A Scrap of Paper

Breaking and Making International Law during the Great War

Isabel V. Hull

• Publisher: Cornell University Press
• Year: 2014
• eBook ISBN: 9780801470646
• Topic: Storia
• Subtopic: Storia del XX secolo

In A Scrap of Paper, Isabel V. Hull compares wartime decision making in Germany, Great Britain, and France, weighing the impact of legal considerations in each. She demonstrates how differences in state structures and legal traditions shaped the way the three belligerents fought the war.

Hull focuses on seven cases: Belgian neutrality, the land war in the west, the occupation of enemy territory, the blockade, unrestricted submarine warfare, the introduction of new weaponry, and reprisals. A Scrap of Paper reconstructs the debates over military decision-making and clarifies the role law played—where it constrained action, where it was manipulated, where it was ignored, and how it developed in combat—in each case. A Scrap of Paper is a passionate defense of the role that the law must play to govern interstate relations in both peace and war.

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Prologue

What We Have Forgotten

Precisely four years after the beginning of the First World War, the British minister of blockade, Robert Cecil, approved an internal memorandum written by the Political Intelligence Department of the Foreign Office setting out, among other things, why the Allies fought and how they had explained the war to neutrals and to their enemies. It summarized “the principles at stake in the war” as the destruction of “Prussian militarism” and the triumph of “the ideal of a peaceful settlement based on the rights of small nations, on the reign of international law, and on the introduction into all civilised States of the principle of democratic responsible government.”1 The memo might almost have cited Prime Minister Herbert Asquith speaking to Parliament four years earlier, when he explained that Britain fought “to fulfil a solemn international obligation” against “material force” that threatened to crush “small nationalities” “in defiance of international good faith.”2 “International obligation” and “international good faith” were synonyms for international law. During the entire war those aims had remained the same. They were expressed equally commonly in private letters and in public statements and propaganda. They were so obvious that the (London) Times arranged its Documentary History of the War into these sections: diplomacy, naval, military, overseas, and international law. Few would have quarreled with Sir Graham Bower (formerly of the Admiralty) that the Allies were “engaged in the defense of international law and justice,” or with the most renowned international lawyer of the day, France’s Louis Renault, when he wrote (1917) that “the goal of the present war must be to affirm the sanctity of treaties, the destruction of the German theory that necessity justifies the violation of all the laws of war, the guarantee of the existence of small states, the development of arbitration.”3

International law was so central to how contemporaries interpreted the war because law was a linchpin and guarantee of the post-Napoleonic European state system that the war seemed to be destroying. Many international-legal norms, especially humanitarian ones, long predated 1815; others were the precipitate of the security interests, needs, and mutual claims of the large and small states that defined themselves as the community of self-styled “civilized” states. The legal system they created was set down in treaties and visible in customary practices that had come to be recognized as obligatory. They included rules of war. Beginning in 1856, the rules of war began to be codified. The successful agreement on the rules of land warfare concluded at the Hague Peace Conferences of 1899 and 1907, and the creation of the Permanent Court of Arbitration (1899) and the International Prize Court (1907) seemed to usher in an era of progressive development in which the rule of law would more and more displace the resort to war. August 1914 shattered that hope. More important, violations of treaty law and the laws of war in the opening weeks challenged the international legal system that had defined Europe and held it together. Leaders and public opinion in Great Britain and France were the first to see the war as a titanic struggle over law, a kind of European civil war. Germany almost immediately reciprocated; both sides henceforth vied with one another to claim the international-legal high ground. This was not just or even mostly a public relations battle. Meters and meters of internal documents and diplomatic correspondence record the central role of law in forming war policy, justifying that policy to neutrals, judging one’s enemies, and measuring the existential danger they posed. The Allies had two interpretations of the clash of legal systems. The more common one condemned Imperial Germany as a criminal state that disregarded law altogether. International lawyers like Renault instead saw in Germany’s actions an alternative “German theory” of law rooted in (military) necessity. As we shall see, there were actually several competing German theories. Judging from their vantage points, it was the Allies who appeared as scofflaws or as self-interested promoters of obsolete or unrealistic legal principles. Therefore, three main objects of this book are, first, to analyze and compare the belligerents’ legal assumptions; second, to explore their implications for international law and how it operated and changed in extremis; and, not least, third, to examine the effect of international law on the actual conduct of war—that is, on the major governmental decisions on how the war was to be fought (not on atrocities or war crimes committed by individuals).

Three weeks after the Armistice, Britain’s attorney general and its law officers issued a report on how to rebuild the legal system after the “dangerous challenge to the fundamental principles of public law” that defeated Germany had posed.4 Like the leaders of Britain and France, they favored trials of the Kaiser and his generals. Attorney General Frederick E. Smith was confident that “common people” everywhere saw what was at issue. “These things are very easy to understand, and ordinary people all over the world understand them very well.” In November 1918, Smith was undoubtedly correct, but in a few short years, what was so completely obvious to contemporaries had become just as completely erased.

That erasure continues to this day in both academic writing and popular culture. It has robbed the war of meaning. The Great War has come to stand for tragic senselessness (Oh! What a Lovely War) and pointless mass death. A further aim of this book is to restore international law to its rightful place in the conflict, to recall the great stakes at issue in 1914–18, as well as to explore the complexities of international law during belligerency.

