Of solemn pacts and paper scraps: International law and the purpose of war,1914–1918

Reasserting the role of international law in the First World War

Isabel V. Hull has recently made a strong interjection into the historiography of the First World War by reasserting the central role of international law in shaping the conflict. Based on extensive analysis of French, British, and German documents, Hull argues that the war represented a “legal divide” where Germany stood against the established principles and conventions of international law and the European state system that had developed since 1815. She writes, “It was not ‘total war’ that destroyed law, but rather the destruction of law (which meant the destruction of the European order) that produced total, or near total, war.” ² But if international law was the original crux of the conflict, then academic and popular narratives have “robbed the war of meaning,” focusing instead on its “tragic senselessness … and pointless mass death.” ³ Indeed, against the carnage of the war the legal arguments of those years can seem like meagre whispers in a chaotic maelstrom.

Taking up Hull’s call to reassert the pivotal role of international law in the First World War, this article examines how the legal profession in Canada described the war and the extent to which their views were guided by the exigencies of international law. It argues that legal scholars in Canada focused on the topic of international law in order to entrench the divide between the Allies and Germany and to position the British imperial cause as one that, above all else, fought for the maintenance of legal order. Moreover, the First World War provided an awakening in Canada to the complexities of international law, and ignited what would become an enduring involvement in internationalism in the twentieth century. Although, as part of the British Empire, Canada did not have full jurisdiction over its foreign affairs, the war served to steer Canadian legal attention more directly toward the development and enforcement of international law.

The prominence that international law gained during the First World War is one of the most important legacies of the conflict. The purported sacredness of international law and the willingness to wage war to defend it bolstered the spirit of internationalism that grew out of the war, especially evident in the creation of the League of Nations in 1920. As a number of scholars have illustrated, the war in many ways broadened internationalist commitments. ⁴ For British dominions like Canada, the attention to international law helped to reorient legal thinking from an imperial to an international perspective—or what Daniel Gorman calls imperial internationalism—as matters such as international arbitration and conventions of conduct in war became more central preoccupations. ⁵ Canadian historians have traditionally framed the role of international law in the war around the development of Canadian autonomy, or the familiar narrative of Canada’s gradual assumption of sovereignty in the first half of the twentieth century. ⁶ Canada’s growing claims to autonomy in the years following the war, most evident in the Balfour Declaration and the Statute of Westminster, must be understood in the context of an emboldened internationalism that held significant legal purchase during the war.

As the words of the writers examined here indicate, however, the idea of the “international” in this period was closely tethered to Europe and North America, and was deeply embedded in prevailing beliefs about race and religion. These lawyers’ expressions of legal internationalism were wrapped in a world view that deemed law a white man’s domain, and safeguarded the stability of a world order that justified colonialism and protected the sovereignty of some while ensuring the subjugation of others. ⁷ In this sense, then, “international” was circumscribed by prevailing notions of race and “civilization.”

An analysis of Canada Law Journal and Canadian Law Times, Canada’s largest legal periodicals at the time, shows clearly that the characterization of the German enemy, including the popular tropes of German barbarism and profligate kultur, were derived from an assumed legal divide. The purpose of war for the writers examined here was very directly and unambiguously to protect legal order in the world. Of course, these lawyers were hardly impartial observers, and in many cases were actively involved in promoting the war effort in Canada. Their sustained use of the language of international law to promote the war and marshal legal attitudes around the justness of the Allied cause reflected their alignment with the prevailing political and public sentiments. This article first examines how the war marked a turn in legal attention toward international law, which was part of an effort to describe German “barbarity.” It then looks at claims of specific war crimes purportedly committed by Germany, their legal repercussions, and the future enforcement of international law. It concludes by considering how the historical assessments of international law have renewed relevance for policymakers and international relations scholars today.

