"(2) That of having a distinctive mark, recognisable at a distance;
"(3) That of carrying their arms openly; and
"(4) That of conducting their operations in accordance with the laws and customs of war."
The fact that, in special circ.u.mstances, as in the Boer war, marks in the nature of uniform have not been insisted upon, has, of course, no bearing upon the complaint now made by the j.a.panese Government.
All signatories of The Hague Convention are bound to issue to their troops instructions in conformity with the _Reglement_ annexed to it.
The only countries which, so far as I am aware, have as yet fulfilled their obligations in this respect are Italy, which has circulated the French text of the _Reglement_ without comment; Russia, which has prepared a little pamphlet of sixteen pages for the use of its armies in the Far East; and Great Britain, which has issued a Handbook, containing explanatory and supplementary matter, besides the text of the relevant diplomatic Acts.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, October 21 (1904).
THE RIGHTS OF ARMED CIVILIANS
Sir,--It is interesting to be reminded by Sir Edward Ridley of the view taken by Sir Walter Scott of the right and duty of civilians to defend themselves against an invading enemy. International law is, however, made neither by the ruling of an "impartial historian," on the one hand, nor by the _ipse dixit_ of an Emperor, on the other.
In point of fact, the question raised by Sir Edward is not an open one, and, even in our own favoured country, it is most desirable that every one should know exactly how matters stand. The universally accepted rules as to the persons who alone can claim to act with impunity as belligerents are set forth in that well-known "sc.r.a.p of paper" The Hague Convention No. iv. of 1907; to the effect that members of "an army" (in which term militia and bodies of volunteers are included) must (1) be responsibly commanded, (2) bear distinctive marks, visible at a distance, (3) carry their arms openly, and (4) conform to the laws of war. By way of concession, inhabitants of a district not yet "occupied"
who spontaneously rise to resist invasion, without having had time to become organised, will be privileged if they conform to requirements (3) and (4). These rules are practically a republication of those of The Hague Convention of 1899, which again were founded upon the recommendations of the Brussels Conference of 1874, although, at the Conference, Baron Lambermont regretted that "si les citoyens doivent etre conduits au supplice pour avoir tente de defendre leur pays, au peril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel ils seront fusilles, l"article d"un Traite signe par leur propre gouvernement qui d"avance les cond.a.m.nait a mort."
_An Englishman"s Home_ was a play accurately representing the accepted practice, shocking as it must be. I remember the strength of an epithet which was launched from the gallery at the German officer on his ordering the shooting of the offending householder. It may be hardly necessary to add that nothing in international usage justifies execution of innocent wives and children.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, September 17 (1914).
This letter was, it seems, perverted in the _Kreuz Zeitung_.
CIVILIANS IN WARFARE
THE RIGHT TO TAKE UP ARMS
Sir,--I have read with some surprise so much of Sir Ronald Ross"s letter of to-day as states that "the issue still remains dark" as to the right of civilians to bear arms in case of invasion. It has long been settled that non-molestation of civilians by an invader is only possible upon the understanding that they abstain from acts of violence against him.
Modern written international law has defined, with increasing liberality, by the draft Declaration of 1874 and the Conventions of 1899 and 1907, the persons who will be treated as lawful belligerents. Art. 1 of The Hague Regulations of 1907 recognises as such, not only the regular army, but also militia and volunteers. Art. 2 grants indulgence to a _levee en ma.s.se_ of "la population" (officially mistranslated "the inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir Ronald, has no bearing upon the question.
The rules are, I submit, as clear as they could well be made, and are decisive against the legality of resistance by individual civilians, the sad, but inevitable consequence of which was, as I pointed out in _The Times_ of September 19 last, truthfully represented on the stage in _An Englishman"s Home_.
In the same letter I wrote that "even in our own favoured country it is most desirable that every one should know exactly how matters stand."
There are, however, obvious objections, possibly not insuperable, to this result being brought about, as is proposed by Sir Ronald Ross, by Government action.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, October 26 (1914).
