THE MACHINERY FOR PEACE
It is understandable that Germany and Great Britain should consider their armies, their battleships, dreadnoughts, super-dreadnoughts, and invincibles as constituting the chief machinery for peace. In celebrating the twenty-fifth anniversary of his accession to the imperial throne the Kaiser was hailed as "the true and central factor of the past peaceful policy of Germany." These were Lord Blyth's words, in recognizing the avowed policy of the Emperor to preserve peace through the utmost practicable preparation for war; and ex-President Taft, who would refer to arbitrators even questions of national honor, spoke of this apologist of arming for conflict between nations as the "greatest single individual force in the practical maintenance of the peace of the world." The Kaiser's silver jubilee was the signal for unstinted acknowledgment by the leading men of the world that His Majesty's policy had preserved the peace of the German Empire for a generation. In its exterior relations Germany had looked too terrible to encounter, and the romantic, warlike spirit that distinguishes the Teuton had found vent in the service of preparation. The young Germans, both aristocratic and bourgeois, were encouraged by every means to train, to show, to be martial, but not to fight. And it will be recalled that Germany refused to discuss the limiting of armaments at The Hague only because the Conference was not empowered to deal finally with it.
In response to the Czar's call, delegations of twenty-six Powers attended in 1899 the First Hague Conference; forty-three Powers were represented at the Second Conference in 1909. These gatherings formulated the world's opinion against many of the evils of war. Their agreements expressly forbade international bloodshed except between the actual fighting forces. They made it unlawful to sack cities, to take or destroy private property on land, or to menace the peace and safety of non-combatants. Those who observe that the nations have not yet agreed to do away with war overlook the fact that the non-combatant millions within belligerent nations may not be molested in lives or property, save that they must bear the war's financial burdens. With respect to most of the civilized dwellers of earth the sword is forever sheathed. Among the fighters, too, wounds are quickly bound, and quarter is expected and given.
The machinery of peace governing this world society is not complete. It provides a way of peaceful settlement of disputes by arbitration. It lacks a court such as that whose decisions, backed by police and the more potent sentiment of the people, guard the king's peace in civilized communities. But arbitration has done much to keep the peace of nations. The experience of the United States is in point. Up to the time of the Second Hague Conference Mr. John Bassett Moore finds records of more than sixty arbitrations, the tribunals sitting with overlapping terms of years that aggregate a hundred and twenty-five—exceeding in number the years of this nation's life. The total cost of these tribunals was doubtless much more than would have been the expense of an actual court kept always in session.
Before The Hague Conferences, the American Government had already been participating in what was tantamount to a permanent tribunal of arbitration. The questions adjusted were of every class, not merely pecuniary claims, but questions affecting what are called "vital interests and national honor." The case of the Creole, for instance, brought the United States and Great Britain close to war, and later, in 1842, nearly caused a rupture of the conferences between Daniel Webster and Lord Ashburton—a rupture which would almost inevitably have led to hostilities. The case came before a tribunal of arbitration in 1853, and was so quietly disposed of that the public paid no attention to the award. Then there was the negotiation of the Alabama Claims by Hamilton Fish. Lord John Russell answered our proposal to Great Britain, that it involved the honor of Her Majesty's Government, of which it alone was guardian, and the claims were not subject to arbitration. After being examined and critically formulated, they were eight years later submitted to the tribunal at Geneva, and settled. Mr. Roosevelt, opposing President Taft's treaties of arbitration with Great Britain and France, objected that they would embrace "questions of vital interest and honor." Perhaps he had not studied the cases of the Creole and the Alabama.
The values involved in American arbitral proceedings have been enormous. More than a thousand claims were adjusted in cases of the United States against Mexico in 1868, and a thousand more counterclaims of Mexico were disposed of under one commission, the total amount involved being well over half a billion dollars. And the arbitral awards of the tribunals in which America participated have in every case been final. Not one of the awards to which the United States has been a party but was carried into effect by both Governments concurrently. In rare cases new facts discovered have reopened the proceedings, but on such occasions the parties proceeded to end them in a spirit of justice and equity.
