german war code

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T H E G E R M A N W A R C O D E

A comparison of the German Manual of the Laws of War with those of the UnitedSta tes , Grea t Br i ta in , and Fra nce and wi th the Hagu e Convent ion Respec t ing theL aw sand Customs of War on Land.

B y J A M E S W . G A R N E RProfessor of Political Science in the

University of Illinois

P U B L I S H E D B Y T H E U N I V E R S I T YUnder Direction of the War Committee

Urbana, I l l inois1918


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C O P Y R I G H T , 1 9 1 8B Y T H E U N I V E R S I T Y O F I L L I N O I S


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INTRODUCTORY REMARKSIf we co m pare the rules which regu late the cond uct of war tod aywith those of a century ago, we shall be struck by one notable difference: namely, the la t te r were for the m ost pa rt un w rit ten , t ha t is tosay, they consisted in the main of a body of custom and tradition theevidence of which was found in the treatises of text writers and in thedecisions of the courts, whereas those of today are for the most partwritten and are to be found either in manuals issued by governmentsfor the guidance of their commanders in the field, or in internationalconventions and declarations which have been ratified by the greatbody of s ta tes . 1 T he rights and duties of belligerents are thereforeno longer left entirely to the arbitrary determination of commanders

but they are limited by definite written rules formulated either bytheir own governments or by international conferences representingthe various pow ers. T he former, of course, are binding only up onthe armies of the government which issues them; the latter are binding on all belligerents whose governments have ratified the conventions in which they are found.The starting point in the process by which this change wasbrought about was the promulgation by President Lincoln in 1863 ofGeneral Orders No. 100, enti t led "In stru ction s for the Go vernm entof the Armies of the Un ited Sta tes in the Fie ld ." These "I ns tru c

tions," as is well known, were prepared by a distinguished German-American publicist, Dr. Francis Lieber> who had served under Blii-cher at Waterloo but who in early life, to escape the oppression of hisown country, had come to America and for many years was a professor in South Carolina College and later a professor in ColumbiaUnivers i ty .2 Th ey were not only the first notab le example of a written code of war law ever issued by a government, but they were permeated through and through by a spir i t of humanity; they werepraised by the international jurists of Europe and they exerted amarked influence upon the subsequent development of the laws ofwar .8 T he y rem aine d in force un til the yea r 1914, when the y weresuperseded by a new code, entitled The Rules of Land Wa rfare, whichwas largely a revision of Lieber's "Instructions." 4The obvious advantages to a nation at war in having the ruleswhich it proposes to observe in the conduct of hostilities reduced to

^ C om pare H ol l a nd , "T he L aw s o f W ar on L a nd . " p . 1, and R en au l t , " W ar and t h e L aw of N a t ions , ' *American Journal of International Law, J an ua ry , 1915. pp . I f f.*The im per at iv e need du r ing the Civi l War_ for a wri t te n code for the guid ance of the mi l i ta ry co m ma nd ers , m an y of whom w ere qu i te unfam il iar w i th the custom s and_ usages of warfare , i s well s ta t edby G ene ra l G eo W D av i s in h i s "E le m e n t s of In t e rn a t i on a l L aw , ' t h i rd ed i t i on , pp 499-5008 C o m p a r e S p a i g h t , " W a r R i g h t s o n L a n d , " p 1 4 ; M a r t e n s , La Paix et la Guerre, p . 7 7 , M e r i g n h a c , LesLois et Coutumes de la Guerre sur Terre, p .2 1 ; and D av i s , _"D r . F ranc i s L i ebe r ' s I ns t ruc t i ons fo r t he Go\ e m inen t o f t he U ni t ed S t a t e s A rm ies i n t he F i e ld , " American Journal of International Law, Vol 1, pp 22ff*T he au thor s o f t he Rules o f 1914 say t ha t " ev e ry th ing v i t a l " in L i ebe r ' s " In s t ru c t i o ns " has been i n co r pora t ed i n t he new m anu a l . C e r t a in obso l e t e p rov i s ions w ere of cour se om i t t ed , w h i le m any new ru l e s,m ade necessa ry by t he G eneva , t he H ague and o the r i n t e rna t i ona l conven t ions w ere added .3


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writ ten form in order that commanders and t roops may know definitely their r ights and duties and thus avoid, through ignorance oruncertainty, infractions of the law of nations soon impressed othergovernments, and a goodly number of them accordingly followed theexample of the United States and issued manuals of instructions forthe guidance of their com ma nders and troops during war.* Th e failure of many states, however, to follow this course caused the firstHague Peace Conference of 1899 to adopt a rule imposing upon thecontracting parties to the Convention respecting the laws and customs of war on land an obligation to issue instructions to their armedland forces, which instructions were required to be in conformity withthe regulations governing land warfare annexed to the said Conven tion?and this obligation was reaffirmed by the corresponding Conventionof 1907.3

The first government to act in pursuance of the obligation thusimposed was that of the German Empire, which in 1902 promulgateda manual ent i t led Kriegsbrauch im Landkriege, prepared by the GreatGeneral Staff of the German army.4 Th e Bri t ish gov ernm ent ha dalready in 1884 issued aMa nual of Military Law, prepared by a groupof distingu ished ju ris ts and m ilitary officers. I t has been frequ entlyrevised and brought into harmony with the great internat ional conventions and declarations, the last edit ion having appeared in theyear 1914.5 Th e essential pa rt of i t , nam ely, the chap ter on the"Laws and Usages of War on Land," was prepared by Colonel Edmo nds of the Brit ish arm y and by D r. L. Op pen heim , W hewellProfessor of Interna t ional Law at Cam bridge. Th e Fren ch government l ikewise in pursuance of the obligation imposed by the HagueConvention has issued a manual of rules and instructions preparedby Lieutenant Robert Jacomet , the fourth edi t ion of which appearedin 1913.6 Lieber 's "In str uc tio ns " of 1863 stil l being in force thegovernment of the United States did not consider i t necessary toissue a new manual, but in 1914 the earlier manual was revised andbrought into harmony with the Hague and other internat ional conventions and was issued under the t i t le Rules of Land Wa rfare.7In this s tudy an at tempt is made to compare the German manual wi th those of the Uni ted States , Great Bri tain, and France and

iT he chara c te r of some of these ear l ie r man uals is d iscussed by Ho lland in h is "Stu die s on In t e rn a t i on a lLa w, " c h . 4 , a n d b y Me r ig n h a c in h i s Les Lois de la Guerre Continentale, p p . 4ff.^Article I ."Article I .kriegsbrauch im Landkriege (Kriegsgeschichtlicke Einzelschriften Herausgeg eben vom Grossen General-slabe, Hef t 31 , Ber l in , 1902) . Th e Kriegsbrauch h a s b e e n t r a n s la t e d in to F r e n c h b y M . Pa u l Ca r p e n t i e ru n d e r th e t i t l e Les Lois de la Guerre Continentale- Publication du Grand Etat-Major Allemand (Par i s , 2ded 1916) and a very fa ir and im par t ia l ana lys is of i t has been ma de by the well known Fren ch wr i te rMe r ig n h a c , u n d e r th e t i t l e Les^ Theories du Grand Etat-Ma jor Allemand sur les Lois de la Guerre Continentale ( Pa r i s , 1 9 0 7 ) . An En g l i s h t r a n s la t io n h a s b e e n ma d e b y P r o f es s o r J . H . M o r g a n o f Un iv e r s i ty College , London, and publ ished under the t i t le The War Book oj'the German General Staff ( N e w Yo r k ,1 9 1 5 ) . I n th e p r e p a r a t io n o f th i s s tu d y I h a v e u s e d th e En g l i s h t ra n s la t io n b y Mo r g a n a n d th e F r e n c ht r a n s la t io n b y C a r p e n t i e r , c a r e fu l ly c o mp a r in g th e m o n a ll p o in t s d i s c u s s e d .' Pu b l i s h e d u n d e r th e a u th o r i ty o f H is M a je s ty ' s S ta t io n e r y Off ic e. Pp . 9 0 8 ( Lo n d o n , W y m a n & So n s ,1914) .*Les Lois de la Guerre Con tinentale, Preface de M. Louis Renault, Public Sous la Direction de la Sectionhistorique de VEtat-Major de VArm 'ee (Par is , Ped one , 1913)' Ap p r o v e d b y th e Ch ie f o f Staff, and is sued b y order of the Secre ta ry of W ar Apr i l 25 , 1914. W as hin g to n : Go v e r n me n t P r in t in g Of f i c e , 1 9 1 4 .4


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with the Hague Convention of 1907 respecting the laws and customsof war on land in respect to the more important points concerningwhich there is a difference, and to call attention to the instances ofnonconformity of the German manual to the Hague regulations andthe established usages of land warfare. Some at te m pt is also ma deby reference to Germ an juris tic autho rity and Germ an practise toshow that the code of the GeneralStaff, extreme as many of its provisions are, is entirely in accord w ith the notions of the na tur e, objects,and methods of war generally held in Germany and applied in practice.

