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Argentina and the reorganization of South Brazil equally well whether with or against Argentina. Please cultivate friendship with Chile. The announcement of a visit of a submarine squadron to salute the President would even now exercise decisive influence on the situation in South America. Prospect excellent for wheat harvest in December. (Signed) LUXBURG.
Regarding the incredible brutality of the proposal to sink without a trace the vessels of a friendly country, the insulting epithets applied to its officials, the revelation of utter disregard of any relations between the Imperial Government and the Republic to which Count Luxburg was accredited except those affecting its own military and commercial advantage, and the secret political aims of the German Empire in South America, it is unnecessary here to offer comment. They speak for themselves. Hardly more necessary is it to advert to the total absence of moral compunctions in the official to whom the Imperial Government had intrusted its interests in Argentina.
The opinion which Count Luxburg entertained regarding the motives of his own government is, however, deserving of a passing notice. So confident is he of the predisposition of the Imperial authorities to commit crime, and to take inhuman precautions to conceal it, that he not only suggests the total destruction of the crews of the little noncombatant vessels of the country to which he is accredited, innocently pursuing their course upon the high seas, but points out the desirability of leaving no trace not even the possibility of the rescue of one poor telltale life to reveal the fact of this wanton wholesale murder after it has occurred. No depth of perversity is left unsounded in this estimate of what the German Government is capable of doing. Conscious of the hideous nature of his proposal, this officer assumes not merely that his government is ready to commit this act of murder, but to render itself able successfully to lie out of it afterward by destroying every scrap of evidence of its guilt. It is difficult to believe that a civilized government could receive from a subordinate a communication involving such implications without severe rebuke, unless it had already justified these assumptions by its previous instructions; thus assuring its agents that such suggestions would be rewarded with its approbation. Such connivance places the official action of such a government outside the sphere of honorable diplomacy and renders extremely difficult future confidence in its professions of amity.
There is, however, another aspect of this correspondence more interesting to the international jurist than this revolting predisposition
to criminal procedure. Whatever may be said of the Imperial Government and its officials, whose conduct did not even pretend to conform to the principles of international law, the Swedish Government, as a neutral, was under obligation to respect both neutral and belligerent rights.
The following questions, therefore, arise:
How far was the Swedish Legation morally particeps criminis in promoting murder on the high seas by transmitting these dispatches?
Was there in the act of this transmission a form of unneutral service regarding the belligerents that would constitute a violation of international law?
In extenuation of the course taken by Baron Lowen, the Swedish Minister who sent these messages to the Swedish Foreign Office, as if they were a part of his own legitimate secret correspondence with his government, it may be said that, from his point of view, it was merely an act of personal friendship to a colleague who was deprived of other means of communication with his government. Not knowing, as may be the case, the contents of the dispatches he was forwarding, how, it may be asked, could he justly be held accountable for their perfidious and criminal character? Such an extenuation does not, however, constitute a defensible
Assuming that the Minister was entirely ignorant of the contents of the dispatches, it was prima facie probable that they contained information either hostile to a belligerent, or in some way helpful to the Imperial Government, or affecting the interests of a neutral. Whatever the nature of his information, the transmitter of these dispatches under the cover of secrecy was rendering a service which his German colleague regarded of value to his government, which was then engaged in war.
He knew also that the act he was performing was not merely one of personal friendship, and that it involved the responsibility of his government for the delivery of secret dispatches which would subject a ship caught conveying them to confiscation.
Another and a safer course was open to him, the course taken by a former American Minister at The Hague, Dr. Henry Van Dyke, when the Imperial Austro-Hungarian Legation asked him to transmit a message in the American diplomatic code to the American Minister at Brussels for delivery to the Austro-Hungarian Legation which still remained in Belgium.
“The first and last parts of the message,” writes
Dr. Van Dyke, "were in plain language, good English, quite innocent and proper; but the kernel of the dispatch was written in the numerical cipher of Vienna, which of course I was unable to read. I drew attention to this, and asked mildly how I could be expected to put this passage into our code without knowing what the words were. The answer was that it would not be necessary to code this passage; it could be transmitted in numbers just as it stood; the Austro-Hungarian chargé d'affaires at Brussels would understand it."
“Quite so," replied Dr. Van Dyke, “but you see the point is that I do not understand it.” And without giving the slightest offense to his colleague, who admitted that his point was “perfectly clear and indisputable,” he declined to transmit the dispatch, on the ground, as he alleged, that the American instructions explicitly forbid sending a message in two codes.
The sending of such a message, even though the use of two codes were not forbidden, would imply collusion with a belligerent and would constitute a clear case of unneutral service. Not only so, the ostensible message being in appearance what it is not, and the real message being conveyed under cover of concealment, it is an act of unneutral service accompanied by fraud. The mere fact that the German chargé d'affaires appealed to the Swedish Legation to forward his dispatches under the cover of Swedish dispatches is a confession that the messages conveyed could not be safely transmitted without such aid.
