America's case against Germany

Preface

I have attempted in the pages that follow to describe the origin and development of the controversy which was the immediate cause of war between the United States and Germany. The diplomatic exchanges dealing with the submarine issue are not accessible to every one; and in any event they contain so much verbiage and are so arranged that they will not be resorted to in order to secure a knowledge of the issues involved. I have sought to furnish a chronological account of Mr. Wilson's policy — narrative and explanatory, not critical or defensive, for it is too early to pass definite judgment.

There are unmistakable evidences that the justice of our case against Germany has not been clearly understood even by loyal Americans. If one reads the debates in Congress on the war resolution or armed neutrality, for example, he cannot fail to discover an amount of misinformation which is surprising and dis-

vii viii PREFACE

heartening. And so I have thought it worth while to give a treatment of the points of international law involved as brief and untechnical as is consistent with the necessity for explaining the legal grounds of the American position — particularly with regard to the submarine as a new weapon, not subject to established rules, the status of armed merchant ships, the problem of munition exports, and the difference between the English and German " blockades.' ' These are the problems which seem to have caused the greatest confusion of thought, and no attempt has yet been made to treat them together and to furnish the basis upon which war with Germany was inevitable. In the introductory chapter I refer briefly to the fact that President Wilson has ascribed our participation in the war to the duty of fighting for peace, democracy, and liberty against a state which has committed terrible outrages on these ideals, and that there are grounds, other than the legal one, upon which our case against Germany may be rested. The formulation of a moral indictment is not here attempted; it has already been repeatedly

PREFACE ix

drawn up in the literature which seeks to explain the purposes of those nations which are now our Allies. Germany was guilty of a brutish invasion of human rights everywhere, and it was simply one phase of this — the callous assassination, not alone on the high seas, of noncombatant citizens of both sexes and all ages — which so aroused the indignation of America that war was inevitable. The mere unlawfulness of the submarine warfare was not decisive; that might have been overlooked. But it is nevertheless true that the purely legal issue is of fundamental importance, because if American citizens had not had a legal right to travel unmolested, even when on armed merchantmen ; if American vessels, no matter with what cargoes, had not had a legal immunity from destruction until the lives of their passengers and crew were safeguarded, the United States would have been unable to protest against the war zone decree, to announce that Germany would be held to a "strict accountability,' ' and to consider the sinking of the Lusitania "deliberately unfriendly. y ' But for the fact that the United States could rest its x PEEFACE

case upon the unquestioned principles of international law, it is certain that the exercise of personal privileges, unprotected by international agreement, would not have been supported at the cost of war.

To be sure, Mr. Wilson's protests were in part calculated to stay an international ruthlessness which demanded our condemnation and threatened, if it did not already affect, our interests. But the repeated disregard by Germany of legal rights was responsible for the moral indignation which made war inevitable, and it is of fundamental importance, I take it, that the correctness of America's legal position be understood, because, but for it, we would still be at peace. It is only one, but it is the primary and indispensable part of America's case against Germany, and to contribute to its understanding — which should be had by every intelligent citizen — this book has been written.

BIBLIOGRAPHICAL NOTE

A vast amount of material has appeared in print dealing with international law and the war generally, and with the submarine question particularly. Much of this is of a very ephemeral character, and it would be futile to attempt any exhaustive bibliography. Attention may, however, be properly drawn to some of the more accessible and important authorities.

The diplomatic documents on the submarine controversy have been published in several forms. The Department of State has issued three White Papers (the last appearing on August 12, 1916) ; the correspondence then available appears, very competently edited, in Supplements (July, 1915, and October, 1916) to the American Journal of International Law; some of the documents are available in the convenient form of the pamphlets of the World Peace Foundation and the American Association for International Conciliation; many of

xi xii BIBLIOGRAPHICAL NOTE

them were published in the Congressional Record from time to time, and Congressman S. D. Fess has attempted to collect them all under the title, "The Problems of Neutrality When the World Is at War" (64th Congress, 2d Session, House Document, 2111). Most of the more important notes appear without abridgment in The New York Times Current History, which is valuable also for an account of all the submarine outrages, some of which did not figure in the diplomatic exchanges.