THE L WS OFW R ON L NDINGENER LThe Hague conference of 1899, with a view to revising the generallaws and a cu stom s of wa r and of defining them w ith grea ter pr e

cision for the purpose of mitigating their severity as far as possible,and inspired by the desire to dim inish the evils of w ar as far as m ilitar ynecessity permits,1 ado pted a series of regula tions se tting forth therights and duties of belligerents and prescribing various rules to beobserved by them in the conduct of war on land. 2 Th is conventionwas readopted in revised and expanded form by the Second HagueConference in 1907; and both were ratified by the gov ernm ents of thefour powers whose military manuals are here compared. 3 As s ta tedabove, an obligation was laid upon the contracting parties to issuemanuals of instructions for the guidance and information of theirm ilitary com m anders, and it was expressly required th at these in structions should be in conformity with the rules and regulations governingland warfare, which were annexed to the conven tion. T he Am erican,British, and French manuals appear to conform in every respect tothis requ irem ent. At the outset they men tion by title the great internation al conventions and declarations adop ted at S t. P etersb urg ,Geneva, and the Hague and declare that they consti tute "true internationa l law " and as such are binding upon states and upon theirmi l i ta ry commanders .4 Th e manuals of the United Sta tes andFra nce in partic ular inco rporate th e texts of these conventions anddeclarations and in the main their rules are literal reproductions ofthose found in the international conventions, with such amplifica-iS ee t he P rea m b le t o t he C o nven t io n R espec t i ng t he L aw s and C us tom s o f W a r on L and .2 I t being im possib le , howev er , to ag ree upo n re gulat io ns c over ing a l l cases which might ar ise du r in g thecourse of wa r , the Conference too k the precau t ion to add th at in a l l cases no t covered by the regula t i ons it w as no t i n t ended tha t m i l i t a ry com m an der s shou ld be l ef t t o t he i r a rb i t r a ry j udgm ent bu t t ha tunt i l a more complete code of the rules of war should be i ssued the inhabi tants and the bel l igerents" sho u ld r em a in un de r t he p ro t ec t i on an d t he ru l e of t he p r inc ip l e s of t he l aw of na t i ons a s t he y r e su l tf rom the usages es tabl ished a mo ng civil ized people s , f rom the laws of hu ma ni ty and the dic t a tes of thepub l i c consc i ence . "' I n consequ ence o f t he so -cal l ed "gene ra l pa r t i c ipa t i on " c l ause (A r t . 2 ) i n t he C onve n t ion o f 1907 i t i s ,technical ly speaking, not binding on any of the bel l igerents in the present war s ince f ive of them havenev e r r a t if i ed i t . N eve r the l e s s , such of it s p rov i s ions a s a r e m ere ly declaratory o f t he cas t i n g law s andcustoms of war (and most of them belong to this c lass) are binding independent ly of the s ta tus of theC on ven t ion , a s m uc h so a s 3nv o the r e s t ab l i shed cus tom ary ru l e o f i n t e rna t i o na l l aw . C f S pa ig h t ," W a r R i g h t s o n L a n d , " p . 1 2, a n d M a r t e n s , La Paix et la Guerre, p . 240 . Mo reove r t he C on ven t ion o f1899 to which a l l the bel l igerents in the present war are par t ies , and of which the Convent ion of 1907 ismainly a revis ion, i s binding on a l l of them, s ince i t was declared to remain in force as between the powers

no t ra t i fying th e Co nve nt io n of 1907. Cf . Sco t t in the American Journal of International Law, J a n ua ry , 1915 , p . 193 . T h i s v iew is adm i t t ed b y G erm an w r i t e r s . C f. e . g. Z i t t e lm an n in Deutschland undder Weltkrieg (E ng l i sh t r ans l a t i on pub l i shed unde r t he t it l e "M od ern G e rm an y" , p . 601 .^ A m er i can Rules, A r t . 7 ; B r i t i sh m anua l , A r t . 4 ; F ren ch m an ua l , p . 24 .5


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tions an d expla natio ns as seemed desirable. A careful compariso n ofthe rules which the American, British, and French manuals lay downfails to reveal a single important instance of nonconformity to theregulations of the Ha gue Co nvention . T he lat ter are cited in connection with every question covered by the manuals, they are alwaysreferred to with respect, and occasionally, as in the French manual,military commanders are enjoined to interpret them liberally in theinterests of the rights of the inh abi tan ts of occupied terr itory . Fin ally, the auth ors of the American and British m anu als, in par ticu lar,frequently cite in support of the principles which they lay downthe opinions of distinguished modern writers on international lawand refer to the more enlightened practices in recent wars as evidence of the best usage today.

In these respects the Ge rm an m anu al forms a striking con trast tothose of the United S ta tes , Gre at Bri ta in , and France. This man ual wasframed entirely by a body of high military officers, distinguished alikefor their extreme views of military necessity and for their evident contem pt for the opinions of civilian jur ists an d academic writer s oninternational law, to whom they frequently refer as impracticaltheorists and overzealous hum anitaria ns . Th e auth ori ty of no greatnon-German master on international law is or could be invoked insupport of the extreme views which the General StafF sets forth in itsm a n u a l .1 N ot even their own more m odern and liberal jur ists likeBluntschli, GefFcken, and von Liszt are appealed to, their main reliance being upon the older militaristic writers such as Dahn, vonH ar tm an n, von M oltke, B ismarck, Loening, and Leuder, whose viewsfor the most part were in accord with those of the General StafF.Whenever a German writer could be found who supported the viewsof the Gen eral StafF he is qu ote d; tho se who are opposed are passedover in silence. A lthou gh in ten ded as a code of ins tru ctio ns, th eGerman manual abounds in bitter and for the most part unfoundedcharges against the French for having violated the laws of war in1870-71, and it goes out of the way to defend the German armies foracts which have been condemned not only by nearly every writer outside of Germany but even by high German authorities themselves. 2Indeed, the conduct of the Germans during the war of 1870-71 was,we are told, characterised by unusual tenderness and considerationfor the rights of the inhabitants of the districts occupied by the Germ an arm ies. W herever possible the practices of rem ote wars ,andespecially those of the Napoleonic wars, are invoked and relied uponin support of the extreme views of the General StafF, rather than themore enlightened and humane usages of recent wars.iT h e so l i t a ry excep t ion be ing t h e B e lg i an j u r i s t R o l in J a cqu em yns w ho in tw o a r t i c l e s pub l i shed i n t heRevue denerah d-u Droit International el de Legislation Comparee (V o l s. I I and I I I ) a t t e m p ted t o j u s t i fyce r t a in ac t s o f t he G erm ans i n 1870-71 , w hich have been a lm os t un ive r sa l l y cond em n ed by w r i t e r s oni n t e r n a t io n a l l a w o u t s id e G e r m a n v . _Such ac ts , for ex am ple , as the levying of he avy f ines on Fre nc h com mu nes for offenses com mit ted b y

F renc hm e n in d i s t an t com m un es and even for such ac t s a s G ra f R en a rd ' s t h r ea t t o shoo t a num ber o fc iv i li ans in ca se 500 l abore r s r equ i s i t ioned by t he G erm an m i l i t a ry au th or i t i e s d id no t r epor t f o r du ty a ta cer ta in hour and place . See the Kriegsbrauch, E ngH sh t r ans l a t i on by M org an , p 154 , and F ren cht r ans l a t i on by C arpen t i e r , p 112 .6


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TTITUDEOFTHE GERM N M NU L TOW RD THEH GUE CONVENTION

But one of the most regret table features of the German manualis the manner in which i t ignores the great international conventionsand especially t h at of the Ha gu e respecting the laws of land warfare, which the German government solemnly ratified and to whoseprovisions all war m anu als were required to conform. It neith erreproduces them textual ly as do the American and French manuals ,nor does i t enumerate them by t i t le with a statement that they consti tute a body of rules binding upon states as well as upon theirm ili tary com ma nde rs. One can scarcely determ ine from a readingof the Germ an man ual wh ether the rules of the H ag ue Con ventionwere ever inte nd ed to bind belligerents in the co nd uct of wa r. In fact,they are rarely mentioned and when they are referred to i t is usuallyin derision. A good m an y of its rules are clearly in conflict withthe Convention and various regulations annexed to the Conventionare cynically dismissed with the statement that they are excessivelyhu m an e, or tha t they are good in theory bu t will never be observed bybelligerents in pra ctice , etc. T he fact is, the Ge neral Staff does no tlook with favor upon the movement to reduce the law of war to written form, for th e reason th a t th e effect wo uld be to limit th e arb itra rypowers of mili tary commanders and thus to put an obstacle in the wayof m ilitary success. I t would prefer to see the com m and ers restrictedonly by tradit ions, usages, and customs, the exact meaning and application of which could be interpre ted to meet the particu lar necessitiesof the moment .1

Adverting to the various attempts to define and reduce to writ tenform the laws of war, through international agreement, the GeneralStaff asserts that "all these attempts have hitherto, with some icwexceptions, completely failed," and i t adds th at the "law of w ar" asthe expression is understood is not a lex scripta introduced by internat ional agreements , bu t only "a reciproci ty of m utu al agreeme nt ; al imitation of arbitrary behavior, which custom and conventionali ty,human friendliness and a calculating egoism have created, and forthe ob servance of which the re exists no express sanction, b ut o nly thefear of reprisals dec ide s." 2 Such is the poor opinion which th eG en era lStaff has of the Hague and other great international conventionswhich the w orld after g ene rations of effort has agreed u po n w ith aview to regulating as far as possible the conduct of war and of diminishing i ts evils. Th ey are no thing more than a bo dy of m oralprescriptions which will be observed, if at all, not because they haveany legally binding effect, not through any desire to avoid the obloquyan d od ium which are alwa ys visited upo n a civilized natio n which willJ It will be recalled that at the second Hague Peace Conference, when Sir Ernest Satow was pressing for

the adoption of rules restricting the employmentof submarine mines, Germany's first delegate, Mar-schall von Bieberstein, made a powerful plea against binding belligerents by means of formal conventions and rules and in favor of leaving their conduct to be regulated only by conscience, good sense, theunwritten law of humanity, and the like. Conference International de la Paix, Actes etDocumentsTI I I ,p.382.aMorgan, pp.70-71; Carp entier, p . 4. See also the criticism of M erignhac ,op. cit.,p .46.7


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not keep i ts engagements, but simply through fear of reprisal on thepart of the enemy who would be injured in consequence of theirviolation by i ts adv ersa ry. N o evidence of such a Stand ard of international obligation can be found in the American, Brit ish, or Frenchmanuals .

