The Counselor for the Department of State (Lansing) to the Secretary of State

Dear Mr. Secretary: I submit herewith for your consideration a memorandum for a public statement by letter or otherwise relative to the criticisms which have been made of the failure of this Government, as a party to the Hague Conventions, to protest against alleged violations of those conventions by Germany.

I confess that I am by no means satisfied with the tone of the memorandum submitted. It is a cold legal statement of our position. It sounds almost brutal in that it evinces no humanitarian motives, no solicitude for the suffering. While I feel that the arguments are sound and will appeal to those who realize that a government must regulate its conduct by law even at the expense of sentiment, I am not at all sure that the average citizen, who feels abhorrence at a belligerent’s disregard of the rules of civilized warfare, will be convinced that this Government had not a right or duty to protest against such practices.

While, as you know, I have felt that the pressure of criticism was such as to require some explanation of the Government’s continued silence, I now have some doubts as to whether it is expedient. The presentation of our reasons, in spite of the fact that I have endeavored in the last few paragraphs of the statement to consider the subject from the standpoint of international justice, sounds selfish and cold-blooded. I may be supersensitive and misjudge its effect on public opinion, but I consider it my duty to express to you the uncertainty which I feel as to how far this statement will go in quieting the complaints which have been made. It is in fact possible that it may cause controversy and arouse additional criticism of the Government on the ground that it has adopted a low standard of conduct.

As to whether the need of explanation is sufficiently great to overcome the possible results I am not willing to give an opinion.

I should also direct your attention to the fact that it has seemed to me inexpedient to enter into a full discussion of the nature of the undertakings of the contracting powers in the Hague Conventions. It would require technical treatment and could not in my judgment be put in a form suitable for popular consumption. In view of the facts in each case and the treaty provisions applicable it does not seem necessary.

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I have, however, raised the question toward the close of the memorandum in order that it may not be charged that the Department considers the Hague Conventions to be joint in nature and thereby be held to have possibly admitted a legal right to protest in every case of treaty violation by a belligerent, whether or not it affects American rights.

While the several character of these Conventions can, I believe, be conclusively shown by argument as a matter of law, the practical reason for holding this position is the one emphasized. If the Conventions are joint undertakings, which must be held if the general right to protest against a violation by a belligerent can be maintained, then the nullifying articles in the Conventions apply equally to belligerents and neutrals and all the provisions become inoperative in the present war in case one or more of the belligerents has failed to ratify. In such a case (hardly a Convention is not defective in this particular) a neutral contracting power not only is deprived of a general right to protest a violation, but also loses the special right to protest if its rights or those of its nationals are impaired. Thus, nothing is to be gained by maintaining the joint nature of the agreements.

On the other hand, if the Conventions are several in nature, the nullifying articles would be construed as effective between belligerents, but as having no force in matters involving the relations between a belligerent and a neutral. Thus, by adopting this view as to the nature of the Conventions, the United States, while it would have no general right to protest, would have the special right to do so in case its rights or those of its citizens, as defined by the Conventions, were affected by a belligerent’s violation of a treaty provision.

From the point of view of expediency as well as of legality the position, that the agreements entered into at The Hague are several and not joint in nature, would conserve American neutral rights as well as relieving this Government of a duty to intervene diplomatically when the rights of other powers appear to be impaired by the breach of a Hague Convention.

Very sincerely yours,

Robert Lansing
[Page 201]

Memorandum for a Statement Relative to the Public Criticism of the Government for Its Failure, as a Party to the Hague Conventions, to Protest Against the Action of the German Military Forces in Invading Belgium, in Dropping Bombs From Aircraft, in Destroying the Cathedral of Rheims and Other Monuments of Religion, History and Art, in Using Dum-Dum Bullets and in Planting Contact Mines in the High Seas37

First. In considering the invasion of Belgium it should be pointed out that there appears to be a general failure to discriminate between neutralized states and neutral states, or to appreciate that the neutrality of the two classes is essentially different in purpose and founded upon different principles.

