[Transcriber's note: Original spelling variations have not been
standardized. Underscores have been used to indicate _italic_ fonts.]
_BY THE SAME AUTHOR_
INTERNATIONAL LAW
VOL. I.--PEACE
2nd Edition
8vo. 18s. net
LONGMANS, GREEN AND CO.
LONDON, NEW YORK, BOMBAY, AND CALCUTTA
INTERNATIONAL LAW
A TREATISE
BY
L. OPPENHEIM, M.A., LL.D.
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW
HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID
VOL. II.
WAR AND NEUTRALITY
_SECOND EDITION_
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK, BOMBAY, AND CALCUTTA
1912
All rights reserved
PREFACE
TO THE SECOND EDITION
The course of events since 1906, when the second volume of this work
first made its appearance, and the results of further research have
necessitated, as in the case of the first volume, the thorough revision
of the text, the rewriting of many portions, and the discussion of a
number of new topics. The additions to this volume are even more
numerous than those to the first, with the consequence that, in spite of
the typographical devices explained in the preface to the second edition
of the first volume, the text of this volume has been increased by one
hundred pages. The increase is, in some measure, due to the fact that
the thirteen Conventions of the Second Hague Peace Conference, and,
further, the Declaration of London, are fully discussed and expounded.
But the increase is also due to the fact that a number of other new
topics have been discussed; I will only mention the questions whether
enemy subjects have _persona standi in judicio_ (§ 100_a_), and whether
trading with enemy subjects is permitted (§ 101).
The system of the work, with but occasional slight alterations in
arrangement and the headings of the sections, remains the same. In those
cases, however, in which a portion had to be entirely rewritten--as, for
instance, that on Enemy Character, that on Commencement of War, and that
on Unneutral Service--the arrangement of the topics differs from that in
the first edition, and the headings of the sections also differ. Apart
from many new sections, a whole chapter treating of the proposed
International Prize Court has been added at the end of the volume.
Since some of the Conventions produced by the Second Peace Conference,
and, further, the Declaration of London, have not yet been ratified, the
task of the writer of a comprehensive treatise on International Law is
very difficult: he must certainly not treat the rules in these
unratified documents as law, but, on the other hand, he must not ignore
them. For this reason the right method seemed to be to give everywhere
the law hitherto prevailing, and to give also the changes in the law
which are proposed by these unratified documents. I venture to hope that
this method will enable the reader to form a judgment of his own with
regard to the merits of the Declaration of London. I have not concealed
my conviction that the ratification of this Declaration would mark great
progress in the development of International Law, since it offers a
common agreement upon a number of subjects concerning which there has
been hitherto much discord both in theory and practice. But I have
endeavoured to put the matter impartially before the reader, and I have
taken special care to draw attention to very numerous points which have
not been settled by the Declaration of London.
In revising and rewriting this volume I have remained true to the
principle of impartiality, neither taking the part of any one nation,
nor denouncing any other. The discredit which International Law
concerning War and Neutrality suffers in the minds of certain sections
of the public is largely due to the fact that many writers have not in
the past approached the subject with that impartial and truly
international spirit which is indispensable for its proper treatment.
Many friends of the book have asked that the second edition might, in
the Appendix, offer an English translation of the French texts
concerned. I was prepared to accede to their request, but had to abstain
from doing so on account of the fact that the addition of a translation
would have made the volume too bulky for convenience; the new
Conventions of the Second Hague Peace Conference, the Declaration of
London together with the Report of the Drafting Committee of the Naval
Conference of London, the Naval Prize Bill of 1911, and the Geneva
Convention Act of 1911, all of which necessarily had to be added, having
increased the Appendix very considerably.
It has been the aim of my assistants and myself to make the quotations
in this and the preceding volume as correct as possible. However,
considering that there are many thousands of citations, it would be a
miracle if there were not numerous mistakes and misprints in them, in
spite of the great care which has been bestowed upon the matter. I shall
be most grateful, therefore, if readers will kindly draw my attention to
any inaccuracy they may notice.
My thanks are once more due to reviewers and readers who have drawn my
attention to mistakes and misprints in the first edition; and I am again
indebted to Miss B. M. Rutter and Mr. C. F. Pond for their valuable
assistance in reading the proofs and in drawing up the Table of Cases
and the alphabetical Index.
L. OPPENHEIM.
WHEWELL HOUSE,
CAMBRIDGE,
_June 1, 1912_.
ABBREVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
The books referred to in the bibliography and notes are, as a rule,
quoted with their full titles and the date of their publication. But
certain books, periodicals, and Conventions which are very often
referred to throughout this work are quoted in an abbreviated form, as
follows:--
A.J. = The American Journal of International
Law.
Annuaire = Annuaire de l'Institut de Droit
International.
Ariga = Ariga, La Guerre Russo-Japonaise
(1908).
Barboux = Barboux, Jurisprudence Du Conseil Des
Prises Pendant La Guerre De 1870-71
(1871).
Barclay, Problems = Barclay, Problems of International
Practice and Diplomacy (1907).
Bernsten = Bernsten, Das Seekriegsrecht (1911).
Bluntschli = Bluntschli, Das moderne Völkerrecht der
civilisirten Staaten als Rechtsbuch
dargestellt, 3rd ed. (1878).
Boeck = Boeck, De La Propriété Privée Ennemie
Sous Pavillon Ennemi (1882).
Boidin = Boidin, Les Lois De La Guerre et Les Deux
Conférences De La Haye (1908).
Bonfils = Bonfils, Manuel De Droit International
Public, 6th ed. by Fauchille (1912).
Bordwell = Bordwell, The Law of War between
Belligerents (1908).
Bulmerincq = Bulmerincq, Das Völkerrecht (1887).
Calvo = Calvo, Le Droit International, etc., 5th
ed., 6 vols. (1896).
Convention I. = Hague Convention for the pacific
settlement of international disputes.
Convention II. = Hague Convention respecting the
limitation of the employment of force
for the recovery of contract debts.
Convention III. = Hague Convention relative to the
commencement of hostilities.
Convention IV. = Hague Convention concerning the laws and
customs of war on land.
Convention V. = Hague Convention respecting the rights
and duties of neutral Powers and
persons in war on land.
Convention VI. = Hague Convention relative to the status
of enemy merchantmen at the outbreak
of hostilities.
Convention VII. = Hague Convention relative to the
conversion of merchantmen into
men-of-war.
Convention VIII. = Hague Convention concerning the laying of
automatic submarine contact mines.
Convention IX. = Hague Convention respecting bombardment
by naval forces in time of war.
Convention X. = Hague Convention for the adaptation of
the principles of the Geneva
Convention to maritime war.
Convention XI. = Hague Convention concerning certain
restrictions on the exercise of the
right of capture in maritime war.
Convention XII. = Hague Convention concerning the
establishment of an International
Prize Court.
Convention XIII. = Hague Convention respecting the rights
and duties of neutral Powers in
maritime war.
Despagnet = Despagnet, Cours De Droit International
Public, 4th ed. by de Boeck (1910).
Deuxième Conférence,
Actes = Deuxième Conférence Internationale De La
Paix, Actes et Documents, 3 vols.
(1908-1909).
Dupuis = Dupuis, Le Droit De La Guerre Maritime
D'après Les Doctrines Anglaises
Contemporaines (1899).
Dupuis, Guerre = Dupuis, Le Droit De La Guerre Maritime
D'après Les Conférences de la Haye et
de Londres (1911).
Field = Field, Outlines of an International
Code, 2 vols. (1872-1873).
Fiore = Fiore, Nouveau Droit International
Public, deuxième édition, traduite
de l'Italien et annotée par Antoine,
3 vols. (1885).
Fiore, Code = Fiore, Le Droit International Codifié,
nouvelle édition, traduite de
l'Italien par Antoine (1911).
Gareis = Gareis, Institutionen des Völkerrechts,
2nd ed. (1901).
Gessner = Gessner, Le Droit Des Neutres Sur Mer
(1865).
Grotius = Grotius, De Jure Belli ac Pacis (1625).
Hague Regulations = Hague Regulations respecting the Laws
and Customs of War on Land, adopted
by the Hague Peace Conference of
1907.
Hall = Hall, A Treatise on International Law,
4th ed. (1895).
Halleck = Halleck, International Law, 3rd English
ed. by Sir Sherston Baker, 2 vols.
(1893).
Hartmann = Hartmann, Institutionen des praktischen
Völkerrechts in Friedenszeiten
(1874).
Hautefeuille = Hautefeuille, Des Droits Et Des Devoirs
Des Nations Neutres En Temps De
Guerre Maritime, 3 vols. 2nd ed.
(1858).
Heffter = Heffter, Das Europäische Völkerrecht der
Gegenwart, 8th ed. by Geffcken
(1888).
Heilborn, Rechte = Heilborn, Rechte und Pflichten der
Neutralen Staaten in Bezug auf die
während des Krieges auf ihr Gebiet
übertretenden Angehörigen einer Armee
und das dorthin gebrachte
Kriegsmaterial der Kriegführenden
Parteien (1888).
Heilborn, System = Heilborn, Das System des Völkerrechts
entwickelt aus den völkerrechtlichen
Begriffen (1896).
Higgins = Higgins, The Hague Peace Conferences
(1909).
Holland, Prize Law = Holland, A Manual of Naval Prize Law
(1888).
Holland, Studies = Holland, Studies in International Law
(1898).
Holland,
Jurisprudence = Holland, The Elements of Jurisprudence,
6th ed. (1893).
Holland, War = Holland, The Laws of War on Land (1908).
Holtzendorff = Holtzendorff, Handbuch des Völkerrechts,
4 vols. (1885-1889).
Kleen = Kleen, Lois et Usages De La Neutralité,
2 vols. (1900).
Klüber = Klüber, Europäisches Völkerrecht, 2nd ed.
by Morstadt (1851).
Kriegsbrauch = Kriegsbrauch im Landkriege (1902). (Heft
31 der kriegsgeschichtlichen
Einzelschriften, herausgegeben vom
Grossen Generalstabe,
Kriegsgeschichtliche Abtheilung I.).
Land Warfare = Edmonds and Oppenheim, Land Warfare. An
Exposition of the Laws and Usages of
War on Land for the Guidance of
Officers of His Majesty's Army
(1912).
Lawrence = Lawrence, The Principles of International
Law, 4th ed. (1910).
Lawrence, Essays = Lawrence, Essays on some Disputed
Questions of Modern International Law
(1884).
Lawrence, War = Lawrence, War and Neutrality in the Far
East, 2nd ed. (1904).
Lémonon = Lémonon, La Seconde Conférence De La
Paix (1908).
Liszt = Liszt, Das Völkerrecht, 6th ed. (1910).
Longuet = Longuet, Le Droit Actuel De La Guerre
Terrestre (1901).
Lorimer = Lorimer, The Institutes of International
Law, 2 vols. (1883-1884).
Maine = Maine, International Law, 2nd ed. (1894).
Manning = Manning, Commentaries on the Law of
Nations, new ed. by Sheldon Amos
(1875).
Martens = Martens, Völkerrecht, German translation
of the Russian original, 2 vols.
(1883).
Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens
Moderne De l'Europe, nouvelle éd. by
Vergé, 2 vols. (1858).
Martens, R. |
Martens, N.R. |
Martens, N.S. |
Martens, N.R.G. |
Martens, N.R.G. |
2nd Ser. |
Martens. N.R.G. |
3rd Ser. | = These are the abbreviated quotations of
the different parts of Martens,
Recueil de Traités (see p. 102 of
vol. i.), which are in common use.
Martens, Causes = Martens, Causes Célèbres du Droit des
Célèbres Gens, 5 vols., 2nd ed. (1858-1861).
Mérignhac = Mérignhac, Les Lois Et Coutumes De La
Guerre Sur Terre (1903).
Meurer = Meurer, Die Haager Friedenskonferenz, 2
vols. (1905-1907).
Moore = Moore, A Digest of International Law, 8
vols., Washington (1906).
Moore, Arbitrations = Moore, History and Digest of the
Arbitrations to which the United
States have been a Party, 6 vols.
(1898).
Nippold = Nippold, Die Zweite Haager
Friedenskonferenz, 2 vols.
(1908-1911).
Nys = Nys, Le Droit International, vol. i.
(1904).
Ortolan = Ortolan, Règles Internationales et
Diplomatie de la Mer, 2 vols., 3rd
ed. (1856).
Perels = Perels, Das Internationale öffentliche
Seerecht der Gegenwart, 2nd ed.
(1903).
Phillimore = Phillimore, Commentaries upon
International Law, 4 vols., 3rd ed.
(1879-1888).
Piedelièvre = Piedelièvre, Précis De Droit
International Public, 2 vols.
(1894-1895).
Pillet = Pillet, Les Lois Actuelles De La Guerre
(1901).
Pistoye et Duverdy = Pistoye et Duverdy, Traité Des Prises
Maritimes, 2 vols. (1854-1859).
Pradier-Fodéré = Pradier-Fodéré, Traité De Droit
International Public, 8 vols.
(1885-1906).
Pufendorf = Pufendorf, De Jure Naturae et Gentium
(1672).
R.G. = Revue Générale De Droit International
Public.
R.I. = Revue De Droit International Et De
Législation Comparée.
Rivier = Rivier, Principes Du Droit Des Gens, 2
vols. (1896).
Scott, Conferences = Scott, The Hague Peace Conferences of
1899 and 1907, vol. i. (1909).
Spaight = Spaight, War Rights on Land (1911).
Takahashi = Takahashi, International Law applied to
the Russo-Japanese War (1908).
Taylor = Taylor, A Treatise on International
Public Law (1901).
Testa = Testa, Le Droit Public International
Maritime, traduction du Portugais par
Boutiron (1886).
Twiss = Twiss, The Law of Nations, 2 vols., 2nd
ed. (1884, 1875).
Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908).
U.S. Naval War Code = The Laws and Usages of War at Sea,
published on June 27, 1900, by the
Navy Department, Washington, for the
use of the U. S. Navy and for the
information of all concerned.
Vattel = Vattel, Le Droit Des Gens, 4 books in 2
vols., nouvelle éd. (Neuchâtel,
1773).
Walker = Walker, A Manual of Public International
Law (1895).
Walker, History = Walker, A History of the Law of Nations,
vol. i. (1899).
Walker, Science = Walker, The Science of International
Law (1893).
Wehberg, Kommentar = Wehberg, Kommentar zu dem Haager Abkommen
betreffend die friedliche Erledigung
internationaler Streitigkeiten
(1911).
Westlake = Westlake, International Law, 2 vols.
(1904-1907).
Westlake, Chapters = Westlake, Chapters on the Principles of
International Law (1894).
Wharton = Wharton, A Digest of the International
Law of the United States, 3 vols.
(1886).
Wheaton = Wheaton, Elements of International Law,
8th American ed. by Dana (1866).
Zorn = Zorn, Das Kriegsrecht zu Lande in seiner
neuesten Gestaltung (1906).
Z.V. = Zeitschrift für Völkerrecht und
Bundesstaatsrecht.
CASES CITED
Acteon, the, § 194, p. 243 note 5; § 431, p. 547 note 2
Adonis, the, § 386, p. 472 note 7; § 390, p. 477 note 3
Africa, the, § 413, p. 531 note 1
Alabama, the, § 335, p. 406
Alaska Boundary Dispute (1903), § 14, p. 18
Alcinous _v._ Nygreu, § 101, p. 137 note 7
Alexander, the, § 390, p. 477 note 3
Alexis, the, § 34, p. 40
Andersen _v._ Marten, § 435, p. 555 note 1
André, Major, § 160, p. 198
Ann Green, the, § 92, p. 120 note 2
Anna, the, § 362, p. 443
Anthon _v._ Fisher, § 195, p. 246 note 1
Antoine _v._ Morshead, § 101, p. 137 note 3
Apollo, the, § 427, p. 545 note 1
Aryol, the. _See_ Orel
Asgill, Captain, § 249, p. 307
Askold, the, § 347 (3), p. 422
Astrolabe, the, § 186, p. 233
Atalanta, the, § 409, p. 522; § 412, p. 527 note 2
Aurora, the, § 347 (4), p. 423
Awni-Illa, the, § 213, p. 269
Baltica, the, § 88, p. 110 note 2; § 90, p. 116 note 1; § 91, p. 118
note 2
Bellona, the, § 271, p. 332
Benito Estenger, the, § 91, p. 118 note 2
Bentzen _v._ Boyle, § 90, p. 116 note 4
Bermuda, the, § 385, p. 470; § 400, p. 499 note 1; § 400, p. 500 note 1
Betsey, the, § 385, p. 469 note 1
Bolivia-Peruvian Boundary Dispute (1910), § 16, p. 19
Boudeuse, La. _See_ La Boudeuse
Boussmaker, _ex parte_, § 100_a_, p. 134 note 4; § 101, p. 137 note 7
Boussole, the, § 186, p. 233
Brandon _v._ Curling, § 101, p. 138 note 2
Bundesrath, the, § 400, p. 500; § 401, p. 501 note 1; § 402, p. 502; §
402, p. 503 note 2; § 433, p. 552
Calypso, the, § 384, p. 467 note 3
Camille, the, § 349, p. 426
Captain W. Menzel, the, § 311, p. 376 note [375 note 4]
Carolina, the, § 408, p. 519
Caroline, the (1808), § 409, p. 522 note 1
Caroline, the (1904), § 311, p. 376 note 1
Carthage, the, § 403_a_, p. 506 note 1
Cesarewitch, the, § 347 (4), p. 423
Ceylon, the, § 185, p. 231 note 2
Charlotta, the (1810), § 386, p. 472 note 3
Charlotta, the (1814), § 101, p. 137 note 7
Circassian, the, § 380, p. 463 note 2
Columbia, the, § 382, p. 465 note 3; § 390, p. 477 note 3
Commercen, the, § 401, p. 501 note 2
Cornu _v._ Blackburne, § 195, p. 246 note 1
Cumberland, the, § 186, p. 233 note 2
Daifje, the, § 225, p. 283 note 4
Danous, the, § 88, p. 112 note 1; § 90, p. 115 note 1
De Fortuyn, the, § 181, p. 225 note 1
De Jager _v._ Attorney-General, § 100, p. 132 note 3
De Jarnett _v._ De Giversville, § 100_a_, p. 134 note 1
Dessaix, the, § 194, p. 244
De Wahl _v._ Browne, § 100_a_, p. 135 note 1
De Wütz _v._ Hendricks, § 352, p. 430 note 2
Diana, the (1799), § 189, p. 236
Diana, the (1904), § 347 (3), p. 422
Discovery, the, § 186, p. 232
Doelwijk, the, § 403, p. 505; § 436, p. 556
Dogger Bank, § 5, p. 7 note 2; § 11, p. 15 note 1
Dorsey _v._ Kyle, § 100_a_, p. 134 note 1
Driefontein Consolidated Gold Mines Co. _v._ Janson, § 100_a_, p. 134
note 3
Du Belloix _v._ Lord Waterpark, § 101, p. 137 note 9
Duclair, British coal vessels at, § 365, p. 448
El Arish, Capitulation of, § 229, pp. 287-9
Elba, the, § 348 (2), p. 424
Elisabeth, the, § 189, p. 236
Eliza and Katy, the, § 428, p. 545 note 3
Elizabeth, the, § 386, p. 472 note 8
Elsebe, the, § 425, p. 543 note 2
Emilia, § 88, p. 110 note 2
Espiègle, L'. _See_ L'Espiègle
Esposito _v._ Bowden, § 101, p. 137 notes 1, 7, and 8; p. 138 note 1
Étoile, L'. _See_ L'Étoile
Euridice, the, § 349, p. 426
Exchange, the, § 390, p. 477 note 3
Fanny, the, § 185, p. 232 note 2; § 424, p. 542 note 2
Felicity, the, § 194, p. 243 note 5; § 431, p. 547 note 2
Florida, the, § 362, p. 443
Försigtigheten, the, § 349, p. 426
Fortuna, the, § 386, p. 472 note 4
Fox and others, the, § 434, p. 554 note 1
Franciska, the, § 370, p. 452 note 2; § 380, p. 462 note 2; § 380, p.
464 note 1; § 381, p. 464 note 2; § 382, p. 465
Freden, the, § 360, p. 441 note 1
Frederick Moltke, the, § 387, p. 473 note 3
Freundschaft, the, § 90, p. 116 note 5
Friendship, the, § 408, p. 518; § 412, p. 527 note 2
Furtado _v._ Rodgers, § 101, p. 137 note 1; § 101, p. 138 note 2
Gamba _v._ Le Mesurier, § 101, p. 138 note 2
Gelderland, the, § 354, p. 433
General, the, § 402, p. 502
General Armstrong, the, § 361, p. 442
General Hamilton, the, § 91, p. 118 note 3; § 389, p. 476 note 1
Genoa, Capitulation of, § 226, p. 284 note 1
Georgina, the, § 185, p. 231 note 2
Gerasimo, the, § 371, p. 453 note 3
German contract for cutting trees in French forests, § 282, p. 342
Gist _v._ Mason, § 101, p. 136 note 3
Gloire, La. _See_ La Gloire
Goodrich and De Forest _v._ Gordon, § 195, p. 246 note 1
Griswold _v._ Boddington, § 101, p. 137 note 8
Grossovoi, the, § 347 (3), p. 422
Haimun, the, § 210, p. 262 note 1; § 356, p. 437
Hale, Captain Nathan, § 161, p. 199
Hanger _v._ Abbot, § 100_a_, p. 135 note 1
Hardy, Le. _See_ Le Hardy
Harmony, the, § 88, p. 110 note 2
Henkle _v._ London Exchange Assurance Co., § 101, p. 136 note 3
Henrik and Maria, the, § 375, p. 456 note 1
Herzog, the, § 402, p. 502; § 433, p. 552
Hipsang, the, § 431, p. 548
Hoare _v._ Allan, § 101, p. 137 note 10
Hobbs _v._ Henning, § 402, p. 503 note 4
Hoffnung, the, § 384, p. 467 note 3
Hoop, the, § 100_a_, p. 133 note 2; § 101, p. 137 note 1; § 195, p. 246
note 1
Hope, the, § 412, p. 527 note 3
Hunter, the, § 427, p. 544 note 1
Hurtige Hanne, the, § 386, p. 472 note 5
Hussar, the, § 211, p. 263
Icona, the, § 431, p. 548
Iltis, the, § 348 (1), p. 424
Imina, the, § 399, p. 498 note 1; § 402, p. 503
Indian Chief, the, § 90, p. 116 note 2
Industrie, the, § 410, p. 525 note 1
Inflexible, the, § 223, p. 282
Investigator, the, § 186, p. 233 note 2
Invincible, the, § 223, p. 282
Italy _v._ Peru (Canevaro claim), § 24, p. 31 note 1
Jager. _See_ De Jager
Jakoga, Major, § 161, p. 199 note 1; § 255, p. 315
James Cook, the, § 385, p. 469 note 3
Jameson Raid, § 56, p. 62
Jan Frederick, the, § 91, p. 118 notes 4 and 6; § 92, p. 120 note 2
Jarnett. _See_ De Jarnett
Jemchug, the, § 347 (4), p. 423
Jemmy, the, § 91, p. 118 note 5
Joan, Le. _See_ Le Joan
Johanna Emilie, the, § 88, p. 110 note 2
Jonge Klassina, the, § 90, p. 116 note 5
Jonge Margaretha, the, § 394, p. 486 note 3
Jonge Pieter, the, § 101, p. 137 note 6
Juno, the, § 387, p. 473 note 4
Kellner _v._ Le Mesurier, § 101, p. 138 note 2
Knight Commander, the, § 431, p. 548
Korietz, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3
Kow-shing, the, § 89, p. 114 note 1; § 348, p. 424
La Boudeuse, the, § 186, p. 232
La Gloire, the, § 225, p. 283 note 4
La Paix, the, § 90, p. 117 note 1
La Rosina, the, § 225, p. 283 note 3
La Santissima Trinidad, the, § 334, p. 405
Laura-Louise. _See_ Le Laura-Louise
Lavabre _v._ Wilson, § 101, p. 136 note 3
Le Hardy contre La Voltigeante, § 88, p. 111; § 90, p. 117 note 1
Le Joan, the, § 90, p. 117 note 1
Le Laura-Louise, the, § 90, p. 117 note 1
Lena, the, § 347 (3), p. 422
Le Nicolaüs, the, § 90, p. 117 note 1
L'Espiègle, the, § 362, p. 443
Le Thalia, the, § 90, p. 117 note 1
L'Étoile, the, § 186, p. 232
Leucade, the, § 194, p. 243 note 5; § 431, p. 547 note 2
Lion, the, § 348, p. 424
Lisette, the, § 399, p. 498 note 1
Ludwig, the, § 194, p. 244
Luxor, the, § 404, p. 507; § 437, p. 558
Madison, the, § 409, p. 522 note 2
Madonna delle Gracie, § 101, p. 137 note 4
Malacca, the, § 84, p. 102
Manouba, the, § 413, p. 531 note 1
Margaret, the, § 404, p. 507 note 1
Maria, the (1799), § 422, p. 540 note 1; § 423, p. 541 note 1; § 425, p.
543 note 1; § 434, p. 554 note 1
Maria, the (1805), § 390, p. 477 note 4
Maria _v._ Hall, § 100_a_, p. 134 note 2; § 101, p. 137 note 5
Mashona, the, § 101, p. 137 note 1
Mayer _v._ Reed, § 101, p. 137 note 9
Melville _v._ De Wold, § 101, p. 137 note 7
Mentor, the, § 272, p. 333 note 1
Mercurius, the, § 390, p. 477 note 3
Meteor, the, § 334, p. 405
Minerva, the, § 362, p. 443
Modeste, the, § 360, p. 441 note 1
Montara, the, § 89, p. 114 note 2
Nancy, the (1800), § 404, p. 507 note 1
Nancy, the (1809), § 380, p. 463 note 2
Nancy Court of Appeal, § 172, p. 215
Naniwa, the, § 89, p. 114 note 1; § 348, p. 423
Neptunus, the (1799), § 384, p. 467 note 3
Neptunus, the (1800), § 384, p. 467 note 3
Nereide, the, § 185, p. 232 note 2; § 424, p. 542, note 2
Neutralitet, the, § 386, p. 472 note 9
New York Life Insurance Co. _v._ Buck, § 101, p. 138 note 3
New York Life Insurance Co. _v._ Davis, § 101, p. 138 note 3
New York Life Insurance Co. _v._ Stathem, § 101, p. 138 note 3
New York Life Insurance Co. _v._ Symes, § 101, p. 138 note 3
Niagara, the, § 382, p. 465
Nigretia, the, § 408, p. 519 note 2
North-Eastern Boundary Dispute between Great Britain and the United
States (1831), § 16, p. 19
North German Confederation Volunteer Fleet scheme, § 84, p. 101
Novara, the, § 186, p. 233
Novik, the, § 347 (4), p. 423
Oki, Captain Teisuki, § 161, p. 199 note 1; § 255, p. 315
Oldhamia, the, § 206, p. 256 note 1; § 431, p. 548
Oleg, the, § 347 (4), p. 423
Olinde Rodrigues, the, § 380, p. 463 note 2
Orel (or Aryol), the, § 206, p. 256 note 1
Orinoco Steamship Co., § 16, p. 19
Orozembo, the, § 408, p. 518; § 408, p. 519
Pacifico, Don, § 35, p. 41; § 44, p. 49
Paix, La. _See_ La Paix
Palme, the, § 186, p. 233
Panaghia Rhomba, the, § 390, p. 477 note 3
Paquette Habana, the, § 187, p. 234 note 1
Pascal, the, § 348 (2), p. 424
Peterburg, the, § 84, p. 102
Peterhoff, the, § 373, p. 454; § 385, p. 470; § 400, p. 500 note 1; §
401, p. 501
Phoenix, the, § 90, p. 116 note 4
Planche _v._ Fletcher, § 101, p. 136 note 3
Portland, the, § 90, p. 116 note 5
Postilion, the, § 88, p. 112 note 1; § 90, p. 115 note 1
Potts _v._ Bell, § 101, p. 137 note 1; § 101, p. 138 note 2
Princesse Marie, the, § 431, p. 548
Quang-nam, the, § 410, p. 525, note 1
Ramillies, § 211, p. 263
Rapid, the, § 409, p. 522
Ras-el-Tin Fort, § 223, p. 282
Recovery, the, § 434, p. 554 note 1
Reshitelni, the, § 320, p. 389; § 361, p. 442 note 3
Resolution, the, § 186, p. 232
Reuss, M. de, § 34, p. 40
Richmond, the, § 397, p. 494 note 1
Rolla, the, § 370, p. 452 note 2; § 375, p. 456 note 2
Rose in Bloom, the, § 387, p. 474 note 2
Rosina, La. _See_ La Rosina
St. Kilda, the, § 431, p. 548
St. Nicholas, the, § 428, p. 545 note 4
Samuel, the, § 101, p. 137 note 6
Santissima Trinidad, La. _See_ La Santissima Trinidad
Sarah, the, § 428, p. 545 note 2
Sechs Geschwistern, the, § 91, p. 118 note 5
Seymour _v._ London and Provincial Marine Insurance Co., § 402, p. 504
note [503 note 4]
Shepeler _v._ Durand, § 100_a_, p. 133 note 4
Shepherdess, the, § 386, p. 472 note 6
Sicilian Sulphur Monopoly, § 34, p. 39
Silesian Loan, § 37, p. 44; § 437, p. 557
Smolensk, the, § 84, p. 102
Society for the Propagation of the Gospel _v._ Town of Newhaven, § 99,
p. 130 note 1
Spes and Irene, the, § 386, p. 472 note 10
Springbok, the, § 385, p. 470; § 390, p. 477; § 400, p. 500 note 1; §
401, p. 501
Stackelberg, Baron de, § 37, p. 43
Stephen Hart, the, § 385, p. 470; § 400, p. 499 note 1
Stert, the, § 388, p. 474 note 3
Sutton _v._ Sutton, § 99, p. 130 note 1
Swineherd, the, § 271, p. 332
Sybille, the, § 211, p. 263
Talbot, the, § 348 (2), p. 424
Temeraire, the, § 223, p. 282
Tetardos, the, § 431, p. 548
Teutonia, the, § 101, p. 138 note 1
Thalia, Le. _See_ Le Thalia.
Thea, the, § 431, p. 548
Thirty Hogsheads of Sugar _v._ Boyle, § 90, p. 116 note 4
Trende Sostre, the, § 399, p. 498 note 1
Trent, the, § 408, p. 519 note 3; § 431, p. 530
Twee Gebroeders, the, § 362, p. 443
Variag, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3
Vega, the, § 186, p. 233
Venezuelan Boundary Dispute (1900), § 14, p. 18
Venus, the (1803), § 225, p. 283 note 3
Venus, the (1814), § 88, p. 112 note 1; § 90, p. 116 note 3
Victor, the, § 349, p. 427
Vigilantia, the, § 91, p. 118 note 2
Vorwärts, the, § 194, p. 244
Vrouw Judith, the, § 376, p. 458 note 1; § 384, p. 467 note 3; § 387, p.
