At least we worried

Susan Pedersen

  • A Scrap of Paper: Breaking and Making International Law during the Great War by Isabel Hull
    Cornell, 384 pp, £29.50, April 2014, ISBN 978 0 8014 5273 4

In the explosion of recent books about the First World War – many of them excellent, almost all packed with narrative excitement, but not all breaking new ground – Isabel Hull’s stands out. There is no human interest, no lice and dysentery, but it is as gripping and important as any. It is concerned not with the experience of war but with legal arguments over its prosecution, and it began as a modest research project aimed at understanding the uses made of the doctrine of military necessity. In Absolute Destruction (2005), Hull showed that Germany’s war against the Herero people in its South-West African colony in 1904 prefigured its military practices later in the 20th century: the extreme latitude allowed to colonial authorities helped set the script for the behaviour of the German army in the Great War. In her new book, too, she is struck by imperial Germany’s ‘latitudinarian’ interpretation of the doctrine of military necessity, especially compared to the doctrine’s much more restrictive and reluctant deployment by the other powers involved. She wants to know how these differences of interpretation can be explained and what effect they had on wartime practice. Questions of this kind drive her to examine the use made of international law by all the major belligerents. Her analysis confirms her first impressions: Germany was indeed an ‘outlier’ in the degree to which it was willing to ignore or repudiate international law. Equally important, however, is her claim about the centrality of law to the prewar international order in general.

The world before 1914 was not, Hull insists, a Hobbesian world of autonomous states driven by self-interest alone but a specific legal order, bound by treaty and not simply alliances, and constrained by an evolving and expanding corpus of international law. Painstakingly negotiated agreements governed many aspects of international relations; the doctrine of pacta sunt servanda dictated that those agreements be obeyed. If they were not, international law recognised the legitimacy of such extra-legal action as reprisals, but only if they were proportionate to the offence and designed to bring the offender back within the limits of the law. Even before 1914 imperial Germany had played the role of ‘objector’ during negotiations over conventions. Worryingly – and in contrast to Britain and France – Germany also made no effort to incorporate international law into its military manuals. Yet the framework of law existed.

The outbreak of the war, Hull argues, can’t be understood without attention to this context. The 1839 Treaty of London guaranteeing Belgian neutrality was not, in the German chancellor Bethman Hollweg’s famous phrase, just ‘a scrap of paper’. It was a ‘strong treaty’, to which every major European power was a signatory. It established the rights of small states to independent existence and its violation genuinely shocked world opinion. Hull departs from other scholars in her insistence that, for Britain especially, the invasion was indeed a major reason – and not simply a convenient justification – for entry into the war. Germany’s attempt to justify its pre-emptive action by the doctrine of necessity or self-defence was a sign of its outlier status. Few outside Germany found such arguments persuasive.

Hull is not, however, concerned primarily with attributing blame for the war’s outbreak, a matter she seems to feel has absorbed too much scholarly attention already. What engages her, and what absorbed statesmen and legal thinkers at the time, is the actual conduct of the war. In 1919, when the German delegation to the Paris Peace Conference objected to the terms of the treaty, the Allies replied that Germany had not only unleashed a war that was ‘the greatest crime against humanity and the freedom of peoples that any nation, calling itself civilised, has ever consciously committed’ but was also alone responsible for ‘the savage and inhuman manner’ in which it had been conducted. Within a few years (and even more so today), that language would sound hypocritical at best, as not only the resentful Germans but also the shattered Allied populations concluded that the war had been a purposeless bloodbath for which all states bore responsibility. Allied statements about German war guilt began to sound like little more than self-exculpatory propaganda. Hull is not so sure.

She works her way carefully through one example of German military practice after another. Deportations of Belgian civilians for forced labour in Germany caused a huge international outcry but proceeded regardless. Zeppelin raids on civilian targets, submarine warfare against merchant or passenger ships and the release of poison gas in the trenches were resorted to despite established conventions. Reprisals – the harsh treatment of POWs, for instance – were undertaken without due regard for proportionality. Records of internal discussions in the Foreign Ministry or among the German military ‘reveal no identification with international law and no sense that law might be, intrinsically, a good worth upholding’. Instead, law was treated as ‘an impediment to necessary action, or at most as a tool one might instrumentalise’. Hull’s book isn’t written as an exposé or indictment. She doesn’t claim that Germany alone broke international law, still less that it did so because of some moral deficit in the German soul. All the major belligerents broke the law; all engaged in reprisals; all at times fell back on arguments about military necessity. The difference is that German violations were more systematic and represented an effort to overturn, never to restore, the authority of the law.

Such an argument obviously requires comparisons to be drawn, and while Hull pays some attention to other belligerents (especially France), Britain forms her primary counterexample. Two chapters discuss the British naval blockade of Germany: a crucial weapon in Britain’s arsenal, and one that raised serious questions about its commitment to international law. The blockade was a great humanitarian affront, causing – at a conservative estimate – some 300,000 civilian deaths (disproportionately among the poor, female, old or very young). But humanity and legality are by no means the same thing, and in legal terms the question wasn’t whether those deaths were deplorable but whether they were proportionate: that is, whether the blockade was effective enough, and the military advantage gained substantial enough, to justify the price. Hull admits that such calculations may seem ‘macabre’, but they are intrinsic to the legal case. An argument could be made that the blockade met that standard; significantly, too, Britain worked to mitigate criticism from non-combatant states by promising to uphold neutral property rights, to protect the crews of neutral ships, and to compensate for any losses. As Hull puts it, ‘Britain took law enormously seriously, even when it was breaking it.’ Debates about policy always took place in a legal framework, with everyone – ‘from the junior clerks to the foreign minister’ – casting their arguments in terms of what the law would allow. Yes, law was considered a tool with which to achieve political aims, but it wasn’t considered ‘infinitely malleable’. To put it most bluntly, when the British violated international law, they knew they were doing so, and seemed to feel ashamed.

