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INTERNATIONAL LAW

AND THE GREAT WAR



COLEMAN PHILLIPSON







■ >



WITH AN INTRODUCTION BY
SIR JOHN MACDONELL



INTERNATIONAL LAW
AND THE GREAT WAR



INTERNATIONAL LAW
AND THE GREAT WAR



BY

COLEMAN PHILLIPSON

M.A., LL.D., Litt.D.

OF THE INNER TEMPLE, BARRISTER-AT-LAW

AUTHOR OF "STUDIES IN INTERNATIONAL LAW," "EFFECT OF WAR ON CONTRACTS,"

"THE INTERNATIONAL LAW AND CUSTOM OF ANCIENT GREECE AND

ROME," PART AUTHOR OF "GREAT JURISTS OF

THE WORLD," ETC.



WITH INTRODUCTION BY
SIR JOHN MACDONELL, K.C.B., LL.D., F.B.A.



. .



- • • •:



LONDON
T. FISHER UNWIN, LTD.

ADELPHI TERRACE



^U\o






First published in 1915



(All rights reserved)






PREFACE

My aim in the present work is to give a systematic
account, from the point of view of international law, of
most of the questions and incidents that have so far arisen
in the Great War.

Since the beginning of last August international law has
been subjected to severe trials. I have endeavoured to
ascertain to what extent it has emerged from its ordeals
inviolate, to what extent homage has been honourably paid
to it, in what respects it has suffered hurt and its behests
have been disregarded. The number of violations that we
have to examine is large. Indeed, so many have been
committed, that it seems as though the whole fabric of
international law has been demolished, and the sacred law
of humanity — to which it is indissolubly joined — rejected
and spurned. But, happily, not all the belligerents have
contributed to bring about this deplorable result. For we
shall find that nearly all the infractions of law are to be
laid to the account of Germany.

It is obvious, therefore, that in an undertaking of this
kind I must necessarily pay considerable attention to the
theories of the law of war and of international law in
general advanced by German writers, to the views held
in German military circles, and, especially, to the practices
of the German forces in this unparalleled conflict. I have
tried to show, by referring to earlier examples and proceed-
ings, that these theories, views, and practices were not
suddenly adopted on this present occasion in order to
justify and ensure the attempted realization of a certain
object, but that they are, rather, the natural consequences
of the general attitude that has long been assumed by



346893



vi PREFACE

the governing authorities and militarist enthusiasts of
Germany. I have examined the conduct of the German
forces both on land and on sea; I have analysed it out
so as to enable us to consider its constituent elements in
relation to the provisions laid down by the conventional
and the customary law of nations ; and thus I have indi-
cated wherein the established law was observed or violated.
Where, in any particular circumstances, there were no
definite rules of international law to invoke, and where
the German authorities have sought to show that their
rigorous and "frightful" measures were permissible on the
ground that this or that Convention was not previously
ratified, or that some minor belligerent was not a party
to it, or that some reservation had been made at the
Hague Conference, I have none the less applied the
fundamental principles underlying the whole structure of
the law of nations and have considered whether the excuses
alleged were tenable and the defended actions legitimate.

Despite the numerous breaches of international law that
have been committed, we need not despair, of its future.
Those who have traced its course of development, who
have noted its trials and tribulations, its failings and its
triumphs, are sure that its inherent vitality will never
and can never be entirely destroyed, and are confident that,
notwithstanding the many wounds inflicted on it during the
war, it will arise again healed and invigorated, and will
assume its inalienable dominion over the Society of States.
Where there is life, where there is a nation, where there
is a community of States there must be restraint, discipline,
law. The existence of international law, then, is inevitable.
Every infringement of it that is recognized as such implies
its existence, its validity, and its applicability. The main
problem to which men and nations should devote themselves
is how to fortify it by such potent sanctions as will make
its violation not merely dishonourable, but unprofitable to
an offending member of the community of States.

COLEMAN PHILLIPSON.
Inner Temple, March 19, 1915.



