VIEWS OF GERMAN AUTHORITIES

155

3

Even a few German writers, such as Bluntschli,' Geffcken,2 Loening, and apparently Albert Zorn, admit that in some instances the German commanders pushed the theory of collective responsibility too far. The majority of German writers, however, have attempted to justify without exception the punitive measures resorted to by the German commanders in 1870-1871. Leuder found a justification in the embittered character which the war took on in its later stages and in the determined resistance of the French people after it had become evident that their success was hopeless, and this defence is relied upon by the Kriegsbrauch im Landkriege, which adds that experience shows pecuniary penalties to be the most effective means of insuring the obedience of the civil population.5 Regarding the charge that the amount of the fines levied was excessive in many instances, Leuder remarks that the promptness with which they were paid is evidence enough that they were "in truth not too exorbitant." He even goes to the length of holding that communities may be fined for the continued persistence of the inhabitants in keeping up a struggle in which there is no hope of success (durch frivol fortgesetze Kriege). The 25-franc per capita levy for breaking the resistance of the French was therefore a justifiable measure.8

6

1 Droit Int. Cod. (Fr. trans. by Lardy), sec. 643 bis.

2 See his note (No. 7) to sec. 126 of Heffter.

See his article L'Administration du Gouvernement-Général de l'Alsace durant la Guerre de 1870-71 in the Rev. de Droit Int. et de Lég. Comp., Vol. V (1873), p. 77. Loening defends the action of the Germans in imposing a fine equal to the amount of the local land tax on districts in which offences were committed against the safety of the German army by persons not belonging to the French army. The effect, he says, was "remarkable" and was the means of preventing many wrongs. "It therefore marked a great progress in the penal law of war." He also defends the 25-franc per capita levy for the purpose of breaking the resistance of the French and bringing pressure on them to sue for peace. But the Germans went too far, he says, when they extended the principle of collective responsibility to communes from which the offenders came, because in most cases there was no relation between the offence and the commune punished.

Holtzendorff, Handbuch des Völkerrechts, Vol. IV, p. 508; cf. also sec. 112, n. 14 (p. 473).

5 Morgan, The War Book of the German General Staff, p. 178. Both Leuder and the general staff assert that the fines levied by the Germans were small in comparison with the contributions extorted by Napoleon.

• Op. cit., p. 509.

7 Ibid., p. 505. See Westlake's comment on this doctrine in his Collected Papers on International Law, p. 251.

8 Ibid., p. 510. Lammasch at the First Hague Conference likewise defended the theory that money contributions may be levied for the purpose of exercising pressure upon the inhabitants to sue for peace. Ferrand, Des Réquisitions, p. 229.

Finally, Leuder, Loening, and the Kriegsbrauch im Landkriege defend the policy of pecuniary penalties as applied in 1870– 1871 on the ground that it was successful in deterring the civil population from persisting in their resistance to the authority of the enemy a very doubtful justification, because if the test of the legitimacy of an instrument or a measure be merely its success, few instrumentalities or methods would be unlawful. But Bluntschli,1 Von Liszt, Albert Zorn,3 Meurer, and Wehberg very properly, it would seem, limit the right of collective punishment to communities and individuals who facilitate the commission of crimes against the authority of the occupying belligerent, or who fail to prevent them when it is possible to do so.

5

2

§ 409. The Rule of the Hague Convention. The right of a military occupant to the unqualified obedience of the inhabitants over whom his authority has been effectively established is recognized by all writers on international law, and it is clearly affirmed by the Hague convention respecting the laws and customs of war. The principle has also long been recognized, and it is affirmed inferentially by the above-mentioned Hague convention (article 50) that he may hold the entire population responsible under certain conditions for acts committed against his authority by persons not belonging to the armed forces of the enemy and may punish the community by fines or otherwise for such acts. This right, however, is not unlimited. It is subject to certain well-recognized limitations and restrictions and cannot be exercised arbitrarily at the will of the commander. Article 50 of the Hague convention referred to above declares that "no general penalty (peine), pecuniary or other, shall be inflicted upon the population on account of acts of individuals

1 Op. cit., sec. 643 bis.

2 Das Völkerrecht, p. 340.

3 Das Kriegsrecht zu Land, p. 242. Zorn, like Loening, apparently disapproves the punishment of communes other than those in which the offence was actually committed.

♦ Das Kriegsrecht der Zweiter Haager Konferenz, p. 286.

Capture in War, p. 48.

• There is a difference of opinion as to whether the right of punishment is limited to offences in violation of the laws and customs of war. Bordwell (p. 316) thinks it is so limited, but Spaight (p. 408) holds otherwise and affirms that it extends to all acts forbidden by the occupying authorities, whether they are infractions of war law or not.

INTERPRETATION OF HAGUE RULES

157

for which they cannot be regarded as jointly and severally responsible (solidairement responsables).” 1

§ 410. Interpretation of the Hague Rules. This rule is incorporated in the war manuals of the United States, Great Britain, and France in the identical language in which it was formulated by the Hague conference. Unfortunately the convention does not define the elements of responsibility, and military commanders, therefore, are left to judge for themselves in each specific case whether the act is or is not one for which the community can be properly held responsible. But the determination of the fact of responsibility is obviously governed by certain well-established principles, one of which, it would seem, is that the community is not really responsible unless the population as a whole is a party to the offence, either actively or passively. The American Rules interpret the provision to forbid collective punishments, except for such offences "as the community has committed or permitted to be committed," the inference being that the community cannot be punished for individual acts for which it was not actually responsible. If the offence has been committed by isolated individuals in remote parts of the community, without the knowledge or approval of the public authorities or of the population, and which therefore the authorities could not have prevented, it would seem unreasonable and contrary to one of the oldest rules of the criminal law to impute guilt or responsibility to the whole population. Likewise, if the authorities have exercised

1 The word amende employed in the Brussels Declaration was rejected by the Hague conference for the term peine on the ground that the use of the former term involved a confusion of ideas of the criminal law with those of international law. Cf. Albert Zorn, op. cit., p. 240, and Meurer, op. cit., p. 287. The change, however, has been criticised by some writers because the word amende, it is said, has a clear and definite meaning in international law. Cf. Pont, Les Réquisitions, p. 92, and Merignhac, Les Lois et Coutumes de la Guerre sur Terre, p. 290.

