Second Case Study on Compliance: the Obligations of Belgian Neutrality

Second Case Study on Compliance: the Obligations of Belgian Neutrality

One of the few clear-cut legal obligations in 1914 transcending the divided alliance system was respect for the neutrality and inviolability of Belgium. The Belgian territory had been the terrible battleground of numerous wars,[1] and in 1831, the European powers were still eyeing it with envy. Consequently, the great powers got together that year and came up with the solution of making the disputed territory a neutral state. Among other rationales for neutralizing Belgium were Britain’s interest in ensuring that France would not annex Belgium and France’s desire to keep Holland from doing the same, as well as to create a neutral neighbor for itself as a sort of buffer from Germany.[2] The other states were just as happy to make the small state off-limits for everyone. The concept of neutrality was not a novel one, and the experiment in Switzerland had been working well for years, though there were still disputes over the precise obligations neutrality imposed on all sides. Nonetheless, Austria, France, Great Britain, Germany and Russia established the new state of Belgium and bound its government to respect neutrality toward other states,[3] a status to which the Belgian people strongly objected but finally were willing to accept in order to obtain recognition as an independent state.[4]

In 1839, the European powers affirmed the earlier treaty and committed themselves to guarantee the neutrality and territorial inviolability of Belgium.[5] However, the guaranteeing powers intentionally adopted a vague guarantee, in part because they did not want to bind themselves to action under all future circumstances.[6] Decisions on the future enforcement of the guarantee would have to be reached when the need arose, and the great powers certainly did not foresee the great debate over the nature of the obligations the guarantee imposed.[7] In 1870, three of the major powers affirmed the continuing force of the 1839 treaty in the context of the Franco-Prussian War. Great Britain requested and obtained statements by France and by Germany that they would not violate the permanent neutrality of Belgium, and in response, the British bound themselves to intervene in the war against whichever belligerent would violate that principle.[8]

However, beginning in 1905, the German Schlieffen plan (the war strategy named after the Chief of the Great General Staff who devised it) called for a quick push through southern Belgium to avoid the heavily fortified French defenses on the eastern border with Germany. Speed was of primary importance to the Germans in the event of a major war, because having created enemies for itself to the east and west, they knew they could not sustain a protracted campaign with divided forces. Thus, the objective was to advance quickly through France, capture Paris, thereby cutting off the French juggernaut at its source, and then concentrate all the German forces against Russia in the east before Russia could fully mobilize its endless supply of troops.[9] Schlieffen, sensitive to the international condemnation that would likely result from a violation of Belgian neutrality, had intended to induce France to commit that violation first, as the Germans would deploy on the Belgian border, fully expecting France to move into Belgium at Meuse to try to halt the impending German attack.[10] However, General Moltke (the head of the German command in 1914) decided that time would not allow for such legal posturings, and he convinced the rest of the German government of the need to move through Belgium first to avoid being encircled by Russia and France.

Thus, on August 2nd, at the doorstep of war, Germany delivered a note to the Belgian government requesting free passage through Belgium. In the note, the Germans claimed discovery of French plans to invade the neutral territory against Germany, and that since Belgium would be unable to resist the French advance, Germany had to protect itself by anticipating the hostile attack. The note then promised no hostilities against Belgium itself if it would maintain friendly neutrality towards Germany, reassuring the Belgian government that Germany would evacuate the neutral territory and restore its full independence at the conclusion of the war. In Belgium’s August 3rd response, though, the Belgian government denied both the premise and conclusion of the German request, stating first that no evidence suggested that France was preparing an attack on Belgium, and that to the contrary, France had formally declared on August 1st its intention to respect Belgian neutrality.[11] Having denied the evidence of French mal-intent, the Belgian government concluded that the German request constituted a threat in clear violation of international law, which no strategic interest could justify. Were the Belgians to accede to the request, they would sacrifice their honor and betray their obligations as a neutral, obligations to which they had been dutifully faithful, the note stated. Thus, Belgium would employ all means necessary to repel the attack on their rights, regardless of the perpetrator.

