Turning now to a consideration of the law fulness of this method of naval warfare we may state that a belligerent has an undoubted right to sink the merchant vessels of the enemy with certain exceptions (e.g., coast fishing vessels, hospital ships and vessels on philanthropic missions) in certain cases as where he cannot take the prize in to a home port for adjudica tion by a prize court, either because of im minent danger of recapture or for lack of a sufficient coal supply or because of his inability to spare a prize crew, and the like. But a long established customary rule of the law of nations requires that in such a case the com mander must, before proceeding to the destruc tion, remove the passengers and crew of the vessel and provide for their safety, that is, he must take them aboard his own vessel or allow them ample time in which to take their own lifeboats. This humane rule is expressly laid down in one of The Hague Conventions, in the Declaration of London, and is even incor porated in article 116 of the German prize code as promulgated in August 1914. It is an equally established rule of the law of nations that the captor must visit and search the vessel, examine its papers and inspect its cargo, in order to satisfy himself of the nationality of the vessel and of its liability to destruction. The verification of these facts obviously can not be made through the periscope of a sub marine at a great distance. The German gov ernment frankly admitted that the obligation to provide for the safety of crews and passengers was binding upon the commanders of warships and cruisers but it denied that it was equally binding upon the commanders of submarines, for the reason that they were small craft, slow of speed, fragile in construction and were with out facilities for accommodating crews and passengers found on the vessels which they destroy. By reason of their lack of speed it would often be impossible for them to give sufficient time for the crews and passengers to leave the ship and embark in lifeboats, without exposing the submarine to destruction by ves sels of the enemy which might upon signal ar rive on the scene before the torpedo had done its work. Moreover, it was argued, British merchant vessels were generally armed with guns which might be turned upon the attacking submarine with deadly effect in case it gave warning and an opportunity to the persons on board to leave the ship, before the torpedo was discharged. The rule in respect to providing for the safety of crews and passengers, the Germans argued, originated at a time when submarines had scarcely been dreamed of. Cruisers and battleships then were the prin cipal craft employed for destroying enemy merchant vessels and they possessed facilities for accommodating crews and passengers or they could allow them sufficient time to take to the lifeboats without themselves being exposed to the danger of destruction. To require sub marine commanders to observe this rule would in effect render the employment of the sub marine for the destruction of prizes impossible, and this being the only available craft left to Germany for carrying on the war at sea she could not be expected to relinquish it. °New situations," said Professor Fleishmann of the University of KOnigsberg in an article on the °Lusitania Case" °necessitate new rules* and the submarine being a new weapon is not bound to conform to the rules adopted long ago for the conduct of cruiser warfare. °Who,* said Professor Zittelmann of the University of Bonn, "would have thought at the time the old rule regarding provision for the safety of crews and passengers, of the possibilities of sub marine warfare.* Had the use of submarines been anticipated, he says, °special rules govern ing their employment would have been de vised* (see his chapter in a book entitled 'Deutschland and der Weltkrieo,' 1916). The submarine, said Count Bernstorff in a memoran dum laid before the Department of State on 8 March 1916, is "a new weapon, the use of which had never been regulated by international law.° From this doubtful premise he drew the unwar ranted conclusion that in using this weapon Germany °could not and did not violate any existing rule of law.* In the main, the German argument reduced itself to a claim of special immunity for sub marines because of their peculiar build and con sequent weakness. Since it is impossible to em ploy them in conformity with the long estab lished rules governing prize destruction their commanders are relieved from the obligation to do so. In short, a prohibited method of war fare becomes legitimate whenever a new instru ment for doing it is invented— that is, when ever an immediate belligerent interest would be subserved by the employment of an instrument which cannot be employed in conformity with the existing rule of law, the rule may be over ridden and the interest allowed to prevail. This argument is specious; it ignores the fundamen tal fact that the rule of international law which requires naval commanders to spare the lives of innocent non-combatants on the merchant vessels which they destroy was adopted in the interest of humanity and was intended to govern prize destruction by any and all types of vessels which then existed or which might be invented in the future. To argue that a sub marine commander may drown unoffending non-combatants but that the commander of a cruiser cannot is preposterous. The employ ment of new instruments and agencies of destruction must be adjusted to the require ments of the law, not the law to the instrument; it cannot be admitted that the invention of a new weapon may serve to repeal the law of nations and of humanity. The German defense
