Paris Peace Conf. 185.1/14

Major General F. J. Kernan to the Secretary of the Commission to Negotiate Peace ( Grew )

1. Herewith are two copies of a memorandum I am submitting for the American Commission to Negotiate Peace. This memorandum was drawn up by me after a conference with Mr. D. H. Miller and Major J. B. Scott, to whom I am also sending copies.

F. J. Kernan

Major General, U. S. A.

Memorandum for the American Commission to Negotiate Peace

Subject: Some suggestions àpropos of the American skeleton draft of a Peace Treaty.20

In the skeleton draft of a Peace Treaty, drawn up by direction of the American Commissioners to Negotiate Peace, the topics embraced under Sub-heads IX and X, paragraph 2, appear to justify suggestions from the undersigned. It is probable that these topics, as well as others embraced in this skeleton draft, may be brought up for consideration before the Peace Conference by the American Commissioners, even if that must not occur as a matter of certainty. Should these topics be actually taken under advisement by the Conference, it seems plain that a definite project in respect to the same should be in some respects mapped out in advance, and that this detailed work is a legitimate task for the personnel designated to assist the Commissioners in their larger work. Not knowing of any concrete propositions under Sub-heads IX and X, and on the assumption that such may not be in existence, the following suggestions are offered for such consideration as may be deemed worth while.

Sub-head IX contains four topics under the caption: “Limitation of Armaments and Budgets”, namely, (1) Military, (2) Naval, (3) Aerial, (4) Submarine. It seems quite obvious that this whole subject of “Limitation of Armaments and Budgets” is so interwoven with the other question of a “League of Nations” and so dependent thereon that no profitable treatment is possible until the larger subject, upon which this one hangs, has taken shape and has been in some definite manner agreed upon. I, therefore, pass by Sub-head IX to Sub-head X, namely, “Hague Convention and other International [Page 327] Agreements”. Under this sub-head two topics are listed, i. e., (1) Status, (2) Amendment. As The Hague Convention and other similar agreements represent an attempt at partial codification of international law, and as they deal largely with the rules that come into active operation during time of war, their present consideration with a view to revision and re-enactment is well worth serious thought. It may be argued that the rules of land and sea warfare and the rights and obligations of neutrals during a state of war will be fundamentally affected by the organization of a new agency such as the League of Nations to Insure Peace. It seems plain, however, that ordinary forethought compels us to recognize the possibility of future wars, no matter what may be the outcome of the attempt to create a League of Nations, and to take steps in the light of that forethought. International rules, as they obtain in time of peace for the government of intercourse during such times, suggest no pressing need of attention at the hands of this great Peace Conference. On the other hand, we are just emerging from the greatest war in the history of mankind where the rights and obligations of neutrals and the rules of land and sea warfare have undergone the most searching test in modern times. In this war, not only have matters hitherto subjected to rule through The Hague and similar conventions, and through the growth of customary law, been put through the fire of experience, but agencies practically unknown in former wars have been brought into play. The use of poisonous gases, bombardment from aerial machines, and the submarine are new agencies of great importance whose extensive use began with the present war and in respect to which no authoritative rules can be said to exist. In one way or another scarcely one of the old rules remains unbroken and hence their revision has become a matter of urgent necessity, a revision which would naturally include rules to cover the employment of such new agencies as this war has developed.

It may be said that the deliberate consideration of such a revision as is indicated above would require a longer time than the Peace Conference would probably have at its disposal and that therefore the wisest course would be to postpone the matter until the Peace Treaty is concluded and the world has settled back into a normal state of intercourse. Such a course, it appears to me, would throw away a vast fund of experience and an alert condition of public mind in all civilized countries, which, taken together, make the present hour extraordinarily advantageous for a full examination and recasting of the rules of land and sea warfare and the rights and obligations of neutrals. There are in Europe today men who have worked on submarines and men who have been employed in every way for their destruction; there are men who have directed the employment of [Page 328] bombing aerial machines as well as others who have actually conducted the bombardments, and also men who have knowledge of the effects of this species of warfare; similarly, there are men who have undergone life in prison camps and others who have had charge of such camps; and so throughout all the varied experiences on land and sea which this war has given rise to at all seasons of the year and in many lands scattered around the world. Whoever undertakes today the task of revision suggested in this memorandum would have all this experience, this fresh knowledge and this keen interest at his disposal. The rules have been through the crucible of war and are now plastic and ready for moulding into new and better shapes. But if several years shall have elapsed, the members gathered at a new Hague Convention will approach their task with much of this valuable experience dissipated or grown cold, the rules reset and hardened in their old forms and the public mind, turned into new channels, will have a much lessened interest in this most important matter. Again, if the time which shall elapse between the first meeting of the great Peace Conference and the signing of its final agreements should prove too short for a complete and satisfactory revision, which would form a part or an appendix to the Treaty of Peace, the work done in this direction would not be lost but would be a valuable aid to any future conventions which may take up the subject matter. For these reasons, I am convinced that the time is most opportune for undertaking the task indicated above, and assuming that this may be done, a procedure somewhat as follows is suggested as one which might produce good results.

Let each of the Delegations of the great powers represented at this Peace Conference appoint a committee with instructions to codify the rules of warfare on land and sea and the rights and obligations of neutrals in war times. Such a committee should be made up of a carefully selected personnel representing men learned in international law in all its aspects, and of Officers of the Army and of the Navy, and should be sufficiently large to break up into sub-committees, each of these to deal with the several branches into which the whole subject matter may naturally divide. We should thus have the matter considered simultaneously by committees representing the United States, Great Britain, France, Japan and Italy. Their completed work would, by each committee, be submitted to its proper Peace Delegation, and the latter might then refer the several schemes thus produced to a new committee, made up substantially upon the lines of the original committees, except that upon this final committee would be representatives of each of the Great Powers concerned and the completed work of this composite committee would be submitted to the Conference as a whole for adoption, rejection, or modification, as might be well.

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If it is objected that such a course in the time probably at the disposal of the Peace Conference would result in an imperfect agreement or code, it may be answered that much would be embodied therein of future value and as no finality attaches to this any more than to any other international agreement, the weak points could be detected at leisure and future Hague Conferences could, in the calmer atmosphere of peace, make such modifications as time and reflection would seem to justify.

If these suggestions commend themselves at all it may be added that no time should be lost in getting to work and that every means at the disposal of each of the concerned powers should be placed at the disposal of the several committees. Moreover, a like procedure upon other subject matters might be profitable, always supposing that satisfactory concrete projects have not already been evolved. For example, where it appears as inevitable, or probable, that boundaries as they existed before the outbreak of the war will have to be changed, committees of experts might be formed to study the just location of new boundaries taking into account the political, historical, economical, strategical and ethnological factors of each problem. And so of the League of Nations if, as yet, the American Commissioner’s propositions have not been reduced to precise terms.

F. J. Kernan

Major General, U. S. Army
  1. Ante, p. 298.