The refusal of Great Britain to participate in any further proceedings on
this subject is naturally very annoying to the Emperor, and it is fully
believed here that it has been productive of considerable coldness between
Russia and England. This feeling I cannot help considering is greatly
exaggerated, as officially there has been nothing to show that any such
coldness exists.
The “Moscow Gazette” endeavors to place the refusal of England on other
grounds, as, for instance, discontent with the position of affairs in
Central Asia, and pique on finding the Montenegrin dispute and the question
of the rights of the principalities to make commercial treaties
independently of the consent of the Porte decided without her
participation.
The “Russain World,” while praising the tone adopted by England, finds fault
with the violent article in the “Nord,” and calls upon the “Journal de St. Petersbourg” as the official organ of
the foreign office to disavow it. The journal, however, has not mentioned
the subject since the receipt of the English dispatch.
There seems still to be a lingering hope that perhaps in the end England may
consent to join the conference, and it is confidently expected that the
small powers will not follow the lead of England. I have noticed, however,
that some of the official defenders of the scheme are those who, have least
confidence in its success, and my information leads me to believe that the
assent of the minor powers, and indeed of some of the great ones, with the
exception of Germany, is by no means gained, in fact it is now said that
owing to the refusal of England, the Spanish government, which had assented
to only those parts of the project that had been unanimously agreed upon,
will reconsider its decision.
Observations by Prince Gortschakoff, on the dispatch
of Lord Derby to Lord Augustus Loftus dated from the foreign office
the 20th of January, 1875.
First. The project of the Russian government on the laws and customs of
war is by no means directed to the introduction of new principles of
international law.
There does not exist, properly speaking, any positive international law.
There is a law of nations (droit desgens) more or less tacitly admitted, and of which
some parts have acquired the force of law by formal treaties.
In the last century the laws of maritime neutrality did not exist legally
until they were proclaimed and made the object of treaties, with other
governments by the Empress Catharine II. England disputed them for a
long time as derogatory to the existing laws and customs. To-day they
are generaly admitted, but they have not the, force of obligatory law
except by treaties which sanction them and for the governments who sign
such treaties.
The law of nations has not been formed in any other way. Jurists have
laid down on their own authority maxims based on experience, morality
and public interest. They have gradually passed into habit and practice.
Some of them, specified, defined, and rendered obligatory by treaties,
have become positive laws.
The project of the Russian government has had no other aim than that of
operating thus with regard to the existing laws and customs of war; that
is to say, to inquire by common consent into that which could be
specified, defined, completed, and receive an obligatory sanction by an
exchange of declarations between the cabinets.
Second. The most part of the objections made by the English dispatch to
the Brussels project bears in the same degree on the entire law of
nations.
It is no doubt difficult to formulate clear and precise rules which
should define the character and scope of acts of war similar to that of
occupation, and to trace the duties and rights of the occupier and the
occupied. These difficulties are inherent in the-very nature of things.
The law of nations offers no remedy for them, and the English dispatch
settles them none the more, in declaring the absolute incompatibility of
the interests of the invader with those of the invaded. This dogma would
be the absolute proclamation of the rights of strength without bounds.
The law of nations admits the necessities of war, reason demonstrates
them, and experience confirms them. Strength will always be able to take
advantage of them.
By leaving things in this indefinite state, the relations between the
occupier and the occupied, between the military power and private
persons, would not be better for it; it would not give rise to less acts
of violence and of reprisal, to less complaints, recriminations,
reciprocal appeals to international law”, and contradictory
interpretations of its vague principles.
However, those are very grievous aggravations of the rigors of war. The
more difficult
[Page 1049]
this is to
remedy, the more incumbent is this necessity on governments and peoples
in proportion as the progress of civilization increases the means of war
and multiplies its calamities.
If the competent delegates of all the governments, deliberating in a
spirit of reciprocal benevolence, have not arrived at an agreement as to
the practical manner in which these questions ought to be considered,
how much more difficult will be the respective position of armies and
populations in the midst of the passions of the struggle, in the face of
an uncertainty which opens the door to every excess and suffering.
It is precisely because the law of nations is wanting in exactitude and
clearness, that the Brussels project attempts to make up, as far as
possible, for these uncertainties, these gaps and contradictions.
It is because it is in need of sanction, that the conference has desired
to give to it the only sanction possible in practice—that resulting from
reciprocal declarations exchanged between the governments, and made the
basis of the instruction of their armies.
However imperfect may still be the proposed rules, the governments who
have discussed them and will have accepted them, will have so acted in a
spirit of humanity. There is therefore reason to think that they would
interpret them in the same spirit. The advance of civilization and the
bond of interest cannot but augment this feeling of inter-dependency,
(solidarite,) which would tend to bring about some mitigation of the
sufferings arising from the scourge of war.
