had
always held that the Treaty of 1856 pressed with undue severity
upon Russia, he entirely disapproved of the manner adopted and the
time selected by the Russian Government to force the revision of
the Treaty.”[25]
Nearly a generation later Bismarck confessed, and prided himself on the
confession, in his Reminiscences,[26] that he had himself instigated
Russia to denounce the Black Sea clauses of the Treaty; that he had not
only instigated this repudiation but had initiated it as affording “an
opportunity of improving our relations with Russia.” Russia succumbed
to the temptation, but, as Bismarck cheerfully admits, not without
reluctance.
This, however, is not all: Europe “saved her face” by putting on record
in the Conference of London (1871) a Protocol, subscribed by the
Plenipotentiaries of all the Powers, in which it was laid down as
“an essential principle of the law of nations that no Power can
repudiate treaty engagements or modify treaty provisions, except
with the consent of the contracting parties by mutual agreement.”
This instrument has been called, not inaptly, the foundation of the
public law of Europe. It was in virtue of this principle that Russia
was obliged to submit the Russo-Turkish Treaty of San Stefano, and
with it the fruits of her victories in 1877-8 to the arbitrament of
the Congress of Berlin. At that Congress Bismarck played his favorite
rôle of “honest broker,” and there is considerable ground for believing
that he sold the same stock several times over to different clients
and pocketed the “differences.” What kind of conflicting assurances he
gave to the different Powers will never be fully known, but there is
good ground for believing that in securing the temporary occupation
of Bosnia-Herzegovina he had in mind the ultimate Germanization
of the Adriatic, and that domination of the Mediterranean at the
expense of England which has long been the dream of German publicists
from Treitschke onward.[27] What, however, clearly emerged from the
Congress, and was embodied in Article XXV of the Berlin Treaty, was,
that Austria was to occupy and administer Bosnia-Herzegovina under a
European mandate. She acquired lordship without ownership; in other
words, the territory became a Protectorate. Her title, as it originated
in, so it was limited by, the Treaty of Berlin. Exactly thirty years
later, in the autumn of 1908, Austria, acting in concert with Germany,
abused her fiduciary position and without any mandate from the Powers
annexed the territory of which she had been made the guardian. This
arbitrary action was a violation of the principle to which she and
Germany had subscribed at the London Conference, and Sir Edward
Grey attempted, as Lord Granville had done before him, to preserve
the credit of the public law of Europe by a conference which should
consider the compensation due to Servia for an act which so gravely
compromised her security. Russia, France, and Italy joined with Great
Britain in this heroic, if belated, attempt to save the international
situation. It was at this moment (March; 1909) that Germany appeared
on the scene “in shining armor,” despatched a veiled ultimatum to
Russia, with a covert threat to mobilize, and forced her to abandon her
advocacy of the claims of Servia and, with them, of the public law of
Europe.
Thus did History repeat itself. Germany stood forth once again as the
chartered libertine of Europe whom no faith could bind and no duty
oblige. May it not be said of her what Machiavelli said of Alexander
Borgia: “E non fu mai uomo che avesse maggiore efficacia in asseveraie,
e che con maggiori giuramenti affermasse una cosa, e che l’osservasse
meno.”[28]
* * * * *
It would carry me far beyond the limits of this Introduction to trace
in like detail the German policy of _Scharfmacherei_ which consisted,
to use the mordant phrase of M. Hanotaux, in putting up to auction that
which is not yours to sell and, not infrequently, knocking it down to
more than one bidder. That Bismarck encouraged Russian ambitions in
Asia and French ambitions in Africa with the view of making mischief
between each of them and England is notorious.[29] In his earlier
attitude he was content to play the rôle of _tertius gaudens_; in his
later he was an active _agent provocateur_--particularly during the
years 1883-1885, when he joined in the scramble for Africa. The earlier
attitude is well indicated in Hohenlohe’s revelations, that Bismarck
regarded French colonial operations as a timely diversion from the
Rhine, and would not be at all sorry “to see the English and French
locomotives come into collision,” and a French annexation of Morocco
would have had his benevolent approval. After 1883 his attitude was
less passive but not less mischievous. Ten years earlier he had told
Lord Odo Russell that colonies “would only be a cause of weakness” to
Germany. But by 1883 he had been slowly and reluctantly converted to
the militant policy of the Colonial party and the cry of _Weltpolitik_
was as good as a war scare for electioneering purposes. It was in
these days that hatred of England, a hatred conceived in jealousy of
her world-Empire, was brought forth, and the obstetrics of Treitschke
materially assisted its birth. Bismarck, however, as readers of his
Reminiscences are well aware, had an intellectual dislike of England
based on her forms of government. He loved the darker ways of diplomacy
and he thought our Cabinet system fatal to them. He had an intense
dislike of Parliamentarism, he despised alliances “for which the Crown
is not answerable but only the fleeting cabinet of the day,” and above
all he hated plain dealing and publicity. “It is astonishing,” wrote
Lord Ampthill, “how cordially Bismarck hates our Blue Books.”
* * * * *
The story of Bismarck’s diplomatic relations with England during these
years exhibits the same features of duplicity tempered by violence as
marked his relations with the rest of Europe. He acquired Samoa by a
deliberate breach of faith, and his pretense of negotiations with this
country to delimit the frontiers of English and German acquisitions
while he stole a march upon us were properly stigmatized by the
Colonial Office as “shabby behavior.” Whether he really egged on France
to “take Tunis” in order to embroil her with England will perhaps never
be really known,[30] but it was widely suspected in France that his
motives in supporting, if not instigating,[31] the colonial policy of
Jules Ferry would not bear a very close examination. That he regarded
it as a timely diversion from the Rhine is certain; that he encouraged
it as a promising embarrassment to England is probable. There can be
no doubt that much the same construction is to be put on his attitude
towards Russia’s aspirations in Asia; that they should divert Russia
from Europe was necessary; that they might entangle her with England
was desirable.
Fear of Russia has, in fact, always been an obsession of the German
Government. That fear is the just Nemesis of Frederick the Great’s
responsibility for the infamous Partition of Poland. The reader, who
wants to understand the causes of this, cannot do better than study an
old map of the kingdom of Poland, and compare it with a map of Poland
after the first and second Partitions. The effect of those cynical
transactions was to extinguish an ancient “buffer state,” separating
Prussia, Austria, and Russia, and by extinguishing it to bring them
into menacing contiguity with each other. Never has any crime so
haunted its perpetrators. Poland has been the permanent distraction
of the three nations who dismembered her, each perpetually suspicious
of the other two, and this fact is the main clue to the history of
Eastern Europe.[32] The fear of Russia, and of a Russo-French or
a Russo-Austrian Alliance, is the dominant feature of Bismarck’s
diplomacy. He was, indeed, the evil genius of Russia for, by his own
confession,[33] he intrigued to prevent her from pursuing a liberal
policy towards Poland, for fear that she would thereby be drawn into
friendship with France. To induce her to break faith with Russia, her
Polish subjects in one case, and with Europe in another--the former
by suppressing the Polish constitutional movement; the latter by
repudiating the Black Sea clauses--was to isolate her from Europe.
German writers to-day affect to speak of “Muscovite barbarism” and
“Oriental despotism,” but it has been the deliberate policy of Germany
to cut Russia off from the main stream of European civilization--to
turn her face Eastwards, thereby Bismarck hoped, to quote his own
words, to “weaken her pressure on our Eastern frontiers.”
But Bismarck’s contempt for treaties and his love for setting other
Powers by the ears were venial compared with his policy of Terrorism.
His attitude to France from 1870 to the day of his retirement from
office--and it has been mis-stated many times by his successors--was
very much that which Newman ascribed to the Erastian view of the
treatment of the church--“to keep her low” and in a perpetual state
of terror-stricken servility. That this is no exaggeration will be
apparent from what follows here about the war scares with which he
terrified France, and with France Europe also, in the years 1873-5,
the years, when, as our ambassador at Paris, Lord Lytton, has put
it, he “played with her like a cat with a mouse.”[34] Perhaps the
most illuminating account of these tenebrous proceedings is to be
derived from Hohenlohe, who accepted the offer of the German Embassy
at Paris in May, 1874. The post was no easy one. There had already
been a “scare” in the previous December, when Bismarck menaced the
Duc de Broglie with war, using the attitude of the French Bishops as
a pretext;[35] and, although Hohenlohe’s appointment was at first
regarded as an eirenicon, there followed a period of extreme tension,
when, as the Duc Decazes subsequently confessed, French Ministers were
“living at the mercy of the smallest incident, the least mistake.”
The truth about the subsequent war scare of 1875 is still a matter of
speculation, but the documents published of late years by de Broglie
and Hanotaux, and the despatches of Lord Odo Russell, have thrown
considerable suspicion of a very positive kind on Bismarck’s plea
that it was all a malicious invention of Gontaut-Biron, the French
Ambassador, and of Gortchakoff. A careful collation of the passages
in Hohenlohe’s Memoirs goes far to confirm these suspicions, and,
incidentally, to reveal Bismarck’s inner diplomacy in a very sinister
light. Hohenlohe was appointed to succeed the unhappy Arnim, who had
made himself obnoxious to Bismarck by his independence, and he was
instructed by the Chancellor, that it was to the interest of Germany
to see that France should become “a weak Republic and anarchical,”
so as to be a negligible quantity in European politics, on which the
Emperor William I remarked to Hohenlohe that “that was not a policy,”
and was not “decent,” subsequently confiding to Hohenlohe that
Bismarck was trying “to drive him more and more into war”; whereupon
Hohenlohe confidently remarked: “I know nothing of it, and I should be
the first to hear of it.” Hohenlohe soon found reason to change his
opinion. As Gortchakoff remarked to Decazes, “they have a difficult
way with diplomatists at Berlin,” and Hohenlohe was instructed to
press the French Ministry for the recall of Gontaut-Biron, against
whom Bismarck complained on account of his Legitimist opinions and
his friendship with the Empress Augusta. Thereupon, that supple and
elusive diplomat, the Duc Decazes, parried by inviting an explanation
of the menacing words which Gontaut-Biron declared had been uttered
to him by Radowitz, a Councilor of Legation in Berlin, to the effect
that “it would be both politic and Christian to declare war at once,”
the Duke adding shrewdly: “One doesn’t invent these things.” Hohenlohe
in his perplexity tried to get at the truth from Bismarck, and met
with what seems to us a most disingenuous explanation. Bismarck said
Radowitz denied the whole thing, but added that, even if he had said
it, Gontaut-Biron had no right to report it. He admitted, however, that
Radowitz made mischief and “egged on” Bülow, the Foreign Secretary.
“You may be sure,” he added, “that these two between them would land
us in a war in four weeks if I didn’t act as safety-valve.” Hohenlohe
took advantage of this confession to press for the despatch of Radowitz
to some distant Embassy “to cool himself.” To this Bismarck assented,
but a few days later declared that Radowitz was indispensable. When
Hohenlohe attempted to sound Bismarck on the subject the Chancellor
showed the utmost reserve. After the war scare had passed, Decazes
related to Hohenlohe an earlier example of Imperial truculence on the
part of Arnim, who, on leaving after a call, turned round as he reached
the door and called out: “I have forgotten one thing. Recollect that
I forbid you to get possession of Tunis”; and when Decazes affected
to regard the matter as a jest, Arnim repeated with emphasis: “Yes,
I forbid it.” Hohenlohe adds that an examination of his predecessor’s
papers convinced him that Arnim did not speak without express
authorization. When the elections for the French Chamber are imminent
in the autumn of 1877, Bismarck informs Hohenlohe that Germany will
adopt “a threatening attitude,” but “the scene will be laid in Berlin,
not in Paris.” The usual Press campaign followed, much to the vexation
of the Emperor, who complained to Hohenlohe that the result of these
“pin-pricks” (Nadelstiche) would provoke the French people beyond
endurance.
In studying this calculated truculence we have to remember that in
Germany foreign and domestic policy are inextricably interwoven. A war
scare is with the German Government a favorite method of bringing the
Reichstag to a docile frame of mind and diverting it from inconvenient
criticism of the Government’s policy at home. Moreover, just as war is,
in von der Goltz’s words, a reflection of national character, so is
diplomacy. A nation’s character is revealed in its diplomacy just as a
man’s breeding is revealed in his conversation.[36] We must therefore
take into account the polity of Germany and its political standards.
The picture of the Prussian autocracy in the later days of Bismarck’s
rule which we can reconstruct from different entries in Hohenlohe’s
Journal from the year 1885 onwards is a very somber one. It is a
picture of suspicion, treachery, vacillation, and calumny in high
places which remind one of nothing so much as the Court of the later
Bourbons. It is a régime of violence abroad and dissensions at home.