The international legal divide

When assessing Canada’s mobilization for war in 1914, historians often point to the energized imperialism in English Canada that rallied behind calls to defend the British Empire. Canada’s involvement in the war, from this perspective, was primarily a demonstration of its commitment to Britain and British imperial identity. ⁸ Canadian enthusiasm for rallying behind Britain was, at least initially, a forceful factor in mobilizing for war, but so too was the commitment to liberal international law and the perception that the fight was against Germany’s belligerence toward the international rule of law. British Attorney General F.E. Smith went as far as declaring in a speech to the Law Society of Upper Canada that the conflict was a “lawyers’ war” that would determine “whether or not international and public law were to survive in the world.” ⁹ Similarly, the Canadian Law Times declared that in the outcome of the war, “the future not only of personal liberty, but of International law is at stake.” ¹⁰ The high risks of the war seemed to be especially palpable for lawyers and their profession.

The perceived importance of fighting to protect the customs and conventions of international law was not just a discussion among lawyers but was also part of building a public image of Germany as a legitimate enemy. In an examination of the language of lawful war in British war propaganda, Nicoletta F. Gullace argues that “the gendered representation of German atrocities provided British propagandists with a varied and evocative set of images that could be used to explain the arcane language of international law to a democratic public increasingly empowered to support or reject its enforcement.” ¹¹ It is important then not to view legal discussions of international law as matters of legalese or high politics. Legal assessments of German illegality helped contribute to a popular Allied propaganda campaign that deemed the enemy barbaric and profoundly detached from moral and Christian moorings. ¹²

The war propaganda campaign conveyed the legal dimensions of war, particularly German violations of established international customs, in popular vernacular that was centred on German “atrocities.” Canadian war posters used images of German illegality to encourage recruitment and support of the war effort. One poster used by the Navy League of Canada, for example, displayed various national flags, declaring that countries around the world had “shown their indignant horror at Germany’s repeated violations of the laws of humanity.” ¹³ According to John Herd Thompson, images and stories of German atrocities filled newspaper headlines and were filtered down through educational curricula in Canadian provinces. ¹⁴ In her detailed study of wartime Berlin, Ontario (later renamed Kitchener), Patricia McKegney notes that illegal German actions, particularly the violation of Belgian neutrality, the use of poison gas, the sinking of the Lusitania, and the popular but apocryphal story of the crucifixion of a Canadian soldier by German troops, served to inflame public agitation against Germany and Canadians of German origin. ¹⁵ Germany’s violations of international law, especially its initial invasion of neutral Belgium, even damaged its own propaganda efforts during the war. ¹⁶

International law figured more prominently in explanations of the war and its conduct largely because it had become a more formalized area of legal inquiry by 1914, despite its much longer history in European thought. The 1625 publication of De jure belli ac pacis by Dutch jurist Hugo Grotius marked a lasting influence on the intellectual development of international law and the rules of warfare in Europe. European legal scholars in the seventeenth and eighteenth centuries grappled with questions of governing the conduct of warfare and penalizing violations. ¹⁷ It was not until later in the nineteenth century, however, that the study of international law was transformed in Europe from a field of philosophical inquiry to a separate and more formal discipline. ¹⁸ At the same time, principles of international law became more coherently and consistently pronounced in the form of international conventions. The Geneva Convention of 1864, which established guidelines for caring for the wounded in war, was an important step toward formalizing certain rules of warfare, albeit in a limited way. ¹⁹ The Hague Conventions of 1899 and 1907 marked important advances in the development of international law, as they outlined principles of laws and customs of war and established a Permanent Court of Arbitration to settle international disputes. The magnitude of the First World War makes it easy to forget that, before 1914, Europe had experienced a relatively long peace, with rising hopes of a new epoch of international relations. ²⁰ The years following the turn of the twentieth century were characterized by intense optimism about the evolution of global politics and the possibility of internationalist cooperation that would entrench lasting peace.

The subject of international law gained more prominence in the Canadian legal community in the war years than it ever held before. Although international law had played a central role in various legal questions in Canada, especially matters like boundary disputes, fishing rights, and extradition, it was rarely a cohesive subject of great interest for Canadian lawyers before the war. This was largely because, as Bradley Miller has illustrated, Britain exercised considerable clout over such matters in Canada after Confederation. ²¹ Most legal professionals in Canada viewed international law with a yawning detachment and Canadian legal periodicals rarely printed extensive articles on the subject. Speaking to the Ontario Bar Association in 1911 on the subject of the Hague tribunals, prominent lawyer and former minister of justice Allen Aylesworth admitted as much, stating, “It is a subject to which none of us, I suppose, have given any very special attention. In our relations to the Empire of which we form a part it has not to any very great extent up to the present stage of our history been necessary that the lawyers of Canada should practically concern themselves with the problems of International law.” ²² In Canadian university law programs, international law was offered intermittently before 1914, usually depending on the interest of professors. ²³ At Osgoode Hall, for example, it was not offered as a regular subject until the mid-twentieth century.