The most elaborate secondary work is Dr. Coleman Phillipson's International Law and the Great War (London, 1915, and New York, 1916), but this was completed immediately after the sinking of the Lusitania. More valuable is the material which has appeared in the American Journal of International Law. Under the general heading "International Law and the European War," Professor James W. Garner has discussed "The Use of Submarine Mines" (Vol. IX, p. 86); "Contraband, Eight of Search,and Continuous Voyage" {Ibid., p. 372) ; "War Zones and Submarine Warfare" {Ibid., p. 594) ; "Destruction of Neutral Merchant Ves-

BIBLIOGRAPHICAL NOTE xiii

sels" (Vol. X, p. 12) ; "The Sale and Exportation of Arms and Munitions of War to Belligerents" (Ibid., p. 749). Elaborate editorials by the distinguished editor of the Journal, Dr. James Brown Scott, cover practically all of the legal questions to which the war has given rise. Worthy of mention also are the following: Edwin J. Clapp, Economic Aspects of the War (New Haven, 1915), which attacks England's restrictions on trade ; Sir Francis Piggott, The Neutral Merchant and Contraband of War and Blockade (London, 1915), which is by far the best defense of the Orders in Council and deserves an American edition; Sir Frederick Smith, The Destruction of Merchant Ships wider International Law (London, 1917) ; A. Pearce Higgins, Defensively Armed Merchant Ships and Submarine Warfare (London, 1917), which is an amplified edition of his American Journal of International Law article (Vol. VTII, p. 705; also published as Senate Document No. 332, 64th Congress, 1st Session) ; Ealeigh C. Minor, "The Eule of Law Which Should Govern the Conduct of Submarines with Eeference to Enemy and Neutral Merchant xiv BIBLIOGEAPHICAL NOTE

Vessels and the Conduct of Such Vessels Toward Submarines ' 9 (Proceedings of the American Society of International Law, 1916, Vol. X, p. 51) — an extremely clear statement of the rules, and William Cullen Dennis, "Bights of Citizens of Neutral Countries to Sell and Export Arms and Munitions of War to Belligerents" (Annals of the American Academy of Political and Social Science, Vol. LX, p. 168). Special attention should be directed, finally, to two articles, each of which gives, I think, the best discussion thus far of its particular subject. An anonymous writer, evidently an American, contributes to The Round Table (June, 1916, No. 23) a remarkably able article on "The German- American Submarine Controversy," which discusses the most important points up to the, sinking of the Sussex; and Professor Monroe Smith gives in the Political Science Quarterly (December, 1916) a sometimes cursory but always incisive and fair consideration of "American Diplomacy in the European War."

Table Of Contents

Preface vii

Bibliographical Note xi

CHAPTER

Chapter II The War Zone Decrees And Germany^ Sub

The right to use submarines against merchant vessels — and it is the assertion by Germany of that right to which the United States has objected — is bound up with the question of war zones, strategic areas from which private vessels are warned. The latter problem is a new one in international law and as yet largely unregulated. One of the first applications of the principle that a certain portion of the high seas may be designated by belligerents ; that therein they may exercise their rights of capture and sinking to the fullest degree, and that neutral vessels are more likely to come to grief on account of hostile operations, was in a Japanese ordinance issued two weeks before the outbreak of the war with Russia. Instead of a war zone

the restricted vicinity was called a ' ' defense sea

ll area," and among other regulations merchant vessels were forbidden ingress and egress at night. This involved no important questions of international law, 1 but in spite of the indefiniteness of the rules concerning war zones, several considerations may be ventured.

