aim; the forester thereupon bursts open the door and enters the house himself in order to take the second poacher by surprise and overpower him.1

Then turning to the question as to whether Germany was really in a position of urgent necessity, Professor Schoenborn proceeds to argue that it was Germany who was attacked, the proof of which is to be found in the history of the events preceding the war. This proof, according to him, consisted in the undisputed determination of Germany's enemies to annihilate her, or at least to destroy her position as a world power. Thus "Germany was in a most difficult strategic position from the very beginning; she was involved in a war on two fronts with two of the most powerful military States of Europe, which had in recent years made tremendous preparations for war; she was deprived of her freedom of action at sea owing to England's highly threatening attitude, even in the last days of July; and in the beginning, furthermore, forced to rely mainly on her own military resources because it was no longer possible to hope for armed assistance from Italy, and because her ally Austria, also immediately involved in a war on two fronts, could employ only a part of her forces against Russia, whose army alone was estimated to be numerically equal to the combined forces of the central powers. There was but one advantage on Germany's side to counterbalance all this; the prospect that the great numerical superiority of her enemies could be effectively developed only after the lapse of time, whereas the rapidity of the German mobilization was regarded as unparalleled."

That France "intended" to take advantage of this circumstance the German government had received "reliable information."

1 The analogy is false; presumably the "poacher" was France, and his armed companion was England. But France had not attacked Germany. Germany herself was the "poacher," for it was she who first declared war against France. Furthermore, Great Britain had not come to the aid of France, nor did she declare war against Germany until the German troops had entered Belgium. A more exact analogy would be to say that the German "forester" forced his way through the house of an innocent neighbor to attack one whom the "forester" professed to believe was an enemy, this not because there was no other way of getting at him, but because it was the shortest way of approach and was beset by fewer obstacles. Professor Kohler in the article referred to above attempted to defend the action of Germany by recourse to a somewhat similar analogy. “If I am attacked by an enemy," he said, "who has stationed himself in the house of a neighbor, I am justified in shooting into the house in order to defend myself and to prevent a continuation of the attack." Zeitschrift für Völkerrecht, Bd. VIII, p. 577. The same is true, he said, "when the aggressor has not yet entered the house of the third party, but is on the point of rushing in in order to fire at me from within the house. In that case I have the right to get ahead of him by forcing myself into the house and if I injure the house I am acting in self-defence." The conclusion is warranted, but the premise is false, for no enemy had attacked Germany within the territory of Belgium, and there is no evidence that one was preparing to do so.

PLEA OF NECESSITY ANALYZED

201

True, France had given assurances that she would respect the neutrality of Belgium, but those assurances were conditioned on the contingency that Belgium's neutrality must be "respected" by other powers, an assurance, he says, that amounted to little, because it left France full liberty of action in case a German patrol should stray by mistake across the Belgian frontier or a German aviator should fly over some projection of Belgium. "After considering all these points," Schoenborn concluded, "no unbiassed judge will deny that Germany was in a position of extreme necessity." 1

§ 442. The German Argument Analyzed. The conclusion of Schoenborn and the other German apologists would be entitled to some weight if their assumptions had any foundation in fact. The burden of their argument, when stripped of its subtleties, was that Germany, finding herself involved in a war in which her adversaries had the advantage of numbers and of geographical situation, was justified on grounds of military necessity in marching her armies through the territory of a neutral Statea State, too, whose inviolability Germany had solemnly pledged herself to respect and guarantee in order to offset the disadvantage to which she would have been exposed by attacking her enemies by way of her own frontier. The shortest distance between Germany and her chief adversary and the best roads lay through the territory of Belgium, and, besides, this route was beset by no such military defences as she would be compelled to face by taking the more southerly route around Belgium. It was, therefore, purely considerations of strategical interest and of military convenience which actuated the German government and in no sense a case of necessity. It was to the interest of Germany that she should strike France quickly before Russia could bring her armies into full action; this could be done only by sending her forces through Belgium.3 The plea that it was necessary to forestall the threatened action 1 See his chapter entitled Belgium's Neutrality in Modern Germany (Eng. trans. of Deutschland und der Weltkrieg), p. 545. The argument of military necessity is relied upon by many other German jurists. Cf. among others Zitelmann, Haben wir noch ein Völkerrecht? in the Preussische Jahrbücher for October-December, 1914, p. 472; von Liszt, Das Völkerrecht, 10th ed. (1915), p. 202, and a propagandist brochure entitled, Die Wahrheit über den Krieg.

2 Cf. Renault, Les Premières Violations, p. 62.

Cf. the views of Fuehr, an apologist of Germany's action, in his book The Neutrality of Belgium, p. 185.

of France is without weight, for France had given her solemn assurances that she would respect the neutrality of Belgium, provided her adversaries would do likewise, and there is no evidence to justify the German assumption that the assurances were made in bad faith. The insincerity imputed to the French government was merely a pretext, and it is clear from the German correspondence with the Belgian and English governments that it was the intention of the German government from the outset to send its armies through Belgium. At the time of the delivery of the German ultimatum to Belgium, France had not violated the neutrality of Belgium; even according to the admission of the German government there existed only "reliable information" of an intention to do so.1 The only possible conclusion is that if the plea of military necessity be admitted as a justifiable defence for the invasion of Belgium, any belligerent act which subserves a military interest may be defended on the same ground, and in that case it is quite useless for States to enter into engagements to respect the rights of one another, for treaties will in truth be but "scraps of paper" and international guarantees what Frederick the Great conceived them to be, namely, "works of filigree more satisfying to the eye than of any utility."