Bismarck’s health was failing him, and with his health his temper. He
complained to Hohenlohe that his head “grew hot” the moment he worked,
and the latter hardly dared to dispute with him on the gravest matters
of State. Readers of Busch will remember his frank disclosures of the
anarchy of the Foreign Office when Bismarck was away: “if the Chief
gives violent instructions, they are carried out with still greater
violence.” In Hohenlohe we begin to see all the grave implications
of this. Bismarck, with what Lord Odo Russell called his passion
for authority, was fond of sneering at English foreign policy as
liable to be blown about with every wind of political doctrine; but
if Parliamentary control has its defects, autocracy has defects more
insidious still. Will becomes caprice, and foreign relations are at
the mercy of bureaucrats who have no sense of responsibility so long
as they can adroitly flatter their master. When a bureaucrat trained
under this system arrives at power, the result may be nothing less
than disastrous. This was what happened when Bismarck’s instrument,
Holstein, concentrated power into his own hands at the Foreign Office;
and as the _Neue Freie Presse_[37] pointed out in its disclosures on
his fall (1906), the results are writ large in the narrowly averted
catastrophe of a war with France in 1905. Bismarck’s disciples had all
his calculated violence without its timeliness. In the Foreign Office,
Hohenlohe discovered a kind of anarchical “republicanism”--“nobody,”
in Bismarck’s frequent absence “will own responsibility to any one
else.” “Bismarck is nervously excitable,” writes Hohenlohe in March,
1885, “and harasses his subordinates and frightens them, so that
they see more behind his expression than there really is.” Like most
small men, in terror themselves, they terrorized others. Moreover,
the disinclination of the Prussian mind, which Bismarck himself
once noted, to accept any responsibility which is not covered by
instructions, tended to reduce the German Ambassadors abroad to the
level of mere aides-de-camp. Hohenlohe found himself involved in the
same embarrassments at Paris as Count Münster did in London. Any one
who has studied the inner history of German foreign policy must have
divined a secret diplomacy as devious of its kind as that of Louis XV.
Of its exact bearings little is known, but a great deal may reasonably
be suspected. There is always the triple diplomacy of the Court, the
Imperial Chancery, and lastly the Diplomatic Service, which is not
necessarily in the confidence of either.
The same debilitating influences of a dictatorship were at work in
Ministerial and Parliamentary life. Bismarck had an equal contempt
for the collective responsibility of Ministers and for Parliamentary
control. Having done his best to deprive the Members of the
Reichstag of power, he was annoyed at their irresponsibility. He
called men like Bennigsen and Windhorst silly schoolboy politicians
(Karlchen-Miesnick-Tertianen) or “lying scoundrels” (verlogene
Halunken). He was surprised that representation without control
resulted in faction. It is the Nemesis of his own political doctrines.
When he met with opposition he clamored for repressive measures, and
could not understand some of the scruples of the Liberals as to the
exceptional laws against the Socialists. Moreover, having tried, like
another Richelieu, to reduce his fellow-Ministers to the position of
clerks, he was annoyed at their want of corporate spirit, and when they
refused to follow him into his retirement, he declaimed against their
apostasy in having “left him in the lurch.” He talked at one time of
abolishing the Reichstag; at another of having a special post created
for himself as “General-Adjutant.” He complained of overwork--and his
energy was Titanic--but he insisted on keeping his eye on everything,
conscientiously enough, because, he tells Hohenlohe, “he could not
put his name to things which did not reflect his own mind.” But
perhaps the gravest moral of it all is the Nemesis of deception. It
is difficult to be both loved and feared, said Machiavelli. There
is a somber irony in the remark of the Czar to the Emperor in 1892,
which the latter repeated to Hohenlohe. Bismarck had been compelled
to retire because he had failed to induce the Emperor to violate
Germany’s contractual obligations to Austria by renewing his secret
agreement with Russia, and he consoled himself in his retirement with
the somewhat unctuous reflection that he was a martyr to the cause of
Russo-German friendship, betrayed, according to him, by Caprivi. “Do
you know,” said the young Emperor (in August, 1892), “the Czar has
told me he has every trust in Caprivi; whereas when Bismarck has said
anything to him he has always had the conviction that ‘he is tricking
me.’” We are reminded of the occasion when Talleyrand told the truth so
frankly that his interlocutor persisted in regarding it as an elaborate
form of deception. After all, there are advantages, even in diplomacy,
in being what Schuvaloff called Caprivi, a “too honest man.” It was the
same with the domestic atmosphere. Bismarck, an adept at deceiving,
is always complaining of deception; a master of intrigue, he is always
declaiming against the intrigues of others. He inveighs against the
Empress Augusta: “for fifty years she has been my opponent with the
Emperor.” He lived in an atmosphere of distrust, he was often insolent,
and always suspicious. It affected all his diplomatic intercourse,
and was not at all to Hohenlohe’s taste. “He handles everything with
a certain arrogance (_Uebermut_),” once wrote Hohenlohe (as we have
already said) of a discussion with him over foreign affairs. “_This has
always been his way._”
All these tendencies came to a head when the scepter passed from the
infirm hands of William I to those of a dying King, around whose
death-bed the military party and the Chancellor’s party began to
intrigue for influence over the young Prince whose advent to empire was
hourly expected. Of these intrigues Hohenlohe, who was now Statthalter
of Alsace-Lorraine, soon began to feel the effects without at first
discovering the cause. He loved the people of the Reichsland, was a
friend of France, and an advocate of liberal institutions, and in this
spirit he strove to administer the incorporated territories. But the
military party worked against him, hoping to secure the abolition of
the moderate measure of local government and Reichstag representation
which the Provinces possessed; and when the latter returned a hostile
majority to the Reichstag they redoubled their efforts for a policy
of “Thorough.” Bismarck gave but a lukewarm support to Hohenlohe and
insisted on the enforcement of drastic passport regulations, which,
combined with the Schnaebele affair (on which the Memoirs are very
reticent), almost provoked France to War--naturally enough, in the
opinion of Hohenlohe, and inevitably, according to the forebodings
of the German Military Attaché at Paris. To Hohenlohe’s imploring
representations Bismarck replied with grim jests about Alva’s rule in
the Netherlands, adding that it is all done to show the French “that
their noise doesn’t alarm us.” Meanwhile Switzerland was alienated,
France injured, and Austria suspicious. But Hohenlohe, after inquiries
in Berlin and Baden, began to discover the reason. Bismarck feared
the influence of the military party over the martial spirit of Prince
William, and was determined to show himself equally militant in order
to secure his dynasty. “His sole object is to get his son Herbert into
the saddle,” said Bleichroder; “so there is no hope of an improvement
in Alsace-Lorraine,”--although Prince Herbert alienated everybody
by his insolence, which was so gross that the Prince of Wales (King
Edward), at this time in Berlin, declared that he could scarcely
restrain himself from showing him the door. The leader of the military
party, Waldersee, was hardly more public-spirited. He had, according to
Bismarck, been made Chief of Staff by Moltke, over the heads of more
competent men, because he was more docile than they. Between these
military and civil autocracies the struggle for the possession of the
present Emperor raged remorselessly, and with appalling levity they
made the peace of two great nations the pawns in the game. The young
Emperor is seen in Hohenlohe’s Memoirs feeling his way, groping in the
dark; but those who, like the Grand Duke of Baden, knew the strength of
his character, foresaw the end. At first, he “doesn’t trust himself to
hold a different opinion from Bismarck”; but, “as soon as he perceives
that Bismarck doesn’t tell him everything,” predicted the Grand Duke,
“there will be trouble.” Meanwhile Waldersee was working for war, for
no better reason than that he was getting old, and spoiling for a fight
before it was too late for him to take the field.
For Bismarck’s dismissal there were various causes: differences in
domestic policy and in foreign, and an absolute _impasse_ on the
question whether Bismarck’s fellow-Ministers were to be treated as
colleagues or subordinates. “Bismarck,” said Caprivi afterwards, “had
made a treaty with Russia by which we guaranteed her a free hand in
Bulgaria and Constantinople, and Russia bound herself to remain
neutral in a war with France. That would have meant the shattering of
the Triple Alliance.” Moreover, the relations of Emperor and Chancellor
were, at the last, disfigured by violent scenes, during which the
Kaiser, according to the testimony of every one, showed the most
astonishing dignity and restraint. But it may all be summed up in the
words of the Grand Duke of Baden, reechoed by the Emperor to Hohenlohe,
it had to be a choice between the dynasties of Hohenzollern and
Bismarck. The end came to such a period of fear, agony, irony, despair,
recrimination, and catastrophic laughter as only the pen of a Tacitus
could adequately describe. Bismarck’s last years, both of power and
retirement, were those of a lost soul. Having tried to intrigue with
foreign Ambassadors against his Sovereign before his retirement, he
tried to mobilize the Press against him after he had retired, and even
stooped to join hands with his old rival, Waldersee, for the overthrow
of his successor, Caprivi, being quite indifferent, complained the
Kaiser bitterly, to what might happen afterwards. “It is sad to think,”
said the Emperor of Austria to Hohenlohe, “that such a man can sink so
low.”
When Bismarck was dismissed every one raised his head. It seemed to
Hohenlohe to be at last a case of the beatitude: “the meek shall
inherit the earth.” Holstein, the Under-Secretary, who, to the disgust
of Bismarck, refused to follow his chief and who now quietly made
himself the residuary legatee of the whole political inheritance of the
Foreign Office, intended by Bismarck for his son, freely criticized his
ex-chief’s policy in a conversation with Hohenlohe:
“He adduced as errors of Bismarck’s policy: The Berlin Congress,
the mediation in China in favor of France, the prevention of the
conflict between England and Russia in Afghanistan, and the whole
of his _tracasseries_ with Russia. As to his recent plan of leaving
Austria in the lurch, he says we should then have made ourselves so
contemptible that we should have become isolated and dependent on
Russia.”
Bismarck, whom Hohenlohe visited in his retirement, with a strange
want of patriotism and of perspicuity, pursued “his favorite theme”
and inveighed against the envy (_der Neid_) of the German people and
their incurable particularism. He never divined how much his jealous
autocracy had fostered these tendencies. One may hazard the opinion
that the Germans are no more wanting in public spirit and political
capacity than any other nation; but if they are deprived of the rights
of private judgment and the exercise of political ability, they are
no more likely to be immune from the corresponding disabilities.
Certainly, in no country where public men are accustomed to the
exercise of mutual tolerance and loyal cooperation by the practise of
Cabinet government, and where public opinion has healthy play, would
such an exhibition of disloyalty and slander as is here exhibited be
tolerated, or even possible. When in 1895 Caprivi succumbed to the
intrigues of the military caste and the Agrarian Party, Hohenlohe, now
in his seventy-sixth year, was entreated to come to the rescue, his
accession being regarded as the only security for German unity. To
his eternal credit, Hohenlohe accepted; but, if we may read between
the lines of the scanty extracts here vouchsafed from the record of
a Ministerial activity of six years, we may conjecture that it was
mostly labor and sorrow. He was opposed to agrarianism and repressive
measures, and anxious “to get on with the Reichstag,” seeing in the
forms of public discussion the only security for the public peace. But
“the Prussian Junkers could not tolerate South German Liberalism,”
and the most powerful political caste in the world, with the Army and
the King on their side, appear to have been too much for him. His
retirement in 1900 marks the end of a fugitive attempt at something
like a liberal policy in Germany, and during the fourteen years which
have elapsed since that event autocracy has held undisputed sway in
Germany. The history of these latter years is fresh in the minds of
most students of public affairs, and we will not attempt to pursue it
here.
CHAPTER III
GERMAN CULTURE
THE ACADEMIC GARRISON
Nothing is so characteristic of the German nation as its astonishing
single-mindedness--using that term in a mental and not a moral sense.
Since Prussia established her ascendency the nation has developed an
immense concentration of purpose. If the military men are not more
belligerent than the diplomatists, the diplomatists are not more
belligerent than the professors. A single purpose seems to animate
them: it is to proclaim the spiritual efficacy, and the eternal
necessity, of War.
Already there are signs that the German professors are taking the
field. Their mobilization is apparently not yet complete, but we may
expect before long to see their whole force, from the oldest Professor
Emeritus down to the youngest _Privat-dozent_, sharpening their pens
against us. Professors Harnack, Haeckel, and Eucken have already made a
reconnaissance in force, and in language which might have come straight
from the armory of Treitschke have denounced the mingled cupidity
and hypocrisy with which we, so they say, have joined forces with
Muscovite “barbarism” against Teutonic culture. This, we may feel sure,
is only the beginning.
German professors have a way of making history as well as writing
it, and the Prussian Government has always attached the greatest
importance to taking away its enemy’s character before it despoils
him of his goods. Long before the wars of 1866 and 1870 the seminars
of the Prussian universities were as busy forging title-deeds to
the smaller German states and to Alsace-Lorraine as any medieval
scriptorium, and not less ingenious. In the Franco-Prussian War
the professors--Treitschke, Mommsen, Sybel--were the first to take
the field and the last to quit it. Theirs it was to exploit the
secular hatreds of the past. Even Ranke, the nearest approach to “a
good European” of which German schools of history could boast, was
implacable. When asked by Thiers on whom, the Third Empire having
fallen, the Germans were continuing to make war, he replied, “On Louis
XIV.”
Hardly were the results achieved before a casuistry was developed to
justify them. Sybel’s apologetics in “Die Begründung des deutschen
Reichs” began it; others have gone far beyond them. “Blessed be the
hand that traced those lines,” is Professor Delbrück’s benediction on
the forgery of the Ems telegram; and in language which is almost a
paraphrase of Bismarck’s cynical declaration that a diplomatic pretext
for a war can always be found when you want one, he has laid it down
that “a good diplomat” should always have his quiver full of such
barbed arrows. So, too, Sybel on Frederick’s complicity in the Second
Partition of an inoffensive Poland anticipates in almost so many words
the recent sophistry of the Imperial Chancellor on the violation of
the neutrality of Belgium. “Wrong? I grant you--a violation of law in
the most literal sense of the word.” But, he adds, necessity knows no
law, and, “to sum it up,” after all, Prussia “thereby gained a very
considerable territory.” And thus Treitschke on the question of the
duchies, or again, to go farther afield, Mommsen on the inexorable
“law” that the race is always to the swift and the battle to the
strong. Frederick the Great surely knew his fellow-countrymen when he
said with characteristic cynicism: “I begin by taking; I can always
find pedants to prove my rights afterwards.” Not the Chancelleries
only, but even the General Staff has worked hand in glove with the
lecture-room. When Bernhardi and von der Goltz exalt the spiritual
efficacy of war they are repeating almost word for word the language
of Treitschke. Not a faculty but ministers to German statecraft in its
turn. The economists, notably von Halle and Wagner, have been as busy
and pragmatical as the historians--theirs is the doctrine of Prussian
military hegemony upon a basis of agrarianism, of the absorption of
Holland, and of “the future upon the water.” The very vocabulary of
the Kaiser’s speeches has been coined in the lecture-rooms of Berlin
University.