THE OBJECT ND ENDS OF W RThe idea that war is an evil , "the greatest of human evils," asJefferson characterised i t , a "pla gu e to m an ki nd ," as W ashin gtonregarded i t ; that | the manner of conduct ing i t should be regulated bylaw in "the interests of humanity and the ever progressive needs ofcivi l izat ion," which was the predominat ing motive which avowedlyanimated the Hague Conferences;1 that war is a-contest between thearm ed forces, only, of the belligerents an d no t a con test b etween theirpeoples as such ; and th at cons eque ntly the "on ly legit imate objectwhich states should endeavor to accomplish during war is to weakenthe m ili tary forces of the en em y" 2 are sent iments which apparent lyfind no recognition in the German manual."A war conducted with energy," i t tel ls us, "cannot be directedmerely against the armed forces of the enemy state and the posit ionsthey occupy, but i t will and must in l ike manner seek to destroy(zerstoren) the total moral(geistig)and ma terial resources of the latter. H um an itar ian claims, such as the rights of individuals [presumably noncombatants] and their property, can only be taken intoconsideration in sojar as the nature and objectsof war perm it. * Inshort , whenever the overcoming of the enemy may be facil i tatedther eby i t is legit imate to direct the war against every thing th at goesto make up the ensemble of his Kultur: his educ ation, 'art , science,finance, railroads, industry; even the established immunities of non-combatants and of private property fall to the ground, if respect forthem stands in the way of the attainment of the object of the war,which, according to the Kriegsbrauch, means nothing less than thetota l destruc tion of the en em y's m aterial and m oral power. As is well

known, this brutal doctrine was taken from the great oracle of theGerman mili tarists, von Moltke, who in a let ter writ ten in 1880 toProfessor Bluntschli criticising his proposed code of international lawin general and the Declaration of St. Petersburg in particular, said,"I can in no manner agree with the Declaration of St. Petersburg thatthe 'weaken ing of the arm ed forces of the enem y is the only leg it imateobject which states should endeavor to accomplish during war ' ; no,all auxil iary resources of the hosti le government must be destroyed:its finances, railroads, necessaries of life, and even its prestige." 4 I tis also in line with the teachings of von Clausewitz, Germany's firstJSe e th e P r e a mb le to th e Co n v e n t io n Re s p e c t in g th e La ws a n d Cu s to ms o f W a r o n La n d .2So d e c la r e d th e De c la r a t io n o f S t . Pe te r s b u r g o f 1 8 6 8 , to wh ic h th e No r th Ge r m a n Co n f e d e r a t io n wa sa s igna tory .s Mo r g a n , p . 6 8 ; Ca r p e n t i e r , p . 3 ,4 H e l m u t h v o n M o l t k e , Gesam melie Sckrifien und Denkwurdiikeiten, Vol . V, p . 196 .

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and greatest mili tary writer, who advocated violence and terrorism asa means of reducing the enemy to submission, warned German commanders against the baleful theories of philanthropists and humanitaria ns w ho th ink wa r can be carried on in a civilized m an ne r, andcynically referred to the usages of international law as "self-imposedrestr ict ions, a lmost imperceptible and hardly worth m ent ion ing." 1A similar view of the nature and objects of war may be found in thewri tings of von H ar tm an n, von der Gol tz , Bernh ardi , and o ther Germ an mili tary writers. Th e doctrines of von Clausewitz and theGeneral Staff have been brought up to date by Generals von Hinden-burg , von Bissing, and others during the presen t war. Von Hin de n-burg, in an interview published in the Vienna Neue Freie Presse inNovember, 1914, said: "One cannot make war in a sentimental fashion. Th e more pit iless the conduct of the war, the more hu m ane i tis in reality, for it will run its course all the sooner.The war which ofall wars is and must be the most humane is that which leads to peacewith as l i t t le delay as possible." 2 Spe aking on Au gu st 29, 191,5, atM un ster of the extreme measu res which the Germ ans ha d felt obligedto take against the civil population of Belgium, General von Bissingsaid : "T he innocent m ust suffer with the guil ty. In the repressionof infam y, hu m an lives can no t be spa red, and if isolated hou ses,flourishing villages and even entire towns are annihilated, that isregre ttable bu t i t m ust not excite i ll- timed sentim enta li ty. Allthis must not in our eyes weigh as much as the life of a single oneof our brave soldiers. Th e rigorous accom plishment of du ty is theemanat ion ofahigh Kultur, and in th at , the pop ulation of the enem ycountry can learn a lesson from our army." 8

G E R M A N T H E O R Y A N D P R A C T I C E I N R E G A R DT O H U M A N I T Y I N W A R F A R EThroughout the Kriegsbrauch there is a disposition to belittlethe efforts which h av e ha d as their object the hum anizing of war andth e dim inishing of its evils. Aga in an d again the y are declared to be,inconsistent with the true nature and objects of war and those whohave taken the leadership in such movements are referred to as misguided sentimentalists and theorists who erroneously assume that thecond uct of war can be hum anized. These hum ani tar ia n tendencies ,we are told, have "frequently degenerated into sentimentali ty andflabby emotion" {Sentimentalitat und Gefiihlsschwarmerei) which arein "fun da m enta l c ontradiction w ith the na tur e of war and its ob ject ."Soldiers are warned not to be misled by such tendencies and to takecare to avoid the danger of arriving at "false conceptions concerning

See his Vom Kriege,English trans lation by Colonel J. J . Gra ham (London, 1916), Vol. I, pp . 2-3.2Reproduced in the Berliner Tageblatt of November 20, 1914, and quoted by Somville in his book, "TheRoad to Liege," p. xi.AKblniscke Zeitung, S eptember 8, 1914. English text in Langenhove, "T he Growth of a Lege nd," p.265,and in Somville,op. cit.p. 2. After his appoin tmen t as Governor-General of Belgium, yon Bissingrepeated in substance the above opinion to a Dutch journalist. The interview is published in the Dus-seldorjcr Anzeiger of December 8, 1914.9


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the essential character of war" by "a profound study of war itself."By steeping himself in military history an officer," we are assured,"wil l be able to guard against exaggerated humani tar ian not ions; hewill learn therefrom that certain severit ies are indispensable to war,nay more ,that the only true humanity very often lies in a ruthless application of them. 1

Here we have the German phi l isophy of the nature of war andthe solemn duty of commanders to prosecute i t ruthlessly and without regard to the pr inciples of a mistaken hum ani tar ian ism. "T hegreatest kindness in war," said von Moltke, "is to bring i t to a speedyconclusion."2 Th e grea t object of war is to overcom e the ene m y,no t simply the defeat of his arm ed forces. Ru thlessne ss, violence,terrorism, the destruction of his intellectual power, the appropriationof pr iva te prop erty, even war against nonco mb atants all are legi ti m ate provided they con tr ibute to the at tain m en t of the object of thewar. An d if they serve to sho rten the duratio n of the wa r, the y areeven praiseworthy, for " t rue humani ty" consists in br inging i t to aspeedy terminat ion.German practice during the present war has been entirely inaccord with this phi losophy. I f space perm it ted a thousa nd exam ples could be cited in i l lustration. T he sacking or burn ing of hu ndreds of cit ies, towns, and vil lages in Belgium and France and themassacre of their inhabi tants; the wanton devastat ion of extensivedistricts without mili tary purpose; the shooting of innocent civil iansas hostages; the deportation of hundreds of thousands of peacefullaborers to Germany for forced labor; the use of civilians as screensfor protecting German troops against at tack; the compelling of civilians to work in German munit ions plants and other war industr ies;the murder on the high seas of more than 12,000 unoffending men,women, and chi ldrenall of them noncombatants and many of themneutrals ; the poisoning of wel ls ; the bombardment by land, sea, andair of peaceful and undefended towns and the killing of thousands oftheir nonc om bata nt pop ulat ion ; the destruct ion of ' cathed rals ,

chu rche s, u niversit ies, l ibraries, ar t galleries, and ancient historicalm on um en ts; the spoliation of occupied regions by mean s of huge fines,contr ibut ions, and requisi t ions; the del iberate s inking without warning of hospital ships and Belgian Relief steamers these are a few ofa long l ist of acts every one of which is forbidden by the Hague Conventions, to say nothing of the sacred principles of humanity; yetthey are defended in Germany as being in accord with the truephilosophy of the nature and objects of war.M I L I T A R Y N E C E S S I T Y

The Hague Convent ion frankly admits that there are ci rcumstances which permit a bell igerent to disregard the established rulesJMorgan, pp . 71-72; Carpentier, p p. 6-7.'Letter to Bluntschli cited above 10


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of international law, 1 and this principle is affirmed in the war manualsof mo st countries. All the grea t auth orities on inter natio nal law outside Germany, however, are in substantial agreement that the excuseof necessity is no justification for overrid ing the law unless conform ityto its prescriptions would actually imperil the existence of the violating belligerent. Th e late Professor W estlak e, than whom no greate ror more highly respected authority ever lived, affirmed the generallyadmitted principle when he said that the doctrine of necessity wasapplicable only in cases of self-preservation and when the threatenedinjury or danger would not admit of the delay which the normalcourse of action would involve.2 In short, there must be an actualcase of necessity; mere considerations of convenience, utility, or strategical interes t are not sufficient to justi fy a violation of the law. 3The American Rules of Land Warfare even go to the length of affirming that military necessity does not admit of measures which are forbidden by the modern laws and customs of'war.4

