Letters to "The Times" upon War and Neutrality (1881-1920) Part 15

The bombardment of an unfortified town would, I conceive, be lawful--(1) as a punishment for disloyal conduct; (2) in extreme cases, as retaliation for disloyal conduct elsewhere; (3) for the purpose of quelling armed resistance (not as a punishment for resistance when quelled); (4) in case of refusal of reasonable supplies requisitioned, or of a reasonable money contribution in lieu of supplies. It would, I conceive, be unlawful--(1) for the purpose of enforcing a fancy contribution or ransom, such as we were told was exacted from Liverpool; (2) by way of wanton injury to private property, such as was supposed to have been caused in the Clyde and at Folkestone, and _a fortiori_ such as would have resulted from the antic.i.p.ated sh.e.l.ling during the night-time of the south coast of the Isle of Wight.

2. Is it the case that international law is "all nonsense," and that "when we are at war with an enemy he will do his best to injure us: he will do so in what way he thinks proper, all treaties and all so-called international law notwithstanding"? Are we, with Admiral Aube, to speak of "cette monstrueuse a.s.sociation de mots: les droits de la guerre"? If so, _cadit quaestio_, and a vast amount of labour has been wasted during the last three centuries. I can only say that such a view of the future is not in accordance with the teachings of the past. The body of accepted usage, supplemented by special conventions, which is known as international law, has, as a matter of fact, exercised, even in time of war, a re staining influence on national conduct. This a.s.sertion might be ill.u.s.trated from the discussions which have arisen during recent wars with reference to the Geneva Conventions to the treatment of the wounded and the St. Petersburg declaration against the use of explosive bullets.

The binding obligation of these instruments, which would doubtless be cla.s.sed by your correspondent with the fleet among "old-fashioned treaties, protocols, and other diplomatic doc.u.ments," has never been doubted, while each party has eagerly endeavoured to disprove alleged infractions of them.

The naval manoeuvres have doubtless taught many lessons of practical seamanship. They will have done good service of another sort if they have brought to the attention of responsible statesmen such questions as those with which I have attempted to deal. It is essential that the country should know the precise extent of the risks to which our seaboard towns will be exposed in time of war, and it is desirable that our naval forces should be warned against any course of action, in their conduct of mimic warfare, which could be cited against us, in case we should ever have to complain of similar action on the part of a real enemy.

Your obedient servant, T. E. HOLLAND.

Oxford, August 18 (1888).

THE NAVAL MANOEUVRES

Sir,--In my first letter I called attention to certain operations of the _Spider_ and her consorts which seemed to be inspired by no principle beyond that of doing unlimited mischief to the enemy's seaboard. In a second letter I endeavoured to distinguish between the mischief which would and that which would not be regarded as permissible in civilised warfare. The correspondence which has subsequently appeared in your columns has made sufficiently clear the opposition between the view which seems to find favour just now in naval circles and the principles of international law, as I have attempted to define them. The question between my critics and myself is, in effect, whether the mediaeval or the modern view as to the treatment of private property is to prevail.

According to the former, all such property is liable to be seized or destroyed, in default of a "Brandschatz," or ransom. According to the latter, it is inviolable, subject only to certain well-defined exceptions, among which reasonable requisitions of supplies would be recognised, while demands of money contributions, as such, would not be recognised.

The evidence in favour of the modern view being what I have stated it to be is, indeed, overwhelming; but I should like to call special attention to the _Manuel de Droit International a l'Usage des Officiers de l'Armee de Terre_, issued by the French Government, as going even further than the Brussels Conference in the restrictions which it imposes upon the levying of requisitions and contributions. The Duke of Wellington, who used to be thought an authority in these matters, wrote in 1844, with reference to a pamphlet in which the Prince de Joinville had advocated depredations on the English coasts:--

"What but the inordinate desire of popularity could have induced a man in his station to write and publish an invitation and provocation to war, to be carried on in a manner such as has been disclaimed by the civilised portions of mankind?"