To understand the potency of these academic influences in German
policy one must know something of the constitution of the German
universities. In no country is the control of the Government over the
universities so strong; nowhere is it so vigilant. Political favor may
make or mar an academic career; the complaisant professor is decorated,
the contumacious is cashiered. German academic history is full of
examples. Treitschke, Sybel, even Mommsen all felt the weight of royal
displeasure at one period or another. The present Emperor vetoed the
award of the Verdun prize to Sybel because in his history of Prussian
policy he had exalted Bismarck at the expense of the Hohenzollerns, and
he threatened to close the archives to Treitschke. Even Mommsen had at
one time to learn the steepness of alien stairs.
On the other hand, no Government recognizes so readily the value of
a professor who is docile--he is of more value than many Pomeranian
Grenadiers. Bismarck invited Treitschke to accompany the army of Sadowa
as a writer of military bulletins, and both he and Sybel were, after
due caution, commissioned to write those apologetics of Prussian
policy which are classics of their kind. Most German professors have
at one time or another been publicists, and the _Grenzboten_ and the
_Preussische Jahrbücher_ maintain the polemical traditions of Sybel’s
“Historische Zeitschrift.” Moreover, the German university system, with
the singular freedom in the choice of lectures and universities, which
it leaves to the student, tends to make a professor’s classes depend
for their success on his power of attracting a public by trenchant
oratory. Well has Acton said that the “garrison” of distinguished
historians that prepared the Prussian supremacy, together with their
own, “hold Berlin like a fortress.” They still hold it and their
science of fortification has not changed.
It is not necessary to recapitulate here the earlier phases of this
politico-historical school whose motto found expression in Droysen’s
aphorism, “The statesman is the historian in practise,” and whose
moral was “Die Weltgeschichte ist das Weltgericht,” or, to put it less
pretentiously, “Nothing succeeds like success.” All of them, Niebuhr,
Mommsen, Droysen, Häusser, Sybel, Treitschke, have this in common:
that they are merciless to the rights of small nationalities. This was
no accident; it was due to the magnetism exercised upon their minds
by the hegemony of Prussia and by their opposition to the idea of a
loose confederation of small States. They were almost equally united
in a common detestation of France and could find no word too hard for
her polity, her literature, her ideals, and her people. “Sodom” and
“Babylon” were the best they could spare her. “Die Nation ist unser
Feind” wrote Treitschke in 1870, and “we must draw her teeth.” Even
Ranke declared that everything good in Germany had risen by way of
opposition to French influences. The intellectual war was carried into
every field and epoch of history, and all the institutions of modern
civilization were traced by writers like Waitz and Maurer to the early
German tribes uncorrupted by Roman influences. The same spirit was
apparent in Sybel’s hatred of the French Revolution and all its works.
This is not the place to expound the intellectual revenge which French
scholars like Fustel de Coulanges in the one sphere, and Albert Sorel
in the other, afterwards took upon this insensate chauvinism of the
chair. Sufficient to say that this cult of war and gospel of hate have
narrowed the outlook of German thought ever since, as Renan warned
Strauss they would, and have left Germany in an intellectual isolation
from the rest of Europe only to be paralleled by her moral isolation
of to-day. It was useless for Renan to remind German scholars that
pride is the only vice which is punished in this world. “We Germans,”
retorted Mommsen, “are not modest and don’t pretend to be.” The words
are almost the echo of that “thrasonic brag” with which Bismarck one
day electrified the Reichstag.
In the academic circles of to-day much of the hate formerly vented
upon France is now diverted to England. In this, Treitschke set the
fashion. Nothing delighted him more than to garnish his immensely
popular lectures with uproarious jests at England--“the hypocrite who,
with a Bible in one hand and an opium pipe in the other, scatters over
the universe the benefits of civilization.” But there was always method
in his madness. Treitschke was one of the first to demand for Germany
“a place in the sun”--this commonplace of Imperial speeches was, I
believe, coined by Sybel--and to press for the creation of a German
Navy which should do what “Europe” had failed to do--set bounds to the
crushing domination of the British Fleet and “restore the Mediterranean
to the Mediterranean peoples” by snatching back Malta, Corfu, and
Gibraltar. The seed fell on fruitful soil. A young economist, the late
Professor von Halle, whose vehement lectures I used to attend when a
student at Berlin University, worked out the maritime possibilities
of German ambitions in “Volks-und Seewirthschaft,” and his method
is highly significant in view of the recent ultimatum delivered by
Germany to Belgium. It was nothing less than the seduction of Holland
by economic bribes into promising to Germany the abandonment of the
neutrality of her ports in the event of war. Thereby, and thereby
alone, he argued, Germany would be reconciled to the “monstrosity”
(_Unding_) of the mouth of the Rhine being in non-German hands.
In return Germany would take Holland and her colonies under her
“protection.” To the same effect writes Professor Karl Lamprecht in his
“Zur jüngsten deutschen Vergangenheit,” seizing upon the Boer war to
demonstrate to Holland that England is the enemy. The same argument was
put forward by Professor Lexis. This was in the true line of academic
tradition. Even the discreet and temperate Ranke once counseled
Bismarck to annex Switzerland.
Such, in briefest outline, is the story of the academic “garrison.”
Of the lesser lansquenets, the horde of privat-dozents and obscurer
professors, whose intellectual folly is only equaled by their
audacity, and who are the mainstay of the Pan-German movement, I have
said nothing. It may be doubted whether the second generation can
show anything like the intellectual prestige which, with all their
intemperance, distinguished their predecessors. But they have all laid
to heart Treitschke’s maxim, “Be governmental,” honor the King, worship
the State, and “believe that no salvation is possible except by the
annihilation of the smaller States.” It is a strange ending to the
Germany of Kant and Goethe.
Nur der verdient sich Freiheit wie das Leben
Der täglich sie erobern muss--
The noble lines of Goethe have now a variant reading--“He alone
achieves freedom and existence who seeks to repeat his conquests at the
expense of others” might be the motto of the Germans of to-day. But as
they have appealed to History, so will History answer them.
CHAPTER IV
GERMAN THOUGHT
TREITSCHKE
In a pamphlet of mordant irony addressed to “Messieurs les Ministres
du culte évangélique de l’armée du roi de Prusse” in the dark days of
1870, Fustel de Coulanges warned these evangelical camp-followers of
the consequences to German civilization of their doctrines of a Holy
War. “Your error is not a crime but it makes you commit one, for it
leads you to preach war which is the greatest of all crimes.” It was
not impossible, he added, that that very war might be the beginning
of the decadence of Germany, even as it would inaugurate the revival
of France. History has proved him a true prophet, but it has required
more than a generation to show with what subtlety the moral poison
of such teaching has penetrated into German life and character. The
great apostle of that teaching was Treitschke who, though not indeed
a theologian, was characteristically fond of praying in aid the
vocabulary of theology. “Every intelligent theologian understands
perfectly well,” he wrote, “that the Biblical saying ‘Thou shalt not
kill’ ought no more to be interpreted literally than the apostolic
injunction to give one’s goods to the poor.” He called in the Old
Testament to redress the balance of the New. “The doctrines of the
apple of discord and of original sin are the great facts which the
pages of History everywhere reveal.”
To-day, everybody talks of Treitschke, though I doubt if half a dozen
people in England have read him. His brilliant essays, _Historische
und Politische Aufsätze_, illuminating almost every aspect of German
controversy, have never been translated; neither has his _Politik_,
a searching and cynical examination of the foundations of Political
Science which exalts the State at the expense of Society; and his
_Deutsche Geschichte_, which was designed to be the supreme apologetic
of Prussian policy, is also unknown in our tongue. But in Germany
their vogue has been and still is enormous; they are to Germans what
Carlyle and Macaulay were to us. Treitschke, indeed, has much in common
with Carlyle; the same contempt for Parliaments and constitutional
freedom; the same worship of the strong man armed; the same somber,
almost savage, irony, and, let it not be forgotten, the same deep
moral fervor. His character was irreproachable. At the age of fifteen
he wrote down this motto for his own: “To be always upright, honest,
moral, to become a man, a man useful to humanity, a brave man--these
are my ambitions.” This high ideal he strove manfully to realize.
But he was a doctrinaire, and of all doctrinaires the conscientious
doctrinaire is the most dangerous. Undoubtedly, in his case, as in that
of so many other enlightened Germans--Sybel, for example--his apostasy
from Liberalism dated from the moment of his conviction that the only
hope for German unity lay not in Parliaments but in the military
hegemony of Prussia. The bloody triumphs of the Austro-Prussian War
convinced him that the salvation of Germany was “only possible by the
annihilation of small States,” that States rest on force, not consent,
that success is the supreme test of merit, and that the issues of
war are the judgment of God. He was singularly free from sophistry
and never attempted, like Sybel, to defend the Ems telegram by the
disingenuous plea that “an abbreviation is not a falsification”; it
was enough for him that the trick achieved its purpose. And he had a
frank contempt for those Prussian jurists who attempted to find a legal
title to Schleswig-Holstein; the real truth of the matter he roundly
declared, was that the annexation of the duchies was necessary for the
realization of German aims. When he writes about war he writes without
any sanctimonious cant:
It is not for Germans to repeat the commonplaces of the apostles of
peace or of the priests of Mammon, nor should they close their eyes
before the cruel necessities of the age. Yes, ours is an epoch of
war, our age is an age of iron. If the strong get the better of the
weak, it is an inexorable law of life. Those wars of hunger which
we still see to-day amongst negro tribes are as necessary for the
economic conditions of the heart of Africa as the sacred war which
a people undertakes to preserve the most precious belongings of its
moral culture. There as here it is a struggle for life, here for a
moral good, there for a material good.
Readers of Bernhardi will recognize here the source of Bernhardi’s
inspiration. If Treitschke was a casuist at all--and as a rule he is
refreshingly, if brutally, frank--his was the supreme casuistry of the
doctrine that the end justifies the means. That the means may corrupt
the end or become an end in themselves he never saw, or only saw it
at the end of his life. He honestly believed that war was the nurse
of manly sentiment and heroic enterprise, he feared the commercialism
of modern times, and despised England because he judged her wars to
have always been undertaken with a view to the conquest of markets. He
sneers at the Englishman who “scatters the blessings of civilization
with a Bible in one hand and an opium pipe in the other.” He honestly
believed that Germany exhibited a purity of domestic life, a pastoral
simplicity, and a deep religious faith to which no European country
could approach, and at the time he wrote the picture was not overdrawn.
He has written passages of noble and tender sentiment, in which he
celebrates the piety of the peasant, whose religious exercises were
hallowed, wherever the German tongue was spoken, by the massive
faith of Luther’s great Hymn. Writing of German Protestantism as the
corner-stone of German unity, he says:
Everywhere it has been the solid rampart of our language and
customs. In Alsace, as in the mountains of Transylvania and on the
distant shores of the Baltic, as long as the peasant shall sing his
old canticle
Ein’ feste Burg ist unser Gott
German life shall not pass away.
Those who would understand the strength of Treitschke’s influence on
his generation must not lose sight of these purer elements in his
teaching.
But Treitschke was dazzled by the military successes of Prussia in
1866. With that violent reaction against culture which is so common
among its professional devotees, and which often makes the men of the
pen far more sanguinary than the men of the sword, he derided the
old Germany of Goethe and Kant as “a nation of poets and thinkers
without a polity” (“Ein staatloses Volk von Dichtern und Denkern”),
and almost despised his own intellectual vocation. “Each dragoon,”
he cried enviously, “who knocks a Croat on the head does far more
for the German cause than the finest political brain that ever
wielded a trenchant pen.” But for his grievous deafness he would,
like his father, have chosen the profession of arms. Failing that,
he chose to teach. “It is a fine thing,” he wrote, “to be master of
the younger generation,” and he set himself to indoctrinate it with
the aim of German unity. He taught from 1859 to 1875 successively at
Leipzig, Freiburg, Kiel, and Heidelberg. From 1875 till his death in
1896 he occupied with immense éclat the chair of modern history at
Berlin. And so, although a Saxon, he enlisted his pen in the service
of Prussia--Prussia which always knows how to attract men of ideas
but rarely produces them. In the great roll of German statesmen and
thinkers and poets--Stein, Hardenberg, Goethe, Hegel--you will look
almost in vain for one who is of Prussian birth. She may pervert them;
she cannot create them.
Treitschke’s views were, of course, shared by many of his
contemporaries. The Seminars of the German Universities were the
arsenals that forged the intellectual weapons of the Prussian hegemony.
Niebuhr, Ranke, Mommsen, Sybel, Häusser, Droysen, Gneist--all
ministered to that ascendency, and they all have this in common--that
they are merciless to the claims of the small States whose existence
seemed to present an obstacle to Prussian aims. They are also united
in common hatred of France, for they feared not only the adventures of
Napoleon the Third but the leveling doctrines of the French Revolution.
Burke’s _Letters on a Regicide Peace_ are not more violent against
France than the writings of Sybel, Mommsen, and Treitschke. What,
however, distinguishes Treitschke from his intellectual confrères is
his thoroughness. They made reservations which he scorned to make.