CONTENTS

PAGE

Introduction (by Sir John Macdonell, K.C.B., LL.D., F.B.A.) xvii

CHAPTER I

Causes of the War from a Legal Point of View — Treaty
Obligations — Protection of Public Law — Duty of the
Guarantors of Belgian Neutrality . . . .1

Peace the normal condition — War ag the ultima ratio — Factors
underlying the causes of war — International law and the "justice "
of wars — A State seeking inordinate preponderance — Balance of
power — Family of nations — Bight of intervention — Belgium, her
early condition, neutralization — Treaties of 1831, 1839 — Treaties of
1870— Neutrality and passage of belligerent troops — German ulti-
matum to Belgium, and the reply — The German Chancellor's
pronouncement — British protest — The "scrap of paper" — Invasion
of Belgian territory — Great Britain's duty — Difference between the
Belgian and Luxemburg guarantees — Violation of neutrality con-
cerns not only the guarantors, but all neutral Powers, as being
subject to international law.

CHAPTER II

The Doctrine of Necessity and International Law . . 27

Germany's reason for committing an international wrong — Her
policy long-established — Meaning of " necessity" — When there are
exemptions from responsibility — True significance of self-defence —
Doctrine of necessity and State absolutism — Its German advocates,
earlier and present-day — Machiavellian elements — Views of Bern-
hardi as typical of the modern German militarist school — Critical
examination thereof : confusions and contradictions — Binding
force of treaties and international law — International law as com-
pared with national law.

vii



viii CONTENTS

CHAPTER III

PAGE

Declaration of War — Earlier Practice — The Hague Rules —
Character of the Ultimatum — Position of Allies . . 53

Necessity of a declaration of war — Earlier differences of opinion
and practice — General manifesto — The Hague Conference, 1907 —
Application of the rules in the present war — Character of Austrian
ultimatum to Serbia — Serbia's reply — French and British declara-
tion of war against Austria — Japanese declaration — German acts of
war before declaration — Position of Austria in the early phases of
the war with regard to Great Britain — Position of Japan as Great
Britain's ally — Declaration of belligerent solidarity on the part of
the Allies.



CHAPTER IV

Immediate Effects of the Outbreak of the War — Diplomatic
Intercourse — Inviolability of Retiring Ambassadors —
Rights over Private Property — Enemy Vessels in
Belligerent Ports . . . . . .68

(a) Rupture of diplomatic relationships — Privileges and immunities
of ambassadors — Whether properly respected — (b) Extensive rights
over private property within the jurisdiction — Position of neutral
property — Right of "angary" — (c) Position of enemy vessels in
belligerent ports — Previous practice — The sixth Convention at The
Hague — How the provisions were applied — The Chile — The Perkeo
— The Moive — Position of the cargoes.



CHAPTER V

Immediate Effects of the Outbreak of War — Position of
Enemy Subjects in Belligerent Territory — Restrictions —
Internment . . . . . . .80

Status of enemy aliens — Earlier practices — Special treaties for
reciprocal treatment — More recent practices — Safety of the State,
and regulations accordingly — Enemy aliens liable to military
service — Aliens Restriction Acts and Orders — Exchange of detained
or interned civilians — Germany's attitude — Concentration camps.



CONTENTS ix

CHAPTER tl

PAGE

Immediate Effects of the Outbreak of War — Trading with
the Enemy — Meaning of Alien Enemy — Position with
regard to our courts . . . . . .93

(a) Usually accepted rules prior to the war — Earlier practices
rigorous — -Gradual relaxations — The Anglo-American doctrines as
to commercial intercourse with the enemy subjects; prohibition,
subject to license — Alien enemy under disability to sue — The
Continental view — Interpretation of Art. 23(h) of the Hague
Regulations — (b) How these doctrines were applied in the
present war — Proclamations and orders : their restrictions and
permissions — (c) Interpretation of the expression " alien
enemy " : its variations and special applications — Ingle v.
Mannheim Insurance Co. — Fox & Co. v. Schrempt — Amorduct
Manufacturiyig Co. v. Defries & Co. — Continental Tyre and
Rubber Co. v. Tilling ; fiction and reality ; the dissenting
judgment of the Court of Appeal conforms more to sound public
policy — Princess Thum and Taxis v. Moffitt: title to sue —
Robinson & Co. v. Continental Insurance Co. of Mannheim : alien's
right to defend — The Mowe: locus standi of enemy shipowner —
Porter v. Freztndenberg : important decision as to capacity of
enemy aliens to appear in our courts ; interpretation of Art. 23 (h)
of the Hague Regulations (1907).



