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raise whether he has any legal or moral right to shift the responsibility for the enforcement of his orders to the shoulders of the civil authorities and hold them responsible for infractions which neither he nor they can prevent.
The imposition by the German officers in numerous instances of fines for the acts of unknown individuals in cutting telegraph and telephone wires, for firing upon German troops, for committing injury to bridges and lines of communications, and for other similar acts, would seem to be defensible only on the assumption that the mass of the population were accomplices, or at least approved the acts, and that the civil authorities could have prevented them had they desired to do so—an assumption which in the majority of cases was probably unwarranted.
The fine levied on Malines for the neglect of the mayor to notify the military authorities of Cardinal Mercier's journey in violation of the traffic regulations, seems to have been based on a curious interpretation of the theory of collective responsibility, and it is difficult to understand the reasoning by which the responsibility for His Eminence’s conduct was imputed to the entire population. If any one, other than the Cardinal himself, was responsible, it was the mayor, and it would seem that either he or the Cardinal and they alone were the proper persons to punish.
The same thing may be said of the punishment of various towns and cities for the refusal of the municipal authorities to furnish the Germans with the names of unemployed persons and with lists of the local railway employees. It was they and not the population who refused to comply with the orders of the occupying belligerent, and it would seem that they were the proper persons to punish. The imposition of collective fines in these and other similar cases cannot be justified on any reasonable theory of community responsibility; they were in fact nothing more than contributions levied under the pretext of punitive measures and for the enrichment of the military occupant. The fining of Epernay for the inability of the civil authorities to comply with the demand of the military authorities for a quantity of salted bacon,
if the assertion of the civil authorities be true, that no such supplies were available in the town, was wholly indefensible; if the facts were otherwise, the punishment was of course a justifiable measure.
Both the Belgian and French authorities charge the Germans with imposing community fines in various instances for acts which were committed, not by the civil population, but by persons belonging to the regular armed forces and which were therefore legitimate acts of war for which the community was not liable to punishment. It is impossible to establish the truth of this charge, although there is good reason for believing that the Germans, as in 1870–71, went too far in treating injuries to their communications and other similar acts when done by detached bodies of troops as the acts of francs-tireurs and, therefore, not permissible by the laws of war. There can be little doubt that the German franc-tireur doctrine has been over-exploited and too often invoked as a justification for severities against the civil population for acts which were committed by persons belonging to the regularly organized armed forces.
On the whole, the evidence regarding German practice in respect to the imposition of pecuniary penalties on the civil population of occupied districts during the present war justifies the conclusion that their policy was based on a theory of collective responsibility which is neither in accord with the well established principles of modern criminal law nor with the interpretation of Article 50 of the Hague Convention which has been given it by the great majority of recent writers on international law, including even many of those of German nationality. Unfortunately, the theory of collective responsibility, even when applied in its mildest form, necessarily involves the punishment of innocent persons, and for this reason it ought never be resorted to when other more just measures would accomplish the same end, and in no case unless an active or passive responsibility can really be imputed to the mass of the population, or where the civil authorities have failed to exercise reasonable deligence to prevent infractions or to discover and punish the actual offender in case they have been unable to prevent the offenses. Some writers hold that collective punishments ought never be resorted to except as a measure of reprisal, while others, like Bonfils and G. F. de Martens, condemn the whole theory and express the hope that it will ultimately disappear entirely from warfare. 81
81 Bonfils, Droit Int., pub. sec. 1224, and G. F. de Martens, Traité de Droit Int., Vol. III, p. 265. Compare also Rouard de Card, p. 178.
As the Germans have learned, however, it is a measure which is both easy of enforcement and is generally effective in deterring the civil population from committing infractions against the authority of the occupying forces, and these circumstances have accentuated the temptation to abuse the right and to extend it to cases to which it can not be applied, except upon an interpretation which can hardly be reconciled with reason or the generally recognized principles of criminal justice. It was just because of its effectiveness that Leuder, Loening and other German writers have sought to justify the wide extension of the theory and its use on a large scale in the war of 1870–71. There is no difficulty in justifying such a policy, if one only accepts the German doctrine that the test of the legitimacy of an instrument or a measure is its effectiveness, that is, whether its employment contributes to the attainment of the object of the war.
