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Some Questions of International Law in the European War1

Published online by Cambridge University Press:  06 June 2017

James W. Garner
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Extract

On February 4, 1915, the German Admiralty published the following decree:

The waters around Great Britain, including the whole of the English Channel, are declared hereby to be included within the zone of war, and after the 18th inst. all enemy merchant vessels encountered in these waters will be destroyed, even if it may not be possible always to save their crews and passengers.

Within this war zone neutral vessels are exposed to danger, since, in view of the misuse of the neutral flags ordered by the Government of Great Britain on the 31st ult. and of the hazards of naval warfare, neutral vessels cannot always be prevented from suffering from the attacks intended for enemy ships.

The route of navigation around the north of the Shetland Islands, in the eastern part of the North Sea, and in a strip thirty miles wide along the Dutch Coast are not open to the danger zone.

Type
Research Article
Information
American Journal of International Law , Volume 9 , Issue 3 , July 1915 , pp. 594 - 626
Copyright
Copyright © American Society of International Law 1915

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Footnotes

1

Continued from the January and April numbers of this Journal.

References

2 See on this point the author’s article in the January number of this Journal, pp. 89–90.

3 The only reported case of the kind was the hoisting of the American flag by the Lusitania on two occasions in February, for the purpose of deceiving the commanders of German submarines that lay in wait for the British liner while she was traversing the German war zone on her way to and from Liverpool.

4 More detailed treatment of this question is reserved for a later paper.

5 The German Government, however, subsequently altered the rules of the Declaration of London in consequence of the “refusal of the British Government to observe the Declaration in its entirety.”

6 See on this point the author’s article in the April number of this Journal.

7 The measure here referred to was an Order in Council of March 11th, virtually establishing a blockade of Germany. It was not described as a blockade in the Order in Council, but in Sir Edward Grey’s memorandum summarized above it was so designated. Consideration of this order is reserved for a future article dealing with blockades.

8 On May 18th the Secretary of the British Admiralty stated that “the number of persons of all nationalities killed in connection with the sinking by the Germans of 460, 628 tons of British merchant and fishing vessels was approximately 1556. On the other hand, no enemy or neutral subject had lost his life in consequence of the destruction by the English of enemy merchant vessels. Moreover British warships had saved from drowning more than 1200 members of the crews of German warships destroyed, whereas no members of British crews had been saved by the Germans.”

9 See the London Weekly Times of April 2d and the Literary Digest of April 10th.

10 “Possibly,” adds a German writer in the Fatherland of April 3d, “the captain’s action was inspired by the treacherous tactics of the English Admiralty, which, contrary to international law, attempts to turn all merchantmen into men of war, arms them with guns and advises them to forestall attack by ramming the enemy. One hundred and eleven people have paid toll for this advice. May the Olympic profit by this example! Meanwhile our advice to Americans is to eschew British ships.”

Dr. Dernburg, in defense of the act, said: “We gave ample warning that every English ship plying to or from a British port after March 18th was going to be torpedoed, with only such warning as the necessities of the case permitted. To venture into the English war zone is like going into a house that is burning. Americans who wish to keep out of harm’s way might patronize the American flag.”

11 Two other cases which excited more than usual indignation, were the torpedoing of the British steamer Ptarmigan on April 14th without warning, in consequence of which only eight of the crew were saved, and the destruction of the French steamer Emma in the latter part of the same month. On account of the short time allowed for lowering the life boats, only two members of the crew of the Emma are reported to have escaped.

12 Shortly after the sinking of the Lusitania it was reported that attempts were made by German submarines to sink the Transylvania and the Megantic, both British liners, with a large number of passengers on board. On July 9 the Cunard liner Orduna with 227 passengers including 22 Americans was attacked without warning by a German submarine. On account of the superior speed of the ship it escaped, though narrowly, destruction. It was quite clear from these attacks that the German Government had no intention of abandoning the practice against which the American Government had protested.

13 The destruction of the American sailing vessel William P. Frye by a German cruiser, on the ground that it was carrying contraband to England, will be discussed in another paper.