The Russian government has thought, and still thinks, that in proportion
as this result is reached, a real service will have been rendered to
humanity.
Third. The English dispatch supports exclusively the points of view
enunciated for the benefit of weak states.
However, war may not always take place between a great and a small state.
It may be made between powers presumably of equal strength. These are
also the most terrible, and it is impossible not to take this
contingency into consideration.
Among the states open to the carrying on of war, there are some who, by
their position, have only to look out for aggressive wars, and others
have in view only defensive ones. The first would like to place no limit
to the use of strength; the second would wish to recognize in it no
right.
But there are others who are liable to run the same risks, according to
the fortune of battles. These are the best judges of the question, and a
certain solidarity has been manifested among them. They know, in fact,
that the conqueror of to-day may become the conquered of to-morrow. They
are therefore interested in considering with impartiality the rights and
duties of the weaker as well as those of the stronger; and if the
principles which they believe to be able to admit have for their object
to render war less cruel by regulating its operations, it seems beyond
doubt that the weaker states will profit by it in an equal degree.
The theory according to which, while admitting that the stronger may, in
certain cases, be obliged to use rigor, and that the weaker may be
obliged to submit thereto, it would still be preferred to yield to
strength rather than to acknowledge it, would finally end in
establishing the absolute rights of strength, which would be the only
measure of rigor to be used, and of obligatory submission. One cannot
but be struck at seeing this assertion made by those who give themselves
out as defenders of the weak.
It is evident that in order to sketch out the limits which strength ought
not to pass, it is necessary to specify those within which it is
permitted to operate.
In claiming for itself unrestricted rights, the weakest state would
authorize the strongest to accept no other limits to its rights than
those necessitated by its own convenience or its own security. This
would be to return to savage warfare, and it is-not perceived that the
weak states in particular would gain anything by it.
Fourth. The Russian project has by no means in view the development of
the military power of the great states and the procurement of advantages
for those who possess great armies and compulsory military service.
These powers exist. The advantages which they derive from their military
organization also exist. It is not the conference which has created
them.
This state of things may be regretted; but from the moment of its
existence the only means which have appeared able to remedy it are: 1st,
to prevent conflicts between these great military masses; and, 2d, when
the conflicts break out, to restrain the effects of their destructive
power.
The first of these means depends upon the political action of
governments, upon their wisdom and moderation, supported on the
solidarity of general interests, which, in our time, are attached to the
maintenance of peace.
The second has been the object of the Brussels meeting.
The question put forward by the Russian government has been to know if,
instead of leaving these great military forces without rule or restraint
to the passions of struggles which would assume a character of
extermination, it would not be in the general interest to agree, by
mutual consent, on certain rules derived from existing
[Page 1050]
laws and customs, and designed to
diminish, as far as possible, the extent and consequences of such
struggles; to prevent the stronger as well as the weaker from carrying
to an extreme the exercise of the rights of war; to restrain the
violence which leads to reprisals, and to reconcile the necessities of
war with the interests of humanity. However difficult may be this
problem, the Russian government has thought, and still thinks, that it
belongs to the duty and interest of all states to seek in common its
solution.
Fifth. It is to be remarked that the project of the Brussels conference
is sometimes reproached for developing “militarism” and sometimes for paralyzing national defense.
It is, however, evident that a state which developes its military
organization creates elements for defense as well as for attack.
Most of the European states have for a long time occupied themselves with
the means of preparing defensive forces by the side of their active
armies. Some have already provided for this by legislative measures,
which have brought their national defense to the highest degree of
effective power. The Brussels conference has, therefore, gone no further
than to prove and regulate a fact which is in the pressure of
circumstances and the necessities of the period. Far from restraining
national defense, it tends, on the contrary, to strengthen it; on the
one hand, in rendering it more effectual; on the other, in removing it
from the consequences of the abuse of strength, and in assuring for it a
regular treatment on the part of the enemy. The proposed conditions of
this end have been reduced to their simplest expression.
Their application is easy and not very burdensome. Their aim is
especially to distinguish the citizen who defends his country from the
marauder, the robber, and the assassin to assure to the first the
respect to which he has a right, and to spare him the severity which the
laws and customs of war justify with respect to the second.
These conditions by no means involve compulsory military service.
National defense can perfectly well remain optional, while at the same
time it receives some organization. It has even been freed from this
condition of organization in the case of a spontaneous rising “en masse” on the approach of an enemy.
