Prior to the London treaty of 1930, international law was fairly clear on the treatment which merchant shipping should receive at the hands of belligerents. Merchant ships could not be sunk except under the most extraordinary circumstances. They could be “brought to by forcible measures if necessary.” Enemy merchant vessels could be captured and neutral merchant vessels were “liable to capture if they attempted to avoid visit and search by flight or resisted by force.” (Art. 64, Instructions for the Navy of the United States.)
In no case after a vessel has been brought to may it be destroyed until after visit and search has been made and all persons on board have been placed in safety, and also, if practicable, their personal effects. . . . All mails on board should be saved so far as possible and practicable.
Art. 9, Instructions for the Navy of the United States.)
It will be remembered that the United States declared war on Germany because United States merchant vessels were sunk on sight if found in the German proclaimed war zone.
Under certain circumstances enemy merchant vessels and neutral merchant vessels engaged in unneutral service could be legally destroyed. These were:
(1) Unseaworthiness of the captured vessel. (2) Existence of an infectious disease. (3) Lack of personnel to furnish a prize crew. (4) Danger of recapture. It was presupposed, however, that regular visit and search had been made and passengers, crew, ship’s papers, and mails first placed in safety.
Should an enemy merchant vessel resist visit and search, her captain, officers, and crew could be made prisoners of war.
Neutral merchant vessels enjoyed almost complete immunity from destruction. Unless loaded with absolute contraband they could not be sunk. If it was impossible to make a prize of such and to send them in to a prize court, it was necessary to let them proceed after removing such enemy persons or property as was found practicable. Again visit and search was presupposed.
Merchant ships could be brought to by forcible measures if necessary, but nowhere can we find in international law that they can be sunk without first providing a place of safety for passengers, crew, papers, and mails.
The object of bringing to a ship is to provide an opportunity for visit and search. If a ship be sunk no visit and search can be made. If a merchant ship persist to the bitter end in resistance to visit and search, then she has placed herself without the law and may be sunk, but it is not conceivable that a merchant ship would do so, if there were assurance that accepted prize law would be respected by the captor.
Bringing to by forcible measures is intended as a demonstration to a merchant vessel that escape from legitimate visit and search is impossible without running the risk of serious and useless damage. A merchant ship has a perfect right to flee and take the risk of damage if it thinks such action worth the risk. Obviously, if a merchant ship expects to be torpedoed anyway and passengers and crew set adrift in open boats in the open sea, the right of “self-preservation” is strongly on the side of the merchant ship and she is certainly justified in taking the most extreme risks to get away. If however, there is provision for safety of passengers, crew, papers, and mails, though destruction of the ship is a foregone conclusion, international law requires that the ship submit to visit and search. The legality of destruction of the ship is a matter for later determination in the courts.
The ordinary submarine, unaided, cannot, in the open sea, provide a place of safety for passengers and crew. A submarine isn’t even a safe place for its own personnel. The average submarine has neither the speed nor the gun power to make it a very great risk for many merchant ships, especially if armed defensively, to attempt to escape. The really serious threat presented by the submarine lies in her torpedoes, weapons of opportunity designed to “sink or render incapable of navigation” their target. The range of the torpedo is not great. It must be directed at a target in motion from a favorable position which no submarine, steaming on the surface, could even attain except in very low visibility. A merchant ship picking up a submarine on the horizon could most probably escape and would. Consequently the submarine must maneuver unseen until fairly close aboard and on the bow of an on-coming ship with the distance between rapidly closing. The submarine has but a few minutes to make a recognizable summons and to keep the ship’s fate under torpedo control.
The merchant ship should assume the submarine to be a war vessel and therefore legally entitled to summon her, which should therefore be anticipated. The ship should stop, lie to, and await summons and visit and search. But suppose such summons is made and the ship searched. There is no place of safety in which to put her passengers and crew. Therefore she cannot legally be destroyed. The whole proceeding has been futile and is bound to be futile. The action of a submarine appearing close aboard must therefore be considered as distinctly hostile, as otherwise, if she intended to act legally, the result would be merely an exchange of civilities, obviously a dangerous as well as futile procedure on the part of the submarine which thereby runs the risk of being rammed, of being fired at by an armed merchantman, or of having her position disclosed.