By 1914, however, international law became more central to Canadian legal writers in order to explain events in Europe. For the Canada Law Journal, the divergence between German and Anglo-American law was already apparent in the summer of 1914, as the clouds of conflict gathered across Europe. In Germany, it argued, law “takes a paternal form, whilst among our Anglo-Saxon people it rests upon a broader and safer basis.” ²⁴ While decoupling “Anglo-Saxon” from its German origins without apparent difficulty, it claimed that the legal development of these peoples was fundamentally different. ²⁵ The shape of the legal divide became more apparent over the course of the war, and successive editorials and articles sought to make clear how Germany had eroded the foundations of justice, especially in terms of its wartime policies. They described how, after Germany’s abandonment of all of the conventions of justice and order, German war conduct was governed by a “might is right” mentality. It was a perspective that held military necessity as a principal consideration, and as Hull illustrates, it was the approach that informed German military thought and practice. ²⁶

Germany’s violation of Belgian neutrality in August 1914 gave the strong impression from the outset that the Allied role in the war was to defend the honour of international law. Since the development of Westphalian sovereignty in the seventeenth century, a foundation of European international law was the principle that treaties, like private contracts between individuals, were binding and that their violation was therefore illegal. The Canada Law Journal insisted that protesting the violations of treaties necessitated war because “they cannot be violated without the penalties which necessarily and properly ensue when such treaties or contracts are broken.” ²⁷ The lead article of its November 1914 issue outlined in detail Belgian neutrality and its protection by international law and legal conventions dating back to 1814. ²⁸ The fear was that by abandoning the primacy of state sovereignty and its protection in treaties, Germany was establishing a dangerous new model of internationalism.

Montreal-based lawyer Eugene Lafleur never doubted that the Treaty of London that protected Belgian neutrality was a solemn pact and that the war was not just a struggle over the honour of the treaty itself, but also for the maintenance of international legal order. Lafleur, who taught law at McGill University, was a reputable expert in the field of international law. ²⁹ Writing in 1915, he described the war as a conflict that tested all established notions of law, and added, “we cannot help asking ourselves anxiously whether International Law will survive the ordeal or whether it is destined to be relegated to the category of discarded and discredited sciences.” ³⁰ His anxiety reflected the concern in the Canadian legal community about the security of international law in the war and the belief that the war was, above all else, a legal struggle between two understandings of law.

Descriptions of German approaches to international law framed them as inherently violent and rapacious. The Canada Law Journal scornfully reprinted in its pages excerpts of an article from the German magazine Nachrichten that boasted, “We owe no explanation to any one. Whatever act committed by our troops for the purpose of discouraging, defeating and destroying the enemy is a brave act and fully justified.” ³¹ It was easy to point to the writings of German military general Friedrich von Bernhardi to illustrate the picture of a belligerent foe fuelled by a muscular militarism and thirst for expansion. It was proof, a writer insisted, that the “Hun is at the gate,” sneering “the old doctrine of force.” ³² Against such a doctrine, the rule of law could be no significant obstacle.

The purpose of these writings was not just to illustrate matters of law for readers, but also to contribute to a wider public narrative about the purpose of the war effort. Law was a prerequisite of “civilization” and the disregard for law was a reflection of “barbarism,” providing a stark chasm between the civilized Allies and the barbaric Germans. The often-repeated word “barbarism” evoked images not only of lawlessness but also of a deeply irreligious society. Its root cause, according to the Canada Law Journal, was the sweeping secularism of Germany in the twentieth century. German actions, it argued, especially its ability to “regard a solemn treaty as of no more value than a ‘scrap of paper’” was “due to the general acceptance … of the doctrines of which the Secular Society is the exponent.” ³³ The journal’s editor, Henry O’Brien, was an advocate of temperance and solidly Conservative in his politics, but his perspective reflected the anxieties of Canada after the turn of the century, as it grappled with the quandaries of secularism. ³⁴ However technical analyses of law in the war may have been, it was clear that religion and the perception of a Christian basis to law underscored the justness of the Allied side and the reckless barbarity of the Germans.