14 Higgins, The Hague Peace Conference, p. 105; see also Westlake, International Law, Vol. II, pp. 133–138, Oppenheim II, p. 193, and Dupuis, pp. 206–212, where the subject is fully discussed.

15 See the opinion of Justice Gray in the case of the Paquette Habana (1899), 175 U. S. 677, and Scott’s cases, p. 19; also the opinion of Lord Stowell in the Young Jacob Johanna, 1 Rob. 20.

16 International Law, p. 451.

17 In the early part of the present war a British prize court upheld the legality of the capture of the Berlin, a German vessel engaged in deep sea fishing. It was not, said the court, entitled to the immunity allowed ships engaged in coast fishing.

18 During the present war the German Government lodged a protest with the American Ambassador at Berlin against the seizure by a British cruiser of the German ship Paklal, engaged in conveying women and children from Tsing-Tau, the German port of concession in Shantung, to Tien Tsin. The German Government contended that the Paklal was engaged in a “humanitarian” mission and its capture was therefore a violation of the above mentioned provision of The Hague Convention. The British Government replied that the conveyance by the Paklat of women and children from a fortress about to be beseiged was not a “philanthropic” mission within the meaning of Article 4 of The Hague convention and that the question must be submitted to a prize court for determination. Sir Edward Grey also called attention to the case of the French refugee ship Amiral Gauteume, which was torpedoed by a German Submarine in the English Channel “in violation of the laws of humanity.” The German Government could not, therefore, claim the right to torpedo a French merchant ship engaged in the transportation of refugees and at the same time protest against the capture and trial by a prize court of a German ship while on a similar errand. In May of the present year a British prize court condemned the Ophelia, a German vessel which was alleged to have been fitted out as a hospital ship. When first sighted it was not flying the Red Cross flag, but when a British submarine began pursuit the Red Cross flag was hoisted and the ship put on full steam and attempted to escape. An inspection of the ship revealed the fact that it had no accommodations for nurses and was unsuited for a hospital. Before it was boarded by the searching officers the German commander threw overboard the papers. The court held that it was an auxiliary naval vessel masquerading under false colors.

19 Compare the letter of instructions of Sir Edward Grey to Lord Desart, president of the British delegation to the International Naval Conference of 1908–09, Proceedings of the Conference, House of Commons Sessional Papers, Vol. 54, Misc. No. 4 (1909), p. 28.

20 Law of Private Property in War on Land and Sea, p. 93; see also Lawrence, Principles of International Law (4th. ed.), p. 483.

21 International Law, Sec. 148.

22 Le Droit International Codifié (Lardy), Sec. 672.

23 Droit International, Sec. 138.

24 Internationale öffentliche Seerecht der Gegenwart, p. 299.

25 Lea Lois de la Neutralité, Vol. II, p. 531.

26 Le Droit de la Guerre Maritime, p. 369.

27 The Felicity (1814), 2 Dodson’s Admiralty Reports, 381.

28 The Leucade (1855), Spinks Admiralty Reports, 221; see also the American case of Jecker v. Montgomery (1851), 13 How. 498.

29 See the texts in International Law Situations for 1905, pp. 64–67; for 1907, pp. 77–79.

30 Moore’s Digest of International Law, Vol. III, pp. 516–517.

31 Hall, op. cit., p. 547.

32 The extraordinary success with which these instructions were carried out is interestingly told in his Service Afloat During the War Between the States (Baltimore, 1887). See pp. 385–386 for his justification of the right to destroy enemy vessels. His own acts, he asserts, were far less open to objection than the destruction of British merchant vessels by John Paul Jones, since every American port was open to Jones, whereas there was not a single port into which he could take a prize. He sent some prizes to Cuba and Venezuela but they were “handed over to the enemy.” “Unlike Jones,” he says, “I had no alternative. There was nothing left for me to do but destroy my prizes, and this course had been forced upon me by the nations of the earth.”

33 Bonfils, Droit International Public, sec. 1415. Apparently von Liszt considers the destruction of the German merchant ships in 1870 by the French as a violation of international law. See his Das Völkerrecht, p. 351.

