At the outbreak of war the nations are divided into two classes: those that are fighting and those that are not. To give them their scientific names, they are belligerents and neutrals. With the laws of war I do not concern myself, but only with those principles by which neutrals are supposed to govern themselves in order to avoid being swept into the vortex.
The only means by which this most desirable object can be achieved is by steadfastly bearing in mind the natural consequence of meddling in other people’s frays. It gives rise to the very simple maxim ‘He who joins himself to my enemy makes himself my enemy and may be treated as such.’ For the world’s peace the doctrine ‘He that is not with me is against me’ finds no place in the maxims of nations. Now there is a root-principle of neutrality, and if it is once let go all the subordinate principles will fly off and become isolated bodies careering through intellectual space, and doing an incalculable amount of damage. This principle is, that neutrality is a state appertaining to the Governments of the non-belligerent countries, and to the Governments alone. Azuni says[14] that ‘the state of neutrality is not, nor can be, a new state, but a continuation of a former one, by the Sovereign who has no wish to change it.’ But neutrality has nothing whatever to do with the individual, and all the puzzles which confuse the public mind arise from the fact that the word ‘neutral’ is applied indiscriminately to Governments and to individuals. The importance of appreciating this is manifest, for if it is unsound the German case, in which the contrary doctrine appears and reappears over and over again, is right; if it is sound that case tumbles to pieces. It is the persistence with which the German Foreign Office has dragged the opposite contention in by the heels on every possible occasion which makes it so necessary to insist on the recognition of this principle. The burden of its reply to the United States, the condition on which Germany will abandon its evil under-water practices, is that this principle should be given up, and the neutral trade in arms with its enemies declared illegal. If it could be thought for a moment that the United States was likely to be beguiled into abandoning it, then the peace of the world would indeed be in jeopardy. But, unfortunately for the Germans, the Americans know full well what the principle means, and the place it holds in the international system, for them to give even the slightest hint that this is possible.
What, then, does neutrality mean? That the Government of a non-belligerent State must do nothing to assist either belligerent, by providing him with arms, or ships, or men, or money. It is not difficult to understand why neutrality is not applicable to the individuals of the non-belligerent States. Nations subsist by international commerce, and there is no reason why, because two of them go to war, all their trade with the others should be declared illegal.[15] Therefore we get at once to this axiom, that war does not affect neutral trade with either belligerent, but the merchants in neutral countries are entitled to carry on business with them. And so the neutral merchant makes his first appearance on the scene.
Contraband of War
But to adopt the language of the day, Krieg ist Krieg; and if the neutral merchant has rights so also have the belligerents, and the doctrine of contraband of war gives expression to them, though few doctrines have been so loosely put into words. I think I am fairly stating the prevalent and mistaken opinion when I put it thus: that it is a breach of neutrality to trade in contraband, and that it is the duty of a neutral State to prevent its subjects from so trading. The Germans, in insisting on this popular idea, are juggling with the word ‘neutrality,’ and they do so in a way which is almost pathetic; yet their version of what they are pleased to call ‘true neutrality’ is so near to plausibleness that I must be at pains to elaborate the real principle. A belligerent has a perfect right to apply the maxim ‘Who helps my enemy becomes my enemy’ to the neutral merchant. But seeing that he is an unarmed civilian he cannot be made to fight. The remedy against him is therefore confiscation of his goods. The special way in which the merchant can help the enemy is by supplying him with munitions of war and other means of carrying on the fight. In order that there may be no mistake a more particular list of things which help the enemy is made out, called ‘Contraband of War.’ Now the belligerent has no right, much less any power, to prevent the merchant from selling these things to his enemy; but he gives him fair warning that if he sends them by sea cruisers will be on the look-out for his vessels, and they will be detained and searched and the contraband cargo seized. If the merchant turns to his Government and invokes its protection, talking about the ‘freedom of the sea’ and the ‘common highway of the nations,’ he will get for only answer, ‘The threat is justified and I cannot help you. You are assisting the enemy and must take your chance. I cannot prevent you taking that chance, nor can I order you to forbear, for then I should be interfering in favour of the other belligerent, and that would be a breach of neutrality on my part. All I can do for you is to see that you get fair play if you are caught, and proper damages if you are innocent.’ So now we get to the law in its first shape: the neutral merchant is free to carry on his trade with either or both belligerents to any extent, in arms or in anything else; but if he trades in contraband of war he takes the risk of losing his cargo. The justification for the rule can be put in simplest language. The belligerent has obviously no right, merely because he is at war, to order neutral merchants not to carry contraband to the enemy, nor even to expect that they will not. Neither can he insist that the neutral merchant’s Government should intervene on his behalf, and so commit a breach of neutrality towards the other belligerent.
Certain subsidiary questions arise at this point. First, the familiar distinction between absolute and conditional contraband. This follows in direct sequence from what has already been said. The belligerent is not fighting the civil population, but only the enemy Government and its forces. This compels him to interfere with neutral trade in everything that enables that Government to maintain its forces. But how to draw the line between things destined for the civil population and those destined for the forces, for things destined for the civilian may be serviceable to those forces, and may, in fact, be used by them.
The broad principle governing conditional contraband was stated by Lord Salisbury in the dictum as to foodstuffs already referred to.
This principle was adhered to by us during the early months of the War, and was expressly referred to as having guided our action in Sir Edward Grey’s interim reply, of the 7th of January, to the American Note. But the War has revolutionised many ideas, and among them those which had led to the adoption of this principle by Great Britain in the face of the opposing contentions of other countries in the past, notably France and Germany. In his final reply to the Note, sent on the 10th of February, Sir Edward Grey frankly stated that ‘in the absence of some certainty that the rule would be respected by both parties to this conflict, we feel great doubt whether it would be regarded as an established principle of international law.’ Further, he pointed out certain new features in the circumstances in which the War was being waged which tended to show that an adherence to the old principle would be an unjustifiable restriction on our power of striking the enemy—(i) the existence of an elaborate machinery for the supply of foodstuffs for the use of the German army from overseas; (ii) the practical disappearance of the distinction between the civil population and the armed forces of Germany; (iii) the power taken by the German Government to requisition food for the use of the army, which rendered it probable that goods imported for civil use would be consumed by the army if military exigencies required it.
I confess that there are many considerations which challenge the logic of the distinction between absolute and conditional contraband, and give it more the character of a humanitarian concession. It introduces a new bone of contention between belligerents and neutral traders, and it opens up the grave danger of concealed contraband in cargoes which are themselves innocent: the concealment of copper, for example, in bales of cotton. In view of the more rigorous rule of blockade where the distinction disappears, it seems more in the nature of a preliminary measure in the process of throttling the enemy; the first turn of the screw, and a suggestion of sterner measures which are in store.