The neutrality of neutralized states is a matter of conventional agreement between powers who are more or less interested in preventing the state from being absorbed politically by any power, or from becoming a base of military operations or from otherwise assisting neighboring rival states. The agreement imposes a condition of permanent neutrality. It is in fact a guaranty not only by the neutralized state that it will not engage in aggressive warfare, but also by the other parties to the treaty that it will not be attacked by any of them. These restraining conditions are purely contractual and are imposed and perpetuated from without. They do not exist by virtue of the rules of international law or the customs of nations, but solely by the treaties creating them.

The neutrality of a neutral state on the other hand, is a condition which a nation other than the belligerents may assume voluntarily and regardless of treaty provisions upon the outbreak of an international war. It is optional with such a nation to join in the war or to remain neutral. If it is determined to choose an attitude of neutrality then international law imposes certain rights and duties upon it as a neutral state. But this attitude may be changed at will and the neutral may enter the war on either side. It is this optional nature of the neutrality of a neutral state that distinguishes it from the permanent neutrality of a neutralized state. It is solely with the rights and duties of a neutral state that the Hague Conventions on neutrality deal. They do not deal with the neutralization of a state or with the guaranties of the interested powers to preserve its neutralized status. Only those powers, which are by agreement mutual guarantors of the neutralization of the state have a legal right under [Page 202] the agreement to complain of its violation. To an agreement of that sort in reference to Belgium the United States is not and has not been a party. Such an agreement is a matter of European politics, a condition resulting from conflicting interests. It would manifestly be improper for this Government to complain of the violation of a treaty of neutralization, to which it was not a party.

So far, therefore, as the invasion of Belgium may be considered a breach by Germany of a guaranty to preserve the character of Belgium as a neutralized state this Government has neither the legal right nor duty to protest.

In respect to the violation of the neutrality of Belgium as a neutral state during an international war the Hague Conventions contain certain stipulations in Article 1 of Convention of 1907,38 entitled “Convention respecting the Rights and Duties of Neutral Powers and Persons in case of War,” and in Article 1 of Convention XIII, of 1907,39 entitled “Convention concerning the Rights and Duties of Neutral Powers in Naval Warfare.”

These articles read as follows:

“The territory of neutral powers is inviolable.” (Convention V, Article 1.)

“Belligerents are bound to respect the sovereign rights of neutral powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality”. (Convention XlII, Article 1.)

Article 20 of Convention V further provides:

“The provisions of the present convention do not apply except between contracting powers, and then only if all the belligerents are parties to the convention.”

It is not necessary to examine into the question as to whether these treaties were in force by virtue of all the belligerents being parties as required by Article 2 [20] of Convention V, and Article 28 of Convention XIII, for the reason that no Hague Conventions, even if they were in force, were violated by the German invasion of Belgium.

If Germany before invading the territory of Belgium, had declared war against that country, the latter would have been impressed with the character of a belligerent, to whom the provisions of Article 1 of Convention V and Article 1 of Convention XIII relative to the inviolability of neutral territory would not be applicable. In case Germany exercised this sovereign right, it could not be charged that there was a violation of neutral territory in contravention of the terms of the Hague Conventions. This was exactly what Germany did.

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The published diplomatic correspondence shows that Germany declared war by ultimatum and that a state of war actually existed between Germany and Belgium before German forces penetrated into the territory of the latter country. Following the provisions of Article 1 of Hague Convention III of 190740 that hostilities must not commence “without previous and explicit warning in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war” the German Government presented to the Belgian Government a note proposing among other things that German troops be given free passage through Belgian territory and threatening in case of refusal to treat Belgium as an enemy. Belgium declined to accede to the proposal with a full knowledge that the consequence would be war with Germany. Upon her refusal Belgium lost her neutral character and by operation of the ultimatum became a belligerent. After this status in the relations of the two countries had been reached, German forces began the invasion of Belgium and a state of war resulted.

This may have been a violation of an agreement neutralizing Belgium, but that is a question for the parties to that agreement to determine. In any case it was a declaration of war against a state previously neutral. Germany acted in full conformity with the Hague Conventions and therefore cannot be regarded as having violated them.