When we turn to the German manual, however, we find enunciated a very different theory of m ilitary necessity. Th is man ual ,following a doctrine long m aintained by Germ an writers, draws a distinction between what they call Kriegsraison and Kriegsmanier. Theformer, which may be translated as the "reason of war," permits abelligerent to adopt any measures and employ any means which willcontribute to the attainment of the object of the war, even thoughthey are forbidden by the customs or usages of war {Kriegsmanier).5This distinction between Kriegsraison and Kriegsmanier has generallybeen interpreted by writers outside Germany to mean that the lawsand customs of war cease to be binding on a belligerent whenevertheir observance would hinder or defeat the attainment of the objectof the war. Kriegsraison geht vor Kriegsmanier is an old and well-known German maxim;6 that is to say, the duty to achieve militarysuccess takes precedence over the obligation to observe the law.Manifestly such a theory when carried out to its logical conclusionleads to the absolute supremacy of strategical interest as expressedin the ancient maxim, omn ia licere quae necessaria adfinem belli. I tis condemned by both the spirit and the letter of the Hague Convent ion;7 it finds no recognition in the manuals of the United States,E . g . t h i s i s r ecogn ized by im pl i ca t i on i n t he P r eam ble t o t h e C onv en t ion R espec t i ng t he L aw s andC us tom s o f W ar on L and .^ ' I n t e r n a t i o n a l L a w , " V o l . I I , p . 1 1 4 .3 C o m p a r e R i v i e r . Principes du Droit des Gens, V o l . I , p . 278 : H a l l , " In t e rna t i on a l L a w , " 6 th ed . , p .2 6 4 ; O p p e n h e i m , " I n t e r n a t i o n a l L a w , " V o l. I I , p . 17 7 ; a n d H e r s h e y , " E s s e n t i a l s of I n t e r n a t i o n a l P u b l ic Law," p . 144.A r t . 11 .5Kriegsbrauch im Landkriege, t r ans l a t i on by M org an , p . 69 ; t r an s , by C arp en t i e r , p . 3 . T h e d i s t i nc t i on i s fu l ly exp l a ined by t he G er m an ju r i s t L eud e r in H o l t zendor f f ' s Handbuch des Volkerrechts, sees . 65 -6 6 . T h e d i s t i nc t i on i s em pha s i zed by nea r ly a l l G erm an w r i t e r s , see e . g . von C lausew i t z , op. cit.; vonH ar tm ann in tw o a r t i c l e s i n t he Deutsche Rundschau ( V ol s . X I I I - X I V ) ; v o n M o l t k e , Gesammtlu Schrif-ten, B a n d V , p p . 195ff; and von de r G o l t z , Die Volk im Waffcn. S t r u p p , a h i g h c o n t e m p o r a r y G e r m a nau tho r i t y , t e l l s u s t h a t t he d i s t i nc t i on i s founded o n t he supre m e du ty o f t he m i l i t a ry com m a nde r t oas su re t he success fu l t e rm ina t io n of t he w ar . "T he p rov i s ions o f t he l aw s of w ar , "he says , "m a y be d i s r ega rded w heneve r a v io l a t i on appears to be the only m eans of carrying out an operation of war or even of

preserving the armed forces, even if only a single soldier is concerned. See his Das Internationale Land-kriegsrecht, p . 5; and an ar t ic le by him in the Zeitschrift fur Volkerrecht, B and V I I , p . 363 .6 0 p p e n h e i m , op. cit., Vol . I I , sec . 67.' A r t . 2 2 . 11


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Great Britain, or France, and i t has been cri t icized by practically allwri ters outside Germany.1German practice during the present war has been in accord withthis theo ry of m ili tary necessity. A t the very outset it was invok edby B eth m an n Hollweg and Herr von Jagow in justification of theinvasion of Belgium and subsequently i t was appealed to by many ofGermany's great and heretofore highly honored jurists l ike Kohler,2Niemeyer ,8 Schoenborn, Zi t telm ann , von Liszt , and others . Schoen-born, a distinguished professor in the University of Heidelberg, tellsus that i t was absolutely necessary in the interest of self-preservation forthe German troops to go through Belgium; i t was "a question of l ifeand death" that Germany should forestall the action of the French,etc .4 Th e atte m pt to justify the invasion of Belgium on the grou ndof military necessity is a good illustration of the extreme lengths to

which the Ge rm an theo ry of m ili tary necessity leads. N o t theslightest evidence has ever been furnished by the German government or i ts apologists that France contemplated the invasion of Belg ium.6 Ind eed , according to the admission of Be thm an n Hollwegand von Jagow, i t was the shortness of the distance through Belgiumand the presence of French fortresses on the southern route that ledGe rm any to send her troops throu gh Belgium. It was no t, therefore,a case of military necessity but merely considerations of convenienceand st rategical advantage which animated the German government .The only possible conclusion therefore is that if the plea of militarynecessity was a valid excuse for the German invasion of Belgium, anyviolation of the law which subserves a mili tary interest may be justified on the same ground; and it is quite useless for states to enter intoengagements to respect one another 's r ights, for in that case treatieswill be nothing more than what Frederick the Great conceived themto be: namely, "works of filigree, more satisfying to the eye than ofany ut i l i ty ."

This extreme theory which virtually identifies mili tary necessitywith mili tary interest has been appealed to by the Germans as adefense for many other violations of the law of nations committed bythem during the present war. I t was the ma in excuse pu t forwardfor the frightful devastation of the Somme region in the spring of1917, for the deportation of Belgian and French laborers, for theshooting of hostages, for the bombardment of undefended towns, forthe atrocit ies committed by German submarines, for the burning ofhundreds of Belgian and French towns and vil lages and the shootingSe e W e s t l a k e , " Co l le c te d Pa p e r s o n I n te r n a t io n a l La w, " p p . 243ff; Ho l la n d , " La ws o f W a r o n La n d , "p . 1 3 ; Bo r d we l l , " La w o f W a r , " p . 5 ; Me r ig n h a c , Les Lois et Coutumes de la Guerre, p . 1 4 3 ; Ny s , DroitInternational, Vo l . I l l , p . 2 0 3 ; P r a d ie r - Fo d e r e , Traite de Droit International, sec . 2740; and Fi l le t , Loisde la Guerre, sec. 59.2See h is a r t ic le Notwehr und Neutrahtat in the Zeiuchrijt jur Volkerrecht, Ba n d V I I I ( 1 9 1 4 ) , p p . 576ff.aArticle in the Jurisiische Wochensch rift, 1914, No . 16 , r epr i n ted in Eng lish in the Michigan Law Reviewfor January , 1915.4Se e h i s c h a p te r o n " Be lg iu m' s Ne u t r a l i ty " in a b o o k e n t i t l e d Deutschland und der tfeltkrieg, p . 5 4 5 . %5 M r . J a m e s B e c k v e r y a p t l y r e m a r k s t h a t li Ge rm an y rea l ly had any evidenc e of such an in ten t ion "onth e p a r t o f F r a n c e , i t wa s th e g r e a te s t t a c t i c a l b lu n d e r th a t s h e d id n o t p e r mi t F r a n c e to c a r r y o u t h e rin tent ion because i t would have furn ished Germany with a jus t i f ica t ion of her own ac t which could nevehav e been imp each ed. See h is "Ev ide nce in the Cas e ," p . 229 .

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of their inh ab itan ts, for the destruc tion of ar t galleries, historic m onu m en ts, educa tional buildings, and the like. In fact, whe rever anypossible military advantage could be subserved by measures forbidden by the laws and customs of war, the German armies have overridden the law and set up the plea of military necessity as an excuse.

I N S T R U M E N T A L I T I E S A N D M E A N SThe Hague Convention declares that the means which a belligerent may adopt in order to injure his enemy are not unlimited andamong the instrumentalit ies and measures which it forbids are theuse of poison and poisoned weapons, arms, projectiles, and materialscalculated to cause unnecessary suffering, the use of projectiles thesole object of which is the diffusion of asphyxiating or deleterious

gases, the use of expanding bullets, the compelling of the inhabitantsto take part in military operations against their own country, assassination, the kill ing of prisoners, the destruction of property exceptwhen imperat ively demanded by the necessi t ies of the war, etc. 1These prohibitions are all expressly incorporated in the war manualsof the United States, Great Bri tain, and France.The German manual , however, declares that all measures maybe employed to overcome the enemy which are necessary "to attainthe object of the war" and that they include both "force and strat ag em . "2 Again, "eve ry means m ay be employed witho ut which the

object of the war cannot be attained; what must be rejected, on theothe r ha nd , is every act of violence and destruc tion w hich is not necessary to the att ain m en t of this en d." Aga in, "all me ans which mo derninventions afford, including the most perfected, the most dangerous,and those which destroy most quickly the adversary en masseare permissible; and since these latter result most promptly in the attainment of the object of the war they must be considered as indispensable and, all things considered, they are the m ost hu m a ne ." 3 Nevertheless, says the German manual, while Kriegsraison permits a belligerent to employ "all means of such nature to contribute to theattainment of the object of the war, practice has taught the advisabili ty, in one's own interest, of employing with limits certain meansand of renouncing completely certain othe rs. Chivalrous and Chris-tain spirit, the progress of civilization and especially the knowledgeof one's own interest have led to voluntary relaxations the necessityof which has received the tacit assent of all states and of all armies." 4It is quite clear that the authors of the German manual regard military effectiveness rather than considerations of humanity the test ofthe legitimac y of an instru m en t or me asure. Therefore any ins trumentality or method, the employment of which will contribute to theC o n v e n t i o n R e s p e c t i n g t h e L a w s a n d C u s t o m s o f W ar o n L a n d . Ar t . 22.2 M o r g a n , p . 8 4 , t r a n s la te s th e Ge r m a n wo r d s a s " v io le n c e and cunn ing but Carpent ier , p . 2 0 , mo r ea c c u r a te ly r e n d e r s th e m a s la force et la ruse3 M o r g a n , p . 8 5 ; Ca r p e n t i e r , p . 2 1 .4 Ca r p e n t i e r , p . 4 ; Mo r g a n , p . 69.