Nonetheless, Germany attacked Belgium on August 4th and within a few weeks overwhelmed the spirited opposition of the small Belgian army. Although the German government clearly acknowledged that the invasion was in violation of the 1839 treaty,[12] the German jurists of the time were almost completely united in justifying their government’s action on grounds of military necessity in this proclaimed “life or death” decision.[13] In his famous August 4th speech to the Reichstag, Chancellor Bethmann-Hollweg presented the German case:

We are in a state of legitimate defense. Necessity knows no law. Our troops have occupied Luxembourg and have perhaps already penetrated into Belgium. This is against the law of nations. France, it is true, has declared to Brussels that it is determined to respect the neutrality of Belgium as long as its adversary respects it, but we know that France was ready to invade Belgium. France can afford to wait; we cannot. A French attack on our flank in the region of the lower Rhine might have been fatal. It is for that reason that we have been compelled to ignore the just protests of the governments of Luxembourg and Belgium. The injustice which we thus commit we will repair as soon as our military object has been attained. Anybody who is threatened as we are threatened and is fighting for its highest possessions can have only one thought—how he is to hack his way through.[14]

Or as a German professor put it in 1915, as much for France as for Germany, invading Belgium in order to attack the enemy was “necessarium ad finem belli”, and trying to decide who first broke the neutrality is a meaningless exercise.[15]

Although the proposition remained controversial in 1914, some international legal scholars agreed on the existence of the right of self-preservation, even where that right would infringe upon a state’s legal obligations.[16] As one prominent scholar put it, “In certain cases, it is a fact that violations committed in self-preservation are not prohibited by the law of nations; they are justified in cases of necessity and of this, every State must be the judge.”[17] In this case, Germany’s claim of necessity was based on the notion that she would have faced an attack at her most vulnerable spot, along the unprotected German-Belgian border, and if the alleged French invasion had been successful, Germany would have lost her most valuable coal and iron mines and industrial centers in the Rhine.[18] Thus, it was alleged, for Germany not to anticipate the attack in order to defend itself would have been nothing short of suicide.

But there were distinct problems with Germany’s claim to necessity in 1914. First, Germany had merely declared that “reliable information” indicated that France was about to move into Belgium; it gave no evidence of the source or the nature of that information to support its allegation, nor was it ever able to produce compelling proof.[19] Second, Germany completely disregarded evidence contrary to that reliable information, namely France’s unequivocal pledge to respect Belgian neutrality, a pledge which Germany had refused to reciprocate.[20] Third, the German doctrine of kriegsraison was much broader than the legal defense of military necessity, so much so that German jurists would have allowed acts of mere military interest or convenience to trump otherwise sacred legal obligations.[21] The consequence of this view is to make the exception swallow the rule, since any strategic interest would be able to override international law.[22] At a minimum, this doctrine of kriegsraison clearly violates the spirit of the Hague Conventions, which declared that belligerents were not unconstrained in their choices.[23]

Germany’s decision to pass through Belgium to attack France was in reality a decision of strategic convenience, designed a decade earlier to save time, effort and lives in moving through the weakly defended Belgium, rather than moving through the heavily armed French borders. The false allegation of French intention to march through Belgium was a pretext to justify the implementation of this long-standing German plan.[24] Any argument that the European powers were tightening the noose around Germany’s neck and that it had no choice but to violate Belgian neutrality to liberate itself is disingenuous. The Germans had been the instigators of the crisis in giving carte blanche to the Austro-Hungarian government to crush Serbia, and they were the first to declare war on the Entente powers. Furthermore, General Moltke first drafted the ultimatum to Belgium on July 26, two days before Austria-Hungary declared war on Serbia, and on the same day that Germany rejected a British proposal for a five-power conference to negotiate a diplomatic solution to the crisis.[25] Though the sealed document was not delivered until August 2 (to give the impression that Germany had just discovered France’s intentions and had to respond quickly),[26] the early drafting of the ultimatum provides solid evidence that Germany was creating the urgency and pushing for war.

It did not take long for Germany to realize that the rest of the world condemned its military necessity defense of the violation of Belgian neutrality, and thus, Germany proceeded to advance a myriad of other justifications for its action.[27] One claim was that Belgium had become a belligerent by refusing a right of passage to Germany to ward off the alleged French attack on Belgium, and that therefore, Belgium was implicitly agreeing to the violation of its neutrality and assisting the French in their effort against Germany.[28] But the law of neutrality in 1914 did not permit a neutral state to provide a right of passage to belligerent troops.[29] Although international law had previously allowed such a right of passage, the right was almost unanimously rejected from the middle of the nineteenth century on.[30] Furthermore, the 1907 Hague convention respecting the rights and duties of neutral powers and persons in war on land cleared up any remaining ambiguities. Article 2 prohibited belligerents from moving troops, munitions, or war supplies across the territory of a neutral power, and article 5 prohibited neutrals from allowing these acts to occur in their territory.[31] Though the German government argued that these articles were not legally binding since Great Britain and other belligerents had not ratified them, they were in fact binding on all the belligerents because these articles merely codified the long-established and universally accepted principles contained therein.[32] Allowing Germany to pass through neutral Belgium in an offensive attack on France then would have made Belgium a co-belligerent with Germany in violation of her neutrality. Furthermore, she would have opened herself up to German occupation, since the Germans, had they won, may have conveniently forgotten their promise to withdraw at the end of the war.[33] Thus, Belgium made the only legal and moral choice available to them in refusing the German demand.