It was to nations trained in self-restraint that the Russian Emperor addressed his rescript of August 24, 1898, recognizing the fact that the preservation of peace had been put forward as the object of international policy. More terrible engines of destruction were being wrought, and the intellectual and physical strength of the nations, with their labor and capital, were diverted from their natural uses and wasted. Economic crises threatened the world because of war preparations, the while sentiment against war's devastation found concrete embodiment in arbitrated disputes. A conference was proposed to limit armaments, to prevent armed conflicts, and to mitigate the atrocities of war. The twenty-six nations that met at The Hague on May 18, following, codified the international laws of war and peace already existing. Delegates of the forty-three nations that met in the Second Conference on June 15, 1907, amended and strengthened these codes, added to them, and appointed the meeting of the Third Conference, to be held in 1915.
In the first two Conferences the rights and duties of neutrals were defined, the employment of force for the recovery of contract debts was renounced, and it was laid down that the "right of belligerents to adopt means of injuring the enemy is not unlimited." The bombardment of undefended towns was prohibited, together with the discharge of projectiles from balloons, the use of bullets that expand or flatten in the human body, the poisoning of wells, pillage, violation of "family honor," confiscation of private property, the laying of automatic contact mines that do not become speedily harmless, the seizing of submarine cables, destruction of monuments and works of art, and interference with religious customs. The killing treacherously of individuals belonging to the hostile nation or army or of those who have surrendered was outlawed and it was forbidden to make improper use of a flag of truce, or of the national or military colors of the enemy, or of the Red Cross badges.
The progress in these agreements reached by the Second Conference is notable, in that it forbade that the rights and acts of a member of the hostile nation be abolished, suspended, or regarded as inadmissible in a court of law; that a belligerent compel a man to fight against his own country, even though he were in the belligerent's service before the war broke out, or to force the inhabitants of seized territory to give information about the army of the other belligerent, or about its means of defense. While all appliances for transmission of news and for transport, whether by land, sea, or air, may be seized, together with depots of arms and all munitions of war—even if belonging to private individuals—they must be restored when peace is made, with due award of damages. The inhabitants of a territory are to be regarded as belligerents only if they "carry arms openly," and that is to be the test of their belligerency. Besides all this, the rights of prisoners of war are sedulously guarded.
This code, relating to the laws and customs of war, received what many critics of the Conferences regard as an undue amount of attention; it was even charged that, in effect, it legitimatized war. It did quite the contrary. Francis Lieber drew up for President Lincoln in the second year of the American civil war rules, which Lincoln ratified and promulgated in the famous General Orders No. 100—the first code regulating the conduct of armies in the field. The international convention drawn by the Brussels Conference of 1874, had its origin, as acknowledged by its President, Baron Jomini, in these rules of Lieber and of President Lincoln. To the United States honor is due, not for legitimatizing war between nations, but for beginning to restrict its operations to the actual fighters and their works of attack and defense. At The Hague the work of the Brussels Conference became in turn a basis for reaffirming this principle, and for restricting more closely the field of combat.
Moreover, the principles of the Geneva Red Cross Convention were adapted to naval war. Machinery for rescue and treatment of the sick, wounded, and shipwrecked men of the world's navies was provided.
An International Prize Court was established, which, in the opinion of Elihu Root, should later develop into the court of justice for the nations. The only obstacle to ratifying the convention for this court was swept away by the code of laws of naval war embodied in the Declaration of London, and drawn in February, 1909, by delegates of the European Powers and the United States. The liability to capture of the merchant ships of belligerents throws their commerce largely into the hands of neutrals. Efforts to prevent neutrals from trading with the enemy follow. Then blockades, searches, and seizure of contraband goods stir up strife with other nations, and give occasion for general war. The American war of 1812 with Great Britain resulted from such causes, the effects of which, again, the two nations barely escaped during our Civil War; and the sinking of British merchantmen by Russia during its war with Japan provoked strong resentment. Excepting two questions, those respecting the conversion of merchant ships into warships on the high seas, and as to whether the nationality or the domicile of the owner shall be considered in determining "enemy property," the London declaration embodies clear and definite rules on which the International Court of Prize may render just decisions.