474 note 1
Vrow Houwina, the, § 401, p. 501
Vrow Margaretha, the, § 91, p. 118 note 4
Wachuset, the, § 362, p. 443
Wahl. _See_ De Wahl
War Onskan, the, § 432, p. 551 note 3
Washburne, § 157, p. 194
Wells _v._ Williams, § 100_a_, p. 133 note 3
Welvaart van Pillaw, the, § 389 p. 476 note 1
William, the, § 400, p. 499 note 1
Willison _v._ Paterson, § 101, p. 137 note 2
Yangtsze Insurance Association _v._ Indemnity Mutual Marine Assurance
Company, § 407, p. 516 note 1
Young Jacob and Joanna, the, § 187, p. 234 note 2
CONTENTS
OF
THE SECOND VOLUME
PART I
CHAPTER I--AMICABLE SETTLEMENT OF STATE DIFFERENCES
I. _State Differences and their Amicable Settlement in General_
SECT. PAGE
1. Legal and political International Differences 3
2. International Law not exclusively concerned with Legal
Differences 4
3. Amicable in contradistinction to compulsive settlement of
Differences 4
II. _Negotiation_
4. In what Negotiation consists 6
5. International Commissions of Inquiry 6
6. Effect of Negotiation 9
III. _Good Offices and Mediation_
7. Occasions for Good Offices and Mediation 10
8. Right and Duty of offering, requesting, and rendering
Good Offices and Mediation 10
9. Good Offices in contradistinction to Mediation 11
10. Good Offices and Mediation according to the Hague
Arbitration Convention 12
11. Value of Good Offices and Mediation 14
IV. _Arbitration_
12. Conception of Arbitration 16
13. Treaty of Arbitration 16
14. Who is to Arbitrate? 17
15. On what principles Arbitrators proceed and decide 18
16. Binding force of Arbitral Verdict 18
17. What differences can be decided by Arbitration 19
18. Value of Arbitration 22
V. _Arbitration according to the Hague Convention_
19. Arbitral Justice in general 23
20. Arbitration Treaty and appointment of Arbitrators 26
21. Procedure of and before the Arbitral Tribunal 27
22. Arbitral Award 30
23. Binding force of Awards 30
24. Award binding upon Parties only 31
25. Costs of Arbitration 32
25_a_. Arbitration by Summary Procedure 32
CHAPTER II--COMPULSIVE SETTLEMENT OF STATE DIFFERENCES
I. _On Compulsive Means of Settlement of State Differences in General_
26. Conception and kinds of Compulsive Means of Settlement 34
27. Compulsive Means in contradistinction to War 34
28. Compulsive Means in contradistinction to an Ultimatum and
Demonstrations 35
II. _Retorsion_
29. Conception and Character of Retorsion 36
30. Retorsion, when justified 37
31. Retorsion, how exercised 37
32. Value of Retorsion 38
III. _Reprisals_
33. Conception of Reprisals in contradistinction to Retorsion 38
34. Reprisals admissible for all International Delinquencies 39
35. Reprisals admissible for International Delinquencies only 40
36. Reprisals, by whom performed 41
37. Objects of Reprisals 42
38. Positive and Negative Reprisals 44
39. Reprisals must be proportionate 44
40. Embargo 44
41. Reprisals to be preceded by Negotiations and to be stopped
when Reparation is made 46
42. Reprisals during Peace in contradistinction to Reprisals
during War 46
43. Value of Reprisals 46
IV. _Pacific Blockade_
44. Development of practice of Pacific Blockade 48
45. Admissibility of Pacific Blockade 50
46. Pacific Blockade and vessels of third States 51
47. Pacific Blockade and vessels of the blockaded State 52
48. Manner of Pacific Blockade 52
49. Value of Pacific Blockade 53
V. _Intervention_
50. Intervention in contradistinction to Participation in a
difference 54
51. Mode of Intervention 55
52. Time of Intervention 55
PART II--_WAR_
CHAPTER I--ON WAR IN GENERAL
I. _Characteristics of War_
53. War no illegality 59
54. Conception of War 60
55. War a contention 61
56. War a contention between States 62
57. War a contention between States through armed forces 63
58. War a contention between States for the purpose of
overpowering each other 67
59. Civil War 68
60. Guerilla War 70
II. _Causes, Kinds, and Ends of War_
61. Rules of Warfare independent of Causes of War 72
62. Causes of War 73
63. Just Causes of War 74
64. Causes in contradistinction to Pretexts for War 75
65. Different kinds of War 76
66. Ends of War 76
III. _The Laws of War_
67. Origin of the Laws of War 78
68. The latest Development of the Laws of War 79
69. Binding force of the Laws of War 83
IV. _The Region of War_
70. Region of War in contradistinction to Theatre of War 85
71. Particular Region of every War 86
72. Exclusion from Region of War through Neutralisation 88
73. Asserted exclusion of the Baltic Sea from the Region of
War 90
V. _The Belligerents_
74. Qualification to become a Belligerent (_facultas
bellandi_) 90
75. Possibility in contradistinction to qualification to
become a Belligerent 91
76. Insurgents as a Belligerent Power 92
77. Principal and accessory Belligerent Parties 93
VI. _The Armed Forces of the Belligerents_
78. Regular Armies and Navies 94
79. Non-combatant Members of Armed Forces 95
80. Irregular Forces 96
81. Levies _en masse_ 97
82. Barbarous Forces 98
83. Privateers 99
84. Converted Merchantmen 100
85. The Crews of Merchantmen 104
86. Deserters and Traitors 106
VII. _Enemy Character_
87. On Enemy Character in general 106
88. Enemy Character of Individuals 108
89. Enemy Character of Vessels 112
90. Enemy Character of Goods 115
91. Transfer of Enemy Vessels 117
92. Transfer of Goods on Enemy Vessels 119
CHAPTER II--THE OUTBREAK OF WAR
I. _Commencement of War_
93. Commencement of War in General 121
94. Declaration of War 123
95. Ultimatum 125
96. Initiative hostile Acts of War 126
II. _Effects of the Outbreak of War_
97. General Effects of the Outbreak of War 128
98. Rupture of Diplomatic Intercourse and Consular Activity 129
99. Cancellation of Treaties 129
100. Precarious position of Belligerents' subjects on Enemy
Territory 131
100_a_. _Persona standi in judicio_ on Enemy Territory 133
101. Intercourse, especially Trading, between Subjects of
Belligerents 135
102. Position of Belligerents' Property in the Enemy State 139
102_a_. Effect of the Outbreak of War
on Merchantmen 140
CHAPTER III--WARFARE ON LAND
I. _On Land Warfare in General_
103. Aims and Means of Land Warfare 144
104. Lawful and Unlawful Practices of Land Warfare 144
105. Objects of the Means of Warfare 145
106. Land Warfare in contradistinction to Sea Warfare 145
II. _Violence against Enemy Persons_
107. On Violence in general against Enemy Persons 146
108. Killing and Wounding of Combatants 146
109. Refusal of Quarter 147
110. Lawful and Unlawful Means of killing and wounding
Combatants 148
111. Explosive Bullets 149
112. Expanding (Dum-Dum) Bullets 149
113. Projectiles diffusing Asphyxiating or Deleterious Gases 150
114. Violence directed from Air-Vessels 150
115. Violence against non-combatant Members of Armed Forces 151
116. Violence against Private Enemy Persons 151
117. Violence against the Head of the Enemy State and against
Officials in Important Positions 153
III. _Treatment of Wounded, and Dead Bodies_
118. Origin of Geneva Convention 154
119. The Wounded and the Sick 157
120. Medical Units and Establishments, and Material 158
121. Personnel 159
122. Convoys of Evacuation 160
123. Distinctive Emblem 161
124. Treatment of the Dead 162
124_a_. Application of the Geneva Convention, and Prevention
of Abuses 163
124_b_. General provisions of the Geneva Convention 164
IV. _Captivity_
125. Development of International Law regarding Captivity 165
126. Treatment of Prisoners of War 167
127. Who may claim to be Prisoners of War 169
128. Discipline 169
129. Release on Parole 170
130. Bureau of Information 171
131. Relief Societies 171
132. End of Captivity 172
V. _Appropriation and Utilisation of Public Enemy Property_
133. Appropriation of all the Enemy Property no longer
admissible 174
134. Immoveable Public Property 174
135. Immoveable Property of Municipalities, and of Religious,
Charitable, and the like Institutions 175
136. Utilisation of Public Buildings 175
137. Moveable Public Property 176
138. Moveable Property of Municipalities, and of Religious,
Charitable, and the like Institutions 177
139. Booty on the Battlefield 177
VI. _Appropriation and Utilisation of Private Enemy Property_
140. Immoveable Private Property 179
141. Private War Material and Means of Transport 180
142. Works of Art and Science, Historical Monuments 180
143. Other Private Personal Property 180
144. Booty on the Battlefield 181
145. Private Enemy Property brought into a Belligerent's
Territory 182
VII. _Requisitions and Contributions_
146. War must support War 183
147. Requisitions in Kind, and Quartering 185
148. Contributions 186
VIII. _Destruction of Enemy Property_
149. Wanton destruction prohibited 187
150. Destruction for the purpose of Offence and Defence 188
151. Destruction in marching, reconnoitring, and conducting
Transport 188
152. Destruction of Arms, Ammunition, and Provisions 189
153. Destruction of Historical Monuments, Works of Art, and
the like 189
154. General Devastation 190
IX. _Assault, Siege, and Bombardment_
155. Assault, Siege, and Bombardment, when lawful 191
156. Assault, how carried out 193
157. Siege, how carried out 193
158. Bombardment, how carried out 194
X. _Espionage and Treason_
159. Twofold Character of Espionage and Treason 196
160. Espionage in contradistinction to Scouting
and Despatch-bearing 197
161. Punishment of Espionage 198
162. Treason 199
XI. _Ruses_
163. Character of Ruses of War 200
164. Different kinds of Stratagems 201
165. Stratagems in contradistinction to Perfidy 202
XII. _Occupation of Enemy Territory_
166. Occupation as an Aim of Warfare 204
167. Occupation, when effected 206
168. Occupation, when ended 210
169. Rights and Duties in General of the Occupant 210
170. Rights of the Occupant regarding the Inhabitants 211
171. Position of Government Officials and Municipal
Functionaries during Occupation 213
172. Position of Courts of Justice during Occupation 214
CHAPTER IV--WARFARE ON SEA
I. _On Sea Warfare in General_
173. Aims and Means of Sea Warfare 216
174. Lawful and Unlawful Practices of Sea Warfare 217
175. Objects of the Means of Sea Warfare 218
176. Development of International Law regarding Private
Property on Sea 218
177. Declaration of Paris 220
178. The Principle of Appropriation of Private Enemy Vessels
and Enemy Goods thereon 221
179. Impending Codification of Law of Sea Warfare 224
II. _Attack and Seizure of Enemy Vessels_
180. Importance of Attack and Seizure of Enemy Vessels 225
181. Attack, when legitimate 225
182. Attack, how effected 226
182_a_. Submarine Contact Mines 227
183. Duty of giving Quarter 231
184. Seizure 231
185. Effect of Seizure 231
186. Immunity of Vessels charged with Religious, Scientific,
or Philanthropic Mission 232
187. Immunity of Fishing-boats and small boats employed in
local Trade 234
188. Immunity of Merchantmen at the Outbreak of War on their
Voyage to and from a Belligerent's Port 235
189. Vessels in Distress 236
190. Immunity of Hospital and Cartel Ships 236
191. Immunity of Mail-boats and Mail-bags 236
III. _Appropriation, and Destruction of Enemy Merchantmen_
192. Prize Courts 238
193. Conduct of Prize to Port of Prize Court 241
194. Destruction of Prize 242
195. Ransom of Prize 245
196. Loss of Prize, especially Recapture 246
197. Fate of Prize 247
198. Vessels belonging to Subjects of Neutral States, but
sailing under Enemy Flag 248
199. Effect of Sale of Enemy Vessels during War 248
200. Goods sold by and to Enemy Subjects during War 249
IV. _Violence against Enemy Persons_
201. Violence against Combatants 249
202. Violence against Non-combatant Members of Naval Forces 250
203. Violence against Enemy Individuals not belonging to the
Naval Forces 251
V. _Treatment of Wounded and Shipwrecked_
204. Adaptation of Geneva Convention to Sea Warfare 252
205. The Wounded, Sick, and Shipwrecked 253
205_a_. Treatment of the Dead 254
206. Hospital Ships 254
206_a_. Hospital Ships in Neutral Ports 256
206_b_. Sick-Bays 257
207. Distinctive Colour and Emblem of Hospital Ships 258
208. Neutral Vessels assisting the Wounded, Sick, or
Shipwrecked 259
209. The Religious, Medical, and Hospital Staff 260
209_a_. Application of Convention X., and Prevention of
Abuses 260
209_b_. General Provisions of Convention X. 261
VI. _Espionage, Treason, Ruses_
210. Espionage and Treason 262
211. Ruses 262
VII. _Requisitions, Contributions, Bombardment_
212. Requisitions and Contributions upon Coast Towns 264
213. Bombardment of the Enemy Coast 266
VIII. _Interference with Submarine Telegraph Cables_
214. Uncertainty of Rules concerning Interference with
Submarine Telegraph Cables 271
CHAPTER V--NON-HOSTILE RELATIONS OF BELLIGERENTS
I. _On non-hostile Relations in General between Belligerents_
215. _Fides etiam hosti servanda_ 273
216. Different kinds of Non-hostile Relations 274
217. Licences to Trade 275
II. _Passports, Safe-conducts, Safeguards_
218. Passports and Safe-conducts 276
219. Safeguards 277
III. _Flags of Truce_
220. Meaning of Flags of Truce 278
221. Treatment of Unadmitted Flag-bearers 279
222. Treatment of Admitted Flag-bearers 279
223. Abuse of Flag of Truce 281
IV. _Cartels_
224. Definition and Purpose of Cartels 282
225. Cartel Ships 283
V. _Capitulations_
226. Character and Purpose of Capitulations 284
227. Contents of Capitulations 285
228. Form of Capitulations 286
229. Competence to conclude Capitulations 287
230. Violation of Capitulations 289
VI. _Armistices_
231. Character and Kinds of Armistices 290
232. Suspensions of Arms 291
233. General Armistices 291
234. Partial Armistices 293
235. Competence to conclude Armistices 293
236. Form of Armistices 294
237. Contents of Armistices 294
238. Commencement of Armistices 296
239. Violation of Armistices 297
240. End of Armistices 299
CHAPTER VI--MEANS OF SECURING LEGITIMATE WARFARE
I. _On Means in General of securing Legitimate Warfare_
241. Legitimate and Illegitimate Warfare 300
242. How Legitimate Warfare is on the whole secured 301
II. _Complaints, Good Offices and Mediation, Intervention_
243. Complaints lodged with the Enemy 302
244. Complaints lodged with Neutrals 303
245. Good Offices and Mediation 303
246. Intervention on the part of Neutrals 304
III. _Reprisals_
247. Reprisals between Belligerents in contradistinction to
Reprisals in time of Peace 305
248. Reprisals admissible for every Illegitimate Act of
Warfare 305
249. Danger of Arbitrariness in Reprisals 306
250. Proposed Restriction of Reprisals 308
IV. _Punishment of War Crimes_
251. Conception of War Crimes 309
252. Different kinds of War Crimes 310
253. Violations of Rules regarding Warfare 310
254. Hostilities in Arms by Private Individuals 312
255. Espionage and War Treason 313
256. Marauding 316
257. Mode of Punishment of War Crimes 316
V. _Taking of Hostages_
258. Former Practice of taking Hostages 317
259. Modern Practice of taking Hostages 317
VI. _Compensation_
259_a_. How the Principle of Compensation for Violations of
the Laws of War arose 319
259_b_. Compensation for Violations of the Hague Regulations 320
CHAPTER VII--END OF WAR, AND POSTLIMINIUM
I. _On Termination of War in General_
260. War a Temporary Condition 322
261. Three Modes of Termination of War 322
II. _Simple Cessation of Hostilities_
262. Exceptional Occurrence of simple Cessation of
Hostilities 323
263. Effect of Termination of War through simple Cessation of
Hostilities 324
III. _Subjugation_
264. Subjugation in contradistinction to Conquest 325
265. Subjugation a formal End of War 326
IV. _Treaty of Peace_
266. Treaty of Peace the most frequent End of War 327
267. Peace Negotiations 328
268. Preliminaries of Peace 329
269. Form and Parts of Peace Treaties 330
270. Competence to conclude Peace 330
271. Date of Peace 331
V. _Effects of Treaty of Peace_
272. Restoration of Condition of Peace 332
273. Principle of _Uti Possidetis_ 334
274. Amnesty 334
275. Release of Prisoners of War 335
276. Revival of Treaties 336
VI. _Performance of Treaty of Peace_
277. Treaty of Peace, how to be carried out 337
278. Breach of Treaty of Peace 338
VII. _Postliminium_
279. Conception of Postliminium 339
280. Postliminium according to International Law, in
contradistinction to Postliminium according to
Municipal Law 340
281. Revival of the Former Condition of Things 341
282. Validity of Legitimate Acts 342
283. Invalidity of Illegitimate Acts 343
284. No Postliminium after Interregnum 343
PART III--_NEUTRALITY_
CHAPTER I--ON NEUTRALITY IN GENERAL
I. _Development of the Institution of Neutrality_
285. Neutrality not practised in Ancient Times 347
286. Neutrality during the Middle Ages 348
287. Neutrality during the Seventeenth Century 349
288. Progress of Neutrality during the Eighteenth Century 350
289. First Armed Neutrality 352
290. The French Revolution and the Second Armed Neutrality 354
291. Neutrality during the Nineteenth Century 357
292. Neutrality in the Twentieth Century 359
II. _Characteristics of Neutrality_
293. Conception of Neutrality 361
294. Neutrality an Attitude of Impartiality 362
295. Neutrality an Attitude creating Rights and Duties 363
296. Neutrality an Attitude of States 363
297. No Cessation of Intercourse during Neutrality between
Neutrals and Belligerents 365
298. Neutrality an Attitude during War (Neutrality in Civil
War) 365
299. Neutrality to be recognised by the Belligerents 367
III. _Different Kinds of Neutrality_
300. Perpetual Neutrality 368
301. General and Partial Neutrality 369
302. Voluntary and Conventional Neutrality 369
303. Armed Neutrality 369
304. Benevolent Neutrality 370
305. Perfect and Qualified Neutrality 370
306. Some Historical Examples of Qualified Neutrality 371
IV. _Commencement and End of Neutrality_
307. Neutrality commences with Knowledge of the War 373
308. Commencement of Neutrality in Civil War 374
309. Establishment of Neutrality by Declarations 374
310. Municipal Neutrality Laws 375
311. British Foreign Enlistment Act 375
312. End of Neutrality 377
CHAPTER II--RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS
I. _Rights and Duties deriving from Neutrality_
313. Conduct in General of Neutrals and Belligerents 378
314. What Rights and Duties of Neutrals and of Belligerents
there are 378
315. Rights and Duties of Neutrals contested 379
316. Contents of Duty of Impartiality 381
317. Duty of Impartiality continuously growing more intense 382
317_a_. Neutrality Conventions of the Second Peace Conference 383
318. Contents of Duty of Belligerents to treat Neutrals in
accordance with their Impartiality 384
319. Contents of Duty not to suppress Intercourse between
Neutrals and the Enemy 385
II. _Neutrals and Military Operations_
320. Hostilities by and against Neutrals 386
321. Furnishing Troops and Men-of-War to Belligerents 389
322. Subjects of Neutrals fighting among Belligerent Forces 390
323. Passage of Troops and War Material through Neutral
Territory 391
324. Passage of Wounded through Neutral Territory 392
325. Passage of Men-of-War 393
326. Occupation of Neutral Territory by Belligerents 394
327. Prize Courts on Neutral Territory 395
328. Belligerent's Prizes in Neutral Ports 395
III. _Neutrals and Military Preparations_
329. Depôts and Factories on Neutral Territory 397
330. Levy of Troops, and the like 398
331. Passage of Bodies of Men intending to Enlist 399
332. Organisation of Hostile Expeditions 400
333. Use of Neutral Territory as Base of Naval
Operations 400
334. Building and Fitting-out of Vessels intended for Naval
Operations 405
335. The _Alabama_ Case and the Three Rules of Washington 406
IV. _Neutral Asylum to Land Forces and War Material_
336. On Neutral Asylum in General 409
337. Neutral Territory and Prisoners of War 410
338. Fugitive Soldiers on Neutral Territory 413
339. Neutral Territory and Fugitive Troops 413
340. Neutral Territory and Non-combatant Members of
Belligerent Forces 415
341. Neutral Territory and War Material of Belligerents 415
V. _Neutral Asylum to Naval Forces_
342. Asylum to Naval Forces in contradistinction to Asylum to
Land Forces 417
343. Neutral Asylum to Naval Forces Optional 417
344. Asylum to Naval Forces in Distress 418
345. Exterritoriality of Men-of-War during Asylum 419
346. Facilities to Men-of-War during Asylum 420
347. Abuse of Asylum to be prohibited 420
348. Neutral Men-of-War as an Asylum 423
348_a_. Neutral Territory and Shipwrecked Soldiers 424
VI. _Supplies and Loans to Belligerents_
349. Supply on the part of Neutrals 426
350. Supply on the part of Subjects of Neutrals 427
351. Loans and Subsidies on the part of Neutrals 430
352. Loans and Subsidies on the part of Subjects of
Neutrals 430
VII. _Services to Belligerents_
353. Pilotage 432
354. Transport on the part of Neutrals 433
355. Transport on the part of Neutral Merchantmen and by
neutral rolling stock 434
356. Information regarding Military and Naval Operations 434
VIII. _Violation of Neutrality_
357. Violation of Neutrality in the narrower and in the wider
sense of the Term 438
358. Violation in contradistinction to End of Neutrality 439
359. Consequences of Violations of Neutrality 439
360. Neutrals not to acquiesce in Violations of Neutrality
committed by a Belligerent 440
361. Case of the _General Armstrong_ 442
362. Mode of exacting Reparation from Belligerents for
Violations of Neutrality 442
363. Negligence on the part of Neutrals 444
363_a_. Laying of Submarine Contact Mines by Neutrals 445
IX. _Right of Angary_
364. The Obsolete Right of Angary 446
365. The Modern Right of Angary 447
366. Right of Angary concerning Neutral Rolling Stock 448
367. Right of Angary not deriving from Neutrality 449
CHAPTER III--BLOCKADE
I. _Conception of Blockade_
368. Definition of Blockade 450
369. Blockade, Strategic and Commercial 452
370. Blockade to be Universal 452
371. Blockade, Outwards and Inwards 453
372. What Places can be Blockaded 453
373. Blockade of International Rivers 454
374. Justification of Blockade 455
II. _Establishment of Blockade_
375. Competence to establish Blockade 456
376. Declaration and Notification of Blockade 456
377. Length of Time for Egress of Neutral Vessels 459
378. End of Blockade 460
III. _Effectiveness of Blockade_
379. Effective in contradistinction to Fictitious Blockade 461
380. Condition of Effectiveness of Blockade 461
381. Amount of Danger which creates Effectiveness 464
382. Cessation of Effectiveness 464
IV. _Breach of Blockade_
383. Definition of Breach of Blockade 466
384. No Breach without Notice of Blockade 466
385. The former practice as to what constitutes an Attempt to
break Blockade 468
385_a_. What constitutes an Attempt to break Blockade
according to the Declaration of London 470
386. When Ingress is not considered Breach of Blockade 472
387. When Egress is not considered Breach of Blockade 473
388. Passage through Unblockaded Canal no Breach of Blockade 474
V. _Consequences of Breach of Blockade_
389. Capture of Blockade-running Vessels 475
390. Penalty for Breach of Blockade 476
CHAPTER IV--CONTRABAND
I. _Conception of Contraband_
391. Definition of Contraband of War 480
392. Absolute and conditional Contraband, and free Articles 481
393. Articles absolutely Contraband 483
394. Articles conditionally Contraband 485
395. Hostile Destination essential to Contraband 490
396. Free Articles 492
396_a_. Articles destined for the use of the carrying Vessel,
or to aid the Wounded 493
397. Contraband Vessels 494
II. _Carriage of Contraband_
398. Carriage of Contraband Penal by the Municipal Law of
Belligerents 495
399. Direct Carriage of Contraband 497
400. Circuitous Carriage of Contraband 499
401. Indirect Carriage of Contraband (Doctrine of Continuous
Transports) 500
402. The Case of the _Bundesrath_ 502
403. Continental support to the Doctrine of Continuous
Transports 504
403_a_. Partial Recognition by the Declaration of London of
the Doctrine of Continuous Voyages 505
III. _Consequences of Carriage of Contraband_
404. Capture for Carriage of Contraband 506
405. Penalty for Carriage of Contraband according to the
Practice hitherto prevailing 508
406. Penalty according to the Declaration of London for
Carriage of Contraband 511
406_a_. Seizure of Contraband without Seizure of the Vessel 513
CHAPTER V--UNNEUTRAL SERVICE
I. _The Different Kinds of Unneutral Service_
407. Unneutral Service in general 515
408. Carriage of Persons for the Enemy 517
409. Transmission of Intelligence to the Enemy 521
410. Unneutral Service creating Enemy Character 524
II. _Consequences of Unneutral Service_
411. Capture for Unneutral Service 526
412. Penalty for Unneutral Service 527
413. Seizure of Enemy Persons and Despatches without Seizure
of Vessel 530
CHAPTER VI--VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS
I. _Visitation_
414. Conception of Right of Visitation 533
415. Right of Visitation, by whom, when, and where exercised 534
416. Only Private Vessels may be Visited 535
417. Vessels under Convoy 535
418. No Universal Rules regarding Mode of Visitation 537
419. Stopping of Vessels for the Purpose of Visitation 538
420. Visit 538
421. Search 539
422. Consequences of Resistance to Visitation 540
423. What constitutes Resistance 541
424. Sailing under Enemy Convoy equivalent to Resistance 542
425. Resistance by Neutral Convoy 543
426. Deficiency of Papers 543
427. Spoliation, Defacement, and Concealment of Papers 544
428. Double and False Papers 545
II. _Capture_
429. Grounds and Mode of Capture 546
430. Effect of Capture of Neutral Vessels, and their Conduct
to Port 546
431. Destruction of Neutral Prizes 547
432. Ransom and Recapture of Neutral Prizes 551
433. Release after Capture 551
III. _Trial of captured Neutral Vessels_
434. Trial of Captured Vessels a Municipal Matter 553
435. Result of Trial 555
436. Trial after Conclusion of Peace 555
437. Protests and Claims of Neutrals after Trial 557
CHAPTER VII--THE INTERNATIONAL PRIZE COURT
I. _Proposals for International Prize Courts_
438. Early Projects 559
439. German Project of 1907 561
440. British Project of 1907 562
441. Convention XII. of the Second Peace Conference 563
II. _Constitution and Competence of the International Prize Court_
442. Personnel 565
443. Deciding Tribunal 566
444. Administrative Council and International Bureau 569
445. Agents, Counsel, Advocates, and Attorneys 569
446. Competence 569
447. What Law to be applied 571
III. _Procedure in the International Prize Court_
448. Entering of Appeal 572
449. Pleadings and Discussion 574
450. Judgment 575
451. Expenses and Costs 576
IV. _Action in Damages instead of Appeal_
452. Reason for Action in Damages instead of Appeal 577
453. Procedure if Action for Damages is brought 578
APPENDICES
I. Declaration of Paris of 1856 583
II. Declaration of St. Petersburg of 1868 584
III. Declaration concerning Expanding Bullets of 1899 585
IV. Declaration concerning the Diffusion of Asphyxiating Gases
of 1899 586
V. Geneva Convention of 1906 587
VI. Final Act of the Second Hague Peace Conference of 1907 591
I. Convention for the Pacific Settlement of International
Disputes 592
II. Convention respecting the Limitation of the Employment
of Force for the Recovery of Contract Debts 601
III. Convention relative to the Opening of Hostilities 602
IV. Convention concerning the Laws and Customs of War on
Land 603
V. Convention respecting the Rights and Duties of Neutral
Powers and Persons in War on Land 609
VI. Convention relative to the Status of Merchantmen at the
Outbreak of Hostilities 612
VII. Convention relative to the Conversion of Merchantmen
into Men-of-War 613
VIII. Convention relative to the Laying of Automatic Submarine
Contact Mines 614
IX. Convention respecting Bombardment by Naval Forces in
Time of War 616
X. Convention for the Adaptation of the Principles of the
Geneva Convention to Maritime Warfare 617
XI. Convention relative to certain Restrictions on the
Exercise of the Right of Capture in Maritime War 621
XII. Convention concerning the Establishment of an
International Prize Court 622
XIII. Convention concerning the Rights and Duties of Neutral
Powers in Maritime War 629
XIV. Declaration concerning the Prohibition of the Discharge
of Projectiles and Explosives from Balloons 632
XV. Draft Convention concerning the Creation of a Judicial
Arbitration Court 632
VII. Declaration of London of 1909 (including the Report of the
Drafting Committee) 637
VIII. Additional Protocol, of 1910, to the Hague Convention
concerning the Establishment of an International Prize
Court 665
IX. Foreign Enlistment Act, 1870 667
X. The Naval Prize Act, 1864 674
XI. The Prize Courts Act, 1894 682
XII. Naval Prize Bill of 1911 683
XIII. Geneva Convention Act, 1911 690
INDEX 691
PART I
SETTLEMENT OF STATE DIFFERENCES
CHAPTER I
AMICABLE SETTLEMENT OF STATE DIFFERENCES
I
STATE DIFFERENCES AND THEIR AMICABLE SETTLEMENT IN GENERAL
Twiss, II. §§ 1-3--Ullmann, §§ 148-150--Bulmerincq in
Holtzendorff, IV. pp. 5-12--Heffter, §§ 105-107--Rivier, II. §
57--Bonfils, No. 930--Despagnet, No. 469--Pradier-Fodéré, IV. Nos.
2580-2583--Calvo, III. §§ 1670-1671--Martens, II. §§
101-102--Fiore, II. Nos. 1192-1198, and Code, No. 1246--Wagner,
_Zur Lehre von den Streiterledigungsmitteln des Völkerrechts_
(1900.)
[Sidenote: Legal and political International Differences.]
§ 1. International differences can arise from a variety of grounds.
Between the extremes of a simple and comparatively unimportant act of
discourtesy committed by one State against another, on the one hand,
and, on the other, so gross an insult as must necessarily lead to war,
there are many other grounds varying in nature and importance. State
differences are correctly divided into legal and political. Legal
differences arise from acts for which States have to bear
responsibility, be it acts of their own or of their Parliaments,
judicial and administrative officials, armed forces, or individuals
living on their territory.[1] Political differences are the result of a
conflict of political interests. But although this distinction is
certainly theoretically correct and of practical importance, frequently
in practice a sharp line cannot be drawn. For in many cases States
either hide their political interests behind a claim for an alleged
injury, or make a positive, but comparatively insignificant, injury a
pretext for the carrying out of political ends. Nations which have been
for years facing each other armed to the teeth, waiting for a convenient
moment to engage in hostilities, are only too ready to obliterate the
boundary line between legal and political differences. Between such
nations a condition of continuous friction prevails which makes it
difficult, if not impossible, in every case which arises to distinguish
the legal from the political character of the difference.
[Footnote 1: See above, vol. I. § 149.]
[Sidenote: International Law not exclusively concerned with Legal
Differences.]
§ 2. It is often maintained that the Law of Nations is concerned with
legal differences only, political differences being a matter not of law
but of politics. Now it is certainly true that only legal differences
can be settled by a juristic decision of the underlying juristic
question, whatever may be the way in which such decision is arrived at.
But although political differences cannot be the objects of juristic
decision, they can be settled short of war by amicable or compulsive
means. And legal differences, although within the scope of juristic
decision, can be of such kinds as to prevent the parties from submitting
them to such decision, without being of a nature that they cannot be
settled peaceably at all. Moreover, although the distinction between
legal and political differences is certainly correct in theory and of
importance in practice, nevertheless, in practice, a sharp line
frequently cannot be drawn, as has just been pointed out. Therefore the
Law of Nations is not exclusively concerned with legal differences, for
in fact all amicable means of settling legal differences are likewise
means of settling political differences, and so are two of the
compulsive means of settling differences--namely, pacific blockade and
intervention.
[Sidenote: Amicable in contradistinction to compulsive settlement of
Differences.]
§ 3. Political and legal differences can be settled either by amicable
or by compulsive means. There are four kinds of amicable means--namely,
negotiation between the parties, good offices of third parties,
mediation, and arbitration.[2] And there are also four kinds of
compulsive means--namely, retorsion, reprisals (including embargo),
blockade, and intervention of third States. No State is allowed to make
use of compulsive means before negotiation has been tried, but there is
no necessity for the good offices or mediation of third States, and
eventually arbitration,[3] to be tried beforehand also. Frequently,
however, States nowadays make use of the so-called Compromise Clause[4]
in their treaties, stipulating thereby that any differences arising
between the contracting parties with regard to matters regulated by, or
to the interpretation of, the respective treaties shall be settled
through the amicable means of arbitration to the exclusion of all
compulsive means. And there are even a few examples of States which have
concluded treaties stipulating that all differences, without exception,
that might arise between them should be amicably settled by
arbitration.[5] These exceptions, however, only confirm the rule that no
international legal duty exists for States to settle their differences
amicably through arbitration, or even to try to settle them in this way,
before they make use of compulsive means.
[Footnote 2: Some writers (see Hall, § 118, and Heilborn, _System_, p.
404) refuse to treat negotiation, good offices, and mediation as means
of settling differences, because they cannot find that these means are
of any legal value, it being in the choice of the parties whether or not
they agree to make use of them. They forget, however, the enormous
political value of these means, which alone well justifies their
treatment; moreover, there are already some positive legal rules in
existence concerning these means--see Hague Arbitration Treaty, articles
2-7 and 9-36--and others will in time, no doubt, be established.]
[Footnote 3: Except in the case of contract debts claimed from the
Government of one country by the Government of another country as being
due to its nationals. See Convention II.; above, vol. I. § 135, p. 192;
and below, § 19.]
[Footnote 4: See above, vol. I. § 553.]
[Footnote 5: See below, § 17.]
II
NEGOTIATION
Twiss, II. § 4--Lawrence, § 220--Moore, VII. § 1064--Taylor, §§
359-360--Heffter, § 107--Bulmerincq in Holtzendorff, IV. pp.
13-17--Ullmann, § 151--Bonfils, Nos. 931-932--Despagnet, Nos. 470
and 477--Pradier-Fodéré, VI. Nos. 2584-2587--Rivier, II. §
57--Calvo, III. §§ 1672-1680--Martens, II. § 103--Nys, III. pp.
56-58.
[Sidenote: In what Negotiation consists.]
§ 4. The simplest means of settling State differences, and that to which
States always resort before they make use of other means, is
negotiation. It consists in such acts of intercourse between the parties
as are initiated and directed for the purpose of effecting an
understanding and thereby amicably settling the difference that has
arisen between them.[6] Negotiation as a rule begins by a State
complaining of a certain act, or lodging a certain claim with another
State. The next step is a statement from the latter making out its case,
which is handed over to the former. It may be that the parties come at
once to an understanding through this simple exchange of statements. If
not, other acts may follow according to the requirements of the special
case. Thus, for instance, other statements may be exchanged, or a
conference of diplomatic envoys, or even of the heads of the States at
variance, may be arranged for the purpose of discussing the differences
and preparing the basis for an understanding.
[Footnote 6: See above, vol. I. §§ 477-482, where the international
transaction of negotiation in general is discussed.]
[Sidenote: International Commissions of Inquiry.]
§ 5. The contracting Powers of the Hague Convention for the peaceful
settlement of international differences deem it expedient and desirable
that, if the ordinary diplomatic negotiation has failed to settle such
differences as do not involve either honour or vital interests, the
parties should, so far as circumstances allow, institute an
International Commission of Inquiry[7] for the purpose of elucidating
the facts underlying the difference by an impartial and conscientious
investigation. The Convention of 1899 had only six articles (9-14) on
the subject. The Second Conference of 1907, profiting by the experience
gained by the Commission of Inquiry in the Dogger Bank[8] case, the
first and as yet only occasion on which a Commission of Inquiry was
instituted, remodelled the institution, and Convention I. treats of the
subject in twenty-eight articles (9-36). The more important stipulations
are the following:--
(1) The Commissions are to be constituted by a special treaty of the
parties, which is to determine the facts to be examined, the manner and
period within which the Commission is to be formed, the extent of the
powers of the Commissioners, the place where the Commission is to meet
and whether it may remove to another place, the languages to be used by
the Commission and parties, and the like (articles 9-10). If the treaty
does not determine the place where the Commission is to sit, it shall
sit at the Hague; if the treaty does not specify the languages to be
used, the question shall be decided by the Commission; and if the treaty
does not stipulate the manner in which the Commission is to be formed,
it shall be formed in the manner determined by articles 45 and 57 of
Convention I. (articles 11-12). The parties may appoint Assessors,
Agents, and Counsel (articles 10, 13, 14).
(2) The International Bureau of the Permanent Court of Arbitration acts
as Registry for the Commissions which sit at the Hague; but if they sit
elsewhere, a Secretary-General is to be appointed whose office serves as
Registry (articles 15-16).
(3) The parties may agree upon the rules of procedure to be followed by
the Commission, but if they do not provide such rules themselves, the
rules of procedure, comprised in articles 19-32 are applicable (article
17), and, in any case, the Commission is to settle such details of the
procedure as are either not covered by the treaty of the parties or by
articles 19-32, and is to arrange all the formalities required for
dealing with the evidence (article 18).
(4) The Report of the Commission is to be signed by all its members; but
if a member refuses to sign, the fact is to be mentioned, and the
validity of the Report is not thereby affected (article 33). The Report
of the Commission is read in open Court, the Agents and Counsel of the
parties being present or duly summoned to attend; a copy of the Report
is furnished to each party (article 34). This Report is absolutely
limited to a statement of the facts, it has in no way the character of
an Arbitral Award, and it leaves to the parties entire freedom as to the
effect to be given to the statement of the facts (article 35).
(5) Each party pays its own expenses and an equal share of the expenses
of the Commission (article 36).
[Footnote 7: See Herr, _Die Untersuchungskommissionen der Haager
Friedenskonferenzen_ (1911); Meurer, I. pp. 129-165; Higgins, pp.
167-170; Lémonon, pp. 77-91: Wehberg, _Kommentar_, pp. 21-46; Nippold,
I. pp. 23-35; Scott, _Conferences_, pp. 265-273; Politis in _R.G._ XIX.
(1912), pp. 149-188.]
[Footnote 8: On October 24, 1904, during the Russo-Japanese war, the
Russian Baltic fleet, which was on its way to the Far East, fired into
the Hull fishing fleet off the Dogger Bank, in the North Sea, whereby
two fishermen were killed and considerable damage was done to several
trawlers. Great Britain demanded from Russia not only an apology and
ample damages, but also severe punishment of the officer responsible for
the outrage. As Russia maintained that the firing was caused by the
approach of some Japanese torpedo-boats, and that she could therefore
not punish the officer in command, the parties agreed upon the
establishment of an International Commission of Inquiry, which, however,
was charged not only to ascertain the facts of the incident but also to
pronounce an opinion concerning the responsibility for the incident and
the degree of blame attaching to the responsible persons. The Commission
consisted of five naval officers of high rank--namely, one British, one
Russian, one American, one French, and one Austrian, who sat at Paris in
February 1905. The report of the Commission states that no torpedo-boats
had been present, that the opening of fire on the part of the Baltic
fleet was not justifiable, that Admiral Rojdestvensky, the commander of
the Baltic fleet, was responsible for the incident, but that these facts
were "not of a nature to cast any discredit upon the military qualities
or the humanity of Admiral Rojdestvensky or of the _personnel_ of his
squadron." In consequence of the last part of this report Great Britain
could not insist upon any punishment to be meted out to the responsible
Russian Admiral, but Russia paid a sum of £65,000 to indemnify the
victims of the incident and the families of the two dead fishermen. See
Martens, _N.R.G._ 2nd Ser. XXXIII. (1906), pp. 641-716, And Mandelstam
in _R.G._ XII. (1905), pp. 161 and 351.]
[Sidenote: Effect of Negotiation.]
§ 6. The effect of negotiation can be to make it apparent that the
parties cannot come to an amicable understanding at all. But frequently
the effect is that one of the parties acknowledges the claim of the
other party. Again, sometimes negotiation results in a party, although
it does not acknowledge the opponent's alleged rights, waiving its own
rights for the sake of peace and for the purpose of making friends with
the opponent. And, lastly, the effect of negotiation can be a compromise
between the parties. Frequently the parties, after having come to an
understanding, conclude a treaty in which they embody the terms of the
understanding arrived at through negotiation. The practice of everyday
life shows clearly the great importance of negotiation as a means of
settling international differences. The modern development of
international traffic and transport, the fact that individuals are
constantly travelling on foreign territories, the keen interest taken by
all powerful States in colonial enterprise, and many other factors, make
the daily rise of differences between States unavoidable. Yet the
greater number of such differences are settled through negotiation of
some kind or other.
