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.
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.
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.
[Enclosure]
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
[Washington,]
February 9, 1915.
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.
[Page 203]
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.
[Page 205]
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.
[Page 207]
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
. . . . . . . . . . . . . . . .
[Page 208]
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.
[Page 210]
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.