Sybel, for example, is often apologetic when he comes to the more
questionable episodes in Prussian policy--the partition of Poland, the
affairs of the duchies, the Treaty of Bâle, the diplomacy of 1870;
Treitschke is disturbed by no such qualms. Bismarck who practised a
certain economy in giving Sybel access to official documents for his
semi-official history of Prussian policy, _Die Begründung des deutschen
Reichs_, had much greater confidence in Treitschke and told him he felt
sure he would not be disturbed to find that “our political linen is not
as white as it might be.” So, too, while others like Mommsen refused to
go the whole way with Bismarck in domestic policy, and clung to their
early Radicalism, Treitschke had no compunction about absolutism. He
ended, indeed, by becoming the champion of the Junkers, and his history
is a kind of hagiography of the Hohenzollerns. “Be governmental”
was his succinct maxim, and he rested his hopes for Germany on the
bureaucracy and the army. Indeed, if he had had his way, he would have
substituted a unity state for the federal system of the German Empire,
and would have liked to see all Germany an enlarged Prussia--“ein
erweitertes Preussen”--a view which is somewhat difficult to reconcile
with his attacks on France as being “politically in a state of
perpetual nonage,” and on the French Government as hostile to all forms
of provincial autonomy.
By a quite natural transition he was led on from his championship of
the unity of Germany to a conception of her rôle as a world-power.
He is the true father of Weltpolitik. Much of what he writes on this
head is legitimate enough. Like Hohenlohe and Bismarck he felt the
humiliation of Germany’s weakness in the councils of Europe. Writing in
1863 he complains:
One thing we still lack--the State. Our people is the only one
which has no common legislation, which can send no representatives
to the Concert of Europe. No salute greets the German flag in a
foreign port. Our Fatherland sails the high seas without colors
like a pirate.
Germany, he declared, must become “a power across the sea.” This
conclusion, coupled with bitter recollections of the part played by
England in the affair of the Duchies, no doubt accounted for his
growing dislike of England.
Among the English the love of money has killed every sentiment of
honor and every distinction between what is just and unjust. They
hide their poltroonery and their materialism behind grand phrases
of unctuous theology. When one sees the English press raising its
eyes to heaven, frightened by the audacity of these faithless
peoples in arms upon the Continent, one might imagine one heard a
venerable parson droning away. As if the Almighty God, in Whose
name Cromwell’s Ironsides fought their battles, commanded us
Germans to allow our enemy to march undisturbed upon Berlin. Oh,
what hypocrisy! Oh, cant, cant, cant!
Europe, he says elsewhere, should have put bounds to the overweening
ambition of Britain by bringing to an end the crushing domination
of the English Fleet at Gibraltar, at Malta, and at Corfu, and by
“restoring the Mediterranean to the Mediterranean peoples.” Thus did he
sow the seeds of German maritime ambition.
If I were asked to select the most characteristic of Treitschke’s
works I should be inclined to choose the vehement little pamphlet _Was
fordern wir von Frankreich?_ in which he insisted on the annexation
of Alsace-Lorraine. It is at once the vindication of Prussian policy,
and, in the light of the last forty-four years, its condemnation.
Like Mommsen, who wrote in much the same strain at the same time, he
insisted that the people of the conquered provinces must be “forced to
be free,” that Morality and History (which for him are much the same
thing) proclaim they are German without knowing it.
We Germans, who know Germany and France, know better what is good
for Alsace than the unhappy people themselves, who through their
French associations have lived in ignorance of the new Germany.
We will give them back their own identity against their will. We
have in the enormous changes of these times too often seen in
glad astonishment the immortal working of the moral forces of
History (“das unsterbliche Fortwirken der sittlichen Mächte der
Geschichte”) to be able to believe in the unconditional value of a
plebiscite on this matter. We invoke the men of the past against
the present.
The ruthless pedantry of this is characteristically Prussian. It is
easy to appeal to the past against the present, to the dead against
the living. Dead men tell no tales. It was, he admitted, true that the
Alsatians did not love the Germans. These “misguided people” betrayed
“that fatal impulse of Germans” to cleave to other nations than their
own. “Well may we Germans be horrified,” he adds, “when to-day we see
these German people rail in German speech like wild beasts against
their own flesh and blood as ‘German curs’ (‘deutschen Hunde’) and
‘stink-Prussians’ (‘Stinkpreussen’).” Treitschke was too honest to deny
it. There was, he ruefully admitted, something rather unlovely about
the “civilizing” methods of Prussia. “Prussia has perhaps not always
been guided by genial men.” But, he argued, Prussia united under the
new Empire to the rest of Germany would become humanized and would
in turn humanize the new subject-peoples. Well, the forty-four years
that have elapsed since Treitschke wrote have refuted him. Instead of
a Germanized Prussia, we see a Prussianized Germany. Her “geniality”
is the geniality of Zabern. The Poles, the Danes, and the Alsatians
are still contumacious. Treitschke appealed to History and History has
answered him.
Had he never any misgivings? Yes. After twenty-five years, and within
a month of his death, this Hebrew prophet looking round in the year
of grace 1895 on the “culture” of modern Germany was filled with
apprehension. On the twenty-fifth anniversary of Sedan he delivered an
address in the University of Berlin which struck his fond disciples
dumb. The Empire, he declared, had disarmed her enemies neither without
nor within.
In every direction our manners have deteriorated. The respect
which Goethe declared to be the true end of all moral education
disappears in the new generation with a giddy rapidity: respect of
God, respect for the limits which nature and society have placed
between the two sexes; respect for the Fatherland, which is every
day disappearing before the will-of-the-wisp of an indulgent
humanity. The more culture extends, the more insipid it becomes;
men despise the profundity of the ancient world and consider only
that which subserves their immediate end.
The things of the mind, he cried, had lost their hold on the German
people. Every one was eager to get rich and to relieve the monotony of
a vain existence by the cult of idle and meretricious pleasures. The
signs of the times were everywhere dark and gloomy. The new Emperor
(William the Second), he had already hinted, was a dangerous charlatan.
The wheel had come full circle. Fustel de Coulanges was justified of
his prophecy. And the handwriting on the walls of Destiny was never
more legible than now.
CONCLUSION
The contemplation of History, so a great master of the art has told
us, may not make men wise but it is sure to make them sad. The austere
Muse has never had a sadder page to show than that which is even now
being added to her record. We see now the full fruition of the German
doctrine of the beatitude of War. In sorrow and in anguish, in anguish
and in darkness, Belgium is weeping for her children and will not be
comforted because they are not. The invader has spared neither age nor
sex, neither rank nor function, and every insult that malice could
invent, or insolence inspire, has been heaped upon her bowed head.
The hearths are cold, the altars desecrated, the fields untilled, the
granaries empty. The peasant watches the heavens but he may not sow,
he has regarded his fields but he might not reap. The very stones in
her cities cry out; hardly one of them is left upon another. No nation
had ever given Europe more blithe and winning pledges of her devotion
to the arts of peace. The Flemish school of painters had endowed the
world with portraits of a grave tenderness which posterity might always
admire but could never imitate. The chisels of her medieval craftsmen
had left us a legacy of buoyant fancy in stone whose characters were
alive for us with the animation of the Canterbury Tales. All this the
invader has stamped out like the plague. A once busy and thriving
community begs its bread in alien lands. Never since the captivity of
Babylon has there been so tragic an expatriation. Yet noble in her
sorrow and exalted in her anguish, Belgium, like some patient caryatid,
still supports the broken architrave of the violated Treaty. Her little
army is still unconquered, her spirit is never crushed. She will arise
purified by her sorrow and ennobled by her suffering, and generations
yet unborn shall rise up to call her blessed.
THE WAR BOOK OF THE
GERMAN GENERAL STAFF
INTRODUCTION
[Sidenote: What is a State of War.]
The armies of belligerent States on the outbreak of hostilities, or
indeed the moment war is declared, enter into a certain relation with
one another which is known by the name of “A State of War.” This
relationship, which at the beginning only concerns the members of the
two armies, is extended, the moment the frontier is crossed, to all
inhabitants of the enemy’s State, so far as its territory is occupied;
indeed it extends itself ultimately to both the movable and immovable
property of the State and its citizens.
[Sidenote: Active Persons and Passive.]
A distinction is drawn between an “active” and a “passive” state of
war. By the first is to be understood the relation to one another of
the actual fighting organs of the two belligerents, that is to say,
of the persons forming the army, besides that of the representative
heads of the State and of the leaders. By the second term, _i.e._, the
“passive” state of war, on the other hand, is to be understood the
relationship of the hostile army to those inhabitants of the State, who
share in the actual conduct of war only in consequence of their natural
association with the army of their own State, and who on that account
are only to be regarded as enemies in a passive sense. As occupying an
intermediate position, one has often to take into account a number of
persons who while belonging to the army do not actually participate in
the conduct of hostilities but continue in the field to pursue what is
to some extent a peaceful occupation, such as Army Chaplains, Doctors,
Medical Officers of Health, Hospital Nurses, Voluntary Nurses, and
other Officials, Sutlers, Contractors, Newspaper Correspondents and the
like.
[Sidenote: That War is no Respecter of Persons.]
Now although according to the modern conception of war, it is
primarily concerned with the persons belonging to the opposing armies,
yet no citizen or inhabitant of a State occupied by a hostile army
can altogether escape the burdens, restrictions, sacrifices, and
inconveniences which are the natural consequence of a State of War.
A war conducted with energy cannot be directed merely against the
combatants of the Enemy State and the positions they occupy, but it
will and must in like manner seek to destroy the total intellectual[38]
and material resources of the latter.[39] Humanitarian claims such
as the protection of men and their goods can only be taken into
consideration in so far as the nature and object of the war permit.
[Sidenote: The Usages of War.]
Consequently the “argument of war” permits every belligerent State
to have recourse to all means which enable it to attain the object
of the war; still, practise has taught the advisability of allowing
in one’s own interest the introduction of a limitation in the use of
certain methods of war and a total renunciation of the use of others.
Chivalrous feelings, Christian thought, higher civilization and, by no
means least of all, the recognition of one’s own advantage, have led
to a voluntary and self-imposed limitation, the necessity of which is
to-day tacitly recognized by all States and their armies. They have
led in the course of time, in the simple transmission of knightly
usage in the passages of arms, to a series of agreements, hallowed by
tradition, and we are accustomed to sum these up in the words “usage
of war” (Kriegsbrauch), “custom of war” (Kriegssitte), “or fashion of
war” (Kriegsmanier). Customs of this kind have always existed, even in
the times of antiquity; they differed according to the civilization
of the different nations and their public economy, they were not
always identical, even in one and the same conflict, and they have in
the course of time often changed; they are older than any scientific
law of war, they have come down to us unwritten, and moreover they
maintain themselves in full vitality; they have therefore won an
assured position in standing armies according as these latter have been
introduced into the systems of almost every European State.
[Sidenote: Of the futility of Written Agreements as Scraps of Paper.]
The fact that such limitations of the unrestricted and reckless
application of all the available means for the conduct of war, and
thereby the humanization of the customary methods of pursuing war
really exist, and are actually observed by the armies of all civilized
States, has in the course of the nineteenth century often led to
attempts to develop, to extend, and thus to make universally binding
these preexisting usages of war; to elevate them to the level of
laws binding nations and armies, in other words to create a _codex
belli_; a law of war. All these attempts have hitherto, with some few
exceptions to be mentioned later, completely failed. If, therefore, in
the following work the expression “the law of war” is used, it must
be understood that by it is meant not a _lex scripta_ introduced by
international agreements; but only a reciprocity of mutual agreement;
a limitation of arbitrary behavior, which custom and conventionality,
human friendliness and a calculating egotism have erected, but for the
observance of which there exists no express sanction, but only “the
fear of reprisals” decides.
[Sidenote: The “flabby emotion” of Humanitarianism.]
Consequently the usage of war is even now the only means of regulating
the relations of belligerent States to one another. But with the idea
of the usages of war will always be bound up the character of something
transitory, inconstant, something dependent on factors outside the
army. Nowadays it is not only the army which influences the spirit
of the customs of war and assures recognition of its unwritten laws.
Since the almost universal introduction of conscription, the peoples
themselves exercise a profound influence upon this spirit. In the
modern usages of war one can no longer regard merely the traditional
inheritance of the ancient etiquette of the profession of arms, and the
professional outlook accompanying it, but there is also the deposit
of the currents of thought which agitate our time. But since the
tendency of thought of the last century was dominated essentially by
humanitarian considerations which not infrequently degenerated into
sentimentality and flabby emotion (_Sentimentalität und weichlicher
Gefühlsschwärmerei_) there have not been wanting attempts to influence
the development of the usages of war in a way which was in fundamental
contradiction with the nature of war and its object. Attempts of this
kind will also not be wanting in the future, the more so as these
agitations have found a kind of moral recognition in some provisions of
the Geneva Convention and the Brussels and Hague Conferences.
[Sidenote: Cruelty is often “the truest humanity.”]
[Sidenote: The perfect Officer.]
Moreover the officer is a child of his time. He is subject to the
intellectual[40] tendencies which influence his own nation; the more
educated he is the more will this be the case. The danger that, in
this way, he will arrive at false views about the essential character
of war must not be lost sight of. The danger can only be met by a
thorough study of war itself. By steeping himself in military history
an officer will be able to guard himself against excessive humanitarian
notions, it will teach him that certain severities are indispensable
to war, nay more, that the only true humanity very often lies in a
ruthless application of them. It will also teach him how the rules
of belligerent intercourse in war have developed, how in the course
of time they have solidified into general usages of war, and finally
it will teach him whether the governing usages of war are justified
or not, whether they are to be modified or whether they are to be
observed. But for a study of military history in this light, knowledge
of the fundamental conceptions of modern international and military
movements is certainly necessary. To present this is the main purpose
of the following work.