III
GOOD OFFICES AND MEDIATION
Maine, pp. 207-228--Phillimore, III. §§ 3-5--Twiss, II. §
7--Lawrence, § 220--Moore, VII. §§ 1065-1068--Taylor, §§
359-360--Wheaton, § 73--Bluntschli, §§ 483-487--Heffter, §§
107-108--Bulmerincq in Holtzendorff, IV. pp. 17-30--Ullmann, §§
152-153--Bonfils, Nos. 932'1-943'1--Despagnet, Nos.
471-476--Pradier-Fodéré, VI. Nos. 2588-2593--Mérignhac, I. pp.
429-447--Rivier, II. § 58--Nys, III. pp. 59-61--Calvo, III. §§
1682-1705--Fiore, III. Nos. 1199-1201, and Code, Nos.
1248-1293--Martens, II. § 103--Holls, _The Peace Conference at the
Hague_ (1900), pp. 176-203--Zamfiresco, _De la médiation_
(1911)--Politis in _R.G._ XVII. (1910), pp. 136-163.
[Sidenote: Occasions for Good Offices and Mediation.]
§ 7. When parties are not inclined to settle their differences by
negotiation, or when they have negotiated without effecting an
understanding, a third State can procure a settlement through its good
offices or its mediation, whether only one or both parties have asked
for the help of the third State or the latter has spontaneously offered
it. There is also possible a collective mediation, several States acting
at the same time as mediators. It is further possible for a mediatorial
Conference or Congress to meet for the purpose of discussing the terms
of an understanding between the conflicting parties. And it must be
especially mentioned that good offices and mediation are not confined to
the time before the differing parties have appealed to arms; they can
also be offered and sought during hostilities for the purpose of
bringing the war to an end. It is during war in particular that good
offices and mediation are of great value, neither of the belligerents as
a rule being inclined to open peace negotiations on his own account.
[Sidenote: Right and duty of offering, requesting, and rendering Good
Offices and Mediation.]
§ 8. As a rule, no duty exists for a third State to offer its good
offices or mediation, or to respond to a request of the conflicting
States for such, nor is it, as a rule, the duty of the conflicting
parties themselves to ask or to accept a third State's good offices and
mediation. But by special treaty such duty can be stipulated. Thus, for
instance, by article 8 of the Peace Treaty of Paris of March 30, 1856,
between Austria, France, Great Britain, Prussia, Russia, Sardinia, and
Turkey, it was stipulated that, in case in the future such difference as
threatened peace should arise between Turkey and one or more of the
signatory Powers, the parties should be obliged,[9] before resorting to
arms, to ask for the mediation of the other signatory Powers. Thus,
further, article 12 of the General Act of the Berlin Congo Conference of
1885 stipulates that, in case a serious difference should arise between
some of the signatory Powers as regards the Congo territories, the
parties should, before resorting to arms, be obliged to ask the other
signatory Powers for their mediation. And lately the Hague Conventions
for the peaceful settlement of international differences have laid down
some stipulations respecting the right and duty of good offices and
mediation, which will be found below in § 10.
[Footnote 9: But Italy did not comply with this stipulation before she
declared war against Turkey in September 1911.]
[Sidenote: Good Offices in contradistinction to Mediation.]
§ 9. Diplomatic practice frequently does not distinguish between good
offices and mediation. But although good offices can easily develop into
mediation, they must not be confounded with it. The difference between
them is that, whereas good offices consist in various kinds of action
tending to call negotiations between the conflicting States into
existence, mediation consists in a direct conduct of negotiations
between the differing parties on the basis of proposals made by the
mediator. Good offices seek to induce the conflicting parties, who are
either not at all inclined to negotiate with each other or who have
negotiated without effecting an understanding, to enter or to re-enter
into such negotiations. Good offices can also consist in advice, in
submitting a proposal of one of the parties to the other, and the like,
but they never take part in the negotiations themselves. On the other
hand, the mediator is the middleman who does take part in the
negotiations. He makes certain propositions on the basis of which the
States at variance may come to an understanding. He even conducts the
negotiations himself, always anxious to reconcile the opposing claims
and to appease the feeling of resentment between the parties. All the
efforts of the mediator may often, of course, be useless, the differing
parties being unable or unwilling to consent to an agreement. But if an
understanding is arrived at, the position of the mediator as a party to
the negotiation, although not a participator in the difference,
frequently becomes clearly apparent either by the drafting of a special
act of mediation which is signed by the States at variance and the
mediator, or by the fact that in the convention between the conflicting
States, which stipulates the terms of their understanding, the mediator
is mentioned.
[Sidenote: Good Offices and Mediation according to the Hague Arbitration
Convention.]
§ 10. The Hague Convention for the peaceful settlement of international
differences[10] undertakes in articles 2-8 the task of making the
signatory Powers have recourse more frequently than hitherto to good
offices and mediation; it likewise recommends a new and particular form
of mediation. Its rules are the following:--
[Footnote 10: See Meurer, I. pp. 104-128; Higgins, p. 167; Barclay,
_Problems_, pp. 191-197; Lémonon, pp. 69-73; Wehberg, _Kommentar_, pp.
10-21; Nippold, I. pp. 21-22; Scott, _Conferences_, pp. 256-265.]
(1) The contracting Powers agree to have recourse, before they appeal to
arms, as far as circumstances allow, to good offices or mediation
(article 2). And independently of this recourse, they consider it
expedient and desirable that contracting Powers who are strangers to
the dispute should, on their own initiative, offer their good offices or
mediation (article 3). A real legal duty to offer good offices or
mediation is not thereby created; only the expediency and desirability
of such offer are recognised. In regard to the legal duty of conflicting
States to ask for good offices or mediation, it is obvious that,
although literally such duty is agreed upon, the condition "as far as
circumstances allow" makes it more or less illusory, as it is in the
discretion of the parties to judge for themselves whether or not the
circumstances of the special case allow their having recourse to good
offices and mediation.
(2) The contracting Powers agree that (article 3) a right to offer good
offices or mediation exists for those of them who are strangers to a
dispute, and that this right exists also after the conflicting parties
have appealed to arms. Consequently, every contracting Power, when at
variance with another, be it before or after the outbreak of
hostilities, is in duty bound to receive an offer made for good offices
or mediation, although it need not accept such offer. And it is
especially stipulated that the exercise of the right to offer good
offices or mediation may never be regarded by the conflicting States as
an unfriendly act (article 3). It is, further, stipulated that the
contracting Powers consider it their duty in a serious conflict to
remind the parties of the Permanent Court of Arbitration, and that the
advice to have recourse to this Court may only be considered as an
exercise of good offices (article 48, paragraphs 1 and 2). And, finally,
in case of dispute between two Powers, one of them may always address to
the International Bureau of the Permanent Court of Arbitration a note
containing a declaration that it would be ready to submit the dispute to
arbitration, whereupon the Bureau must at once inform the other Power of
this declaration (article 48, paragraphs 3 and 4).
(3) Mediation is defined (article 4) as reconciliation of the opposing
claims and appeasement of the feelings of resentment between the
conflicting States, and it is specially emphasised that good offices and
mediation have exclusively the character of advice.
(4) The acceptance of mediation--and, of course, of good offices, which
is not mentioned--does not (article 7) have the effect of interrupting,
delaying, or hindering mobilisation or other preparatory measures for
war, or of interrupting military operations when war has broken out
before the acceptance of mediation, unless there should be an agreement
to the contrary.
(5) The functions of the mediator are at an end (article 5) when once it
is stated, either by one of the conflicting parties or by the mediator
himself, that the means of reconciliation proposed by him are not
accepted.
(6) A new and particular form of mediation is recommended by article 8.
Before appealing to arms the conflicting States choose respectively a
State as umpire, to whom each intrusts the mission of entering into
direct communication with the umpire chosen by the other side for the
purpose of preventing the rupture of pacific relations. The period of
the mandate extends, unless otherwise stipulated, to thirty days, and
during such period the conflicting States cease from all direct
communication on the matter in dispute, which is regarded as referred
exclusively to the mediating umpires, who must use their best efforts to
settle the difference. Should such mediation not succeed in bringing the
conflicting States to an understanding, and should, consequently, a
definite rupture of pacific relations take place, the chosen umpires are
jointly charged with the task of taking advantage of any opportunity to
restore peace.
[Sidenote: Value of Good Offices and Mediation.]
§ 11. The value of good offices and mediation for the amicable
settlement of international conflicts, be it before or after the parties
have appealed to arms, cannot be over-estimated. Hostilities have been
frequently prevented through the authority and the skill of mediators,
and furiously raging wars have been brought to an end through good
offices and mediation of third States.[11] Nowadays the importance of
these means of settlement of international differences is even greater
than in the past. The outbreak of war is under the circumstances and
conditions of our times no longer a matter of indifference to all except
the belligerent States, and no State which goes to war knows exactly how
far such war may affect its very existence. If good offices and
mediation are interposed at the right moment, they will in many cases
not fail to effect a settlement of the conflict. The stipulations of the
Hague Convention for the peaceful adjustment of differences have greatly
enhanced the value of good offices and mediation by giving a legal right
to Powers, strangers to the dispute, to offer their good offices and
mediation before and during hostilities.
[Footnote 11: See the important cases of mediation discussed by Calvo,
III. §§ 1684-1700, and Bonfils, Nos. 936-942. From our own days the case
of the Dogger Bank incident of 1904 may be quoted as an example, for it
was through the mediation of France that Great Britain and Russia agreed
upon the establishment of an International Commission of Inquiry. (See
p. 7, note 2.) And the good offices of the President of the United
States of America were the means of inducing Russia and Japan, in August
1905, to open the negotiations which actually led to the conclusion of
the Peace of Portsmouth on September 5, 1905.]
IV
ARBITRATION
Grotius, II. c. 23, § 8--Vattel, II. § 329--Hall, § 119--Westlake,
I. pp. 332-356--Lawrence, § 221--Phillimore, III. §§ 3-5--Twiss,
II. § 5--Taylor, §§ 357-358--Wharton, III. § 316--Moore, VII. §§
1069-1080--Bluntschli, §§ 488-498--Heffter, § 109--Bulmerincq in
Holtzendorff, IV. pp. 30-58--Ullmann, §§ 154-156--Bonfils, Nos.
944-969--Despagnet, Nos. 722-741--Pradier-Fodéré, VI. Nos.
2602-2630--Mérignhac, I. pp. 448-485--Rivier, II. § 59--Calvo,
III. §§ 1706-1806--Fiore, II. Nos. 1202-1215, and Code, Nos.
1294-1380--Nys, III. pp. 65-80--Martens, II. § 104--Rouard de
Card, _L'arbitrage international_ (1876)--Mérignhac, _Traité
théorique et pratique de l'arbitrage_ (1895)--Moore, _History and
Digest of the Arbitrations to which the United States has been a
Party_, 6 vols. (1898)--Darby, _International Arbitration_, 4th
ed. (1904)--Dumas, _Les sanctions de l'arbitrage international_
(1905), and in A.J. V. (1911), pp. 934-957--Nippold, Die
_Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten_
(1907)--Reinsch in A.J. V. (1911), pp. 604-614--Scott,
_Conferences_, pp. 188-253--Lapradelle et Politis, _Recueil des
arbitrages internationaux_, I. (1798-1855), (1905)--Fried,
_Handbuch der Friedensbewegung_, 2nd ed. (1911), pp.
135-184--Morris, _International Arbitration and Procedure_
(1911)--Balch, _International Courts of Arbitration_ (4th ed.,
with an introduction and additional notes by Thomas Willing Balch,
1912).
[Sidenote: Conception of Arbitration.]
§ 12. Arbitration is the name for the determination of differences
between States through the verdict of one or more umpires chosen by the
parties. As there is no central political authority above the Sovereign
States, and no such International Court as could exercise jurisdiction
over them, State differences, unlike differences between private
individuals, cannot as a rule be obligatorily settled in courts of
justice. The only way in which a settlement of State differences through
a verdict may be arrived at is by the conflicting States voluntarily
consenting to submit themselves to a verdict of one or more umpires
chosen by themselves for that purpose.
[Sidenote: Treaty of Arbitration.]
§ 13. It is, therefore, necessary for such conflicting States as intend
to have the conflict determined by arbitration to conclude a treaty by
which they agree to this course. Such treaty of arbitration involves the
obligation of both parties to submit in good faith to the decision of
the arbitrators. Frequently a treaty of arbitration will be concluded
after the outbreak of a difference, but it also frequently happens that
States concluding treaties stipulate therein by the so-called Compromise
Clause,[12] that any difference arising between the parties respecting
matters regulated by such treaty shall be determined by arbitration. Two
or more States can also conclude a so-called general treaty of
arbitration, or treaty of permanent arbitration, stipulating that all or
certain kinds of differences in future arising between them shall be
settled by this method. Thus article 7 of the Commercial Treaty between
Holland and Portugal[13] of July 5, 1894, contains such a general treaty
of arbitration, as it stipulates arbitration not only for differences
respecting matters of commerce, but for all kinds of differences arising
in the future between the parties, provided these differences do not
concern their independence or autonomy. Until the Hague Peace Conference
of 1899, however, general treaties of arbitration were not numerous. But
public opinion everywhere was aroused in favour of general arbitration
treaties through the success of this conference, with the result that
from 1900 to the present day many general arbitration treaties have been
concluded.[14]
[Footnote 12: See above, § 3.]
[Footnote 13: See Martens, _N.R.G._ 2nd Ser. XXII. p. 590.]
[Footnote 14: See below, § 17.]
[Sidenote: Who is to arbitrate?]
§ 14. States which conclude an arbitration treaty have to agree upon the
arbitrators. If they choose a third State as arbitrator, they have to
conclude a treaty (_receptum arbitri_) with such State, by which they
appoint the chosen State and by which such State accepts the
appointment. The appointed State chooses on its own behalf those umpires
who actually serve as arbitrators. It can happen that the conflicting
States choose a head of a third State as arbitrator. But such head never
himself investigates the matter; he chooses one or more individuals,
who make a report and propose a verdict, which he pronounces. And,
further, the conflicting States may agree to entrust the arbitration to
any other individual or to a body of individuals, a so-called
Arbitration Committee or Commission. Thus the arbitration of 1900 in
regard to the Venezuelan Boundary Dispute between Great Britain,
Venezuela, and the United States was conducted by a Commission, sitting
at Paris, consisting of American and English members and the Russian
Professor von Martens as President. And the Alaska Boundary Dispute
between Great Britain and the United States was settled in 1903, through
the award of a Commission, sitting at London, consisting of American and
Canadian members, with Lord Alverstone, Lord Chief Justice of England,
as President.
[Sidenote: On what principles Arbitrators proceed and decide.]
§ 15. The treaty of arbitration must stipulate the principles according
to which the arbitrators have to give their verdict. These principles
may be the general rules of International Law, but they may also be the
rules of any Municipal Law chosen by the conflicting States, or rules of
natural equity, or rules specially stipulated in the treaty of
arbitration for the special case.[15] And it can also happen that the
treaty of arbitration stipulates that the arbitrators shall compromise
the conflicting claims of the parties without resorting to special rules
of law. The treaty of arbitration, further, as a rule, stipulates the
procedure to be followed by the arbitrators who are investigating and
determining the difference. If a treaty of arbitration does not lay down
rules of procedure, the arbitrators themselves have to work out such
rules and to communicate them to the parties.
[Footnote 15: See below, § 335, concerning the "Three rules of
Washington."]
[Sidenote: Binding force of Arbitral Verdict.]
§ 16. An arbitral verdict is final if the arbitration treaty does not
stipulate the contrary, and the verdict given by the arbitrators is
binding upon the parties. As, however, no such central authority exists
above the States as could execute the verdict against a State refusing
to submit, it is in such a case the right of the other party to enforce
the arbitral decision by compulsion. Yet it is obvious that an arbitral
verdict is binding only under the condition[16] that the arbitrators
have in every way fulfilled their duty as umpires and have been able to
find their verdict in perfect independence. Should they have been bribed
or not followed their instructions, should their verdict have been given
under the influence of coercion of any kind, or should one of the
parties have intentionally and maliciously led the arbitrators into an
essential material error, the arbitral verdict would have no binding
force whatever. Thus the award given in 1831 by the King of Holland in
the North-Eastern Boundary Dispute between Great Britain and the United
States of America was not considered binding by the parties because the
arbitrator had transgressed his powers.[17] For the same reason, Bolivia
refused in 1910 to submit to the award of the President of Argentina in
her boundary dispute with Peru.[18] And in October 1910, the Permanent
Court of Arbitration at the Hague, deciding the case of the United
States of America against the United States of Venezuela concerning the
claims of the Orinoco Steamship Company, annulled,[19] with regard to
certain points, a previous arbitration award given by Mr. Barge.
[Footnote 16: See Donker Curtius and Nys in _R.I._ 2nd Ser. XII. (1910),
pp. 5-34 and 595-641.]
[Footnote 17: See Moore, VII. § 1082, and Moore, _Arbitrations_, I. pp.
81-161.]
[Footnote 18: See Fiore in _R.G._ XVII. (1910), pp. 225-256.]
[Footnote 19: See Martens, _N.R.G._ 3rd Ser. IV. (1911), p. 79.]
[Sidenote: What differences can be decided by Arbitration.]
§ 17. It is often maintained that every possible difference between
States could not be determined by arbitration, and, consequently,
efforts are made to distinguish those groups of State differences which
are determinable by arbitration from others. Now although all States may
never consent to have all possible differences decided by arbitration,
theoretically there is no reason for a distinction between differences
decidable and undecidable through arbitration. For there can be no doubt
that, the consent of the parties once given, every possible difference
might be settled through arbitration, either by the verdict being based
on rules of International Law, or rules of natural equity, or by
opposing claims being compromised. But, differing from the theoretical
question as to what differences are and are not determinable by
arbitration, is the question as to what kind of State differences
_ought_ always to be settled in this manner. The latter question has
been answered by article 38 (formerly 16) of the Hague Convention for
the peaceful adjustment of international differences, the contracting
Powers therein recognising arbitration as the most efficacious, and at
the same time the most equitable, means of determining differences of a
judicial character in general, and in especial differences regarding the
interpretation or application of international treaties. But future
experience must decide whether the signatory Powers will in practice
always act according to this distinction.
However this may be, when, in 1903, Great Britain and France, following
the suggestion of this article 38 (formerly 16), concluded a treaty in
which they agreed to settle by arbitration all such differences of a
legal nature as do not affect their vital interests, their independence,
or their honour, many other States followed the lead. Great Britain, in
the same and the following years, entered into such arbitration treaties
with Spain, Italy, Germany, Sweden, Norway, Portugal, Switzerland,
Austria-Hungary, Holland, Denmark, the United States of America,
Colombia, and Brazil. All these agreements were concluded for five
years only, but those which have since expired have all been renewed for
another period of five years.
Yet there is a flaw in all these treaties, because the decision as to
whether a difference is of a legal nature or not, is left to the
discretion of the parties. Cases have happened in which one of the
parties has claimed to have a difference settled by arbitration on
account of its legal nature, whereas the other party has denied the
legal nature of the difference and, therefore, refused to go to
arbitration. For this reason the arbitration treaties signed on August
3, 1911, between the United States of America and Great Britain and
between the United States of America and France are epoch making, since
article 3 provides that, in cases where the parties disagree as to
whether or not a difference is subject to arbitration under the treaty
concerned, the question shall be submitted to a joint High Commission of
Inquiry; and that, if all, or all but one, of the members of such
Commission decide the question in the affirmative, the case shall be
settled by arbitration. Article 3 has, however, been struck out by the
American Senate, with the consequence that these treaties have lost
their intrinsic value, even should they be ratified.
It should be mentioned that, whereas most arbitration treaties limit
arbitration in one or more ways, exempting cases which concern the
independence, the honour, or the vital interests of the parties,
Argentina[20] and Chili in 1902, Denmark and Holland in 1903, Denmark
and Holland in 1905, Denmark and Portugal in 1907, Argentina and Italy
in 1907, the Central American Republics of Costa Rica, Guatemala,
Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in
1907 entered into general arbitration treaties according to which all
differences without any exception shall be settled by arbitration.[21]
[Footnote 20: Earlier than this, on July 23, 1898--see Martens, _N.R.G._
2nd Ser. XXIX. p. 137--Argentina and Italy, and on November 9, 1899--see
Martens, _N.R.G._ 2nd Ser. XXXII. (1905), p. 404--Argentina and Paraguay
had concluded treaties according to which all differences without
exception shall be settled by arbitration. See also above, § 3,
concerning the Compromise Clause.]
[Footnote 21: A list of all the arbitration treaties which have been
entered into by the several States since the First Hague Peace
Conference of 1899, is to be found in Fried, _op. cit._ p. 185.]
[Sidenote: Value of Arbitration.]
§ 18. There can be no doubt that arbitration is, and every day becomes
more and more, of great importance. History proves that in antiquity and
during the Middle Ages arbitration was occasionally[22] made use of as a
peaceable means of settling international differences. But, although an
International Law made its appearance in modern times, during the
sixteenth, seventeenth, and eighteenth centuries very few cases of
arbitration occurred. It was not until the end of the eighteenth century
that arbitration was frequently made use of. There are 177 cases from
1794 to the end of 1900.[23] This number shows that the inclination of
States to agree to arbitration has increased, and there can be no doubt
that arbitration has a great future. States and the public opinion of
the whole world become more and more convinced that there are a good
many international differences which may well be determined by
arbitration without any danger whatever to the national existence,
independence, dignity, and prosperity of the States concerned. A net of
so-called Peace Societies has spread over the whole world, and their
members unceasingly work for the promotion of arbitration. The
Parliaments of several countries have repeatedly given their vote in
favour of arbitration; and the Hague Peace Conference of 1899 created a
Permanent Court of Arbitration, a step by which a new epoch of the
development of International Law was inaugurated. It is certain that
arbitration will gradually increase its range, although the time is by
no means in sight when all international differences will find their
settlement by arbitration.
[Footnote 22: See examples in Calvo, III. §§ 1707-1712, and in Nys, _Les
origines du droit international_ (1894), pp. 52-61.]
[Footnote 23: See La Fontaine's _Histoire sommaire et chronologique des
arbitrages internationaux_ in _R.I._ 2nd Ser. IV. pp. 349, 558, 623. See
also Scott, _Conferences_, pp. 188-252.]
The novel institution of the Permanent Court of Arbitration at the Hague
stands at present in the cross-fire of impatient pacifists and cynical
pessimists. Because a number of wars have been fought since the
establishment of the Permanent Court, impatient pacifists are in despair
and consider the institution of the Court of Arbitration a failure,
whereas cynical pessimists triumphantly point to the fact that the
millennium would seem to be as far distant as ever. The calm observer of
the facts who possesses insight in the process of historical
development, has no cause to despair, for, compared with some
generations ago, arbitration is an established force which daily gains
more power and influence. And when once a real International Court[24]
of justice is established side by side with the Permanent Court of
Arbitration, the chances of arbitration will be greatly increased.
[Footnote 24: See above, vol. I. § 476_b_.]
V
ARBITRATION ACCORDING TO THE HAGUE CONVENTION
Ullmann, §§ 155-156--Bonfils, Nos. 953'1-955'1--Despagnet, Nos.
742-746_bis_--Mérignhac, I. pp. 486-539--Holls, _The Peace
Conference at the Hague_ (1900)--Martens, _La conférence de la
paix à la Haye_ (1900)--Mérignhac, _La conférence internationale
de la paix_ (1900)--Fried, _Die zweite Haager Konferenz_
(1908)--Meurer, I. pp. 299-372--Scott, _Conferences_, pp.
286-385--Higgins, pp. 164-179--Lémonon, pp. 188-219--Nippold, I.
pp. 36-231--Wehberg, _Kommentar_, pp. 46-164.
[Sidenote: Arbitral Justice in general.]
§ 19. Of the 97 articles of the Hague Convention for the peaceful
adjustment of international differences, no fewer than 44--namely,
articles 37-90--deal with arbitration in three chapters, headed "On
Arbitral Justice," "On the Permanent Court of Arbitration," and "On
Arbitral Procedure." The first chapter, articles 37-40, contains rules
on arbitral justice in general, which, however, with one exception, are
not of a legal but of a merely doctrinal character. Thus the definition
in article 37, first paragraph, "International arbitration has for its
object the determination of controversies between States by judges of
their own choice and upon the basis of respect for law," is as doctrinal
as the assertion of article 38: "In questions of a judicial character,
and especially in questions regarding the interpretation or application
of International Treaties or Conventions, arbitration is recognised by
the contracting Powers as the most efficacious and at the same time the
most equitable method of deciding controversies which have not been
settled by diplomatic methods. Consequently it would be desirable that,
in disputes regarding the above-mentioned questions, the contracting
Powers should, if the case arise, have recourse to arbitration, in so
far as circumstances permit." And the provision of article 39, that an
agreement of arbitration may be made respecting disputes already in
existence or arising in the future and may relate to every kind of
controversy or solely to controversies of a particular character, is as
doctrinal as the reservation of article 40, which runs: "Independently
of existing general or special treaties imposing the obligation to have
recourse to arbitration on the part of any of the contracting Powers,
these Powers reserve to themselves the right to conclude, either before
the ratification of the present Convention or afterwards, new general or
special agreements with a view to extending obligatory arbitration to
all cases which they consider possible to submit to it." The only rule
of legal character is that of article 37 (second paragraph), enacting
the already existing customary rule of International Law, that "the
agreement of arbitration implies the obligation to submit in good faith
to the arbitral sentence."
On the signatory Powers no obligation whatever to submit any difference
to arbitration is imposed. Even differences of a judicial character, and
especially those regarding the interpretation or application of
treaties, for the settlement of which the signatory Powers, in article
38, acknowledge arbitration as the most efficacious and at the same time
the most equitable method, need not necessarily be submitted to
arbitration.
Yet the principle of compulsory arbitration for a limited number of
international differences was by no means negatived by the Hague Peace
Conferences, especially not by the Second Conference.
The principle found, firstly, indirect recognition by the Convention
respecting the Limitation of the Employment of Force for the Recovery of
Contract Debts.[25] Since article I of this Convention stipulates that
recourse to the employment of force for the recovery of contract debts
claimed from the Government of one country by the Government of another
country as being due to its nationals is not allowed unless the debtor
State refuses arbitration, compulsory arbitration has in this instance
been victorious.
[Footnote 25: See above, vol. I. § 135, p. 192, where the so-called
Drago doctrine is likewise discussed.]
Secondly, although it was not possible to agree upon some stipulation
embodying compulsory arbitration for a number of differences in
Convention I., the principle itself was fully recognised, and the Final
Act of the Second Peace Conference includes, therefore, the Declaration
that the Conference "is unanimous (1) in admitting the principle of
compulsory arbitration; (2) in declaring that certain disputes, in
particular those relating to the interpretation and application of
international agreements, may be submitted to compulsory arbitration
without any restriction."
The above shows reasonable grounds for the hope and expectation that one
of the future Peace Conferences will find a way out of the difficulty
and come to an agreement stipulating compulsory arbitration for a
limited number of international differences.[26]
[Footnote 26: See Scott, _Conferences_, pp. 319-385, where the
proceedings of both the First and Second Peace Conferences concerning
compulsory arbitration are sketched in a masterly and very lucid style.]
[Sidenote: Arbitration Treaty and appointment of Arbitrators.]
§ 20. According to article 52 the conflicting States which resort to
arbitration shall sign a special Act, the _Compromis_, in which is
clearly defined: the subject of the dispute; the time allowed for
appointing the arbitrators; the form, order, and time in which the
communications referred to in article 63 of Convention I. must be made;
the amount of the sum which each party must deposit in advance to defray
the expenses; the manner of appointing arbitrators (if there be
occasion); any special powers which may eventually belong to the
Tribunal, where it shall meet, the languages to be used, and any special
conditions upon which the parties may agree. Should, however, the
conflicting States prefer it, the Permanent Court at the Hague is
competent to draw up and settle the _Compromis_, and the Court is
likewise in some other cases competent to settle the _Compromis_
(articles 53-54). The parties may agree to have recourse to the
Permanent Court of Arbitration which was instituted by the Hague
Convention and regarding which details have been given above, Vol. I.,
§§ 472-476, but they may also assign the arbitration to one or several
arbitrators chosen by them either from the members of the Permanent
Court of Arbitration or elsewhere (article 55). If they choose a head of
a State as arbitrator, the whole of the arbitral procedure is to be
determined by him (article 56). If they choose several arbitrators, an
umpire is to preside, but in case they have not chosen an umpire, the
arbitrators are to elect one of their own number as president (article
57). If the _Compromis_ is settled by a Commission, as contemplated by
article 54 of Convention I., and in default of an agreement to the
contrary, the Commission itself shall form the Arbitration Tribunal
(article 58). In case of death, resignation, or disability of one of the
arbitrators from any cause, his place is to be filled in accordance with
the method of his appointment (article 59). The place of session of the
arbitrators is to be determined by the parties; but if they fail to do
it, the place of session is to be the Hague, and the place of session
may not be changed by the arbitrators without the consent of the
parties; the Tribunal may only sit in the territory of a third State
with the latter's consent (article 60). The International Bureau of the
Court at the Hague is authorised to put its offices and its staff at the
disposal of the contracting Powers in case the parties have preferred to
bring their dispute before arbitrators other than the Permanent Court of
Arbitration (article 47).
[Sidenote: Procedure of and before the Arbitral Tribunal.]
§ 21. The parties may agree upon such rules of arbitral procedure as
they like. If they fail to stipulate special rules of procedure, the
following rules are valid, whether the parties have brought their case
before the Permanent Court of Arbitration or have chosen other
arbitrators (article 51):--
(1) The parties may appoint counsel or advocates for the defence of
their rights before the tribunal. They may also appoint delegates or
special agents to attend the tribunal for the purpose of serving as
intermediaries between them and the tribunal. The members of the
Permanent Court, however, may not act as agents, counsel, or advocates
except on behalf of the Power which has appointed them members of the
Court (article 62).
(2) The tribunal selects the languages for its own use and for use
before it, unless the _Compromis_ has specified the languages to be
employed (article 61).
(3) As a rule the arbitral procedure is divided into the two distinct
phases of written pleadings and oral discussions. The written pleadings
consist of the communication by the respective agents to the members of
the tribunal and to the opposite party of cases, counter-cases, and, if
necessary, replies; the parties must annex thereto all papers and
documents relied on in the case. This communication is to be made either
directly or through the intermediary of the International Bureau, in the
order and within the time fixed by the _Compromis_ (article 63). A duly
certified copy of every document produced by one party must be
communicated to the other party (article 64). Unless special
circumstances arise, the tribunal does not meet until the pleadings are
closed (article 65).
(4) Upon the written pleadings follows the oral discussion in Court; it
consists of the oral development of the pleas of the parties (article
63, last paragraph). The discussions are under the direction of the
president of the tribunal, and are public only if it be so decided by
the tribunal with the consent of the parties. Minutes with regard to the
discussion are to be drawn up by secretaries appointed by the president,
and only these official minutes, which are signed by the president and
one of the secretaries, are authentic (article 66). During the
discussion in Court the agents and counsel of the parties are authorised
to present to the tribunal orally all the arguments they may think
expedient in support of their case. They are likewise authorised to
raise objections and to make incidental motions, but the decisions of
the tribunal on these objections and motions are final and cannot form
the subject of any further discussion (articles 70, 71). Every member of
the tribunal may put questions to the agents and counsel of the parties
and demand explanations from them on doubtful points, but neither such
questions nor other remarks made by members of the tribunal may be
regarded as expressions of opinion by the tribunal in general or the
respective member in particular (article 72). The tribunal may always
require from the agents of the parties all necessary explanations and
the production of all acts, and in case of refusal the tribunal takes
note of it in the minutes (articles 69).
When the competence of the tribunal is doubted on one or more points,
the tribunal itself is authorised to decide whether it is or is not
competent, by means of interpretation of the _Compromis_ as well as the
other papers and documents which may be adduced in the matter, and by
means of the application of the principles of law (article 73).
During the discussion in Court--article 67 says, "After the close of the
pleadings"--the tribunal is competent to refuse admittance to all such
fresh acts and documents as one party may desire to submit to the
tribunal without the consent of the other party (article 67).
Consequently, the tribunal must admit fresh acts and documents when both
parties agree to their submission. On the other hand, the tribunal is
always competent to take into consideration fresh papers and documents
to which its attention is drawn by the agents or counsel of the parties,
and in such cases the tribunal may require production of the papers and
documents, but it is at the same time obliged to make them known to the
other party (article 68).
The parties must supply the tribunal, within the widest limits they may
think practicable, with all the information required for deciding the
dispute (article 75). For the service of all notices by the tribunal in
the territory of a third contracting Power, the tribunal applies direct
to the Government of such Power. The same rule is valid in the case of
steps being necessary in order to procure evidence on the spot. The
requests for this purpose are to be executed by the Power concerned with
the means at its disposal according to its Municipal Law; they may not
be rejected unless the Power concerned considers them of such a nature
as to impair its own sovereign rights or its safety. Instead, however,
of making a direct application to a third Power, the tribunal is always
entitled to have recourse to the intermediary of the Power on whose
territory it sits (article 76).
As soon as the agents and counsel of the parties have submitted all
explanations and evidence in support of their case, the president
declares the discussion closed (article 77).
[Sidenote: Arbitral Award.]
§ 22. The arbitral award is given after a deliberation which has taken
place behind closed doors, and the proceedings remain secret (article
78). The members of the tribunal vote, and the majority of the votes
makes the decision of the tribunal. The decision, accompanied by a
statement of the considerations upon which it is based, is to be drawn
up in writing, to recite the names of the arbitrators, and to be signed
by the president and the registrar or the secretary acting as the
registrar (article 79). The verdict is read out at a public meeting of
the tribunal, the agents and counsel of the parties being present or
having been duly summoned to attend (article 80).
[Sidenote: Binding force of Awards.]
§ 23. The award, when duly pronounced and notified to the agents of the
parties, decides the dispute finally and without appeal (article 81).
Any dispute arising between the parties as to the interpretation or
execution of the award must, in default of an agreement to the
contrary, be submitted to the tribunal which pronounced it (article 82).
The parties may, however, beforehand stipulate in the _Compromis_ the
possibility of an appeal. In such case, and the _Compromis_ failing to
stipulate the contrary, the demand for a rehearing of the case must be
addressed to the tribunal which pronounced the award. The demand for a
rehearing of the case may only be made on the ground of the discovery of
some new fact such as may exercise a decisive influence on the award,
and which at the time when the discussion was closed was unknown to the
tribunal as well as to the appealing party. Proceedings for a rehearing
may only be opened after a decision of the tribunal expressly stating
the existence of a new fact of the character described, and declaring
the demand admissible on this ground. The treaty of arbitration must
stipulate the period of time within which the demand for a rehearing
must be made (article 83).--
The Hague Convention contains no stipulation whatever with regard to the
question whether the award is binding under all circumstances and
conditions, or whether it is only binding when the tribunal has in every
way fulfilled its duty and has been able to find its verdict in perfect
independence. But it is obvious that the award has no binding force
whatever if the tribunal has been bribed or has not followed the
parties' instructions given by the treaty of agreement; if the award was
given under the influence of undue coercion; or, lastly, if one of the
parties has intentionally and maliciously led the tribunal into an
essential material error. (See above, § 16).
[Sidenote: Award binding upon Parties only.]
§ 24. The award[27] is binding only upon the parties to the proceedings.
But when there is a question of interpreting a convention to which
other States than the States at variance are parties, the conflicting
States have to inform all the contracting Powers of such convention in
good time. Each of these States has a right to intervene in the case
before the tribunal, and, if one or more avail themselves of this right,
the interpretation contained in the award is as binding upon them as
upon the conflicting parties (article 84).
[Footnote 27: The awards hitherto given are enumerated above, vol. I. §
476, p. 521, but the case of Italy _v._ Peru (Canevaro claim, May 3,
1912) must now be added.]
[Sidenote: Costs of Arbitration.]
§ 25. Each party pays its own expenses and an equal share of those of
the tribunal[28] (article 85).