However strongly we may condemn the general policy of the Germans in respect to the imposition of collective penalties during the present war, it would be going too far to assert that the conduct of the civil population of the districts occupied by the German forces was always irreproachable. It is difficult for an American on the basis of the information now available to reach a definite conclusion as to the truth or falsity of the various charges and countercharges, but it is fair to assume that in some instances the imposition of fines was not
82 See, for example, the Kriegsbrauch im Landkriege (trans. by Morgan), pp. 69, 84, 85; Leuder in Holtzendorff, Vol. IV, sec. 96; Von Hartmann, Militärische Nothwendigkeit und Humanität in the Deutsche Rundschau, Vol. XIII, pp. 119 ff. and Vol. XIV, pp. 117 ff. and von Clausewitz on War (Eng. trans. by Graham, Ch. II). See also the views of Field Marshal Prince Schwarzenberg quoted in the Continental Times of September 17, 1915. There is little German literature dealing with the levying of collective penalties during the present war which is yet available in America. Meurer's monograph entitled Die völkerrechtliche Stellung der vom Fiend besetzien Gebiete (1915) contains a brief general defense of the German policy, and Albert Zorn in his Kriegsrecht zu Land (1915) apparently finds nothing for which the Germans may justly be reproached. It is a little singular that the German White Book, the Belgian Peoples' War, which contains an elaborate defense of many of the charges that have been made against the Germans in Belgium, gives no attention to the subject of contributions, requisitions or fines. Likewise Stier-Somlo, in a long article dealing with international law in the territories occupied by the German forces (Zeitschrift für Völkerrecht, Vol. VIII (1914), pp. 581-608, ignores the Belgian charges that the Germans were guilty of a policy of wholesale spoliation under the form of contributions, requisitions, and collective fines.
unjustified, if we accept the theory of collective responsibility in any form. Nevertheless, it may be said, by way of extenuation of the conduct of the Belgians, where they were really guilty of committing offenses against the authority of the occupying forces, that the provocation under which they acted was extremely great. They were the innocent victims of an unjust invasion; they were expected to remain silent spectators while their land was ravaged and their countrymen put to death in large numbers without cause, as they believed; to all this and more they were required to submit absolutely 'under the severest penalties. That they should have at times overstepped the hard limits which were thus set to their conduct by a ruthless military conqueror is to have been expected. These extenuating circumstances the Germans might well have taken into account, and where real military necessity required the infliction of punishment in the form of pecuniary exactions, more regard might have been had to the impoverished condition of the inhabitants and their inability to raise exorbitant sums of money. Measures of such severity as those to which the Germans had recourse in many instances are always of doubtful expediency in the end, because instead of subserving a real military necessity they only tend to drive the population to desperation, to arouse an undying hatred against the occupying belligerent, to intensify the spirit of revenge, and finally to make it more difficult to overcome effectively the resistance of the people who are made the victims of such severities.
JAMES W. GARNER.
TREATY VIOLATION AND DEFECTIVE DRAFTING
A TREATY, by whatever technical name it may be known, is a solemn undertaking in derogation of the sovereignty of the state, which is entered into for the purpose of establishing, regulating, or destroying a juridical contract binding two or more states. It ordinarily establishes the definition of a specific jural relation actually subsisting between the contractants, who engage to accept and enforce it as positive law;' but not infrequently establishes new relations. Accord
1 A treaty is primarily a compact between independent nations, and has been briefly described as a contract between nations. 38 Cyc., 961.
A compact between states or organized communities or their representatives. United States v. Hunter, 21 Fed. 615, 616.
Treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization. Mr. Justice Brown in Tucker v. Alexandroff, 1901, 183 U. S., 424, 427, cited in Scott's Cases on International Law, 426.
As between nations it [a treaty] is in its nature a contract, and if the consideration fail, for example, or if its important provisions be broken by one party the other may, at its option, declare it terminated. Davis, J., in Hooper, Admr. o. United States and other cases, 1887, 22 Court of Claims, 408, 416.
Treaties are not purely voluntary compromises; they are acknowledgments of material conditions engendered by the state of society. Those which have anticipated most have been doomed to the most humiliating failures. David Jayne Hill, History of European Diplomacy, II, 605.
Their general character must assimilate them to a real contract. They may be defined as the expressly declared agreement by two or more states to establish, modify or extend between them an obligatory relation. Despagnet, Cours de Droit international, sec. 444.
Hautefeuille (Des droits et des devoirs de nations neutres, I, 10) observes that treaties which limit themselves to appealing to the provisions of primitive laws and to determining and regulating the method of their exercise between the contracting parties are always obligatory, not only for the whole time stipulated by the parties, but for the whole period of existence of the contracting states, because they cannot modify the rules relative to the execution of the primitive laws.
A treaty is a contract between independent political societies. . . . A contract is an accepted promise. . . . An obligation is a force determining human conduct. The force exerted by the penalty attached to the breach of law, and thus by the law itself, is the thing corresponding to the phrase legal obligation. The force