PART I
THE USAGES OF WAR IN REGARD TO THE HOSTILE ARMY
CHAPTER I
WHO BELONGS TO THE HOSTILE ARMY?
[Sidenote: Who are Combatants and who are not.]
Since the subjects of enemy States have quite different rights and
duties according as they occupy an active or a passive position, the
question arises: Who is to be recognized as occupying the active
position, or what amounts to the same thing--Who belongs to the hostile
army? This is a question of particular importance.
According to the universal usages of war, the following are to be
regarded as occupying an active position:
1. The heads of the enemy’s state and its ministers, even though
they possess no military rank.
2. The regular army, and it is a matter of indifference whether
the army is recruited voluntarily or by conscription; whether
the army consists of subjects or aliens (mercenaries); whether
it is brought together out of elements which were already in
the service in time of peace, or out of such as are enrolled
at the moment of mobilization (militia, reserve, national
guard and Landsturm).
3. Subject to certain assumptions, irregular combatants, also,
_i.e._, such as are not constituent parts of the regular army,
but have only taken up arms for the length of the war, or,
indeed, for a particular task of the war.
[Sidenote: The Irregular.]
Only the third class of persons need be more closely considered. In
their case the question how far the rights of an active position are
to be conceded to them has at all times been matter of controversy,
and the treatment of irregular troops has in consequence varied
considerably. Generally speaking the study of military history leads
to the conclusion that the Commanding Officers of regular armies
were always inclined to regard irregular troops of the enemy with
distrust, and to apply to them the contemporary laws of war with
peculiar severity. This unfavorable prejudice is based on the ground
that the want of a military education and of stern discipline among
irregular troops, easily leads to transgressions and to non-observance
of the usages of war, and that the minor skirmishes which they prefer
to indulge in, and which by their very nature lead to individual
enterprise, open the door to irregularity and savagery, and easily
deteriorate into robbery and unauthorized violence, so that in every
case the general insecurity which it develops engenders bitterness,
fury, and revengeful feelings in the harassed troops, and leads to
cruel reprisals. Let any one read the combats of the French troops in
the Spanish Peninsula in the years 1808 to 1814, in Tyrol in 1809,
in Germany in 1813, and also those of the English in their different
Colonial wars, or again the Carlist Wars, the Russo-Turkish War,
and the Franco-Prussian War,[41] and one will everywhere find this
experience confirmed.
[Sidenote: Each State must decide for itself.]
If these points of view are on the whole decisive against the
employment of irregular troops, yet on the other hand, it must be left
to each particular State to determine how far it will disregard such
considerations; from the point of view of international law no State
is compelled to limit the instruments of its military operations to
the standing army. It is, on the contrary, completely justified in
drawing upon all the inhabitants capable of bearing arms, entirely
according to its discretion, and in imparting to them an authorization
to participate in the war.
[Sidenote: The necessity of Authorization.]
This public authorization has therefore been until quite recently
regarded as the presumed necessary condition of any recognition of
combatant rights.
[Sidenote: Exceptions which prove the rule.]
[Sidenote: The Free Lance.]
Of course there are numerous examples in military history in which
irregular combatants have been recognized as combatants by the enemy,
without any public authorization of the kind; thus in the latest wars
of North America, Switzerland, and Italy, and also in the case of the
campaign (without any kind of commission from a State) of Garibaldi
against Naples and Sicily in the year 1860. But in all these cases
the tacitly conceded recognition originated not out of any obligatory
principles of international law or of military usage, but simply and
solely out of the fear of reprisals. The power to prevent the entrance
on the scene of these irregular partizans did not exist, and it was
feared that by not recognizing their quality as combatants the war a
cruel character might be given, and consequently that more harm than
good might result to the parties themselves. On the other hand there
has always been a universal consensus of opinion against recognizing
irregulars who make their appearance individually or in small bands,
and who conduct war in some measure on their own account (auf eigene
Faust) detached from the army, and such opinion approves of the
punishment of these offenders with death.
This legal attitude which denies every unauthorized rising and
identifies it with brigandage was taken up by the revolutionary armies
of France towards the insurrection in La Vendée, and again by Napoleon
in his proceedings against Schill and Dörnberg in the year 1809, and
again by Wellington, Schwarzenberg, and Blücher, in the Proclamations
issued by them in France in the year 1814, and the German Army adopted
the same standpoint in the year 1870-71, when it demanded that: “Every
prisoner who wishes to be treated as a prisoner of war must produce
a certificate as to his character as a French soldier, issued by the
legal authorities, and addressed to him personally, to the effect that
he has been called to the Colors and is borne on the Roll of a corps
organized on a military footing by the French Government.”
[Sidenote: Modern views.]
In the controversies which have arisen since the war of 1870-71 over
the different questions of international law and the laws of war,
decisive emphasis has no longer been placed upon the question of public
authorization, and it has been proposed, on grounds of expediency,
to recognize as combatants such irregulars as are indeed without an
express and immediate public authorization, but who are organized in
military fashion and are under a responsible leader. The view here
taken was that by a recognition of these kind of irregular troops the
dangers and horrors of war would be diminished, and that a substitute
for the legal authorization lacking in the case of individuals offers
itself in the military organization and in the existence of a leader
responsible to his own State.
Moreover the Brussels Declaration of August 27, 1874, and in
consonance with it the _Manual of the Institute of International Law_,
desire as the first condition of recognition as combatants “that they
have at their head a personality who is responsible for the behavior of
those under him to his own Government.”[42]
[Sidenote: The German Military View.]
Considered from the military point of view there is not much objection
to the omission of the demand for public authorization, so soon as
it becomes a question of organized detachments of troops, but in the
case of hostile individuals who appear on the scene we shall none the
less be unable to dispense with the certificate of membership of an
organized band, if such individuals are to be regarded and treated as
lawful belligerents.
But the organization of irregulars in military bands and their
subjection to a responsible leader are not by themselves sufficient
to enable one to grant them the status of belligerents; even more
important than these is the necessity of being able to recognize them
as such and of their carrying their arms openly. The soldier must know
who he has against him as an active opponent, he must be protected
against treacherous killing and against any military operation which is
prohibited by the usages of war among regular armies. The chivalrous
idea which rules in the regular armies of all civilized States always
seeks an open profession of one’s belligerent character. The demand
must, therefore, be insisted on that irregular troops, although not in
uniform, shall at least be distinguishable by visible signs which are
recognizable at a distance.[43] Only by such means can the occurrence
of misuse in the practise of war on the one side, and the tragic
consequences of the non-recognition of combatant status on the other,
be made impossible. The Brussels Declarations also therefore recommend,
in Art. 9 (2 and 3), that they, _i.e._, the irregular troops, should
wear a fixed sign which is visible from a distance, and that they
should carry their weapons openly. The Hague Convention adds to these
three conditions yet a fourth, “That they observe the laws and usages
of war in their military operations.”
[Sidenote: The Levée en masse.]
[Sidenote: The Hague Regulations will not do.]
[Sidenote: A short way with the Defender of his Country.]
This condition must also be maintained if it becomes a question
of the _levée en masse_, the arming of the whole population of the
country, province, or district; in other words the so-called people’s
war or national war.[44] Starting from the view that one can never
deny to the population of a country the natural right of defense of
one’s fatherland, and that the smaller and consequently less powerful
States can only find protection in such _levées en masse_, the
majority of authorities on International law have, in their proposals
for codification, sought to attain the recognition on principle of
the combatant status of all these kinds of people’s champions, and
in the Brussels declaration and the Hague Regulations the aforesaid
condition[45] is omitted. As against this one may nevertheless remark
that the condition requiring a military organization and a clearly
recognizable mark of being attached to the enemy’s troops, is not
synonymous with a denial of the natural right of defense of one’s
country. It is therefore not a question of restraining the population
from seizing arms but only of compelling it to do this in an organized
manner. Subjection to a responsible leader, a military organization,
and clear recognizability cannot be left out of account unless the
whole recognized foundation for the admission of irregulars is going
to be given up altogether, and a conflict of one private individual
against another is to be introduced again, with all its attendant
horrors, of which, for example, the proceedings in Bazeilles in
the last Franco-Prussian War afford an instance. If the necessary
organization does not really become established--a case which is by no
means likely to occur often--then nothing remains but a conflict of
individuals, and those who conduct it cannot claim the rights of an
active military status. The disadvantages and severities inherent in
such a state of affairs are more insignificant and less inhuman than
those which would result from recognition.[46]
CHAPTER II
THE MEANS OF CONDUCTING WAR
[Sidenote: Violence and Cunning.]
By the means of conducting war is to be understood all those measures
which can be taken by one State against the other in order to attain
the object of the war, to compel one’s opponent to submit to one’s
will; they may be summarized in the two ideas of Violence and Cunning,
and judgment as to their applicability may be embodied in the following
proposition:
What is permissible includes every means of war without which the
object of the war cannot be obtained; what is reprehensible on the
other hand includes every act of violence and destruction which is
not demanded by the object of war.
It follows from these universally valid principles that wide limits are
set to the subjective freedom and arbitrary judgment of the Commanding
Officer; the precepts of civilization, freedom and honor, the
traditions prevalent in the army, and the general usages of war, will
have to guide his decisions.
A.--MEANS OF WAR DEPENDING ON FORCE
The most important instruments of war in the possession of the enemy
are his army, and his military positions; to make an end of them is the
first object of war. This can happen:
1. By the annihilation, slaughter, or wounding of the individual
combatants.
2. By making prisoners of the same.
3. By siege and bombardment.
1. _Annihilation, slaughter, and wounding of the hostile combatants_
[Sidenote: How to make an end of the Enemy.]
In the matter of making an end of the enemy’s forces by violence it
is an incontestable and self-evident rule that the right of killing
and annihilation in regard to the hostile combatants is inherent in
the war power and its organs, that all means which modern inventions
afford, including the fullest, most dangerous, and most massive means
of destruction, may be utilized; these last, just because they attain
the object of war as quickly as possible, are on that account to be
regarded as indispensable and, when closely considered, the most human.
[Sidenote: The Rules of the Game.]
As a supplement to this rule, the usages of war recognize the
desirability of not employing severer forms of violence if and when the
object of the war may be attained by milder means, and furthermore
that certain means of war which lead to unnecessary suffering are to be
excluded. To such belong:
The use of poison both individually and collectively (such as
poisoning of streams and food supplies[47]) the propagation of
infectious diseases.
Assassination, proscription, and outlawry of an opponent.[48]
The use of arms which cause useless suffering, such as soft-nosed
bullets, glass, etc.
The killing of wounded or prisoners who are no longer capable of
offering resistance.[49]
The refusal of quarter to soldiers who have laid down their arms
and allowed themselves to be captured.
The progress of modern invention has made superfluous the express
prohibition of certain old-fashioned but formerly legitimate
instruments of war (chain shot, red-hot shot, pitch balls, etc.),
since others, more effective, have been substituted for these; on the
other hand the use of projectiles of less than 400 grammes in weight
is prohibited by the St. Petersburg Convention of December 11th, 1868.
(This only in the case of musketry.[50])
He who offends against any of these prohibitions is to be held
responsible therefore by the State. If he is captured he is subject to
the penalties of military law.
[Sidenote: Colored Troops are “Blacklegs.”]
Closely connected with the unlawful instruments of war is the
employment of uncivilized and barbarous peoples in European wars.
Looked at from the point of view of law it can, of course, not be
forbidden to any State to call up armed forces from its extra-European
colonies, but the practise stands in express contradiction to the
modern movement for humanizing the conduct of war and for alleviating
its attendant sufferings, if men and troops are employed in war, who
are without the knowledge of civilized warfare and by whom, therefore,
the very cruelties and inhumanities forbidden by the usages of war are
committed. The employment of these kinds of troops is therefore to be
compared with the use of the instruments of war already described as
forbidden. The transplantation of African and Mohammedan Turcos to a
European seat of war in the year 1870 was, therefore, undoubtedly to be
regarded as a retrogression from civilized to barbarous warfare, since
these troops had and could have no conception of European-Christian
culture, or respect for property and for the honor of women, etc.[51]
2. _Capture of Enemy Combatants_
[Sidenote: Prisoners of War.]
If individual members or parties of the army fall into the power of the
enemy’s forces, either through their being disarmed and defenseless, or
through their being obliged to cease from hostilities in consequence
of a formal capitulation, they are then in the position of “prisoners
of war,” and thereby in some measure exchange an active for a passive
position.
[Sidenote: Vae Victis!]
According to the older doctrine of international law all persons
belonging to the hostile State, whether combatants or non-combatants,
who happen to fall into the hands of their opponent, are in the
position of prisoners of war. He could deal with them according to his
pleasure, ill-treat them, kill them, lead them away into bondage, or
sell them into slavery. History knows but few exceptions to this rule,
these being the result of particular treaties. In the Middle Ages the
Church tried to intervene as mediator in order to ameliorate the lot
of the prisoners, but without success. Only the prospect of ransom,
and chivalrous ideas in the case of individuals, availed to give any
greater protection. It is to be borne in mind that the prisoners
belonged to him who had captured them, a conception which began to
disappear after the Thirty Years’ War. The treatment of prisoners of
war was mostly harsh and inhuman; still, in the seventeenth century, it
was usual to secure their lot by a treaty on the outbreak of a war.