Next, the Germans claimed that the French had intended to violate Belgian neutrality, such that they could not criticize Germany for doing so. This German allegation was true: the French military staff had proposed to violate Belgian neutrality to move against Germany, but the government had rejected the plan and Britain opposed the idea because the world would have condemned the Entente for the violation.[34] However, the mere fact that France had considered an illegal action did not justify Germany’s actual commission of the violation. No legal system equates an actor who considered unlawful action but decided against it with another actor who committed the illegality.[35] Therefore, Germany alleged that France had actually violated Belgian neutrality prior to the German invasion. They charged that French planes had flown over Belgian airspace and into parts of Germany and that some French patrols had been seen in Belgium in late July or the first few days of August prior to the outbreak of hostilities.[36] But the Germans quickly abandoned these charges of a French violation, certainly because they knew the charges were false.[37] The Germans also alleged that French inspection of Belgian fortifications constituted a consensual violation of neutrality, placing Belgium in the camp of the Entente powers and making it a legitimate target for German attack.[38] However, Germany had benefited from similar inspections when France was the suspected violator, and German jurists certainly did not think those inspections violated the neutrality status at that point.[39]

The most serious charges levied against Belgium came in October 1914 after Germany had captured Brussels and found in the government archives copies of the Conventions Anglo-Belges.[40] For the Germans, this was proof of their prior suspicion that Belgium had allied itself with Great Britain, thereby becoming a belligerent and forfeiting any claim to neutrality. Germany had made this allegation around the time of its ultimatum on Belgium but curiously omitted any mention of it in the text of the ultimatum, and since Germany had no proof, the allegations were ignored. However, the archive documents proved that Belgium had consulted Great Britain regarding the entry of British troops into Belgium against Germany. The German government then turned these documents into a propaganda machine, claiming that Belgium had predetermined to join Germany’s allies as a “vassal state of England.”[41] Furthermore, since Britain itself had plotted to send troops into Belgium, the very reason it cited for declaring war on Germany, the Germans claimed that British rhetoric about Germany’s violation of Belgium was utterly meaningless.[42] And indeed, had there been an actual Belgian alliance with Britain against Germany, Germany would have been correct in considering Belgium a belligerent rather than a neutral on August 3, for the letter and the spirit of the Treaty of 1839 would have been violated as much by Belgium as by Great Britain.[43]

However, this German propaganda campaign misrepresented the tone of the military conversations and omitted the key feature of the discussions. The documents contained merely informal, non-binding discussions between Belgium and one of her guarantors, designed to enforce respect for the obligations of the 1839 treaty and insert British troops into Belgium only if Germany decided to disregard them, which she eventually did.[44] The fact that Germany did not disclose the defensive character of the conversations proves that Germany was not engaged in legal argument, but merely a slanted propaganda campaign to deceive public opinion. In fact, the German Secretary of State and Minister of War had even reaffirmed the neutral status of Belgium, as well as Germany’s duties to respect that status, in the German Reichstag on April 29, 1913, and as late as July 31, 1914, Herr von Below-Saleske stated to the Belgian Minister of Foreign Affairs that the German view had not changed.[45] Though the Germans had not yet discovered the military conversations, the fact that they, who claimed to have been convinced that Belgian neutrality had been forfeited long ago, did not make the allegation at the outbreak of war (and indeed made official statements to the contrary) greatly undermines the persuasiveness of their claim.[46]

In 1914, it was controversial whether defensive alliances violated neutral status,[47] but many scholars thought it was legal for a neutral state to take steps to protect its neutrality. There had been frequent perceived threats from one side or the other throughout much of Belgium’s history of neutrality.[48] Despite these tensions, Belgium had relied on the good will of its neighbors and guarantors to the point that it maintained very low levels of armed forces, and upon attack from either side, it would struggle to defend itself.[49] In fact, the Belgians took their guarantee so seriously that they also neglected frontier defenses, fortresses, and anything else that implied lack of confidence in the treaty.[50] And therein lies the reason the Schlieffen Plan called for a move through Belgium, to overwhelm quickly and easily the tiny Belgian army and encircle the French fortresses along the Franco-German border.[51] However, since the Belgian government could not gain the support for legislation to increase the size of the military to repel an attack, the military leaders resolved to seek out an agreement for military cooperation with friendly neighbors in order to resist the threats coming from both sides.[52]