Chapter Eleven: Legal Consequences
of Break-Down
Alexander Fuehr
THE NEUTRALITY OF BELGIUM
1915
CHAPTER X
THE RIGHT OF SELF-PRESERVATION
The critics of Germany's invasion of Belgium affirm that, whatever breaches of her perpetual neutrality vows that country might secretly have committed, Germany, being unaware of them, having, at any rate, never formally protested against them, is not free to adduce them as an exculpation of her action in August, 1914.
Without subscribing to the soundness of such reasoning, it must be emphasized that, even if the guarantee under the treaties of 1839 could be considered still as of binding force, and even if all the parties to those treaties had faithfully fulfilled the duties incumbent on them, Germany's action would yet be perfectly justifiable, by the "right of self-preservation," universally recognized in international law.
As a matter of fact, the German Chancellor, in his first official statement on the invasion of Belgium by German troops, has justified this action exclusively by invoking Germany's right of self-preservation. In his speech in the Reichstag, on August 4, 1914, the text of which, as far as it refers to Belgium, will be found in the Appendix,(144) he said nothing about a violation of the Quintuple or any other guarantee of Belgium's neutrality. He merely spoke of the neutrality of Luxembourg and Belgium, as he might have spoken of that of Holland and, with the utmost frankness, characterized Germany's invasion of their territories as, in itself, contrary to the rules of international law, though warranted by Germany's right of self-preservation.
It will be seen from the following expressions of most prominent authorities on international law, that the right of self-preservation precedes and underlies every other obligation. All treaties are subordinated and subject to this basic and inherent right. It is implied, and read into, every treaty and contract, anything to the contrary said notwithstanding. This primary right cannot be lost or bargained away; it is unalienable.
Hugo Grotius, whom John Bassett Moore calls "the most illustrious of the great philosophical jurists," and who is universally recognized as the Father of International Law, says:.
"Necessity, the great protectress of human infirmity, breaks through all human laws, and all those made in the spirit of human regulations."(145)
The same authority says with reference to the use of neutral soil by belligerents:
"Hence it may be inferred that, in the prosecution of a just war, any Power has a right to take possession of a neutral soil if there be real grounds, and not imaginary fears, for supposing the enemy intends to make himself .master of the same, especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same Power."(146)
The English jurist Travers Twiss has the following to say on this subject:
"Of the primary or absolute rights of a nation the most essential, and as it were, the cardinal right, upon which all others hinge, is that of self-preservation. This right necessarily involves, as subordinate rights, all other rights which are essential as means to secure this principal end."(147)
With regard to the "right of anticipating attack," the same author says:
"When the safety of the State is at stake, the right of self-preservation may warrant a nation in extending the precautionary measures beyond the limits of its own dominions, and even in trespassing with that object on a neighbor's territory. As the right of self-preservation is prior and paramount to the right of dominion and property, in the case of individuals, so the right of self-preservation is prior and paramount to the right of territorial inviolability in the case of nations, and if ever these rights conflict, the former is entitled to prevail within the limits of the necessity of the case."(148)
The famous jurist Phillimore says:
"The right of self-preservation is the first law of nations, as it is of individuals. . . . It may happen that the same right may warrant her in extending precautionary measures without these limits, and even in transgressing the borders of her neighbor's territory. For International Law considers the 'Right of Self-Preservation' as prior and paramount to that of Territorial Inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right."(149)
Another American authority, George B. Davis, writes in the following terms on the right of self-preservation:
"This is called into being whenever the corporate existence of a state is menaced and corresponds to the individual right of self-defense. The danger may be internal, as in case of insurrection or rebellion, or external, as in case of invasion, either real or threatened. The right of self-preservation is the first law of nations, as it is of individuals. A society which is not in condition to repel aggression from without is wanting in its principal duty to its members of which it is composed, and to the chief end of its institution. All means which do not affect the independence of other nations are lawful to this end. No nation has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect! "(150)
Lawrence, one of the leading English authorities, gives the following opinion on the temporary violation of neutral territory:
"Nevertheless all authorities admit that the exigencies of self-defense will justify a temporary violation of neutral territory. But it must be confined within the strictest limits required by the necessity of the case, and the power which is obliged to resort to it should tender a prompt apology. The act is illegal; but if the necessity is sufficiently imperative a wise neutral will condone it on the tender of proper explanations."(151)
Cyrus French Wicker, a member of the New York bar, gives the following opinion on the question of the justice of an invasion of neutralized territory:
"French enemies would no doubt be justified in invading Savoyard territory, even though neutralized, if it became evident that France were utilizing the resources of the province for military purposes and there were any advantage to be gained from the attack."(152)
The same subject was very luminously discussed in an article of the Fortnightly Review, for July, 1889, with regard to a possible French attack on Germany by way of Swiss territory, which article in that English magazine said:
"We may say, then, that from the point of view of strategical vantage---and this is all that is at present under consideration---a French commander would be justified by military necessity in making Switzerland a base for attacking Germany. . . . The moral aspect---if indeed it may so be styled---of the question involved by the violation of Swiss territory for the temporary purpose of war, need not be discussed at any length here. With her existence as a nation at stake it is not likely that France, or for the matter of that, any other country similarly situated, would hesitate on grounds of conventional political morality to take a step which would give her a point of enormous vantage in her struggle for life."(153)
A similar view with regard to the obligations of the "guarantors" of a neutralized state toward the latter is evidently held by the prominent Belgian lawyer, Ernest Nys, who writes:
"One must always remember that for the guarantor state the duty of its own preservation precedes every other duty (il convient de se souvenir toujours que pour l'Etat garant le devoir de sa propre conservation prime tout autre devoir)." (154)
The famous English jurist, Edward William Hall, writes as follows:
"The right of self-preservation in some cases justifies commissions of acts of violence against a friendly or neutral state, when from its position and resources it is capable of being made use of to dangerous effects by an enemy, when there is a known intention on his part so to make use of it, and when, if he is not forestalled, it is almost certain that he will succeed, either through the helplessness of the country. or by means of intrigues with a party within it."(155)
The above quotations, which could be increased ad libitum by concurring opinions. of other authorities, show convincingly that a state when it is exposed to a grave, imminent danger, is fully justified in committing any action liable to avert that danger, even if, under normal conditions, such action would constitute a wrong and a violation of international law.