Before beginning that task, we must examine why and how international law became forgotten. This subject deserves an entire book, because many of the misconceptions driving the erasure process continue to mislead us about what international law is and how it works, and about its relation to power and high politics. Here, we can only briefly survey the matter.

Forgetting was an active process that began with a threefold disillusionment. First, pacifists were frustrated that the laws of war codified at the Hague Peace Conferences had not prevented war altogether. That, of course, was not the mandate of those laws, which was rather to “mitigate the severity [of war] as far as possible.”5 Second, the laws of war did little to prevent the shocking carnage among soldiers. Artillery shells and machine guns, the two main causes of combat death, were perfectly legal when used against regular troops. Four and a half years of killing, ten million soldiers’ deaths, were simply appalling. As Adam Roberts writes, “law [had] got separated from some of the real causes of moral concern” to the public.6 Third, the very clash of legal views among the belligerents produced confusing claims and counterclaims of violations that seemed easiest to sum up as a tit-for-tat process of destruction. Even U.S. Secretary of State Robert Lansing (a lawyer) despaired in December 1916 that “every new breach begat another, which in turn begat others, until the standards of right sanctioned by treaties and usage, were torn to bits.”7

But building on these disappointments, the eclipse of international law’s reputation among the public after 1919 was most strongly determined by two propaganda campaigns: paradoxically, the successful British one during the war, and the successful German one afterward. The first made international law the centerpiece of attention, the second erased it.

Although both the French and German foreign offices had press sections, Britain entered the war with none. Its propaganda effort developed from scratch; in the formative days of August and September 1914, it simply reacted to widespread shock at Imperial Germany’s methods of warfare, relying on volunteers to put into words and images what Britain’s leaders and the Allied and neutral public already felt.8 Already on August 2, a liberal Belgian paper used the word “barbarism” to describe the German campaign. Repeated by French philosopher Henri Bergson in Paris on August 8, barbarism versus civilization became the organizing epithet of the struggle, with its suggestion that Germany had left the community of the civilized.9 As Britain belatedly assembled its propaganda apparatus, it adopted several rules that responded to the ill repute of propaganda in a liberal society. Its propaganda would be based on facts, not lies, nor on heavy censorship at home; it would primarily target neutral public opinion; and it would be subtly contoured to its foreign audience rather than an ostentatious display of government opinion.10

The resulting British propaganda campaign was massive, successful, and partly secret. In less than a year, Wellington House, the coordinating organ, had issued two and a half million publications; two years into the war, it ran six semimonthly newspapers, had published three hundred books and pamphlets, commanded three hundred distribution centers in Latin America alone, and circulated four thousand photos each week to newspapers.11 One of the most influential publications was the “German crimes’ calendar,” devoted to striking violations of the laws of war. As one German observed regarding the effects of this deluge on opinion in America, “Today we may say that the three names Louvain, Reims, Lusitania, almost in equal measure, have wiped out sympathy with Germany.”12

Together with the facts, however, exaggerations and untruths also circulated, some under government cover but most via the popular press. These myths later discredited the entire campaign. The most notorious legend concerned the allegation that German soldiers had hacked off the hands of infants and children in Belgium and Northern France. No genuine eyewitnesses or mutilated corpses were ever found.13 The severed-hands myth was at least partly the creation of the free press, which heedlessly multiplied the rumor. Newspapers often rushed ahead with “squalid forms” of propaganda unsanctioned and in many cases condemned by the government’s own propaganda agencies.14 Later critics lumped them together, tarring the government with the brush of yellow journalism.

More troublesome than lurid false stories was secrecy. The existence of Wellington House was unknown to the public for two years, and one of the most successful British propagandists working in the United States, Gilbert Parker, did so under cover.15 Secrecy made credible later claims of lying government manipulation.

By emblazoning international law and a stable, peaceful postwar order on their escutcheon (“The War that will end War”—H. G. Wells, September 1914), the Allies set very high standards for themselves and raised equally high expectations among their increasingly exhausted publics. It is remarkable how quickly after the Armistice liberal British newspapers measured their government against its own public standards and found it wanting. The pivotal issue was the continuance of the blockade after November 1918. Britain and France, unsure of the degree of their military victory or the constancy of their American ally, and above all unsure that Germany might not resume fighting, decided to keep the blockade in order to force Germany to sign the peace treaty. As reports trickled out on the parlous health of German civilians, the British government, but not the Fr...

Table of contents

• Preface
• Acknowledgments
• Abbreviations
• 1 Prologue: What We Have Forgotten
• 2 Belgian Neutrality
• 3 The “Belgian Atrocities” and the Laws of War on Land
• 4 Occupation and the Treatment of Enemy Civilians
• 5 Great Britain and the Blockade
• 6 Breaking and Making International Law: The Blockade, 1915–1918
• 7 Germany and New Weapons: Submarines, Zeppelins, Poison Gas, Flamethrowers
• 8 Unrestricted Submarine Warfare
• 9 Reprisals: Prisoners of War and Allied Aerial Bombardment
• 10 Conclusion
• Bibliography