A belligerent is not restrained by the Hague Conventions from declaring war against a neutral state for any cause which seems to it sufficient. The Conventions do not restrict such action to any stated casus belli. A belligerent under the present international system is at liberty to seek his own casus belli and to maintain it before the world. For another neutral to protest and denounce it as unjustifiable would be to exceed the bounds of international duty and custom. A procedure for a third party in a case of this sort is, however, laid down in the Hague Conventions. Convention I of 190741 provides in Article 3 that it is expedient and desirable that “strangers to the dispute should on their own initiative and as far as circumstances may allow offer their good offices or mediation to the states at variance,” and that “the exercise of this right can never be regarded . . . as an unfriendly act.”

Although Great Britain and Servia had never ratified this Convention, yet in conformity with its provisions the Department of State on August 4th sent to Paris, Berlin, Vienna and St. Petersburg and on August 5th to London, the President’s offer to act in the interest of European peace either then or at any other suitable [Page 204] time.42 It is well known that this offer of mediation has not as yet been accepted by any of the belligerents.

It is difficult to see what further action the United States was called upon to take or could have properly taken in the situation presented at the outbreak of the war.

Second. The dropping of bombs from aircraft was prohibited by a Declaration adopted by the Second Hague Conference in 1907,43 but, as it was neither signed nor ratified by France, Germany, Russia and Servia and was signed but not ratified by Austria-Hungary, it is not in force in the present war since it provides:

“The present Declaration is only binding on the contracting powers in case of war between two or more of them.

“It shall cease to be binding from the time when, in a war between the contracting powers, one of the belligerents is joined by a non-contracting power.”

The question may be raised, however, whether the dropping of bombs from aircraft falls under the provisions of Articles 25 and 26 of Hague Convention IV of 1907,44 which read as follows:

“The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”

“The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.”

Without discussing whether or not this Convention is in force in view of the fact that Servia never having ratified it all belligerents are not parties to it, as required by Article 2, the question as to whether a town, village, dwelling or building is “not defended” within the meaning of Article 25 is one of fact, which requires conclusive evidence to establish. Some have assumed that the words “not defended” are synonymous with “unfortified,” but, in the ordinary use of language, “not defended” is a much broader term than “unfortified.”

As to Article 26 it must be determined whether the dropping of bombs from aircraft should be classed as a “bombardment” or as an “assault”. If that method of attack can be properly termed a bombardment, it must be shown affirmatively that a commander of an attacking force did not do all in his power to warn the authorities prior to a bombardment, before he can be charged with a violation of the provision. In the case of attacks by aircraft, evidence of the power to warn and of failure to do so has not been furnished.

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But, even if this evidence were furnished, it may not unreasonably be asserted that in the case of aerial offense the conditions are quite different from those attending a bombardment by land batteries; that in the former case the element of surprise is essential to success; that preliminary notice would give the enemy opportunity to send his aircraft aloft to intercept the attacking force; and that a warning under these conditions would be an unreasonable requirement. If these assertions are correct, then Article 26 was never intended to apply to an aerial attack.

There appears then to be no substantial reason to affirm that the United States, as a party to the Hague Conventions, should enter a protest against the practice of dropping aerial bombs upon places occupied by the enemy.

It may be added that, while this discussion relates to aerial operations by the German forces, the belligerents of both sides have employed this method of attack upon the enemy.

Third. The question of the violation of the rules of land warfare relative to the immunity from attack of certain buildings is raised under the following provisions in Article 27 of Convention II of the Hague Conventions of 1899:45

“In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.”

“The besieged should indicate these buildings or places by some particular and visible signs, which should previously be notified to the assailants.[”]

Similar provisions were incorporated in Convention IV of 1907,46 with the addition between the words “charity” and “hospitals” of the words “historic monuments.”

Convention II of 1899 was ratified by all the belligerents in the present war and by the United States, but Convention IV of 1907 was not ratified by Servia.

To establish a violation of the provisions quoted from Convention II of 1899, or the similar ones of Convention IV of 1907, whichever may be considered to be in force it is requisite to show (1) that certain of the class of buildings mentioned have been injured by bombardment, (2) that “all necessary steps” were not taken to spare them “as far as possible,” (3) that they were “not being used at the same time for military purposes,” and (4) that they were indicated [Page 206] “by distinctive and visible signs” which were notified to the assailant beforehand.

