THE FUTURE OF THE SUBMARINE IN INTERNATIONAL LAW
By Morris Cooper, Jr. of the New York Bar
The most active source of change in the rules of warfare has always been the invention of new mechanisms, new engines of destruction.
Such mechanisms, when unusual, have always been surveyed with apprehension, and, in fact, it has at times been considered a violation of the rules of military etiquette and honor, to use them. Conflans, the French vice-admiral, issued an order of the day on November 8, 1759, forbidding the use of hollow shot against the enemy, on the ground that they were not generally used by polite nations, and that the French ought to fight according to the rules of honor. The same view was taken of the use of hot shot, grape, chain-shot, split balls, etc. The attitude of the Chinese swordsmen toward the introduction of gunpowder in the sixth century was undoubtedly similar.
The novelty of the submarine as used by Germany in the Great War lay not in its employment against war vessels, but against merchant shipping. Before 1914 such an application of undersea boats, while it may have been in the minds of naval experts, had certainly never occurred to the layman. The theory expressed in the words spurlos versenkt was unborn.
Before the Great War the rights of belligerent and neutral merchant vessels were fairly clear. It was the duty of such vessels, if duly signaled, to lie to, and submit to visit and search. Refusal to do so was at the risk of the vessel. Capture of a belligerent merchant vessel was followed by removal to port, and an adjudication there by a prize court. To this there were certain exceptions. Under certain circumstances, such as the dangerous condition of the prize, the possibility that if released it might aid the enemy, the inability of the captor to furnish a prize crew, the distance from a national port of the captor, lack of supplies or the presence of disease, the prize might be sold or destroyed forthwith. The crew, and the ship's papers must, however, be first removed to a place of safety so that there might be a prize court adjudication. If any of the cargo was neutral and the vessel was sunk under the above circumstances, full compensation had to be paid to the cargo owners, and any of the crew or passengers who were neutrals had at least to be carried to a port whence they might reach their destination.
The rules of international law have never permitted the destruction of unresisting neutral merchantmen, unless the vessel is guilty of a grave act of unneutral service. The Declaration of London (Naval Conference 1908-1909) Art. 49, provided that a neutral vessel which had been captured, and which, because of its unneutral service would be liable to condemnation, might be destroyed if her removal to port would involve danger to the safety of the captor or the success of the operations in which she might be engaged at the time. The German Government used this provision as part of its defense of the practice of unrestricted submarine warfare. The exception of military necessity to the duty of taking a captured vessel to port undoubtedly gives a great advantage to a weak naval power; after the cargo has been destroyed and the witnesses dispersed the captor becomes in fact the judge of the necessity.
Such conditions are applicable to surface craft, and operate satisfactorily when applied to such vessels. When applied to submarines they are hopelessly inadequate. The submarine is a weapon of stealth. Its power lies in its capacity to strike unseen.
On the surface it is handicapped, and except for the giant boats which were constructed by Germany near the close of the Great War, are at the mercy of a fast, well-armed and efficiently manned merchantman, particularly in a seaway. A submarine cannot possibly take aboard or remove to a place of safety the crews or passengers of vessels which it destroys. In that respect a modern cruiser is in much the same position, by reason of its construction. It may be questioned to what extent the deck or hold of a cruiser which may at any moment close with the enemy, is a "place of safety."
Thus the realization of the vast power of the submarine has brought about a situation where the old rules of maritime warfare are entirely insufficient, and it has become necessary to formulate something new to take their place. Unrestricted submarine warfare, on freight and passenger vessels alike, as practiced by Germany in the Great War, must in some way be forever abolished. It is unthinkable that there should ever be another Lusitania.
The future of the submarine depends, of course, on the retention of the right to capture private property at sea. Today the abolition of this right seems remote, but it has been advocated from time to time. In 1859 the chambers of commerce of Hamburg and Bremen passed the following resolution to memorialize the Congress expected to meet at Paris:
"That the inviolability of person and property in time of war, on the high seas, extended also to the subjects and citizens of belligerent states, except so far as the operations of war necessarily restrict the same, is imperatively demanded by the sentiments of justice universally entertained at the present day."
