it was in violation of the provisions of a great convention of which Germany and the other Powers were signatories.

The bombardment of the cathedral at Rheims was, if the German version is correct, more excusable. The city was clearly defended, and was therefore liable to bombardment. If, as the Germans claim, the French were using the tower for purposes of observation to direct their artillery fire, the enemy was justified in trying to remove the observation post, as they were in the case of the Strassburg Cathedral in 1870; and if, as they claim, the bombardment ceased as soon as the steeple had been cut away and they inflicted no more damage than was necessary to accomplish this object, the French and not they must bear the responsibility. If, on the other hand, as the London Times asserts,110 the cathedral was not being used by the French for military purposes, and that a Red Cross flag floated over the tower and protected German wounded within its walls, the destruction was wholly unjustifiable, for such architectural landmarks as this noble cathedral belong not to France but to the world. They are the common heritage of civilization and are protected not only by their sanctity but by the law of nations. What was said in the act restoring to the Philadelphia Academy of Sciences a collection of paintings captured in 1812 by a British vessel, "the arts and sciences are considered not as the peculium of this or that nation but as the property of mankind at large," may be equally said of such landmarks as the cathedral at Rheims.

No one has more severely condemned such acts than Bluntschli. "The intentional destruction or degradation," he says, "of monuments and works of art, instruments and scientific collections, by the troops of occupation of enemy territory are not permitted in time of war and are considered today as acts of barbarism.111 Churches, hospitals, buildings devoted to charity, museums and other scientific or philanthropic establishments must, as far as possible, be respected." 112

110 Weekly edition, September 25, 1914.

111 Droit International Codifié, Tr. by Lardy, sec. 644.

112 Ibid., sec. 648; cf. also secs. 34-36 of Lieber's "Instructions for the Government of the Armies of the United States."

The "sacking" of Senlis, like the burning of Louvain, was a punitive measure inflicted on the town because of shots alleged to have been fired on the German soldiers from the windows of private houses. The mayor, who had been seized as a hostage, was shot, the town was bombarded, many houses, including the railway station, were destroyed, and the cathedral was damaged. Except as to the bombardment of the cathedral, the punishment was not contrary to the laws of war as they are now understood, although it may have been more severe than the circumstances of the case required. The punishment of the villages of Linsmeau and Orsmael was justified by the Germans on the same ground, although the Belgians deny that any part of the civil population participated in the attack on the German troops.

The "massacre" at Aerschot was a punishment for the alleged killing of a German officer by the son of the burgomaster. About 150 citizens, including the burgomaster and his fifteen year old son, are alleged to have been seized and shot and the town pillaged. Again the Belgians deny the charge that the son of the burgomaster killed the German officer or that any of the civil population took part in the fighting. For lack of evidence, it is impossible to say which version is the correct one. The punishment may have been needlessly severe, but the laws of war allow it and they do not undertake to prescribe the character or extent of the punishment that may be inflicted in such cases. Nevertheless, the Hague convention states that, in the absence of a written understanding, it is not intended that unforeseen cases shall be left to the arbitrary judgment of military commanders, and it adds that the contracting parties have thought it expedient "to declare that in cases not included in the regulations adopted by them, populations and belligerents remain under their protection and the rule of the principles of the law of nations as they result from usages established between civilized nations, from the laws of humanity and the demand of the public conscience."

The old idea that it is permissible to a belligerent to resort to any measures which in his judgment may induce an enemy to sue for peace is, happily, no longer recognized. The civilized world has given its approval to two great principles: first, that the sole object of war is to overcome the military forces of the enemy, and, second, that the means

which may be adopted to accomplish this object are not unlimited.113 The view expressed by Bismarck in 1870 that a people may be made to suffer to induce them to long for peace would not, says Spaight, be acted on by any civilized nation today.114 The German doctrine of military necessity-the distinction between Kriegsrecht, Kriegsmanier, Kriegsgebrauch, or the normal rules of war, on the one hand, and Kriegsraison, or the exceptional rules of war, on the other, the latter of which allows resort to extreme methods, including pillage, incendiarism, terrorism, systematic devastation, and even the putting to death of inoffensive citizens, has been severely condemned by English, French and American writers as the very negation of the laws of war, as a recognition of the arbitrary supremacy of military commanders and a sanction of the maxim that in war the end justifies the means.115 According to this doctrine, the laws of war cease to be obligatory when the circumstances are such that the attainment of the object of war would be hindered by their observance, or, to quote the German maxim, Kriegsraison geht vor Kriegsrecht.