Was Germany in such a position when, in the evening of August 2, 1914, she asked the Belgian Government for an unobstructed passage of her troops to France through Belgian territory?
The situation then presented to the German Government has already been outlined in Chapter V.(156) Germany was then actually attacked along her entire long-stretched Eastern frontier by Russia, and along a considerable part of her Western frontier by France, whilst England, by her positive refusal to formulate conditions under which she would remain neutral,(157) had clearly given it to be understood that she meant to stand firm by the Triple Entente and actively join Germany's declared enemies. The French plan of campaign, which was in the hands of the German General Staff, contemplated, by way of Belgium, an advance of four French army-corps, reinforced by English and Belgian contingents, into the Prussian Rhine Province, which, along the entire Prusso-Belgian border, is absolutely void of natural or artificial points of protection and offers to a defending army no effective stand till the Rhine Valley is reached. Belgium could not resist such an invasion, in defense of her neutrality; it was even then-though documentary proof of her dealings with England and France was not in the hands of the German Government-rather certain that she would not oppose it. If France were allowed to carry out her advance through Belgium whilst England, screened by the French army, would land her expeditionary forces at Ostend, and possibly Antwerp, the invasion of the Rhine Province was a certainty and an English advance toward Germany's North Sea ports, to force her battle-fleet into action, a threatening possibility. Secure against a German invasion by her impregnable Meuse fortresses, France could afford to defer the attack until her mobilization was completed and the transport of the English forces well under way; whilst Germany lost every chance for a counterstroke if she waited until France had pushed her entire First Army into Belgium.
On the other hand, it was sure that an immediate advance of a German army through Luxembourg and Southern Belgium would reverse the conditions.. The French Maubeuge Army, in its incompleted state of mobilization, would be obliged to remain at the Franco-Belgian border district, and England could not risk landing the bulk of her troops on Belgian soil. Thus the invasion of the Rhine Province would be averted, and the German Western Armies brought into a strategically favorable position, before the pressure of the "steam-roller" on the Eastern frontier would make itself seriously felt.
Germany's campaign was as good as lost if she could not succeed in holding her Western enemies at bay before Russia had time to bring her enormous armies into full action. To forestall the threatening French advance through Belgium was a matter of life or death for her!
It was under such conditions that Germany, in legitimate defense and by the right of self-preservation, decided to strike at the French Maubeuge Army, by way of Belgium, thereby violating that country's (supposed) neutrality.
This action is commented upon in the Introductory Narrative of Events to the British White Papers, compiled and signed by the British Foreign Office under date of September 28, 1914,(158) in the following manner:
"Germany's position must be understood. She had fulfilled her treaty obligations in the past; her action now was not wanton. Belgium was of supreme military importance in a war with France; if such war occurred, it would be one of life and death; Germany feared that, if she did not occupy Belgium, France might do so. . . ."
Here, the German Chancellor has it attested from the very best source (namely, that of Germany's chief enemy) that Germany's breach of the Belgian neutrality was not wanton and that it was a matter of life and death to her.
This is in keeping with the British preparations for this contingency, but very much at variance with the version which England has so diligently spread!
NOTE.---How one of the leading British statesmen, Lord Kitchener, regarded the rôle of Belgium in the event of an European war, prior to the outbreak of the present hostilities, is set forth in an interview of Mrs. J. S. Erskine to The World, published in that paper's issue of August 30, 1914, which has come to my knowledge only during the process of proof-reading. The following passages are of particular interest:Mrs. J. S. Erskine, widow of a former captain of the Tenth Royal Hussars, who was for a time attached to the staff of Lord Kitchener, now English War Secretary, has given to The World an interview in which she discusses the chief of the English war department at short range.
"It was the habit of the officers and their wives to play 'the game of war' in times of peace. This consisted of taking a map and, after sides had been chosen, sticking flags in the map, showing the advance and retreat of troops. One day a big European war was suggested and Lord Kitchener was enlisted as umpire.
"I played England in a war with Germany," said Mrs. Erskine, "and accidentally planted my flags on Belgium soil. Cries that this was neutral territory were immediately raised, but Lord Kitchener backed me up. 'That's just what she ought to do,' he said. 'If ever there is a war with Germany that is what the English will do unless the Germans do it first.' 'You forget the treaty of London,' some one said. 'No,' he shot back, 'Bismarck was a statesman. He signed to something that would be for the future good of his country. War knows nothing about the future good. It is only the present that appeals to the warrior and any clever commander knows that the best way to get from Germany to France is through Belgium!
"'Then what will happen?' I asked. I meant what would happen should Germany invade Belgium.
"'That is in the lap of the gods,' was his reply. 'But I'll tell you what I think would happen. Germany would win the first round. After that she would be out-manoeuvred.'
"Picking up one of the little flags he said he thought Ostend would be a good place to land troops, but reconsidered and decided on a point south of Dunkirk."