Chapter I: Introductory (2)

I have been told that there are still some individuals in England who cherish the idea that this vast orgy of blood, lust, rapine, hate, and pride is in some peculiar way merely the _Bacchanalia_ of troops unused to the heady bouquet of the wines of Champagne or, stranger still, that it is the mental aberration of a people seduced by idle tales into these courses by its rulers. It is no part of my task to find explanations. But if the reader is astonished, as well he may be, at the disgusting repetition of stories of rape and sodomy let him study the statistics of crime in Germany during the first decade of this century, issued by the Imperial Government; he will find in them much to confirm the impression that the whole people is infected with some kind of moral distemper.[60] The seduction of a people by its rulers is impossible; such hypnotic susceptibility to the influences of “suggestion” would, of itself, be a symptom of mental degeneration in the people itself. It is impossible to believe that the most highly educated nation in Europe is either so ignorant or so credulous as such an explanation would suggest. It is not in their ignorance but in their turpitude that the clue to these barbarities is to be found. This is a sombre fact which has to be faced or these appalling records will have been sifted and published in vain. The problem of explanation is ultimately one for the anthropologist rather than the lawyer, and there may be force in the contention of those who believe that the Prussian is not a member of the Teutonic family at all, but a “throw-back” to some Tartar stock. Certain it is that he exhibits an insensibility to the feelings of others which is only equalled by his extreme sensitiveness as to his own.[61] This morbid insensibility is, of course, the secret of German “Terrorism,” and of the immense influence which it has exerted on the theory and practice of war among the German nation. It explains their singular ingenuity in finding means to an end, and between the German trooper who dips a baby’s head into scalding water in order to get more coffee from its mother[62] to the commandant who at the point of the bayonet thrusts a living screen of priests, old men, and women with babes at the breast[63] between his own troops and those of the enemy there is a difference of degree rather than of kind. Similarly the dark passage in the German War Book which hints that there may be occasions on which it will be profitable to massacre prisoners of war reveals the same quality of mind as the order to shoot helpless sailors who are struggling for their lives in the sea.[64] All things are lawful which are expedient, and if your enemy has ties of affection, the better he lends himself to your belligerent exploitation. _Mentem mortalia tangunt_--human things touch the heart--acquires for the German Staff a new and sinister significance. Every tender feeling that their enemy has becomes a hostage for his tractability, because it can be violated if he is contumacious. His churches can be profaned, his priests murdered, his boys driven into exile, his women-folk handed over to the lust of a licentious soldiery, and his home destroyed. If his troops defeat one in the field, the civilian population can be made to pay for it with their lives,[65] so that eventually he may be disarmed not by defeat but by horror. His own humanity will be his undoing. Not fear but anguish will bring him to his knees.

This is the German doctrine, secreted in the pages of many a German manual,[66] and now published to the world in the German Proclamations and the evil deeds which they both excuse and provoke. This it is which has made the German nation, in the words of Lord Rosebery, “the enemy of the human race,” and has caused the very name of this bestial and servile people to stink in the nostrils of mankind.

IV

THE FUTURE OF INTERNATIONAL LAW AND THE QUESTION OF RETRIBUTION

The Dissolution of Europe.

Many years ago the most distinguished of the modern school of French historians wrote a remarkable essay on the subject of “Diplomacy and Progress.”[67] He knew Europe as few had known it; he had spent his life in its chancelleries and its archives, and his wisdom was only equalled by his knowledge, for he had studied not only books but men. In that essay he speculated as to the effect of the progress of mechanical invention in the arts of war upon the prospects of European peace, and he confessed to a mournful depression. But the source of his apprehension was not Europe but Asia. He foresaw the possibility of some potent Oriental nation awaking from its secular meditations and applying itself in a single generation to an apprenticeship in those mechanical arts which are no longer the peculiar mystery and the prerogative of the Western world. A nation thus acquiring the destructive resources of the West, while retaining the peculiar morality of the East--its ruthlessness, its contempt for human life, its sombre fatalism, its indifference to personal liberty, its chicanery, its love of espionage--might, he apprehended, fall upon Europe in a catastrophic assault as unforeseen as it would be unprovoked, and threaten her with destruction.