But Bluntschli does not go to such lengths, and nowhere does he refer to the distinction between Kriegsrecht and Kriegsraison. He says, "One may do in time of war whatever is required in military operations, that is to say, whatever is necessary for the attainment of the object of war, so long as it does not violate the laws of humanity and the accepted usages of civilized nations." 116 Again, he lays down the principle that the rules of international law in respect to the rights and obligations of 113 Compare Spaight, p. 74, and Wheaton, Pt. IV, Ch. II.

114 Op. cit., p. 113.

115 For the enunciation of this doctrine see Von Clausewitz, On War, English translation by Graham; Leuder in Holtzendorff, Handbuch des Völkerrechts, Vol. IV, secs. 65-66; Ullmann, Völkerrecht, sec. 144; Liszt, Das Völkerrecht, sec. 39; and Kluber, Droit des Gens, sec. 245. For criticism of the doctrine, see Westlake, International Law, War, p. 115; Merignhac, Lois et Coutumes, p. 143; Nys, Droit International, Vol. III, p. 203; Pradier-Fodéré, Traité, sec. 2740; Pillet, Lois de la Guerre, sec. 59; Bordwell, Law of War, p. 5; Holland, The Law of War on Land, p. 13. This doctrine is also laid down in the official Kriegsbrauch im Landkriege prepared by the Prussian general staff in 1902. Merignhac severely criticises this publication for the extreme views of military necessity which it upholds and for its scant allusions to the Hague conventions, the binding force of which it apparently ignores. See his Les Lois de la Guerre Continental Suivant le Grande Etat major Allemand.

116 Droit International Codifié, tr. by Lardy, sec. 549.

"118

belligerents must be respected even in an unjust war. 117 Again, "Civilized nations likewise repudiate the principle that a belligerent may do to the enemy all that appears useful to his own cause.' It is refreshing to find at least one honored German jurist who refuses to give his approval to the doctrine that the observance of the law is binding on belligerents only so long as it does not stand in the way of military

success.

V

CONCLUSION

Various other important questions of international law have been raised since the outbreak of the present war, but the limits of this paper do not permit of their discussion here. Consideration of some of them may well be deferred until the facts are more definitely known. Each side has accused the other of employing dumdum bullets in violation of one of the Hague conventions, and each has made representations to the President of the United States in regard to the conduct of the other in respect to the employment of such instruments of warfare. Early in the war the French Government addressed a note of protest to the signatory Powers of the Hague convention, and in October the German Government did likewise. The Allies have charged the Germans with firing upon ambulances and hospitals, the misuse of the Red Cross flag, the maltreatment of prisoners and wounded, with committing outrages upon women, compelling women and children to march in front of their troops to shield them from the enemy's bullets, with forcing the inhabitants to serve as guides and to dig trenches, the systematic burning of villages and the massacre of non-combatants, with pillage, robbery, and various other atrocities. The Germans likewise have made similar charges against the Belgians and French. The French note of protest in September, in summing up its charges, said, "The government of the Republic, in the presence of such proceedings which are reproved by the universal conscience, leaves to the civilized Powers the full appreciation of these criminal acts, which will forever dishonor the belligerent guilty of them."

117 Droit International Codifié, tr. by Lardy, sec. 519.

118 Ibid., sec. 534.

It may be safely assumed that the reports of these violations of the laws of war have been greatly exaggerated, as such accusations have generally been during the wars of the past, and no doubt in some cases they are without foundation. Under these circumstances, discussion of them should be deferred until the facts have been irrefutably established. In the meantime, we may venture the hope that, in the interest of a common civilization, in the interest of respect for law, and in the interest of simple justice to both sides, the facts may be discovered, sifted by impartial hands and a just judgment rendered. One thing is clear recent events have given it added confirmation-no breach of the laws of war will be passed over in silence in these days. The enlightened public opinion of the world may not yet be sufficiently powerful to compel the observance by belligerents of all the laws of war, even when they have agreed to be bound by them, but its potency is already a mighty influence in securing high standards of conduct in international relations. The national sensitiveness to unfavorable opinion and the desire for the good will of the civilized world have found abundant illustration in the efforts of the belligerents in the present war to have their cases properly presented to and fairly judged by the people of the United States. It is to be expected that there will be occasional lapses from right conduct in respect to their international obligations by members of the body of civilized states, especially during the strain of war when their existence may seem to be imperilled, but it may be assumed that no great Power will deliberately and wantonly violate those obligations, if for no other reason because of its fear of encountering the condemnation of the public opinion of the world. "International law will be observed," says a distinguished scholar, "because the conscience of the world finds in its rules an increasing approximation of the rule of right, to the standards of justice and humanity, which are of almost universal acceptance." 119

JAMES W. GARNER.

119 A. Pearce Higgins, The Binding Force of International Law, p. 36.