harmonizes well with their theory that °what ever is effective and whatever tends to shorten the war is legitimate)); in its final analysis it amounts to a claim that a single belligerent may at will change the law of the sea to meet his own immediate necessities. The United States Supreme Court in the case of the Scotia laid down a principle of international law which has never before been contested that "the law of the sea is universal and cannot be changed by a single nation." Germany, there fore, had no right to repudiate a long estab lished rule which by common agreement had come to be a part of international law. It will readily be admitted that the introduction of the submarine will necessitate certain modifications of international law, those governing blockade, for example, hut it cannot be admitted that the invention of a new instrument of destruction can alter what the President of the United States called "those rules of fairness, reason, justice and humanity which all modern opinion regards as imperative.* The Germans claim, in fact, that in many instances in which their submarines destroyed merchant vessels they saved the persons on board whenever possible. But there arc al most no recorded instances in which crews or passengers were taken aboard the submarine, for the good reason that submarines have no accommodations for any but their own crews. The Germans likewise claim that wherever pos sible they allowed sufficient time for the crews and passengers to leave the ship and take to the life boats, but the instances in which this was not done are so numerous that it may be said that the contrary practice was rather the rule. In many cases where warning was given be force the torpedo was discharged, the period of time allowed, sometimes not more than 10 minutes, was wholly inadequate, and instances were common in which huge ocean liners sank while the passengers were endeavoring to leave the ship. Incredible as it may seem also, in stances are not lacking (e.g., the Ancona) in which the crews and passengers were deliber ately shelled while taking to the boats. Even when ample time was allowed the passengers to leave the ship it was only a technical com pliance with the rule requiring naval com manders to provide for the safety of the per sons on board, for they were set adrift in small boats often hundreds of miles from land, sometimes in mid-winter, without food or drink lug water and left to drift at sea for days, to suffer the tortures of thirst and hunger, to die of starvation or exposure to cold or to be washed overboard by rough seas and to drown while struggling to save themselves. The Ger man government readily admitted (in a note of 29 Nov. 1915, relative to the sinking of the Frye) that this procedure was not a sufficient compliance with the spirit of the rule nor in accord with the assurances which were given the government of the United States that the crews and passengers of ships sunk by Ger man submarines would not be exposed to danger in this fashion.
Few chapters in the history of the Great War reveal German militarism in a worse light than this cruel war against unoffending non combatants who were in most instances peace fully navigating the seas for the freedom of which the German Government pretended to be fighting. For sheer ruthlessness and barbarity there is nothing comparable to it in any other modern war. German methods of submarine warfare have frequently been characterized as piratical. Technically, of course, their sub marines were not pirates, since their command ers bore commissions from a belligerent gov ernment, but they might with reason be con sidered as pirates within the meaning of the old rule which defined pirates as hostes humani generis, Naturally few reputable authorities on international law outside Germany have been found to defend such methods of warfare, and even in Germany and Austria they have been denounced as barbarous by many persons, nota bly by leaders of the Social Democratic party. It is difficult to reconcile the conduct of the German submarine commanders with the utter ance of Germany's great diplomat, Marschall von Bieberstein, who at the second Hague Con ference said: °The officers of the German Navy, I loudly proclaim it, will always fulfill in the strictest fashion the duties which emanate from the unwritten law of humanity and civili zation. As to the sentiments of humanity and civilization, I cannot admit that there is any government or country which is superior in those sentiments to that which I have the honor to represent.° Bibliography.— Burgess, 'American Rela tions to the War' (Ch. 1) • Archer, 'The Pirates Progress; A short History of the U-Boat,> Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties, Department of State,. Euro pean War (No. 3, 1916) ; Garner, in American Journal of International Law (Vol IX, pp. 594 ff) ; Higgins, 'Defensively Armed Mer chant Ships and Submarine Warfare' ; New boldt, Sir Henry, 'Submarine and Anti-Sub marine' (New York 1919); Rogers, 'American's Case Against Germany' (Chs. 2-5, 7, 9) ; Scott, 'A Survey of International Relations Between United States and Germany> (Chs. 9, 13-16) ; Noyes, 'Open Boats> ; Frost, 'Submarine War Zeitschrift fur Volkerrecht (Vol. IX, Der Fall).