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speedy attainment of the object of the war, is permissible whether i tis inhumane or results in unnecessary suffering to the enemy or not;and if its use results in the shortening of the duration of the war, it isfor that reason the most humane.This interpretat ion of the German manual becomes evident whenwe read it in connection with the theories enunciated by the Germanmilitary text w riters and in the light of Ge rma n practice . Von M oltke ,from whom the General Staff draws so much of its philosophy andinspiration, tells us th at "t he grea t benefit in wa r is tha t i tshould beterminated as soon as possible. To this end it is permissible toemploy all means except those which are posi t ively condemned"(Dazu miissen alle,nicht geradezu verwerfliche Mittel, freistehen).1 Thisis also the view of von Clausewitz already quoted, of von Hartmann,and of m an y recent Ge rm an generals and m ilitary w riters. VonHartmann, who many years ago was requested by the Prussian minister of war to combat the liberal and humane views set forth in thehonored Bluntschli 's code, wrote a series of articles for the DeutscheRundschau 2 in which he laid down the propositions th at w ar to da ymust be conducted with rigor, and with greater violence and lessscruple than in the past ; that every means without restr ict ion mustbe employed;3 that the "shackles of a constraining legality" in thecpnduct of war only serve to paralyze belligerents and postpone thetermination of hostil i t ies;4 that humanity in war has a place only solong as i t does not hinder the speedy attainment of the object of thewar ;5 t h a t when w ar break s out terrorism becomes a principle of mili tary necessi ty ,6 etc. Gene ral Colm ar von der Go ltz quotes w ithapproval von Clausewitz's sneering reference to the philanthropistsand hu m anita rians and lays down the proposit ion tha t i t is permissible to employ "all means, material and intellectual, to overcome theadversa ry . " 7 Som ewh at similar views hav e been expressed by Generals von Blume,8 Bernhard i ,9 von Hindenburg ,1 0 von Bissing1 1andother mil i tary wri ters.

Th is view of m ean s and m easu res is no t confined to the military writers but i t is held by German statesmen and writers on internatio nal law. T hu s the Im peria l Chancellor in an address to theReichstag in M arc h, 1916, declared th at "ev ery m eans th at is calculated to shorten the war constitutes the most humane policy tofollow. W hen the most ruthless m etho ds are considered best calculated to lead us to victor y, and a swift victo ry, I said, then the ymu st be employed ." Again , in a n o te of Jan ua ry 31 ,1917, addressedto the Secretary of Sta te, the Germ an Am bassador at W ashington,1Lett er to Bluntschli. M oltke,Gesammelte Sckriften und Denkwurdigkeiten, Band V, pp. 194-197.^Entitled MilitarischeNotwendigkcit und Humanitat, Vols. XIII-XIV (1877-1878).'Ibid.,Vol. XIV, pp. 76, 89.mid., Vol. X II I, pp. 119, 122.mid., p .466.mid., pp . 459-462.7See his book Die Folk im Waffen,French translation entitled La Nation Armee,by E . Jaegle, pp. 3, 7.See his book DieStrategic (2d ed., 1886).*Fom Eeuiigen Kriege(1912) andDeutschlandun dder nachsle Krieg(1912).^Quoted above."Quoted above. 14


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defending Ge rm any's resumption of unrestr ic ted subm arine warfare, declared that Germany was "now compelled to continue thefight for existence with thefull employment of all the weapons whichare at its disposal. 1German practice during the present war has been in accord withthis theory of means and ins trume ntal i t ies . A hun dred examples could be cited in illustration. Th ey include the em ploym entof subm arine torpedoes for the destruc tion of m erch ant vessels,although submarines are totally without accommodations for savingcrews and passeng ers, the use of poisonous gases, the poisoning ofwells in South Africa, the use of explosive shells, the use of civiliansas screens to protect German troops against attack, the bombardment of undefended towns, the putting to death of hostages, thedevastation of the Somme region, the destruction of towns and vil

lages for the acts of individuals, and many others.T H E R I G H T O F S E L F - D E F E N S E

The Hague Convention lays down certain conditions as to organization and insignia which must be fulfilled by troops in order toentitle them to the treatment accorded lawful combatants, in casethey are cap tured by the enem y. Th us they are required to be commanded by a responsible officer, and to bear a distinctive sign oremblem recognizable at a distance . B ut in order to enable the inh abitants of a place not yet occupied by the enemy to rise spontaneouslywith a view to beating off an invader, the Convention goes on todeclare that in case they have not had sufficient time to organize andprovide themselves with uniforms they shall nevertheless be regardedas lawful combatants and entitled, if captured, to the treatment accorded prisoners of war, provided only that they carry their armsopenly and respect the laws and customs of war. 2 In shor t, they areexempt from the obligation to have a responsible commander and tobe clothe d in unifor m . Th is provision was a concession to stat eswhich do not have large standing armies and was intended to legalizeth e levee en masse as a m ean s of defense again st an inv ade r. I t isincorporated textually in the manuals of the United Sta tes , GreatBrita in , and France, and the Bri t ish and French manuals add thatthe rule should be liberally interpreted by belligerents since it is thefirst duty of a people to defend themselves against invasion and ifthey do so loyally they should not be treated as criminals. 3 Bu t theright of self-defense thus recognized and affirmed by the Hague Convention is in effect denied by the German manual, which declaresth at the righ t of the inh abi tan ts of an invaded district to ta ke uparms a nd repel an invade r can be adm itted only when the y hav e anorganization an d a responsible leader, and wear emblems recognizableat a dis tance.4 Th is in face of the fact th at the H agu e Conven tion^Official text published by the Department of State.'Article 2.8British manual, Art. 30; French manual, Art. 5.'Morgan, p.8 3;Carpentier, p. 18. 15


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requires theprovisionsof warm anua l s toconform to therulesof theConvent ion , to which the Germ an governm ent is itselfa par ty .Dur ing the present war German mi l i ta ry commanders in Bel

g ium appear to have admi t ted the binding force of the above-mentioned article which the Kriegsbrauchrepudia tes ,but in fact the r ightof self-defense which it proclaims was generally refused to the Belgian populat ionon the al leged ground that theyhad ample oppor tuni ty to effect an organization and provide themselves with uniformsbefore thearrivalof theGerm an a rm ies .l Belgian civilians thereforewho tookup arms and a t t em pted to resist the advanceof the Germans were whenever captured summari ly shot as/rancs-ttreurs. Considering the rapid i ty of the German advance into Belgium duringthe first daysof theinvasion, if the content ionof the Germans tha tthe civil population had ample t ime to effect an organizat ion andequip themselves with uniforms be adm i t t ed , it is difficult to conceivea s i tuat ion such as that which the Ha gue Convent ion contemplates, when the inhab i t an t s may lawfully rise and resistan invader without incurr ing the penalty reserved for francs-tireurs.

Not only did the Germans refuse to t rea t all such persons aslawful combatants ,but they even declined to t r ea taslawful belligerentsthem em bersof theBelgiangard e civique,a militia forcenotverydifferent form the Germ an landsturm., organized long before the ou t breakof the war forpurposesofdefense,andcom m anded by regulararmy officers and equipped with a dist inct ive uniform. All weret rea tedasfrancs-tireurs when captured and were summari ly shot . Atleast Belgian writers so claim. In fact, the Germans according totheir own admission proceeded on the theory that they wereat warwith the whole Belgian populat ion; that the contestwas on the pa r toftheBelgiansan"uno rganized peopleswar andtha t onlythem e m bers of the regular Belgian army were entit led to the t r ea tm en treserved for prisonersof war .2

T R E A T M E N T OFP R I S O N E R SAND H O S T A G E SThe Hague Convention declares that pr isoners mustbehumanelyt r ea t ed .3 TheAm erican, Bri t ish,andFrench man uals reproducethet ex t of this provision and further lay down the rule that prisonersm aybe put todea th onlyfor cr imes punishable with death under thelawsof the captor and after due trial and convict ion.4 TheAm er icanand British manuals also take occasion to express doubt whethersuch extreme necessity can ever arise that will compel or w a r r a n t a

*Seethe German White Book,DieFolkerrechtswidrigeFuhrung,e tc?p. 4.8See the German White Book referred to above; Grashoff BelgiensSchuld,ch. v, andStruppDie Bel-tischeVolhskriegein theZeitsckriftfur Folkerrecht, BandIX (1915), pp.281ff.The casefor theBelgians isset forthby the_Belgian writers Waxweiler, "Belgium Ne utralandLoy al ,"pp . 225ff; Dampierre, VAllemagne et leDroitdesGens,pp. 190-191; Langenhove, TheGrowthof aLegend,"pp. 254ff; Massart, "Belgians undertheGerman Eagle,"p.65;thereportof the Belgian Official Comm issionofInquiry ("Violationsofthe RightsofNationsinBelgium,") p. 97and anofficial pu blication issuedby the Belgian government entitled Reponsean Lime Blanc Allemand,pp. lOff."Art.4.'American Rules,Art. 68;British manu al,Ait. 79;French manual, Art 8.16


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military commander in kill ing his prisoners on the ground of self-pres erva tion. T he Germ an ma nu al, how ever, affirms the right of acaptor to put his prisoners to death in case of "overwhelming necessi ty" and whenever the presence of the prisoners "const i tutes a danger to the existence of the captor." 1 "T he necessi ty of the war andthe safety of the state," we are told, "are the first considerationrather than the uncondit ional freedom of the prisoners."The Hague Convention contains no provisions in regard to hostages. T he French ma nu al, how ever, declares th at it is forbidden asa general rule to demand or take hostages for the purpose of insuringthe execution of conventions.2 Th e Bri t ish ma nual declares th at thepractice of taking hostages for such purposes is now "obsolete," andthat i t is preferable to "resort to territorial guarantees instead of taking hostages." 8 T he Am erican rules enu m erate th e purpose s for

which hostages have been taken in recent wars but express no opinion as to the legitimacy of the practice today. 4 The Germ an m anual, however, repudiates the assertion of certain "professors of thelaw of nations" that the taking of hostages has disappeared from thepractice of civilized nations, and it defends the conduct of the Germans in 1870 in placing hostages on railway trains to insure the latteragainst derai lment by the inhabitants , a l though i t f rankly admitsthat i t was a "harsh and cruel" measure and that "every wri ter outside of Germany has stigmatized it as contrary to the law of nationsand as unjust i f ied towards the inhabitants of the country"; nevertheless it was legitimate, because it was effective in preventing arepetit ion of the acts.5During the present war the Germans have resorted to the practice of hostage ta kin g on a scale never before kn own in an y war. Innearly every town, city, and village occupied by their forces the leading citizens were seized a nd the inh ab ita nt s notified th at in caseacts of hostil i ty were committed by the civilian population the hostages would be shot. 6 Gen erally they were taken to insure the goodbehavior of the inhabitants, but the practice was also resorted to forvarious other purposes such as to insure compliance with the demandsfor requisitions, the payment of collective fines, to prevent acts of