We must infer that a submarine which deliberately appears out of the depths in the path of an on-coming merchant ship intends to destroy commerce and that she has selected a victim. She intends to violate the law and is therefore outside the law. There is no logical recourse for the merchant ship other than resistance by flight. If in flight, she uses her guns to stand off the submarine by forcing it to submerge and thereby decreasing its pursuit speed, she cannot be considered as acting other than in self-defense against a criminal.
At this point the London treaty of 1930, presumably the law since it has been ratified, steps in to legalize the criminal and to make criminal what has hitherto been considered innocent flight alone. Flight alone has hitherto justified capture though no criminal action could be taken against a captain who attempted flight. A submarine may now legally torpedo a merchant ship in flight regardless of the terrible consequences to those on board of her.
The World War upset many traditions by deliberate violations of law, but international law rejects the purely arbitrary as precedent and seeks to build itself upon the broad foundation of that which is most generally acceptable and beneficial, and which has no undesirable repercussions. The unrestricted use of the submarine against shipping was a direct and arbitrary violation of international law because absolutely no benefit accrued in the end to anyone. It had, up to 1930, been definitely rejected by international law as a precedent without sanction.
The unrestricted submarine campaign did bring up many questions which needed clarification, such as the conditions under which a ship could be considered a merchant ship or a warship, the right to interfere with legitimate commerce, the extent and character of permissible retaliation, etc. In general, international law retained its pre-war principles. The many violations of these principles during the war seem only to have discredited themselves as precedent.
War practice as opposed to legal principle, however, demonstrated one thing clearly. In emergency, the thing which can be done is likely to be done if there is anything immediate to be gained, regardless of law. But these will be isolated cases and be without the law. They may go unpunished or they may bring in their wake a flood of retaliatory measures. The administration of international justice goes only so far as individual sovereign states permit it to go. The German government authorized a wholesale violation of international law but all attempts of the Allies to secure punishment for the perpetrators have failed. The Germans claimed, with some show of reason, that their submarine campaign was a retaliatory measure and there has been an uneasy suspicion everywhere that the subject of punishment for war guilt is a Pandora’s box which had best remain closed. The law, though violated, remained essentially the same in principle. A treaty has been made and ratified by the civilized world, including the Soviet Union, which appears to outlaw war. Although international law relies for much of itself on treaties, it still retains its critical capacity and will probably reject the peace pact as not carrying the sanctions of law, and therefore now law per se, while recognizing it as a declaraction deterrent to illegal action.
International law in its critical capacity cannot accept art. XXII of the London treaty as, in accordance with its established principles, art. XXII authorizes submarines to sink merchant ships. How amused the Germans must be! Article XXII, by its tortuous wording, appears to restrict the submarine to the most humanitarian methods. Actually it permits a procedure that has ever been held illegal for any class of ship. The law has always been most explicit that merchant ships cannot be destroyed unless good prize and until visit and search demonstrate that the ship is good prize. Flight has never been considered a legal reason for summary destruction. No criminality attaches to the commander of a ship which flees from an enemy. He has a perfect right to flee under pain of being brought to by “forcible measures.” An enemy or belligerent warship has a perfect right to bring him to for the purpose of visit and search. But if a ship that flees can be summarily sunk, how can visit and search be made? There is thus the maximum penalty provided for what is in no sense a criminal act.
Let us examine the wording of art. XXII carefully. Paragraph 1 states that submarines “must conform to the rules of international law to which surface vessels are subject.” The matter could have been left at that.
Paragraph 2 states:
In particular, except in case of persistent refusal to stop on being duly summoned ... a warship, whether surface vessel or submarine boat, may not sink or render incapable of navigation a merchant vessel without first having placed her passengers, crew, and ship’s papers in a place of safety.
The wording is in the negative but carries by inference a positive meaning.
Change the wording:
A merchant ship may be sunk without first placing the passengers, crew, and ship’s papers in a place of safety if she persists in refusing to stop on being duly summoned.