CHAPTER VII

Combatants and Non-Combatants — Marks of Belligerent
Character — Levies en masse — Armed Merchantmen — Con-
verted Vessels ....... 115

(a) Earlier position of unarmed inhabitants — Various practices in
wars — Mitigations — Doctrine of Rousseau — Wars of the nine-
teenth century — Declaration of St. Petersburg, 1868 — The Brussels
Conference, 1874 — Rules of the Hague Conference — Levies en masse
— German views — Position of the Belgian civil population —
Rights of civilians — The French "Foreign Legion" — (b) Con-
verted merchantmen, their legal status — Rules of The Hague —
Conversion on the high seas — Defensively- armed merchantmen — >
Position of cargoes.



x CONTENTS

CHAPTER VIII

PAGE

Fundamental Principles of War Law — The German Doctrine
of Belligerent Necessity ..... 130

(a) War as an abnormal condition of States — But not a condition of
lawlessness — Primarily a relation between States, only secondarily
between individuals — Useless injury and damage — Principle of
humanity against use of barbarous and treacherous methods,
gratuitous cruelty, ill-treatment of the defenceless and helpless —
Principle of chivalry — Principle of military necessity, its true
sense — Violation of war law and right of reprisals — (6) The
German conception of war ; uncompromising attitude, relation to
doctrine of State absolutism ; the argument of force — The German
official manual, its disregard of a great part of the Hague Con-
ventions and customary law — " Necessity of war takes precedence
of usage of war" — The views of Von Moltke, and the reply of
Bluntschli.



CHAPTER IX

Methods of Warfare — (1) German Conduct in the War in
General ........ 142

Absence of conventional prohibition does not mean permission —
The common law of nations supplements the written law —
Admission of the German representative at the Hague Conference ;
his public declaration that German forces would observe the
dictates of humanity and of the public conscience — German conduct
in 1814 — Heine's propheoy — German conduct in 1870-1 — German
conduct in 1914-15 — Evidence of the Belgian Commission — Usual
proceedings of the German armies — Excuses offered — Proof that
there was no provocation — System of terrorism and frightfulness.



CHAPTER X

Methods of Warfare — (2) Bombardment — Destruction and
Devastation ....... 159

Earlier practices — Ameliorations — The Hague Rules as to bombard-
ment — Protective provisions — The German practices: destruction
of towns and villages without military significance — Protected



CONTENTS xi

PAGE

buildings attacked: cathedrals and other churches, museums,
libraries, hospitals, private dwellings — Systematic incendiarism —
Examples — Belgium, a shambles ; a great part of it a desert —
Naval bombardment : rules disregarded — Aircraft bombs ; for the
most part no military object — Examples of forbidden slaughter
and damage.

CHAPTER XI

Methods of Warfare — (3) Treatment of the Civil Population . 181

Violation of prescribed law — Cruelty and outrage — Excuse made —
Its groundless character — Indignities and atrocities inflicted on
women and children — Systematic shooting of inoffensive inhabi-
tants — Machine-guns in unresisting towns and villages — The
atrocities in Dinant and Louvain — Brutalities to the aged, in-
cluding priests, mayors, and councillors — Similar treatment of
French towns and villages — Criminal assaults on women in the
presence of their young children — Civilians used as screens —
Illegal ways of employing civilians.

CHAPTER XII

Methods of Warfare — (4) Illegal Bullets — White Flag —
Ruses — Spies — Espionage and Martial Law . . . 198

(a) Dum-dum bullets forbidden — Declaration of St. Petersburg,
1868 — The Hague Rules, Art. 23(e) — Belgian Commission's
evidence that Germans used explosive bullets and expanding
bullets — French protest — German protest — Memorandum of the
British War Office — (b) Quarter refused — White flag disregarded —
Distinction between permissible and illegitimate stratagems — Use
of the enemy's flag and uniform — Abuse of the Red Cross — (c)
Espionage : its meaning — Martial law : different applications —
Wrongful execution of alleged spies — The Lody case — Martial law
and military law — Defence of the Realm Acts.



CHAPTER XIII

Military Occupation— Requisitions and Contributions — Private

Property — Pillage— Hostages ..... 218

(a) Rules as to military occupation — Occupation and conquest —
Authority of the occupying commander — Restrictions and legal



xii CONTENTS

PAGE

obligations as to the inhabitants and their property — (b) How the
rules were applied — Exorbitant demands made in proclamations —
Rigour of military rule — Illegitimate and arrogant requirements —
(c) Family honour disregarded — Confiscation of private funds — (d)
Systematic pillage on an unprecedented scale: shops and houses
looted, safes and drawers forced open, theft and robbery — Testi-
mony of a German officer — (e) Exorbitant requisitions and
contributions — Organized spoliation — Conduct unparalleled in
the entire history of civilized warfare — (/) Hostages seized and
ill-treated — Measures of repression and intimidation — Infliction of
collective penalties.