The credit of having opened the way to another conception of war
captivity belongs to Frederick the Great and Franklin, inasmuch as they
inserted in the famous Treaty of friendship, concluded in 1785 between
Prussia and North America, entirely new regulations as to the treatment
of prisoners of war.
[Sidenote: The Modern View.]
The complete change in the conception of war introduced in recent times
has in consequence changed all earlier ideas as to the position and
treatment of prisoners of war. Starting from the principle that only
States and not private persons are in the position of enemies in time
of war, and that an enemy who is disarmed and taken prisoner is no
longer an object of attack, the doctrine of war captivity is entirely
altered and the position of prisoners has become assimilated to that of
the wounded and the sick.
[Sidenote: Prisoners of War are to be honorably treated.]
The present position of international law and the law of war on the
subject of prisoners of war is based on the fundamental conception
that they are the captives not of private individuals, that is to say
of Commanders, Soldiers, or Detachments of Troops, but that they are
the captives of the State. But the State regards them as persons who
have simply done their duty and obeyed the commands of their superiors,
and in consequence views their captivity not as penal but merely as
precautionary.
It therefore follows that the object of war captivity is simply to
prevent the captives from taking any further part in the war, and
that the State can, in fact, do everything which appears necessary
for securing the captives, but nothing beyond that. The captives have
therefore to submit to all those restrictions and inconveniences which
the purpose of securing them necessitates; they can collectively be
involved in a common suffering if some individuals among them have
provoked sterner treatment; but, on the other hand, they are protected
against unjustifiable severities, ill-treatment, and unworthy handling;
they do, indeed, lose their freedom, but not their rights; war
captivity is, in other words, no longer an act of grace on the part of
the victor but a right of the defenseless.
[Sidenote: Who may be made Prisoners.]
According to the notions of the laws of war to-day the following
persons are to be treated as prisoners of war:
1. The Sovereign, together with those members of his family who
were capable of bearing arms, the chief of the enemy’s State,
generally speaking, and the Ministers who conduct its policy
even though they are not among the individuals belonging to
the active army.[52]
2. All persons belonging to the armed forces.
3. All Diplomatists and Civil Servants attached to the army.
4. All civilians staying with the army, with the approval of its
Commanders, such as transport, sutlers, contractors, newspaper
correspondents, and the like.
5. All persons actively concerned with the war such as Higher
Officials, Diplomatists, Couriers, and the like, as also all
those persons whose freedom can be a danger to the army of the
other State, for example, Journalists of hostile opinions,
prominent and influential leaders of Parties, Clergy who
excite the people, and such like.[53]
6. The mass of the population of a province or a district if they
rise in defense of their country.
The points of view regarding the treatment of prisoners of war may be
summarized in the following rules:
Prisoners of war are subject to the laws of the State which has
captured them.
[Sidenote: The treatment of Prisoners of War.]
The relation of the prisoners of war to their own former superiors
ceases during their captivity; a captured officer’s servant steps
into the position of a private servant. Captured officers are never
the superiors of soldiers of the State which has captured them; on
the contrary, they are under the orders of such of the latter as are
entrusted with their custody.
The prisoners of war have, in the places in which they are quartered,
to submit to such restrictions of their liberty as are necessary for
their safe keeping. They have strictly to comply with the obligation
imposed upon them, not to move beyond a certain indicated boundary.
[Sidenote: Their confinement.]
These measures for their safe keeping are not to be exceeded; in
particular, penal confinement, fetters, and unnecessary restrictions
of freedom are only to be resorted to if particular reasons exist to
justify or necessitate them.
The concentration camps in which prisoners of war are quartered must be
as healthy, clean, and decent as possible; they should not be prisons
or convict establishments.
It is true that the French captives were transported by the Russians to
Siberia as malefactors in the years 1812 and 1813. This was a measure
which was not illegitimate according to the older practise of war, but
it is no longer in accordance with the legal conscience of to-day.
Similarly the methods which were adopted during the Civil War in North
America in a prison in the Southern States, against prisoners of war of
the Union Forces, whereby the men were kept without air and nourishment
and thus badly treated, were also against the practise of the law of
war.
Freedom of movement within these concentration camps or within the
whole locality may be permitted if there are no special reasons against
it. But obviously prisoners of war are subject to the existing, or to
the appointed rules of the establishment or garrison.
[Sidenote: The Prisoner and his Taskmaster.]
Prisoners of war can be put to moderate work proportionate to their
position in life; work is a safeguard against excesses. Also on
grounds of health this is desirable. But these tasks should not
be prejudicial to health nor in any way dishonorable or such as
contribute directly or indirectly to the military operations against
the Fatherland of the captives. Work for the State is, according to the
Hague regulations, to be paid at the rates payable to members of the
army of the State itself.
Should the work be done on account of other public authorities or of
private persons, then the conditions will be fixed by agreement with
the military authorities. The wages of the prisoners of war must be
expended in the improvement of their condition, and anything that
remains should be paid over to them after deducting the cost of their
maintenance when they are set free. Voluntary work in order to earn
extra wages is to be allowed, if there are no particular reasons
against it.[54] Insurrection, insubordination, misuse of the freedom
granted, will of course justify severer confinement in each case, also
punishment, and so will crimes and misdemeanors.
[Sidenote: Flight.]
Attempts at escape on the part of individuals who have not pledged
their word of honor might be regarded as the expression of a natural
impulse for liberty, and not as a crime. They are therefore to be
punished by restriction of the privileges granted and a sharper
supervision but not with death. But the latter punishment will follow
of course in the case of plots to escape, if only because of the danger
of them. In case of a breach of a man’s parole the punishment of death
may reasonably be incurred. In some circumstances, if necessity and
the behavior of the prisoners compel it, one is justified in taking
measures the effect of which is to involve the innocent with the
guilty.[55]
[Sidenote: Diet.]
The food of the prisoners must be sufficient and suitable to their
rank, yet they will have to be content with the customary food of the
country; luxuries which the prisoners wish to get at their own expense
are to be permitted if reasons of discipline do not forbid.
[Sidenote: Letters.]
Correspondence with one’s home is to be permitted, likewise visits and
intercourse, but these of course must be watched.
[Sidenote: Personal belongings.]
The prisoners of war remain in possession of their private property
with the exception of arms, horses, and documents of a military
purport. If for definite reasons any objects are taken away from them,
then these must be kept in suitable places and restored to them at the
end of their captivity.
[Sidenote: The Information Bureau.]
Article 14 of the Hague Regulations prescribes that on the outbreak
of hostilities there shall be established in each of the belligerent
States and in a given case in neutral States, which have received
into their territory any of the combatants, an information bureau for
prisoners of war. Its duty will be to answer all inquiries concerning
such prisoners and to receive the necessary particulars from the
services concerned in order to be able to keep a personal entry for
every prisoner. The information bureau must always be kept well
posted about everything which concerns a prisoner of war. Also this
information bureau must collect and assign to the legitimate persons
all personal objects, valuables, letters, and the like, which are found
on the field of battle or have been left behind by dead prisoners of
war in hospitals or field-hospitals. The information bureau enjoys
freedom from postage, as do generally all postal despatches sent to or
by prisoners of war. Charitable gifts for prisoners of war must be free
of customs duty and also of freight charges on the public railways.
The prisoners of war have, in the event of their being wounded or sick,
a claim to medical assistance and care as understood by the Geneva
Convention and, so far as is possible, to spiritual ministrations also.
These rules may be shortly summarized as follows:
Prisoners of war are subject to the laws of the country in which they
find themselves, particularly the rules in force in the army of the
local State; they are to be treated like one’s own soldiers, neither
worse nor better.
[Sidenote: When Prisoners may be put to Death.]
The following considerations hold good as regard the imposition of a
death penalty in the case of prisoners; they can be put to death:
1. In case they commit offenses or are guilty of practises which
are punishable by death by civil or military laws.
2. In case of insubordination, attempts at escape, etc., deadly
weapons can be employed.
3. In case of overwhelming necessity, as reprisals, either against
similar measures, or against other irregularities on the part
of the management of the enemy’s army.
4. In case of overwhelming necessity, when other means of
precaution do not exist and the existence of the prisoners
becomes a danger to one’s own existence.
[Sidenote: “Reprisals.”]
As regards the admissibility of reprisals, it is to be remarked that
these are objected to by numerous teachers of international law on
grounds of humanity. To make this a matter of principle, and apply it
to every case exhibits, however, “a misconception due to intelligible
but exaggerated and unjustifiable feelings of humanity, of the
significance, the seriousness and the right of war. It must not be
overlooked that here also the necessity of war, and the safety of the
State are the first consideration, and not regard for the unconditional
freedom of prisoners from molestation.”[56]
[Sidenote: One must not be too scrupulous.]
That prisoners should only be killed in the event of extreme necessity,
and that only the duty of self-preservation and the security of one’s
own State can justify a proceeding of this kind is to-day universally
admitted. But that these considerations have not always been decisive
is proved by the shooting of 2,000 Arabs at Jaffa in 1799 by Napoleon;
of the prisoners in the rising of La Vendée; in the Carlist War; in
Mexico, and in the American War of Secession, where it was generally a
case of deliverance from burdensome supervision and the difficulties
of maintenance; whereas peoples of a higher morality such as the
Boers in our own days, finding themselves in a similar position, have
preferred to let their prisoners go. For the rest, calamities such
as might lead to the shooting of prisoners are scarcely likely to
happen under the excellent conditions of transport in our own time and
the correspondingly small difficulty of feeding them--in a European
campaign.[57]
[Sidenote: The end of Captivity.]
The captivity of war comes to an end:
1. By force of circumstances which _de facto_ determine it, for
example, successful escape, cessation of the war, or death.
2. By becoming the subject of the enemy’s state.
3. By release, whether conditional or unconditional, unilateral or
reciprocal.
4. By exchange.
As to 1. With the cessation of the war every reason for the captivity
ceases, provided there exist no special grounds for another view. It
is on that account that care should be taken to discharge prisoners
immediately. There remain only prisoners sentenced to punishment or
awaiting trial, _i.e._, until the expiation of their sentence or the
end of their trial as the case may be.
As to 2. This pre-supposes the readiness of the State to accept the
prisoner as a subject.
[Sidenote: Parole.]
As to 3. A man released under certain conditions has to fulfil them
without question. If he does not do this, and again falls into the
hands of his enemy, then he must expect to be dealt with by military
law, and indeed according to circumstances with the punishment of
death. A conditional release cannot be imposed on the captive; still
less is there any obligation upon the state to discharge a prisoner on
conditions--for example, on his parole. The release depends entirely
on the discretion of the State, as does also the determination of its
limits and the persons to whom it shall apply.
The release of whole detachments on their parole is not usual. It is
rather to be regarded as an arrangement with each particular individual.
Arrangements of this kind, every one of which is as a rule made a
conditional discharge, must be very precisely formulated and the
wording of them most carefully scrutinized. In particular it must be
precisely expressed whether the person released is only bound no longer
to fight directly with arms against the State which releases him, in
the present war, whether he is justified in rendering services to his
own country in other positions or in the colonies, etc., or whether all
and every kind of service is forbidden him.
The question whether the parole given by an officer or a soldier is
recognized as binding or not by his own State depends on whether the
legislation or even the military instructions permit or forbid the
giving of one’s parole.[58] In the first case his own State must not
command him to do services the performance of which he has pledged
himself not to undertake.[59] But personally the man released on parole
is under all circumstances bound to observe it. He destroys his honor
if he breaks his word, and is liable to punishment if recaptured, even
though he has been hindered by his own State from keeping it.[60]
According to the Hague Regulations a Government can demand no services
which are in conflict with a man’s parole.
[Sidenote: Exchange of Prisoners.]
As to 4. The exchange of prisoners in a single case can take place
between two belligerents without its being necessary in every case to
make circumstantial agreements. As regards the scope of the exchange
and the forms in which it is to be completed the Commanding Officers
on both sides alone decide. Usually the exchange is man for man, in
which case the different categories of military persons are taken
into account and certain ratios established as to what constitutes
equivalents.
[Sidenote: Removal of Prisoners.]
Transport of Prisoners.--Since no Army makes prisoners in order to
let them escape again afterwards, measures must be taken for their
transport in order to prevent attempts at escape. If one recalls that
in the year 1870-71, no fewer than 11,160 officers and 333,885 men
were brought from France to Germany, and as a result many thousands
often had to be guarded by a proportionately small company, one
must admit that in such a position only the most zealous energy and
ruthless employment of all the means at one’s disposal can avail, and
although it is opposed to military sentiment to use weapons against the
defenseless, none the less in such a case one has no other choice. The
captive who seeks to free himself by flight does so at his peril and
can complain of no violence which the custody of prisoners directs in
order to prevent behavior of that kind. Apart from these apparently
harsh measures against attempt at escape, the transport authorities
must do everything they can to alleviate the lot of the sick and
wounded prisoners, in particular they are to protect them against
insults and ill-treatment from an excited mob.
3. _Sieges and Bombardments_
[Sidenote: Fair Game.]
War is waged not merely with the hostile combatants but also with the
inanimate military resources of the enemy. This includes not only the
fortresses but also every town and every village which is an obstacle
to military progress. All can be besieged and bombarded, stormed and
destroyed, if they are defended by the enemy, and in some cases even if
they are only occupied. There has always been a divergence of views,
among Professors of International Law, as to the means which are
permissible for waging war against these inanimate objects, and these
views have frequently been in strong conflict with those of soldiers;
it is therefore necessary to go into this question more closely.
We have to distinguish:
(_a_) Fortresses, strong places, and fortified places.