The naval historian, Mr. Younge, in commenting on the burning of Paita, in Chili, as far back as 1871, for non-compliance with a demand for a money contribution (ultimately reduced to a requisition of provisions for the ships), speaks of it as "worthy only of the most lawless pirate or buccaneer, ... as a singular proof of how completely the principles of civilised warfare were conceived to be confined to Europe."

Such exceptional acts as the burning of Paita, or the bombardment of Valparaiso, mentioned by Mr. Herries, will, of course, occur from time to time. My position is that they are so far stigmatised as barbarous by public opinion that their perpetration in civilised warfare may be regarded as improbable; in other words, that they are forbidden by international law.

It is a further question whether the rules of international law on this point are to be changed or disregarded in future. Do we expect, and are we desirous, that future wars shall be conducted in accordance with buccaneering precedent, or with what has. .h.i.therto been the general practice of the nineteenth century? Your naval correspondents incline to revert to buccaneering and thus to the introduction into naval coast operations of a rigour long unknown to the operations of military forces on land; but they do so with a difference. Lord Charles Beresford (writing early in the controversy) a.s.serts the permissibility of ransoming and destroying, without any qualifying expressions; while Admiral de Horsey would apparently only ask "rich" towns for contributions, insisting also that a contribution must be "reasonable,"

and expressly repudiating any claim to do "wanton injury to property of poor communities, and still less to individuals." In the light of these concessions, I venture to claim Admiral de Horsey's concurrence in my condemnation of most of the doings mentioned in my first letter, although on the whole he ranges himself on the side of the advocates of what I maintain to be a change in the existing law of war. Whether or no the existing law needs revision is a question for politicians and for military and naval experts. It is within my province only to express a hope that the contradiction between existing law and new military necessities (if, indeed, such contradiction exists) will not be solved by a repudiation of all law as "nonsense"; and, further, that, if a change of law is to be effected, it will be done with due deliberation and under a sense of responsibility. It should be remembered that operations conducted with the apparent approval of the highest naval authorities, and letters in _The Times_ from distinguished admirals, are in truth the stuff that public opinion, and in particular that department of public opinion known as "international law," is made of.

The ignorance, by the by, which certain of my critics have displayed of the nature and claims of international law is not a little surprising.

Some seem to identify it with treaties; others with "Vattel." Several, having become aware that it is not law of the kind which is enforced by a policeman or a County Court bailiff, have hastened, much exhilarated, to give the world the benefit of their discovery. Most of them are under the impression that it has been concocted by "bookworms," "jurists,"

"professors," or other "theorists," instead of, as is the fact, mainly by statesmen, diplomatists, prize courts, generals and admirals. This is, however, a wide field, into which I must not stray. I have even avoided the pleasant by-paths of disquisition on contraband, privateering, and the Declaration of Paris generally, into which some of your correspondents have courteously invited me. I fear we are as yet far from having disposed of the comparatively simple question as to the operations which may be properly undertaken by a naval squadron against an undefended seaboard.

I am, your obedient servant, T. E. HOLLAND.

Llanfairfechan, August 27 (1888).

NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES

Sir,--The protest reported to have been lodged by the Russian Government against the bombardment by the j.a.panese fleet of a quarantine station on the island of San-shan-tao, apart from questions of fact, as to which we have as yet no reliable information, recalls attention to a question of international law of no slight importance--viz. under what, if any, circ.u.mstances it is permissible for a naval force to bombard an "open"

coast town.

In the first place, it may be hardly necessary to point out the irrelevancy of the reference, alleged to have been made in the Russian Note, to "Article 25 of The Hague Convention." The Convention and the _Reglement_ annexed to it are, of course, exclusively applicable to "la guerre sur terre." Not only, however, would any mention of a naval bombardment have been out of place in that _Reglement_, but a proposal to bring such action within the scope of its 25th Article, which prohibits "the attack or bombardment of towns, villages, habitations, or buildings which are not defended," was expressly negatived by the Conference of The Hague. It became abundantly clear, during the discussion of this proposal, that the only chance of an agreement being arrived at was that any allusion to maritime warfare should be carefully avoided. It was further ultimately admitted, even by the advocates of the proposal, that the considerations applicable to bombardments by an army and by a naval force respectively are not identical. It was, for instance, urged that an army has means other than those which may alone be available to a fleet for obtaining from an open town absolutely needful supplies. The Hague Conference, therefore, left the matter where it found it, recording, however, among its "pious wishes" (_voeux_) one to the effect "that the proposal to regulate the question of the bombardment of ports, towns, and villages by a naval force should be referred for examination to a future conference."

