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The German Claim of Necessity



F.H. Townsend's 1914 cartoon depicting Belgium's refusal of German free passage      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 Belgiumís 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.[1]   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,[2]  the German jurists of the time were almost completely united in justifying their governmentís action on grounds of military necessity in this proclaimed ìlife or deathî decision.[3]   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 thoughtóhow he is to hack his way through.[4]
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 ìnecessarium ad finem belliî, and trying to decide who first broke the neutrality is a meaningless exercise.[5]

       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 stateís legal obligations.[6]   As one prominent scholar put it, ìIn 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.î[7]   In this case, Germanyís 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.[8]   Thus, it was alleged, for Germany not to anticipate the attack in order to defend itself would have been nothing short of suicide.

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Footnotes

1.     See also, Daniel H. Thomas, The Guarantee of Belgian Independence and Neutrality in European Diplomacy, 1830's-1930's, 1983, p. 497, quoting a Belgian ministerís personal reaction to the ultimatum.
2.     James Garner, International Law and the World War, 1920, Vol. II, p. 191.
3.     For a spirited defense of Germanyís actions, see Alexander Fuehr, The Neutrality of Belgium, 1915, (http://raven.cc.ukans.edu/~libsite/wwi-www/belgneut/BelgTC.htm#TC).  Fuehr strongly criticizes both the Treaty of 1839, impugning the motives behind the treaty and suggesting that no one trusted the guarantee, as well as the British claim to have intervened because of the violation of Belgian neutrality.  Fuehr also provides basically every argument imaginable as to why Germany was acting in accord with international law in 1914.
4.     See Fuehr at Appendix E (http://raven.cc.ukans.edu/~libsite/wwi-www/belgneut/BelgA.htm#E). 
5.     Dr. Th. Niemeyer, ìInternational Law in War,î 13 Michigan Law Review 178 (1915).
6.     Garner, supra note 2, at 192.
7.     L. Oppenheim, International Law, p. 178, quoted in, Garner, supra note 2, at 193.
8.     Fuehr, supra note 3, at Ch. 5.