The measures for restricting the field of actual war were accompanied at The Hague by the erection of machinery for the pacific settlement of international disputes. That was work of prevention, and it was in four parts.
In the first part the contracting Powers agree to "use their best efforts to insure the pacific settlement of international differences."
The second provides that proffers of good offices and mediation by a third State, never shall be regarded as unfriendly. Throughout the Turko-Italian and Turko-Balkan Wars, and during the Inter-Balkan conflict, the European Powers acted as mediators under this provision, and smoothed the way to peace.
The third part provided for international commissions of inquiry, such as were comprehended in President Taft's proposed treaties of arbitration with Great Britain and France, and Secretary Bryan's proposed treaties with the Central American republics and with the Powers of Europe and Asia. The intent of these commissions is to investigate the causes of complaint and publish them, trusting to international public opinion to accomplish a just settlement. This machinery worked to bring about the voluntary payment by Russia of $300,000 damages for the destruction of British fishing boats, fired on mistakenly by Admiral Rozhdestvensky in his ill-fated expedition against Japan. Again, the report of a commission on the French steamer Tavignano, seized by the Italian torpedo boat Fulmine during the Turko-Italian War, and concerning the attack on the Tunisian mahones Kamouna and Gaulois, was accepted July 23, 1912, and referred for the final solution of equities to The Hague Court of Arbitration.
This court—the fourth instrumentality—is composed of three distinct bodies; namely, the Permanent Administrative Council, the International Bureau, and the Court of Arbitration proper. The Permanent Council is made up of the diplomatic envoys of the signatory Powers accredited to the Netherlands, besides the Dutch Minister for Foreign Affairs, and was constituted after its ratification by nine of the Powers. The Council is permanent in the sense that its members are always at The Hague; it controls the International Bureau, appointing its staff and methods of administration, and reporting the proceedings of the court to the signatory Powers.
The International Bureau receives all the documents and stipulations in disputed cases, where arbitration is agreed upon and referred to The Hague, acting as a board of registry. It places its staff at the disposal of tribunals of arbitration, and occasionally of those not constituted at The Hague, and its expenses are paid by the Powers.
The Court of Arbitration proper is really an "eligible list" of individuals, "of recognized competence in questions of international law, enjoying the highest moral reputation," designated by the forty-four Powers signatory to the convention. Their terms are six years, renewable, not over four members appointed by a Power. Their jurisdiction extends over all cases submitted to them, but sometimes the parties agree to a special tribunal not selected from the list. Two names may be selected from the list of arbitrators by each of the Powers in dispute, and the amended convention of 1907 provides that only one of these can be its envoy or chosen from its nominees to the Court of Arbitration. The four arbitrators thus selected themselves choose a fifth as umpire, or, if the votes of the four are equally divided, the choice of umpire is intrusted to a third Power to be agreed upon. If there is failure to agree upon a third Power, each party to the controversy makes a separate choice of a Power, and the two thus selected will try to appoint the umpire. But if they, in turn, fail to agree, each shall within two months' time present two candidates from the general list, excluding those selected by the disputants or of their nations; by lot among these, the umpire is finally elected.