The catastrophe has fallen, but the foes of Europe have been those of her own household, and we have discovered with a shock of dismay that the comity of European nations has harboured a Power which is European in nothing but in name, and is more completely alien to Western ideals than the tribes of Afghanistan. A hybrid nation of this type which is intellectual without being refined, which can discipline its mind but cannot control its appetites, which can acquire the idiom of Europe and yet retain the instincts of Asia or rather of some pre-Asiatic horde, presents the greatest problem that has ever perplexed the civilisation of man. It is like an intellectual savage who has learnt the language and studied the dress and deportment of polite society, but all the while nurtures dark atavisms and murderous impulses in the centres of his brain. The subtle danger of the presence of such a nation in the European comity is that it uses the language of that international society, and yet all the while means something different, and that with every appearance of solemn subscription to its forms and treaties it is making mental reservations and “economies” which strike at the very root of them.

The Casuistry of the Intellectual Savage.

In the hands of such a nation an international convention is not merely idle and impotent; the convention itself becomes positively dangerous, simply because it can be perverted. It can be used to invest the most barbarous acts with a specious plausibility, and can be turned against the very people whom it was designed to protect. Any one who takes the trouble to study the official proclamations of the German military authorities, or the introductory memorandum to the German White Book, cannot fail to be struck by this. A civilian who fires on the enemy forfeits under international law the privileges of a non-combatant. The rule means as much as it says, and no more; it does not impose on a civil community the obligation to prove that it is a non-combatant. But in nine out of ten German proclamations the rule is invoked as an excuse for involving a whole community in responsibility with their lives for the acts or omissions, real or alleged, of single individuals--“the innocent will suffer with the guilty”[68]--and the “law of nations” is invoked to put a whole population “outside the pale” of it.[69] At one stroke we are carried back to the days of the blood-feud and of vicarious punishment, and the law of nations is perverted from an instrument of progress to an organon of bloody sophistries. So, too, the Hague Convention which requires that requisitions of supplies should not be made without giving receipts is observed in the letter and violated in the spirit; receipts are given, but they are forged. The obligation of a treaty guaranteeing the neutrality of Belgium is admitted, but a false charge and a falsified document is advanced to justify its breach. A brigade order to kill all prisoners is first denied, and then when denial becomes futile, a fictitious order of a prior date is alleged against us in order to dignify the real order with the sanction of “reprisals.” Defenceless merchantmen are attacked and sunk at first sight, and then when they carry guns for their protection their precautions for defence are used as a retrospective pretext for attack. The same curious casuistry is invoked to excuse the attacks on Scarborough and London, and the Hague Convention is interpreted, in defiance of its authors, to support the plea that whatever barbarity is not expressly prohibited is thereby condoned.

Germany as a Moral Pervert.

It is this terrible perversion, this prostitution of words until, to quote a classical expression of Thucydides, they have lost their meaning in relation to things, that seems to me the most intractable problem that we have to face. To my mind it is this pathological aspect of the German temperament which presents a far more serious obstacle to a restoration of the European comity based on the readmission of Germany to membership than the German dogma of war. You may, perhaps, extirpate a dogma but you cannot alter a temperament. To regard Germany as the misguided pupil of a military caste which alone stands in the way of her reformation seems to me to ignore the volume of evidence as to the complicity of officers and men in those orgies of outrage. I cannot avoid the conclusion that the whole people is infected with a kind of moral distemper.