espionage, to insure railways, telegraph, and telephone lines againstdes truc tion , and' the like. T he hostages thu s seized were usually confined as prisoners; sometimes they were led through the streets andrequ ired to w arn their fellow citizens again st com m itting acts ofiMorgan, p. 97; Carpentier, p. 36.Art. 92.sArt. 461.A rt. 387. . . ' '5Mo rgan, p. 156; Ca rpen tier, p.156. Lord Rob erts issued a proclam ation for a similar purpose in SouthAfrica on June 19, 1900, bu t it was withdraw n eight days later. Th e measure was severely criticised byMr . Bryce at the time and it is condemned by the British ma nual, Art 463. Bonfils, Fillet, Hall, Wes t-lake, Bordwell and indeed nearly all writers outside Germany, as the Krie sbrauck admits, criticize it.It is even condemned by some German writers, notably by Bluntschli and Geffcken.8The texts of many proclamations issued by German commanders to this effect may be found in the

reports of the Belgian Commission oi Inquiry, in the Report of the Bryce Commission, in the Report ofthe French Commission, in Davignon's "Belgium and Germany,'* in the Belgian document Repoiue anLivrc Blanc AlUmand, in Massart, "Belgians under the German Eagle," in Waxweiler's "Belgium Neutral and Loyal," and numerous other publications official and private.17


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hostil i ty; sometimes they were stationed on bridges to prevent theirdestruct ion by the enemy; not infrequently they were marched infront of German columns to protect them against at tack; thousandswere deported to Germany; occasional ly they were put through theordeal of sham executions and other forms of maltreatment as thoughthey were criminals; and what seems almost incredible in this age, agoodly number were actually put to death as a penalty for acts comm it ted or alleged to have been com mitted by the inh abita nts. A tLes Rivages, a suburb of Dinant, to refer to a single instance out ofmany, a large number of hostages who had been taken to insure aGerman detachment engaged in the construct ion of a pontoon bridgeagainst at ta ck were shot by the 101st Re gime nt . Th e G erma nW hite Book adm its the t rut h of the charg e 1bu t und ertake s to defendthis act in particular and the shooting of hostages in general on theprinciple that the mere taking of hostages and the holding of them asprisoners would prove ineffective in deterring the inhabitants fromcommitting acts of hostil i ty, if a belligerent were not allowed to inflict the death penalty for violation of the conditions for which theyare taken .2

I t is impossible to justify such an extrem e and cruel me asure .The American Rules of Land Wa rfare very just l y remark th at a hostage must be treated as a prisoner of war. 3 H e can not therefore beput to death or subjected to other severities than those which maylawfully be inflicted upon a regular military prisoner. 4 Th e r ight toput hostages to death was frequently asserted in earlier t imes, but i tdoes not appear that i t had ever in practice been exercised for at leasta century prior to the present war. 6 Few measures resorted to bythe Germans during the present war have il lustrated more forciblytheir extreme theories of military necessity or revealed German militarism in a worse light.R E Q U I S I T I O N S O F S U P P L I E S A N D S E R V I C E S

The laws of war allow an invader to take supplies from the country occupied by him, but the Hague Convention expressly declaresthat they may be taken only for " the needs of the army of occupation" and that, as far as possible, they shall be paid for in cash; andif this cannot be done, receipts shall be given and payment made assoon as possible.6 Th is rule, in the identical languag e of the H ag ueiSee especia l ly the tes t im ony of Dr . P re ten z, a Germ an S taf f Surgeo n, in Die Vblkerrechisw idrige Fiih-rung des Belgischen Volkskriege, anlage 5 1 , and o f L t . B a r o n von R och ow, ibid., anlage 47 . I t i s s ta tedin the Belgian Reponse ( p . 220) t h a t t he t o t a l numbe r sho t was 90 . Dr . P r e t e nz adm i t s t h a t amon g t henumber wer e s eve r a l women and ch i l d r en . S ee t he Ge r ma n W h i t e B ook , "T he B e l g i an P eop l es W ar " , pp . 67- 68 .'Ar t . 387 .*This is the op inion of p ract ic al ly a l l mi l i tary wr i te rs . See e . g . Blu ntsch l i , sees . 426 and 600; Ha l l , 4t hed. , pp. 493-494; P i l le t , Les Lois Actuelles, pp . 212- 213 .6 Me r i gnha c , however , s t a t e s t ha t t he Ge r ma ns i n 1870 d i d pu t t o dea t h ce r t a i n F r en chm en , p r e s um abl y held as hosta ges , for the refusal or inab i l i ty of thei r di s t r ic t s to pay con t r ibu t ion s and f ines impo sedupo n t hem and f o r ce r t a i n ac t s com mi t t e d aga i ns t i so l a ted P r us s i an so l d i e r s. I f h i s s t a t em ent i s t r u eh i s own j ud gm ent t ha t such a s eve r i t y was "abso l u t e l y unw or t h y o f a ci v il i zed peop l e" w il l gene r a l l ybe accep t ed ou t s i de Ge r m any . S ee h is Les Lois de la Guerre Continentale, p. 33. Ar t . 52 , C on ven t i on R espec t i ng t he L aws and C u s t om s of W ar on L and .

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Convent ion, is incorporated in the mil i tary manuals of the Uni tedSta t e s ,1 Grea t Br i ta in ,2 and France .3 Th e German ma nual , however, repudiates the rule of the Convention and declares that the"right of requisit ioning without payment exists as m uc h as ever an dwill certainly be claimed by the armies in the field, and also considering the size of mo dern armies m ust be claim ed." I t adm its, how ever,that i t has become the custom to furnish receipts; but i t adds that thequestion of payment "will then be determined on the conclusion ofpeace , " 4 th e inference being tha t p ay m en t will be m ade , if at al l , ou tof an inde m nity ex tracted from the. van qu ished bell igerent and no t bythe requisitioning bell igerent if he is the victor. Th e H ag ue Con vention also lays down the rule that supplies requisit ioned shall "bein proportion to the resources of the country;" 6 and the writers on international law outside Germany are all agreed that a bell igerentmay not exercise his power of requisit ion to such an extent as to reduce the inhabi tants to dest i tut ion, but must leave them enough fortheir own subsistence. Th e Kriegsbrauch, however, does not acceptthis hu m an e principle. T he H ag ue rule, we are told, would be "willingly recognized by every one in theory, but it will scarcely ever beobserved in prac tice. In cases of necessity the needs of the arm ywill alone decide; and a man does well generally to make himselffamiliar with the reflection that , in the changing and stormy courseof a war, observance of the regular procedure of peaceful t imes is,with the best will , impossible" 6

Th is has long been the doc trine of Ge rm an m ili tary writers. VonClausewitz in his day declared that the resource of requisit ion andcontr ibut ion "has no l imits except those of exhaustion, impoverishment, and d evastation of the country ?tha t "w ar m ust suppor t w ar"(la guerre nourritlaguerre,as the French t ran slate the ancient m axim );th at an inva der has a right to l ive on the coun try, etc. Von Clausewitz even warned mil i tary commanders against the mistake of relying too much on "artificial means of subsistence," that is, of bringingtheir own supplies with them . Th is is also the doctrine of vonMoltke who, in his let ter to Bluntschli referred to above, declaredth at " th e soldier w ho is exposed to suffering and p riva tion , to exert ion and dang er, cann ot be satisfied with requisit ioning supplies inproport ion to the resources of the country; no, he must take everything that is necessary to his existence." 8 This phi losophy, sum medu p , means that s ince Krieg ist Krieg an invader is enti t led to take thelast mouthful of food, the last horse or cow, the last bushel of grain,and the noncombatant populat ion may be lef t to s tarve i f the occupying army needs the suppl ies thus taken.lArt. 345.3Art. 416 and note h. to the same article.sArt. 103.Morgan, p. 175; Carpentier. p. 136.'Art. 52.eMorgan,_p. 176; Carpentier, p. 138.^VomKriege, English translation by Graham , Vol. II , p. 98. General von H artm ann defends substa ntially the same view. See his article in theDeutscheRundschau,Vol. X II I, pp. 450, 458.Hyesammeltc Schriften und Denktvurdigkeitrn,Vol. V, p. 195.

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The Hague Convention allows an invader to requisit ion the services of laborers as well as supplies, but it expressly forbids the forcing of the inhabitants to perform work having any connection with"mili tary operations" or to furnish the enemy with information concerning their own army or i ts means of defense. 1 Th is clearly forbids compulsory labor in munitions plants, or factories engaged in themanufacture of war materials generally,-work on fortifications, thedigging of trenches a nd the l ike, and i t has generally been interp retedas forbidding the taking of forced guides.2 Bu t the German man ual ,on this po int as on so m an y othe rs, lays down a different rule. ItJrankly admits that the majority of writers of all nations have unanimously condemned the practice of compelling the inhabitants of occupied terri tory to furnish the occupant with information regardingtheir own army, i ts resources, mili tary secrets, and the l ike, but,nevertheless, i t adds, that this cruel measure "cannot be entirely dispensed w ith ." Defending the righ t to force the inh ab itan ts to serveas guides, the man ual rem arks th at "w hatev er m ay be the horroraroused by the sentiments of humanity in requiring a man to commitan injury to his own country and indirectly to fight against his owntroops, no bell igerent operating in an enemy country can entirelyrenounce this expedient ." 3 Kriegsraison may make i t necessary. Asto compelling the inhabitants to perform work in "mili tary operat ions ," it warns officers against a too elastic interpretation of this expression. Ag ain, we are told,Kriegsraison must decide; which meansthat if an important mili tary interest may be subserved by disregarding the prohibit ion, the obligation to conform to the rule ceases.