In the first place, while neutral vessels may be warned of impending danger if they enter the specified areas, it is indisputable that merely by conveying such a warning the belligerent acquires no additional rights within the zone other than those he has outside. The waters which are sought to be restricted remain a portion of the high seas and the neutral has a right to navigate them. Furthermore, while the Second Hague Peace Conference refused to adopt the proposal of the British delegation that the laying of mines in the open seas be absolutely prohibited, it is doubtful whether a belligerent has any right to sow mines in such places that neutral ships will be destroyed while engaged in peaceful navigation. 2

1 A good discussion of the problem is to be found in International Law Situations, 1912, pp. 114-139.

2 Two recent English writers of high authority attach "no special importance to the declaration issued by the British

GEKMANY'S SUBMAEINE "BLOCKADE" 13

A war zone in the present conflict was first declared by Great Britain on October 13, 1914, when an Admiralty announcement stated that His Majesty's Government had authorized a mine laying policy in certain areas, and that it would be dangerous for ships to cross these limits. This was simply a notice to mariners but three weeks later (November 3rd), the Admiralty announced that since the Germans had scattered mines indiscriminately on the main trade route from America to Liverpool via the North of Ireland with the subsequent destruction of innocent ships (and the White Star Liner Olympic had had a lucky escape), it would be "necessary to adopt exceptional measures appropriate to the novel conditions under which this war is being waged. ' ' Notice was therefore given

"that the whole of the North Sea must be considered a military area. Within this area merchant shipping

Admiralty affecting to make the North Sea 'a military area/ All that such a declaration can effect is to put neutrals on guard: to inform them that their presence in such waters will be regarded as suspicious, and that, when navigating there, they will be more than ordinarily liable to charges of contraband trading or of unneutral service. Probably no more is meant." T. Baty and J. H. Morgan, War: Its Conduct and Legal Results, pp. 224-225.

of all kinds, traders of all countries, fishing craft, and all other vessels will be exposed to the gravest dangers from mines which it has been necessary to lay, and from warships searching vigilantly by night and day for suspicious craft. All merchant and fishing vessels of every description are hereby warned of the dangers they encounter by entering this area except in strict accordance with Admiralty directions. Every effort will be made to convey this warning to neutral countries and to vessels on the sea, but from the 5th of November onward the Admiralty announce that all ships passing a line drawn from the northern point of the Hebrides through the Faroe Islands to Iceland do so at their own peril."

Ships wishing to trade with Norway, Denmark, Holland, etc., were advised to come by the English Channel where they would be given sailing directions for a safe passage. Adherence to the routes advised would permit commerce to reach its destination, ' ' so far as Great Britain is concerned, but any straying even for a few miles from the course thus indicated, may be followed by fatal consequences. " In a statement made to the House of Commons on November 17th, Mr. Asquith said that for the first two months of the war Great Britain had abstained absolutely from the use of mines outside of British territorial waters ; but Germany, the Admiralty declared, using a merchant vessel flying a neutral flag had sowed mines indiscriminately, and thus "wantonly and recklessly endangered the lives of all who travel on the sea regardless of whether they are friend or foe, civilian or military in character." A counter measure was therefore necessary.

Against this action, the United States entered no protest. But, while the wisdom of acquiescence seems doubtful, and while even by the British measure the lives of noncombatants were endangered, England's command of the seas enabled her to afford pilots to American ships and to reduce to a minimum the possibility of disaster so far as the mines laid by her were concerned. And England, it should be remembered, expressed the desire to safeguard neutral interests in every possible manner, and notified neutrals of the dangerous area in accordance with the Hague Convention. The German mine laying was surreptitious and was denied, but that it was prior to the British measure seemed established. The German "war zone decree/ ' however, which marked the beginning of the controversy with the United States, was of a much more sinister character. Late in 1914 Admiral Von Tirpitz said that the submarine would be used to sink merchant vessels in British waters, but the rules of international law enumerating the exceptional cases in which prizes might be destroyed — the safety of passengers and crew always being an indispensable sine qua non — were so definite, and the considerations of humanity so potent, that such a procedure was almost unthinkable, and so not much attention was paid to the German admiral 's announcement. On February 4, 1915, however, there was issued the proclamation decreeing the destruction of merchant vessels by submarines. It read as follows :

"1. The waters surrounding Great Britain and Ireland including the whole English Channel are hereby declared to be war zone. On and after the 18th of February, 1915, every enemy merchant ship found in the said war zone will be destroyed without its being always possible to avert the danger threatening the crews and passengers on that account.

