Germany Tries Other Justifications
But there were distinct problems with Germanyís claim to necessity in 1914. First, Germany had merely declared that ěreliable informationî 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. Second, Germany completely disregarded evidence contrary to that reliable information, namely Franceís unequivocal pledge to respect Belgian neutrality, a pledge which Germany had refused to reciprocate. 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. The consequence of this view is to make the exception swallow the rule, since any strategic interest would be able to override international law. 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.
Germanyís 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. Any argument that the European powers were tightening the noose around Germanyís 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 the blank check 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. Though the sealed document was not delivered until August 2 (to give the impression that Germany had just discovered Franceís intentions and had to respond quickly), 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. 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. But the law of neutrality in 1914 did not permit a neutral state to provide a right of passage to belligerent troops. 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. Furthermore, the 1907 Hague Convention Concerning the Rights and Duties of Neutral Powers and Persons in Case of 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. 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.. 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. 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
However, the mere fact that France had considered an illegal action did
not justify Germanyís 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.
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.
But the Germans quickly abandoned these charges of a French violation,
certainly because they knew the charges were false.
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
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.
1. James Garner,
Law and the World War, 1920, Vol. II, p. 195.