The charitable view taken in the last paragraph has, of course, not been justified.
For the _Mowe_, see 2 Lloyd, 70. On the restrictive article in The Hague Convention, _cf. pa.s.sim_.
"THE PIRATES"
Sir,--Would it not be desirable, in discussing the execrable tactics of the German submarines, to abandon the employment of the terms "piracy"
and "murder," unless with a distinct understanding that they are used merely as terms of abuse?
A ship is regarded by international law as "piratical" only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (_nullius Principis auctoritate_, as Bynkershoek puts it), or wrongfully displaces the authority of her own commander.
The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade.
"Murder" is such slaying as is forbidden by the national law of the country which takes cognizance of it.
In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, being duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration. In any case, it is not for us to rival the barbarism of their Government by allowing them to drown.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, March 13 (1915)
SUBMARINE CREWS
Sir,--My letter in _The Times_ of March 15 with reference to the conduct of certain of the German submarines has been followed by a good many other letters upon the same subject. Some of your correspondents have travelled far from the question at issue into the general question of permissible reprisals, into which I have no intention of following them.
But others, by exhibiting what I may venture to describe as an _ignoratio elenchi_, have made it desirable to recall attention to the specific purport of my former letter. It was to the effect--(1) that the acts of those who, in pursuance of a Government commission, sink merchant vessels without warning are not "piracy," the essence of that offence at international law being that it is committed under no recognised authority; and that neither is it "murder" under English law; (2) that the question of the treatment appropriate to the perpetrators of such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as a general rule, that Government authority exempts all who act under it from penal consequences. The long-established treatment of spies is sufficient proof to the contrary.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, March 22 (1915).
MR. WILSON"S NOTE
Sir,--I may perhaps be permitted to endorse every word of the high praise bestowed in your leading article of this morning upon the Note addressed to Germany by the Government of the United States. The frequent mentions which it contains of "American ships," "American citizens," and the like, were, no doubt, natural and necessary, as establishing the _locus standi_ of that Government in the controversy which it is carrying on. But we find also in the Note matters of even more transcendent interest, relating to the hitherto universally accepted doctrines of international law, applicable to the treatment of enemy as well as of neutral vessels.
It may suffice to cite the paragraph which a.s.sumes as indisputable
"the rule that the lives of non-combatants, whether they be of neutral citizenship or citizens of one of the nations at war, cannot lawfully or rightfully be put in jeopardy by the capture or destruction of unarmed merchantmen,"
as also
"the obligation to take the usual precaution of visit and search to ascertain whether a suspected merchantman is in fact of belligerent nationality, or is in fact carrying contraband under a neutral flag."
[I a.s.sume that the word "unarmed" here does not exclude the case of a vessel carrying arms solely for defence.]
The Note also recognises, what you some time ago allowed me to point out,
"the practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice, and humanity which modern opinion regards as imperative."
Adding:--
"It is practically impossible for them to make a prize of her, and if they cannot put a prize crew on board, they cannot sink her without leaving her crew and all on board her to the mercy of the sea in her small boats."
Nothing could be more satisfactory than the views thus authoritatively put forth, first as to the applicable law, and secondly as to the means by which its prescriptions can be carried out.
I am, Sir, your obedient servant, T. E. HOLLAND.
Brighton, May 15 (1915).
_Cf. supra_, p. 70.
SECTION 6
_Lawful Belligerents_
GUERILLA WARFARE
Sir,--When Mr. Balfour last night quoted certain articles of the "Instructions for the Government of Armies of the United States in the Field" with reference to guerilla warfare, some observations were made, and questions put, upon which you will perhaps allow me to say a word or two.
1. Mr. Healy seemed to think that something turned upon the date (May, 1898) at which these articles were promulgated. In point of fact they were a mere reissue of articles drawn by the well-known jurist Francis Lieber, and, after revision by a military board, issued in April, 1868 by President Lincoln.
2. To Mr. Morley"s enquiry, "Have we no rules of our own?" the answer must be in the negative. The traditional policy of our War Office has been to "trust to the good sense of the British officer." This policy, though surprisingly justified by results, is so opposed to modern practice and opinion that, as far back as 1878-80, I endeavoured, without success, to induce the Office to issue to the Army some authoritative, though simple, body of instructions such as have been issued on the Continent of Europe and in America. The War Office was, however, content to include in its "Manual of Military Law," published in 1888, a chapter which is avowedly unauthoritative, and expressly stated to contain only "the opinions of the compiler, as drawn from the authorities cited."
3. The answer to Sir William Harcourt"s unanswered question, "Were there no rules settled at the Hague?" must be as follows. The Hague Convention of 1899, upon "the laws and customs of warfare," ratified by this country on September 4 last, binds the contracting parties to give to their respective armies instructions in conformity with the _Reglement_ annexed to the Convention. This _Reglement_, which is substantially a reproduction of the unratified _projet_ of the Brussels Conference of 1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt highly desirable that, as soon as may be, the drafting of rules in accordance with the _Reglement_ should be seriously taken in hand, our Government having now abandoned its _non possumus_ att.i.tude in the matter. It will, however, be found to be the case, as was pointed out by Mr. Balfour, that the sharp distinction between combatants and non-combatants contemplated by the ordinary laws of war is inapplicable (without the exercise of undue severity) to operations such as those now being carried out in South Africa.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, December 7 (1900).
"Lieber"s Instructions," issued in 1863 and reissued in 1898, will doubtless be superseded, or modified, in consequence of the United States having, on April 9, 1902, ratified the Convention of 1899, and on March 10, 1908, that of 1907, as to the Laws and Customs of War on Land.
The answer to Mr. Morley"s enquiry in 1900 would not now be in the negative. The present writer"s representations resulted in Mr. Brodrick, when Secretary for War, commissioning him to prepare a Handbook of the _Laws and Customs of War on Land_, which was issued to the Army by authority in 1904. On the instructions issued by other National Governments, see the author"s _Laws of War on Land_, 1908, pp. 71-73.
The answer, given in the letter, to Sir William Harcourt"s question must now be supplemented by a reference to the Handbook above mentioned as having contained rules founded upon the _Reglement_ annexed to the Convention of 1899, and by a statement that that Convention, with its _Reglement_, is now superseded by Conventions No. iv. (with its _Reglement_) and No. v. of 1907, of which account has been taken in a new Handbook upon _Land Warfare_, issued by the War Office in 1913.
As to what is required from a lawful belligerent, see Arts. 1 and 2 of the _Reglement_ of 1899, practically repeated in that of 1907. The substance of Art. 1 is set out in the letter which follows.
Art. 2 grants some indulgence to "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 organise themselves in accordance with Art. 1." _Cf. infra_, pp. 76, 79.
THE RUSSIAN USE OF CHINESE CLOTHING
Sir,--If Russian troops have actually attacked while disguised in Chinese costume, they have certainly violated the laws of war. It may, however, be worth while, to point out that the case is not covered, as might be inferred from the telegram forwarded to you from Tokio on Wednesday last, by the text of Art. 23 (_f_) of the _Reglement_ annexed to The Hague Convention "on the laws and customs of war on land." This article merely prohibits "making improper use of the flag of truce, of the national flag or the military distinguishing marks and the uniform of the enemy, as well as of the distinguishing signs of the Geneva Convention."
Art. 1 of the _Reglement_ is more nearly in point, insisting, as it does, that even bodies not belonging to the regular army, which, it is a.s.sumed, would be in uniform (except in the case of a hasty rising to resist invasion), shall, in order to be treated as "lawful belligerents," satisfy the following requirements, viz.:--
"(1) That of being commanded by a person responsible for his subordinates;