[Footnote 28: See details in Wehberg, _Kommentar_, pp. 155-158.]
[Sidenote: Arbitration by Summary Procedure.]
§ 25_a_. With a view to facilitating the working of arbitration in
disputes of minor importance admitting an abbreviated procedure, the
contracting Powers propose the following rules for a summary procedure
exclusively in writing:--
Each of the conflicting parties appoints an arbitrator, and these
arbitrators need not necessarily be members of the Permanent Court of
Arbitration. The two arbitrators thus appointed choose a third as
umpire, who need not be a member of the Permanent Court either. But if
they cannot agree upon an umpire, each of them proposes two candidates
taken from the general list of the Permanent Court of Arbitration
exclusive of such members as are either appointed by the conflicting
States or are their nationals, and it is to be determined by lot which
of the candidates shall be the umpire. This umpire presides over the
tribunal which gives its decisions by a majority of votes (article 87).
In the absence of an agreement concerning the matter, the tribunal
settles the time within which the two parties must submit their
respective cases to it (article 88). Each party is represented by an
agent who serves as intermediary between the tribunal and his party
(article 89). The proceedings are conducted exclusively in writing. Each
party, however, is entitled to ask that witnesses and experts should be
called, and the tribunal has the right to demand oral explanations from
the agents as well as from the experts and witnesses whose appearance in
Court it may consider useful (article 90). Articles 52 to 85 of
Convention I. apply so far as they are not inconsistent with the rules
laid down in articles 87 to 90 (article 80).
CHAPTER II
COMPULSIVE SETTLEMENT OF STATE DIFFERENCES
I
ON COMPULSIVE MEANS OF SETTLEMENT OF STATE DIFFERENCES IN GENERAL
Lawrence, § 136--Westlake, II. p. 6--Phillimore, III. §
7--Pradier-Fodéré, VI. No. 2632--Despagnet, No. 483--Fiore, II.
No. 1225, and Code, Nos. 1381-1385--Taylor, § 431--Nys, III. pp.
83-94.
[Sidenote: Conception and kinds of Compulsive Means of Settlement.]
§ 26. Compulsive means of settlement of differences are measures
containing a certain amount of compulsion taken by a State for the
purpose of making another State consent to such settlement of a
difference as is required by the former. There are four different kinds
of such means in use--namely, retorsion, reprisals (including embargo),
pacific blockade, and intervention. But it must be mentioned that,
whereas every amicable means of settling differences might find
application in every kind of difference, not every compulsive means is
applicable in every difference. For the application of retorsion is
confined to political, and that of reprisals to legal differences.
[Sidenote: Compulsive Means in contradistinction to War.]
§ 27. War is very often enumerated among the compulsive means of
settling international differences. This is in a sense correct, for a
State might make war for no other purpose than that of compelling
another State to settle a difference in the way required before war was
declared. Nevertheless, the characteristics of compulsive means of
settling international differences make it a necessity to draw a sharp
line between these means and war. It is, firstly, characteristic of
compulsive means that, although they frequently consist of harmful
measures, they are neither by the conflicting nor by other States
considered as acts of war, and consequently all relations of peace, such
as diplomatic and commercial intercourse, the execution of treaties, and
the like, remain undisturbed. Compulsive means are in theory and
practice considered peaceable, although not amicable, means of settling
international differences. It is, further, characteristic of compulsive
means that they are even at their worst confined to the application of
certain harmful measures only, whereas belligerents in war may apply any
amount and any kinds of force, with the exception only of those methods
forbidden by International Law. And, thirdly, it is characteristic of
compulsive means that their application must cease as soon as their
purpose is realised by the compelled State declaring its readiness to
settle the difference in the way requested by the compelling State;
whereas, war once broken out, a belligerent is not obliged to lay down
arms if and when the other belligerent is ready to comply with the
request made before the war. As war is the _ultima ratio_ between
States, the victorious belligerent is not legally prevented from
imposing upon the defeated any conditions he likes.
[Sidenote: Compulsive Means in contradistinction to an Ultimatum and
Demonstrations.]
§ 28. The above-described characteristics of compulsive means for the
settlement of international differences make it necessary to mention the
distinction between such means and an _ultimatum_. The latter is the
technical term for a written communication by one State to another which
ends amicable negotiations respecting a difference, and formulates, for
the last time and categorically, the demands to be fulfilled if other
measures are to be averted. An _ultimatum_ is, theoretically at least,
not a compulsion, although it can practically exercise the function of
a compulsion, and although compulsive means, or even war, can be
threatened through the same communication in the event of a refusal to
comply with the demand made.[29] And the same is valid with regard to
withdrawal of diplomatic agents, to military and naval demonstrations,
and the like, which some publicists[30] enumerate among the compulsive
means of settlement of international differences. Although these steps
may contrive, indirectly, the settlement of differences, yet they do not
contain in themselves any compulsion.
[Footnote 29: See Pradier-Fodéré, VI. No. 2649, and below, § 95.]
[Footnote 30: See Taylor, §§ 431, 433, 441; Moore, VII. §§ 1089, 1091,
1099; Pradier-Fodéré, VI. No. 2633.]
II
RETORSION
Vattel, II. § 341--Hall, § 120--Westlake, II. p. 6--Phillimore,
III. § 7--Twiss II. § 10--Taylor, § 435--Wharton, III. §
318--Moore, VII. § 1090--Wheaton, § 290--Bluntschli, §
505--Heffter, § 110--Bulmerincq in Holtzendorff, IV. pp.
59-71--Ullmann, § 159--Bonfils, Nos. 972-974--Despagnet, Nos.
484-486--Pradier-Fodéré, VI. Nos. 2634-2636--Rivier, II. §
60--Calvo, III. § 1807--Fiore, II. Nos. 1226-1227, and Code, Nos.
1386-1390--Martens, II § 105.
[Sidenote: Conception and Character of Retorsion.]
§ 29. Retorsion is the technical term for the retaliation of
discourteous or unkind or unfair and inequitable acts by acts of the
same or a similar kind. Retorsion has nothing to do with international
delinquencies, as it is not a means of compulsion in the case of legal
differences, but only in the case of certain political differences. The
act which calls for retaliation is not an illegal act; on the contrary,
it is an act that is within the competence of the doer.[31] But a State
can commit many legislative, administrative, or judicial acts which,
although they are not internationally illegal, contain a discourtesy or
unfriendliness to another State or are unfair and inequitable. If the
State against which such acts are directed considers itself wronged
thereby, a political difference is created which might be settled by
retorsion.
[Footnote 31: For this reason--see Heilborn, _System_, p. 352, and
Wagner, _Zur Lehre von den Streiterledigungsmitteln des Völkerrechts_
(1900), pp. 53-60--it is correctly maintained that retorsion, in
contradistinction to reprisals, is not of legal, but only of political
importance. Nevertheless, a system of the Law of Nations must not omit
the matter of retorsion altogether, because retorsion is in practice an
important means of settling political differences.]
[Sidenote: Retorsion, when justified.]
§ 30. The question when retorsion is and when it is not justified is not
one of law, and is difficult to answer. The difficulty arises from the
fact that retorsion is a means of settling such differences as are
created, not by internationally illegal, but by discourteous or
unfriendly or unfair and inequitable acts of one State against another,
and that naturally the conceptions of discourtesy, unfriendliness, and
unfairness cannot be defined very precisely. It depends, therefore,
largely upon the circumstances and conditions of the special cases
whether a State will or will not consider itself justified in making use
of retorsion. In practice States have frequently made use of retorsion
in cases of unfair treatment of their citizens abroad through rigorous
passport regulations, exclusion of foreigners from certain professions,
the levy of exorbitant protectionist or fiscal duties; further, in cases
of refusal of the usual mutual judicial assistance, refusal of
admittance of foreign ships to harbours, and in similar cases.
[Sidenote: Retorsion, how exercised.]
§ 31. The essence of retorsion consists in retaliation for a noxious act
by an act of the same kind. But a State in making use of retorsion is by
no means confined to acts of the same kind as those complained of, acts
of a similar kind being equally admissible. However, acts of retorsion
are confined to acts which are not internationally illegal. And,
further, as retorsion is made use of only for the purpose of compelling
a State to alter its discourteous, unfriendly, or unfair behaviour, all
acts of retorsion ought at once to cease when such State changes its
behaviour.
[Sidenote: Value of Retorsion.]
§ 32. The value of retorsion as a means of settling certain
international differences consists in its compulsory force, which has
great power in regulating the intercourse of States. It is a commonplace
of human nature, and by experience constantly confirmed, that evil-doers
are checked by retaliation, and that those who are inclined to commit a
wrong against others are often prevented by the fear of it. Through the
high tide of Chauvinism, Protectionism, and unfriendly feelings against
foreign nations, States are often tempted to legislative,
administrative, and judicial acts against other States which, although
not internationally illegal, nevertheless endanger friendly relations
and intercourse within the Family of Nations. The certainty of
retaliation is the only force which can make States resist the
temptation.
III
REPRISALS
Grotius, III. c. 2--Vattel, II. §§ 342-354--Bynkershoek,
_Quaestiones jur. publ._ I. c. 24--Hall, § 120--Lawrence, §§
136-137--Westlake, II. pp. 7-11--Twiss, II. §§ 11-22--Moore, VII.
§§ 1095, 1096-1098--Taylor, §§ 436-437--Wharton, III. §§
318-320--Wheaton, §§ 291-293--Bluntschli, §§ 500-504--Heffter, §§
111-112--Bulmerincq in Holtzendorff, IV. pp. 72-116--Ullmann, §
160--Bonfils, Nos. 975-985--Despagnet, Nos.
487-495--Pradier-Fodéré, VI. Nos. 2637-2647--Rivier, II. §
60--Nys, III. pp. 84-91--Calvo, III. §§ 1808-1831--Fiore, II. Nos.
1228-1230, and Code, Nos. 1391-1399--Martens, II. § 105--Lafargue,
_Les représailles en temps de paix_ (1899)--Ducrocq, _Représailles
en temps de paix_ (1901), pp. 5-57, 175-232--Westlake in _The Law
Quarterly Review_, XXV. (1909), pp. 127-137.
[Sidenote: Conception of Reprisals in contradistinction to Retorsion.]
§ 33. Reprisals is the term applied to such injurious and otherwise
internationally illegal acts of one State against another as are
exceptionally permitted for the purpose of compelling the latter to
consent to a satisfactory settlement of a difference created by its own
international delinquency. Whereas retorsion consists in retaliation of
discourteous, unfriendly, unfair, and inequitable acts by acts of the
same or a similar kind, and has nothing to do with international
delinquencies, reprisals are acts, otherwise illegal, performed by a
State for the purpose of obtaining justice for an international
delinquency by taking the law into its own hands. It is, of course,
possible that a State retaliates in consequence of an illegal act
committed against itself by the performance of an act of a similar kind.
Such retaliation would be a retorsion in the ordinary sense of the term,
but it would not be retorsion in the technical meaning of the term as
used by those writers on International Law who correctly distinguish
between retorsion and reprisals.
[Sidenote: Reprisals admissible for all International Delinquencies.]
§ 34. Reprisals are admissible not only, as some writers[32] maintain,
in case of denial or delay of justice, or of any other internationally
interdicted ill-treatment of foreign citizens, but in every case of an
international delinquency for which the injured State cannot get
reparation through negotiation,[33] be it ill-treatment of its subjects
abroad through denial or delay of justice or otherwise, or be it
non-compliance with treaty obligations, violation of the dignity of a
foreign State, violation of foreign territorial supremacy, or any other
internationally illegal act.
[Footnote 32: See, for instance, Twiss, II. § 19.]
[Footnote 33: As regards reprisals for the non-payment of
contract-debts, see below, § 41.]
Thus, to give an example, Great Britain, in the case of the Sicilian
Sulphur Monopoly, performed acts of reprisal against the Two Sicilies in
1840 for a violation of a treaty. By the treaty of commerce of 1816
between the Two Sicilies and Great Britain certain commercial advantages
were secured to Great Britain. When, in 1838, the Neapolitan Government
granted a Sulphur Monopoly to a company of French and other foreign
merchants, Great Britain protested against this violation of her treaty
rights, demanded the revocation of the monopoly, and, after the
Neapolitan Government had declined to comply with this demand, laid an
_embargo_ on Sicilian ships in the harbour of Malta and ordered her
fleet in the Mediterranean to seize Sicilian ships by way of reprisal. A
number of vessels were captured, but were restored after the Sicilies
had, through the mediation of France, agreed to withdraw the grant of
the Sulphur Monopoly.
Again, when in 1908 de Castro, the President of Venezuela, dismissed M.
de Reuss, the Dutch Minister Resident at Caracas, Holland considered
this step a violation of her dignity and sent cruisers into Venezuelan
waters with the intention of resorting to reprisals. These cruisers
captured the Venezuelan coast-guard ship _Alexis_ outside Puerto
Cabello, and another Venezuelan public vessel, both of which, however,
were restored in 1909, when de Castro was deposed, and the new President
opened negotiations with Holland and settled the conflict.
[Sidenote: Reprisals admissible for International Delinquencies only.]
§ 35. Reprisals are admissible in the case of international
delinquencies only and exclusively. As internationally injurious
acts on the part of administrative and judicial officials, armed forces,
and private individuals are not _ipso facto_ international
delinquencies, no reprisals are admissible in the case of such
acts if the responsible State complies with the requirements of its
vicarious responsibility.[34] Should, however, a State refuse to comply
with these requirements, its vicarious responsibility would turn into
original responsibility, and thereby an international delinquency would
be created for which reprisals are indeed admissible.
[Footnote 34: See above, vol. I. §§ 149 and 150.]
The reprisals ordered by Great Britain in the case of Don Pacifico are
an illustrative example of unjustified reprisals, because no
international delinquency was committed. In 1847 a riotous mob, aided by
Greek soldiers and gendarmes, broke into and plundered the house of Don
Pacifico, a native of Gibraltar and an English subject living at Athens.
Great Britain claimed damages from Greece without previous recourse by
Don Pacifico to the Greek Courts. Greece refused to comply with the
British claim, maintaining correctly that Don Pacifico ought to
institute an action for damages against the rioters before the Greek
Courts. Great Britain continued to press her claim, and finally in 1850
blockaded the Greek coast and ordered, by way of reprisal, the capture
of Greek vessels. The conflict was eventually settled by Greece paying
£150 to Don Pacifico. It is generally recognised that England had no
right to act as she did in this case. She could have claimed damages
directly from the Greek Government only after the Greek Courts had
denied satisfaction to Don Pacifico.[35]
[Footnote 35: See above, vol. I. § 167. The case is reported with all
its details in Martens, _Causes Célèbres_, V. pp. 395-531.]
[Sidenote: Reprisals, by whom performed.]
§ 36. Acts of reprisal may nowadays be performed only by State organs
such as armed forces, or men-of-war, or administrative officials, in
compliance with a special order of their State. But in former times
private individuals used to perform acts of reprisal. Such private acts
of reprisal seem to have been in vogue in antiquity, for there existed a
law in Athens according to which the relatives of an Athenian murdered
abroad had, in case the foreign State refused punishment or extradition
of the murderer, the right to seize and to bring before the Athenian
Courts three citizens of such foreign State (so-called ἀνδροληψία).
During the Middle Ages, and even in modern times to the end
of the eighteenth century, States used to grant so-called "Letters
of Marque" to such of their subjects as had been injured abroad either
by a foreign State itself or its citizens without being able to get
redress. These Letters of Marque authorised the bearer to acts of
self-help against the State concerned, its citizens and their property,
for the purpose of obtaining satisfaction for the wrong sustained. In
later times, however, States themselves also performed acts of reprisal.
Thereby acts of reprisal on the part of private individuals fell more
and more into disuse, and finally disappeared totally with the end of
the eighteenth century. The distinction between general and special
reprisals, which used formerly to be drawn, is based on the fact that in
former times a State could either authorise a single private individual
to perform an act of reprisal (_special_ reprisals), or command its
armed forces to perform all kinds of such acts (_general_ reprisals).
The term "General Reprisals" is by Great Britain nowadays used for the
authorisation of the British fleet to seize in time of war all enemy
ships and goods. Phillimore (III. § 10) cites the following Order in
Council of March 27, 1854: "Her Majesty having determined to afford
active assistance to her ally, His Highness the Sultan of the Ottoman
Empire, for the protection of his dominions against the encroachments
and unprovoked aggression of His Imperial Majesty the Emperor of All the
Russias, Her Majesty is therefore pleased, by and with the advice of Her
Privy Council, to order, and it is hereby ordered, that general
reprisals be granted against the ships, vessels, and goods of the
Emperor of All the Russias, and of his subjects, or others inhabiting
within any of his countries, territories or dominions, so that Her
Majesty's fleets may lawfully seize all ships, vessels, and goods," &c.
[Sidenote: Objects of Reprisals.]
§ 37. An act of reprisal may be performed against anything and
everything that belongs or is due to the delinquent State or its
citizens. Ships sailing under its flag may be seized, treaties concluded
with it may be suspended, a part of its territory may be militarily
occupied, goods belonging to it or to its citizens may be seized, and
the like. Thus in 1895 Great Britain ordered a fleet to land forces at
Corinto and to occupy the custom-house and other Government buildings as
an act of reprisal against Nicaragua; again, in 1901 France ordered a
fleet to seize the island of Mitylene as an act of reprisal against
Turkey; and in 1908 Holland ordered a squadron to seize two public
Venezuelan vessels as an act of reprisal against Venezuela.[36] The
persons of the officials and even of the private citizens of the
delinquent State are not excluded from the possible objects of
reprisals. Thus, when in 1740 the Empress Anne of Russia arrested
without just cause the Baron de Stackelberg, a natural-born Russian
subject, who had, however, become naturalised in Prussia by entering the
latter's service, Frederick II. of Prussia seized by way of reprisal two
Russian subjects and detained them until Stackelberg was liberated. But
it must be emphasised that the only act of reprisal admissible with
regard to foreign officials or citizens is arrest; they must not be
treated like criminals, but like hostages, and under no condition or
circumstance may they be executed or subjected to punishment of any
kind.
[Footnote 36: See above, § 34.]
The rule that anything and everything belonging to the delinquent State
may be made the object of reprisals has, however, exceptions; for
instance, individuals enjoying the privilege of exterritoriality while
abroad, such as heads of States and diplomatic envoys, may not be made
the object of reprisals, although this has occasionally been done in
practice.[37] In regard to another exception--namely, public debts of
such State as intends performing reprisals--unanimity does not exist
either in theory or in practice. When Frederick II. of Prussia in 1752,
by way of negative reprisals for an alleged injustice of British Prize
Courts against Prussian subjects, refused the payment of the Silesian
loan due to English creditors, Great Britain, in addition to denying the
question that there was at all a just cause for reprisals, maintained
that public debts may not be made the object of reprisals. English
jurists and others, as, for instance, Vattel (II. § 344), consent to
this, but German writers dissent.[38]
[Footnote 37: See the case reported in Martens, _Causes Célèbres_, I. p.
35.]
[Footnote 38: See Phillimore, III. § 22, in contradistinction to
Heffter, § 111, note 5. The case is reported with all its details in
Martens, _Causes Célèbres_, II. pp. 97-168. The dispute was settled in
1756--see below, § 437--through Great Britain paying an indemnity of
£20,000.]
[Sidenote: Positive and Negative Reprisals.]
§ 38. Reprisals can be positive or negative. One speaks of positive
reprisals when such acts are performed as would under ordinary
circumstances involve an international delinquency. On the other hand,
negative reprisals consist of refusals to perform such acts as are under
ordinary circumstances obligatory; when, for instance, the fulfilment of
a treaty obligation or the payment of a debt is refused.
[Sidenote: Reprisals must be proportionate.]
§ 39. Reprisals, be they positive or negative, must be in proportion to
the wrong done and to the amount of compulsion necessary to get
reparation. For instance, a State would not be justified in arresting by
way of reprisal thousands of foreign subjects living on its territory
whose home State had injured it through a denial of justice to one of
its subjects living abroad. But it would in such case be justified in
ordering its own Courts to deny justice to all subjects of such foreign
State, or in ordering its fleet to seize several vessels sailing under
the latter State's flag, or in suspending its commercial treaty with
such State.
[Sidenote: Embargo.]
§ 40. A kind of reprisal, which is called _Embargo_, must be specially
mentioned. This term of Spanish origin means detention, but in
International Law it has the technical meaning of detention of ships in
port. Now, as by way of reprisal all acts, otherwise illegal, may be
performed, there is no doubt that ships of the delinquent State may be
prevented from leaving the ports of the injured State for the purpose of
compelling the delinquent State to make reparation for the wrong
done.[39]
[Footnote 39: Thus in 1840--see above, § 34--Great Britain laid an
embargo on Sicilian ships.]
The matter would not need special mention were it not for the fact that
_embargo_ by way of reprisal is to be distinguished from detention of
ships for other reasons. According to a now obsolete[40] rule of
International Law, conflicting States could, when war was breaking out
or impending, lay an _embargo_ on, and appropriate each other's
merchantmen. Another kind of _embargo_ is the so-called _arrêt de
prince_[41]--that is, a detention of foreign ships for the purpose of
preventing them from spreading news of political importance. And there
is, thirdly, an _embargo_ arising out of the so-called _jus
angariæ_--that is, the right of a belligerent State to seize and make
use of neutral property in case of necessity, under the obligation to
compensate the neutral owner of such property. States have in the
past[42] made use of this kind of _embargo_ when they had not enough
ships for the necessary transport of troops, ammunition, and the like.
[Footnote 40: See, however, below, § 102_a_ and article 1 of Convention
VI., which only stipulates that it is _desirable_ that enemy vessels in
the port of a belligerent at the outbreak of war should be allowed to
depart freely; see also article 2 of Convention VI.]
[Footnote 41: See Steck, _Versuch über Handels-und Schiffahrts-Verträge_
(1782), p. 355; Caumont, _Dictionnaire universel de droit maritime_
(1867), pp. 247-265; Calvo, III. § 1277; Pradier-Fodéré, V. p. 719;
Holtzendorff, IV. pp. 98-104.]
[Footnote 42: See below, § 364.]
These kinds of international _embargo_ must not be confounded with the
so-called _civil embargo_ of English Municipal Law[43]--namely, the
order of the Sovereign to English ships not to leave English ports.
[Footnote 43: See Phillimore, III. § 26.]
[Sidenote: Reprisals to be preceded by Negotiations and to be stopped
when Reparation is made.]
§ 41. Like all other compulsive means of settling international
differences, reprisals are admissible only after negotiations have been
conducted in vain for the purpose of obtaining reparation from the
delinquent State. In former times, when States used to authorise private
individuals to perform special reprisals, treaties of commerce and peace
frequently stipulated for a certain period of time, for instance three
or four months, to elapse after an application for redress before the
grant of Letters of Marque by the injured State.[44] Although with the
disappearance of special reprisals this is now antiquated, a reasonable
time for the performance of a reparation must even nowadays be given. On
the other hand, reprisals must at once cease when the delinquent State
makes the necessary reparation. Individuals arrested must be set free,
goods and ships seized must be handed back, occupied territory must be
evacuated, suspended treaties must again be put into force, and the
like.
[Footnote 44: See Phillimore, III. § 14.]
It must be specially mentioned that in the case of recovery of contract
debts claimed from the Government of one country by the Government of
another country as being due to its nationals, reprisals by means of
armed forces can, according to article 1 of Convention II., only be
resorted to in case the debtor State refuses to go to arbitration.
[Sidenote: Reprisals during Peace in contradistinction to Reprisals
during War.]
§ 42. Reprisals in time of peace must not be confounded with reprisals
between belligerents. Whereas the former are resorted to for the purpose
of settling a conflict without going to war, the latter[45] are
retaliations to force an enemy guilty of a certain act of illegitimate
warfare to comply with the laws of war.
[Footnote 45: See below, § 247.]
[Sidenote: Value of Reprisals.]
§ 43. The value of reprisals as a means of settling international
differences is analogous to the value of retorsion. States will have
recourse to reprisals for such international delinquencies as they think
insufficiently important for a declaration of war, but too important to
be entirely overlooked. That reprisals are rather a rough means for the
settlement of differences, and that the institution of reprisals can
give and has in the past given occasion to abuse in case of a difference
between a powerful and a weak State, cannot be denied. On the other
hand, as there is no Court and no central authority above the Sovereign
States which could compel a delinquent State to give reparation, the
institution of reprisals can scarcely be abolished. The influence in the
future of the existence of a Permanent Court of Arbitration remains to
be seen. If all the States would become parties to the Hague Convention
for the peaceful adjustment of international differences, and if they
would have recourse to the Permanent Court of Arbitration at the Hague
in all cases of an alleged international delinquency which affects
neither their national honour nor their vital interests and
independence, acts of reprisal would almost disappear.
IV
PACIFIC BLOCKADE
Hall, § 121--Lawrence, § 138--Westlake, II. pp. 11-18--Taylor, §
444--Moore, VII. § 1097--Bluntschli, §§ 506-507--Heffter, §
112--Bulmerincq in Holtzendorff, IV. pp. 116-127--Ullmann, §
162--Bonfils, Nos. 986-994--Despagnet, Nos.
496-498--Pradier-Fodéré, V. Nos. 2483-2489, VI. No. 2648--Rivier,
II. § 60--Nys, III. pp. 91-94--Calvo, III. §§ 1832-1859--Fiore,
II. No. 1231, and Code, Nos. 1404-1414--Martens, II. 105--Holland,
_Studies_, pp. 151-167--Deane, _The Law of Blockade_ (1870), pp.
45-48--Fauchille, _Du blocus maritime_ (1882), pp. 37-67--Falcke,
_Die Hauptperioden der sogenannten Friedensblockade_ (1891), and
in the _Zeitschrift für Internationales Recht_, XIX. (1909), pp.
63-175--Barès, _Le blocus pacifique_ (1898)--Ducrocq,
_Représailles en temps de paix_ (1901), pp. 58-174--Hogan,
_Pacific Blockade_ (1908)--Söderquist, _Le Blocus Maritime_
(1908)--Staudacher, _Die Friedensblockade_ (1909)--Westlake in
_The Law Quarterly Review_, XXV. (1909), pp. 13-23.
[Sidenote: Development of practice of Pacific Blockade.]
§ 44. Before the nineteenth century blockade was only known as a measure
between belligerents in time of war. It was not until the second quarter
of the nineteenth century that the first case occurred of a so-called
pacific blockade--that is, a blockade during time of peace--as a
compulsive means of settling international differences; and all such
cases are either cases of intervention or of reprisals.[46] The first
case, one of intervention, happened in 1827, when, during the Greek
insurrection, Great Britain, France, and Russia intervened in the
interest of the independence of Greece and blockaded those parts of the
Greek coast which were occupied by Turkish troops. Although this
blockade led to the battle of Navarino, in which the Turkish fleet was
destroyed, the Powers maintained, nevertheless, that they were not at
war with Turkey. In 1831, France blockaded the Tagus as an act of
reprisal for the purpose of exacting redress from Portugal for injuries
sustained by French subjects. Great Britain and France, exercising
intervention for the purpose of making Holland consent to the
independence of revolting Belgium, blockaded in 1833 the coast of
Holland. In 1838, France blockaded the ports of Mexico as an act of
reprisal, but Mexico declared war against France in answer to this
pacific blockade. Likewise as an act of reprisal, and in the same year,
France blockaded the ports of Argentina; and in 1845, conjointly with
Great Britain, France blockaded the ports of Argentina a second time. In
1850, in the course of her differences with Greece on account of the
case of Don Pacifico,[47] Great Britain blockaded the Greek ports, but
for Greek vessels only. Another case of intervention was the pacific
blockade instituted in 1860 by Sardinia, in aid of an insurrection
against the then Sicilian ports of Messina and Gaeta, but the following
year saw the conversion of the pacific blockade into a war blockade. In
1862 Great Britain by way of reprisal for the plundering of a wrecked
British merchantman, blockaded the Brazilian port of Rio de Janeiro. The
blockade of the island of Formosa by France during her differences with
China in 1884 and that of the port of Menam by France during her
differences with Siam in 1893 are likewise cases of reprisals. On the
other hand, cases of intervention are the blockade of the Greek coast in
1886 by Great Britain, Austria-Hungary, Germany, Italy, and Russia, for
the purpose of preventing Greece from making war against Turkey; and
further, the blockade of the island of Crete in 1897 by the united
Powers. The last case occurred in 1902, when Great Britain, Germany,
and Italy blockaded, by way of reprisal, the coast of Venezuela.[48]
[Footnote 46: A blockade instituted by a State against such portions of
its own territory as are in revolt is not a blockade for the purpose of
settling international differences. It has, therefore, in itself nothing
to do with the Law of Nations, but is a matter of internal police. I
cannot, therefore, agree with Holland, who, in his _Studies in
International Law_, p. 138, treats it as a pacific blockade _sensu
generali_. Of course, necessity of self-preservation only can justify a
State that has blockaded one of its own ports in preventing the egress
and ingress of _foreign_ vessels. And the question might arise whether
compensation ought not to be paid for losses sustained by foreign
vessels so detained.]
[Footnote 47: See above, § 35.]
[Footnote 48: This blockade, although ostensibly a war blockade for the
purpose of preventing the ingress of foreign vessels, was nevertheless
essentially a pacific blockade. See Holland, in _The Law Quarterly
Review_, XIX. (1903), p. 133; Parliamentary Papers, Venezuela, No. 1
(Venezuela), Correspondence respecting the Affairs of Venezuela.]
[Sidenote: Admissibility of Pacific Blockade.]
§ 45. No unanimity exists among international lawyers with regard to the
question whether or not pacific blockades are admissible according to
the principles of the Law of Nations. There is no doubt that the theory
of the Law of Nations forbids the seizure and sequestration of vessels
other than those of the blockaded State caught in an attempt to break a
pacific blockade. For even those writers who maintain the admissibility
of pacific blockade assert that vessels of third States cannot be
seized. What is controverted is the question whether according to
International Law the coast of a State may be blockaded at all in time
of peace. From the first recorded instance to the last, several
writers[49] of authority have negatived the question. On the other hand,
many writers have answered the question in the affirmative, differing
among themselves regarding the one point only whether or not vessels
sailing under the flag of third States could be prevented from entering
or leaving pacifically blockaded ports. The Institute of International
Law in 1887 carefully studied, and at its meeting in Heidelberg
discussed, the question, and finally voted a declaration[50] in favour
of the admissibility of pacific blockades. Thus the most influential
body of theorists has approved what had been established before by
practice. There ought to be no doubt that the numerous cases of pacific
blockade which have occurred during the nineteenth century have, through
tacit consent of the members of the Family of Nations, established the
admissibility of pacific blockades for the settlement of political as
well as of legal international differences.
[Footnote 49: The leader of these writers is Hautefeuille, _Des Droits
et des Devoirs des Nations Neutres_ (2nd ed. 1858, pp. 272-288).]
[Footnote 50: See _Annuaire_, IX. (1887), pp. 275-301.]
[Sidenote: Pacific Blockade and vessels of third States.]
§ 46. It has already been stated that those writers who admit the
legality of pacific blockades are unanimous regarding the fact that no
right exists for the blockading State to seize and sequestrate such
ships of third States as try to break a pacific blockade. Apart from
this, no unanimity exists with regard to the question of the relation
between a pacific blockade and ships of third States. Some German
writers[51] maintain that such ships have to respect the blockade, and
that the blockading State has a right to stop such ships of third States
as try to break a pacific blockade. The vast majority of writers,
however, deny such right. There is, in fact, no rule of International
Law which could establish such a right, as pacific in contradistinction
to belligerent blockade is a mere matter between the conflicting
parties. The declaration of the Institute of International Law in favour
of pacific blockade contains, therefore, the condition: "Les navires de
pavillons neutres peuvent entrer librement malgré le blocus."
[Footnote 51: See Heffter, § 112; Perels, § 30.]
The practice of pacific blockade has varied with regard to ships of
third States. Before 1850 ships of third States were expected to respect
a pacific blockade, and such ships of these States as tried to break it
were seized, but were restored at the termination of the blockade, yet
without any compensation. When in 1850 Great Britain, and likewise when
in 1886 Great Britain, Austria, Germany, Italy, and Russia blockaded the
Greek ports, these ports were only closed for Greek ships, and others
were allowed to pass through. And the same was the case during the
blockade of Crete in 1897. On the other hand, in 1894, France, during a
conflict with China, blockaded the island of Formosa and tried to
enforce the blockade against ships of third States. But Great Britain
declared that a pacific blockade could not be enforced against ships of
third States, whereupon France had to drop her intended establishment of
a pacific blockade and had to consider herself at war with China. And
when in 1902 Great Britain, Germany, and Italy instituted a blockade
against Venezuela, they declared it a war blockade[52] because they
intended to enforce it against vessels of third States.
[Footnote 52: That this blockade was essentially a pacific blockade I
have already stated above, p. 50, note 1.]
[Sidenote: Pacific Blockade and vessels of the blockaded State.]
§ 47. Theory and practice seem nowadays to agree upon the rule that the
ships of a pacifically blockaded State trying to break the blockade may
be seized and sequestrated. But they may not be condemned and
confiscated, as they have to be restored at the termination of the
blockade. Thus, although the Powers which had instituted a blockade
against Venezuela in 1902 declared it a war blockade, all Venezuelan
public and private ships seized were restored after the blockade was
raised.
[Sidenote: Manner of Pacific Blockade.]
§ 48. Pacific blockade is a measure of such enormous consequences that
it can be justified only after the failure of preceding negotiations for
the purpose of settling the questions in dispute. And further, as
blockade, being a violation of the territorial supremacy of the
blockaded State, is _prima facie_ of a hostile character, it is
necessary for such State as intends in time of peace to blockade another
State to notify its intention to the latter and to fix the day and hour
for the establishment of the blockade. And, thirdly, although the
Declaration of Paris of 1856 enacting that a blockade to be binding must
be effective concerns blockades in time of war only, there can be no
doubt that pacific blockades ought to be likewise effective. The
declaration of the Institute of International Law in favour of pacific
blockade contains, therefore, the condition: "Le blocus pacifique doit
être déclaré et notifié officiellement, et maintenu par une force
suffisante."
[Sidenote: Value of Pacific Blockade.]
§ 49. As the establishment of a pacific blockade has in various
instances not prevented the outbreak of hostilities, the value of a
pacific blockade as a means of non-hostile settlement of international
differences is doubted and considered uncertain by many writers. But
others agree, and I think they are right, that the institution of
pacific blockade is of great value, be it as an act of reprisal or of
intervention. Every measure which is suitable and calculated to prevent
the outbreak of war must be welcomed, and experience shows that pacific
blockade is, although not universally successful, a measure of this
kind. That it can give, and has in the past given, occasion for abuse in
case of a difference between a strong and a weak Power is no argument
against it, as the same is valid with regard to reprisals and
intervention in general, and even to war. And although it is naturally a
measure which will scarcely be made use of in case of a difference
between two powerful naval States, it might nevertheless find
application with success against a powerful naval State if exercised by
the united navies of several Powers.[53]
[Footnote 53: The following is the full text of the declaration of the
Institute of International Law referred to above, § 45:
"L'établissement d'un blocus en dehors de l'état de guerre ne doit
être considéré comme permis par le droit de gens que sous les
conditions suivantes:
"1. Les navires de pavillon étranger peuvent entrer librement
malgré le blocus.
"2. Le blocus pacifique doit être déclaré et notifié
officiellement et maintenu par une force suffisante.
"3. Les navires de la puissance bloquée qui ne respectent pas un
pareil blocus, peuvent être séquestrés. Le blocus ayant cessé, ils
doivent être restitués avec leurs cargaisons à leurs
propriétaires, mais sans dédommagement à aucun titre."]
V
INTERVENTION
See the literature quoted above in vol. I. at the commencement of
§ 134.
[Sidenote: Intervention in contradistinction to Participation in a
difference.]
