Legal Neutrality Versus Moral Neutrality
BY PAUL FULLER
I
NEUTRALITY is not in itself a virtue; it is not a condition to be proud of; rather does it require explanation, not to say apology. It is at best a counsel of prudence, never a counsel of perfection.
Iago was strictly neutral when he mused on the coming encounter of Cassio and Roderigo: ‘ Whether he kill Cassio or Cassio him, either way makes my gain.’ They were neutrals of whom St. John wrote: ‘Because thou art lukewarm, and neither cold nor hot, I will spew thee out of my mouth.’
The better instinct of man urges him to give utterance to his condemnation of any wanton or unworthy act and to his sympathy with its victim. If actual interference to save the victim involves peril to others, he is justified in calling caution to his aid, and this is the origin of the rules governing international neutrality. In the gradual formulation of those rules the restriction and localization of international conflicts has been the object, and to this end any direct aid to the belligerents in the war they are waging is prohibited under pain of the loss of neutrality and consequent exposure to the penalties of actual belligerency. Beyond this the rules of neutrality have not ventured. To silence private or public conscience is not within the province of either municipal or international law.
Vattel defines neutrality as strict impartiality toward the belligerents in what ‘relates solely to war,’ with the obligation to give no assistance nor furnish ‘anything of direct use in war.’ Hiibner defines it as complete inaction with reference to the war and exact impartiality with regard to the means of carrying it on.
Hautefeuille defines the neutral nation as that which abstains from taking part in the conflict, and from any act of hostility, direct or indirect.
Bluntschli defines neutral states as those who take no part in military operations in favor of or to the detriment of either of the belligerents, and neutrality, he adds, consists in maintaining peace on one’s own territory, and taking no part in the war between third parties. To this he adds that neutrals may well have sympathies for one or other of the belligerents, and that ‘neutrality is not the synonym of indifference.’ A state, he says, ‘may have lively sympathy for one of the belligerents, and give frank expression of its dissatisfaction with the actions of the other, and yet remain neutral. To have and to express an opinion upon the justice or injustice of a cause or of a line of political conduct is not to take part in the war, and this expression of sympathy for one or the other of the belligerents, and an expression of an opinion upon the justice or injustice of conduct, is not an infraction of the duties of neutrals.’
The requirements of neutrality do not go beyond abstention from any participation in hostilities, and cannot include suppression of sympathies for one of the combatants, or suppression of blame for the actions of another. Bluntschli then calls attention to the Proclamation of Neutrality issued by President Grant on the occasion of the Franco-Prussian War of 1870 and to the clause in which he states that the ‘ free and full expression of sympathies is not forbidden by any law of the United States.’
The same rule is laid down by De Martens and by Lawrence; and Hall tells us that the maintenance of neutrality has gradually been ‘ transformed into a duty, by the jealousy of belligerents, whose anxiety to deprive their enemy of advantages which the preference of the neutrals might give to him has been helped by the equal anxiety of neutrals to continue their habits of trade and intercourse’; and he adds, ‘Merely to show less friendship to one than to another ... to mark out one as an object for greater friendship than another . . . are not violations of neutrality.’ ‘The neutral State is bound not to commit any act favoring one of two belligerents in matters affecting their war, and it is in turn incumbent upon belligerents to respect the sovereignty of the neutral.’
Jefferson, writing to the American minister in Paris in 1793, lays down the same rule, that ‘No succor should be given to either in men, arms, or anything else directly serving for the war.’
Hall, writing in 1895, states that this policy of the United States represented what were in 1793 by far the most advanced existing opinions as to neutral obligations, and that in some points it even went further than authoritative international custom had up to that time advanced; though, in the main, it was identical with the standards of conduct at that time adopted by the community of nations, and sustained by the general principles theretofore stated by Bynkershoek, Vattel, and De Martens.
During the Napoleonic wars, when neutrality was so vital to England, Lord Howick, formulating his objection to neutral navigation carrying on the coast trade of the enemy, made no stronger claim as to neutrality than that which is embodied in all the foregoing extracts. Writing to Mr. Rist, he insisted that ‘a strict and honest impartiality, so as not to afford advantage in the war to either, and so as not to render assistance to one belligerent in escaping the effect of the other’s hostilities’ is what honest neutrality consists of.
During the Franco-Prussian War of 1870 the government of the North German Confederation complained to Great Britain that the shipment of arms to France indicated that its neutrality was not ‘benevolent.’ We quote from Count Bernstorff’s memorandum of the first of September, 1870, to Lord Granville, in which he admits that Great Britain’s neutrality is ‘strict in form,’ but appeals for a favorable public opinion.