Characterizations of German barbarity at the outset of the war helped paint a particularly vivid portrait of a depraved enemy, but Germany’s specific violations of international legal conventions bolstered the sense that it was intensely criminal in its actions. To this extent, the Hague conventions figured prominently in criticisms of German war conduct. Before 1914, however, the Hague conventions were rarely the subject of extensive legal examination. As Gullace notes, “what is remarkable about the Hague Convention is the way it was rehabilitated during World War I as British publicists and international lawyers succeeded in investing the rules of war with a public meaning that they lacked at the time of the conference.” ³⁵ This certainly held true for Canadian legal scholars. The South African War at the turn of the century, for example, elicited little concern or attention to the Hague conventions.

Germany’s apparent violations of the Hague conventions, however, elevated the status of those principles to a near sacred level of authority. According to Lafleur, “it would be impossible to find a more solemn compact.” ³⁶ Editorials in the Canadian Law Times in 1914 made clear that the solemnity of that compact had been manifestly violated by German aggression in an unprecedented way. “The world,” it wrote, “has looked aghast at the utter disregard by Germany of not only the rules of warfare as laid down by the Hague conference but also the absolute disregard of all rules of international law as practiced by nations at war for many centuries past.” ³⁷ To emphasize the urgency of the situation, it added in the next issue that Germany’s disregard for international law “has never been even thought of by civilized nations.” ³⁸ In a relatively short period, the conventions of international law as governed by the Hague conventions had become, in the estimation of legal writers, the determinant of “civilized” conduct.

The divide between German illegality and Allied commitment to international law presented in Canadian legal periodicals was a dichotomous one. Scarcely mentioned amid the criticisms of Germany were Britain’s apparent violations of international law, notably the naval blockade in the Atlantic that cut off civilian food supplies from Germany. ³⁹ Additionally, while condemning the degradation of law in Germany, writers saw little contradiction in supporting the limitations of civil liberties on the home front in Canada. The Canada Law Journal, for example, ran a particularly enthusiastic article calling for the termination of employment of German-born University of Toronto professors. It added that the naturalization papers of German citizens in Canada were little more than “scraps of paper,” an obvious allusion to German violation of Belgian neutrality. ⁴⁰ The suspension of civil liberties introduced by the War Measures Act received little extended scrutiny, despite its obvious legal implications. Overall, both of Canada’s major law journals were silent on matters of domestic legal criticisms, an omission that was certainly in keeping with wartime self-censorship. ⁴¹

War crimes and punishments

Germany’s initial violation of Belgian neutrality was the opening salvo in its apparent assault on international law, but its wartime conduct was the source of especially censorious legal criticism. Throughout the war, Canadian legal periodicals regularly commented on German violations of law and war conventions, building a case for fighting against German illegality. The extensive destruction of civilian property and the killing of non-combatants in Belgium and northern France were frenetically reported in the daily press and provided more evidence of the particular barbarism and lawlessness of German troops. German actions, the Law Journal asserted, “would shame the worst barbarians.” ⁴² Lawyer McGregor Young pointed to the sinking of the Lusitania as a particularly stark example of Germany’s “direct challenge to the foundations of International Law on which our modern civilization is largely based.” ⁴³ The incident, he argued, “may be regarded as the culmination of deliberate acts of terrorism on the part of the German Government in deliberate disregard of fundamental principles of International Law.” ⁴⁴

Two specific incidents stood out as particularly vivid illustrations of German war crimes. The execution of the British nurse Edith Cavell by a German firing squad in Belgium in October 1915 became a powerful image in British imperial war propaganda, and quickly became a rallying point in Canada as a symbol of patriotic British womanhood against the ugly face of German aggression. ⁴⁵ Similarly, the execution of British mariner Charles Fryatt in 1916 for his role in ramming a German U-boat prompted outcry over Germany’s treatment of non-combatant prisoners of war. Edwin Maxey wrote in the Law Times that “To understand the execution of Captain Fryatt we must look upon it as one in a long series of acts in a policy of frightfulness which has cost Germany far more than she has gained from it.” ⁴⁶ These examples seemed to prove to legal minds that Germany was simply unwilling to follow the customs of handling war prisoners, which were part of the legal conventions of war established in the 1907 Hague Convention.