The capture of private property on the high seas is less objectionable than its capture on land. Such capture is generally bloodless, as most merchant vessels are incapable of resisting a man-of-war; it is an interference with a voluntary and insurable venture, not pilferage of the homes of the unfortunate inhabitants of an invaded country, and is less likely to be accompanied by violence and outrage. The protection of enemy commerce from molestation would rob a great naval power of most of its advantage over one with a smaller navy or none at all, as its navy would be impotent except for attack upon coast defenses.
In 1856 the United States proposed to add to the Declaration of Paris a clause exempting all private property, except contraband, from capture on the high seas, but even this limited proposal was not adopted by the powers represented, Russia alone excepted, and it is doubtful whether with the growth of the naval power of the United States such a suggestion would be advanced today.
Admiral Mahan, in The Interest of America in Sea Power, states, "It may be asserted quite confidently that the concession of immunity to what is unthinkingly called the 'private property' of an enemy on the sea, will never be conceded by a nation or alliance confident in its own sea power."
Assuming, then, that the right of capture of private property on the high seas be retained, it is quite inconceivable that a nation of comparatively weak naval power will not, in extremis, use the submarine to destroy the commerce which is feeding the armies of its enemies. Rules and concepts of law may seem ideal in time of peace, but unless their character is such that they will be respected and followed by both belligerents in time of war, they are worse than futile. Particularly in a nation which is unambitious for imperial power, and whose citizens, not seeing the possibilities of affront and consequent war, insist upon a rigidly economical naval policy, canons of maritime law which may be used as arguments for a reduction of armaments by demagogic publicists, but which would undoubtedly be broken by a ruthless enemy, are treacherous lullabies. War is bereft of sentimentality. A nation which thinks otherwise, and which believes that the rules of war which existed in the days of the frigate can withstand the pressure of modern invention, and prevail today, deceives itself woefully. Wheaton, writing in 1815, said "The object of our enquiry is not, WHAT THE LAW. OUGHT TO BE, but WHAT IT PRACTICALLY IS: since it is the latter which furnishes the rule of conduct for those who are governed by it. As public, unlike municipal law, is sanctioned not by the power of a single sovereign or state, but by a resort to force among independent sovereigns or states, it is necessarily imperfect in practice, however just and beautiful in theory. The law of nations is adapted to a state of war, and is intended to mitigate its violence. It is, however, frequently compelled to yield to the very violence it was designed to restrain, and becomes the victim of innovations made and enforced by the edicts of particular states and the adjudications of their tribunals. The purity and simplicity of the primitive law of nations, which is nothing more than the law of nature applied to the conduct of nations and states, has thus been corrupted."
It has been said that the rules of humanity are eternal and universal, and can never be broken down by scientific inventions. How can we reconcile the laws of humanity with the hard, cold fact that a nation at war will inevitably use the most potent means that come to hand?
Various suggestions were made during the progress of the Great War, and have been made since its termination. In 1919, the Grotius Society, with membership among publicists and students of international law of many nations, appointed a committee to examine into the legal status of the submarine. The report of this committee, as published in Transactions of the Grotius Society, Vol. IV, 1919, suggests that the destruction of enemy merchantmen by submarines should be prohibited except in case of attempted escape or resistance, or belligerent conduct consistent only with the character of a warship. The Recommendations of the Society, based upon the committee's report, but differing somewhat from it, state that visit, search and seizure should be permitted, but prohibit destruction of enemy merchantmen "with the exceptions set out below." No exceptions are, however, set out below or elsewhere, so far as the writer can ascertain. The Recommendations prohibit destruction of neutrals except when resisting visit and search, or engaged in blockade running, or in gross unneutral service, and provide that reasons of military necessity, such as danger to the submarine's or other warship's safety, or its operations, should not be held to justify destruction under these provisions, and furthermore, that adequate provision must be made in any case for crew and passengers.