2 United States Rules of Land Warfare, art. 354; British Manual, art. 385; French Manuel, art. 109.

3 Commenting on art. 50, Lawrence (Principles of International Law, p. 447) reimarks that it allows inferentially pecuniary penalties upon communities when the responsibility can be brought home. "If a detachment occupying a village," he says, were slaughtered in the night while asleep, few would argue that the community had no collective responsibility if a conspiracy of silence should baffle all attempts to discover the real perpetrators. On the other hand, if a train were derailed in the night while passing through a wild ravine far from human habitation, it would be wrong to hold that the population for miles around could have known of the deed and have assisted in it directly or indirectly."

reasonable diligence to prevent the act, and if they have exerted themselves to discover and punish the actual perpetrators, it hardly seems reasonable or just to say that the community is really responsible. To so hold is to insist that the public authorities are obliged to guarantee the perfect enforcement of the law, something which no community has ever in fact been able to do.

Nys remarks that collective responsibility exists only when the offence is imputable to all the inhabitants, as in the case of public injuries to the occupying force, manifestations of revolt, and the like, or when the population by its attitude and will opposes an investigation.1 Nys even contends that community fines may not be justly levied for the acts of a few isolated individuals. Such fines, he says, may be imposed only where the whole population is guilty, and this guilt must be proven by the military authorities. He repudiates Loening's view that no obligation rests upon the military authorities to establish the guilt of the inhabitants, and also the doctrine of Loening, Leuder, and others that the effectiveness of pecuniary punishment in preventing a repetition of the acts is a sufficient justification for the resort to collective penalties.2 The purpose of article 50, as Spaight remarks, was to confine collective punishment to such offences as the community has either committed or has allowed to be committed.3 Bonfils interprets the meaning of the article in a similar sense. A fine, he says, must be in its quantum proportionate to the gravity of the offence; it must bear only upon the offender and his accomplices; it is iniquitous when it falls upon the innocent who were not able to foresee the act, nor to prevent it, nor to discover the offender.1

1 Le Droit International, Vol. III, p. 429. Cf. also Brenet, La France et Allemagne devant le Droit International pendant leurs Opérations de la Guerre 1870–71, p. 197, and Westlake (op. cit., Vol. II, p. 106), who remarks that no fine is justifiable except where the responsibility can "justly be imputed to the inhabitants."

2 Cf. his article on Contributions et Réquisitions in the Revue de Droit Int. et de Lég. Comp., Vol. 38 (1906), p. 430. Cf. also Merignhac (op. cit., p. 282), who contends that contributions under the form of fines can be levied only on offenders and their accomplices, and that they are illegal when they fall upon innocent persons, whatever the motive for which they are levied.

Op. cit., p. 408.

4 Op. cit., sec. 1218. To the same effect cf. also Despagnet, op. cit., secs. 587588; Feraud-Giraud, op. cit., p. 17, and Bordwell, op. cit., p. 317, who remarks that collective punishment is permissible only when the community could and should have prevented the act.

GERMAN POLICY CRITICISED

159

§411. German Policy Criticised. If, in the main, the principles thus laid down regarding the nature and limits of collective responsibility be admitted as sound, it is difficult to justify many of the impositions levied by German military commanders during the late war. Again and again they imposed fines which would seem to have been out of proportion to the gravity of the offences alleged and in some cases quite beyond the ability of the impoverished inhabitants to pay. It has been asserted that this was true of the levy of 60,000,000 francs on Liège (it matters little whether it was technically a contribution or a fine), a sum which amounted to about 300 francs per capita of the population; of the levy of 50,000,000 francs on Craiova, a town of only 52,000 inhabitants; of the fine of 10,000,000 francs on Courtrai; of the 100,000-franc fine on Mons; of the fine of 3,000,000 francs on Tournai; of the fine of 3,000,000 francs on the village of Wavre, and various others. It must also be remembered that in a number of instances these impositions were in addition to other heavy exactions in the form of requisitions, contributions, and tax levies. Sometimes the offences alleged were inconsequential acts committed by isolated individuals and involved no military injury or evidence of organized hostility to the authority of the occupying forces. Some of them, indeed, were so obviously mere pretexts that the exactions imposed were, as has been said, nothing more than contributions under the guise of fines. Some writers hold, and very properly, that such impositions do not differ from pillage except in name, and are therefore forbidden by international law.1

In other cases the fines imposed can be justified only on a theory of collective responsibility which is rejected by the great majority of writers, and which hardly seems in accord with reason or justice. Such a case was the fine of 5,000,000 francs on Brussels for the act of a police constable. The affair was one of which the population had no knowledge; they were neither active nor passive accomplices; nor was the act one which the authorities could have prevented, because they could not have foreseen it. It was an isolated individual offence, and the offender was promptly arrested by the German authorities

1 Cf. Latifi, Effects of War on Property, p. 34, and Bluntschli, Droit Int. Cod., sec. 654.