CHAPTER XIV

The Wounded— Prisoners of War ..... 243

(a) Treatment of the wounded in earlier times — The Geneva
Conference and the Geneva Conventions — The tenth Convention of
the Hague Conference (1907) — The main provisions — Breach of
many of these by German soldiers — Wounded tortured and put to
death — Doctors, nurses, ambulance attendants, ambulances, hos-
pitals flying the Red Cross fired on — Submarine attack on
British hospital ships — (b) Rules as to prisoners of war — At first
the obligations imposed satisfactorily observed ; later, repeated
reports of German cruelty to interned prisoners — Ill-treatment of
prisoners in the field: some put to death, some used as screens,
others subjected to various indignities — Position of prisoners who
have violated the laws of war.



CHAPTER XV

Belligerents and Neutrals — Rights and Duties of Neu-
trality — Loans — Belligerent Vessels in Neutral Ports
and Canals ....... 262

(a) Earlier conception of neutrality — Present law based on usage
and convention — The fifth Convention of The Hague — The thir-
teenth Convention — How the rules were applied in the present
war — The attitude of the United States— (6) Distinction between
acts of a State and those of its subjects — Raising loans for
belligerents — Examples of practices in previous wars — (c) China
and neutrality— Extension of the war zone in the East— (d) Re-
ported breaches of neutrality by certain South American Republics —



CONTENTS xiii

PAGE

The Monroe Doctrine— German warships using the Juan Fernandez
Islands as a naval base — German activities in American ports —
Measures of the United States— (e) Belligerent use of inter-
oceanic canals — The Panama Canal ; its international position ;
rules issued by the United States for the present war — The Suez
Canal — The Canal Convention — German merchantmen in the
ports of the Suez Canal.



CHAPTER XVI

Belligerents and Neutrals — Turkey, Egypt, Holland and
the Scheldt ....... 288

(a) The Turkish Capitulations denounced before Turkey became a
belligerent — Disregard of obligations in respect of the Dardanelles —
the Goeben and the Breslau — Turkish unprovoked acts of hostility
— Attack on Italian Consulate— (b) Egypt declared a British
protectorate — Distinction between a "colonial protectorate" and
an " international protectorate " — (c) Holland's measures to safe-
guard neutrality — Embargo on re-exportation of certain com-
modities — The Rhine Acts — Position of the Scheldt : is it
exclusively under Dutch control ?



CHAPTER XVII

Belligerents and Neutrals — Internment in Neutral Countries
and Territorial Waters — Airships over Neutral Terri-
tory — Transfer of Belligerent Vessels to Neutrals . 308

(a) Fugitives, prisoners of war, sick, wounded, and shipwrecked
in neutral territory — Rules for internment — Belligerent prizes in
neutral ports — Members of the British forces interned in Holland —

(b) Airships over neutral territory — Law of the air — Proposal of the
Institute of International Law — British military airmen over Swiss
territory— German airmen over Dutch territory — (c) Transfer of
belligerent vessels to neutrals — Earlier Anglo-American practice as
to transfer of warships and merchantmen — No unanimity among
States — The Declaration of London — Alleged transfer of the Goeben
and the Breslau to Turkey (then neutral)— Transfer of German
merchantmen to the United States flag — Proposal that the United
States Government should buy them ; difficulties involved— Case of
the Dacia — Establishment of Joint Commissions.



xiv CONTENTS

CHAPTER XVIII

PAGE

Belligerents and Neutrals — Declaration of London — Contra-
band — Right of Search — Equitable Relaxations — The
American and British Notes — Foodstuffs under Govern-
ment Control ....... 327

(a) The Declaration of London ; its subjects and its character ; not
ratified by Great Britain — Adopted by the British Government,
but with various important modifications prescribed by Proclama-
tions and Orders in Council, e.g. as to contraband, destination of
cargoes, blockade— Similar alterations by France and Russia — Pro-
tests by Germany ; also by neutral countries, e.g. Sweden, Holland,
United States — The right of search and seizure well established —
Merchantmen under convoy — (b) The practice of pre-emption —
Requisitioning under the Declaration of London — Test of the flag
— (c) The American Notes of protest to Great Britain — Sir Edward
Grey's reply — Communication made by the American Secretary
of State to the Chairman of the Senate Committee on Foreign
Relations — (d) Position of foodstuffs controlled by the German
Government.