"2. Even neutral ships are exposed to danger in the war zone as in view of the misuse of neutral flags ordered on January 31st by the British Government and of the accidents of naval war, it cannot always be avoided to strike even neutral ships in attacks that are directed at enemy ships.

"3. Northward navigation around the Shetland Islands, in the eastern waters of the North Sea and in a strip of not less than 30 miles width along the Netherlands coast is in no danger."

A memorial of the Imperial German Government accompanying this proclamation frankly justified it as a retaliatory measure for Great Britain's interferences with German trade. Long afterward (March, 1916) the ground of defense was shifted and it was claimed that the use of the submarine against private vessels could not be illegal because, the weapon being a new one, there were no rules on the subject. But this obviously fallacious argument — to be considered more in detail later — was not advanced by the original German memorial. This alleged many violations of international law on the part of Great Britain: the repudiation of the Declaration of London; the extension of contraband lists ; the abandonment of the distinction between absolute and conditional contraband; the seizure of noncontraband German goods on neutral vessels, and the declaration that the North Sea should be an area of war,

"thereby rendering difficult and extremely dangerous, if not impossible, all navigation on the high seas between Scotland and Norway, so that they have in a way established a blockade of neutral coasts and ports, which is contrary to the elementary principles of generally accepted international law. Clearly all these measures are part of a plan to strike not only the German military operations, but also the economic system of Germany, and in the end to deliver the whole German people to reduction by famine, by intercepting legitimate neutral commerce by methods contrary to international law."

Complaint was made that the powers not at war had acquiesced in the measures taken by Great Britain, and looked with indulgence on these violations of neutrality; that neutrals were satisfied with theoretical protests.

"The time has come," the memorandum continued, "for Germany also to invoke such vital interests. It therefore finds itself under the necessity, to its regret, of taking military measures against England in retaliation of the practice followed by England. Just as England declared the whole North Sea between Scotland and Norway to be comprised within the seat of war, so does Germany now declare the waters surrounding Great Britain and Ireland, including the whole English Channel, to be comprised within the seat of war, and will prevent by all the military means at its disposal all navigation by the enemy in those waters. To this end it will endeavor to destroy, after February 18 next, any merchant vessels of the enemy which present themselves at the seat of war above indicated, although it may not always be possible to avert the dangers which may menace persons and merchandise. Neutral powers are accordingly forewarned not to continue to intrust their crews, passengers, or merchandise to such vessels. Their attention is furthermore called to the fact that it is of urgency to recommend to their own vessels to steer clear of these waters. It is true that the German Navy has received instructions to abstain from all violence against neutral vessels recognizable as such; but in view of the hazards of war, and of the misuse of the neutral flag ordered by the British Government, it will not always be possible to prevent a neutral vessel from becoming the victim of an attack intended to be directed against a vessel of the enemy. . . .