34 Takahashi, International Law Applied to the Russo-Japanese War, pp. 275–330. According to Takahashi, 21 of the 24 Japanese ships captured by the Russians were destroyed.

35 Benton, International Law and Diplomacy of the Spanish-American War, p. 178. This act was criticised by Lefur in the Revue de Droit Int. Pub., Vol. V, p. 809, as unjustifiable. The United States authorities, however, claimed that the ships were transports.

36 International Law, p. 457. Compare also Lawrence, Principles of International Law, p. 406.

37 Most neutral states now forbid belligerents to bring their prizes into their ports (For examples of such regulations, see International Law Situations, 1907, pp. 76–77). The Hague convention in respect to neutral rights and duties in maritime war forbids the setting up of prize courts by belligerents in neutral territory (Art. 4) and the bringing of prizes into neutral ports, subject to a few exceptions (Art. 21). The effect is to make resort to “quarter deck” courts and the destruction of prizes a practical necessity in the case of a belligerent whose own ports are closed by a blockade or otherwise. The wisdom of the provision may well be doubted.

38 Valois, Germany as a Naval Power, p. 57, calls attention to the fact that in a possible war between Germany and England, the German cruisers would have scarcely any chance of bringing their prizes in, and they would therefore be forced to destroy them. “The German zones of protection lie too far away from a probable theatre of maritime warfare. The prizes we took would thus be generally recaptured from us by the English on the way to a German port. On the other hand, England, by a deliberate policy has for hundreds of years acquired colonies everywhere and can easily carry the prizes into one of its numerous ports.”

39 Compare on this point, Hall, op. cit., 459; Bentwich, Law of Private Property in War on Land and Sea, p. 94; Lawrence, op. cit., p. 483, and Risley, Law of War, p. 149. Semmes, in defending the right to destroy without adjudication, remarks that “the enemy has no right to adjudication at all. Courts of admiralty are not established for him. He has and can have no standing in such courts. He cannot even enter an appearance there, either in person, or by attorney; and if he could, he would have nothing to show, for his very status as an enemy would be sufficient ground for condemning all the property he might claim. It is only neutrals who can claim adjudication, and it is for their benefit alone that courts of admiralty have been established,” Service Afloat, p. 387.

40 This is the identical language of Article 50 of the United States Naval Code of 1900.

41 Takahashi, International Law During the Chino-Japanese War, p. 183.

42 For a summary of the prize regulations of various states so far as they relate to destruction of enemy vessels, see International Law Situations, 1905, pp. 64–67, 1907, pp. 76–80. See also Moore’s Digest, Vol. VII, pp. 518–519. For other cases than those mentioned above in which the right of destruction is claimed, see Wehberg, Capture in War on Land and Sea, pp. 94–95.

43 Letter to the London Times, August 1, 1904.

44 War and the Private Citizen, p. 78. See also his, The Declaration of London, p. 98. “The generally observed rule in regard to the destruction of an enemy’s vessel is ‘an enemy ship can be destroyed only after her crew has been placed in safety.’” (International Law Situations, 1905, p. 73). “Passengers and equipage,” says Dupuis, (Droit de la Guerre Maritime, p. 369), “must before destruction of the ship be put aboard the captor vessel.”

45 Commerce in War, p. 529.

46 See the remarks of Higgins, The Hague Peace Conferences, p. 305.

47 Declaration of London, p. 98.

48 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Vol. 54, Misc. No. 5, (1909) p. 99.

49 Cf. Allen, Naval History of the American Revolution, Vol. I, pp. 121, 124.

50 Thus we read in the decision of the admiralty court in the case of the Felicity (2 Dodson, 383) that “the captain and the crew with their baggage were removed on board the cruiser and the Felicity was destroyed.”