CIVILIANS AND A RAID
Sir,--It is satisfactory to learn, from Mr. McKenna"s answer to a question last night, that the duty of the civilian population, at any rate in certain counties, is engaging the attention of Government. I confess, however, to having read with surprise Mr. Tennant"s announcement that "it was provided by The Hague Convention that the wearing of a bra.s.sard ensured that the wearer would be regarded as a belligerent." It ought surely to be now generally known that, among the four conditions imposed by the Convention upon Militia and bodies of Volunteers, in order to their being treated as belligerents, the third is "that they shall bear a distinctive mark, fixed and recognisable at a distance." Whether an enemy would accept the mere wearing of a bra.s.sard as fulfilling this condition is perhaps an open question upon which some light may be thrown by the controversies of 1871 with reference to _francs-tireurs_.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, November 24 (1914).
MISS CAVELL"S CASE
Sir,--The world-wide abhorrence of the execution of Miss Cavell, aggravated as it was by the indecent and stealthy haste with which it was carried out, is in no need of enhancement by questionable arguments, such as, I venture to say, are those addressed to you by Sir James Swettenham.
It is, of course, the case that Germany is in Belgium only as the result of her deliberate violation of solemnly contracted treaties, but she is in military "occupation" of the territory. From such "occupation" it cannot be disputed that there flow certain rights of self-defence. No one, for instance, would have complained of her stern repression of civilian attacks upon her troops, so long as it was confined to actual offenders. The pa.s.sages quoted by Sir James from Hague Convention v., and from the _Kriegsbrauch_, relate entirely to the rights and duties of Governments, and have no bearing upon the tragical abuse of jurisdiction which is occupying the minds of all of us.
May I take this opportunity of calling attention to the fresh evidence afforded by the new Order in Council of our good fortune in not being bound by the Declaration of London, which erroneously professed to "correspond in substance with the generally recognised principles of International Law"? Is it too late, even now, to announce, by a comprehensive Order in Council, any relaxations which we and our Allies think proper to make of well-established rules of Prize Law, without any reference to the more and more discredited provisions of the Declaration, the partial and provisional adoption of which seems, at the outbreak of the war, to have been thought likely to save trouble?
Your obedient servant, T. E. HOLLAND.
Oxford, October 26 (1915).
SECTION 7
_Privateering_
The three letters which immediately follow were written to point out that neither belligerent in the war of 1898 was under any obligation not to employ privateers. Within, however, a few days after the date of the second of these letters, both the United States and Spain, though both still to be reckoned among the few powers which had not acceded to the Declaration of Paris, announced their intention to conduct the war in accordance with the rules laid down by the Declaration.
Art. 3 of the Spanish Royal Decree of April 23 was to the effect that "notwithstanding that Spain is not bound by the Declaration signed in Paris on April 16, 1856, as she expressly stated her wish not to adhere to it, my Government, guided by the principles of international law, intends to observe, and hereby orders that the following regulations for maritime law be observed," viz. Arts. 2, 3, and 4 of the Declaration, after setting out which, the Decree proceeds to state that the Government, while maintaining "their right to issue letters of marque, ... will organise, for the present, a service of auxiliary cruisers ... subject to the statutes and jurisdiction of the Navy."
The Proclamation of the President of the United States of April 26 recited the desirability of the war being "conducted upon principles in harmony with the present views of nations, and sanctioned by their recent practice," and that it "has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules of the Declaration of Paris," and goes on to adopt rules 2, 3, and 4 of the Declaration.
Ten years afterwards, viz. on January 18, 1908, Spain signified "her entire and definitive adhesion to the four clauses contained in the Declaration," undertaking scrupulously to conduct herself accordingly. Mexico followed suit on February 13, 1909. The United States are therefore now the only important Power which has not formally bound itself not to employ privateers. It seems unlikely that privateers, in the old sense of the term, will be much heard of in the future, though many questions may arise as to "volunteer navies" and subsidised liners, such as those touched upon in the last section, with reference to captures made by the _Malacca_; possibly also as to ships "converted" on the High Seas.