The work of the Third Conference, besides adding to the statute law of war, will largely concern the regulations governing the Court of Arbitration. Since it was constituted in April, 1901, this court has passed judgment in fourteen important cases without having established needed rules of practice. It is not decided whether the cases and counter-cases shall be presented with argument, or merely with statements of the facts, the conclusions sought, and the proofs. The practice is both ways. The thirty-five articles relating to "arbitral procedure" fail to prescribe rules, leaving this task to the tribunal in each case. As a result the terms of procedure in the Casablanca dispute, for instance, which were decided hastily to avert a threatened war, were brief and vague, and they left the discretion of the tribunal uncontrolled. The order of oral debate is not determined chiefly because a disputant is touchy about being classed as plaintiff or defendant. Clear rulings on points of practice are not made when presented, although the agents and counsel are entitled by the rules to "present orally to the tribunal all the arguments they may consider expedient in defense of their case." Yet opportunity to argue a motion is sometimes not afforded when the motion is made, and an argument presented later would be out of place. It would aid procedure to have arguments presented and rulings made as the points come up. Finally, the informal discussions between court and counsel frequently hinder the straightforward presentation of a case.
But the chief defect of these arbitral tribunals, as in all others—for practice has not reached the perfection of choosing disinterested judges belonging to nations not concerned in the controversy—lies in their temptation to compromise. Gallatin, in the Northeastern Boundary case with Great Britain, remarked that the arbitrator "has always a bias to split the difference." The Casablanca case, the decision of which really did avert war, and more than any, so far, justifies the establishment of the world court, depended on law and fact, but was compromised. Dr. Heinrich Lammasch, a distinguished member of several Hague tribunals, speaks of the "preponderatingly diplomatic character" of this decision. Other decisions have been criticised for the same reason, notably those of the North Atlantic Fisheries and the Orinoco Steamship. Compromise, while of value, is the function of diplomacy or mediation, and the cases referred to The Hague are admittedly those which diplomacy cannot adjust. The remedy is by direct agreement to exclude from the tribunal judges who sit as diplomatic agents of their governments. A beginning in this direction is in Secretary Bryan's plan for commissions of inquiry, consisting of five members, three of whom should be chosen from other countries than those in dispute. But these would be merely committees. The defect of Mr. Bryan's plan, and the great lack of the Hague Court of Arbitration, is that the agreements to refer cases in dispute are purely voluntary; the one thing for friends of peace to work for, of course, is to make it as easy for differing nations as for differing men to hale each other into court, and as impossible to refer their differences to force.
The International Court of Prize has already come nearer to this ideal than the Court of Arbitration. It is a regular court of justice. Its judges are not arbitrators, they receive a fixed compensation, their jurisdiction in cases of appeal from the national prize courts relating to captured merchant ships and cargoes, is compulsory. In absence of treaty provisions between the states in dispute, the convention adopted by the Second Hague Conference reads, "the court shall apply the rules of international law; if no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity." Before ratifying the convention, Great Britain in 1908 called a conference in London of the chief naval Powers, which codified the laws of naval war, covering blockades, contraband, service ill-becoming neutrals, destruction of neutral prizes, transfer to a neutral flag, hostile character, convoy, resistance to search, and compensation. Here a whole category of cases is at once removed from the judgment of biased minds.
The existing Court of Arbitration may be resorted to increasingly as a means of diplomatic conciliation; but by its side and above it should rise, in the opinion of all authorities on international law, a Supreme Court of Arbitral Justice, not diplomatic but judicial, that will render its decisions rigorously according to the declared law and the evidence. The Second Conference at The Hague approved a convention for the establishment of such a court. The United States has proposed to the Powers that the Prize Court be invested with the functions and jurisdiction of a Court of Arbitral Justice. The practical difficulty met at The Hague was in the appointing of permanent Judges. Forty-four, one for each state including The Netherlands, would be too many. A court of but fifteen Judges was recognized as desirable. Such a court could not be chosen from forty-four nations, and the delegates were in a quandary. The arguments were irrefragable, of course, that a small, independent body of magistrates selected in advance is needed to settle controversies between nations as they arise, and as a court of appeal from the decisions of temporary tribunals. Such a tribunal might well become a court of first as well as of last resort, because of the difficulties and delays usually experienced in making up the mixed arbitral commissions from the eligible list of the Court of Arbitration. The alternative recourse is especially needed when the imminence of war requires a speedy reference, as in the Casablanca case. For these reasons the convention was drawn and approved, leaving to the Third Conference the task of constituting the court. Ernest Nys, a member of the Permanent Court of Arbitration and Counselor of the Court of Appeals of Brussels, urging the necessity of such a tribunal, makes the point that its members should not be chosen to represent any countries, as such, but rather in a way to assure that the different systems of law and procedure, as well as the principal languages of the world, might be represented. By this means the world peace may be permanently established. Organized justice will succeed arbitration, guaranteeing to individuals and states the security of their rights and institutions, precisely as the "king's peace" had come to guarantee them within the limits of each sovereignty.