German practice during the present war has been in accord withthe doctrine of the Kriegsbrauch rather than with the Hague Convention. In the occupied regions of Belgium and Franc e supplies havebeen requisit ioned without regard to the resources of the country; inmany instances indeed i t has amounted to sheer spoliation and pillage. On e of the first acts of the Ger m an s after establishing the iroccupation of Belgium was to take an elaborate inventory, by meansof compulsory declarations, of the available stocks of everythingwhich could be of use to the Germans and to prohibit the exportationof the same except to G erm any . Th ereu pon a wholesale system ofrequisit ion was ina ug ura ted. Grow ing crops were requisitionedwhile still standing in the fields; live stock, farm implements, grain,raw materials, metals, manufactured art icles, even the church bellswere taken and many charges have been made by the Belgians thatno payments were made, that bogus receipts were given, and the l ike.The Hague rule that requisit ions can only be made for "theneeds of the army of oc cu patio n" was flagrantly disregarded. Im mense quantit ies of raw materials were taken away for use in thexSee articles 22 and 44 of the Convention R especting the Laws and Customs of War on Land.'See Spaight,op. cit.,p. 369; Westlake,op. cit.,Vol. II , pp. 101-102; Hershey, p . 141; Higgins, p. 269,Lawrence, p. 418 ; Fillet, op. cit.,p. 144. Even some German writers such as Loening, Strupp, Hub erMe urer, and Zorn so interpret the prohibition. See also the AmericanRules of Land Warfare,Art. 322;the British manual, Art. 382, note d; and the French manual. Art. 95.8Mo rgan, p . 153; Carpentier, p . 110.

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home industries of Germany; millions of cattle and horses were similarly transported to Germany and sold to German farmers and stockraisers, even Belgian factories were dismantled of their machinerywhich was likewise carried off and installed in Ger m an factories. Byno process of interpretation could it be said that such requisitionswere for "the needs of the occupying army"; they were, in fact, forthe maintenance of Germany's home industriesi.e. , for a purposethe legitimacy of which is not recognized by the Hague Convention,the military manuals of other countries, or by any writer on internation al law outside Germ any. In ma ny cases the deposits in private banks and private pension funds in the post offices were seizedand appropriated in violation of the express terms of the Hague Convent ion . 1 Fin ally , the services of tho usa nd s of Belgian laborer s wererequisitioned for work in munitions plants, in establishments for themanufacture of barbed wire and other war materials, for diggingtrenches, operating military railway trains, and even for guides. 2

Such is the G erm an theo ry and practice in respect to requisitions.It is in flagrant contradiction with the long-established customarylaws of war, contrary to the express provisions of the Hague Convention, and it has been condemned by every authority on internationallaw outs ide Germany and even by reputable German juris ts .P E C U N I A R Y C O N T R I B U T I O N S

T h e .H agu e Co nvention allows a m ilitary occ upan t no t only tocollect the taxes levied by the state in the territory occupied, but inaddition it allows him to raise "other money contributions," subjectto the condition, however, that the latter shall be levied "only forthe needs of the army or for the administration of the territory inques t ion ."8 Th is rule, with the limitation w ith which it is coupled,is incorporated in the manuals of the United States, Great Britain,and Fr anc e. In order to leave no dou bt as to the purpose for whichsuch exactions may be made, the British manual takes the precautionto add that they may not be resorted to for the purpose of enrichingthe occupant or for the purpose of pressure or of punishment, andth at they shall no t be exor bitan t in am oun t. I t further adds th atthe chief purpose in allowing an occupant to levy such exactions onthe inhabitants is to permit an equitable distribution of requisitionsbetween towns and cities, on the one hand, and the country districts ,on the other; money being contributed by the former to purchase supplies requisitioned of the latter. 4 This view of the natu re and purpose of contributions is that generally held by the writers on inter-Art. 53 .8I have discussed at length German policy in respect to requisitions during the present war, in anarticle in theAmerican Journal of InternationalLaze for Janu ary, 1917, pp . 74-112.'Art. 49.*Articles 423, 424. Article 107 of the French manual likewise adds t ha t co ntributions imposed forself-enrichment or for weakening the enemy are prohibited.

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nat ional law everyw here ,1 at least outside Germany, and it is also theview of some reputable German authori t ies . 2The German manual i tself admits that contr ibut ions cannot belevied for the "arbi t rary enrichment" of the conqueror , nor for thepurpose of recouping himself for the cost of the war, but it allowsthem to be levied for the purpose of punishment 3 and it does not takethe trouble to say, as does the English manual, that they shall not be"ex orb i tan t" in am ou nt . In fact , Germ an theory and pract ice hav ebeen in accord with the view that contributions are not merely levieson towns and cities as a substitute for requisitions in kind, that theyare not l imited to the needs of the occupying army or the administration, but that they may be exacted for the purpose of compelling theinhabitants to sue for peace, for the purpose of punishment, for covering the expenses of the war, and even for the enrichment of the'occ up ant. Von Clausewitz, for exam ple, declared th a t the first ob ject of war is "invasion, that isr, the occupation of the enemy's territory, not with a view to keeping i t but in order to levy co ntributionsupon it or to devastate it. * Von M oltk e expressed essentially thesam e view in his letter to Bluntsc hli , referred to above . Loen ing, a highGe rman au tho ri ty, m aintains th at i t is even legi t imate for a mil i taryoccupant to exact money contributions for the purpose of compellingthe inhabitants to sue for peace, 6 and the dist inguished Austr ian publicist , Lammasch, defended this view at the first Hague Conferencein 1899, although it found no favor there. 6 Oth er Germ an wri ters

m aintain this extreme view universally condem ned by all the auth orit ies outside Germany and Austr ia .German practice during the war of 1870-71 was in harmony withthis view and i t has been the same during the present war. Du ringtheir occupation of France in 1870-71 they not only levied enormouscontr ibut ions on ci t ies , towns, and departments , 7so exorbi tant inamount that many of them did not differ from sheer pillage except inn a m e ,8but for the avowed purpose of breaking the resistance of theFrench people and inducing them to sue for peace, they levied inDecember, 1870, a per capita contribution of 25 francs on every

inh ab itan t in the occupied distr icts of Fran ce. Th e Germ an wri terLoening admits that this expedient was "extraordinary," but he defends i t on the ground that the "si tuat ion was none the less so," and1Compare e.g. Spaight,op. cit.,p. 383.2E.g. Bluntschli, who remarks tha t international law forbids the levying of contributions on the inhab i-tants of occupied territory except when they areabsolutelyindispensable for themaintenancea ndneedsofthe occupyingarmy, op.c t., sec. 654. So Leuder remarks th at they are limited to theurgent needsof thearmy and the power to exact them must be strictly construed. Holtzendorff's Handbuch des Volker-rechts, Vol. IV, p. 503.3Morgan, p. 178,- Carpentier, p. 140.AVom K riege, Graham's translation, Vol. I, p. 33.6See his article in the Revue de Droit International et deLegislation Comparee,Vol. V, p. 107.*Quoted by the German writer Wehberg {Capture in War on Land and Sea,p. 42), who condemnstheview th at a belligerent may seek to induce his enemy to submit by exhausting him through the power

to lay contributions and exact requisitions.7I have given many examples in an article published in the American Journal of International Law forJanuary, 1917, pp. 74-76.8Cf. Latifi, "Effects of War on Private Property," p. 34.22


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that it was effective 1 I t is refreshing to be able to reco rd, how ever,th at this harsh and u njust measure, unanim ously condemned by wri t ers outside Germany, has not met with the approval of all reputableGerman author i t i es .2 Bu t the Germ an manu al assures us th at thepower of requisit ion and contribution as resorted to by the Germanswas exercised "with the utmost tenderness for the inhabitants, evenif in isolated cases excesses occurred" 3During the present war Belgium and France have been bled byhuge contributions, the frequency and amount of which repel the assumption that they were levied only for the needs of the army and theexpenses of the administration. 4 In add ition to a general ann ual contribution of 480,000,000 francs levied on the occupied portion of Belgium in December, 1914,5 which was sub sequ ently increased to720,000,000 and renewed each year since, huge contributions, oftenrun nin g in to the m ill ions, hav e been levied on scores if not hun dred sof towns and cit ies in both Belgium and France. In addition to theseexactions the Germans of course collected the regular taxes 6 andraised other huge sums under the guise of collective fines.

C O L L E C T I V E F I N E SThe Hague Convention forbids the imposit ion of collective punishments, pecuniary or otherwise, upon the inhabitants of occupiedterri tory on account of the acts of individuals for which they cannot

be regarded as join tly and severally responsible.7 Th is rule is incorporated in the war manuals of the Uni ted States , 8 Great Bri tain,9and France ,1 0 in the identical langu age in which it w as form ulated bythe Ha gue Conference. Th e Am erican m anua l interprets the rule toforbid collective punishments except for such offenses "as the community has commit ted or permit ted to be commit ted," the inferencebeing that the community cannot be punished for the acts of isolatedindividuals when the population as a whole is not an accomplice,either actively or passively, or for acts which the local authoritiescould not have prev ente d. If, for exam ple, the act is com m itted byan isolated individual in the dead of night in a remote part of thetown or district , under circumstances which make i t impossible forthe pub lic authorit ies to hav e preve nted i t , or if there is no proof th atthe population as a whole was a party through either participationor sympathy, i t would be a violation of the most elementary rules of*See his ar ticle in the Revue de Droit International et de Legislation Com paree, Vol . V, p . 108 .2 I t is cond em ned e .g . by Blun tschl i {op. cii., sec .65 4) , by Gef fcken (ed . of Hef f te r , p . 30 , note 4) and b yW e h b e r g {Capture in War on Land and Sea, ch . iv) .3 Mo r g a n , p . 1 7 6 ; Ca r p e n t i e r , p . 1 3 8 .*I hav e g iven n um erou s examp les in my art ic le_ re fe r red to abo ve .5 Th e t e x t o f th e o r d e r imp o s in g th i s c o n t r ib u t io n ma y b e f o u n d in Hu b e r ic h a n d Sp e y e r , " G e r m a nLegis la t ion in Belg ium," 2d se r . , p . 11 .6 No t c o n te n t w i th c o l le c t in g ] th e r e g u la r t a x e s o n th e in h a b i t a n t s wh o r e ma in e d in Be lg iu m, Ge n e r a lvon Biss ing by an order to Ja n . 16 ,19 15 , is sued for the purpose of compell in g the hun dred s of tho usa nds

of Belg ian re fugees who had gone in to ex ile in Ho lland a nd Eng land to re tur n to Belg ium in order th a tthe ir labor might be requis i t ioned by the Germans , gave not ice tha t a l l Be lg ians who d id not r e turn byM a r c h 1 wo u ld b e p e n a l i z e d b y a n a d d i t io n a l e v y e q u a l to ten times the regular personal tax. Te x t inHu b e r ic h a n d Sp e y e r , op. cit., p . 4 1 .'A r t . SO. Ar t . 385 ."Ar t . 354 . wArt . 109 .23