(_b_) Open towns, villages, buildings, and the like, which,
however, are occupied or used for military purposes.
Fortresses and strong places are important centers of defense, not
merely in a military sense, but also in a political and economic sense.
They furnish a principal resource to the enemy and can therefore be
bombarded just like the hostile army itself.
[Sidenote: Of making the most of one’s opportunity.]
A preliminary notification of bombardment is just as little to be
required as in the case of a sudden assault. The claims to the contrary
put forward by some jurists are completely inconsistent with war and
must be repudiated by soldiers; the cases in which a notification has
been voluntarily given do not prove its necessity. The besieger will
have to consider for himself the question whether the very absence
of notification may not be itself a factor of success, by means of
surprise, and indeed whether notification will not mean a loss of
precious time. If there is no danger of this then humanity no doubt
demands such a notification.
Since town and fortifications belong together and form an inseparable
unity, and can seldom in a military sense, and never in an economic and
political sense, be separated, the bombardment will not limit itself to
the actual fortification, but it will and must extend over the whole
town; the reason for this lies in the fact that a restriction of the
bombardment to the fortifications is impracticable; it would jeopardize
the success of the operation, and would quite unjustifiably protect
the defenders who are not necessarily quartered in the works.
[Sidenote: Spare the Churches.]
But this does not preclude the exemption by the besieger of certain
sections and buildings of the fortress or town from bombardment, such
as churches, schools, libraries, museums, and the like, so far as this
is possible.
But of course it is assumed that buildings seeking this protection will
be distinguishable and that they are not put to defensive uses. Should
this happen, then every humanitarian consideration must give way.
The utterances of French writers about the bombardments of Strasburg
Cathedral in the year 1870, are therefore quite without justification,
since it only happened after an observatory for officers of artillery
had been erected on the tower.
The only exemption from bombardment recognized by international law,
through the medium of the Geneva Convention, concerns hospitals and
convalescent establishments. Their extension is left to the discretion
of the besieger.
[Sidenote: A Bombardment is no Respecter of Persons.]
As regards the civil population of a fortified place the rule is: All
the inhabitants, whether natives or foreigners, whether permanent or
temporary residents, are to be treated alike.
No exception need be made in regard to the diplomatists of neutral
States who happen to be in the town; if before or during the investment
by the besieger their attention is drawn to the fate to which they
expose themselves by remaining, and if days of grace in which to
leave are afforded them, that simply rests on the courtesy of the
besieger. No such duty is incumbent upon him in international law. Also
permission to send out couriers with diplomatic despatches depends
entirely upon the discretion of the besieger. In any case it will
always depend on whether the necessary security against misuse is
provided.[61]
[Sidenote: A timely severity.]
If the commandant of a fortress wishes to strengthen its defensive
capacity by expelling a portion of the population such as women,
children, old people, wounded, etc., then he must take these steps in
good time, _i.e._, before the investment begins. If the investment is
completed, no claim to the free passage of these classes can be made
good. All juristic demands to the contrary are as a matter of principle
to be repudiated, as being in fundamental conflict with the principles
of war. The very presence of such persons may accelerate the surrender
of the place in certain circumstances, and it would therefore be
foolish of a besieger to renounce voluntarily this advantage.[62]
Once the surrender of a fortress is accomplished, then, by the usages
of war to-day, any further destruction, annihilation, incendiarism,
and the like, are completely excluded. The only further injuries that
are permitted are those demanded or necessitated by the object of the
war, _e.g._, destruction of fortifications, removal of particular
buildings, or in some circumstances of complete quarters, rectification
of the foreground and so on.
[Sidenote: “Undefended Places.”]
A prohibition by international law of the bombardment of open towns and
villages which are not occupied by the enemy, or defended, was, indeed,
put into words by the Hague Regulations, but appears superfluous, since
modern military history knows of hardly any such case.
But the matter is different where open towns are occupied by the enemy
or are defended. In this case, naturally all the rules stated above
as to fortified places hold good, and the simple rules of tactics
dictate that fire should be directed not merely against the bounds of
the place, so that the space behind the enemy’s firing line and any
reserves that may be there shall not escape. A bombardment is indeed
justified, and unconditionally dictated by military consideration, if
the occupation of the village is not with a view to its defense but
only for the passage of troops, or to screen an approach or retreat, or
to prepare or cover a tactical movement, or to take up supplies, etc.
The only criterion is the value which the place possesses for the enemy
in the existing situation.
Regarding it from this point of view, the bombardment of Kehl by the
French in 1870 was justified by military necessity, although the place
bombarded was an open town and not directly defended. “Kehl offered
the attacking force the opportunity of establishing itself in its
buildings, and of bringing up and placing there its personnel and
material, unseen by the defenders. It became a question of making Kehl
inaccessible to the enemy and of depriving it of the characteristics
which made its possession advantageous to the enemy. The aforesaid
justification was not very evident.”[63]
Also the bombardment of the open town of Saarbrücken cannot from the
military point of view be the subject of reproach against the French.
On August 2nd a Company of the Fusilier Regiment No. 40 had actually
occupied the railway station and several others had taken up a position
in the town. It was against these troops that the fire of the French
was primarily directed. If havoc was spread in the town, that could
scarcely be avoided. In the night of August 3rd to 4th, the fire of the
French batteries was again directed on the railway station in order to
prevent the despatch of troops and material. Against this proceeding
also no objection can be made, since the movement of trains had
actually taken place.
If, therefore, on the German side[64] energetic protest were made in
both cases, and the bombardment of Kehl and Saarbrücken were declared
a violation of international law, this only proves that in 1870 a
proper comprehension of questions of the laws of war of this kind
was not always to be found even in the highest military and official
circles. But still less was this the case on the French side as is
clear from the protests against the German bombardment of Dijon,
Chateaudun, Bazeilles, and other places, the military justification for
which is still clearer and incontestable.[65]
B.--METHODS NOT INVOLVING THE USE OF FORCE. CUNNING, AND DECEIT
[Sidenote: Stratagems.]
Cunning in war has been permissible from the earliest times, and was
esteemed all the more as it furthered the object of war without
entailing the loss of men. Surprises, laying of ambushes, feigned
attacks and retreats, feigned flight, pretense of inactivity, spreading
of false news as to one’s strength and dispositions, use of the enemy’s
parole--all this was permitted and prevalent ever since war begun, and
so it is to-day.[66]
[Sidenote: What are “dirty tricks”?]
As to the limits between recognized stratagems and those forms of
cunning which are reprehensible, contemporary opinion, national
culture, the practical needs of the moment, and the changing military
situation, are so influential that it is prima facie proportionately
difficult to draw any recognized limit, as difficult as between
criminal selfishness and taking a justifiable advantage. Some forms
of artifice are, however, under all circumstances irreconcilable
with honorable fighting, especially all those which take the form of
faithlessness, fraud, and breach of one’s word. Among these are breach
of a safe-conduct; of a free retirement; or of an armistice, in order
to gain by a surprise attack an advantage over the enemy; feigned
surrender in order to kill the enemy who then approach unsuspiciously;
misuse of a flag of truce, or of the Red Cross, in order to secure
one’s approach, or in case of attack, deliberate violation of a
solemnly concluded obligation, _e.g._, of a war treaty; incitement to
crime, such as murder of the enemy’s leaders, incendiarism, robbery,
and the like. This kind of outrage was an offense against the law of
nations even in the earliest times. The natural conscience of mankind
whose spirit is chivalrously alive in the armies of all civilized
States, has branded it as an outrage upon human right, and enemies who
in such a public manner violate the laws of honor and justice have been
regarded as no longer on an equality.[67]
[Sidenote: Of False Uniforms.]
The views of military authorities about methods of this kind, as also
of those which are on the borderline, frequently differ from the views
held by notable jurists. So also the putting on of enemy’s uniforms,
the employment of enemy or neutral flags and marks, with the object
of deception are as a rule declared permissible by the theory of the
laws of war,[68] while military writers[69] have expressed themselves
unanimously against them. The Hague Conference has adopted the latter
view in forbidding the employment of enemy’s uniforms and military
marks equally with the misuse of flags of truce and of the Red
Cross.[70]
[Sidenote: The Corruption of others may be useful.]
[Sidenote: And murder is one of the Fine Arts.]
Bribery of the enemy’s subjects with the object of obtaining military
advantages, acceptance of offers of treachery, reception of deserters,
utilization of the discontented elements in the population, support of
pretenders and the like, are permissible, indeed international law
is in no way opposed[71] to the exploitation of the crimes of third
parties (assassination, incendiarism, robbery, and the like) to the
prejudice of the enemy.
[Sidenote: The ugly is often expedient, and that it is a mistake to be
too “nice-minded.”]
Considerations of chivalry, generosity, and honor may denounce in such
cases a hasty and unsparing exploitation of such advantages as indecent
and dishonorable, but law which is less touchy allows it.[72] “The
ugly and inherently immoral aspect of such methods cannot affect the
recognition of their lawfulness. The necessary aim of war gives the
belligerent the right and imposes upon him, according to circumstances,
the duty not to let slip the important, it may be the decisive,
advantages to be gained by such means.[73]
CHAPTER III
TREATMENT OF WOUNDED AND SICK SOLDIERS
The generally accepted principle that in war one should do no more harm
to one’s enemy than the object of the war unconditionally requires,
has led to treating the wounded and sick combatants as being no longer
enemies, but merely sick men who are to be taken care of and as much
as possible protected from the tragic results of wounds and illness.
Although endeavors to protect the wounded soldiers from arbitrary
slaughter, mutilation, ill-treatment, or other brutalities go back
to the oldest times, yet the credit of systematizing these endeavors
belongs to the nineteenth century, and this system was raised to the
level of a principle of international law by the Geneva Convention of
1864.
[Sidenote: The sanctity of the Geneva Convention.]
With the elevation of the Geneva Agreements to the level of laws
binding peoples and armies, the question of the treatment of wounded
and sick combatants, as well as that of the persons devoted to the
healing and care of them, is separated from the usages of war.
Moreover, and discussion of the form of this international law must be
regarded from the military point of view as aimless and unprofitable.
The soldier may still be convinced that some of the Articles are
capable of improvement, that others need supplementing, and that yet
others should be suppressed, but he has not the right to deviate from
the stipulations; it is his duty to contribute as far as he can to the
observance of the whole code.
[Sidenote: The “Hyenas of the Battlefield.”]
No notice is taken in the Geneva Convention of the question of the
protection of fallen or wounded combatants from the front, from the
rabble usually known as “The Hyenas of the battlefield,” who are
accustomed to rob, ill-treat, or slay soldiers lying defenseless on the
field of battle. This is a matter left to the initiative of the troops.
Persons of this kind, whether they be soldiers or not, are undoubtedly
to be dealt with in the sternest possible manner.
CHAPTER IV
INTERCOURSE BETWEEN BELLIGERENT ARMIES
[Sidenote: Flags of Truce.]
Hostile armies are in frequent intercourse with one another. This
takes place so long as it is practised openly, that is to say, with
the permission of the commanders on both sides, by means of bearers of
flags of truce. In this class are included those who have to conduct
the official intercourse between the belligerent armies or divisions
thereof, and who appear as authorized envoys of one army to the other,
in order to conduct negotiations and to transmit communications. As to
the treatment of bearers of flags of truce there exist regular usages
of war, an intimate acquaintance with which is of the highest practical
importance. This knowledge is not merely indispensable for the higher
officers, but also for all inferior officers, and to a certain extent
for the private in the ranks.
Since a certain degree of intercourse between the two belligerents is
unavoidable, and indeed desirable, the assurance of this intercourse
is in the interests of both parties; it has held good as a custom from
the earliest times, and even among uncivilized people, whereby these
envoys and their assistants (trumpeter, drummer, interpreter, and
orderly) are to be regarded as inviolable; a custom which proceeds on
the presumption that these persons, although drawn from the ranks of
the combatants, are no longer, during the performance of these duties,
to be regarded as active belligerents. They must, therefore, neither
be shot nor captured; on the contrary, everything must be done to
assure the performance of their task and to permit their return on its
conclusion.
But it is a fundamental condition of this procedure:
1. That the envoy be quite distinguishable as such by means of
universally recognized and well-known marks; distinguishable
both by sight and by hearing (flags of truce, white flags, or,
if need be, white pocket-handkerchiefs) and signals (horns or
bugles).
2. That the envoy behave peaceably, and
3. That he does not abuse his position in order to commit any
unlawful act.
Of course any contravention of the last two conditions puts an end
to his inviolability; it may justify his immediate capture, and, in
extreme cases (espionage, hatching of plots), his condemnation by
military law. Should the envoy abuse his mission for purposes of
observation, whereby the army he is visiting is imperiled, then also
he may be detained, but not longer than is necessary. In all cases of
this kind it is recommended that prompt and detailed information be
furnished to the head of the other army.
It is the right of every army:
1. To accept, or to refuse such envoys. An envoy who is not
received must immediately rejoin his own army; he must not, of
course, be shot at on his way.
2. To declare that it will not during a fixed period entertain any
envoys. Should any appear in spite of this declaration; they
cannot claim to be inviolable.
3. To determine in what forms and under what precautions envoys
shall be received. The envoys have to submit to any commands
even though entailing personal inconvenience such as
blindfolding or going out of their way on coming or returning,
and such like.
[Sidenote: The Etiquette of Flags of Truce.]
The observance of certain forms in the reception of envoys is of the
greatest importance, as a parley may serve as a cloak for obtaining
information or for the temporary interruption of hostilities and the
like. Such a danger is particularly likely to occur if the combatants
have been facing one another, as in the case of a war of positions,
for a long time without any particular result. These forms are also
important because their non-observance, as experience shows, gives
rise to recrimination and charges of violation of the usages of war.