CHAPTER XIX

Maritime Capture — Belligerent Ships under Neutral Colours
— Destruction of Prizes — Prize Courts — Enemy Combatants
on Neutral Vessels ...... 348

(a) Position of enemy private property found at sea — Declaration
of Paris— The views of the United States— Observation of Count
Caprivi, the German Chancellor (1892)— Proposals that Great
Britain should repudiate the Declaration of Paris ; criticism thereof
— Use of neutral flags by merchantmen of a belligerent; Foreign
Office statement— Protest by the United States— (b) Some cases
of maritime capture: The Marie Qlaeser; Tlie Tommi and The
Rothersand ; The Miramichi ; The Berlin— (c) Destruction of prizes,
when legitimate— German threat in the Declaration of February 4
— Liabilities of neutral merchantmen for carrying contraband or
engaging in unneutral service— (d) The Prize Court ; its origin and
development — Certain changes made by Orders in Council — Nature
of modern prize law— (e) Legal position of enemy combatants found
on neutral vessels — American vessels searched, followed by a protest
—Earlier practice ; the Trent affair— Modern conventions.



CONTENTS xv

CHAPTER Xl

PAGE

Mines — The North Sea as a Military Area— Blockade —
Reprisals . . . . . . . . 372

Kinds of mines — Use in previous wars — The Mines Convention of
The Hague ; its defective character — British views expressed at
the Conference — The German delegate's pronouncement ; the claims
and professions of Germany — Indiscriminate mine-laying by the
Germans, despite their professions at The Hague — Numerous
vessels, including those of neutrals, destroyed — Great Britain and
Russia compelled to lay mines in self-defence — German activities
increase — Great Britain declares the North Sea a military area ; is
it a legitimate proceeding? — Germany then declares all the seas
surrounding the British Isles to be areas of war ; all ships, persons,
and cargoes endangered — What is a valid blockade? — American
Note to the German Government — British reply to the German
declaration — A blockade of the German coasts, subject to certain
relaxations — Justification of the British reprisals.



CHAPTER XXI

Conclusion — Future of International Law . . . 392

Numerous violations of international law in the present war ; inter-
national law has been trodden upon, but will never be crushed
— Its hopeful future — Punishment of offenders according to the
fundamental principles of right and justice — Outrages and atro-
cities not to be met by retaliation in kind — Right attitude of the
victorious belligerents — The Family of States and a world tribunal
— Dominion of international law.

Index ......... 397



INTRODUCTION

International law is passing through a crisis. According
to a common opinion it has come to an end. In view of
the breaches of treaties, the avowal of doctrines subversive
of all engagements between States, the use of cruel and
hitherto forbidden means of warfare, the disregard of the
lives, property, and rights of non-combatants, many
observers think that the rules of international law, built
up for centuries, have disappeared. Never true law, they
are pronounced to be not even recognized morality ; they
are now no more than so many well-meaning counsels
of perfection, certain to be ignored when they thwart, as
they often must, the interests of belligerents. If that were
indeed so, more would have been lost than battles could
retrieve. A spiritual force of incalculable value, " a great
and noble monument of human wisdom," to quote
Mr. Gladstone's words, " founded on the combined dictates
of experience, a precious inheritance bequeathed to us by
the generations that have gone before us," would no longer
exist ; and the world would have travelled a stage back to
barbarism.

That judgment is common, but it is, I believe, erroneous.
It rarely comes from those best acquainted with the history
of international law. It is no more true than was a similar
judgment often expressed during the anarchy of the
Napoleonic wars. It does not take note of the fact that the
contraventions of international law have chiefly been by one

X* xvii



xviii INTRODUCTION

of the belligerents. It makes too much of recent events
and too little of the necessities of human intercourse, out
of which those rules grew, and which will survive this
war.

Those who declare that international law is dead generally
confuse two sets of facts. The Germans have broken
treaties and conventions because it suited them ; military
necessity has been to them an excuse for any excesses.
They have made war more brutal than it has been for
centuries. All this is retrogression ; the exhibition of the
presence of a spirit of barbarism which "culture" and
industrial efficiency have not mitigated. But there is