51 “ I was very anxious to destroy this ship,” he says, “as she belonged to a Mr. Vanderbilt, of New York, an old steam boat captain who had amassed a large fortune in trade and was a bitter enemy of the South. Lucrative contracts during the war had greatly enhanced his gains, and he had ambitiously made a present of one of his steamers to the Federal Government to pursue ‘rebel pirates.’ Failing to overhaul another ship of the enemy in the few days that I had at my disposal, I released the Ariel * * * and sent her and her large number of passengers on their way rejoicing.” Service Afloat, p. 535. When he destroyed the Hatteras, a warship, “every living being in it,” he says, “was safely conveyed to the Alabama.”

52 Service Afloat, p. 131. Mr. John A. Bolles, Solicitor of the United States Navy during the Civil War, bears testimony to the truth of this statement. In an article in the Atlantic Monthly, Vol. 30, p. 150 (1872), entitled, “Why Semmes of the Alabama was not Tried,” Mr. Bolles states that he examined all the charges of cruelty brought against him and that “in not a solitary instance was there furnished a particle of proof that the ‘pirate Semmes,’ as many of my correspondents called him, had ever maltreated his captives or subjected them to needless or unavoidable hardships or deprivations.” Mr. Bolles relates that in one case it was charged that Semmes had burned a ship with all persons on board, but upon investigation he was satisfied that the charge was without foundation. Cf. also Marvin, History of the American Merchant Marine, p. 327.

53 Lawrence, War and Neutrality in the Far East, p. 40. The details regarding these and other cases of the destruction of Japanese vessels are fully narrated in Takahashi’s International Law Applied to the Russo- Japanese War, pp. 284–310.

54 For descriptions of the usual formalities observed in capturing or destroying prizes see Atherley-Jones, Commerce in War, Chapter VIII, and Wehberg, Capture in War on Land and Sea, Chapter VII.

55 War Law in Land Warfare, p. 74.

56 War and Neutrality in the Far East, p. 40. A cruiser, says Kleen, (Les Loĭs et les usages de la neutrality, Vol. II, p. 531), which does not have at its disposition the means or facilities for complying with all the conditions of a legal seizure is not a competent captor. The destruction of the Armenian on June 28th was justified because the commander refused to obey the summons to surrender and attempted to escape.

57 14 Wallace, 170 (1871).

58 Herr Carthous, a high official of the Imperial Government, in an address, a translation of which is published in the New York Times of July 13th, argues that the German methods of submarine warfare are not contrary to international law. International law, he says, is not so circumscribed that it does not admit of further “development” in consequence of new inventions and new conditions. The employment of submarines is permissible, we are told, when their use is “commanded by necessity.” “Germany’s choice lies between sinking captured merchantmen and giving up the use of submarines and employing them only against the enemy’s warships.” It is not fair, he says, to expect Germany to relinquish the use of so very effective a weapon for “general humanitarian reasons” when she is engaged in waging a war forced upon her by reckless and cruel enemies. The speciousness of this line of argument is too evident to require an extended answer. When he speaks of the “development” of international law as a consequence of new inventions he of course has in mind, not its development in any true sense of the word, but its repudiation through the abandonment of long established and humane rules of war, in order to permit methods which cannot otherwise be legally employed. His plea of military necessity is nothing less than an argument in favor of the right of a belligerent to employ any and all means without restriction for destroying the enemy, regardless of the rights of non-combatants and even of neutrals.

Throughout his whole argument there runs the usual German confusion of the right to destroy enemy merchant ships, which no one denies, with the right to destroy the lives of non-combatants and neutrals, a right which does not exist.

59 Les Torpilles el le Droit des Gens, in the Revue de Droit Maritime (1886), Vol. II, p. 75.

60 Principes du Droit des Gens, Vol. II, p. 337.

61 Traite de Droit International, Vol. III, Sec. 110.

62 “I can hardly believe,” says M. Du Pin de Saint-André, “that European nations are barbarous enough and so destitute of reason as to send against ships of commerce torpedoes which can only sink them, instead of intercepting them by cruisers which are able to take them in, to the great advantage of the captors and their nation.” La question des Torpilleurs, in the Revue des Deux Mondes, Vol. LXXV (1886), p. 880. Compare also J. Imbart de Latour, La mer Territoriale, pp. 322–323.

63 Actes et Documents de la Deuxiéme Conference de la Paix, tome III, p. 1050.