Repository: UIHistories Project: War Publications - WWI Compilation 1923 - Article 14 [PAGE 12]

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or international law,' and 'his principle is affirmed in the war manuals ofi \fniost countries. All the great authorities on international law ourS(le Gcrmtnj, however, are in substantial agreement that the excuse Uf necessity is no justification foroverridingthelawunless conformity to its prescriptions would actually imperil the existence of the violatin? belligerent. The late Professor Westlake, than whom no greater or more highly respected authority ever lived, affirmed the generally admitted principle when he said that the doctrine of necessity was applicable only in cases of self-preservation and when the threatened injury or danger would not admit ot the delay which the normal 2 course of action would involve. In short, there must be an actual case of necessity; mere considerations of convenience, utility, or stra3 tegical interest are not sufficient to justify a violation of the law. if Land Warfi

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When we turn to the German manual, however, we find enunciated a very different theory of military necessity. This manual, following a doctrine long maintained by German writers, draws a distinction between what they call Kriegsraison and Kriegsmanier. The former, which may be translated as the "reason of war," permits a belligerent to adopt any measures and employ any means which will contribute to the attainment of the object of the war, even though they are forbidden by the customs or usages of war {Kriegsmanier) .* This distinction between Kriegsraison and Kriegsmanier has generally been interpreted by writers outside Germany to mean that the laws and customs of war cease to be binding on a belligerent whenever their observance would hinder or defeat the attainment of the object, of the war. Kriegsraison geht vor Kriegsmanier is an old and well6 known German maxim; that is to say, the duty to achieve military success takes precedence over the obligation to observe the law. Manifestly such a theory when carried out to its logical conclusion leads to the absolute supremacy of strategical interest as expressed in the ancient maxim, omnia licere quae necessaria adfinem belli. It is condemned by both the spirit and the letter of the Hague Conven7 tion; it finds no recognition in the manuals of the United States,

r?;.* *>7 implication in the Preamble to the Convention Reapecting the Lawi and ^uttomi of War on Land.. 'International Law," Vol. II, p. 114. ^mpare Rivier. Principes du Droit des Gens, Vol. I, p. 278; Hall, "International Uw," 6th ed.. p . D Internttloni1 licLaW ^ liJ* l*w," Vol. II, p. 177; and Herthey, "Essentials of International Pub11L lhU x% c ni2e /* r°8 <J

"Oppenheim 7 Art. 22.

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