1 The formal declaration of war delivered to the Belgian government stated that Germany had been compelled to take this action in view of French menaces. Mr. James M. Beck, in his Evidence in the Case (p. 229), aptly remarks that if it were really true that the German government had evidence of the intention of France to invade Belgium, it was the greatest tactical blunder that it did not permit France to carry out her intention, because it would have furnished Germany with a justification of her own conduct which could never have been questioned.

CHAPTER XXIX

THE GERMAN INVASION OF BELGIUM

(Continued)

§ 443. Alleged French Violations of Belgian Neutrality; § 444. German Charges against Belgium; the Anglo-Belgian "Conversations"; $445. May a Neutralized State Enter into Alliances? § 446. Effect of the Treaties of 1870 on the Neutralization Treaty; § 447. Was the Treaty of 1839 Binding on the German Empire? § 448. The Provisions of the Hague Convention in Respect to the Inviolability of Neutral Territory; § 449. The Rebus sic Stantibus Argument; § 450. Evaluation of the German Arguments; § 451. The Right of Passage in Time of War; § 452. Duty of the Guarantors of the Neutralization of Belgium.

§ 443. Alleged French Violations of Belgian Neutrality. After the German armies had crossed the Belgian frontier and the public opinion of the world had been aroused by the act, the Germans promptly set about to discover other pretexts than that of military necessity to justify their conduct. The charge was now put forward that France had already before the delivery of the ultimatum actually violated the neutrality of Belgium and this with the consent of the Belgian government. The charges of French violations of Belgian territory took various forms. Baron von Schoen, German ambassador at Paris, in the declaration of war which he handed to the French government on August 3 charged that "several French airmen had already violated the neutrality of Belgium by

1 Cf. the following from a proclamation issued on August 4, 1914, by General von Emmich after his troops had entered Belgium: “It is my greatest regret that the German troops find themselves obliged to cross the frontier of Belgium. They are acting under inevitable necessity, as the neutrality of Belgium has already been violated by French officers who under disguise have crossed the Belgian territory in motor cars to enter Germany." On August 9 General von Bülow issued a proclamation to the Belgian people in which he said: "We are fighting the Belgian army solely to force a passage towards France which your government has wrongfully refused to us, although they have allowed the French to make a military recor.naissance, a fact which your papers have concealed from you."

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flying over Belgian territory." M. Viviani promptly denied the charge as being without foundation.2

After the delivery of the ultimatum of August 2 the German minister to Belgium informed the Belgian government that "French dirigibles had thrown bombs and that a French cavalry patrol had crossed the frontier in violation of international law." Upon being asked where the bomb-throwing had taken place, he replied, "in Germany."

Richard Grasshoff, a German writer,3 charges that Belgium had before August 4 "opened her frontiers to the French." The proof which he submits in support of the charge consists mainly of the testimony of certain persons, mostly Germans, who claimed to have seen French soldiers at Liège and Namur between July 26 and July 29. One witness claimed to have seen a French aeroplane over Brussels. Two others claimed to have seen, or to have been told by others who had seen, French patrols in Belgium. These charges are characterized by extreme vagueness, no names are given and some of them are based on hearsay evidence. It is not probable that the nationality of an aeroplane seen flying high in the air over Belgium could have been distinguished by a man on the earth. far below. It is not improbable also that the persons taken for French soldiers were in fact Belgians, for there is a striking similarity between their uniforms. The French government investigated the charges, and on August 4 the French minister of war declared that "our soldiers are rigorously and in the most formal manner forbidden even as patrols to enter Belgian territory.' Most if not all of the acts charged took place in

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1 Dr. Ernest Müller-Meiningen in his Der Weltkrieg und der Zusammenbruch des Völkerrechts, ch. 1, charges that it was established by the declarations of French prisoners that French officers were "professionally active" in Liège and Brussels some weeks before the outbreak of the war. He also quotes from the Norddeutsche Zeitung of January 18, 1915, a statement based on sworn testimony that as early as July 24 two companies of French infantry were detrained at Erqueline in Belgium. The statement referred to was made on December 22, nearly five months after the incident alleged.

2 French Yellow Book, No. 148.

3 The Tragedy of Belgium, pp.23-40 (Eng. trans. of a book entitled Belgiens Schuld). 4 These various charges are examined and refuted by Waxweiler in his book, Belgium and the Great Powers, pp. 158 ff.: by Saint Yves, Les Responsabilités de l'Allemagne dans la Guerre de 1914, pp. 299 ff.; and in a Belgian official document entitled Cahiers Documentaires, No. 35, January 27, 1917.

The French instructions relative to the violation of neutral territory may be found in a publication of the ministry of foreign affairs entitled Les Violations des