The following may, therefore, be put forward as the chief rules for the
behavior of an envoy and as the forms to be observed in his reception.
[Sidenote: The Envoy.]
1. The envoy (who is usually selected as being a man skilled in
languages and the rules, and is mounted on horseback) makes for
the enemy’s outpost or their nearest detachment, furnished with
the necessary authorization, in the company of a trumpeter and
a flag-bearer on horseback. If the distance between the two
outposts of the respective lines is very small, then the envoy
may go on foot in the company of a bugler or a drummer.
[Sidenote: His approach.]
2. When he is near enough to the enemy’s outposts or their lines
to be seen and heard, he has the trumpet or bugle blown and
the white flag unfurled by the bearer. The bearer will seek to
attract the attention of the enemy’s outposts or detachments
whom he has approached, by waving the flag to and fro.
From this moment the envoy and his company are inviolable, in
virtue of a general usage of war. The appearance of a flag of
truce in the middle of a fight, however, binds no one to cease
fire. Only the envoy and his companions are not to be shot at.
[Sidenote: The challenge--“Wer da?”]
3. The envoy now advances with his escort at a slow walk to the
nearest posted officer. He must obey the challenge of the
enemy’s outposts and patrol.
[Sidenote: His reception.]
4. Since it is not befitting to receive an envoy at just that
place which he prefers, he has to be ready to be referred to a
particular place of admission. He must keep close to the way
prescribed for him. It is advisable for the enemy whenever this
is possible to give the envoy an escort on the way.
[Sidenote: He dismounts.]
5. On arriving at the place indicated, the envoy dismounts along
with his attendants; leaves them at a moderate distance behind
him, and proceeds on foot to the officer on duty, or highest in
command, at that place, in order to make his wishes known.
[Sidenote: Let his Yea be Yea, and his Nay, Nay.]
6. Intercourse with the enemy’s officer must be courteously
conducted. The envoy has always to bear in mind the discharge
of his mission, to study the greatest circumspection in his
conversations, neither to attempt to sound the enemy or to
allow himself to be sounded.... The best thing is to refuse to
enter into any conversation on military matters beforehand.
[Sidenote: The duty of his Interlocutor.]
7. For less important affairs the officer at the place of
admission will possess the necessary instructions, in order
either to discharge them himself, or to promise their discharge
in a fixed period. But in most cases the decision of a superior
will have to be taken; in this case the envoy has to wait until
the latter arrives.
8. If the envoy has a commission to deal personally with the
Commander-in-Chief or a high officer, or if the officer on duty
at the place of admission considers it desirable for any reason
to send the envoy back, then, if it be necessary, the eyes
of the envoy may be blindfolded; to take away his weapons is
hardly necessary. If the officer at the place of admission is
in any doubt what attitude to adopt towards the requests of the
envoy, he will for the time being detain him at his post, and
send an intimation to his immediate superior in case the affair
appears to him of particular importance, and at the same time
to the particular officer to whom the envoy is or should be
sent.
[Sidenote: The impatient Envoy.]
9. If an envoy will not wait, he may be permitted, according to
circumstances, to return to his own army if the observation
made by him or any communications received can no longer do any
harm.
From the foregoing it follows that intercourse with the envoys of an
enemy presupposes detailed instructions and a certain intelligence on
the part of the officers and men if it is to proceed peaceably. But
before all things it must be made clear to the men that the intentional
wounding or killing of an envoy is a serious violation of international
law, and that even an unfortunate accident which leads to such a
violation may have the most disagreeable consequences.
[Sidenote: The French again.]
A despatch of Bismarck’s of January 9th, 1871, demonstrates by express
mention of their names, that twenty-one German envoys were shot by
French soldiers while engaged on their mission. Ignorance and defective
teaching of the troops may have been the principal reason for this
none too excusable behavior. In many cases transgressions on the part
of the rawer elements of the army may have occurred, as has been many
times offered as an excuse in higher quarters. Nevertheless, this state
of affairs makes clear the necessity of detailed instruction and a
sharp supervision of the troops by the officers.
CHAPTER V
SCOUTS AND SPIES
[Sidenote: The Scout.]
[Sidenote: The Spy and his short shrift.]
Scouting resolves itself into a question of getting possession of
important information about the position, strength, plans, etc.,
of the enemy, and thereby promoting the success of one’s own side.
The existence of scouting has been closely bound up with warfare
from the earliest times; it is to be regarded as an indispensable
means of warfare and consequently is undoubtedly permissible. If
the scouting takes place publicly by recognizable combatants then
it is a perfectly regular form of activity, against which the enemy
can only use the regular means of defense, that is to say, killing
in battle, and capture. If the scouting takes the form of secret
or surreptitious methods, then it is espionage, and is liable to
particularly severe and ruthless measures by way of precaution and
exemplary punishment--usually death by shooting or hanging. This severe
punishment is not inflicted on account of dishonorable disposition
on the part of the spy--there need exist nothing of the kind, and
the motive for the espionage may arise from the highest patriotism
and sentiment of military duty quite as often as from avarice and
dishonorable cupidity[74]--but principally on account of the particular
danger which lies in such secret methods. It is as it were a question
of self-defense.
Having regard to this severe punishment introduced by the usages of
war, it is necessary to define the conception of espionage and of spies
as precisely as possible.
[Sidenote: What is a Spy?]
A spy was defined by the German army staff in 1870 as one “who seeks
to discover by clandestine methods, in order to favor the enemy, the
position of troops, camps, etc.; on the other hand enemies who are
soldiers are only to be regarded as spies if they have violated the
rules of military usages, by denial or concealment of their military
character.”
The Brussels Declaration of 1874 defines the conception as follows: “By
a spy is to be understood he who clandestinely or by illicit pretenses
enters or attempts to enter into places in the possession of the enemy
with the intention of obtaining information to be brought to the
knowledge of the other side.” The Hague Conference puts it in the same
way.
[Sidenote: Of the essentials of Espionage.]
The emphasis in both declarations is to be laid on the idea of
“secrecy” or “deception.” If regular combatants make enquiries in
this fashion, for example in disguise, then they also come under
the category of spies, and can lawfully be treated as such. Whether
the espionage was successful or not makes no difference. The motive
which has prompted the spy to accept his commission, whether noble or
ignoble, is, as we have already said, indifferent; likewise, whether
he has acted on his own impulse or under a commission from his own
State or army. The military jurisdiction in this matter cuts across
the territorial principle and that of allegiance, in that it makes no
difference whether the spy is the subject of the belligerent country or
of another State.
It is desirable that the heavy penalty which the spy incurs should be
the subject not of mere suspicion but of actual proof of existence
of the offense, by means of a trial, however summary (if the swift
course of the war permits), and therefore the death penalty will not be
enforced without being preceded by a judgment.
[Sidenote: Accessories are Principals.]
Participation in espionage, favoring it, harboring a spy, are equally
punishable with espionage itself.
CHAPTER VI
DESERTERS AND RENEGADES
[Sidenote: The Deserter is faithless and the Renegade false.]
The difference between these two is this--the first class are untrue
to the colors, their intention being to withdraw altogether from the
conflict, to leave the seat of war, and, it may be, to escape into a
country outside it; but the second class go over to the enemy in order
to fight in his ranks against their former comrades. According to the
general usages of war, deserters and renegades, if they are caught, are
to be subjected to martial law and may be punished with death.
Although some exponents of the laws of war claim that deserters and
renegades should be handed back to one’s opponent, and on the other
hand exactly the opposite is insisted on by others, namely, the
obligation to accept them--all we can say is that a soldier cannot
admit any such obligation.
[Sidenote: But both may be useful.]
Deserters and renegades weaken the power of the enemy, and therefore to
hand them over is not in the interest of the opposite party, and as for
the right to accept them or reject them, that is a matter for one’s own
decision.
CHAPTER VII
CIVILIANS IN THE TRAIN OF AN ARMY
[Sidenote: “Followers.”]
In the train of an army it is usual to find, temporarily or
permanently, a mass of civilians who are indispensable to the
satisfaction of the wants of officers and soldiers or to the connection
of the army with the native population. To this category belong all
kinds of contractors, carriers of charitable gifts, artists, and the
like, and, above all, newspaper correspondents whether native or
foreign. If they fall into the hands of the enemy, they have the right,
should their detention appear desirable, to be treated as prisoners of
war, assuming that they are in possession of an adequate authorization.
For all these individuals, therefore, the possession of a pass issued
by the military authorities concerned, in accordance with the forms
required by international intercourse, is an indispensable necessity,
in order that in the case of a brush with the enemy, or of their being
taken captive they may be recognized as occupying a passive position
and may not be treated as spies.[75]
In the grant of these authorizations the utmost circumspection should
be shown by the military authorities; this privilege should only be
extended to those whose position, character, and intentions are fully
known, or for whom trustworthy persons will act as sureties.
[Sidenote: The War Correspondent: his importance. His presence is
desirable.]
This circumspection must be observed most scrupulously in the case of
newspaper correspondents whether native or foreign. Since the component
parts of a modern army are drawn from all grades of the population, the
intervention of the Press for the purpose of intellectual intercourse
between the army and the population at home can no longer be dispensed
with. The army also derives great advantages from this intellectual
intercourse; it has had to thank the stimulus of the Press in recent
campaigns for an unbroken chain of benefits, quite apart from the
fact that news of the war in the newspapers is a necessity for every
soldier. The importance of this intervention, and on the other hand
the dangers and disadvantages which may arise from its misuse, make it
obviously necessary that the military authorities should control the
whole of the Press when in the field. In what follows we shall briefly
indicate the chief rules which are customary, in the modern usages of
war, as regards giving permission to newspaper correspondents.
* * * * *
[Sidenote: The ideal War Correspondent.]
The first thing necessary in a war correspondent is a sense of honor;
in other words, he must be trustworthy. Only a man who is known to be
absolutely trustworthy, or who can produce a most precise official
certificate or references from unimpeachable persons, can be granted
permission to attach himself to headquarters.
An honorable correspondent will be anxious to adhere closely to the
duties he owes to his paper on the one hand, and the demands of the
army whose hospitality he enjoys on the other. To do both is not
always easy, and in many cases tact and refinement on the part of
the correspondent can alone indicate the right course; a censorship
is proved by experience to be of little use; the certificates and
recommendations required must therefore be explicit as to the
possession of these qualities by the applicant; and according as he
possesses them or not his personal position at headquarters and the
degree of support extended to him in the discharge of his duties will
be decided.
It is therefore undoubtedly in the interest of the army as of the
Press, that the latter shall only despatch such representatives
as really are equal to the high demands which the profession of
correspondent requires.
[Sidenote: The Etiquette of the War Correspondent.]
The correspondent admitted on the strength of satisfactory pledges has
therefore to promise on his word of honor to abide by the following
obligations:
1. To spread no news as to the disposition, numbers, or movements
of troops, and, moreover, the intentions and plans of the
staff, unless he has permission to publish them. (This
concerns principally correspondents of foreign newspapers
since one’s own newspapers are already subject to a
prohibition of this kind by the Imperial Press Law of April
7th, 1874.)
2. To report himself on arrival at the headquarters of a division
immediately to the commanding officer, and to ask his
permission to stay, and to remove himself immediately and
without making difficulties if the o.c. deems his presence
inexpedient on military grounds.
3. To carry with him always, and to produce on demand, his
authorization (certificate, armlet, photograph) and his pass
for horses, transport, and servants.
4. To take care that his correspondence and articles are
submitted at headquarters.
5. To carry out all instructions of the officers at headquarters
who supervise the press.
Contraventions of the orders from headquarters, indiscretions, and
tactlessness, are punished in less serious cases with a caution, in
grave cases by expulsion; where the behavior of the correspondent or
his correspondence has not amounted to a military offense, and is
therefore not punishable by martial law.
A journalist who has been expelled not only loses his privileges but
also his passive character; and if he disregards his exclusion he will
be held responsible.
Foreign journalists are subject to the same obligations; they must
expressly recognize their authority and in case of punishment cannot
claim any personal immunity.[76]
Journalists who accompany the army without the permission of the staff,
and whose reports therefore cannot be subject to military control,
are to be proceeded against with inexorable severity. They are to be
expelled ruthlessly as dangerous, since they only get in the way of
the troops and devour their subsistence, and may under the mask of
friendship do harm to the army.
CHAPTER VIII
THE EXTERNAL MARK OF INVIOLABILITY
[Sidenote: How to tell a Non-combatant.]
Those persons and objects who in war are to be treated as inviolable
must be recognizable by some external mark. Such is the so-called
Geneva Cross (a red cross on a white ground) introduced by
international agreement.[77]
Attention is to be attracted in the case of persons by armlets, in the
case of buildings by flags, in the case of wagons and other objects by
a corresponding paint mark.
If the mark is to receive adequate respect it is essential:
1. That it should be clearly visible and recognizable.
2. That it should only be worn by such persons or attached to such
objects as can lawfully claim it.
As to 1. Banners and flags must be sufficiently large to be both
distinguishable and recognizable at a far distance; they are to be so
attached that they will not be masked by any national flag that may be
near them, otherwise unintentional violations will be unavoidable.
As to 2. Abuse will result in the protective mark being no longer
respected, and a further result would be to render illusory, and to
endanger, the whole of the Geneva Convention. Measures must therefore
be taken to prevent such abuses and to require every member of the
army to draw attention to any one who wears these marks without being
entitled to do so.[78]
Regulations of international law to prevent and punish misuse of the
Red Cross do not exist.[79]
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”.
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