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justice to hold the community responsible and subject it to punishment; and it is safe to say that the Hague Conference never intendedto sanction the application of the principle of collective responsibility and punishment in such cases.xThe German manual does not deal with the subject of collect ivefines further than to say that they are the most effective means ofinsuring the obedience of the inhabitants of occupied territory. 2 I ta lso remarks that they were frequently employed by the Germansduring the Franco-German war of 1870-71, and the manual natural lyat te m pt s to defend the Germ an practic e. As is well know n, hugefines were laid on many towns, cities, departments, and communesof Fra nce . T he enormity of the am oun ts exacted and their disproportion to the offenses alleged are evidence enough that in many casesthey were nothing more than contributions exacted under the guiseof fines, and were imposed not as a punitive measure but merely forthe enrichment of the mil i tary occupant. s Th e Germ ans even pushedthe theory of collective responsibility to the length of fining remotecommunes, from which offenders originally came, for acts committedby them in other distant communes in the occupied portion ofF rance . 4 Th is iniquitous theory of collective pu nish m ent is defendedby the Kriegsbrauch im Landkriege and by most German writers oninternational law, mainly on the ground that it was effective in preventing a repetition of the acts complained of.6 Leuder and theaut ho rs of the Ger m an m anu al find a justification also in the "e m bi ttered character which the war took on during i ts la ter s tages ." 6Regarding the French complaint that the fines were in many casesgrossly excessive and out of all proportion to the gravity of theoffenses alleged, Leuder remarks that the promptness with which theywere paid is evidence enough that they were "in truth not too exorb i t a n t . " 7 Leu der even goes to the length of asserting th at a community may be fined for the continued persistence of the inhabitantsin keeping up a futile struggle {durch frivolfortgesetze Kriege). The 25franc per capita fine levied in 1870 on all the inhabitants of the occupied regions of France for the purpose of breaking their spirit ofresistance was therefore a justifiable m easu re. 8

Such is the theory of the German manual and of German writersregard ing collective pu nish m ents . I t is criticized by practicallyevery writer on international law outs ide Germany and even somei C o m p a r e L a w r e n c e , op. cit., p . 4 4 7 ; S p a i g h t , op. cit., p . 4 0 8 ; D e s p a g n e t , Court de Droit Internationalsees . 587-588 ; B ordw e l l , "L a w of W a r , " p . 317 ; , and N y s , Le Droit International, V ol . I l l , p . 429 .2 Morgan , p . 178 .^Compare Bonfi ls Manuel de Droit International, sec . 1219 . I nav e r ev i ew ed the G er m a n p rac t i ce o f1870-71 and g iven m any de t a i l s a s t o t he im pos i t i on o f fi nes by t he G e rm a ns , i n an a r t i c l e i n t he AmericanJournal o f International Law, Ju l y , 1917 , pp . 512ff.4 T he t ex t o f t he o rde r p u t t i n g i n to e f fec t t h i s ex t r a o rd in a ry t heo ry o f co l l ec ti ve r e spons ib i l i t y m ay befound in the Revue de Droit International et de Legislation Comparee, Vol . I I , p . 666.5See the defense b y Loen ing in an ar t ic le in the Revue de Droit International et de Legislation Comparee.V ol . V , pp . 77ff.6 L euder i n H o l t zendor f f ' s Handbuch des Volkerrechts, V ol . IV , p . 508 ; a lso sec . 112 , no t e 14M ; o rgan , p . 17 8 ;C arpen t i e r , p . 141 .Op. at., p . 509.sIbid., pp . 505 and 510 . F o ra c ri t i c i sm of t h i s ex t r a o rd in a ry con t en t ion see W es t l a ke , "C o l l ec t ed pa pe r so n I n t e r n a t i o n a l L a w , " p . 2 5 1 .

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German wri ters have condemned i t . 1 It is l ikewise co ntra ry to therule of the Hague Convention and to the most elementary principlesof the criminal law.Du ring the present war the Germ ans in both Belgium and Fran cehave proceeded on this theory on an even larger scale than they didin 1870-71. Scores of cities, town s, and comm unes ha ve been pun ished by huge fines for offenses committed by individuals which thecivil authorities were powerless to prevent and in which the population could n ot by any process of reasoning hav e been regarde d asaccom plices. In m an y cases the fines we re ou t of all pro po rtion tothe gravity of the offenses alleged, leaving no doubt that in fact theywere levied not as a punitive measure but for the purpose of enriching the military occupant and recouping himself for the cost of thewa r. In some cases they were levied on the inh ab itan ts not for actsof the civil population but for acts committed by the regular armedforces of the enem y, which of course are not punish able by com m unityfines since they are legitimate acts of war.The city of Brussels, to cite a notable instance from many, hasalre ad y been fined at leas t five tim es. I t was fined 5,000,000 francsin November, 1914, for the act of a policeman in attacking a Germanofficer during the course of a dispute between the two; again in July,1915, it was fined 5,000,000 francs for the alleged destruction of aGerman Zeppelin by a British aviator near Brussels; in the samemonth it was fined 5,000,000 marks in consequence of a patriotic

demonstration by the inhabitants on the occasion of the celebrationof the natio nal ho liday (Ju ly 21) ; early in 1916 it was fined 500,000marks on the charge that a crime had been committed in the suburbof Shaerbeek with a revolver obtained in Brussels where the possession of fire arms by the citizens had been forbidden by the militaryau tho ritie s; finally, in M ar ch , 1918, th e c ity was fined 2,000,000marks on account of a dem onstrat ion b y ant i-Flemish agi tators . Afine of 60,000,000 francs was imposed on the province of Liege;10,000,000 on the city of Liege; 3,000,000 on Tournai; 10,000,000 onCourtrai; 3,000,000 on Wavre; 500,000 on Lille; 650,000 on Lune-ville, and scores of others.2 M an y towns were fined for the allegedfiring of shots against German troops by civilian inhabitants; otherswere fined on account of the refusal of the municipal authorities tofurnish the military commanders with lists of unemployed laborerswhom the Germans were preparing to deport for forced labor in Germ an y; o thers w ere fined for inabili ty to comply w ith requisition s; forthe refusal of the inhabitants to work for the Germans; for the cutting of telephone wires, and the like.

In many instances these fines were in addition to other heavyexactions under the form of requisitions, contributions, and tax.g. Bluntschli, op. cit., sec. 643bis; and Geffcken, note 7 to sec. 126 of his edition of Heffter's Le DroitInternational de VEurope.2 1 have given the details regarding a good many other instances in the American Journal of InternationalZOT for July, 1917, pp.SISff.

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levies. As one reads the long list of such exactions and th e reasonsalleged for imposing them, it is difficult to avoid the conclusion thatthey were a part of the well-established German philosophy of warthat an invader is entit led to live on the country which falls underhis occupation and that the employment of any instrumentality ormeasure is legitimate whenever i ts use contributes "to the attainment of the object of the war."

B O M B A R D M E N T SThe Hague Convention forbids the bombardment by whatevermeans of towns, villages, dwellings, or buildings which are undefended;1 it requires the officer in command of an attacking force to doall in his power to warn the authorities before commencing a bombardment, except in cases of assault;2 and it enjoins belligerents tospare as far as possible buildings dedicated to religion, art, science, orcharitable purposes, historic monuments, and hospitals. 3 Th ese rulesare incorporated textually in the war manuals of the United States,Great Bri tain, and France.The German manual, however, as i t so often does, repudiatesthe Hague rule and declares that a preliminary notification of bomba rdm en t is not required in any case. Th e claims to the co ntrar ypu t forward by some juri sts are, we are told, absolutely contra ry tothe necessities of war and must be rejected by soldiers; moreover, theinstances in which warning has been voluntarily given do not prove

the existence of an obligation. Th e besieging com man der mu st determine for himself whether the giving of preliminary notice will havethe effect of endangering the success of his operations through theloss of precio us tim e. If he is satisfied t h a t it will ha ve this effect heis not bound to give warning; if , on the contrary, he has nothing tofear from giving the notification, "conformity to the exigences ofhu m an ity " requires th at i t should be given.* In sho rt, the du ty ofthe belligerent in this as in other cases is determined not by considerations of humanity but by its effect upon the success of the militaryopera tions. T he American rules add th at while there is no rulerequiring a besieging commander to allow women and children to beremoved before the bombardment commences, i t has been the American practice to allow them to leave and the manual reproduces thetext of an order issued by General Noghi during the Russo-Japanesewar giving permission to the women and children to leave PortArthur before the bombardment commenced.5 Th e text of the German manual does not differ from those of the other three countries inholding that no such obligation is incumbent upon a besieging commander, but i t does not go to the length which the British manualdoes6 of saying th at considerations of hu m an ity mak e it desirable ifArt. 25.*Art. 26.Art. 27.^Morgan, p. 104; Carpentier, p. 45.5American Rules,p. 68.'Art. 127. 26


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possible to permit the inhabitants