Professor Garner reaches similar conclusions. After discussing the necessity of removal of crew and passengers to a place of safety before the destruction of a vessel he states that "Since submarines in the present state of development do not possess such facilities, they should be prohibited absolutely from attacking merchant vessels, except in case of attempted escape or resistance. No distinction should be recognized between the obligations of submarine commanders and the commanders of cruisers to provide for the safety of crews and passengers and this should be definitely affirmed by the new international law."
To hope that nations will abide by any such rules is a fantastic dream. Approach an angry bull with a red flag; wave it in his eyes; then call his attention to several books containing very definite rules for his conduct.
The utter futility of the idea that nations will make war only "in a mild and mitigated fashion, after due notice and according to an approved set of regulations" has been admirably pointed out by Mr. H.G. Wells. If we are to have new rules to govern new conditions, let us at least try to formulate rules which we may hope to see survive a bitter combat.
Modern wars are fought, not only by mercenaries and volunteers, but by entire populations. Even if not actually in the field, every soul in the nation is affected more or less closely by a great war. The officers and crews of merchant vessels are normally drawn from citizens of the nation whose flag they fly. If they are not citizens they receive the benefits of such and may also be said to assume the risks. They are ordinarily of military age, accustomed to hardship and to privation. If not engaged in manning merchant ships, an occupation vital to the prosecution of any war by a seafaring nation, the nationals among them would undoubtedly be subject to conscription into the regular military service.
Why should we so jealously guard the safety of merchant crews? It is perfectly practicable to arm merchantmen with guns up to 6 inches, and to man them with naval gun crews for defense against submarines. Why then, should we not permit belligerent merchant vessels, carrying freight only, to arm against submarines, not only for defense, but also for offense, allowing either the submarine or the ship to attack without search or warning? Of course the construction and armament of the merchantman will prevent her from attacking war vessels other than submarines, and as to such other war vessels the prevailing rules as to visit, search and seizure should still prevail.
On the other hand, non-combatant passengers should be entirely free from capture or molestation. Certain ships should be selected, to be used only for the carriage of passengers, and to carry no freight whatsoever, using ballast if necessary, and no passengers should be permitted to travel on freight vessels. Doing so should be entirely at their own risk. Such passenger vessels should have precisely the same status as hospital ships, and should be subject to the same restrictions. The names of such ships should be communicated to the belligerents before their employment, and they should be painted in a distinctive manner and have some device for disclosing their identity at night. They should be unarmed, even for defense, and sinking them should be made the most serious of war crimes. To protect against the transportation of combatants an inspection of the passengers before sailing might well be made by the neutral consul in charge of the affairs of the belligerent.
The problem of neutral vessels remains. As far as neutral passenger ships are concerned, the provision for belligerent passengers could be made equally applicable to neutral passenger vessels and would afford greater protection than has in the past usually been accorded to neutrals passing through a war zone. In respect to vessels carrying only neutral freight destined for belligerent territory, it may be that we have been in the past too solicitous of the rights of neutral traders. The spectacle of the profiteers in a neutral nation waxing fat in furnishing the means for a death struggle between other nations is loathsome.
In the days before steam, wireless telegraphy and aircraft, the blockade, in spite of the elaborate restrictions upon its use, was a serious impediment to neutral shipping. Now that the blockade because of these and other inventions is almost obsolete, the submarine has become its natural substitute.
As a practical matter, it is well-nigh impossible for any nation to be entirely neutral. Alliances, ententes and understandings nullify the theory of neutrality. Furthermore, citizens of neutral nations consciously or unconsciously encourage war in the hope of stimulation of trade and exorbitant profits.
We are thus forced to the conclusion that if neutrals wish to trade with belligerents, they should take the chance of such trade. If the rules for neutral and belligerent freight vessels differ, the temptation to use false colors is enormous, and making their use a war crime, as suggested by the Grotius Society (Transactions of the Grotius Society, Vol. IV, p. xliii) will not prevent it. We must assume that in time of stress, other nations may adopt the same submarine policy as was adopted by Germany during the Great War and neutrals should look forward to this contingency, and in so far as possible be prepared to meet it. It is urged, therefore, that the submarine be allowed to attack neutral merchant freight ships proceeding into a defined war zone indiscriminately, and that such ships be permitted to arm for defense against submarines. A neutral nation expecting to trade with a belligerent, if it does not wish to arm its own ships, should apply to such belligerent for protection. Defense against submarines by such vessels, on the other hand, should not be construed as an act of war on the part of the neutral and the officers and crews if captured should be unconditionally released.