“Look, Madame,” said a German soldier to a French woman who
witnessed the execution of three poor travellers who with their
hands tied behind their backs with napkins were led into a
field close to her house and shot by six soldiers under the
command of a German officer, “Look! isn’t it fine! See them
shoot some French civilians. A fine feat that! All the others
ought to be killed in the same way.”[70]

The sentiment is typical; German diaries are full of such things. Nor is it reasonable to suppose that the kind of teaching which has made Clausewitz and Treitschke and Bernhardi the gospel of the German people, and has found authoritative expression in the German War Book, could have commanded the prestige which it does command in Germany if it had not found a people apt and eager by temperament to receive it. Germany stands alone among modern nations in extending its official conception, and even its academic analysis[71] of war, to include the deliberate “terrorization” of non-combatants. She alone has taught, both by precept and example, that there are no limitations to what is justifiable by the exigencies of war. “_C’est la guerre_” is the common answer of German officers when implored by the victims to stop the lust and rapine of their men.[72] It follows from all this that war as taught and practised by the Germans exceeds in savagery even the practices of the ancient world, in which it was thought the mark of barbarism to poison wells, desecrate temples and murder priests--practices which the Germans have not hesitated to pursue. Incitement to assassination, which was thought a mean and dishonourable thing by the Roman mind,[73] is specifically recommended in the German War Book.

In the ancient world the vanquished were regarded as rightless, and whole populations were sold into slavery after they had been decimated by the slaughter of their leading citizens. The German practice is not intrinsically different; municipal magistrates, parish priests, and one in three of the civil population have been butchered, many civilians carried off to Germany to work in the fields, and those who are left behind forced to dig trenches for their captors while their wives and daughters are handed over to the lust of the soldiery, and their movable property transported. It is difficult to see how this differs in anything but name from the tragic fate of those unhappy communities who in the laconic phrase of the ancient world passed _sub corona_ and were sold by auction. All this differs from the practices of the ancient world in nothing except a certain affectation, the one concession to modern sentiment being a studious defamation by the Germans of the people whom they ravish and despoil. It seems to me that bad as the German crimes are the German justification for them is even worse. For it betrays a real corruption of mind. The ancients were often brutal but they were never hypocritical.

The Bankruptcy of The Hague Conventions.

What hope then can there be of a restoration of the comity of European nations, and the re-establishment of the Hague Conventions? I confess I can see none. The German Empire was conceived in duplicity and brought forth in war, and three times within living memory, as Sir Edward Grey has reminded us, she has wantonly provoked war in Europe in pursuance of her predatory designs. I can see no way out of the present travail except an armed peace, with the elimination as its basis for a long time to come of Germany from the councils of Europe. What hope of understanding can there be with a nation which does not observe the ordinary rules of diplomatic intercourse, that _jus fetiale_ which even the ancient world regarded as sacred? The world has seen with stupefaction--there has, I think, been no such case for hundreds of years--the Ambassador of the Austrian Government taking advantage of his immunities and sovereign character to suborn seditious conspiracy in the State to which he was accredited?[74] It is difficult to believe that this case now stands alone. Conventions with such a Power are both a delusion and a snare. They delude us with an appearance of agreement where none exists. In unscrupulous hands, the more precise and technical they are, the more do they lend themselves to casuistry, adding, as some one has said, the terrors of law to the horrors of war. I am afraid that such conventions are now hopelessly discredited. I doubt if we shall hear very much in future of the distinction between combatants and non-combatants, or of the sanctity of the _levée en masse_ as a medium of lawful transition from the one to the other; he who studies the German White Book on hostilities in Belgium will see how easily a belligerent, if he be so minded, can dispose with a quibble of the obligations to respect an improvised force which has “no time” to organise. A belligerent contemplating a sudden attack and a belligerent having to meet it will entertain very different conceptions as to what is meant by “no time.” War has, indeed, come to be, as von der Goltz prophesied it would be, a war not between armies but between peoples, and we are further than ever from the oft-quoted maxim of Rousseau that “War is not a relation of Man to Man but of States to States,” in which particular individuals are enemies only by the accident of a uniform. That was the voice of Individualism; but States grow more and more collectivist, and never so collectivist as in war. If, as an eminent writer has remarked, “out of the inner life of a nation comes its foreign policy,” so, we may add, out of its municipal law, its military usages, and its economic necessities will come its construction of international law.

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.