How can we account for these differences? Culture mattered: both Britain and France took pride in their self-definition as law-abiding states, members of a liberal world order they aspired to lead. By contrast, the German public largely accepted arguments about Germany’s imperative need to expand. But Hull also argues for the importance of institutional structures. Parliamentary oversight and traditions of civilian control meant that the military could never act entirely autonomously in Britain; policies were decided in meetings held under civilian leadership and with legal experts called in to offer independent advice. In Germany, by contrast, traditions of military autonomy meant that the Foreign Ministry was often pushed to the side, relegated to the task of justifying policy rather than determining it. Legal authorities were called in to construct post hoc justifications for military decisions, not to advise on the course called for under international law.

One of the merits of Hull’s book is the attention she gives to the efforts of Foreign Ministry officials to resist this trend. But they started from a weaker foundation and over time steadily lost ground. Attempts to justify Germany’s actions under international law gave way to the argument known as rebus sic stantibus – that new conditions nullified old law. Usually avoided before the war as being too destructive of accepted agreements, the argument was later deployed to justify submarine warfare, the Belgian deportations and the use of poison gas. In Hull’s words, Germany came to espouse a kind of ‘weapons positivism’ or ‘war positivism’: the claim that, since the war and the new weapons had created new conditions, a victor or sovereign had the right to define new law unilaterally. Anyone who has read Carl Schmitt on sovereignty can see where this was headed.

*

To her important arguments about the significance of international law both before and during the war, and about Germany’s ‘outlier’ status, Hull finally adds a third argument, one that some historians might take as a provocation but that I certainly felt as a justified rebuke. We have been too quick to expunge questions of international law from our accounts of the war, too ready to accept a story of equal moral culpability that has a genealogy of its own. The story wasn’t born only of Allied populations’ war-weariness and mistrust: the German Foreign Ministry took great care in sponsoring a revisionist history of the conflict. Germany lost the war, but it won the historiographical battle. Today, not only are discussions of international law absent from most histories of the war, but we have come to accept as ‘normal’ definitions of the rights of states that were crafted by Germany, over Allied objections, during the war itself. The view that states only follow their own interests and only recognise their own law was not usual in 1914, Hull points out. ‘The international relations school of realism has therefore built its model for “the state” on an extreme outlier.’ That we accept these arguments almost unthinkingly is a sign of how much we have forgotten about the war, and how much we owe Hull for forcing us to remember.

For all its persuasiveness, Hull’s strongly argued case also prompts some difficult questions. A first question – which Hull herself asks – is whether Germany’s lesser regard for the law was simply a consequence of weakness. International law, after all, seeks to preserve the status quo: in that sense, it is, and always must be, disproportionately a weapon of the strong. To a degree, Hull accepts this argument. Submarine warfare and poison gas were intended to compensate for military weakness in other areas. Yet Hull insists that we keep in mind both the self-interested nature of Germany’s claims (imperial Germany was not ‘objectively’ weak but merely weak relative to its hegemonic ambitions), and the fact that international law was a genuinely collaborative project, one that bound states as well as protected them. If Britain was best able to use international law, even able to break it without such high costs, it was partly because it worked so hard to justify its actions within the terms of the law and to carry neutral opinion along with it. Hull sees this capacity as a function of Britain’s constitutional structure but also of its power. ‘Power,’ she writes, ‘is the long breath it takes to bring about change multilaterally and to exercise coercion obliquely and gingerly.’

Between these two versions of power – mailed fist and gentle coercion – who wouldn’t prefer the latter? But the neatness with which this binary opposition relates to the cases of Germany and Britain prompts a further question. Would the argument hold up so well if one took into account more distant, non-Western European theatres of war? The conditions of war in Eastern Europe aren’t much treated, and the impact of the conflict in Africa, the Pacific and the Middle East not at all. This choice allows a full consideration of Germany’s behaviour, but it excludes much Allied activity from consideration. We hear a lot about the harsh character of the German occupation in Belgium but nothing about the British and Belgian occupation of East Africa, where extortionate Allied requisitions brought about famine. We learn about German labour requisitions in occupied Belgium but not about Australia’s massive expansion of indentured labour in occupied New Guinea. We hear that the French were eager to re-establish the rule of law on the Continent in 1919, but not how fiercely they resisted carrying out their own promise to bring Syria under international law. We hear that Britain tried to mitigate the effects of the blockade on Continental neutrals but not how it responded to starvation among blockaded Middle Eastern populations.

Before and after the First World War, authorities on international law disagreed sharply over whether ‘barbarous’ peoples or non-Christian states fell under its protection. But that is surely another reason to attend to its specifically European origins and to track its effects when pressed further afield. One motivation in writing this book, Hull tells us, was her dismay at ‘the lawlessness of my own country in its pursuit of the “war on terror”’. Her forensic account of wartime arguments over international law supplies one thread in the genealogy of that ‘realist’ lawlessness, but we should ask whether another thread might be found in the imperial entanglements of international law itself.