‘In the first instance, there is no question that France has wantonly made war on Germany. The verdict of the world and especially the verdict of the statesmen as well as of the public of England has unanimously pronounced the Emperor of the French guilty of a most flagitious breach of the peace. Germany on the other hand entered into the contest with the consciousness of a good cause. She was therefore led to expect that the neutrality of Great Britain — her former ally — against Napoleonic aggression, however strict in form, would at least be benevolent in spirit to Germany, for it is impossible for the human mind not to side with one or the other party in a conflict like the present one. What is the use of being right or wrong in the eyes of the world, if the public remains insensible to the merits of a cause? Those who deny the necessity of such a distinction forego the appeal to public opinion which we are daily taught to consider as the foremost of the great powers.’
II
It is precisely this appeal to public opinion, — ‘the foremost of the great powers,’ — which Germany made to England in 1870, which we, observing the same strictness of neutrality with which England was then credited by Count Bernstorff, desire to have made in the United States and by the United States on behalf of the violated and mutilated territory of inoffensive Belgium. We can subscribe without demur, if not without hesitation, to holding in abeyance our judgment upon innumerable questions of inhuman warfare which are still subject to question and require proper investigation and appraisal, such as the devastation of Belgium; the harvesting and impounding of its crops; the destruction of French vinelands for the impoverishment of another generation; the mutilation, and, in some instances, the cruel sterilization, of male children; military executions preceding the declarations of war ; the reckless placing of floating mines insuring the destruction of neutral property and passengers; the wanton destruction with which the names Rheims, Louvain, and Malines will forever be associated; the orders from headquarters for the killing of prisoners. All of these may require present silence and future investigation; but the very act by which war was openly begun — the deliberate, premeditated invasion of a neutral country, which the international law as established for more than a century, regardless of special conventions, made safe from attack by any civilized country — needs no investigation, admits of no doubt, and has not even elicited a denial from the culprit which is the main belligerent in the wars of to-day in Europe.
Let us read again the statement made to the Reichstag on the 4th of August, by the Chancellor of the German Empire: —
‘Necessity knows no law. Our troops have occupied Luxemburg, and perhaps are already on Belgian soil. Gentlemen, that is contrary to the dictates of international law. . . . The wrong, I speak openly, that we are committing, we will endeavor to make good as soon as our military goal is reached. Anybody who is threatened as we are threatened, and is fighting for his highest possessions, can have but one thought, — how to carve his way through.’
Apart from the treaties of 1831 and 1839, to which Prussia and the North German Confederation were parties; apart from the Convention of The Hague in 1907, which merely converted into a written law such existing usages as were of general acceptance regarding the rights as well as the duties of neutrals; there can be no question that among the accepted canons of international law was the rule that the territory of neutral powers was inviolable. When Grotius, three centuries ago, laid down the rules generally imposed at that time by the powers that made war, Might still appropriated to itself the Right to make use of whatever things might serve its purpose; and among these, according to Grotius, in cases of ‘extreme necessity,’was the passage of its armies over neutral territory, and then only upon payment of a proper indemnity. Practically, this law of necessity placed every weak neutral nation at the mercy of its more warlike and powerful neighbors, as this supposed right, born of necessity, condoned the destruction of neutral fortifications and the seizure of whatever material necessity called for.
All the publicists whose statements of what constitute international law are accepted as authoritative, unite, and have united for more than a century past, as to the inviolability of neutral territory; and although, as Lawrence observes, this ‘elementary duty’ has been frequently violated, and the obligation has sat lightly upon belligerent powers, De Martens says that these too frequent violations of the doctrine cannot create a custom; that they invariably have given rise to complaints, and that the only excuse presented has been ‘ necessity.’
Not only was the inviolability of neutral territory a thoroughly established doctrine, but it was equally well settled that the neutral state was bound not to permit such violation, and was bound to take all necessary measures to compel respect for its territory, even by recourse to arms; and that such recourse to arms could not even be considered as destructive of the country’s neutrality as between the belligerents. But the case of Belgium was particularly flagrant, and involved a willful and insolent disregard of the highest principles of international law to which the enlightenment of nations had yet attained. It was a deliberate advantage taken of a condition of helplessness which Germany herself had helped to impose upon Belgium. With the assent and connivance of Prussia and of the North German Confederation, and by the subsequent adoption of the status quo by the German Empire, Belgium had been put into what is known as a position of neutralization, which, while it supposedly protected the country from the possibility of being victimized by the armies of contending belligerents, imposed upon it, in return for this protection, the duty of peace and the obligation not to make war itself. This was effected by the treaties of 1831, immediately after the recognition of the independent existence of Belgium, and again in 1839, when, after eight years of resistance, the King of the Netherlands acquiesced in Belgium’s separate existence, and the compact bound France, Great Britain, Russia, Austria, and Prussia to the perpetual neutralization of Belgium. This conjoint neutralization imposed upon the powers guaranteeing it the joint obligation to take common action for prevention and redress in case of any attempted violation of such neutrality; but in the view of many nations there was some doubt, — as Lord Derby expressed it in 1867, referring to Luxemburg, — whether in case of failure to agree upon collective action, any single power was called upon, as Bluntschli maintained, to take upon itself the duty of armed intervention. During the Franco-Prussian War of 1870, there seemed reason to fear that this neutrality would not be respected, and England, by way of caution and remonstrance, showed her willingness to undertake, without the cooperation of all the other guaranteeing powers, the protection of Belgian neutrality during that war. England accordingly summoned France and Germany to make a special treaty with her, pledging continued neutrality until the end of the war, with the additional condition that, if neutrality were infringed by Germany, England should take part with France and Belgium in protecting it, and if it were violated by France, England should take part with Germany and Belgium to the same end.