In a three-part series written for the Canadian Law Times, English legal scholar Hugh H.L. Bellot chronicled in detail his case for proving Germany’s criminality in its war conduct. His argument, like that of other legal commentators, was that war in general had gradually become more “civilized” as it came under greater legal regulation between nations. The Geneva Conventions and the Hague Conference, he argued, “constitute the conventional and customary laws of war on land and sea. They form some evidence that war itself is subject to legal regulation.” ⁴⁷ In the typical teleology of legal philosophy from the period, Bellot traced a gradual advancement in the legal regulation of war from the ancient Greeks onward, in order to illustrate the regression in German conduct. ⁴⁸ A long list of apparent violations of law, ranging from using children as shields against bullets to the use of poisonous gasses, painted a clear picture of an enemy that held little sacred. The German principle of military necessity as the chief consideration in war, he argued, “rides rough shod over the accepted laws and usages of war, the principles of International law and even on conventional obligations.” ⁴⁹

Given the constant illustrations of German illegality, the question of reprisals became an important legal question, specifically whether it was justified under international law to wilfully commit crimes in retribution for enemy violations of law. For Bellot, the answer was clear. The solution to the crisis, he argued, was to bolster the resolve of the Allies to act within and enforce international law, rather than adopting the forceful tactics of the Germans. “Although Germany has broken every rule of the game,” he asserted, “we are determined as far as possible to keep within the law.” Respecting international law was a matter of “self-respect and honour,” and “the only thing which stands between us and primitive savagery.” ⁵⁰ Once again, the stark legal divide of the war was apparent, and it was clear that the Allied war effort was a struggle to maintain the system of international law in the world. The Canada Law Journal adopted a more assertive position in its editorial on reprisals, insisting that they were a recognized feature of international law, provided they did not outweigh the initial wrongdoing. ⁵¹

The war exposed the limitations of international law in a very obvious way. Despite the development of legal conventions governing warfare and dispute resolution, the war called into question whether such a system could be sustained. Criticisms of German conduct were sometimes accompanied by despair for the future viability of international law, which seemed to be substantially damaged by the war. Remarking on the German use of submarine warfare, the Law Journal feared that “International law, after this war is over, will be as much shreds and patches as Germany’s broken treaties.” ⁵² Even when reporting on ideas for strengthening international law, it insisted that an international binding law “can never be hoped for in the community of nations.” ⁵³ Not all writers were quite as pessimistic about the viability of international law. One declared that in the struggle between “the rule of law and the reign of might,” there could be confidence that the rule of law would prevail. ⁵⁴ Another writer contended that German violations of international law were but a “spasm” in history, but nonetheless, “there is ever movement towards a more orderly state of society.” ⁵⁵ It appeared that regardless of its outcome, the war marked an important turning point in the development of international law, and the postwar period would inevitably lead to a more concerted consideration of its enforcement in the world.

The question for many legal observers was how to enforce international law so that a sovereign state could face punitive consequences for breaching legal rules and conventions. “The impotence of international law,” the Canadian Law Journal stated, “arises from the fact that it lacks some coercive power behind it to mete out due punishment to those who wilfully violate it.” ⁵⁶ One solution, it proposed, would be to penalize particular individuals responsible for authorizing violations of international law. Presaging the International Criminal Court, it imagined that at the end of the war, the Kaiser and his senior staff could be handed over to a court and “tried for their lives as international criminals.” ⁵⁷

It was clear to many that because of its disregard for international law, Germany had lost its standing as a part of the “civilized” world. Given Germany’s conduct, one legal scholar argued, “we must then raise the question whether Germany is entitled to a place among the family of nations, or whether she had not voluntarily placed herself in the outlaw class.” In practical terms, he continued, this meant that it “must be restricted in its liberty of action.” ⁵⁸ Hugh Bellot was equally clear in his proposals for ameliorating international law after the war. International law, he believed, had not by that point developed to a point where states could punish other states for breaches of law, but the war impressed the urgency for the world to “make its choice between International anarchy, and disorder, or International law and order.” ⁵⁹ It was clear that after the war, the system of international law would need to be reinforced and strengthened. Its centrality in legal debates would not abate as the conflict subsided.