In the case of a ship performing precisely this service, namely, the secret transmission of dispatches, the penalty, as intimated above, if captured, is confiscation. The reasons for this, as stated by Lord Stowell, do not affect the nature of the medium used for the purpose of transmission. They apply to a cable as well as to a ship, but with the difference that the act in the case of a ship is liable to detection and penalty, while the transmission of a cablegram under the cover of the diplomatic immunity possessed by another government runs only a slight risk of discovery, and no risk of property confiscation. The guilt of such transmission is increased by this circumstance; because while the offense, in principle and effect, is the same, the dishonor of it is evidently greater.
The nature of the offense is well pointed out by Lord Stowell in the case of the Atalanta (6 Robinson, 440), a Bremen ship, captured on a voyage from Batavia to Bremen, whose master and one of the supercargoes had taken on board at the Isle of France a package of
French Government dispatches, afterward found concealed in the possession of the second supercargo.
In his judgment Lord Stowell says:
If a war intervenes, and the other belligerent prevails to interrupt communication, any person stepping in to lend himself to the same purpose (to establish communication), under the privilege of an ostensible neutral character, does, in fact, place himself in the service of the enemy-state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign that may defeat all the projects of the other belligerent in that quarter of the world. . . . It is a service therefore which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature. . . . I have the direct authority of the Superior Court for pronouncing that the carrying of dispatches of the enemy brings on the confiscation of the vehicle so employed.
In conclusion, the learned jurist holds that the offense of carrying dispatches is greater than that of carrying contraband. To talk of confiscating dispatches is ridiculous, as it would inflict no loss on the guilty person. In order, therefore, to signalize the enormity of the offense, he pronounces both ship and cargo subject to condemnation.
Where, in the case of an equal offense but in the absence of penalty, is a victim of unneutral service in the form of the secret forwarding of dispatches by cable or telegraph to find redress? Before what tribunal may such offenses be brought? What means are to be employed to prevent the occurrence of such offenses?
These are questions of too wide a scope and too great complexity to be discussed here, but they will no doubt receive careful consideration when competent authorities assemble to deliberate concerning those revisions and enlargements of the law of nations which the new conditions of international life imposed by electrical transmission of intelligence will require. In the meantime the use to be made of the new means of secret communication offers an opportunity to exercise the self-respect and good faith of governments and their agents in observing the spirit of the law, by carefully avoiding a form of unneutral service between belligerents which is peculiarly odious, because it may be rendered with comparative impunity under the protection of secrecy. It is, perhaps, an indication of what the mature judgment of governments upon this subject will be, that Baron Lowen, notwithstanding
the declaration of the Swedish Foreign Minister that there was “no responsibility for the tenor of the German messages," is reported to have departed from Buenos Aires without making the customary farewell visits to the officials there, which seems to imply that he was leaving in disgrace.
DAVID JAYNE HILL.
ARGENTINA AND GERMANY: DR. DRAGO'S VIEWS
La Razón, a great daily paper of Buenos Aires, in its issue of April 10, 1917, invited the most prominent men of Argentina to express their opinions on the attitude which their country ought to assume and observe in the present European War. Among others, Dr. Luis M. Drago, statesman and publicist, was asked, and the opinion which he gave was not only valuable because of his political position and the intellectual standing of its author, but also on account of his international reputation, founded by his note of December 29, 1902, creating the Drago doctrine, increased, if possible, as delegate of his country to the Second Hague Peace Conference, and maintained as a member of the so-called Permanent Court of Arbitration at The Hague. Dr. Drago's opinion, therefore, of interest to his countrymen, has also an international interest, and for this reason a translation of it follows in full:
My opinion, as I had occasion to state it to several persons closely related to the government, has been, from the start, that we should have followed the United States when that nation came to the conclusion that it must sever diplomatic relations with the German Empire. The submarine blockade and the threatening intimation made to us by forbidding Argentine vessels and citizens to navigate in a war zone arbitrarily marked out in the high seas, in open violation of the most elemental principles of international law, should have amply justified such an attitude. To-day the situation is still more serious and grave. The United States are in a state of war with the German Empire. The conflict assumes the very form in which it is presented in President Wilson's message: democracy against absolutism.
How could an American nation stand aloof from this conflict and retain the status of a neutral without abhorring its past and at the same time jeopardizing its present and its future? Brazil is preparing to assume its place among the belligerents, and very soon other states of America will follow her. Shall this Republic, by breaking the bonds of solidarity with its Latin sisters and its traditional policy, be able to continue in a state of isolation which nothing can justify and which would, furthermore, be full of dangers?
I ve, theref that we must very quickly make ready to swell the ranks of those who uphold the rights of nations as against the oppression of absolute governments, and thus show, once more, in the name of justice, the material and