In this review of the instruments making for peace by conciliation and law, the arguments for war have not been ignored. If at The Hague in 1915 the Powers should decide to nationalize the private industries that supply armaments and engines of war, the artificial stimulus given to those industries and the exploitation of new appliances for war would cease; manufacturers would no longer oppose the limitation of armaments, which every nation desires. Complete preparation for war did not prevent the Balkan States and Turkey, not yet emerged from the civilization of the Middle Ages, from coming to the death grip with each other. It was different with those nations whose Council of Ambassadors, sitting in London, and watching the kaleidoscopic changes in the Balkans, became by the statesmanlike influence of Earl Grey, a clearing house, through which the affairs of the six chief Powers were adjusted to a harmonious ending. It is noteworthy that in the more than forty years of Europe following the close of the Franco-Prussian war—perhaps as good as a cycle of Cathay—those six Powers, though armed for provocation, have by such careful negotiations remained at peace. But making the allowance due to this remarkable abstention from war, to which must be added the hundred years of peace between the United States and Great Britain, the inherent appeal of war to the imagination and emotions of mankind must still be recognized.
War's mutilations have never roused aught but horror, its waste of men and treasure are deplored. But the spirit of strife, of daring, and of heroism remains in human breasts. If war is outworn, if bloodshed and sacrifice of lives are to cease between civilized states, as they have long ceased within those states, it must be that better means have been found to satisfy the profound human need of expression and of conquest. The German Emperor, while keeping up the medieval pageantry of arms, has welded his nation into a militant power of industry and science. Their arts are not ignoble, their industries are not monotonous, but have taken on the aspect of imperial enterprise and daring. Their scientists are rescuing mankind from disease and freeing it from menial labors, while their merchants and traders are modernizing the orient, setting examples of method and discipline, incidentally, to their rivals in the civilized nations. It is by such means that civilization need no longer rear itself on human slavery; the very beasts of burden have been freed, and man has seized control of nature's forces. By them he is borne through cities, manners, climates, councils, governments, more swiftly than Ulysses went, and beyond the paths of all the western stars.
More distant horizons of science have been opened. The transmutation of the elements, but recently announced, is expected to realize more than the dreams of the alchemist. If we are to believe Professor Soddy, who with Sir William Ramsay obtained in 1903 the first direct proof that radioactive processes are veritable transmutations, this discovery in its consequences should "absolutely revolutionize the whole condition of existence." For of all processes, this alone accounts for the wealth of energy dissipated so prodigally throughout the universe over apparently endless periods of time. Once means are found to accelerate the transmuting rate of radioactive atoms, Professor Soddy believes the same means will suffice to break up the other elements now unchanging, releasing energy which man may harness a "million times greater than any at present utilized." In his masterly address in 1908 before the American Society of International Law, Elihu Root traced the development of the international spirit by the use of human inventions conquering space and time. Clans, communities, nationalities have lost their early function, and frontiers and territorial possessions are changing their political significance. Terrestrial pioneering is not ended, the continents are rediscovering each other in new relations.
Much has been done to open new channels for the play of men's energies away from war. War has had its uses to break up the old order, to let loose new and unknown forces in society, to set men free from tradition. That was the great work of the Crusades. Chivalry and knighthood are still needed, but of a new order. The martyrs for aerial navigation are the type. The machinery for peace that has been set up in the new palace at The Hague will not confine the adventurous spirit of mankind.