§ 50. Intervention as a means of settling international differences is
only a special kind of intervention in general, which has already been
discussed.[54] It consists in the dictatorial interference of a third
State in a difference between two States for the purpose of settling the
difference in the way demanded by the intervening State. This
dictatorial interference takes place for the purpose of exercising a
compulsion upon one or both of the parties in conflict, and must be
distinguished from such attitude of a State as makes it a party to the
very conflict. If two States are in conflict and a third State joins one
of them out of friendship or from any other motive, such third State
does not exercise an intervention as a means of settling international
differences, but becomes a party to the conflict. If, for instance, an
alliance exists between one of two States in conflict and a third, and
if eventually, as war has broken out in consequence of the conflict,
such third State comes to the help of its ally, no intervention in the
technical sense of the term takes place. A State intervening in a
dispute between two other States does not become a party to their
dispute, but is the author of a new imbroglio, because such third State
dictatorially requests those other States to settle their difference in
a way to which both, or at any rate one of them, objects. An
intervention, for instance, takes place when, although two States in
conflict have made up their minds to fight it out in war, a third State
dictatorially requests them to settle their dispute through arbitration.
[Footnote 54: See above, vol. I. §§ 134-138.]
Intervention, in the form of dictatorial interference, must, further, be
distinguished from such efforts of a State as are directed to induce the
States in conflict to settle their difference amicably by proffering its
good offices or mediation, or by giving friendly advice. It is,
therefore, incorrect when some jurists[55] speak of good offices and the
like as an "amicable" in contradistinction to a "hostile" intervention.
[Footnote 55: Thus, for instance, Rivier, II. § 58. See also above, vol.
I. § 134.]
[Sidenote: Mode of Intervention.]
§ 51. Intervention in a difference between two States is exercised
through a communication of the intervening State to one or both of the
conflicting States with a dictatorial request for the settlement of the
conflict in a certain way, for instance by arbitration or by the
acceptance of certain terms. An intervention can take place either on
the part of one State alone or of several States collectively. If the
parties comply with the request of the intervening State or States, the
intervention is terminated. If, however, one or both of the parties fail
to comply with the request, the intervening State will either withdraw
its intervention or proceed to the performance of acts more stringent
than a mere request, such as pacific blockade, military occupation, and
the like. Even war can be declared for the purpose of an intervention.
Of special importance are the collective interventions exercised by
several great Powers in the interest of the balance of power and of
humanity.[56]
[Footnote 56: See above, vol. I. §§ 136 and 137.]
[Sidenote: Time of Intervention.]
§ 52. An intervention in a difference between two States can take place
at any time from the moment a conflict arises till the moment it is
settled, and even immediately after the settlement. In many cases
interventions have taken place before the outbreak of war between two
States for the purpose of preventing war; in other cases third States
have intervened during a war which had broken out in consequence of a
conflict. Interventions have, further, taken place immediately after the
peaceable settlement of a difference, or after the termination of war by
a treaty of peace or by conquest, on the grounds that the conditions of
the settlement or the treaty of peace were against the interests of the
intervening State, or because the latter would not consent to the
annexation of the conquered State by the victor.[57]
[Footnote 57: With regard to the question of the right of intervention,
the admissibility of intervention in default of a right, and to all
other details concerning intervention, the reader must be referred
above, vol. I. §§ 135-138.]
PART II
WAR
CHAPTER I
ON WAR IN GENERAL
I
CHARACTERISTICS OF WAR
Grotius, I. c. 1, § 2--Vattel, III. §§ 1-4, 69-72--Hall, §§
15-18--Westlake, II. pp. 1-6--Lawrence, § 135--Lorimer, II. pp.
18-28--Manning, pp. 131-133--Phillimore, III. § 49--Twiss, II. §§
22-29--Taylor, §§ 449-451--Wheaton, § 295--Bluntschli, §§
510-514--Heffter, §§ 113-114--Lueder in Holtzendorff, IV. pp.
175-198--Klüber, §§ 235-237--G. F. Martens, II. § 263--Ullmann, §
165--Bonfils, Nos. 1000-1001--Despagnet, Nos.
499-505--Pradier-Fodéré, VI. Nos. 2650-2660--Rivier, II. §
61--Nys, III. pp. 95-117--Calvo, IV. §§ 1860-1864--Fiore, III.
Nos. 1232-1268--Martens, II. § 106--Westlake, _Chapters_, pp.
258-264--Heilborn, _System_, pp. 321-332--Rettich, _Zur Theorie
und Geschichte des Rechts zum Kriege_ (1888), pp. 3-140--Wiesse,
_Le Droit international appliqué aux guerres civiles_
(1898)--Rougier, _Les guerres civiles et le droit des gens_
(1903)--Higgins, _War and the Private Citizen_ (1912), pp. 3-72.
[Sidenote: War no illegality.]
§ 53. As within the boundaries of the modern State an armed contention
between two or more citizens is illegal, public opinion has become
convinced that armed contests between citizens are inconsistent with
Municipal Law. Influenced by this fact, impatient pacifists, as well as
those innumerable individuals who cannot grasp the idea of a law between
Sovereign States, frequently consider war and law inconsistent. They
quote the fact that wars are frequently waged by States as a proof
against the very existence of an International Law. It is not difficult
to show the absurdity of this opinion. As States are Sovereign, and as
consequently no central authority can exist above them able to enforce
compliance with its demands, war cannot, under the existing conditions
and circumstances of the Family of Nations, always be avoided.
International Law recognises this fact, but at the same time provides
regulations with which belligerents have to comply. Although with the
outbreak of war peaceable relations between the belligerents cease,
there remain certain mutual legal obligations and duties. Thus war is
not inconsistent with, but a condition regulated by, International Law.
The latter at present cannot and does not object to States which are in
conflict waging war upon each other instead of peaceably settling their
difference. But if they choose to go to war they have to comply with the
rules laid down by International Law regarding the conduct of war and
the relations between belligerents and neutral States. That
International Law, if it could forbid war altogether, would be a more
perfect law than it is at present there is no doubt. Yet eternal peace
is an impossibility in the conditions and circumstances under which
mankind at present live and will have to live for a long time to come,
although eternal peace is certainly an ideal of civilisation which will
slowly and gradually be realised.
[Sidenote: Conception of War.]
§ 54. War is the contention between two or more States through their
armed forces for the purpose of overpowering each other and imposing
such conditions of peace as the victor pleases. War is a fact
recognised, and with regard to many points regulated, but not
established, by International Law. Those writers[58] who define war as
the legal remedy of self-help to obtain satisfaction for a wrong
sustained from another State, forget that wars have often been waged by
both parties engaged for political reasons only; they confound a
possible but not at all necessary cause of war with the conception of
war. A State may be driven into war because it cannot otherwise get
reparation for an international delinquency, and such State may then
maintain that it exercises by war nothing else than legally recognised
self-help. But when States are driven into or deliberately wage war for
political reasons, no legally recognised act of self-help is in such
case performed by the war. And the same laws of war are valid, whether
wars are waged on account of legal or of political differences.
[Footnote 58: See, for instance, Vattel, III. § 1; Phillimore, III. §
49; Twiss, II. § 26; Bluntschli, § 510; Bulmerincq, § 92.]
[Sidenote: War a contention.]
§ 55. In any case, it is universally recognised that war is a
_contention_, which means, _a violent struggle through the application
of armed force_. For a war to be in existence, two or more States must
actually have their armed forces fighting against each other, although
the commencement of a war may date back to its declaration or some other
unilateral initiative act. Unilateral acts of force performed by one
State against another without a previous declaration of war may be a
cause of the outbreak of war, but are not war in themselves, as long as
they are not answered by similar hostile acts by the other side, or at
least by a declaration of the other side that it considers the
particular acts as acts of war. Thus it comes about that acts of force
performed by one State against another by way of reprisal or during a
pacific blockade in the case of an intervention are not necessarily
initiative acts of war. And even acts of force illegally performed by
one State against another, such, for instance, as occupation of a part
of its territory, are not acts of war so long as they are not met with
acts of force from the other side, or at least with a declaration from
the latter that it considers the particular acts as acts of war. Thus,
when Louis XIV. of France, after the Peace of Nimeguen, instituted the
so-called Chambers of Reunion and in 1680 and 1681 seized the territory
of the then Free Town of Strassburg and other parts of the German
Empire without the latter's offering armed resistance, these acts of
force, although doubtless illegal, were not acts of war.
[Sidenote: War a contention between States.]
§ 56. To be considered war, the contention must be going on _between
States_. In the Middle Ages wars were known between private individuals,
so-called private wars, and wars between corporations, as the Hansa for
instance, and between States. But such wars have totally disappeared in
modern times. It may, of course, happen that a contention arises between
the armed forces of a State and a body of armed individuals, but such
contention[59] is not war. Thus the contention between the Raiders under
Dr. Jameson and the former South African Republic in January 1896 was
not war. Nor is a contention with insurgents or with pirates a war. And
a so-called civil war[60] need not be from the beginning nor become at
all a war in the technical sense of the term according to International
Law. On the other hand, to an armed contention between a suzerain and
its vassal[61] State the character of war ought not to be denied, for
both parties are States, although the fact that the vassal makes war
against the suzerain may, from the standpoint of Constitutional Law, be
considered rebellion. And likewise an armed contention between a full
Sovereign State and a State under the suzerainty of another State, as,
for instance, the contention between Servia and Bulgaria[62] in 1885, is
war. Again, an armed contention between one or more member-States of a
Federal State and the latter ought to be considered as war in the
technical sense of the term, according to International Law, although,
according to the constitution of Federal States, war between the
member-States as well as between any member-State and the Federal State
itself is illegal, and recourse to arms by a member-State may therefore
correctly, from the standpoint of the constitution, be called rebellion.
Thus the War of Secession within the United States between the Northern
and the Southern member-States in 1861-1865 was real war.
[Footnote 59: Some publicists maintain, however, that a contention
between a State and the armed forces of a party fighting for public
rights must be considered as war. See, for instance, Bluntschli, § 113,
and Fiore, III. § 1265.]
[Footnote 60: See below, § 59.]
[Footnote 61: See below, § 75.]
[Footnote 62: Bulgaria was at that time still a vassal State under
Turkish suzerainty.]
[Sidenote: War a contention between States through armed forces.]
§ 57. It must be emphasised that war nowadays is a contention of States
_through their armed forces_. Those private subjects of the belligerents
who do not directly or indirectly belong to the armed forces do not take
part in the armed contention: they do not attack and defend, and no
attack is therefore made upon them. This fact is the result of an
evolution of practices totally different from those in vogue in former
times. During antiquity and the greater part of the Middle Ages war was
a contention between the whole of the populations of the belligerent
States. In time of war every subject of one belligerent, whether an
armed and fighting individual or not, whether man or woman, adult or
infant, could be killed or enslaved by the other belligerent at will.
But gradually a milder and more discriminative practice grew up, and
nowadays the life and liberty of such private subjects of belligerents
as do not directly or indirectly belong to their armed forces are safe,
as is also, with certain exceptions, their private property.
This is a generally admitted fact. But opinions disagree as to the
general position of such private subjects in time of war. The majority
of the European continental writers for the last three generations have
propagated the doctrine that no relation of enmity exists between
belligerents and such private subjects, or between the private subjects
of the respective belligerents. This doctrine goes back to Rousseau,
_Contrat Social_, I. c. 4. In 1801, on the occasion of the opening of
the French Prize Court, the famous lawyer and statesman Portalis adopted
Rousseau's[63] doctrine by declaring that war is a relation between
States and not between individuals, and that consequently the subjects
of the belligerents are only enemies as soldiers, not as citizens. And
although this new doctrine did not, as Hall (§ 18) shows, spread at
once, it has since the second half of the nineteenth century been
proclaimed on the European continent by the majority of writers. British
and American-English writers, however, have never adopted this doctrine,
but have always maintained that the relation of enmity between the
belligerents extends also to their private citizens.
[Footnote 63: See Lassudrie-Duchêne, _Jean Jacques Rousseau et le droit
des gens_ (1906).]
I think, if the facts of war are taken into consideration without
prejudice, there ought to be no doubt that the British and American view
is correct.[64] It is impossible to sever the citizens from their State,
and the outbreak of war between two States cannot but make their
citizens enemies. But the point is unworthy of dispute, because it is
only one of terms without any material consequences.[65] For, apart from
the terminology, the parties agree in substance upon the rules of the
Law of Nations regarding such private subjects as do not directly or
indirectly belong to the armed forces.[66] Nobody doubts that such
private individuals are safe as regards their life and liberty, provided
they behave peacefully and loyally; and that, with certain exceptions,
their private property must not be touched. On the other hand, nobody
doubts that, according to a generally recognised custom of modern
warfare, the belligerent who has occupied a part or the whole of his
opponent's territory, and who treats such private individuals leniently
according to the rules of International Law, may punish them for any
hostile act, since they do not enjoy the privileges of members of armed
forces. Although, on the one hand, International Law by no means
forbids, and, as a law between States, is not competent to forbid,
private individuals to take up arms against an enemy, it gives, on the
other hand, the right to the enemy to treat hostilities committed by
private[67] individuals as acts of illegitimate warfare. A belligerent
is under a duty to respect the life and liberty of private enemy
individuals, but he can carry out this duty under the condition only
that these private individuals abstain from hostilities against himself.
Through military occupation in war such private individuals fall under
the authority[68] of the occupant, and he may therefore demand that they
comply with his orders regarding the safety of his forces. The position
of private enemy individuals is made known to them through the
proclamations which the commander-in-chief of an army occupying the
territory usually publishes. Thus General Sir Redvers Buller, when
entering the territory of the South African Republic in 1900, published
the following proclamation:
"The troops of Queen Victoria are now passing through the Transvaal. Her
Majesty does not make war on individuals, but is, on the contrary,
anxious to spare them as far as may be possible the horrors of war. The
quarrel England has is with the Government, not with the people, of the
Transvaal. Provided they remain neutral, no attempt will be made to
interfere with persons living near the line of march; every possible
protection will be given them, and any of their property that it may be
necessary to take will be paid for. But, on the other hand, those who
are thus allowed to remain near the line of march must respect and
maintain their neutrality, and the residents of any locality will be
held responsible, both in their persons and property, if any damage is
done to railway or telegraph, or any violence done to any member of the
British forces in the vicinity of their home."
[Footnote 64: See Boidin, pp. 32-44.]
[Footnote 65: But many continental writers constantly make use of
Rousseau's _dictum_ in order to defend untenable positions. See
Oppenheim, _Die Zukunft des Völkerrechts_ (1911), pp. 59-61.]
[Footnote 66: See Breton, _Les non-belligérants: Leurs devoirs, leurs
droits, et la question des otages_ (1904).]
[Footnote 67: See below, § 254.]
[Footnote 68: The first edition of this work was wrong in stating that
through military occupation private enemy individuals fall under the
_territorial supremacy_ of the occupant. Since military occupation by no
means vests sovereignty in the occupant, but only actual authority, this
authority may not be called _territorial supremacy_.]
It must be emphasised that this position of private individuals of the
hostile States renders it inevitable that commanders of armies which
have occupied hostile territory should consider and mark as criminals
all such private individuals of the enemy as commit hostile acts,
although such individuals may act from patriotic motives and may be
highly praised for their acts by their compatriots. The high-sounding
and well-meant words of Baron Lambermont, one of the Belgian delegates
at the Conference of Brussels of 1874--"Il y a des choses qui se font à
la guerre, qui se feront toujours, et que l'on doit bien accepter. Mais
il s'agit ici de les convertir en lois, en prescriptions positives et
internationales. Si les citoyens doivent être conduits au supplice pour
avoir tenté de défendre leur pays au péril de leur vie, il ne faut pas
qu'ils trouvent inscrits sur le poteau au pied duquel ils seront fusilés
l'article d'un traité signé par leur propre gouvernement qui d'avance
les condamnait à mort"--have no _raison d'être_ in face of the fact that
according to a generally recognised customary rule of International Law
hostile acts on the part of private individuals are not acts of
legitimate warfare, and the offenders may be treated and punished as
war-criminals. Even those writers[69] who object to the term "criminals"
do not deny that such hostile acts by private individuals, in
contradistinction to hostile acts by members of the armed forces, may be
severely punished. The controversy whether or not such acts may be
styled "crimes" is again only one of terminology; materially the rule is
not at all controverted.[70]
[Footnote 69: See, for instance, Hall, § 18, p. 74, and Westlake,
_Chapters_, p. 262.]
[Footnote 70: It is of value to quote articles 20-26 of the
_Instructions for the Government of Armies of the United States in the
Field_, which the War Department of the United States published in 1863
during the War of Secession with the Southern member-States:
(20) "Public war is a state of armed hostility between sovereign nations
or governments. It is a law and requisite of civil existence that men
live in political, continuous societies, forming organised units, called
States or nations, whose constituents bear, enjoy, and suffer, advance
and retrograde together, in peace and in war."
(21) "The citizen or native of a hostile country is thus an enemy as one
of the constituents of the hostile State or nation, and as such is
subjected to the hardships of war."
(22) "Nevertheless, as civilisation has advanced during the last
centuries, so has likewise advanced, especially in war on land, the
distinction between the private individual belonging to a hostile
country and the hostile country itself, with its men in arms. The
principle has been more and more acknowledged that the unarmed citizen
is to be spared in person, property, and honour as much as the
exigencies of war will admit."
(23) "Private citizens are no longer murdered, enslaved, or carried off
to distant parts, and the inoffensive individual is as little disturbed
in his private relations as the commander of the hostile troops can
afford to grant in the overruling demands of a vigorous war."
(24) "The almost universal rule in remote times was ... that the private
individual of the hostile country is destined to suffer every privation
of liberty and protection and every disruption of family ties.
Protection was ... the exception."
(25) "In modern regular wars ... protection of the inoffensive citizens
of the hostile country is the rule; privation and disturbance of private
relations are the exceptions."
(26) "Commanding generals may cause the magistrates and civil officers
of the hostile country to take the oath of temporary allegiance or an
oath of fidelity to their own victorious Government or rulers, and they
may expel every one who declines to do so. But, whether they do so or
not, the people and their civil officers owe strict obedience to them as
long as they hold sway over the district or country, at the peril of
their lives."]
[Sidenote: War a contention between States for the purpose of
overpowering each other.]
§ 58. The last, and not the least important, characteristic of war is
its purpose. It is a contention between States for the purpose of
overpowering each other. This purpose of war is not to be confounded
with the ends[71] of war, for, whatever the ends of war may be, they can
only be realised by one belligerent overpowering the other. Such a
defeat as compels the vanquished to comply with any demand the victor
may choose to make is the purpose of war. Therefore war calls into
existence the display of the greatest possible power and force on the
part of the belligerents, rouses the passion of the nations in conflict
to the highest possible degree, and endangers the welfare, the honour,
and eventually the very existence of both belligerents. Nobody can
predict with certainty the result of a war however insignificant one
side may seem to be. Every war is a risk and a venture. Every State
which goes to war knows beforehand what is at stake, and it would never
go to war were it not for its firm, though very often illusory,
conviction of its superiority in strength over its opponent. Victory is
necessary in order to overpower the enemy; and it is this necessity
which justifies all the indescribable horrors of war, the enormous
sacrifice of human life and health, and the unavoidable destruction of
property and devastation of territory. Apart from special restrictions
imposed by the Law of Nations upon belligerents, all kinds and all
degrees of force may be, and eventually must be, made use of in war in
the interest and under the compulsion of its purpose, and in spite of
their cruelty and the utter misery they entail. As war is a struggle for
existence between States, no amount of individual suffering and misery
can be regarded; the national existence and independence of the
struggling State is a higher consideration than any individual
well-being.
[Footnote 71: See below, § 66.]
[Sidenote: Civil War.]
§ 59. The characteristics of war as developed above must help to decide
the question whether so-called civil wars are war in the technical
meaning of the term. It has already been stated above (in § 56) that an
armed contention between member-States of a Federal State and the latter
and between a suzerain and its vassal ought to be considered as war
because both parties are real States, although the Federal State as well
as the suzerain may correctly designate it as a rebellion. Such armed
contentions may be called civil wars in a wider sense of the term. In
the proper sense of the term a civil war exists when two opposing
parties within a State have recourse to arms for the purpose of
obtaining power in the State, or when a large portion of the population
of a State rises in arms against the legitimate Government. As war is an
armed contention between _States_, such a civil war need not be from the
beginning, nor become at all, war in the technical sense of the term.
But it may become war through the recognition of each of the contending
parties or of the insurgents as the case may be, as a belligerent
Power.[72] Through this recognition a body of individuals receives an
international position in so far as it is for some parts and in some
points treated as though it were a subject[73] of International Law.
Such recognition may be granted by the very State within the boundaries
of which the civil war broke out, and then other States will in most
cases, although they need not, likewise recognise a state of war as
existing and bear the duties of neutrality. But it may happen that other
States recognise insurgents as a belligerent Power before the State on
whose territory the insurrection broke out so recognises them. In such
case the insurrection is war in the eyes of these other States, but not
in the eyes of the legitimate Government.[74] Be that as it may, it must
be specially observed that, although a civil war becomes war in the
technical sense of the term by recognition, this recognition has a
lasting effect only when the insurgents succeed in getting their
independence established through the defeat of the legitimate Government
and a consequent treaty of peace which recognises their independence.
Nothing, however, prevents the State concerned, after the defeat of the
insurgents and reconquest of the territory which they had occupied, from
treating them as rebels according to the Criminal Law of the land, for
the character of a belligerent Power received through recognition is
lost _ipso facto_ by their defeat and the re-occupation by the
legitimate Government of the territory occupied by them.
[Footnote 72: See below, §§ 76 and 298.]
[Footnote 73: See above, vol. I. § 63.]
[Footnote 74: See below, § 298.]
[Sidenote: Guerilla War.]
§ 60. The characteristics of war as developed above are also decisive
for the answer to the question whether so-called guerilla war is real
war in the technical sense of the term. Such guerilla war must not be
confounded with guerilla tactics during a war. It happens during war
that the commanders send small bodies of soldiers wearing their uniform
to the rear of the enemy for the purpose of destroying bridges and
railways, cutting off communications and supplies, attacking convoys,
intercepting despatches, and the like. This is in every way legal, and
the members of such bodies, when captured, enjoy the treatment due to
enemy soldiers. It happens, further, that hitherto private individuals
who did not take part in the armed contention take up arms and devote
themselves mainly to similar tactics. According to the former rules of
International Law such individuals, when captured, under no condition
enjoyed the treatment due to enemy soldiers, but could be treated as
criminals and punished with death. According to article 1 of the
Regulations concerning war on land adopted by the Hague Conferences of
1899 and 1907 such guerilla fighters enjoy the treatment of soldiers
under the four conditions that they (1) do not act individually, but
form a body commanded by a person responsible for his subordinates, (2)
have a fixed distinctive emblem recognisable at a distance, (3) carry
arms openly, and (4) conduct their operations in accordance with the
laws of war.[75]
[Footnote 75: See also article 2 of the Hague Regulations.]
On the other hand, one speaks of guerilla war or petty war when, after
the defeat and the capture of the main part of the enemy forces, the
occupation of the enemy territory, and the downfall of the enemy
Government, the routed remnants of the defeated army carry on the
contention by mere guerilla tactics. Although hopeless of success in the
end, such petty war can go on for a long time thus preventing the
establishment of a state of peace in spite of the fact that regular war
is over and the task of the army of occupation is no longer regular
warfare. Now the question whether such guerilla war is real war in the
strict sense of the term in International Law must, I think, be answered
in the negative, for two reasons. First, there are no longer the forces
of two States in the field, because the defeated belligerent State has
ceased to exist through the military occupation of its territory, the
downfall of its established Government, the capture of the main part and
the routing of the remnant of its forces. And, secondly, there is no
longer in progress a contention between armed forces. For although the
guerilla bands are still fighting when attacked, or when attacking small
bodies of enemy soldiers, they try to avoid a pitched battle, and
content themselves with the constant harassing of the victorious army,
the destroying of bridges and railways, cutting off communications and
supplies, attacking convoys, and the like, always in the hope that some
event or events may occur which will induce the victorious army to
withdraw from the conquered territory. But if guerilla war is not real
war, it is obvious that in strict law the victor need no longer treat
the guerilla bands as a belligerent Power and the captured members of
those bands as soldiers. It is, however, not advisable that the victor
should cease such treatment as long as those bands are under responsible
commanders and observe themselves the laws and usages of war. For I can
see no advantage or reason why, although in strict law it could be done,
those bands should be treated as criminals. Such treatment would only
call for acts of revenge on their part, without in the least
accelerating the pacification of the country. And it is, after all, to
be taken into consideration that those bands act not out of criminal but
patriotic motives. With patience and firmness the victor will succeed in
pacifying these bands without recourse to methods of harshness.
II
CAUSES, KINDS, AND ENDS OF WAR
Grotius, I. c. 3; II. c. 1; III. c. 3--Pufendorf, VIII. c. 6, §
9--Vattel, III. §§ 2, 5, 24-50, 183-187--Lorimer, II. pp.
29-48--Phillimore, III. §§ 33-48--Twiss, II. §§ 26-30--Halleck, I.
pp. 488-519--Taylor, §§ 452-454--Wheaton, §§ 295-296--Bluntschli, §§
515-521--Heffter, § 113--Lueder in Holtzendorff, IV. pp.
221-236--Klüber, §§ 41, 235, 237--G. F. Martens, §§ 265-266--Ullmann,
§ 166--Bonfils, Nos. 1002-1005--Despagnet, No. 506--Pradier-Fodéré,
VI. Nos. 2661-2670--Rivier, II. p. 219--Nys, III. pp. 106-114--Calvo,
IV. §§ 1866-1896--Fichte, _Ueber den Begriff des wahrhaften Krieges_
(1815)--Rettich, _Zur Theorie und Geschichte des Rechts zum Kriege_
(1888), pp. 141-292--Peyronnard, _Des causes de la guerre_ (1901).
[Sidenote: Rules of Warfare independent of Causes of War.]
§ 61. Whatever may be the cause of a war that has broken out, and
whether or no the cause be a so-called just cause, the same rules of
International Law are valid as to what must not be done, may be done,
and must be done by the belligerents themselves in making war against
each other, and as between the belligerents and neutral States. This
being the case, the question as to the causes of war is of minor
importance for the Law of Nations, although not for international
ethics. The matter need not be discussed at all in a treatise on
International Law were it not for the fact that many writers maintain
that there are rules of International Law in existence which determine
and define just causes of war. It must, however, be emphasised that this
is by no means the case. All such rules laid down by writers on
International Law as recognise certain causes as just and others as
unjust are rules of writers, but not rules of International Law based on
international custom or international treaties.
[Sidenote: Causes of War.]
§ 62. The causes of war are innumerable. They are involved in the fact
that the development of mankind is indissolubly connected with the
national development of States. The millions of individuals who as a
body are called mankind do not face one another individually and
severally, but in groups as races, nations, and States. With the welfare
of the races, nations, and States to which they belong the welfare of
individuals is more or less identified. And it is the development of
races, nations, and States that carries with it the causes of war. A
constant increase of population must in the end force upon a State the
necessity of acquiring more territory, and if such territory cannot be
acquired by peaceable means, acquisition by conquest alone remains. At
certain periods of history the principle of nationality and the desire
for national unity gain such a power over the hearts and minds of the
individuals belonging to the same race or nation, but living within the
boundaries of several different States, that wars break out for the
cause of national unity and independence. And jealous rivalry between
two or more States, the awakening of national ambition, the craving for
rich colonies, the desire of a land-locked State for a sea coast, the
endeavour of a hitherto minor State to become a world-Power, the
ambition of dynasties or of great politicians to extend and enlarge
their influence beyond the boundaries of their own State, and
innumerable other factors, have been at work ever since history was
first recorded in creating causes of war, and these factors likewise
play their part in our own times. Although one must hope that the time
will come when war will entirely disappear, there is no possibility of
seeing this hope realised in the near future. The first necessities of
the disappearance of war are that the surface of the earth should be
shared between States of the same standard of civilisation, and that the
moral ideas of the governing classes in all the States of the world
should undergo such an alteration and progressive development as would
create the conviction that decisions of international courts of justice
and awards of arbitrators are alone adequate means for the settlement of
international disputes and international political aims. So long as
these first necessities are not realised, war will as heretofore remain
the _ultima ratio_ of international politics.
[Sidenote: Just Causes of War.]
§ 63. However this may be, it often depends largely upon the standpoint
from which they are viewed whether or no causes of war are to be called
just causes. A war may be just or unjust from the standpoint of both
belligerents, or just from the standpoint of one and utterly unjust from
the standpoint of the other. The assertion that whereas all wars waged
for political causes are unjust, all wars waged for international
delinquencies are just, if there be no other way of getting reparation
and satisfaction, is certainly incorrect because too sweeping. The evils
of war are so great that, even when caused by an international
delinquency,[76] war cannot be justified if the delinquency be
comparatively unimportant and trifling. And, on the other hand, under
certain circumstances and conditions many political causes of war may
correctly be called just causes. Only such individuals as lack insight
into history and human nature can, for instance, defend the opinion that
a war is unjust which has been caused by the desire for national unity
or by the desire to maintain the balance of power which under the
present conditions and circumstances is the basis of all International
Law. Necessity for a war implies its justification, whatever may be the
cause. In the past many wars have undoubtedly been waged which were
unjust from whatever standpoint they may be viewed. Yet the number of
wars diminishes gradually every year, and the majority of the European
wars since the downfall of Napoleon I. were wars that were, from the
standpoint of at any rate one of the belligerents, necessary and
therefore just wars.
[Footnote 76: See above, vol. I. §§ 151-156.]
[Sidenote: Causes in contradistinction to Pretexts for War.]
§ 64. Be that as it may, causes of war must not be confounded with
pretexts for war. A State which makes war against another will never
confess that there is no just cause for war, and it will therefore, when
it has made up its mind to make war for political reasons, always look
out for a so-called just cause. Thus frequently the apparent reason of a
war is only a pretext behind which the real cause is concealed. If two
States are convinced that war between them is inevitable, and if
consequently they face each other armed to the teeth, they will find at
the suitable time many a so-called just cause plausible and calculated
to serve as a pretext for the outbreak of the war which was planned and
resolved upon long ago. The skill of politics and diplomacy are nowhere
more needed than on the occasion of a State's conviction that it must go
to war for one reason or another. Public opinion at home and abroad is
often not ripe to appreciate the reason and not prepared for the scheme
of the leading politicians, whose task it is to realise their plans with
the aid of pretexts which appear as the cause of war, whereas the real
cause does not become apparent for some time.
[Sidenote: Different kinds of War.]
§ 65. Such writers on International Law as lay great stress upon the
causes of war in general and upon the distinction between just causes
and others, also lay great stress upon the distinction between different
kinds of war. But as the rules of the Law of Nations are the same[77]
for the different kinds of war that may be distinguished, this
distinction is in most cases of no importance. Apart from that, there is
no unanimity respecting the kinds of war, and it is apparent that, just
as the causes of war are innumerable, so innumerable kinds of war can be
distinguished. Thus one speaks of offensive and defensive, or religious,
political, dynastic, national, civil wars; of wars of unity,
independence, conquest, intervention, revenge, and of many other kinds.
As the very name which each different kind of war bears always explains
its character no further details are necessary respecting kinds of war.
[Footnote 77: See above, § 61.]
[Sidenote: Ends of War.]
§ 66. The cause or causes of a war determine at its inception the ends
of such war. The ends of war must not be confounded with the purpose of
war.[78] Whereas the purpose of war is always the same--namely, the
overpowering and utter defeat of the opponent--the ends of war may be
different in each case. Ends of war are those objects for the
realisation of which a war is made.[79] In the beginning of the war its
ends are determined by its cause or causes, as already said. But these
ends may undergo alteration, or at least modification, with the progress
and development of the war. No moral or legal duty exists for a
belligerent to stop the war when his opponent is ready to concede the
object for which war was made. If war has once broken out the very
national existence of the belligerents is more or less at stake. The
risk the belligerents run, the exertion they make, the blood and wealth
they sacrifice, the reputation they gain or lose through the changing
fortune and chances of war--all these and many other factors work or may
work together to influence the ends of a war so that eventually there is
scarcely any longer a relation between them and the causes of the war.
If war really were, as some writers maintain,[80] the legal remedy of
self-help to obtain satisfaction for a wrong sustained from another
State, no such alteration of the ends of war could take place without at
once setting in the wrong such belligerent as changes the ends for which
the war was initiated. But history shows that nothing of the kind is
really the case, and the existing rules of International Law by no means
forbid such alteration or modification of the ends of a war. This
alteration or modification of the ends is the result of an alteration or
modification of circumstances created during the progress of war through
the factors previously mentioned; it could not be otherwise, and there
is no moral, legal, or political reason why it should be otherwise. And
the natural jealousy between the members of the Family of Nations, their
conflicting interests in many points, and the necessity of a balance of
power, are factors of sufficient strength to check the political dangers
which such alteration of the ends of a war may eventually involve.
[Footnote 78: Ends of war must likewise not be confounded with aims of
land and sea warfare; see below, §§ 103 and 173.]
[Footnote 79: See Bluntschli, § 536; Lueder in Holtzendorff, IV. p. 364;
Rivier, II. p. 219.]
[Footnote 80: See above, § 54.]
III
THE LAWS OF WAR
Hall, § 17--Westlake, _Chapters_, pp. 232-235--Maine, pp.
122-159--Phillimore, III. § 50--Taylor, § 470--Walker, _History_,
I. §§ 106-108--Heffter, § 119--Lueder in Holtzendorff, IV. pp.
253-333--Ullmann, §§ 167 and 170--Bonfils, Nos.
1006-1013--Despagnet, Nos. 508-510--Pradier-Fodéré, VIII. Nos.
3212-3213--Rivier, II. pp. 238-242--Nys, III. pp. 160-164--Calvo,
IV. §§ 1897-1898--Fiore, III. Nos. 1244-1260--Martens, II. §
107--Longuet, p. 12--Bordwell, pp. 100-196--Spaight, pp.
1-19--_Kriegsbrauch_, p. 2--_Land Warfare_, §§ 1-7--Holland,
_Studies_, pp. 40-96.
[Sidenote: Origin of the Laws of War.]
§ 67. Laws of War are the rules of the Law of Nations respecting
warfare. The roots of the present Laws of War are to be traced back to
practices of belligerents which arose and grew gradually during the
latter part of the Middle Ages. The unsparing cruelty of the war
practices during the greater part of the Middle Ages began gradually to
be modified through the influence of Christianity and chivalry. And
although these practices were cruel enough during the fifteenth,
sixteenth, and seventeenth centuries, they were mild compared with those
of still earlier times. Decided progress was made during the eighteenth,
and again during the nineteenth century, after the close of the
Napoleonic wars, especially in the years from 1850 to 1900. The laws of
war evolved in this way: isolated milder practices became by-and-by
usages, so-called _usus in bello_, manner of warfare, _Kriegs-Manier_,
and these usages through custom and treaties turned into legal rules.
And this evolution is constantly going on, for, besides the recognised
Laws of War, there are usages in existence which have a tendency to
become gradually legal rules of warfare. The whole growth of the laws
and usages of war is determined by three principles. There is, first,
the principle that a belligerent should be justified in applying any
amount and any kind of force which is necessary for the realisation of
the purpose of war--namely, the overpowering of the opponent. There is,
secondly, the principle of humanity at work, which says that all such
kinds and degrees of violence as are not necessary for the overpowering
of the opponent should not be permitted to a belligerent. And, thirdly
and lastly, there is at work the principle of chivalry which arose in
the Middle Ages and introduced a certain amount of fairness in offence
and defence, and a certain mutual respect. And, in contradistinction to
the savage cruelty of former times, belligerents have in modern times
come to the conviction that the realisation of the purpose of war is in
no way hampered by indulgence shown to the wounded, the prisoners, and
the private individuals who do not take part in the fighting. Thus the
influence of the principle of humanity has been and is still enormous
upon the practice of warfare. And the methods of warfare, although by
the nature of war to a certain degree cruel and unsparing, become less
cruel and more humane every day. But it must be emphasised that the
whole evolution of the laws and usages of war could not have taken place
but for the institution of standing armies, which dates from the
fifteenth century. The humanising of the practices of war would have
been impossible without the discipline of standing armies; and the
important distinction between members of armed forces and private
individuals could not have arisen without the existence of standing
armies.