The topic is not a new one. You, Sir, allowed me to raise it in your columns with reference to the naval manoeuvres of 1888, when a controversy ensued which disclosed the existence of a considerable amount of naval opinion in favour of practices which I ventured to think in contravention of international law. It was also thoroughly debated in 1896 at the Venice meeting of the Inst.i.tut de Droit International upon a report drafted by myself, as chairman of a committee appointed a year previously. This report lays down that the restrictions placed by international law upon bombardments on land apply also to those effected from the sea, except that such operations are lawful for a naval force when undertaken with a view to (1) obtaining supplies of which it is in need; (2) destroying munitions of war or warships which may be in a port; (3) punishing, by way of reprisal, violations by the enemy of the laws of war. Bombardments for the purpose of exacting a ransom or of putting pressure upon the hostile Power by injury to peaceful individuals or their property were to be unlawful. The views of the committee were, in substance, adopted by the Inst.i.tut, with the omission only of the paragraph allowing bombardment by way of reprisals.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, April 2 (1904).

The "Hague Conference" and "Hague Convention" to which reference was made in the last of these letters were, of course, those of 1899.

For the action taken by the Inst.i.tut de Droit International in 1895 and 1896, on the initiative of the present writer, see the _Annuaire de l'Inst.i.tut_, t. xiv p. 295, t. xv. pp. 145-151, 309, 317; and his _Studies in International Law_, pp. 106-111.

See also, at p. 104 of the same work, an opinion given by him to the Chevalier Tindal as to the liability of The Hague to be bombarded.

The later growth of opinion has been in accordance with the views maintained by the writer of these letters, and with the _Rapport_ drafted by him for the Inst.i.tut. The Hague Conference of 1899, though unable to discuss the subject, had registered a _vaeu_ "that the proposal to regulate the question of the bombardment of ports, towns and villages by a naval force may be referred for examination to a future Conference." See _Parl.

Paper, Miscell._ No. 1 (1889), pp. 139, 146, 162, 165, 258, 283. At the Conference of 1907 a Convention, No. ix., was accordingly signed and generally ratified, notably by Germany and Great Britain, Art. 1 of which prohibits "the bombardment by naval forces of ports towns, villages, houses, or buildings which are not defended," Germany, France, Great Britain and j.a.pan dissenting from the second paragraph of this article, which explains that a place is not to be considered to be defended merely because it is protected by submarine contact-mines. Bombardment is, however, permitted, by Art. 2, of places which are, in fact, military or naval bases, and, by Arts. 3 and 4, of places which refuse to comply with reasonable requisitions for food needed by the fleet, though not for refusal of money contributions. The _Acte Final_ of the Conference further registers a _vaeu_ that "the Powers should, in all cases, apply, as far as possible, to war at sea the principles of the Convention concerning the laws and customs of war on land." (_Parl. Paper, Miscell._ No. 1 (1908), p. 30.) This Convention, No. iv. of 1907, in Art. 25 of the _Reglement_ annexed to it, lays down that "the attack or bombardment, by whatsoever means, of towns, villages, habitations, or buildings which are not defended is prohibited."

The British Government had, in 1907, so far departed from the Admiralty views of 1888 as to instruct their delegates to the Conference of that year to the effect that "the Government consider that the objection, on humanitarian grounds, to the bombardment of unfortified towns is too strong to justify a resort to that measure, even though it may be permissible under the abstract doctrines of international law [?]. They wish it, however, to be clearly understood that any general prohibition of such practice must not be held to apply to such operations as the bombardment of towns or places used as bases or storehouses of naval or military equipment or supply, or ports containing fighting ships, and that the landing of troops, or anything partaking of the character of a military or naval operation, is also not covered."