The liberty of rising against its risks and perils always re mains
reserved to an energetic population, and these risks and perils are no
others than those admitted by the present laws and customs. What the
Brussels project adds thereto is the obligation of the invader of
treating regularly the national defense when it is furnished with a
sufficient organization to guarantee that it will conform to the laws
and customs of war.
Sixth. As to the mode adopted in the labors of the conference, the
Russian delegates proposed to draw up only the points of agreement, in
order to facilitate an understanding. When the differences of opinion
were expressed on the more essential questions, they proposed to set out
all the opinions in the protocols, in order that where there was no
agreement there should be the knowledge which ought to precede every
serious understanding.
They were the first to point to the in convenience of compromises as to
pure form in grave questions where only real compromises were those
which would relate to the subject-matter.
However, as there were no other means of recording the result of the
contradictory debates, it was agreed that, while resolving upon the
compromises in the project, the separate opinions contained in the
protocols would serve as commentaries to it.
This is the mode employed in all legislation, where, by the side of the
code which lays down general rules, there is the interpretation of laws
applied to particular cases.
Even though the conference should have no other conclusion for the
moment, its labors will remain as a solemn investigation which states
how war, its necessities and consequences, are actually considered by
all civilized states. Its protocols will be consulted in case of war as
testimony of great moral worth.
It is permitted to have the assurance that this work will not be
unfruitful, and that, developed and sanctioned by experience, it will
contribute to determine the laws of war in a sense profitable to
civilization and to humanity. This is why it is to be regretted that the
voice of England should not be heard in the conference.
Seventh. The special articles of the project which have terminated in an
agreement by means of compromise, far from being confined to the
sanction of practices generally admitted, gave rise to divergent
opinions and to laborious discussions.
The very fact that the agreement could only be arrived at by means of
compromise is sufficient proof of it. Nothing, on the contrary,
demonstrates better how obscure is the law of nations, even in questions
apparently the most simple and the least open to dispute.
Eighth. As to the chapter on reprisals, it was not the only one which was
able to give rise to burning discussions. There is hardly a single
question discussed which was not able to provoke irritating applications
to the last wars. The Russian government had confidence in the knowledge
and feelings of the governments to whom they had appealed, and this
confidence has been perfectly justified by their delegates.
[Page 1051]
Much more is it to be
presumed that the same would be the case in the event of a second
meeting.
This chapter was not suppressed by this motive, but in consequence of the
feeling which prompted in general several delegates to prefer the
toleration of an unlimited evil rather than to restrict and lessen it by
declaring it in detail for the purpose of regulation.
Reprisals will therefore remain in effect as one of the hardest
necessities of war.
The law of nations recognizes them and experience confirms them. But they
will he made without rules or limits. It remains to be shown what the
conquerors as well as the conquered of the future will gain in this
respect.
The English dispatch declares that, in suppressing this chapter, the
conference has eluded one of the principal difficulties, that of
defining how the observance of established rules is to be enforced.
It acknowledges that the only means is to make use of reprisals in case
of violation.
That argument applies, for the same reasons, to the whole law of nations
in its present state.
It is the best proof of its imperfection; and it is remarkable that,
while, on the one hand, recognition is refused in the name of the law of
nations to the principle of reprisals, on the other this principle is
admitted as the only sanction of the rules of war.
This state of things is what the Brussels project has directly in view to
remedy, in giving to the laws and customs of war the moral sanction
resulting from reciprocal engagements.
If, in conformity with this project, the principles of the law of nations
elucidated and completed, as far as possible, were placed under the
guarantee of public declarations exchanged between the governments and
brought in a binding way to the knowledge of their armies, it is
permitted to believe that they would have restricted the number of cases
where they are obliged to ask for single reprisals, the sanction which
they have wanted until now.
Ninth. If, nevertheless, the English government declares in conclusion
that they will hold by the principles of international law on which they
have up till now regulated their acts, and that they will impose the
same obligation on their allies, it would be desirable that they should
complete the thought by declaring what are those principles. How do they
and their allies interpret the doubtful points and fill up the gaps of
international law principally with regard to the questions which have
formed the object of the discussions at Brussels? How do they
understand, according to international law, the reciprocal rights and
duties of the invader and invaded; of the occupier and the occupied; of
aggression and national defense, and the relations of the enemy’s
military power to private persons and property? What are, in short, the
past acts of war by which one might judge how they intend to practice in
the future?
The uncertainty which the law of nations fails to remove on all these
capital questions, and which the English government refuses to help to
explain, even by a simple common deliberation, has not prevented, and
will probably not diminish, aggressive wars. It seems doubtful that it
protects more efficaciously than the past the patriotic defense of
invaded peoples against the rigors or the abuse of strength.
