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diff --git a/old/51646-0.txt b/old/51646-0.txt deleted file mode 100644 index ac324ea..0000000 --- a/old/51646-0.txt +++ /dev/null @@ -1,6225 +0,0 @@ -Project Gutenberg's The War Book of the German General Staff, by J. H. Morgan - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The War Book of the German General Staff - Being "The Usages of War on Land" Issued by the Great General Staff of - -Author: J. H. Morgan - -Release Date: April 3, 2016 [EBook #51646] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK WAR BOOK OF GERMAN GENERAL STAFF *** - - - - -Produced by Brian Coe, Charlie Howard, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive/American Libraries.) - - - - - - - - - - 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 bear -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”. - - - - - -End of the Project Gutenberg EBook of The War Book of the German General -Staff, by J. 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