It may be urged that a rule such as the foregoing as to neutral shipping will tend to draw all maritime nations into any war involving one of them. If this is true and if all nations fully realize what their position as neutrals will be, such a rule should act as a preventive of war as neutrals will be inclined to throw their entire influence against war rather than to encourage it.
In this discussion a sharp distinction has been drawn between passenger vessels and freight vessels and it must be emphasized that passenger vessels must carry only passengers and perhaps first class mail. Their holds if not used for passengers must be light or filled with ballast. That this will make the cost of passenger traffic high is realized, but the privilege of transportation in war time is an unusual one and must always be costly.
The principal crime of the submarine in the Great War was its use against passenger vessels. The temptation to this crime lay not in the fact that these vessels carried passengers, but in that they also carried supplies which sustained the belligerents, and, in some cases, arms and ammunition. If this temptation be removed the crime will also disappear.
Addenda
Since writing the foregoing the rules proposed by Mr. Elihu Root, chairman of the sub-committee of the Arms Conference for drafting resolutions regarding submarines, have been accepted on behalf of the five chief naval powers. They are subject to the same criticism as those of the Grotius Society and of Professor Garner. Furthermore, they are so indefinite in their purport as to lead to endless confusion and wrangling. The resolutions are as follows:
"Section 1. The signatory powers declare that among the rules adopted by civilized nations for the protection of the lives of neutrals and non-combatants at sea in time of war the following are to be deemed an established part of international law
"(1) A merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized.
"A merchant vessel must not be attacked unless it refuses to submit to visit and search after warning, or to proceed as directed after seizure.
"A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.
"(2) Belligerent submarines are not under any circumstances exempt from the universal rules above stated, and if a submarine cannot capture a merchant vessel in conformity with these rules, the existing law of nations requires it to desist from attack and from seizure and to permit the merchant vessel to proceed unmolested.
"Section II. The signatory powers invite all other civilized powers to express their assent to the foregoing statement of established law so that there may be a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents.
"Section III. The signatory powers desiring to insure the enforcement of the humane rules of existing law declared by them with respect to attacks upon and the seizure and destruction of merchant ships, further declare that any person in the service of any power who shall violate any of these rules, whether or not such person is under orders of a Governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any power within the jurisdiction of which he may be found.
"Section IV. The signatory powers recognize the practical impossibility of using submarines as commerce destroyers without violating, as they were violated in the war of 1914-1918, the requirements universally accepted by civilized nations for the protection of the lives of neutrals and non-combatants, and to the end that the prohibition of the use of submarines as commerce destroyers shall be universally accepted as a part of the law of nations, they now accept that prohibition as henceforth binding as between themselves, and they invite all other nations to adhere thereto."
Mr. Root fails, however, to define a merchant vessel. What will prevent a vessel, to all appearances a cargo carrier, from engaging in the most unneutral service, or even actually in belligerent naval operations? Already the question has provoked various definitions among the powers. When does a merchant vessel become a warship? It is rumored that the Italians maintain that a merchantman in this connection must be considered as a vessel not armed and not carrying contraband of war; that the British assume that a merchantman is a ship which carries freight or passengers which are not the property of the state and which is itself privately owned, and that unquestionably such a vessel has the right to arm for defensive purposes and to carry munitions; that the French decline to commit themselves at all. The United States is also non-committal. And supposing, the altogether improbable, that all nations come to an agreement as to just what cargo and service render an apparent merchant ship a warship, how is the submarine commander to know? Mr. Root has merely repeated the old phrases; he has altogether overlooked the new mechanical situation; he, like Admiral Conflans, tells us that the submarine is not used by polite nations, and that we should fight according to the rules of honor.