[Sidenote: The latest Development of the Laws of War.]
§ 68. The latest and the most important development of the Laws of War
was produced through general treaties concluded between the majority of
States since the beginning of the second part of the nineteenth century.
The following are the treaties concerned:--
(1) The Declaration of Paris of April 16, 1856, respecting warfare on
sea. It abolishes privateering, recognises the principles that the
neutral flag covers enemy goods and that neutral goods under an enemy
flag cannot be seized, and enacts the rule that a blockade in order to
be binding must be effective. The Declaration is signed by seven States,
but eighteen others acceded in course of time.
(2) The Geneva Convention of August 22, 1864, for the amelioration of
the condition of wounded soldiers in armies in the field, which
originally was signed by only nine States, but to which in course of
time all the civilised States--except Costa-Rica, Lichtenstein, and
Monaco!--have acceded. A treaty containing a number of additional
articles to the Convention was signed at Geneva on October 20, 1868, but
was never ratified. A new Geneva Convention was signed on July 6, 1906,
by thirty-five States, and several others have already acceded. There is
no doubt that the whole civilised world will soon be a party to this new
Geneva Convention. The principles of the Geneva Convention were adapted
to maritime warfare by Conventions (see below, No. 8) of the First and
Second Hague Peace Conferences.
(3) The Declaration of St. Petersburg of December 11, 1868, respecting
the prohibition of the use in war of projectiles under 400 grammes (14
ounces) which are either explosive or charged with inflammable
substances. It is signed by seventeen States.
(4) The Convention enacting "Regulations respecting the Laws of War on
Land," agreed upon at the First Peace Conference of 1899.
The history of this Convention may be traced back to the _Instructions
for the Government of Armies of the United States in the Field_ which
the United States published on April 14, 1863, during the War of
Secession. These instructions, which were drafted by Professor Francis
Lieber, of the Columbia College of New York, represent the first
endeavour to codify the Laws of War, and they are even nowadays of great
value and importance. In 1874 an International Conference, invited by
the Emperor Alexander II. of Russia, met at Brussels for the purpose of
discussing a draft code of the Laws of War on Land as prepared by
Russia. The body of the articles agreed upon at this Conference, and
known as the "Brussels Declarations," have, however, never become law,
as ratification was never given by the Powers. But the Brussels
Declarations were made the basis of deliberations on the part of the
Institute of International Law, which at its meeting at Oxford in 1880
adopted a Manual[81] of the Laws of War consisting of a body of 86 rules
under the title _Les Lois de la Guerre sur Terre_, and a copy of this
draft code was sent to all the Governments of Europe and America. It
was, however, not until the Hague Peace Conference of 1899 that the
Powers reassembled to discuss again the codification of the Laws of War.
At this Conference the Brussels Declarations were taken as the basis of
the deliberations; but although the bulk of its articles was taken over,
several important modifications were introduced in the Convention, which
was finally agreed upon and ratified, only a few Powers abstaining from
ratification.
[Footnote 81: See _Annuaire_, V. pp. 157-174.]
The Second Peace Conference of 1907 has revised this Convention, and its
place is now taken by Convention IV. of the Second Peace Conference. The
Convention,[82] as the preamble expressly states, does not aim at
giving a complete code of the Laws of War on Land, and cases beyond its
scope still remain the subject of customary rules and usages. Further,
it does not create universal International Law, as article 2 of the
Convention expressly stipulates that the Regulations shall be binding
upon the contracting Powers only in case of war between two or more of
them, and shall cease to be binding in case a non-contracting Power
takes part in the war. But, in spite of this express stipulation, there
can be no doubt that in time the Regulations will become universal
International Law. For all the Powers represented at the Second Peace
Conference signed the Convention, except China, Spain, and Nicaragua,
although some States made certain reservations. Nicaragua has since
acceded, and it is certain that the outstanding States will in time also
accede.
[Footnote 82: For brevity's sake the Hague Convention enacting
Regulations regarding the laws and customs of war on land will be
referred to in the following pages as the _Hague Regulations_. It is,
however, of importance to observe that the Hague Regulations, although
they are intended to be binding upon the belligerents, are only the
basis upon which the signatory Powers have to frame instructions for
their forces. Article 1 declares: "The high contracting parties shall
issue instructions to their armed land forces, which shall be in
conformity with the Regulations respecting the Laws of War on Land
annexed to the present Convention." The British War Office, therefore,
published in 1912, a guide, _Land Warfare: an Exposition of the Laws and
Usages of War on Land for the Guidance of Officers of His Majesty's
Army_, written by order of His Majesty's Secretary of War by Colonel
Edmonds and Professor Oppenheim, in which the Hague Regulations are
systematically set out; their full text is published in Appendix 6 of
the guide. But it should be mentioned that the British War Office had
already in 1903 published a manual, drafted with great precision and
clearness by Professor Holland, for the information of the British
forces, comprising "The Laws and Customs of War on Land, as defined by
the Hague Convention of 1899." See also Holland, _The Laws of War on
Land (Written and Unwritten)_, Oxford, 1908.]
(5) The Declaration concerning expanding (dumdum) bullets; see below, §
112.
(6) The Declaration concerning projectiles and explosives launched from
balloons; see below, § 114.
(7) The Declaration concerning projectiles diffusing asphyxiating or
deleterious gases; see below, § 113.
(8) The Convention for the adaptation to sea warfare of the principles
of the Geneva Convention, produced by the First and revised by the
Second Peace Conference.
(9) The Convention of 1907 concerning the opening of hostilities (Second
Peace Conference).
(10) The Convention of 1907 concerning the status of enemy merchantmen
at the outbreak of hostilities (Second Peace Conference).
(11) The Convention of 1907 concerning the conversion of merchantmen
into men-of-war (Second Peace Conference).
(12) The Convention of 1907 concerning the laying of automatic submarine
contact mines (Second Peace Conference).
(13) The Convention of 1907 concerning bombardment by naval forces in
time of war (Second Peace Conference).
(14) The Convention of 1907 concerning certain restrictions on the
exercise of the right of capture in maritime war (Second Peace
Conference).
(15) The two Conventions of 1907 concerning the rights and duties of
neutral Powers and persons in land warfare and in sea warfare (Second
Peace Conference).
(16) The Declaration of London of February 26, 1909, concerning the Laws
of Naval War, which was signed at the Conference of London by Great
Britain, Germany, the United States of America, Austria-Hungary, Spain,
France, Italy, Japan, Holland, and Russia, but is not yet ratified. This
Declaration enacts rules concerning blockade, contraband, unneutral
service, destruction of neutral prizes, transfer of vessels to a neutral
flag, enemy character, convoy, and resistance to search.[83]
[Footnote 83: The United States of America (see above, vol. I. § 32),
published on June 27, 1900, a body of rules for the use of her navy
under the title _The Laws and Usages of War on Sea_--the so-called
"United States Naval War Code." This code, although withdrawn on
February 4, 1904, will undoubtedly be the starting-point of a movement
for a Naval War Code to be generally agreed upon by the Powers. See
below, § 179.]
[Sidenote: Binding force of the Laws of War.]
§ 69. As soon as usages of warfare have by custom or treaty evolved into
laws of war, they are binding upon belligerents under all circumstances
and conditions, except in the case of reprisals[84] as retaliation
against a belligerent for illegitimate acts of warfare by the members of
his armed forces or his other subjects. In accordance with the German
proverb, _Kriegsraeson geht vor Kriegsmanier_ (_necessity in war
overrules the manner of warfare_), many German authors[85] and the
Swiss-Belgian Rivier[86] maintain that the laws of war lose their
binding force in case of extreme necessity. Such case of extreme
necessity is said to have arisen when violation of the laws of war alone
offers either a means of escape from extreme danger or the realisation
of the purpose of war--namely, the overpowering of the opponent. This
alleged exception to the binding force of the Laws of War, is, however,
not at all generally accepted by German writers, for instance,
Bluntschli does not mention it. English, American, French, and Italian
writers do not, so far as I am aware, acknowledge it. The protest of
Westlake,[87] therefore, against such an exception is the more
justified, as a great danger would be involved by its admission.
[Footnote 84: See below, § 248.]
[Footnote 85: See, for instance, Lueder in Holtzendorff, IV. pp.
254-257; Ullmann, § 170; Meurer, II. pp. 7-15. Liszt, who in former
editions agreed with these writers, deserts their ranks in the sixth
edition (§ 24, IV. 3), and correctly takes the other side. See also Nys,
III. p. 202, and Holland, _War_, § 2, where the older literature is
quoted.]
[Footnote 86: See Rivier, II. p. 242.]
[Footnote 87: See Westlake, II. pp. 115-117, and Westlake, _Chapters_,
p. 238.]
The proverb dates very far back in the history of warfare. It originated
and found recognition in those times when warfare was not regulated by
laws of war--that is universally binding customs and international
treaties, but only by usages (_Manier, i.e. Brauch_), and it says that
necessity in war overrules usages of warfare. In our days, however,
warfare is no longer regulated by usages only, but to a greater extent
by laws, firm rules recognised either by international treaties or by
universal custom.[88] These conventional and customary rules cannot be
overruled by necessity, unless they are framed in such a way as not to
apply to a case of necessity in self-preservation. Thus, for instance,
the rules that poisoned arms and poison are forbidden, and that it is
not allowed treacherously to kill or wound individuals belonging to the
hostile army, do not lose their binding force even if escape from
extreme danger or the realisation of the purpose of war would result
from an act of this kind. Article 22 of the Hague Rules stipulates
distinctly that the right of belligerents to adopt means of injuring the
enemy is not unlimited, and this rule does not lose its binding force in
a case of necessity. What may be ignored in case of military necessity
are not the laws of war, but only the usages of war. _Kriegsraeson geht
vor Kriegsmanier_, but not _vor Kriegsrecht_!
[Footnote 88: Concerning the distinction between usage and custom, see
above, vol. I. § 17.]
IV
THE REGION OF WAR
Taylor, §§ 471 and 498--Heffter, § 118--Lueder in Holtzendorff,
IV. pp. 362-364--Klüber, § 242--Liszt, § 40, I.--Ullmann, §
174--Pradier-Fodéré, VI. No. 2733, and VIII. Nos.
3104-3106--Rivier, II. pp. 216-219--Boeck, Nos. 214-230--Longuet,
§§ 18-25--Perels, § 33--Rettich, _Zur Theorie und Geschichte des
Rechts zum Kriege_ (1888), pp. 174-213.
[Sidenote: Region of War in contradistinction to Theatre of War.]
§ 70. Region of war is that part of the surface of the earth in which
the belligerents may prepare and execute hostilities against each other.
In this meaning region of war ought[89] to be distinguished from theatre
of war. The latter is that part of a territory or the Open Sea on which
hostilities actually take place. Legally no part of the earth which is
not region of war may be made the theatre of war, but not every section
of the whole region of war is necessarily theatre of war. Thus, in the
war between Great Britain and the two South African Republics the whole
of the territory of the British Empire and the Open Sea, as well as the
territory of the Republics, was the region of war, but the theatre of
war was in South Africa only. On the other hand, in a war between Great
Britain and another great naval Power it might well happen that the
region of war is in many of its sections made the theatre of war.
[Footnote 89: This distinction, although of considerable importance,
does not appear to have been made by any other publicist.]
[Sidenote: Particular Region of every War.]
§ 71. The region of war depends upon the belligerents. For this reason
every war has its particular region, so far at any rate as territorial
region is concerned. For besides the Open Sea[90] and all such
territories as are as yet not occupied by any State, which are always
within the region of war, the particular region of every war is the
whole of the territories and territorial waters of the belligerents. It
must, however, be specially observed that any part of the globe which is
permanently neutralised,[91] is always exempt from the region of war.
[Footnote 90: See above, vol. I. § 256.]
[Footnote 91: See below, § 72.]
Since colonies are a part of the territory of the mother country, they
fall within the region of war in the case of a war between the mother
country and another State, whatever their position may be within the
colonial empire they belong to. Thus in a war between Great Britain and
France the whole of Australia, of Canada, of India, and so on, would be
included with the British Islands as region of war. And, further, as
States under the suzerainty of another State are internationally in
several respects considered to be a portion of the latter's
territory,[92] they fall within the region of war in case of war between
the suzerain and another Power. Again, such parts of the territory of a
State as are under the _condominium_ or under the administration of
another State[93] fall within the region of war in case of war between
one of the _condomini_ and another Power and in case of war between the
administrating State and another State. Thus, in a war between Great
Britain and another Power, Cyprus would fall within the region of war;
and the Soudan, which is in the _condominium_ of England and Egypt,
would likewise do so. On the other hand, Cyprus would not fall within
the region of war in the case of war between Turkey and another Power,
Great Britain excepted.
[Footnote 92: See above, vol. I. §§ 91 and 169.]
[Footnote 93: See above, vol. I. § 171.]
Although as a rule the territories of both belligerents, together with
the Open Sea, fall within the region of war, and neutral territories do
not, exceptions to the rule may occur:--
(1) A belligerent can deliberately treat certain territories which
legally fall within the region of war, as well as parts of the Open Sea,
as though they were not parts of the region of war, provided that such
territories on their part fulfil the duties incumbent upon neutrals.
Thus during the Turco-Italian War in 1911 and 1912, Italy treated Crete
and Egypt as though they were not parts of the region of war.[94]
(2) Cases are possible in which a part or the whole of the territory of
a neutral State falls within the region of war. These cases arise in
wars in which such neutral territories are the very objects of the war,
as Korea, which was at that time an independent State, and the Chinese
province of Manchuria[95] were in the Russo-Japanese War of 1904 and
1905. Such a case may also occur if an army of one of the belligerents
crosses the frontier of a neutral State, but is not at once disarmed
and interned, and is, therefore, able at any moment to recross the
frontier and attack the other belligerent.[96] Since necessity of
self-preservation can compel the latter on his part also to cross the
neutral frontier and pursue and attack the enemy on neutral territory,
the part of such neutral territory concerned would for this reason
become part of the region of war.
[Footnote 94: There is no doubt that this attitude of Italy is explained
by the fact that Egypt, although legally under Turkish suzerainty, is
actually under British occupation, and that Crete is forcibly kept by
the Powers under Turkish suzerainty.]
[Footnote 95: See below, § 320.]
[Footnote 96: See below, § 339.]
[Sidenote: Exclusion from region of war through neutralisation.]
§ 72. Although the Open Sea in its whole extent and the whole of the
territories of the belligerents are as a rule within the region of war,
certain parts can be excluded through neutralisation. Such
neutralisation can take place permanently through a general treaty of
the Powers or temporarily through a special treaty of the belligerents.
At present no part of the Open Sea is neutralised, as the neutralisation
of the Black Sea was abolished[97] in 1871. But the following are some
important instances[98] of permanent neutralisation of parts of
territories:--
(1) The former Sardinian, but since 1860 French, provinces of Chablais
and Faucigny[99] are permanently neutralised through article 92 of the
Act of the Vienna Congress, 1815.
(2) The Ionian Islands through article 2 of the Treaty of London of
November 14, 1863, are permanently neutralised since they merged in the
kingdom of Greece. But this neutralisation was restricted[100] to the
islands of Corfu and Paxo only by article 2 of the treaty of London of
March 24, 1864.
(3) The Suez Canal is permanently neutralised[101] since 1888.
(4) The Straits of Magellan[102] are permanently neutralised through
article 5 of the boundary treaty of Buenos Ayres of July 23, 1881. But
this treaty is not a general treaty of the Powers, since it is concluded
between Argentina and Chili only.
(5) The Panama[103] Canal is permanently neutralised through article 3
of the Hay-Pauncefote treaty of November 18, 1901. But this treaty is
not a general treaty of the Powers either, being concluded between only
Great Britain and the United States.
(6) A piece of territory along the frontier between Sweden and Norway is
neutralised by the Convention of Stockholm of October 26, 1905, which
includes rules concerning a neutral zone.[104] But this is a
neutralisation agreed upon between Sweden and Norway only, no third
Power has anything to do with it, and even the contracting Powers
stipulate--see article 1, last paragraph--that the neutralisation shall
not be valid in the case of a war against a common enemy.
[Footnote 97: See above, vol. I. §§ 181 and 256.]
[Footnote 98: The matter is thoroughly treated in Rettich, _Zur Theorie
und Geschichte des Rechtes zum Kriege_ (1888), pp. 174-213, where also
the neutralisation of some so-called international rivers, especially
the Danube, Congo, and Niger, is discussed.]
[Footnote 99: See above, vol. I. § 207.]
[Footnote 100: See Martens, _N.R.G._ XVIII. p. 63.]
[Footnote 101: See above, vol. I. § 183.]
[Footnote 102: See Martens, _N.R.G._ 2nd Ser. XII. p. 491, and above,
vol. I. § 195, p. 267, note 2, and § 568, p. 592, note 2.]
[Footnote 103: See above, vol. I. § 184.]
[Footnote 104: See Martens, _N.R.G._ 2nd Ser. XXXIV. (1907), p. 703.]
As regards temporary neutralisation, it is possible for parts of the
territories of belligerents and certain parts of the Open Sea to become
neutralised through a treaty of the belligerents for the time of a
particular war only. Thus, when in 1870 war broke out between France and
Germany, the commander of the French man-of-war[105] _Dupleix_ arranged
with the commander of the German man-of-war _Hertha_--both stationed in
the Japanese and Chinese waters--that they should, through their
embassies in Yokohama, propose to their respective Governments the
neutralisation of the Japanese and Chinese waters for the time of the
war. Germany consented, but France refused the neutralisation. Again, at
the commencement of the Turco-Italian War in 1911, Turkey proposed the
neutralisation of the Red Sea, but Italy refused to agree to it.
[Footnote 105: See Perels, § 33, p. 160, note 2.]
[Sidenote: Asserted exclusion of the Baltic Sea from the Region of War.]
§ 73. That there is at present no part of the Open Sea neutralised is
universally recognised, and this applies to the Baltic Sea, which is
admittedly part of the Open Sea. Some writers,[106] however, maintain
that the littoral States of the Baltic have a right to forbid all
hostilities within the Baltic in case of a war between other States than
themselves, and could thereby neutralise the Baltic without the consent
and even against the will of the belligerents. This opinion is based on
the fact that during the eighteenth century the littoral States of the
Baltic claimed that right in several conventions, but it appears
untenable, because it is opposed to the universally recognised principle
of the freedom of the Open Sea. As no State has territorial supremacy
over parts of the Open Sea, I cannot see how such a right of the
littoral States of the Baltic could be justified.[107]
[Footnote 106: See Perels, pp. 160-163, who discusses the question at
some length and answers it in the affirmative.]
[Footnote 107: See Rivier, II. p. 218; Bonfils, § 504; Nys, I. pp.
448-450.]
V
THE BELLIGERENTS
Vattel, III. § 4--Phillimore, III. §§ 92-93--Taylor, §§
458-460--Wheaton, § 294--Bluntschli, §§ 511-514--Heffter, §§
114-117--Lueder in Holtzendorff, IV. pp. 237-248--Klüber, §
236--G. F. Martens, II. § 264--Gareis, § 83--Liszt, § 39,
II.--Ullmann, §§ 168-169--Pradier-Fodéré, VI. Nos.
2656-2660--Rivier, II. pp. 207-216--Nys. III. pp. 114-118--Calvo,
IV. §§ 2004-2038--Martens, II. § 108--Heilborn, _System_, pp.
333-335.
[Sidenote: Qualification to become a Belligerent (_facultas bellandi_).]
§ 74. As the Law of Nations recognises the status of war and its effects
as regards rights and duties between the two or more belligerents on the
one hand, and, on the other, between the belligerents and neutral
States, the question arises what kind of States are legally qualified
to make war and to become thereby belligerents. Publicists who discuss
this question at all speak mostly of a _right_ of States to make war, a
_jus belli_. But if this so-called right is examined, it turns out to be
no right at all, as there is no corresponding duty in those against whom
the right is said to exist.[108] A State which makes war against another
exercises one of its natural functions, and the only question is whether
such State is or is not legally qualified to exercise such function.
Now, according to the Law of Nations full-Sovereign States alone possess
the legal qualification to become belligerents; half-and part-Sovereign
States are not legally qualified to become belligerents. Since
neutralised States, as Switzerland, Belgium, and Luxemburg, are
full-Sovereign States, they are legally qualified to become
belligerents, although their neutralisation binds them not to make use
of their qualification except for defence. If they become belligerents
because they are attacked, they do not lose their character as
neutralised States, but if they become belligerents for offensive
purposes they _ipso facto_ lose this character.
[Footnote 108: See Heilborn, _System_, p. 333.]
[Sidenote: Possibility in contradistinction to qualification to become a
Belligerent.]
§ 75. Such States as do not possess the legal qualification to become
belligerents are by law prohibited from offensive or defensive warfare.
But the possession of armed forces makes it possible for them in fact to
enter into war and to become belligerents. History records instances
enough of such States having actually made war. Thus in 1876 Servia and
Montenegro, although at that time vassal States under Turkish
suzerainty, declared war against Turkey, and in March 1877, peace was
concluded between Turkey and Servia.[109] And when in April 1877 war
broke out between Russia and Turkey, the then Turkish vassal State
Roumania joined Russia, and Servia declared war anew against Turkey in
December 1877. Further in November 1885 a war was waged between Servia,
which had become a full-Sovereign State, and Bulgaria, which was at the
time still a vassal State under Turkish suzerainty; the war lasted
actually only a fortnight, but the formal treaty of peace was not signed
until March 3, 1886, at Bukarest.[110] And although Turkey is a party to
this treaty, Bulgaria appears as a party thereto independently and on
its own behalf.
[Footnote 109: See Martens, _N.R.G._ 2nd Ser. IV. pp. 12, 14, 172.]
[Footnote 110: See Martens, _N.R.G._ 2nd Ser. IV. p. 284.]
Whenever a case arises in which a State lacking the legal qualification
to make war nevertheless actually makes war, such State is a
belligerent, the contention is real war and all the rules of
International Law respecting warfare apply to it.[111] Therefore, an
armed contention between the suzerain and the vassal, between a
full-Sovereign State and a vassal State under the suzerainty of another
State, and, lastly, between a Federal State and one or more of its
members, is war[112] in the technical sense of the term according to the
Law of Nations.
[Footnote 111: This is quite apparent through the fact that Bulgaria by
accession became a party to the Geneva Convention at a time when she was
still a vassal State under Turkish suzerainty.]
[Footnote 112: See above, § 56, and Baty, _International Law in South
Africa_ (1900), pp. 66-68.]
[Sidenote: Insurgents as a Belligerent Power.]
§ 76. The distinction between legal qualification and actual power to
make war explains the fact that insurgents may become a belligerent
Power. It is a customary rule of the Law of Nations that any State may
recognise insurgents as a belligerent Power, provided (1) they are in
possession of a certain part of the territory of the legitimate
Government; (2) they have set up a Government of their own; and (3) they
conduct their armed contention with the legitimate Government according
to the laws and usages of war.[113] Such insurgents in fact, although
not in law, form a State-like community, and practically they are making
war, although their contention is by International Law not considered as
war in the technical sense of the term as long as they have not received
recognition as a belligerent Power.
[Footnote 113: See above, § 59. See also Rougier, _Les guerres civiles_,
&c. (1903), pp. 372-447, and Westlake, I. pp. 50-57. The Institute of
International Law, at its meeting at Neuchatel in 1900, adopted a body
of nine articles concerning the rights and duties of foreign States in
case of an insurrection; articles 4-9 deal with the recognition of the
belligerency of insurgents. See _Annuaire_, XVIII. p. 227.]
[Sidenote: Principal and accessory Belligerent Parties.]
§ 77. War occurs usually between two States, one belligerent party being
on each side. But there are cases in which there are on one or on both
sides several parties, and in some of such cases principal and accessory
belligerent parties are to be distinguished.
Principal belligerent parties are those parties to a war who wage it on
the basis of a treaty of alliance, whether such treaty was concluded
before or during the war. On the other hand, accessory belligerent
parties are such States as provide help and succour only in a limited
way to a principal belligerent party at war with another State; for
instance, by paying subsidies, sending a certain number of troops or
men-of-war to take part in the contention, granting a coaling station to
the men-of-war of the principal party, allowing the latter's troops a
passage through their territory, and the like. Such accessory party
becomes a belligerent through rendering help.
The matter need hardly be mentioned at all were it not for the fact that
the question was formerly discussed by publicists whether or not it
involved a violation of neutrality on the part of a neutral State in
case it fulfilled in time of war a treaty concluded in time of peace, by
the terms of which it had to grant a coaling station, the passage of
troops through its territory, and the like, to one of the belligerents.
This question is identical with the question, to be treated below in §
305, whether a qualified neutrality, in contradistinction to a perfect
neutrality, is admissible. Since the answer to this question is in the
negative, such State as fulfils a treaty obligation of this kind in time
of war may be considered by the other side an accessory belligerent
party to the war, and all doubt in the matter ought now to be removed
since article 2 of Convention V. of the Second Peace Conference[114]
categorically enacts that "belligerents are forbidden to move across the
territory of a neutral Power troops or convoys either of munitions of
war or of supplies."
[Footnote 114: See also article 3 of Convention V.]
VI
THE ARMED FORCES OF THE BELLIGERENTS
Vattel, III. §§ 223-231--Hall, §§ 177-179, 181--Lawrence, §§
148-150--Westlake, II. pp. 60-63--Manning, pp.
206-210--Phillimore, III. § 94--Twiss, II. § 45--Halleck, I. pp.
555-562--Taylor, §§ 471-476--Moore, VII. § 1109--Wheaton, §§
356-358--Bluntschli, §§ 569-572--Heffter, §§ 124-124A--Lueder in
Holtzendorff, IV. pp. 371-385--Klüber, 267--G. F. Martens, II. §
271--Gareis, § 83--Ullmann, § 175--Liszt, § 40, II.--Bonfils, Nos.
1088-1098--Despagnet, Nos. 520-523--Pradier-Fodéré, VI. Nos.
2721-2732, and VIII. Nos. 3091-3102--Nys, III. pp.
155-202--Rivier, II. pp. 242-259--Calvo, IV. §§ 2044-2065--Fiore,
III. Nos. 1303-1316, and Code, Nos. 1455-1475--Martens, II. §
112--Longuet, §§ 26-36--Pillet, pp. 35-59--_Kriegsbrauch_, pp.
4-8--Perels, § 34--Boeck, Nos. 209-213--Dupuis, Nos.
74-91--Lawrence, _War_, pp. 195-218--Zorn, pp. 36-73--Bordwell,
pp. 228-236--_Land Warfare_, § 17-38--Meurer, II. §§
11-20--Spaight, pp. 34-72--Ariga, pp. 74-91--Takahashi, pp. 89-93.
[Sidenote: Regular Armies and Navies.]
§ 78. The chief part of the armed forces of the belligerents are their
regular armies and navies. What kinds of forces constitute a regular
army and a regular navy is not for International Law to determine, but a
matter of Municipal Law exclusively. Whether or not so-called Militia
and Volunteer corps belong to armies rests entirely with the Municipal
Law of the belligerents. There are several States whose armies consist
of Militia and Volunteer Corps exclusively, no standing army being
provided for. The Hague Regulations expressly stipulate in article 1
that in countries where Militia or Volunteer Corps constitute the army
or form part of it they are included under the denomination "Army." It
is likewise irrelevant to consider the composition of a regular army,
whether it is based on conscription or not, whether natives only or
foreigners also are enrolled, and the like.
[Sidenote: Non-combatant Members of Armed Forces.]
§ 79. In the main, armed forces consist of combatants, but no army in
the field consists of combatants exclusively, as there are always
several kinds of other individuals, such as couriers, aeronauts,
doctors, farriers, veterinary surgeons, chaplains, nurses, official and
voluntary ambulance men, contractors, canteen-caterers, newspaper
correspondents,[115] civil servants, diplomatists, and foreign military
attachés[116] in the suite of the Commander-in-Chief.
[Footnote 115: See Rey in _R.G._ XVII. (1910), pp. 73-102, and Higgins,
_War and the Private Citizen_ (1912), pp. 91-114.]
[Footnote 116: See Rey in _R.G._ XVII. (1910), pp. 63-73.]
Writers on the Law of Nations do not agree as regards the position of
such individuals; they are not mere private individuals, but, on the
other hand, are certainly not combatants, although they may--as, for
instance, couriers, doctors, farriers, and veterinary surgeons--have the
character of soldiers. They may correctly be said to belong _indirectly_
to the armed forces. Article 3 of the Hague Regulations expressly
stipulates that the armed forces of the belligerents may consist of
combatants and non-combatants, and that both in case of capture must be
treated as prisoners of war, provided[117] they produce a certificate of
identification from the military authorities of the army they are
accompanying. However, when one speaks of armed forces generally,
combatants only are in consideration.
[Footnote 117: See below, § 127.]
[Sidenote: Irregular Forces.]
§ 80. Very often the armed forces of belligerents consist throughout the
war of their regular armies only, but, on the other hand, it happens
frequently that irregular forces take part in the war. Of such irregular
forces there are two different kinds to be distinguished--first, such as
are authorised by the belligerents; and, secondly, such as are acting on
their own initiative and their own account without special
authorisation. Formerly it was a recognised rule of International Law
that only the members of authorised irregular forces enjoyed the
privileges due to the members of the armed forces of belligerents,
whereas members of unauthorised irregular forces were considered to be
war criminals and could be shot when captured. During the Franco-German
war in 1870 the Germans acted throughout according to this rule with
regard to the so-called "Franctireurs," requesting the production of a
special authorisation from the French Government from every irregular
combatant they captured, failing which he was shot. But according to
article 1 of the Hague Regulations this rule is now obsolete, and its
place is taken by the rule that irregulars enjoy the privileges due to
members of the armed forces of the belligerents, although they do not
act under authorisation, provided (1) that they are commanded by a
person responsible for his subordinates, (2) that they have a fixed
distinctive emblem recognisable at a distance,[118] (3) that they carry
arms openly,[119] and (4) that they conduct their operations in
accordance with the laws and customs of war. It must, however, be
emphasised that this rule applies only to irregulars fighting in bodies,
however small. Such individuals as take up arms or commit hostile acts
singly and severally are still liable to be treated as war criminals,
and shot.[120]
[Footnote 118: The distance at which the emblem should be visible is
undetermined. See _Land Warfare_, § 23, where it is pointed out that it
is reasonable to expect that the silhouette of an irregular combatant in
the position of standing against the skyline should be at once
distinguishable from the outline of a peaceable inhabitant, and this by
the naked eye of ordinary individuals, at a distance at which the form
of an individual can be determined.--See Ariga, p. 87, concerning 120
irregulars who were treated as criminals and shot by the Japanese after
the occupation of Vladimirowka on the island of Sakhaline.]
[Footnote 119: See _Land Warfare_, § 26; individuals whose sole arm is a
pistol, hand-grenade, a dagger concealed about the person, or a
sword-stick, are not such as carry their arms openly.]
[Footnote 120: See below, § 254.]
[Sidenote: Levies _en masse_.]
§ 81. It sometimes happens during war that on the approach of the enemy
a belligerent calls the whole population of the country to arms and thus
makes them a part, although a more or less irregular part, of his armed
forces. Provided they receive some organisation and comply with the laws
and usages of war, the combatants who take part in such a levy _en
masse_ organised by the State enjoy the privileges due to members of
armed forces.
It sometimes happens, further, during wars, that a levy _en masse_ takes
place spontaneously without organisation by a belligerent, and the
question arises whether or not those who take part in such levies _en
masse_ belong to the armed forces of the belligerents, and therefore
enjoy the privileges due to members of such forces. Article 2 of the
Hague Regulations stipulates that the population of a territory not yet
occupied who, on the enemy's approach, spontaneously take up arms to
resist the invading enemy, without having time to organise themselves
under responsible commanders and to procure fixed distinctive emblems
recognisable at a distance, shall nevertheless enjoy the privileges due
to armed forces, provided that they carry arms openly and act otherwise
in conformity with the laws and usages of war. But this case is totally
different from a levy _en masse_ of the population of a territory
already invaded by the enemy, for the purpose of freeing the country
from the invader. The stipulation of the Hague Regulations quoted above
does not cover this case, in which, therefore, the old customary rule of
International Law is valid, that those taking part in such a levy _en
masse_, if captured, are liable to be shot.[121]
[Footnote 121: See below, § 254. Article 85 of the American
_Instructions for the Government of Armies in the Field_ of 1863 has
enacted this rule as follows: "War rebels are persons within an occupied
territory who rise in arms against the occupying or conquering army, or
against the authorities established by the same. If captured, they may
suffer death, whether they rise singly, in small or large bands, and
whether called upon to do so by their own, but expelled Government or
not...."]
It is of particular importance not to confound invasion with occupation
in this matter. Article 2 distinctly speaks of the _approach_ of the
enemy, and thereby sanctions only such a levy _en masse_ as takes place
in territory not yet _invaded_ by the enemy. Once the territory is
invaded, although the invasion has not yet ripened into occupation,[122]
a levy _en masse_ is no longer legitimate. But, of course, the term
_territory_, as used by article 2, is not intended to mean[123] the
whole extent of the State of a belligerent, but refers only to such
parts of it as are not yet invaded. For this reason, if a town is
already invaded, but not a neighbouring town, the inhabitants of the
latter may, on the approach of the enemy, legitimately rise _en masse_.
And it matters not whether the individuals taking part in the levy _en
masse_ are acting in immediate combination with a regular army or
separately from it.[124]
[Footnote 122: Concerning the difference between invasion and
occupation, see below, § 167.]
[Footnote 123: See _Land Warfare_, §§ 31-32.]
[Footnote 124: See _Land Warfare_, § 34.]
[Sidenote: Barbarous Forces.]
§ 82. As International Law grew up amongst the States of Christendom,
and as the circle of the members of the Family of Nations includes only
civilised, although not necessarily Christian, States, all writers on
International Law agree that in wars between themselves the members of
the Family of Nations should not make use of barbarous forces--that is,
troops consisting of individuals belonging to savage tribes and
barbarous races. But it can hardly be maintained that a rule of this
kind has customarily grown up in practice, nor has it been stipulated by
treaties, and the Hague Regulations overlook this point. This being the
fact, it is difficult to say whether the members of such barbarous
forces, if employed in a war between members of the Family of Nations,
would enjoy the privileges due to members of armed forces generally. I
see no reason why they should not, provided such barbarous forces would
or could comply with the laws and usages of war prevalent according to
International Law. But the very fact that they are barbarians makes it
probable that they could or would not do so, and then it would be
unreasonable to grant them the privileges generally due to members of
armed forces, and it would be necessary to treat them according to
discretion.[125] But it must be specially observed that the employment
of barbarous forces must not be confounded with the enrolling of
coloured individuals into the regular army and the employment of
regiments consisting of disciplined coloured soldiers. There is no
reason whatever why, for instance, the members of a regiment eventually
formed by the United States of America out of negroes bred and educated
in America, or why members of Indian regiments under English commanders,
if employed in wars between members of the Family of Nations, should not
enjoy the privileges due to the members of armed forces according to
International Law.
[Footnote 125: As regards the limited use made of armed natives as
scouts, and the like, on the part of the British commanders during the
South-African War, see _The Times' History of the War in South Africa_,
pp. 249-251. The Boers refused quarter to any such armed natives as fell
into their hands.]
[Sidenote: Privateers.]
§ 83. Formerly privateers were a generally recognised part of the armed
forces of the belligerents, private vessels being commissioned by the
belligerents through Letters of Marque to carry on hostilities at sea,
and particularly to capture enemy merchantmen.[126] From the fifteenth
century, when privateering began to grow up, down to the eighteenth
century, belligerents used to grant such Letters of Marque to private
ships owned by their subjects and by the subjects of neutral States. But
during the eighteenth century the practice grew up that belligerents
granted Letters of Marque to private ships of their own subjects
only.[127] However, privateering was abolished by the Declaration of
Paris in 1856 as between the signatory Powers and others who joined it
later. And although privateering would still be legal as between other
Powers, it will in future scarcely be made use of. In all the wars that
occurred after 1856 between such Powers, no Letters of Marque were
granted to private ships.[128]
[Footnote 126: See Martens, _Essai concernant les armateurs, les prises,
et surtout les reprises_ (1795).]