1 ' The German Government announces this measure at a time permitting enemy and neutral ships to make the necessary arrangements to reach the ports situated at the seat of war. They hope that the neutral powers will accord consideration to the vital interests of Germany equally with those of England, and will on their part assist in keeping their subjects and their goods far from the seat of war; the more so since they likewise have a great interest in seeing the termination at an early date of the war now ravaging. ' '

Against this announcement the United States, with other neutrals, protested very vigorously and there was sent to Germany the celebrated "strict accountabili ty" note of February 10, 1915. The Government of the United States called attention to the serious possibilities of the course contemplated, and requested "the Imperial German Government to consider, before action is taken, the critical situation in respect of the relations between this country and Germany which might arise were the German naval forces, in carrying out the policy foreshadowed in the Admiralty's proclamation, to destroy any merchant vessel of the United States or cause the death of American citizens.' '

The sole right of a belligerent dealing with neutral vessels on the high seas, Germany was reminded, is limited to visit and search, unless a blockade is proclaimed and made effective — a measure which the German proclamation did not propose — and

"To declare or exercise a right to attack and destroy any vessel entering a prescribed area of the high seas without first certainly determining its belligerent nationality and the contraband character of its cargo would be an act so unprecedented in naval warfare that this Government is reluctant to believe that the Imperial Government of Germany in this case contemplates it as possible. The suspicion that enemy ships are using neutral flags improperly can create no just presumption that all ships traversing a prescribed area are subject to the same suspicion. It is to determine exactly such questions that this Government understands the right of visit and search to have been recognized."

Germany was told, further, that the Government of the United States could not be accused of acquiescence in the measures taken by Great Britain to restrain neutral trade; that, on the contrary, it had insisted upon the observance of the recognized principles of international law and was free to hold the Allied Governments responsible for damage to American shipping;

and that it could take, with a clear conscience, the position indicated in this reply to the German proclamation. Therefore a solemn, and apparently definite and final warning was conveyed to Germany in strong words which have been much quoted:

"If the commanders of German vessels of war should act upon the presumption that the flag of the United States was not being used in good faith and should destroy on the high seas an American vessel or the lives of American citizens, it would be difficult for the Government of the United States to view the act in any other light than as an indefensible violation of neutral rights which it would be very hard indeed to reconcile with the friendly relations now so happily subsisting between the two Governments.

"If such a deplorable situation should arise, the Imperial German Government can readily appreciate that the Government of the United States would be constrained to hold the Imperial German Government to a strict accountability for such acts of their naval authorities and to take any steps it might be necessary to take to safeguard American lives and property and to secure to American citizens the full enjoyment of their acknowledged rights on the high seas.

"The Government of the United States, in view of these considerations, which it urges with the greatest respect and with the sincere purpose of making sure that no misunderstanding may arise and no circumstance occur that might even cloud the intercourse of the two Governments, expresses the confident hope and expectation that the Imperial German Government can and will give assurance that American citizens and their vessels will not be molested by the naval forces of Germany otherwise than by visit and search, though their vessels may be traversing the sea area delimited in the proclamation of the German Admiralty."

This protest of the United States, it will be noticed, was based almost entirely on the principle that American vessels could not, by any such order, be kept out of the war zone and little attention was paid to the rights of American citizens on belligerent vessels either as passengers or as members of the crew. As for the rights of American vessels, it may be pointed out here that, under the accepted principles of international law, vessels belonging to a neutral may not be captured and confiscated by a belligerent except when carrying a cargo more than half of which is contraband or when attempting to violate a blockade. Now, the fundamental principle of a blockade is that in order to be binding, that is, to make legal the confiscation of vessels attempting to pass, it must be effective. Since, during the first nine weeks after the German decree, according to the London Times, British ports had 11,635 arrivals and sailings, and of these only thirty-five steamers were sunk by submarines, it is obvious that the German measure was not binding and nothing more than a " paper blockade. " Hence, German submarines and cruisers had the right to capture a neutral vessel only on account of the contraband character of the cargo, and if the right of capture was thus restricted, the right of destruction was still further limited. 3

To this communication Germany replied on February 16th in a long memorandum which reviewed at even greater length than the original memorial the basis of such a measure as that contemplated. The note was very polite and attempted to counteract the unfavorable impressions among neutrals which had been