It is these treaties, which apply solely to the continuance of the War of 1870, which some petty apologists, lacking the rude frankness of the German Chancellor, have endeavored to use as a screen against the violent breach of neutrality so bluntly admitted. Lastly, in addition to this specific neutralization, we have the Convention of The Hague, in 1907, which, as we have already said, crystallized into a written code the recognized obligations of international law, and received the supposedly additional sanction of the signatures of the powers. This code added no obligation to that which international law so clearly imposed, yet emphasized strongly the importance of the duty toward neutral nations.
Even then, it would seem, there was some lurking doubt as to whether all the powers represented at The Hague would assent to, or abide by, the stipulation to respect neutral territory, and the particular convention containing this clause was held not to be binding upon any belligerent unless all the other belligerents in the war had assented to the convention. On this plea it is claimed that, because Servia, although her representative signed the convention, did not, by some further parliamentary action, ratify it, Germany is exempt from its provisions. It would seem a sufficient answer that Germany, and all other nations claiming to be civilized, were bound by the obligation to respect neutral territory, without reference to the stipulations in the Hague Convention. But it seems further evident that this precautionary clause inserted in the Hague Convention was meant to liberate any of its signers from the obligation quoad the belligerent who refused assent to it, and who should himself disregard it. To defend an assault made upon the integrity and upon the life of an innocent nonparticipant in the war by the statement that Servia — at the very end of the European continent, where it was absolutely impossible for her to make any pretense toward invading neutral territory — had not given a parliamentary ratification to the convention which her authorized representative had signed, was to present too petty an excuse. We have, then, the notorious and uncontroverted fact that the greatest war of modern times was begun by the invasion of a neutral, unoffending, and unprotected country, by the most powerful military organization in the universe, armed with the most destructive weapons that malevolence and science could invent or perfect; an invasion which, of necessity, if Belgium performed her international duty of resistance, involved the devastation and desolation of her land and the wholesale destruction of her population, civil as well as military.
Under these circumstances, however loudly they appealed to every element of chivalry for immediate and effective aid, the universal peace of nations called upon us for self-restraint, and the accepted rules of international law required us to take no active part in the conflict of arms thus brutally inaugurated between all-powerful Germany and the little land of Belgium.
Accordingly the President of the United States issued his various proclamations of neutrality, calling upon all citizens of the United States to take no ‘part directly or indirectly in the wars’; but this command was coupled with a notice that this neutrality should not interfere ‘with the free expression of sympathy’ and that ‘a free and full expression of sympathies in public and private is not restricted by the laws of the United States.’
As the war clouds gathered thicker, proclamations succeeded each other, announcing that ‘a state of war unhappily existed ’ between Austria and Servia, then between Germany and Russia, then between Germany and France, and on the 5th of August between Germany and Great Britain. Whereas the war between these great powers had been declared in due and solemn form, the war pressed upon Belgium had been inaugurated by simple invasion, and the President’s proclamation issued with reference to this war on the 18th of August recognizes this important difference in the phrase, ‘Whereas the United States is in fact aware of the existence of a state of war between Belgium and Germany.’
Unnecessary criticism of the acts of those who control our international affairs is to be avoided, but this singular circumstance merits attention. It was on the 5th of August, — after several days of effort to secure respect for the Belgian territory, after having procured from France an absolute pledge to respect such neutrality, and having received from Germany a refusal of such a pledge, with the statement that she must ‘ disregard Belgian neutrality, it being for her a question of life or death,’ — that the Prime Minister of England announced to the House of Commons that the British Ambassador at Berlin had received his passports at 7 o’clock the preceding evening, and that ‘since 11 o’clock last night (August 4) a state of war has existed between Germany and ourselves.’ Already on the 4th of August the German Chancellor had announced the imperious necessity for sending armies into Belgium. The state of war between England and Germany was recognized by our proclamation of the 5th of August, yet it was not until the 18th of August, when Belgium had been overrun by German armies, that we awoke to the fact and became ‘aware of the existence of a state of war between Belgium and Germany.’