[Footnote 127: Many publicists maintain that nowadays a privateer
commissioned by another State than that of which he is a subject is
liable to be treated as a pirate when captured. With this, however, I
cannot agree; see above, vol. I. § 273, Hall, § 81, and below, § 330.]
[Footnote 128: See below, § 177. It is confidently to be hoped that the
great progress made by the abolition of privateering through the
Declaration of Paris will never be undone. But it is of importance to
note the fact that up to the present day endeavours have been made on
the part of freelances to win public opinion for a retrograde step. See,
for instance, Munro-Butler Johnstone, _Handbook of Maritime Rights; and
the Declaration of Paris Considered_ (1876), and Gibson Bowles, _The
Declaration of Paris of 1856_ (1900); see also Perels, pp. 177-179. The
Declaration of Paris being a law-making treaty which does not provide
the right of the several signatory Powers to give notice of withdrawal,
a signatory Power is not at liberty to give such notice, although Mr.
Gibson Bowles (_op. cit._ pp. 169-179) asserts that this could be done.
See above, vol. I. § 12.]
[Sidenote: Converted Merchantmen.]
§ 84. A case which happened in 1870, soon after the outbreak of the
Franco-German war, gave occasion for the question whether converted
merchantmen could be considered a part of the armed naval forces of a
belligerent. As the North-German Confederation owned only a few
men-of-war, the creation of a volunteer fleet was intended. The King of
Prussia, as President of the Confederation, invited the owners of
private German vessels to make them a part of the German navy under the
following conditions: Every ship should be assessed as to her value, and
10 per cent. of such value should at once be paid in cash to the owner
as a price for the charter of the ship. The owner should engage the crew
himself, but the latter should become for the time of the war members of
the German navy, wear the German naval uniform, and the ship should sail
under the German war flag and be armed and adapted for her purpose by
the German naval authorities. Should the ship be captured or destroyed
by the enemy, the assessed value should be paid to her owners in full;
but should it be restored after the war undamaged, the owner should
retain the 10 per cent. received as charter price. All such vessels
should only try to capture or destroy French men-of-war, and if
successful the owner should receive a sum between £1500 and £7500 as
premium. The French Government considered this scheme a disguised
evasion of the Declaration of Paris which abolished privateering, and
requested the intervention of Great Britain. The British Government
brought the case before the Law Officers of the Crown, who declared the
German scheme to be substantially different from the revival of
privateering, and consequently the British Government refused to object
to it. The scheme, however, was never put into practice.[129]
[Footnote 129: See Perels, § 34; Hall, § 182; Boeck, No. 211; Dupuis,
Nos. 81-84.]
Now, in spite of the opinion of the British Law Officers, writers on
International Law differ as to the legality of the above scheme; but, on
the other hand, they are unanimous that not every scheme for a voluntary
fleet is to be rejected. Russia,[130] in fact, since 1877, has possessed
a voluntary fleet. France[131] has made arrangements with certain
steamship companies according to which their mail-boats have to be
constructed on plans approved by the Government, have to be commanded by
officers of the French navy, and have to be incorporated in the French
navy at the outbreak of war. Great Britain from 1887 onwards has entered
into agreements with several powerful British steamship companies for
the purpose of securing their vessels at the outbreak of hostilities;
and the United States of America in 1892 made similar arrangements with
the American Line.[132]
[Footnote 130: See Dupuis, No. 85.]
[Footnote 131: See Dupuis, No. 86.]
[Footnote 132: See Lawrence, § 201, and Dupuis, Nos. 87-88. On the whole
question see Pradier-Fodéré, VIII. Nos. 3102-3103.]
Matters were brought to a climax in 1904, during the Russo-Japanese War,
through the cases of the _Peterburg_ and the _Smolensk_.[133] On July 4
and 6 of that year, these vessels, which belonged to the Russian
volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and
the Dardanelles, which are closed[134] to men-of-war of all nations,
because they were flying the Russian commercial flag. They likewise
passed the Suez Canal under their commercial flag, but after leaving
Suez they converted themselves into men-of-war by hoisting the Russian
war flag, and began to exercise over neutral merchantmen all rights of
supervision which belligerents can claim for their cruisers in time of
war. On July 13 the _Peterburg_ captured the British P. & O. steamer
_Malacca_ for alleged carriage of contraband, and put a prize-crew on
board for the purpose of navigating her to Libau. But the British
Government protested; the _Malacca_ was released at Algiers on her way
to Libau on July 27, and Russia agreed that the _Peterburg_ and the
_Smolensk_ should no longer act as cruisers, and that all neutral
vessels captured by them should be released.
[Footnote 133: See the details of the career of these vessels in
Lawrence, _War_, pp. 205 _seq._]
[Footnote 134: See above, vol. I. § 197.]
This case was the cause of the question of the conversion of merchantmen
into men-of-war being taken up by the Second Peace Conference in 1907,
which produced Convention VII. on the matter.[135] This Convention,
which is signed by all the States represented at the Conference except
the United States of America, China, San Domingo, Nicaragua, and
Uruguay--but Nicaragua acceded later--comprises twelve articles; its
more important stipulations are the following: No converted vessel can
have the status of a warship unless she is placed under the direct
authority, immediate control, and responsibility of the Power whose flag
she flies (article 1). Such a vessel must, therefore, bear the external
marks which distinguish the warships of her nationality (article 2); the
commander must be in the service of the State concerned, must be duly
commissioned, and his name must figure on the list of the officers of
the military fleet (article 3); and the crew must be subject to the
rules of military discipline (article 4). A converted vessel must
observe the laws and usages of war (article 5) and her conversion must
as soon as possible be announced by the belligerent concerned in the
list of the ships of his military fleet (article 6).
[Footnote 135: See Wilson in _A.J._ II. (1908), pp. 271-275; Lémonon,
pp. 607-622; Higgins, pp. 312-321; Dupuis, Nos. 48-58; Nippold, II. pp.
73-84; Scott, _Conferences_, pp. 568-576; Higgins, _War and the Private
Citizen_ (1912), pp. 115-168.]
The opinion, which largely prevails, that through this admittance of the
conversion of merchantmen into men-of-war privateering has been revived,
is absolutely unfounded, for the rules stipulated by Convention VII. in
no way abrogate the rule of the Declaration of Paris that privateering
is and remains abolished. But the Convention does not give satisfaction
in so far as it does not settle the questions where the conversion of a
vessel may be performed, and whether it is permitted to reconvert,
before the termination of the war, into a merchantman a vessel which
during the war had been converted into a warship. The fact is, the
Powers could not come to an agreement on these two points, the one party
claiming that conversion could only be performed within a harbour of the
converting Power, or an enemy harbour occupied by it, the other party
defending the claim to convert likewise on the High Seas. One must look
to the future for a compromise that will settle this vexed controversy.
It is, however, important to notice the fact that the preamble of
Convention VII. states expressly that the question of the place where a
conversion may be performed remains open. Those Powers which claim that
conversions[136] must not take place on the High Seas are not,
therefore, prevented from refusing to acknowledge the public character
of any vessel which had been converted on the High Seas, and from
upholding their view that a converted vessel may not alternately claim
the character and the privileges of a belligerent man-of-war and a
merchantman.
[Footnote 136: Concerning the question whether an enemy merchantman,
captured on the High Seas, may at once be converted into a warship, see
below, p. 231, _note_ 2.]
[Sidenote: The Crews of Merchantmen.]
§ 85. In a sense the crews of merchantmen owned by subjects of the
belligerents belong to the latter's armed forces. For those vessels are
liable to be seized by enemy men-of-war, and if attacked for that
purpose they may defend themselves, may return the attack, and
eventually seize the attacking men-of-war. The crews of merchantmen
become in such cases combatants, and enjoy all the privileges of the
members of armed forces. But unless attacked they must not commit
hostilities, and if they do so they are liable to be treated as
criminals just as are private individuals who commit hostilities in land
warfare. Some writers[137] assert that, although merchantmen of the
belligerents are not competent to exercise the right of visit, search,
and capture towards neutral vessels, they may attack enemy
vessels--merchantmen as well as public vessels--not merely in
self-defence but even without having been previously attacked, and that,
consequently, the crews must in such case enjoy the privileges due to
members of the armed forces. But this opinion is absolutely without
foundation nowadays,[138] even in former times it was not generally
recognised.[139]
[Footnote 137: See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and
_Science_, p. 268.]
[Footnote 138: See below, § 181, and Hall, § 183.]
[Footnote 139: See Vattel, III. § 226, and G. F. Martens, II. § 289.]
It should be mentioned in regard to the fate of the crews of captured
merchantmen that a distinction is to be made according as to whether or
no a vessel has defended herself against a legitimate attack. In the
first case the members of the crew become prisoners of war, for by
legitimately taking part in the fighting they have become members of the
armed forces of the enemy.[140] In the second case, articles 5 to 7 of
Convention XI. of the Second Peace Conference enact the following
rules:[141]--
(1) Such members of the crew as are subjects of neutral States may not
be made prisoners of war.
(2) The captain and the officers who are subjects of neutral States may
only be made prisoners if they refuse to give a promise in writing not
to serve on an enemy ship while the war lasts.
(3) The captain, officers, and such members of the crew who are enemy
subjects may only be made prisoners if they refuse to give a written
promise not to engage, while hostilities last, in any service connected
with the operations of war.
(4) The names of all the individuals retaining their liberty under
parole must be notified by the captor to the enemy, and the latter is
forbidden knowingly to employ the individuals concerned in any service
prohibited by the parole.
[Footnote 140: This follows indirectly from article 8 of Convention XI.]
[Footnote 141: See below, § 201.]
[Sidenote: Deserters and Traitors.]
§ 86. The privileges of members of armed forces cannot be claimed by
members of the armed forces of a belligerent who go over to the forces
of the enemy and are afterwards captured by the former. They may be, and
always are, treated as criminals. And the like is valid with regard to
such treasonable subjects of a belligerent as, without having been
members of his armed forces, are fighting in the armed forces of the
enemy. Even if they appear under the protection of a flag of truce,
deserters and traitors may be seized and punished.[142]
[Footnote 142: See below, § 222; Hall, § 190; _Land Warfare_, § 36.]
VII
ENEMY CHARACTER
Grotius, III. c. 4, §§ 6 and 7--Bynkershoek, _Quaestiones juris
publici_, I. c. 3 _in fine_--Hall, §§ 167-175--Lawrence, §§
151-159--Westlake, II. pp. 140-154--Phillimore, III. §§
82-86--Twiss, II. §§ 152-162--Taylor, §§ 468 and 517--Walker, §§
39-43--Wharton, III. §§ 352-353--Wheaton, §§ 324-341--Moore, VII.
§§ 1185-1194--Geffcken in Holtzendorff, IV. pp. 581-588--Ullmann,
§ 192--Nys, III. pp. 150-154--Pradier-Fodéré, VIII. Nos.
3166-3175--Bonfils, Nos. 1343-1349'1--Despagnet, Nos. 650-653
_quinto_--Calvo, IV. §§ 1932-1952--Fiore, III. Nos. 1432-1436, and
Code, Nos. 1701-1709--Boeck, Nos. 156-190--Dupuis, Nos. 92-129,
and _Guerre_, Nos. 59-73--Lémonon, pp. 426-467--Higgins, p.
593--Nippold, II. pp. 40-54--Scott, _Conferences_, pp.
541-555--Frankenbach, _Die Rechtsstellung von neutralen
Staatsangehörigen in kriegführenden Staaten_ (1910)--Baty in _The
Journal of the Society of Comparative Legislation_, New Series,
IX. Part I. (1908), pp. 157-166, and Westlake, _ibidem_, Part II.
(1909), pp. 265-268--Oppenheim in _The Law Quarterly Review_, XXV.
(1909), pp. 372-383.
[Sidenote: On Enemy Character in general.]
§ 87. Since the belligerents, for the realisation of the purpose of war,
are entitled to many kinds of measures against enemy persons and enemy
property, the question must be settled as to what persons and what
property are vested with enemy character. Now it is, generally speaking,
correct to say that, whereas the subjects of the belligerents and the
property of such subjects bear enemy character, the subjects of neutral
States and the property of such subjects do not bear enemy character.
This rule has, however, important exceptions. For under certain
circumstances and conditions enemy persons and property of enemy
subjects may not bear, and, on the other hand, subjects of neutral
States and their property may bear, enemy character. And it is even
possible that a subject of a belligerent may for some parts bear enemy
character as between himself and his home State.
The matter of enemy character is, however, to a great extent in an
unsettled condition, since on many points connected with it there are no
universally recognised rules of International Law in existence. British
and American Courts have worked out a body of precise and clear rules on
the subject, but the practice of other countries, and especially of
France, follows different lines. The Second Peace Conference of 1907
produced three articles on the matter--16, 17, and 18--in Convention V.,
accepted by all the signatory Powers, except Great Britain which, upon
signing the Convention, entered a reservation against these three
articles, and although these articles are only of minor importance, they
have to be taken into consideration. On the other hand, the as yet
unratified Declaration of London comprises a number of rules which,
apart from two points, offer a common basis for the practice of all
maritime States. At the first glance it would seem that only the four
articles--57 to 60--of Chapter VI. headed "Enemy Character," treat of
the subject under survey, but a closer examination shows that article
46, dealing with a certain kind of unneutral service, articles 55 and
56, dealing with transfer to a neutral flag, and, lastly, article 63,
dealing with forcible resistance to the right of visitation, are also
concerned with enemy character. In spite of these stipulations, which
are accepted by all the Powers concerned, there remain two important
points unsettled, since neither the Second Hague Peace Conference of
1907 nor the Naval Conference of London of 1908-9 succeeded in agreeing
upon a compromise concerning the old controversy as to whether
nationality exclusively, or domicile also, should determine the neutral
or enemy character of individuals and their goods, and further, whether
or not neutral vessels acquire enemy character by embarking in time of
war, with permission of the enemy, upon such trade with the latter as
was closed to them in time of peace (Rule of 1756). According to article
7 of Convention XII. of the Second Hague Peace Conference, concerning
the establishment of an International Prize Court, likewise not yet
ratified, this Court would in time have to evolve a uniform practice of
all the maritime States on these two points.
For the consideration of enemy character in detail, it is convenient to
distinguish between individuals, vessels, goods, the transfer of enemy
vessels, and the transfer of enemy goods on enemy vessels.
[Sidenote: Enemy Character of Individuals.]
§ 88. The general rule with regard to individuals is that subjects of
the belligerents bear enemy character, whereas subjects of neutral
States do not. In this sense article 16 of Convention V. stipulates:
"The nationals of a State which is not taking part in the war are
considered to be neutral." These neutral individuals can, however, lose
their neutral and acquire enemy character in several cases, just as
subjects of the belligerents can in other cases lose their enemy
character:--
(1) Since relations of peace obtain between either of the belligerents
and neutral States, the subjects of the latter can, by way of trade and
otherwise, render many kinds of service to either belligerent without
thereby losing their neutral character. On the other hand, if they enter
the armed forces of a belligerent, or if they commit other acts in his
favour, or commit hostile acts against a belligerent, they acquire
enemy character (article 17 of Convention V.). All measures that are
allowed during war against enemy subjects are likewise allowed against
such subjects of neutral Powers as have thus acquired enemy character.
For instance, during the late South African War hundreds of subjects of
neutral States, who were fighting in the ranks of the Boers, were
captured by Great Britain and retained as prisoners until the end of the
struggle. Such individuals must not, however, be more severely treated
than enemy subjects, and, in especial, no punitive measures are allowed
against them (article 17 of Convention V.). And article 18(_a_) of
Convention V. stipulates expressly that subjects of neutral States not
inhabiting the territory of the enemy or any territory militarily
occupied by him do not acquire enemy character by furnishing supplies or
making loans to the enemy, provided the supplies do not come from the
enemy territory or any territory occupied by him.[143]
[Footnote 143: Since Great Britain has entered a reservation against
articles 16, 17, and 18 of Convention V. she is not bound by them. It
is, however, of importance to state that articles 16, 17, and
18(_a_)--not 18(_b_)!--enact only such rules as were always customarily
recognised, _unless such an interpretation is to be put upon article 16
as prevents a belligerent from considering subjects of neutral States
inhabiting the enemy country as bearing enemy character_. The matter is
different with regard to article 18(_b_), which creates an entirely new
rule, for nobody has hitherto doubted that the members of the police
force and the administrative officials of the enemy bear enemy character
whether or no they are subjects of the enemy State.]
Article 18(_b_) of Convention V. stipulates that such subjects of
neutral States as render services to the enemy in matters of police and
administration, likewise do not acquire enemy character. This
stipulation must, however, be read with caution. It can only mean that
such individuals do not lose their neutral character to a greater degree
than other subjects of neutral States resident on enemy territory; it
cannot mean that they are in every way to be considered and treated
like subjects of neutral States not residing on enemy territory.
However that may be, it must be specially observed, that the acts by
which subjects of neutral States lose their neutral and acquire enemy
character need not necessarily be committed after the outbreak of war.
Such individuals can, even before the outbreak of war, identify
themselves to such a degree with a foreign State that, with the outbreak
of war against that State, enemy character devolves upon them _ipso
facto_ unless they at once sever their connection with such State. This,
for instance, is the case when a foreign subject in time of peace
enlists in the armed forces of a State and continues to serve after the
outbreak of war.
(2) From the time when International Law made its appearance down to our
own no difference has been made by a belligerent in the treatment
accorded to subjects of the enemy and subjects of neutral States
inhabiting the enemy country. Thus Grotius (III. c. 4, §§ 6 and 7)
teaches that foreigners must share the fate of the population living on
enemy territory, and Bynkershoek[144] distinctly teaches that foreigners
residing in enemy country bear enemy character. English[145] and
American practice assert, therefore, that foreigners, whether subjects
of the belligerents or of neutral States, acquire enemy character by
being domiciled (_i.e._ resident) in enemy country, because they have
thereby identified themselves with the enemy population and contribute,
by paying taxes and the like, to the support of the enemy Government.
For this reason, all measures which may legitimately be taken against
the civil population of the enemy territory, may likewise be taken
against them, unless they withdraw from the country or are expelled
therefrom. It must, however, be remembered that they acquire enemy
character _in a sense_ and _to a certain degree_ only, for their enemy
character is not as intensive as that of enemy subjects resident on
enemy territory. Such of them as are subjects of neutral States do not,
therefore, lose the protection of their home State against arbitrary
treatment inconsistent with the laws of war; and such of them as are
subjects of the other belligerent are handed over to the protection of
the Embassy of a neutral Power. However that may be, they are not exempt
from requisitions and contributions; from the restrictions which an
occupant imposes upon the population in the interest of the safety of
his troops and his military operations; from punishments for hostile
acts committed against the occupant; or from being taken into captivity,
if exceptionally necessary.
[Footnote 144: _Quaestiones juris publici_, I. c. 3 _in fine_.]
[Footnote 145: See the _Harmony_ (1800), 2 C. Rob. 322; the _Johanna
Emilie_, otherwise _Emilia_ (1854), Spinks, 12; the _Baltica_ (1857), 11
Moore, P.C. 141.]
This treatment of foreigners resident on occupied enemy territory is
generally recognised as legitimate by theory[146] and practice. The
proposal of Germany, made at the Second Peace Conference, to agree upon
rules which would have stipulated a more favourable treatment of
subjects of neutral States resident on occupied enemy territory was,
therefore, rejected. Not even France supported the German proposals,
although according to the French conception foreigners residing in enemy
country do not acquire enemy character, and therefore the German
proposals were only a logical consequence of the French conception. This
French conception of enemy character dates from the judgment of the
_Conseil des Prises_ in the case of _Le Hardy contre La
Voltigeante_[147] (1802), which laid down the rule that neutral subjects
residing in enemy country do not lose their neutral character, and enemy
subjects residing in neutral countries do not lose their enemy
character. But it must be emphasised that this French conception of
enemy character has been developed, not with regard to the treatment of
foreigners whom an occupant finds resident on occupied enemy territory,
but with regard to the exercise of the right of capture of enemy vessels
and goods in warfare at sea. France did not make an attempt to draw the
logical consequences from this conception and, therefore, to mete out to
foreigners resident on occupied enemy territory a treatment different
from that of enemy subjects resident there.
[Footnote 146: See Albrecht, _Requisitionen von neutralem
Privateigenthum_, &c. (1912), pp. 13-15.]
[Footnote 147: 1 Pistoye et Duverdy (1859), 321.]
(3) Since enemy subjects who reside in neutral countries, or are allowed
to remain resident on the territory of the other belligerent, have to a
great extent identified themselves with the local population and are not
under the territorial supremacy of the enemy, they lose their enemy
character according to English and American practice,[148] but according
to French practice they do not, a difference of practice which bears
upon many points, especially upon the character of goods.[149]
[Footnote 148: See the _Postilion_ (1779), Hay & Marriot, 245; the
_Danous_ (1802), 4 C. Rob. 255, note; the _Venus_ (1814), 8 Cranch,
253.]
[Footnote 149: See below, § 90.]
[Sidenote: Enemy Character of Vessels.]
§ 89. The general rule with regard to vessels is that their character is
determined by their flag. Whatever may be the nationality of the owner
of a vessel--whether he be a subject of a neutral State, or of either
belligerent--she bears enemy character, if she be sailing under the
enemy flag. For this reason, the vessel of an enemy owner which sails
under a neutral flag does as little bear enemy character as the vessel
of the subject of a neutral State sailing under the flag of another
neutral State. But the flag is the deciding factor only when the vessel
is legitimately sailing under it. Should it be found that a vessel
sailing under the flag of a certain neutral State has, according to the
Municipal Law of such State, no right to fly the flag she shows, the
real character of the vessel must be determined in order to decide
whether or no she bears enemy character. On the other hand, it makes no
difference that the owner be the subject of a neutral non-littoral State
without a maritime flag and that the vessel is, therefore, compelled to
fly the flag of a maritime State: if the flag the vessel flies be the
enemy flag, she bears enemy character.
The general rule that the flag is the deciding factor has exceptions,
and it is convenient to expound the matter according to the rules of the
Declaration of London, although it is not yet ratified. The general rule
is laid down by article 57 of the Declaration which enacts that, subject
to the provisions respecting transfer to another flag, the character of
a vessel is determined by the flag she is entitled to fly. Nevertheless,
there are two exceptions to this rule:--
(1) According to article 46 of the Declaration[150] a neutral
merchantman acquires enemy character by taking a direct part in the
hostilities, by being in the exclusive employment of the enemy
government, and by being at the time exclusively intended either for the
transport of troops or for the transmission of intelligence for the
enemy. And it must be emphasised that the act by which a neutral
merchantman acquires enemy character need not necessarily be committed
_after_ the outbreak of war, for she can, even _before_ the outbreak of
war, to such a degree identify herself with a foreign State that, with
the outbreak of war against such State, enemy character devolves upon
her _ipso facto_, unless she severs her connexion with the State
concerned. This is, for instance, the case of a foreign merchantman
which in time of peace has been hired by a State for the transport of
troops or of war material, and is carrying out her contract in spite of
the outbreak of war.[151]
(2) According to article 63 of the Declaration a neutral merchantman
acquires enemy character _ipso facto_ by forcibly resisting the
legitimate exercise of the right of visitation and capture on the part
of a belligerent cruiser (see details below, § 422).
(3) According to British practice--adopted by America and
Japan[152]--neutral merchantmen likewise acquire enemy character by
violating the so-called rule of 1756,[153] in case they engage in time
of war in a trade which the enemy prior to the war reserved exclusively
for merchantmen sailing under his own flag. The Declaration of London
has neither rejected nor accepted this rule of 1756, for article 57
stipulates expressly that the case where a neutral vessel is engaged in
a trade which is closed in time of peace, remains unsettled. It would,
therefore, according to article 7 of Convention XII. of the Second Peace
Conference, be the task of the proposed International Prize Court to
settle this point.
Of whatever kind may be the case of the acquisition of enemy character
on the part of a neutral vessel, the following four rules apply to all
cases of such neutral vessels as have acquired enemy character:--(_a_)
all enemy goods on board may now be confiscated, although when they were
first shipped the vessels concerned were neutral; (_b_) all goods on
board will now be presumed to be enemy goods, and the owners of neutral
goods will have to prove the neutral character of the latter; (_c_) the
stipulations of articles 48 and 49 of the Declaration of London
concerning the sinking of neutral prizes do not apply, because these
vessels are now enemy vessels; (_d_) no appeal may be brought from the
national prize courts to the International Prize Court, except with
regard to the one question only, whether the vessel concerned has been
justly considered to have acquired enemy character (see article 4 of
Convention XII. of the Second Hague Peace Conference, concerning the
establishment of an International Prize Court).
[Footnote 150: See below, § 410.]
[Footnote 151: The case of the _Kow-shing_ ought here to be mentioned,
although it has now lost its former importance:--
On July 14, 1894, the _Kow-shing_, a British ship, was hired at Shanghai
by the Chinese Government to serve as a transport for eleven hundred
Chinese soldiers and also for arms and ammunition from Tien-tsin to
Korea. She was met on July 25 near the island of Phung-do, in Korean
waters, by the Japanese fleet; she was signalled to stop, was visited by
some prize officers, and, as it was apparent that she was a transport
for Chinese soldiers, she was ordered to follow the Japanese cruiser,
_Naniwa_. But although the British captain of the vessel was ready to
comply with these orders, the Chinese on board would not allow it.
Thereupon the Japanese opened fire and sank the vessel. As formerly
hostilities could be commenced without a previous declaration of war the
action of the Japanese was in accordance with the rules of International
Law existing at the time. But in consequence of Convention III. of the
Second Peace Conference which requires a declaration of war before the
opening of hostilities, such action nowadays would not be justifiable.
See Hall, § 168*; Takahashi, pp. 27-51; Holland, _Studies_, pp.
126-128.]
[Footnote 152: See the case of the _Montara_ in Takahashi, p. 633.]
[Footnote 153: See below, § 289, and Higgins, _War and the Private
Citizen_ (1912), pp. 169-192.]
[Sidenote: Enemy Character of Goods.]
§ 90. It is an old customary rule that all goods found on board an enemy
merchantman are presumed to be enemy goods unless the contrary is proved
by the neutral owners concerned. It is, further, generally recognised
that the enemy character of goods depends upon the enemy character of
their owners. As, however, no universally recognised rules exist as to
the enemy character of individuals, there are likewise no universally
recognised rules in existence as to the enemy character of goods.
(1) Since, according to British and American practice, domicile in enemy
country makes an individual bear enemy character, all goods belonging to
individuals domiciled in enemy country are enemy goods, and all goods
belonging to individuals not resident in enemy country are not, as a
rule, enemy goods. For this reason, goods belonging to enemy subjects
residing in neutral countries[154] do not, but goods belonging to
subjects of neutral States residing in enemy country[155] do bear enemy
character, although they may be the goods of a foreign consul appointed
and residing in enemy country.[156] Further, the goods of such subjects
of the belligerents as are domiciled on each other's territory and are
allowed to remain there after the outbreak of war, acquire enemy
character in the eyes of the belligerent whose subjects they are, but
lose their enemy character in the eyes of the belligerent on whose
territory they are allowed to remain.[157] Again, the produce of an
estate on enemy territory belonging to a subject of a neutral State who
resides abroad, does bear enemy character, for "_Nothing[158] can be
more decided and fixed than the principle ... that the possession of the
soil does impress upon the owner the character of the country, as far as
the produce of that plantation is concerned ... whatever the local
residence of the owner may be_." Lastly, all such property of a subject
of a neutral State residing abroad but having a house of trade within
the enemy country as is concerned in the commercial transactions of such
house of trade,[159] likewise bears enemy character, because the owner
of these goods has a "commercial domicile" in enemy country.
(2) On the other hand, according to French practice, the nationality of
the owner of the goods is exclusively the deciding factor, and it does
not matter where he resides. Hence only such goods on enemy merchantmen
bear enemy character as belong to subjects of the enemy, whether those
subjects are residing on enemy or neutral territory; and all such goods
on enemy merchantmen as belong to subjects of neutral States do not
bear enemy character, whether those subjects reside on neutral or enemy
country.[160]
(3) The Declaration of London does not purport to decide the
controversy, since the Powers represented at the Naval Conference of
London could not agree. Whereas Holland, Spain, and Japan approved of
the British and American practice, Austria-Hungary, Italy, Germany, and
Russia sided with France. For this reason, the Declaration, by articles
58 and 59, only enacts that the enemy character of goods on enemy
vessels is determined by the enemy character of their owner, and that
all goods on enemy vessels are presumed to be enemy goods unless the
contrary is proved. But the chief question, namely, what is the factor
that decides the enemy character of an owner, is deliberately left
unanswered. It would, therefore, according to article 7 of Convention
XII., be for the proposed International Prize Court to settle it.
[Footnote 154: The _Postilion_ (1779), Hay & Marriot, 245; the _Danous_
(1802), 4 C. Rob. 255, note.]
[Footnote 155: The _Baltica_ (1857), 11 Moore, P.C. 141.]
[Footnote 156: The _Indian Chief_ (1801), 3 C. Rob. 12.]
[Footnote 157: The _Venus_ (1814), 8 Cranch, 253.]
[Footnote 158: From the judgment of Sir William Scott in the case of the
_Phoenix_ (1803), 5 C. Rob. 41; see also _Thirty Hogsheads of Sugar_ v.
_Boyle_ (_Bentzen_ v. _Boyle_) (1815), 9 Cranch, 191.]
[Footnote 159: The _Portland_ (1800), 3 C. Rob. 41; the _Jonge Klassina_
(1803), 5 C. Rob. 297; the _Freundschaft_ (1819), 4 Wheaton, 105.]
[Footnote 160: See the French cases of:--_Le Hardy contre La
Voltigeante_ (1802) and _La Paix_ (1803), 1 Pistoye et Duverdy, pp. 321
and 486; _Le Joan_ (1871), _Le Nicolaüs_ (1871), _Le Thalia_ (1871); _Le
Laura-Louise_ (1871), Barboux, pp. 101, 108, 116, 119.]
[Sidenote: Transfer of Enemy Vessels.]
§ 91. The question of the transfer of enemy vessels to subjects of
neutral States, either shortly before or during the war, must be
regarded as forming part of the larger question of enemy character, for
the point to be decided is whether such transfer[161] divests these
vessels of their enemy character. It is obvious that, if this point is
answered in the affirmative, the owners of enemy vessels can evade the
danger of having their property seized and confiscated by selling their
vessels to subjects of neutral States. Before the Declaration of London,
which is, however, not yet ratified, the maritime Powers had not agreed
upon common rules concerning this subject. According to French[162]
practice no transfer of enemy vessels to neutrals could be recognised,
and a vessel thus transferred retained enemy character; but this
concerned only transfer after the outbreak of war, any legitimate
transfer anterior to the outbreak of war did give neutral character to a
vessel. According to British and American practice, on the other hand,
neutral vessels could well be transferred to a neutral flag before or
after the outbreak of war and lose thereby their enemy character,
provided that the transfer took place _bona fide_,[163] was not effected
either in a blockaded port[164] or while the vessel was _in
transitu_,[165] the vendor did not retain an interest in the vessel or
did not stipulate a right to recover or repurchase the vessel after the
conclusion of the war,[166] and the transfer was not made _in transitu_
in contemplation of war.[167]
The Declaration of London offers clear and decisive rules concerning the
transfer of enemy vessels, making a distinction between the transfer to
a neutral flag _before_ and _after_ the outbreak of hostilities:
(1) According to article 55 of the Declaration, the transfer of an enemy
vessel to a neutral flag, if effected _before_ the outbreak of
hostilities, is _valid_, unless the captor is able to prove that the
transfer was made in order to avoid capture. However, if the bill of
sale is not on board the transferred vessel, and if the transfer was
effected less than sixty days before the outbreak of hostilities, the
transfer is presumed to be void, unless the vessel can prove that such
transfer was not effected in order to avoid capture. To provide
commerce with a guarantee that a transfer should not easily be treated
as void on the ground that it was effected for the purpose of evading
capture, it is stipulated that, in case the transfer was effected more
than thirty days before the outbreak of hostilities, there is an
absolute presumption of its validity, provided the transfer was
unconditional, complete, and in conformity with the laws of the
countries concerned, and further, provided that neither the control of,
nor the profits arising from, the employment of the vessels remain in
the same hands as before the transfer. But even in this case a vessel is
suspect if the transfer took place less than sixty days before the
outbreak of hostilities, and if her bill of sale is not on board. Hence
she may be seized and brought into a port of a prize court for
investigation, and she cannot claim damages for the capture, even if the
Court releases her.
(2) According to article 56 of the Declaration, the transfer of an enemy
vessel to a neutral flag, if effected _after_ the outbreak of
hostilities, is _void_ unless the vessel can prove that the transfer was
not made in order to avoid capture. And such proof is excluded, and an
absolute presumption is established that the transfer is void, if the
transfer has been made in a blockaded port or while the vessel was _in
transitu_, further, if a right to repurchase or recover the vessel is
reserved to the vendor, and lastly, if the requirements of the Municipal
Law governing the right to fly the flag under which the vessel is
sailing have not been fulfilled.
[Footnote 161: See Holland, _Prize Law_, § 19; Hall, § 171; Twiss, II.
§§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos.
1344-1349'1; Dupuis, Nos. 117-129, and _Guerre_, Nos. 62-66.]
[Footnote 162: See Dupuis, No. 97.]
[Footnote 163: The _Vigilantia_ (1798), 1 C. Rob. 1; the _Baltica_
(1857), 11 Moore, P.C. 141; the _Benito Estenger_ (1899), 176 United
States, 568.]
[Footnote 164: The _General Hamilton_ (1805), 6 C. Rob. 61.]
[Footnote 165: The moment a vessel transferred _in transitu_ reaches a
port where the new owner takes possession of her, the voyage of the
vessel is considered to have terminated. The _Vrow Margaretha_ (1799), 1
C. Rob. 336; the _Jan Frederick_ (1804), 5 C. Rob. 128.]
[Footnote 166: The _Sechs Geschwistern_ (1801), 4 C. Rob. 100; the
_Jemmy_ (1801), 4 C. Rob. 31.]
[Footnote 167: The _Jan Frederick_ (1804), 5 C. Rob. 128.]
[Sidenote: Transfer of Goods on Enemy Vessels.]
§ 92. The subject of the transfer of enemy goods on enemy vessels must
likewise be considered as forming part of the larger subject of enemy
character, for the question is here also whether such a transfer divests
these goods of their enemy character. And concerning this question[168]
there was likewise no unanimous practice in existence among the maritime
States before the agreement on the Declaration of London. British and
American practice refused to recognise a sale _in transitu_ under any
circumstances or conditions, if the vessel concerned was captured before
the neutral buyer had actually taken possession of the transferred
goods.[169] On the other hand, French practice recognised such a sale
_in transitu_, provided it could be proved that the transaction was made
_bona fide_.[170]
The Declaration of London now stipulates, by article 60, that enemy
goods on board an enemy vessel retain their enemy character until they
reach their destination, notwithstanding any transfer effected after the
outbreak of hostilities while the goods are _in transitu_. Hence if such
enemy vessel is captured before having reached her destination, goods
consigned to enemy subjects may be confiscated, although they have been
sold _in transitu_ to subjects of neutral States. A special rule is
provided for the case of the enemy consignee of goods on board an enemy
vessel becoming bankrupt while the goods are _in transitu_. In a number
of countries[171] an unpaid vendor has, in the event of the bankruptcy
of the buyer, a recognised legal right to recover such goods as have
already become the property of the buyer, but have not yet reached him
(right of stoppage _in transitu_). For this reason, article 60 of the
Declaration stipulates in the second paragraph, that if, prior to the
capture, the neutral consignor exercises, on the bankruptcy of the enemy
consignee, his right of stoppage _in transitu_, the goods regain their
neutral character and may not therefore be confiscated.
[Footnote 168: See Hall, § 172; Twiss, II. §§ 162 and 163; Phillimore,
III. §§ 387 and 388; Dupuis, No. 1421, and _Guerre_, Nos. 68-73; Boeck,
Nos. 182 and 183.]