These four propositions, each of which is essential to substantiate a claim of violation of the treaty, have not been all established in any case brought to the attention of this Department, or does it appear that they have even been asserted by those who charge violation of the treaty stipulations.

Furthermore the meaning of “all necessary steps” and “as far as possible” is open to a latitude of interpretation by the commander of an attacking force which involves his conception of the operations necessary to military success. Deplorable as may be the destruction of a cathedral or hospital by a bombardment, the fact alone is not sufficient to constitute a breach of the Hague Convention. The other elements establishing a wanton and needless act must be conclusively shown.

It should also be added in this connection that the treaty itself determines the remedy to be applied in case of an unjustifiable destruction of buildings of the immune class, for Article 3 of Convention IV of 1907 provides:

“A belligerent party which violates the provisions of the said regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

Obviously this article contemplates an investigation of a more or less judicial nature as to the facts determining liability and the amount of damages sustained. A protest by a third party would be to impute guilt and to charge liability without a full investigation of the facts.

Fourth. The bombardment of seacoast towns by the naval forces of a belligerent is dealt with in the following articles of Convention IX of 1907:47

“Article 1. The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.

A place can not be bombarded solely because automatic submarine contact mines are anchored off the harbor.”

“Article 2. Military works, military, or naval establishments, depots of arms or war matériel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed.

He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances.

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If for military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph 1, and that the commander shall take all due measures in order that the town may suffer as little harm as possible.”

“Article 6. If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities.”

This Convention was ratified by the United States and by the belligerents except Servia, Turkey and Montenegro.

Without raising the question of the nullifying effect upon the Convention of its non-ratification by these three belligerents, it may be pointed out that the word “undefended” is not an exact term, but may be variously interpreted. If a camp or barracks for troops are maintained or there is a depot for military or naval supplies it is debatable whether or not the town can be classed as “undefended” in the sense in which the word is used in the treaty.

At all events it must be shown that the port or town was undefended when bombarded or that the commander of the attacking force failed to perform his full duty in accordance with the provisions of the Convention. Thus far this Department has not been furnished with evidence establishing either of these facts, which appear necessary to make out a violation of the treaty.

Fifth. The subject of the use of expanding bullets was first treated at the Hague Conference in 1899, and a provision relative thereto was inserted in a Declaration of the Conference in the following language:

“The contracting parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.”

This Declaration was ratified or adhered to by all of the present belligerents, but it was never signed or ratified by the United States. The United States, therefore, not being a party to the Declaration, would have no duty or right to interfere in case of violation of its provisions by any of the ratifying or adhering powers.

It may be thought that Hague Convention IV of 1907 relative to the Laws and Customs of War on Land, Article 23 e, is broad enough to prohibit the use of expanding bullets. This article reads as follows:

“In addition to the prohibitions provided by special conventions, it is especially forbidden—48

. . . . . . . . . . . . . . . .

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e. To employ arms, projectiles, or material calculated to cause unnecessary suffering.”

This article is identical with Article 23e of Convention II of 1899 which was concluded at the same time as the Declaration of 1899 just quoted. It appears to be conclusive, therefore, that the two provisions relate to different matters, for otherwise it would have been unnecessary to execute two separate agreements as was done. That the agreements were regarded by the Conference as distinct is shown by the use in Article 23e of the words “In addition to the prohibitions provided by special conventions.” Corroborative of this is the fact that Great Britain did not adhere to the Declaration of 1899 until August 30, 1907, while the Hague Conference was in session and was considering Convention IV of which Article 23e is a part. The conclusion is inevitable that the prohibition of the use of expanding bullets depends upon the provisions of the Declaration of 1899 to which as already pointed out the United States is not a party.

Sixth. There is omitted from the foregoing discussion any reference to the laying of submarine contact mines on the high seas because the belligerents on both sides have apparently employed this method of naval warfare. It should, however, be pointed out that Russia neither signed nor ratified Convention VIII of 1907,49 (it was signed but not ratified by Turkey or Montenegro) which restricts the use of such mines, so that the provisions of the Convention do not apply in the present war, for by Article 7 all the belligerents must be parties to put it in operation.