Sinking, under the circumstances, is authorized in direct violation of international law to which par. 1 states submarines must conform. International law does not authorize summary sinking under any circumstances other than that in which the commander of a merchant ship makes himself criminally liable by forcibly resisting visit and search or attempting to ram or disable a warship. Many ships were sunk by German submarines in the war. Many, in fact most of them, fled from submarines with good reason. It was perfectly justifiable, under the London treaty, for these ships to have been sunk. It is positively inhuman for such a penalty to be imposed for an attempt to escape from an impossible situation such as a merchant ship finds itself in when confronted by a hostile submarine. As the submarine, unaided, cannot possibly place the passengers and crew in a place of safety if it destroys the ship and, as it presumably cannot place a prize crew on board, even a summons by the submarine is a futile gesture from which no results other than information can come.
As a surface ship, the submarine can use her guns to bring a merchant ship to. It is perfectly legal for the submarine to do this. The legality of a return fire from the ship is also unquestioned if such fire is designed solely to facilitate escape from illegal restraint, but, to the writer at least, it appears that any return fire would justify extreme measures on the part of the submarine. However, merchant ships are permitted by international law to carry armament for defense and they are not considered as warships if armed only for defense. Presumably they may use their armament to defend themselves. But they may not legally use armament to interfere with a perfectly legal procedure on the part of a warship—that of being brought to by forcible means. They would certainly be justified in using their guns if attacked without warning or without being “duly summoned.” Guns are placed on merchant ships only in the expectation that international law will not be respected by an enemy. This expectation applies to submarines. Therefore it may be argued that an armed merchantman may engage a hostile submarine on sight.
Assume that the ship on being duly summoned, prefers to rely on speed to avoid visit and search and on speed alone. According to international law she has a perfect right to do this without any criminal intention against the summoning ship. She makes herself liable to being brought to by forcible means and to capture but does not make herself liable to summary destruction. Just why the inherent inability of the submarine to fulfill all the obligations of a surface ship which undertakes to make a capture, should operate to give the submarine a privilege denied the surface ship, that of sinking an unvisited and unsearched merchant ship, is inexplicable. Of course the London treaty magnanimously permits surface ships to do the same thing, a vicious and designed attempt, left-handedly, to justify the unusual action permitted the submarine.
If this be law, then part of the work of centuries to eliminate all the savagery possible from warfare is undone. If a warship which cannot make a legal capture (as submarines can do only under exceptional circumstances), can summarily sink a merchant ship for no other crime than seeking to escape, then international law at sea mocks at neutrality and elects Davy Jones to its supreme court.
If the treaty stands and is fully taken advantage of, the only recourse which bona fide merchant ships have left in war, is to travel in heavily guarded convoys. But, if trade is to be kept moving and necessary supplies transported overseas, escorts for these convoys will absorb the greater part of the treaty-limited navies, which will then be totally inadequate to their job as navies.
The treaty thus forces an issue. Either navies must be of a size proportionate to the merchant marines they must protect, which would make agreement on limitation of armaments impossible, or merchant ships must shift for themselves and have the same rights to fight or run away as have warships—and be subject to the same risks. The government would have to insure them and operate them. They would become, to all intents and purposes, armed public ships. The London treaty in limiting navies and permitting commerce destruction to submarines, and by inference to aircraft, compels us to consider carefully the actual status of the merchant marine. We have long claimed it to be part of sea power. We are now told definitely that it is belligerent, for warships may now treat a merchant ship in much the same merciless way that a warship may treat another warship.
England warned us that there would be no neutrals in the next war. The London treaty recognizes no difference between neutral and enemy merchant ships. The immunity of all merchant ships from summary destruction is gone. Before 1930 merchant ships could be brought to by forcible means if necessary, could be captured, and even destroyed under certain clearly defined conditions provided always that personnel were saved. Now they may be sunk without regard to what happens to personnel. Because the submarine cannot be bothered to preserve his inconvenient life, the merchant sailor is transformed into a first-line trench soldier and his life is forfeit to the first enemy attack. The sailor on a merchant ship under a belligerent flag is now a bona fide enemy and the neutral sailor on a ship trading with an enemy only a degree less so.