It is hardly necessary to chronicle the indignation aroused by the raids upon undefended coast towns carried out by German cruisers during the war of 1914, in violation of modern International Law and notwithstanding the German ratification of Convention No. ix. of 1907.

SECTION 15

_Belligerent Reprisals_

REPRISALS

Sir,--The controversy as to the legitimacy of the recent attack on Freiburg tends to stray into irrelevancies. If the attack was made upon barracks or troop trains no one would surely criticise what is of everyday occurrence, although not unlikely to cause incidentally death or injury to innocent persons. There seems, however, to be no reason for supposing that such military objects were in view, or that our aeroplanes were instructed to confine their activity, as far as possible, to the attainment of such objects. We must a.s.sume, for any useful discussion of the question raised, that the operation was deliberately intended to result in injury to the property and persons of civilian inhabitants, not, of course, by way of vengeance, but by way of reprisal--_i.e._ with the practical object of inducing the enemy to abstain in the future from his habitually practised illegal barbarities.

Such reprisals, as is to-day so well explained by your correspondent "Jurist," are no violations of international law. Objections might, of course, be made to them as unlikely to produce their hoped-for effect, or as repugnant to our feelings of humanity or honour. They are not illegal.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, May 4 (1917).

REPRISALS

Sir,--If my friend Sir Edward Clarke will glance again at my letter of Monday, he will, I think, cease to be surprised that it contains no answer to his censure from an ethical standpoint of our treatment of Freiburg. My object was merely to indicate the desirability of keeping the question whether acts of the kind are in violation of international law (which I answered in the negative) distinct from questions, which I catalogued, as to their practical inutility, with which some of your correspondents have occupied themselves, or their repugnancy to feelings of honour and humanity with which Sir Edward has dealt exclusively. Any discussion of political expediency or of high morals would have been beside my purpose.

It is curious that Sir Herbert Stephen should to-day speak of my letter of the 7th as a defence of the aerial bombardment of Freiburg. It neither attacked nor defended the bombardment, but, solely in the interests of clear thinking, indicated the desirability of keeping distinct the three points of view from which the topic may be regarded, viz.: (1) of international law; (2) of practical utility; (3) of morality and honour.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, May 9 (1917).

SECTION 16

_Peace_

UNDESIRABLE PEACE TALK

Sir,--There has been more than enough of premature discussion by groups of well-meaning amateurs, not unfrequently wirepulled by influences hostile to this country, with reference to the terms of the treaty of peace by which the world-war now raging will be brought to a close.

Movements of the kind have culminated in the action of a body rejoicing in the somewhat c.u.mbrous t.i.tle of the "International Central Organisation for a Durable Peace," which is inviting members of about fifty societies, of very varying degrees of competence, to a cosmopolitan meeting, to be held at Berne in December next. Lest the unwary should be beguiled into having anything to do with the plausible offer made to them that they should, there and then, a.s.sist in compiling "a scientific dossier, containing material that will be of vast importance to the diplomats who may be chosen to partic.i.p.ate in the peace congress itself," it may be worth while to call attention to the composition of the executive committee by which the invitations are issued, and to its "minimum programme."

Of the members of this committee (of thirteen), on which Great Britain is represented only by Mr. Lowes d.i.c.kenson (mistakenly described as a Cambridge Professor), and America only by Mrs. Andrews, of Boston, the best known are Professors Lammasch, of Vienna, and Schucking, of Marburg. The "minimum programme" demands, _inter alia_, "equal rights for all nations in the colonies, &c.," of the Powers; submission of all disputes to "pacific procedure," joint action by the Powers against any one of them resorting to military measures, rather than to such procedure; and that "the right of prize shall be abolished, and the freedom of the seas shall be guaranteed." The _provenance_ of this "minimum programme" is sufficiently obvious. What is likely to be the character of such a "maximum programme" as will doubtless be aimed at by the proposed gathering?