Seventh. In the foregoing review of the specific provisions alleged to have been violated by Germany there is no discussion of the abstract question of the right and duty of the United States when one of the parties to The Hague Conventions mentioned to enter a protest against a violation of any of their provisions.

As to this question, which has a general application, attention should be called to the fact that the right or duty to enter a protest against a violation of a Hague Convention relating to a state of war is not affirmatively set forth in any documents signed at The Hague, and that, if that right or duty exists, it must arise from the nature of the undertaking.

As to whether the Hague Conventions are joint or several in their nature is a subject as to which opinions may differ. If they are joint in nature, the nullifying articles, which have come into operation, affect neutral powers as well as belligerents. If they are several in nature, the nullifying articles apply only to the belligerents, and the Conventions remain in full force between neutrals and belligerents. [Page 209] Furthermore, if they are joint undertakings, the legal right of protest by a neutral party in case of violation by a belligerent may possibly be presumed; but, if they are several undertakings, such right does not exist.

It seems unnecessary in view of what has been said concerning the alleged treaty violations to express an opinion upon this debatable question, which, while it enters into the legal right of protest by a party to the Hague Conventions, is far more important in its effect upon the neutral rights of the United States and its citizens secured by those Conventions.

To summarize briefly the reasons why this Government has not protested against certain alleged breaches by Germany of the provisions of the Hague Conventions:

It would be improper for the United States to protest the violation of a treaty to which it is not a party.

The Hague Conventions are in nearly every case nullified by the non-ratification of one or more of the belligerents so far as they affect the relations between belligerents.

The evidence before the Department of State is incomplete or entirely ex parte so that it fails to establish conclusively the violations alleged.

The legal right to protest against the violation of a Hague treaty by a party whose interests are not affected depends upon the nature of the undertaking, a question which is unsettled.

It is important to note, in connection with this general subject of the violation of the rules of war on land and sea, which are laid down in the Hague Conventions, that the belligerents on both sides of the great European conflict have repeatedly called to the attention of the world the disregard of their opponents for the rules of humane warfare recognized by international usage and treaty stipulations.

The frequency of these charges and the denials of the governments charged indicate the influence, which the public opinion of the world exerts upon the conduct of the belligerents, and shows their earnest desire to avoid the condemnation of civilization on the charge of inhumanity and wanton brutality.

While the conflict of evidence and the impossibility of impartial investigation at the present time prevent neutral nations from determining the truth or falsity of the charges and counter-charges, the denials and defenses, which have been made by the belligerents, and, therefore, furnish no basis for protest, the time will undoubtedly come, when these sanguinary wars are ended and when the nations now arrayed against each other are not blinded by passion in viewing the conduct of their adversaries.

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When that time comes the truth as to these charges may be conclusively shown, the reasons for acts, normally reprehensible, considered dispassionately in the light of surrounding circumstances, and the responsibility measured by the standard of international law and justice. The guilty will thus incur the odium of the civilized world and those falsely charged will be vindicated. It is this future judgment of enlightened nations which today must restrain the warring powers from inhuman practices rather than condemnations by neutral powers for charges made in the heat of conflict and based upon incomplete knowledge of all the circumstances.

Robert Lansing
  1. This paper bears the notation: “This memo. was laid before Cabinet today and it was decided not to make a statement at the present time. Robert Lansing. 2/16/15.”
  2. Malloy, Treaties, 1776–1909, vol. II, p. 2290 (Convention V).
  3. Ibid., p. 2352.
  4. Ibid., p. 2259.
  5. Ibid., p. 2220.
  6. See telegram of Aug. 4, 1914, to the Ambassador in Austria-Hungary, Foreign Relations, 1914, supp., p. 42.
  7. Malloy, Treaties, 1776–1909, vol. II, p. 2366 (Convention XIV).
  8. Annex to Convention IV, 1907, ibid., p. 2281.
  9. Convention with Respect to the Laws and Customs of War on Land, 1899. Annex ibid., p. 2048.
  10. See art. 27, Annex to Convention IV, 1907, ibid., p. 2281.
  11. Malloy, Treaties, 1776–1909, vol. II, p. 2314.
  12. The following omission indicated in the original memorandum.
  13. Malloy, Treaties, 1776–1909, vol. II, p. 2304.