III
Can the American people under these circumstances translate neutrality into indifference? While strictly conforming to the International Code, which does not permit them to assist in the prosecution of the war, can they divest themselves of all moral sense and give even the tacit approval of silence to the massacre of Belgium?
The President, in addition to his constitutional function, with which he is charged as the servant of the people, — to wit the enforcement of their laws, — has so impressed himself upon the country by the wisdom of the public policies which he has recommended, and the devotion and ability with which he has labored to carry them out, that he is accepted as a political leader and given willing recognition as the mouthpiece of the people, rightfully entitled to speak in their name. This exalted position makes it strictly incumbent upon him to proclaim no policy to which he has not procured their assent, at the grave peril of losing the privilege of leadership by misrepresenting the policy of the American people. At an early stage of the present gigantic conflict, impressed by the widespread desolation which it portended, and remembering his privilege as representative of one of the powers signatory to the Hague Convention, he offered his mediation whenever it should be acceptable, and in the same spirit, in the futile hope of arresting the formation of hostile opinion, he appealed to his fellow countrymen to ‘act and speak in the true spirit of friendliness to all concerned.’ He begged them to be ‘impartial in thought as well as action’ and to put a curb upon their sentiments. The earnest and honest endeavor to comply with this hard requisite attests the respect which the Chief Magistrate has earned from his fellow citizens; but the difficulty, not to say the impossibility, of the task which he thus put upon them, is a severe test of the preservation of the influence which he has heretofore gained. Every day shows compliance with his request to be an impossibility. Every day of repression simply concentrates the unexpressed sentiment and forbodes an explosion.
We appeal to the President to look over the field again, to consider anew the baleful influence upon the cause of peace, upon the enlightenment of nations, upon the mitigation of the horrors of war, of such a proceeding as the invasion and the subsequent devastation and desolation of an unoffending country. We beg him to look over this America which he loves so well and to take heed of the strong and universal sentiment which prevails throughout the land, of protest against this latest and most flagrant disregard of international justice. He will find that it overshadows all other considerations concerning this war. There still may be differences of opinion as to whether universal civilization and political advancement are best to be served by the European hegemony of a vast military organization which has cast into the shadow all the spiritual and intellectual elements of its own race, or by the unimpeded progress of such democracy and representative government as rules in England or in France; but he will find throughout the breadth of the land no apology, no tolerance for the initial act of tyrannical assault by which the war was initiated, and the territory of Belgium made the unwilling field of the most devastating conflict of all time.
As the President has found it possible up to this time to voice the feelings and aspirations of the people over whom he presides, we appeal to him to consult that public opinion which he has hitherto faithfully represented, to find some way, which his acumen, his large experience, and his humanitarian spirit can devise, without infringing upon the international rights which we are all anxious to respect and recognize, in which to speak in the name of the American people some word of dissent from, if not of reprobation of, the violation of international law for which Germany has no other plea than that ‘necessity knows no law.’ That reprobation is already made manifest from one end of the country to the other, and already acute political opponents are endeavoring to mould it into a weapon of political opposition. The country must not be silent, cannot be silent with honor, — in fact, it has already spoken; but it would be glad to have its scattered voices concentrated in the voice of its Chief Magistrate, that the world may know unmistakably, and not by the mouth of ‘rumor with its thousand tongues,’ how America stands with reference to respect for the noblest dictates of international justice.
Let us conclude with a repetition of Count Bernstorff’s words to Lord Granville, in 1870, — a German authority against which Germany cannot complain: —
‘ It is impossible for the human mind not to side with one or the other party in a conflict like the present one. What is the use of being right or wrong in the eyes of the world, if the public remains insensible to the merits of a cause? Those who deny the necessity of such a distinction forego the appeal to public opinion, which we are daily taught to consider as the foremost of the great powers.’
If any one harbors the delusion that closing our eyes to admitted repudiations of international law will enhance our influence with the contestants in the day when peace will follow exhaustion, let him study anew the parleys that closed the Franco-Prussian War of 1870 and be convinced that the unrebuked violator of neutral Belgium will admit of no outside counsels as to the distribution of his spoils. On the other hand, what right have we to expect that the Allies will in the day of their blood-bought triumph turn for an impartial judgment and for a wise balancing of the arguments regarding the compensation due to Belgium, to the great democratic republic which paralyzed its own conscience and looked with dumb indifference upon the unexcused violation of her soil?