SECTION 5. _submarines_

Submarines

GERMANY AND THE HAGUE

Sir,--One excuse for German atrocities put forward, as you report, in the Kolnische Zeitung, ought probably not to pass unnoticed, denying, as it does, any binding authority to the restrictions imposed upon the conduct of warfare, on land or at sea, by The Hague Conventions of 1907. It is true that each of these Conventions contains an article to the effect that its provisions "are applicable only between the contracting Powers, and only if all the belligerents are parties to the Convention." It is also true that three of the belligerents in the world-war now raging--namely, Serbia, Montenegro, and, recently, Turkey--although they have (through their delegates) signed these Conventions, have not yet ratified them. Therefore, urges the Zeitung, the Conventions are, for present purposes, waste paper. The argument is as technically correct as its application would be unreasonable; and I should like to recall the fact that, in the important prize case of the Möwe, Sir Samuel Evans, in a considered judgment, pointed out the undesirability of refusing application to the maritime conventions because they had not been ratified by Montenegro, which has no navy, or by Serbia, which has no seaboard; and accordingly, even after Turkey, which also has not ratified, had become a belligerent, declined to deprive a German shipowner of an indulgence to which he was entitled under the Sixth Hague Convention.

Admiral von Tirpitz was perhaps not serious when he intimated to the representative of the United Press of America that German submarines might be instructed to torpedo all trading vessels of the Allies which approach the British coasts. The first duty of a ship of war which proposes to sink an enemy vessel is admittedly, before so doing, to provide for the safety of all its occupants, which (except in certain rare eventualities) can only be secured by their being taken on board of the warship. A submarine has obviously no space to spare for such an addition to its own staff.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 26 (1914).

The charitable view taken in the last paragraph has, of course, not been justified.

For the Möwe, see 2 Lloyd, 70. On the restrictive article in The Hague Convention, cf. passim.

"THE PIRATES"

Sir,--Would it not be desirable, in discussing the execrable tactics of the German submarines, to abandon the employment of the terms "piracy" and "murder," unless with a distinct understanding that they are used merely as terms of abuse?

A ship is regarded by international law as "piratical" only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (nullius Principis auctoritate, as Bynkershoek puts it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade. "Murder" is such slaying as is forbidden by the national law of the country which takes cognizance of it.

In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, being duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration. In any case, it is not for us to rival the barbarism of their Government by allowing them to drown.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 13 (1915)

SUBMARINE CREWS

Sir,--My letter in The Times of March 15 with reference to the conduct of certain of the German submarines has been followed by a good many other letters upon the same subject. Some of your correspondents have travelled far from the question at issue into the general question of permissible reprisals, into which I have no intention of following them. But others, by exhibiting what I may venture to describe as an ignoratio elenchi, have made it desirable to recall attention to the specific purport of my former letter. It was to the effect--(1) that the acts of those who, in pursuance of a Government commission, sink merchant vessels without warning are not "piracy," the essence of that offence at international law being that it is committed under no recognised authority; and that neither is it "murder" under English law; (2) that the question of the treatment appropriate to the perpetrators of such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as a general rule, that Government authority exempts all who act under it from penal consequences. The long-established treatment of spies is sufficient proof to the contrary.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 22 (1915).

MR. WILSON'S NOTE

Sir,--I may perhaps be permitted to endorse every word of the high praise bestowed in your leading article of this morning upon the Note addressed to Germany by the Government of the United States. The frequent mentions which it contains of "American ships," "American citizens," and the like, were, no doubt, natural and necessary, as establishing the locus standi of that Government in the controversy which it is carrying on. But we find also in the Note matters of even more transcendent interest, relating to the hitherto universally accepted doctrines of international law, applicable to the treatment of enemy as well as of neutral vessels.

It may suffice to cite the paragraph which assumes as indisputable

"the rule that the lives of non-combatants, whether they be of neutral citizenship or citizens of one of the nations at war, cannot lawfully or rightfully be put in jeopardy by the capture or destruction of unarmed merchantmen,"

as also

"the obligation to take the usual precaution of visit and search to ascertain whether a suspected merchantman is in fact of belligerent nationality, or is in fact carrying contraband under a neutral flag."

The Note also recognises, what you some time ago allowed me to point out,

"the practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice, and humanity which modern opinion regards as imperative."

Adding:--

"It is practically impossible for them to make a prize of her, and if they cannot put a prize crew on board, they cannot sink her without leaving her crew and all on board her to the mercy of the sea in her small boats."

Nothing could be more satisfactory than the views thus authoritatively put forth, first as to the applicable law, and secondly as to the means by which its prescriptions can be carried out.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, May 15 (1915).

Cf. supra, p. 70.

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