Conclusion

The role of international law held a central place in understanding the First World War. On the one hand, it bolstered the idea of a just cause, which was a crucial element of justifying war and eliciting popular support. The war was evidently different from anything that had been witnessed before, and its carnage rumbled so loudly that across the Atlantic the barrier between law and disorder threatened to come undone. The ideal of legal order stood against the violence of war, and law, so distant from the chaos and conflict of European battlefields, was at risk of becoming its ultimate casualty. What appeared to be at stake in the war were the entire system of international law and the promise of peace and order that it protected.

More substantially, however, the war provided a sort of laboratory for legal scholars to examine the limits of international law and its viability in a world of industrialized warfare. As much as Canada was acting within a united imperial war effort, its defence of international law prompted Canadian legal scholars and lawyers to see themselves participating in a transnational legal conversation about international law in the twentieth century, alongside legal scholars in the United States, Britain, and the rest of Europe. Their awakening to international law in the war years did not fade quietly away, but became a central feature in discussions of Canada’s role in the British Empire and the world in the years following the war. ⁶⁰ After fighting a “legal war” for the international state system, it would be difficult for Canada to return to a state of colonial subordination.

In the aftermath of the war, as diplomats from the Allied powers gathered in Paris to discuss the terms of a peace treaty, the Canada Law Journal concluded that “It seems to have become a settled conviction of statesmen and lawyers that the time has arrived, and the opportunity is now before that part of the world which believes in law and order, to vindicate in a striking manner the supremacy of law.” ⁶¹ For two decades following the conclusion of the war, it seemed that the commitment to international law and the resolve to embolden its enforcement preoccupied international political and legal discussion. American President Woodrow Wilson’s Fourteen Points marked an important affirmation of some basic principles of international law, notably the recognition of self-determination. The establishment of the League of Nations in 1920, although ultimately ill-fated, signalled to many the foundation of a truly “international society.” ⁶² It seemed as if, in the words of the Canada Law Journal, lawyers’ concern for the maintenance of international law in the war had been “vindicated.” ⁶³

One legal scholar writing in 1916 stressed that “no account hereafter to be written of the Great War will be complete if it does not include some mention of its effect upon the law.” ⁶⁴ Scholars of the First World War need to take international law seriously and understand the centrality that it held in defining the conflict. Concern for the maintenance of international law should not be viewed simply as an effort to demonize the enemy in popular propaganda but also as an animating element of the war effort. The examination of international law by lawyers during the war reflected concern for the maintenance of the international state system, the anxiety over its possible demise in the twentieth century, and the effort to safeguard its legitimacy.

A century after the beginning of the war, it is appropriate to investigate the role of international law in the conflict, especially given recent anxieties about international law and its apparent violations. By examining the centrality of international law in the First World War, it is possible to understand its wider connections to international affairs today when many of the same questions and concerns about its stability and regulation are debated. The anxieties about the stability of international law that characterized legal responses to the First World War are pertinent today, especially since the modern “war on terror” has introduced new challenges to international law. ⁶⁵ And while some scholars point out Canada’s apparent drift away from broad internationalism in recent years, it is clear that the language of international law, at least as a rhetorical instrument for entrenching differences, continues to be a part of political strategy. ⁶⁶ This was most recently evident in the Canadian government’s response to Russian actions in Ukraine, which tended to focus on the apparent illegality of Russian aggression. ⁶⁷

These recent tensions reflect a fundamental fault line in international law. Policymakers will continue to grapple with the consequences of this divergence in understandings of international law and the difficulty of reconciling differences. ⁶⁸ This is part of the historical development of international law and its role in defining conflict. As the words of many of the legal scholars examined here show, however, as much as it is a source of anxiety, it can also be a basis of renewed commitment to the principles of internationalism.