The Effect on International Law.

It surely cannot be too clearly recognised that Germany’s successive violations of the laws of war have brought the whole fabric down like a house of cards. When the Germans began to sink neutral merchantmen by way of vindicating what they were pleased to call the freedom of the seas, England was forced to jettison much of that famous Declaration of London, which seemed at one time to be as complete an expression of a consensus of international opinion as the world of jurists had yet attained. We have gone further, as we were bound to do, and have so extended the theory of blockade as to qualify very considerably the Declaration of Paris. The Foreign Office has supported these departures by the logic of reprisals—in my humble opinion very properly—but “reprisals” are, juridically speaking, a kind of counsel of despair. In books on international law they receive a kind of shame-faced recognition; their place is always at the end and the chapter devoted to them is often brief and generally apologetic. For the jurist knows that they partake of the character of law about as much as trial by battle. The voice of America is a voice crying in the wilderness; both groups of belligerents deny the American contention that peace, and with it the commerce of neutrals, should govern the construction of the rules of war. How can it be otherwise in a struggle for existence? I very much doubt whether, for a long time to come, international lawyers can afford to assume, as they have been in the habit of doing, that peace, not war, is the normal conditions of nations. A nation which like Germany will not admit your major premises will certainly reject your conclusions when it suits her convenience. The dilemma therefore is inexorable: we can readmit Germany to international society and lower our standard of International Law to her level, or we can exclude her and raise it. There is no third course.

These are the hard facts to which any one who attempts to take stock of the present situation and immediate prospects of International Law must address himself. International Law rests on a reciprocity of obligation; if one belligerent fails to observe it the other is, as a mere matter of self-preservation, released from its observance towards him, and is bound not by law but by morality, by his own conception of what he owes to his own self-respect. It is well that our own conception has been rather in advance of International Law than behind it, and long may it so remain. But in proportion as our conception is high and the German conception is low, it seems to me incumbent on us to place our hopes for the future in the strength of our right arm and in that alone. And if, in Burke’s noble phrase, we are to consider ourselves for the future “embodied with Europe” so that, sympathetic with the adversity or the happiness of mankind, we feel that nothing human is alien to us, then we must be prepared to support our treaty guarantees of the independence of the small nations with an adequate armed force; otherwise they will regard our friendship as an equivocal and compromising thing. If we are to offer them the protection of Europe in place of the suzerainty of Germany, we must be in a position to honour our promissory notes or they will indeed be but a scrap of paper—a cruel and otiose encouragement to the weak to defy the strong.

The German as Outlaw.

As for Germany, I can see little hope except in a sentence of outlawry. Mere black-listing of the names of responsible German commanders, although worth doing (and I have reason to believe that at the French War Office it is being done) with a view to retribution, is not going to change the German character. We shall have to revise our notions of both municipal and international law as regards her. The tendency of English law has long been, as an acute jurist has pointed out,[75] to lay more emphasis on domicile than on nationality, the disabilities of the alien have been diminished almost to vanishing-point, and British citizenship itself could be had almost for the asking. Not of it need the alien knocking at our hospitable doors say, in the words of the chief captain, “With a great sum obtained I this freedom.” It has been made disastrously cheap. All that is likely to be changed. It is not a little significant that already the courts have begun to take judicial notice of the peculiar morality of the German and have expressly made it the basis of a decision extending the conception of what constitutes a prisoner of war.[76] And alone among the emergency legislation the drastic Aliens Act is not limited in its preamble, as are the other Acts, to the duration of the war. These things are portents. It is impossible to believe that a revolution more catastrophic than anything through which Europe has passed, a revolution beside which the French Revolution assumes the proportions of a storm in a tea-cup, can leave our conceptions of law, whether municipal or international, unchanged.

Conclusion.

I make no apology, and I trust that none is needed, for these speculations. Reports of atrocities can serve no useful purpose unless they move men to reflect no less resolutely than deeply upon what is to be done to deliver Europe from the scourge of their repetition. It may well be that my own reflections will seem cynical to one, depressing to another, arbitrary to a third. They are not the idols of the theatre, and in academic circles they may not be fashionable. But the catastrophe that has disturbed the dreams of the idealogues must teach jurists and statesmen to beware of the opiate of words and sacramental phrases. That, however, is a task which belongs to the future. The immediate enterprise is not for lawyers but for our gallant men in the field. They, and they alone, can lay the foundations of an enduring peace by an unremitting and inexorable war. They are the true ministers of justice.

Chapter II
THE BRITISH ENQUIRY IN FRANCE

In November of last year I was commissioned by the Secretary of State for Home Affairs to undertake the investigation in France into the alleged breaches of the laws of war by the German troops, the inquiries in England being separately conducted by others. The results of my investigation were communicated to the Home Office, in the form of confidential reports and of depositions, diaries, proclamations, and other pièces justificatives, and were in turn submitted to the Committee appointed by the Prime Minister and presided over by Lord Bryce. The Committee made liberal use of this material, but, owing to the exigencies of space and the necessity of selection, some of it remains unpublished, and I now propose to place it and the conclusions I draw from it before the public. Some part of it, and that part the most important—namely, that which establishes proofs of a deliberate policy of atrocity by responsible German officers—came into my hands too late for use by the Committee. Moreover, the Committee felt that their first duty was to Belgium, and consequently the portion of the inquiry which related to France, and in particular to outrages upon British soldiers in France, occupies a comparatively small place in their publications. In this article I therefore confine myself to the latter branch of the inquiry, and the reader will understand that, except where otherwise stated, the documents here set out are now published for the first time.[77]