The implications contained in this belligerent right to sink merchant shipping fleeing from submarine war on commerce are tremendous. We see behind it the terrible conception that armies only no longer do the fighting but that the whole nation is mobilized and belligerent. All citizens of one nation are actual enemies of all those of another nation. Soldier against soldier, woman against woman, baby against baby, and each against every other under the enemy flag. Munition factories full of girl workers may be bombed by aircraft; food ships may be sunk. It is nationalism run rampant. There was never any conscription for the army equal to this economic conscription for prospective war. For it is in prospect, in fact planned for by most nations including the United States. The London treaty is simply a recognition of the fact that limited navies will be unable to gain a decision. The work of fighting a war to finality has been transferred to populations as a whole; objectives are no longer the enemy army or fleet. It is now the economic structure of the nation. The purpose of war is to destroy this structure by fair means or foul, with the result that anything which helps a nation as a whole to continue at war may be ruthlessly destroyed. Since all men, women, and children are now combatants, any incidental loss of life does not matter. No wonder we have a treaty which attempts to outlaw war as an instrument of national policy. Yet who can tell when policy may not find war in self-defense necessary? Self-preservation lies at the root of all national policy. War is war whether in self-defense or not.
The sort of war of which art. XXII of the London treaty gives a hint is the sort that international law has been seeking to avoid for hundreds of years. No sacrifice of life, combatant or noncombatant, is now considered useless.
If a ship loaded with manganese or corn can be sunk upon the high seas and its personnel drowned because that cargo may, after due processing, add to the munitions supply or food supply of munition workers and therefore add to the fighting resistance of the nation, then the road is open, through the same specious argument, to every imaginable excess. If every stream of legal argument be traced its tenuous way to its source and that source attacked, we end in general terrorism. Schrecklichkeit is not the half of it. If Spurlos Versenkt is permissible against noncombatants de facto at sea what fate is in store for such noncombatants ashore through the agencies of aircraft and gas? A town is no longer immune to bombardment because it has no military defense. A shoe factory is enough to condemn it.
Even though human ingenuity and callous human nature can combine to perpetrate such savagery, is it necessary therefore to legalize such actions? Is civilization so helpless? If art. XXII is the law, then law itself has been defeated. We may suffer from a lawless underworld but we do not legalize it. It would be far better for international law to go down with its colors flying than to make so ignominious a surrender as this.
What can we do about it? Very little right now. Article XXII was drafted after British and American proposals to abolish the submarine were defeated. It must have been drafted with a purpose and its implications seem camouflaged by specious wording. By ratification it has become law for the three greatest powers. Is it a threat, a club over the heads of lesser powers? Is it an invitation to them to join in limitation? If the former, its only effect will probably be to inspire further building of submarines. If the latter, it is justly regarded as the spider seeking to entice the fly. Why shouldn’t Japan, or any nation under the circumstances, demand parity in submarines? It may be noticed that they do, and if the precedent in Japan’s case be followed, they will get parity so that all may share in the merry game of starving each other out.
There is no legal excuse for par. 2. Paragraph 1 adequately covers the situation. Paragraph 2 contains the seed of dissolution of law and, by implication, condones a sort of war from which the imagination recoils in horror.
When 1936 rolls around, it would be well to eliminate this vicious paragraph in the new treaty or, if it prove a stumbling block, to reject any treaty containing it and prepare for the worst.
(Article XXII)
Par. 1.—In their action with regard to merchant ships, submarines must conform to the rules of international law to which surface vessels are subject.
Par. 2.—In particular, except in case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine boat, may not sink or render incapable of navigation a merchant vessel without having first placed her passengers, crew, and ship’s papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land or the presence of another vessel which is in a position to take them on board.
The High Contracting Parties invite all other powers to express their assent to the above rules.
Stripped of circumlocution this is what art. XXII says:
Par. 1. Submarines have the following rights in war with respect to merchantmen both belligerent and neutral, viz.: The right to summon, to visit and search, to capture, to divert for examination in port, and to destroy, provided that first passengers, crew, papers, and mail are first placed in safety. A submarine operating singly has not the right to destroy a merchant ship because it cannot offer refuge.
Par. 2. If a merchant ship elects to escape from the presence of a submarine operating singly after being duly summoned to stop and submit to visit and search, no matter whether the merchant ship be a small, slow cargo boat, or a 50,000-ton, 29-knot liner, the submarine may torpedo and sink such ship in unresisting flight regardless of the fate of those on board.