8 See the discussion of this right in the following chapter.

caused by the first memorandum. Germany, it was said,

''is- to all intents and purposes cut off from oversea supplies with the toleration, tacit or protesting, of the neutrals regardless of whether it is a question of goods which are absolute contraband or only conditional contraband or not contraband at all, following the law generally recognized before the outbreak of the war. On the other hand England with the indulgence of neutral Governments is not only being provided with such goods as are not contraband or merely conditional contraband, namely, foodstuffs, raw material, et cetera, although these are treated by England when Germany is in question as absolute contraband, but also with goods which have been regularly and unquestionably acknowledged to be absolute contraband. The German Government believe that they are obliged to point out very particularly and with the greatest emphasis, that a trade in arms exists between American manufacturers and Germany's enemies which is estimated at many hundred million marks.

"The German Government have given due recognition to the fact that as a matter of form the exercise of rights and the toleration of wrong on the part of neutrals is limited by their pleasure alone and involves no formal breach of neutrality. The German Government have not in consequence made any charge of formal breach of neutrality. The German Government cannot, however, do otherwise, especially in the interest of absolute clearness in the relations between the two countries, than to emphasize that they, in common with the public opinion in Germany, feel themselves placed at a great disadvantage through ;the fact that the neutral powers have hitherto achieved no success or only an unmeaning success in their assertion of the right to trade with Germany, acknowledged to be legitimate by international law, whereas they make unlimited use of their right to tolerate trade in contraband with England and our other enemies. Conceded that it is the formal right of neutrals not to protect their legitimate trade with Germany and even to allow themselves knowingly and willingly to be induced by England to restrict such trade, it is on the other hand not less their good right, although unfortunately not exercised, to stop trade in contraband, especially the trade in arms, with Germany's enemies."

After six months of "patience and watchful waiting, ' ' Germany had been compelled to meet this " murderous method of conducting maritime war with drastic counter measures,' ' and the note declared that

''If England invokes the powers of famine as an ally in its struggle against Germany with the intention of leaving a civilized people the alternative of perishing in misery or submitting to the yoke of England 's political and commercial will, the German Government are to-day determined to take up the gauntlet and to appeal to the same grim ally. They rely on the neutrals who have hitherto tacitly or under protest submitted to the consequences, detrimental to themselves, of England's war of famine to display not less tolerance toward Germany, even if the German measures constitute new forms of maritime war, as has hitherto been the case with the English measures. ' ' 4

4 Complaint was made particularly that the American ship Wilhelmina, en route to Hamburg, had been seized although the "cargo was destined solely for the civil population of Germany and was to be used only for this purpose according to an express declaration of the German Government. ' ' But in January, 1915, the Federal Council of Germany decreed that after February 1st, grain and flour imported should be taken over by the Government. Foodstuffs are conditional contraband and are liable to seizure if they are destined for the armed forces. England therefore claimed that in view of this decree all foodstuffs shipped into Germany after February 1st would be liable to seizure, since it would be impossible to distinguish between what was intended for the civilian population and what for the Government. England 's action was not considered legal by the United States which protested. It should be said, however, that there was some justification as a measure of reprisal for a decision to consider food absolute contraband since the Dutch vessel Maria, with a cargo of grain for Ireland, was destroyed by the German cruiser Karlsruhe, in September, 1914, without ascertaining the destination of the grain.

' ' The German Government can not have it both ways, ' ' said

Nevertheless, in spite of the claim that the starvation policy was illegal and the assumption that, as "a matter of course" neutrals would not oppose the forcible suppression of the trade in contraband, the note went on to admit the justness of the American contention and said :

"It is very far indeed from the intention of the German Government, acting in obedience to these compelling circumstances, ever to destroy neutral lives and neutral property, but on the other hand they cannot be blind to the fact that dangers arise through the action to be carried out against England which menace without discrimination all trade within the area of maritime war. This applies as a matter of course to war mines which place any ship approaching a mined area in danger, even if the limits of international law are adhered to most strictly."