OUR MERCANTILE MARINE IN WAR TIME
Sir,--There can be no doubt that serious loss would be occasioned to British commerce by a war between the United States and Spain in which either of those Powers should exercise its right of employing privateers or of confiscating enemy goods in neutral bottoms.
Before, however, adopting the measures recommended, with a view to the prevention of this loss, by Sir George Baden-Powell in your issue of this morning, it would be desirable to enquire how far they would be in accordance with international law, and what would be the net amount of the relief which they would afford.
It is hardly necessary to say that non-compliance with the provisions of the Declaration of Paris by a non-signatory carries with it none of the consequences of a breach of the law of nations. The framers of that somewhat hastily conceived attempt to engraft a paper amendment upon the slowly matured product of oec.u.menical opinion, far from professing to make general law, expressly state that the Declaration "shall not be binding except upon those Powers who have acceded, or shall accede, to it." As regards Spain and the United States the Declaration is _res inter alios acta_.
It follows that, in recommending that any action taken by privateers against British vessels should be treated as an act of piracy, Sir George Baden-Powell is advocating an inadmissible atrocity, which derives no countenance from the view theoretically maintained by the United States, at the outset of the Civil War, of the illegality of commissions granted by the Southern Confederation. His recommendation that our ports should be "closed" to privateers is not very intelligible. Privateers would, of course, be placed under the restrictions which were imposed in 1870, in accordance with Lord Granville"s instructions, even on the men-of-war of belligerents. They would be forbidden to bring in prizes, to stay more than twenty-four hours, to leave within twenty-four hours of the start of a ship of the other belligerent, to take more coal than enough to carry them to the nearest home port, and to take any further supply of coal within three months. We might, no doubt, carry discouragement of privateers by so much further as to make refusal of coal absolute in their case, but hardly so far as to deny entry to them under stress of weather.
The difficulties in the way of accepting Sir G. Baden-Powell"s other suggestion are of a different order. Although we could not complain of the confiscation by either of the supposed belligerents of enemy property found in British vessels, as being a violation of international duty, we might, at our own proper peril, announce that we should treat such confiscation as "an act of war." International law has long abandoned the attempt to define a "just cause of war." That must be left to the appreciation of the nations concerned. So to announce would be, in effect, to say: "Although by acting as you propose you would violate no rule, yet the consequences would be so injurious to me that I should throw my sword into the opposite scale." We should be acting in the spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of so doing depends, first, upon the extent to which the success of our action would obviate the mischief against which it would be directed; and, secondly, upon the likelihood that the benefit which could be obtained only by imposing a new rule of international law _in invitos_ would counterbalance the odium incurred by its imposition. On the former question it may be worth while to remind the mercantile community that, even under the Declaration of Paris, neutral trade must inevitably be put to much inconvenience. Any merchant vessel may be stopped with a view to the verification of her national character, of which the flag is no conclusive evidence. She is further liable to be visited and searched on suspicion of being engaged in the carriage of contraband, or of enemy military persons, or of despatches, or in running a blockade. Should the commander of the visiting cruiser "have probable cause" for suspecting any of these things, though the vessel is in fact innocent of them, he is justified in putting a prize crew on board and sending her into port, with a view to the inst.i.tution of proceedings against her in a prize Court. A non-signatory of the Declaration of Paris may investigate and penalise, in addition to the above-mentioned list of offences, the carriage of enemy goods. This is, no doubt, by far the most important branch of the trade which is carried on for belligerents by neutrals, but it must not be forgotten that even were this branch of trade universally indulged, in accordance with the Declaration of Paris neutral commerce would still remain liable to infinite annoyance from visit and search, with its possible sequel in a prize Court.
The question of the balance between benefit to be gained and odium to be incurred by insisting upon freedom to carry the goods of belligerents I leave to the politicians.
I am, Sir, your obedient servant, T. E. HOLLAND.
The Athenaeum, April 16 (1898).
OUR MERCANTILE MARINE IN WAR TIME