[Footnote 169: The _Jan Frederick_ (1804), 5 C. Rob. 128; the _Ann
Green_ (1812), I Gallison, 274.]
[Footnote 170: See Boeck, No. 162; Dupuis, No. 142.]
[Footnote 171: Great Britain is one of them, see Section 44 of the Sale
of Goods Act, 1893 (56 & 57 Vict. c. 71).]
CHAPTER II
THE OUTBREAK OF WAR
I
COMMENCEMENT OF WAR
Grotius, c. 3, 5-14--Bynkershoek, _Quaestiones juris publici_, I.
c. 2--Vattel, III. §§ 51-65--Hall, § 123--Westlake, II. pp. 18-26,
and 267--Lawrence, § 140--Manning, pp. 161-163--Phillimore, III.
§§ 51-56--Twiss, II. §§ 31-40--Halleck, I. pp. 521-526--Taylor, §§
455-456--Moore, VII. §§ 1106-1108--Walker, § 37--Wharton, III. §§
333-335--Wheaton, § 297--Bluntschli, §§ 521-528--Heffter, §
120--Lueder in Holtzendorff, IV. pp. 332-347--Gareis, § 80--Liszt,
§ 39, V.--Ullmann, § 171--Bonfils, Nos. 1027-1031'2--Despagnet,
Nos. 513-516--Pradier-Fodéré, VI. Nos. 2671-2693--Nys, III. pp.
118-133--Rivier, II. pp. 220-228--Calvo, IV. §§ 1899-1911--Fiore,
III. Nos. 1272-1276, and Code, 1422-1428--Martens, II. §
109--Longuet, §§ 1-7, 15-16--Mérignhac, pp. 29-41--Pillet, pp.
61-72--Lawrence, _War_, pp. 26-44--Barclay, pp. 53-58--Boidin, pp.
116-121--Bordwell, pp. 198-200--Higgins, pp. 202-205--Holland,
_War_, § 16--Lémonon, pp. 309-406--Nippold, II. pp. 6-10--Scott,
_Conferences_, pp. 516-522--Spaight, pp. 20-33--Ariga, §§
11-12--Takahashi, pp. 1-25--_Land Warfare_, §§ 8-10--Holland,
_Studies_, p. 115--Sainte-Croix, _La Déclaration de guerre et ses
effets immédiats_ (1892)--Bruyas, _De la déclaration de guerre_,
etc. (1899)--Tambaro, _L'inizio della guerra et la 3'a convenzione
dell' Aja del 1907_ (1911)--Maurel, _De la déclaration de guerre_
(1907)--Soughimoura, _De la Déclaration de Guerre_ (1912)--Brocher
in _R.I._ IV. (1872), p. 400; Férand-Giraud in _R.I._ XVII.
(1885), p. 19; Nagaoka in _R.I._ 2nd Ser. VI. p. 475--Rolin in
_Annuaire_, XX. (1904), pp. 64-70--Ebren and Martens in _R.G._ XI.
(1904), pp. 133 and 148--Dupuis in _R.G._ XIII. (1906), pp.
725-735--Stowell in _A.J._ II. (1908), pp. 50-62.
[Sidenote: Commencement of War in General.]
§ 93. According to the former practice of the States a condition of war
could _de facto_ arise either through a declaration of war; or through a
proclamation and manifesto of a State that it considered itself at war
with another State; or through the committal by one State of certain
hostile acts of force against another State. History presents many
instances of wars commenced in one of these three ways. Although
Grotius (III. c. 3, § 5) laid down the rule that a declaration of war
is necessary for its commencement, the practice of the States shows that
this rule was not accepted, and many wars have taken place between the
time of Grotius and our own without a previous[172] declaration of war.
Indeed many writers,[173] following the example of Grotius, have always
asserted the existence of a rule that a declaration is necessary for the
commencement of war, but it cannot be denied that until the Second Peace
Conference of 1907 such a rule was neither sanctioned by custom nor by a
general treaty of the Powers. Moreover many writers[174] distinctly
approved of the practice of the Powers. This does not mean that in
former times a State would have been justified in opening hostilities
without any preceding conflict. There was, and can be, no greater
violation of the Law of Nations than for a State to begin hostilities in
time of peace without previous controversy and without having
endeavoured to settle the conflict by negotiation.[175] But if
negotiation had been tried without success, a State did not act
treacherously in case it resorted to hostilities without a declaration
of war, especially after diplomatic intercourse had been broken off. The
rule, adopted by the First Peace Conference of 1899--see article 2 of
the Conventions for the peaceful settlement of international differences
of 1899 and 1907--which stipulates that, _as far as circumstances
allow_, before the appeal to arms recourse must be had to the good
offices or mediation of friendly Powers, did not essentially alter
matters, for the formula _as far as circumstances_ _allow_ leaves
practically everything to the discretion of the Power bent on making
war.
The outbreak of war between Russia and Japan in 1904 through Japanese
torpedo boats attacking Russian men-of-war at Port Arthur before a
formal declaration of war, caused a movement for the establishment of
some written rules concerning the commencement of war. The Institute of
International Law, at its meeting at Ghent in 1906, adopted three
principles[176] according to which war should not be commenced without
either a declaration of war or an ultimatum, and in either case a
certain delay sufficient to ensure against treacherous surprise must be
allowed before the belligerent can have recourse to actual hostilities.
The Second Peace Conference at the Hague in 1907 took the matter up and
produced the Convention (III.) relative to the commencement of
hostilities which comprises four articles and has been signed by all the
Powers represented at the Conference, except China and Nicaragua, both
of which, however, acceded later.
[Footnote 172: See Maurice, _Hostilities without Declaration of War_
(1883).]
[Footnote 173: See, for instance, Vattel, III. § 51; Calvo, IV. § 1907;
Bluntschli, § 571; Fiore, III. No. 1274; Heffter, § 120.]
[Footnote 174: See, for instance, Bynkershoek, _Quaestiones juris
publici_, I. c. 2; Klüber, § 238; G. F. Martens, § 267; Twiss, II. § 35:
Phillimore, III. §§ 51-55; Hall, § 123; Ullmann (first edition), § 145;
Gareis, § 80.]
[Footnote 175: See above, § 3, where the rule is quoted that no State is
allowed to make use of compulsive means of settling differences before
negotiation has been tried.]
[Footnote 176: See _Annuaire_, XXI. (1906), p. 283.]
[Sidenote: Declaration of War.]
§ 94. According to article 1 of Convention III. hostilities must not
commence without a previous and unequivocal warning, and one of the
forms which this warning may take is a declaration of war stating the
reasons why the Power concerned has recourse to arms.
A declaration of war is a communication of one State to another that the
condition of peace between them has come to an end and a condition of
war has taken its place. In former times declarations of war used to
take place under greater or lesser solemnities, but during the last few
centuries all these formalities have vanished, and a declaration of war
nowadays may take place through a simple communication. The only two
conditions with which, according to article 1, declarations of war must
comply are, that they must be unmistakable, and that they must state
the reason for the resort to arms. No delay between the declaration and
the actual commencement of hostilities is stipulated, and it is,
therefore, possible for a Power to open hostilities immediately after
the communication of the declaration of war to the enemy. All the more
is it necessary to emphasise that there could be no greater violation of
the Law of Nations than that which would be committed by a State which
sent a declaration to another without previously having tried to settle
the difference concerned by negotiation.
However this may be, the question as to the way in which the
communication of the declaration of war is to be made requires
attention. Since there is nowhere a rule expressly formulated according
to which the declaration must be communicated in writing, it might be
asserted that communication by any means, be it by a written document,
by telegraph or by telephone message, or by direct word of mouth, is
admissible. I believe that such an assertion cannot be supported. The
essential importance of the declaration of war and the fact that
according to article 1 of Convention III. it must be unmistakable and
must state the reason for the resort to arms, would seem to require a
written document which is to be handed over to the other party by an
envoy. Further, the fact that article 2 of Convention III. expressly
enacts that the notification of the outbreak of war to neutrals _may
even be made by telegraph_, points the same way, for the conclusion is
justified that the declaration of war stipulated as necessary by article
I may _not_ be made by telegraph. And if a telegraph message is
inadmissible, much more are telephone messages and communications by
word of mouth. Moreover, the practice of the States throughout the last
centuries has been to hand in a written declaration of war, when any
declaration has been made.
Particular attention must be paid to the fact that, in case of a
declaration of war, the war, as between the belligerents, is considered
to have commenced with the date of its declaration, although actual
hostilities may not have been commenced until a much later date. On the
other hand, as regards relations between the belligerents and neutrals,
a war is not considered to have commenced until its outbreak has either
been notified to the neutrals or has otherwise become unmistakably known
to them. For this reason, article 2 of Convention III. enacts that the
belligerents must at once after the outbreak of war notify[177] the
neutrals, even if only by telegraph, and that the state of war shall not
take effect with regard to neutrals until after they have received
notification, unless it be established beyond doubt that they were in
fact aware of the condition of war.
[Footnote 177: See below, § 307.]
[Sidenote: Ultimatum.]
§ 95. The second form which the unequivocal warning, stipulated by
article 1 of Convention III. as necessary before the commencement of
hostilities, may take is an ultimatum with a conditional declaration of
war.
Ultimatum[178] is the technical term for a written communication of one
State to another which ends amicable negotiations respecting a
difference, and formulates, for the last time and categorically, the
demands to be fulfilled if other measures are to be averted. An
ultimatum may be simple or qualified. It is _simple_ in case it does not
include an indication of the measures contemplated by the Power sending
it; such measures may be acts of retorsion or reprisals, or hostilities.
It is _qualified_ if it includes an indication of the measures
contemplated by the Power sending it, for instance a pacific blockade,
occupation of a certain territory, or war. Now the ultimatum stipulated
by article 1 of Convention III. must be a qualified one, for it must be
so worded that the recipient can have no doubt about the commencement of
war in case he does not comply with the demands of the ultimatum. For
this reason, if a State has sent a simple ultimatum to another, or a
qualified ultimatum threatening a measure other than war, it is not, in
case of non-compliance, justified in at once commencing hostilities
without a previous declaration of war. For this reason, Italy sent a
declaration of war to Turkey in 1911, although an ultimatum threatening
the occupation of Tripoli had preceded it.
Nothing is enacted by article 1 of Convention III. concerning the
minimum length of time which an ultimatum must grant before the
commencement of hostilities; this period may, therefore, be only very
short, as, for instance, a number of hours. All the more is it necessary
here likewise to emphasise that there could be no greater violation of
the Law of Nations than that which would be committed by a State which
sent an ultimatum without previously having tried to settle the
difference concerned by negotiation.
It must be specially observed that the state of war following an
ultimatum must likewise be notified to neutrals, for article 2 of
Convention III. applies to this case also. And it must further be
observed that, for the same reason as in the case of a declaration of
war, an ultimatum containing a conditional declaration of war must be
communicated to the other party by a written document.
[Footnote 178: See above, § 28.]
[Sidenote: Initiative hostile Acts of War.]
§ 96. There is no doubt that, in consequence of Convention III. of the
Second Peace Conference, the recourse to hostilities without a previous
declaration of war or qualified ultimatum is forbidden. But the fact
must not be overlooked that a war can nevertheless break out without
these preliminaries. Thus a State might deliberately order hostilities
to be commenced without a previous declaration of war or qualified
ultimatum. Further, the armed forces of two States having a grievance
against one another might engage in hostilities without having been
authorised thereto and without the respective Governments ordering them
to desist from further hostilities. Again, acts of force by way of
reprisals or during a pacific blockade or an intervention might be
forcibly resisted by the other party, hostilities breaking out in this
way.
It is certain that States which deliberately order the commencement of
hostilities without a previous declaration of war or qualified
ultimatum, commit an international delinquency, but they are
nevertheless engaged in war. Further, it is certain that States which
allow themselves to be dragged into a condition of war through
unauthorised hostile acts of their armed forces, commit an international
delinquency, but they are nevertheless engaged in war. Again, war is
actually in existence if the other party forcibly resists acts of force
undertaken by a State by way of reprisals, or during a pacific blockade
or an intervention. Now in all these and similar cases, although war has
broken out without a previous declaration or qualified ultimatum, all
the laws of warfare must find application, for a war is still war in the
eyes of International Law even though it has been illegally commenced,
or has automatically arisen from acts of force which were not intended
to be acts of war.
However that may be, article 2 of Convention III. also applies to wars
which have broken out without a previous declaration or qualified
ultimatum, and the belligerents must without delay send a notification
to neutral Powers so that these may be compelled to fulfil the duties of
neutrality. But, of course, neutral Powers must in this case likewise,
even without notification, fulfil the duties of neutrality if they are
unmistakably aware of the outbreak of war.
II
EFFECTS OF THE OUTBREAK OF WAR
Vattel, III. § 63--Hall, §§ 124-126--Westlake, II. pp.
29-32--Lawrence, §§ 143-146--Manning, pp. 163-165--Phillimore,
III. §§ 67-91--Twiss, II. §§ 41-61--Halleck, I. pp. 526-552, and
II. pp. 124-140--Taylor, §§ 461-468--Walker, §§ 44-50--Wharton,
III. §§ 336-337A--Wheaton, §§ 298-319--Moore, V. § 779, and VII.
§§ 1135-1142--Heffter, §§ 121-123--Lueder in Holtzendorff, IV. pp.
347-363--Gareis, § 81--Liszt, § 39, V.--Ullmann, § 173--Bonfils,
Nos. 1044-1065--Despagnet, Nos. 517-519--Pradier-Fodéré, VI. Nos.
2694-2720--Nys, III. pp. 134-150--Rivier, II. pp. 228-237--Calvo,
IV. §§ 1911-1931--Fiore, III. Nos. 1290-1301, and Code, Nos.
1439-1445--Martens, II. § 109--Longuet, §§ 8-15--Mérignhac, pp.
72-84--Pillet, pp. 42-59--Bordwell, pp. 200-211--Spaight, pp.
25-33--Ariga, §§ 13-15--Takahashi, pp. 26-88--Lawrence, _War_, pp.
45-55--Sainte-Croix, _La Déclaration de guerre et ses effets
immédiats_ (1892), pp. 166-207--Meyer, _De l'interdiction du
commerce entre les belligérants_ (1902)--Jaconnet, _La guerre et
les traités_ (1909)--Politis in _Annuaire_ XXIII. (1910), pp.
251-282, and XXIV. (1911), pp. 200-223.
[Sidenote: General Effects of the Outbreak of War.]
§ 97. When war breaks out, even if it be limited to only two members of
the Family of Nations, nevertheless the whole Family of Nations is
thereby affected, since the rights and duties of neutrality devolve upon
such States as are not parties to the war. And the subjects of neutral
States may feel the consequences of the outbreak of war in many ways.
War is not only a calamity to the commerce and industry of the whole
world, but also involves the alteration of the legal position of neutral
merchantmen on the Open Sea, and of the subjects of neutral States
within the boundaries of the belligerents. For the belligerents have the
right of visit, search, and eventually capture of neutral merchantmen on
the Open Sea, and foreigners who remain within the boundaries of the
belligerents, although subjects of neutral Powers, acquire in a degree
and to a certain extent enemy character.[179] However, the outbreak of
war tells chiefly and directly upon the relations between the
belligerents and their subjects. Yet it would not be correct to maintain
that all legal relations between the parties thereto and between their
subjects disappear with the outbreak of war. War is not a condition of
anarchy, indifferent or hostile to law, but a condition recognised and
ruled by International Law, although it involves a rupture of peaceful
relations between the belligerents.
[Footnote 179: See above, § 88.]
[Sidenote: Rupture of Diplomatic Intercourse and Consular Activity.]
§ 98. The outbreak of war causes at once the rupture of diplomatic
intercourse between the belligerents, if such rupture has not already
taken place. The respective diplomatic envoys are recalled and ask for
their passports, or receive them without any previous request, but they
enjoy their privileges of inviolability and exterritoriality for the
period of time requisite for leaving the country. Consular activity
likewise comes to an end through the outbreak of war.[180]
[Footnote 180: See above, vol. I. §§ 413 and 436.]
[Sidenote: Cancellation of Treaties.]
§ 99. The doctrine was formerly held, and a few writers[181] maintain it
even now, that the outbreak of war _ipso facto_ cancels all treaties
previously concluded between the belligerents, such treaties only
excepted as have been concluded especially for the case of war. The vast
majority of modern writers on International Law have abandoned this
standpoint,[182] and the opinion is pretty general that war by no means
annuls every treaty. But unanimity as to what treaties are or are not
cancelled by war does not exist. Neither does a uniform practice of the
States exist, cases having occurred in which States have expressly
declared[183] that they considered all treaties annulled through war.
Thus the whole question remains as yet unsettled. Nevertheless a
majority of writers agree on the following points:--
(1) The outbreak of war cancels all political treaties between the
belligerents which have not been concluded for the purpose of setting up
a permanent condition of things, for instance, treaties of alliance.
(2) On the other hand, it is obvious that such treaties as have been
especially concluded for the case of war are not annulled, such as
treaties in regard to the neutralisation of certain parts of the
territories of the belligerents.
(3) Such political and other treaties as have been concluded for the
purpose of setting up a permanent[184] condition of things are not _ipso
facto_ annulled by the outbreak of war, but nothing prevents the
victorious party from imposing upon the other party in the treaty of
peace any alterations in, or even the dissolution of, such treaties.
(4) Such non-political treaties as do not intend to set up a permanent
condition of things, as treaties of commerce for example, are not _ipso
facto_ annulled, but the parties may annul them or suspend them
according to discretion.
(5) So-called law-making[185] treaties, as the Declaration of Paris for
example, are not cancelled by the outbreak of war. The same is valid in
regard to all treaties to which a multitude of States are parties, as
the International Postal Union for example, but the belligerents may
suspend them, as far as they themselves are concerned, in case the
necessities of war compel them to do so.[186]
[Footnote 181: See, for instance, Phillimore, III. § 530, and Twiss, I.
§ 252, in contradistinction to Hall, § 125.]
[Footnote 182: See Jaconnet, _op. cit._ pp. 113-128.]
[Footnote 183: As, for instance, Spain in 1898, at the outbreak of the
war with the United States of America, see Moore, V. pp. 375-380.]
[Footnote 184: Thus American and English Courts--see the cases of the
_Society for the Propagation of the Gospel_ v. _Town of Newhaven_
(1823), 8 Wheaton 464, and _Sutton_ v. _Sutton_ (1830), 1 Russel &
Mylne, 663--have declared that article IX. of the treaty of Nov. 19,
1794, between Great Britain and the United States was not annulled by
the outbreak of war in 1812. See Moore, V. § 779 and Westlake, II. p.
30; see also the foreign cases discussed by Jaconnet, _op. cit._ pp.
168-179.]
[Footnote 185: See above, vol. I. §§ 18, 492, 555-568_b_.]
[Footnote 186: The Institute of International Law is studying the whole
question of the effect of war on treaties; see Politis, _l.c._, and
especially _Annuaire_, XXIV. (1911), pp. 201-213, and 220-221.]
[Sidenote: Precarious position of Belligerents' subjects on Enemy
Territory.]
§ 100. The outbreak of war affects likewise such subjects of the
belligerents as are at the time within the enemy's territory. In former
times they could at once be detained as prisoners of war, and many
States, therefore, concluded in time of peace special treaties for the
time of war expressly stipulating a specified period during which their
subjects should be allowed to leave each other's territory
unmolested.[187] Through the influence of such treaties, which became
pretty general during the eighteenth century, it became an international
practice that, as a rule, enemy subjects must be allowed to withdraw
within a reasonable period, and no instance of the former rule has
occurred during the nineteenth[188] century. Although some[189] writers
even nowadays maintain that according to strict law the old rule is
still in force, it may safely[190] be maintained that there is now a
customary rule of International Law, according to which all such
subjects of the enemy as have not according to the Municipal Law of
their country to join the armed forces of the enemy must be allowed a
reasonable period for withdrawal. On the other hand, such enemy subjects
as are active or reserve officers, or reservists, and the like, may be
prevented from leaving the country and detained as prisoners of war,
for the principle of self-preservation must justify belligerents in
refusing to furnish each other with resources which increase their means
of offence and defence.[191] However that may be, a belligerent need not
allow[192] enemy subjects to remain on his territory, although this is
frequently done. Thus, during the Crimean War Russian subjects in Great
Britain and France were allowed to remain there, as were likewise
Russians in Japan and Japanese in Russia during the Russo-Japanese War,
and Turks in Italy during the Turco-Italian War. On the other hand,
France expelled all Germans during the Franco-German war in 1870; the
former South African Republics expelled most British subjects when war
broke out in 1899; Russia, although during the Russo-Japanese War she
allowed Japanese subjects to remain in other parts of her territory,
expelled them from her provinces in the Far East; and in May 1912, eight
months after the outbreak of the Turko-Italian War, Turkey decreed the
expulsion of all Italians, certain classes excepted. In case a
belligerent allows the residence of enemy subjects on his territory, he
can, of course, give the permission under certain conditions only, such
as an oath to abstain from all hostile acts or a promise not to leave a
certain region, and the like. And it must be especially observed that an
enemy subject who is allowed to stay in the country after the outbreak
of war must not, in case the forces of his home State militarily occupy
the part of the country inhabited by him, join these forces or assist
them in any way. If, nevertheless, he does so, he is liable to be
punished for treason[193] by the local Sovereign after the withdrawal of
the enemy forces.
[Footnote 187: See a list of such treaties in Hall, § 126, p. 107, note
1.]
[Footnote 188: With regard to the 10,000 Englishmen who were arrested in
France by Napoleon at the outbreak of war with England in 1803 and kept
as prisoners of war for many years, it must be borne in mind that
Napoleon did not claim a right to make such civilians prisoners of war
as were at the outbreak of war on French soil. He justified his act as
one of reprisals, considering it a violation of the Law of Nations on
the part of England to begin hostilities by capturing two French
merchantmen in the Bay of Audierne without a formal declaration of war.
See Alison, _History of Europe_, V. p. 277, and Bonfils, No. 1052.]
[Footnote 189: See Twiss, II. § 50; Rivier, II. p. 320; Liszt, § 39, V.;
Holland, _Letters upon War and Neutrality_ (1909), p. 39.]
[Footnote 190: See _Land Warfare_, § 12.]
[Footnote 191: See _Land Warfare_, § 13.]
[Footnote 192: See above, vol. I. § 324.]
[Footnote 193: See above, vol. I. § 317, p. 394, where the case of _De
Jager_ v. _Attorney General_ is discussed.]
[Sidenote: _Persona standi in judicio_ on Enemy Territory.]
§ 100_a_. Formerly the rule prevailed everywhere that an enemy subject
has no _persona standi in judicio_ and is, therefore, _ipso facto_ by
the outbreak of war, prevented from either taking or defending
proceedings in the Courts. This rule dates from the time when war was
considered such a condition between belligerents as justified the
committing of hostilities on the part of all subjects of the one
belligerent against all subjects of the other, and, further, the killing
of all enemy subjects irrespective of sex and age, and, at any rate, the
confiscation of all private enemy property. War in those times used to
put enemy subjects entirely _ex lege_, and it was only a logical
consequence from this principle that enemy subjects could not sustain
_persona standi in judicio_. Since the rule that enemy subjects are
entirely _ex lege_ has everywhere vanished, the rule that they may not
take or defend proceedings in the Courts has in many countries, such as
Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in
Great Britain and the United States of America[194] enemy subjects are
still prevented from taking and defending legal proceedings,[195]
although there are six exceptions to the general rule. Firstly, enemy
subjects who do not bear enemy character because they are resident in
neutral country or have a licence to trade or are allowed[196] to remain
in the country of a belligerent, are therefore permitted to sue and be
sued in British and American Courts. Secondly, if during time of peace a
defendant obtains an opportunity to plead, and if subsequently war
breaks out with the country of the plaintiff, the defendant may not
plead that the plaintiff is prevented from suing.[197] Thirdly, if a
contract was entered into and executed before the war, and if an absent
enemy subject has property within the boundaries of a belligerent, he
may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on
a contract for wages. Fifthly, if the parties, being desirous to obtain
a decision on the merits of the case, waive the objection, enemy
subjects may sue and be sued.[200] Lastly, a petition on the part of a
creditor who is an enemy subject, to prove a debt under a commission of
bankruptcy must be admitted[201] although the dividend will not be paid
till after the conclusion of peace.
[Footnote 194: In strict law also in France.]
[Footnote 195: The leading case is the _Hoop_ (1799), 1 C. Rob. 196.]
[Footnote 196: _Wells_ v. _Williams_ (1698), 1 Lord Raymond, 282.]
[Footnote 197: _Shepeler_ v. _Durand_ (1854), 14 P.C. 582.]
[Footnote 198: _Dorsey_ v. _Kyle_ (1869), 3 Maryland, 512. It would seem
that the American Courts are inclined to drop the rule that an enemy
subject cannot be sued; see _De Jarnett_ v. _De Giversville_ (1874), 56
Missouri, 440.]
[Footnote 199: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.]
[Footnote 200: _Driefontein Consolidated Gold Mines Co._ v. _Janson_
(1910), 2 Q.B. 419; App. Cas. (1902), 484.]
[Footnote 201: _Ex parte Boussmaker_ (1806), 13 Vesey Jun. 71.]
It is asserted that, in consequence of article 23 (_h_) of the Hague
Regulations concerning land warfare enacting the injunction "to declare
extinguished, suspended, or unenforceable in a Court of Law the rights
and rights of action of the nationals of the adverse party," Great
Britain and the United States are compelled to abolish their rule that
enemy subjects may not sue. But the interpretation of article 23 (_h_)
is controversial, Great Britain and the United States of America--in
contradistinction to Germany and France--maintaining that the article
has nothing to do with their Municipal Law but concerns the conduct of
armies in occupied enemy territory.[202]
[Footnote 202: It is impossible here to discuss the details of this
controversy which the third Peace Conference must settle. See above,
vol. I. § 554, No. 10; Politis in _R.G._ XVIII. (1911), pp. 249-259, and
the literature there quoted; Kohler in _Z.V._ V. (1911), pp. 384-393;
Holland in _The Law Quarterly Review_, XXVIII. (1912), pp. 94-98;
Charteris in _The Juridical Review_, XXIII. (1911), pp. 307-323;
Oppenheim, _Die Zukunft des Völkerrechts_ (1911), pp. 30-32.]
However this may be, it must be especially observed that, according to
British and American law, claims arising out of contracts concluded
before the war do not become extinguished through the outbreak of war,
but are only suspended during war, and the Statute of Limitations does
not, according to American[203] practice at any rate, run during war.
[Footnote 203: _Hanger_ v. _Abbot_ (1867), 6 Wallace, 532. The point is
not settled in English law, for the _obiter dictum_ in _De Wahl_ v.
_Browne_ (1856), 25 L.J. (N.S.) Ex. 343, "It may be that the effect
would ultimately be to bar the action by reason of the Statute of
Limitations is no answer...", is not decisive, although Anson,
_Principles of the English Law of Contract_ (11th ed. 1906), p. 122, and
other writers accept it as decisive.]
[Sidenote: Intercourse, especially Trading, between Subjects of
Belligerents.]
§ 101. Following Bynkershoek,[204] all British and American writers and
cases, and also some French[205] and German[206] writers assert the
existence of a rule of International Law that all intercourse, and
especially trading, is _ipso facto_ by the outbreak of war prohibited
between the subjects of the belligerents, unless it is permitted under
the customs of war, as, for instance, ransom bills, or is allowed under
special licences, and that all contracts concluded between the subjects
of the belligerents before the outbreak of war become extinct or
suspended. On the other hand, most German, French, and Italian writers
deny the existence of such a rule, but assert the existence of another
according to which belligerents are empowered to prohibit by special
orders all trade between their own and enemy subjects.
[Footnote 204: _Quaestiones juris publici_, I. c. 3: "_quamvis autem
nulla specialis sit commerciorum prohibitio ipsa tamen jure belli
commercia sunt vetita_."]
[Footnote 205: For instance, Pillet, p. 74, and Mérignhac, p. 57.]
[Footnote 206: For instance, Geffcken in his note 4 to Heffter, p. 265.]
These assertions are remnants of the time when the distinction[207]
between International and Municipal Law was not, or not clearly, drawn.
International Law, being a law for the conduct of States only and
exclusively, has nothing to do directly with the conduct of private
individuals, and both assertions are, therefore, nowadays untenable.
Their place must be taken by the statement that, States being sovereign
and the outbreak of war bringing the peaceful relations between
belligerents to an end, it is within the competence of every State to
enact by its Municipal Law such rules as it pleases concerning
intercourse, and especially trading, between its own and enemy subjects.
And if we look at the Municipal Laws of the several countries, we find
that they have to be divided into two groups. To the one group belong
those States--such as Austria-Hungary, Germany, Holland, and
Italy--whose Governments are empowered by their Municipal Laws to
prohibit by special order all trading with enemy subjects at the
outbreak of war. In these countries trade with enemy subjects is
permitted to continue after the outbreak of war unless special
prohibitive orders are issued. To the other group belong those
States--such as Great Britain, the United States of America, and, unless
_desuetudo_[208] has made an alteration, France--whose Municipal Laws
declare trade and intercourse with enemy subjects _ipso facto_ by the
outbreak of war prohibited, but empowers the Governments to allow by
special licences all or certain kinds of such trade.
[Footnote 207: See above, vol. I. § 20.]
[Footnote 208: See Meyer, _op. cit._ p. 91.]
As regards the law of Great Britain[209] and the United States of
America, it has been, since the end of the eighteenth century, an
absolutely settled[210] rule of the Common Law that, certain cases
excepted, all trading with alien enemies is _ipso facto_ by the outbreak
of war illegal unless it is allowed by special licences of the Crown.
From the general principle asserted in the leading cases,[211] the
Courts have drawn the following more important consequences:--
(1) All contracts, entered into _during_ a war,[212] with alien enemies
without a special licence are illegal, invalid, and can never be
enforced, unless the contract was one entered into in case of
necessity,[213] or in order to supply[214] an invading English army or
the English fleet, or by prisoners[215] of war concerning personal
services and requirements.
(2) Trading with the enemy does not become legal by the fact that goods
coming from the enemy country to Great Britain, or going from Great
Britain to the enemy country, are sent to their destination through a
neutral country.[216]
(3) As regards contracts entered into _before_[217] the outbreak of war,
a distinction must be drawn:--(_a_) Executory contracts are avoided,
both parties being released from performance. (_b_) Contracts executed
before the outbreak of war and not requiring to be acted upon during the
war are suspended until after the conclusion of peace. (_c_) Executed
contracts which require acting upon during the war are dissolved.
(4) Partnerships[218] with alien enemies are dissolved.
(5) No interest runs on debts[219] or mortgages.[220]
(6) A contract of affreightment[221] must not be fulfilled; therefore
English ships must not load or unload goods in an enemy port.
(7) Contracts of insurance of enemy vessels and goods are so to be
construed as to contain a proviso that the assurance shall not cover any
loss occurring during a war between the country of the assurer and the
country of the assured.[222]
(8) A life insurance policy,[223] entered into before the outbreak of
war conditioning the payment of yearly premiums on pain of forfeiture of
the policy, is forfeited _ipso facto_ by the outbreak of war because the
payment of the premium is now prohibited. After the conclusion of peace,
however, the insured may claim the equitable value of the policy
arising, at the time of the outbreak of war, from the premiums actually
paid.
[Footnote 209: See besides the English and American text-books quoted
above at the commencement of § 97, Pennant, Chadwick, and Gregory in
_The Law Quarterly Review_, XVIII. (1902), pp. 289-296, XX. (1904), pp.
167-185, XXV. (1909), pp. 297-316; Bentwich, _The Law of Private
Property in War_ (1907), pp. 46-61; Phillipson, _The Effect of War on
Contracts_ (1909); Latifi, _Effects of War on Property_ (1909), pp.
50-58.]
[Footnote 210: Whereas the Admiralty Court did at all times, the Common
Law Courts did not during the eighteenth century hold trading with enemy
subjects to be illegal, at any rate not in so far as insurance of enemy
vessels and goods against capture on the part of English cruisers was
concerned; see _Henkle_ v. _London Exchange Assurance Co._ (1749), 1
Vesey Sen. 320; _Planche_ v. _Fletcher_ (1779), 1 Dougl. 251; _Lavabre_
v. _Wilson_ (1779), 1 Dougl. 284; _Gist_ v. _Mason_ (1786), 1 T.R. 84.]
[Footnote 211: Besides the Admiralty case of the _Hoop_ (1799), 1 C.
Rob. 196, the following are the leading cases:--_Potts_ v. _Bell_
(1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802), 3 P. & B. 191;
_Esposito_ v. _Bowden_ (1857), 7 E. & B. 763; the _Mashona_ (1900), 10
_Cape Times_ Law Reports, 170.]
[Footnote 212: _Willison_ v. _Paterson_ (1817), 7 Taunt, 439.]
[Footnote 213: _Antoine_ v. _Morshead_ (1815), 6 Taunt, 237.]
[Footnote 214: The _Madonna delle Gracie_ (1802), 4 C. Rob. 195.]
[Footnote 215: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.]
[Footnote 216: The _Jonge Pieter_ (1801), 4 C. Rob. 79. But if the goods
have been bought by the subject of a neutral State _bona fide_ by
himself and are afterwards shipped through neutral country to the enemy,
it is not a case of trading with the enemy; see the _Samuel_ (1802), 4
C. Rob. 284, note.]
[Footnote 217: _Melville_ v. _De Wold_ (1855), 4 E. & B. 844; _Esposito_
v. _Bowden_ (1857), 7 E. & B. 763; _Ex parte Boussmaker_ (1806), 13 Ves.
Jun. 71; _Alcinous_ v. _Nygreu_ (1854), 4 E. & B. 217; the _Charlotta_
(1814), 1 Dodson, 390.]
[Footnote 218: _Griswold_ v. _Boddington_ (1819), 16 Johnson, 438;
_Esposito_ v. _Bowden_ (1857), 7 E. & B. 763.]
[Footnote 219: _Du Belloix_ v. _Lord Waterpark_ (1822), 1 Dowl. & R. 16;
_Mayer_ v. _Reed_ (1867), 37 Gallison, 482.]
[Footnote 220: _Hoare_ v. _Allan_ (1789), 2 Dallas, 102.]
[Footnote 221: _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763. See also
the _Teutonia_ (1870), L. R. 4 Privy Council, 171.]
[Footnote 222: _Brandon_ v. _Curling_ (1803), 4 East, 410; but see also
_Potts_ v. _Bell_ (1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802),
3 P. & B. 191; _Kellner_ v. _Le Mesurier_ (1803), 4 East, 396; _Gamba_
v. _Le Mesurier_ (1803), 4 East, 407.]
[Footnote 223: _New York Life Insurance Co._ v. _Stathem_, v. _Symes_,
and v. _Buck_ (1876), 93 United States, 24; _New York Life Insurance
Co._ v. _Davis_ (1877), 95 United States, 425.]
It must be specially observed that, if the continental interpretation of
article 23 (_h_) of the Hague Regulations--see above, § 100_a_--were not
contradicted by Great Britain and the United States of America, both
countries would be compelled to alter their Municipal Laws in so far as
these declare such contracts as have been entered into with alien
enemies before the outbreak of war dissolved, void, or suspended.
Article 23 (_h_) distinctly enacts that it is forbidden to declare
extinguished or suspended the rights of the nationals of the adverse
party. Since, however, as stated above in § 100_a_, Great Britain and
the United States of America uphold a different interpretation, this
article does not concern their Municipal Laws respecting trading with
alien enemies.
[Sidenote: Position of Belligerents' Property in the Enemy State.]
§ 102. In former times all private and public enemy property, immoveable
or moveable, on each other's territory could be confiscated by the
belligerents at the outbreak of war, as could also enemy debts; and the
treaties[224] concluded between many States with regard to the
withdrawal of each other's subjects at the outbreak of war stipulated
likewise the unrestrained withdrawal of the private property of their
subjects. Through the influence of such treaties as well as of Municipal
Laws and Decrees enacting the same, an international usage and practice
grew up that belligerents should neither confiscate private enemy
property nor annul enemy debts on their territory. The last case of
confiscation of private property is that of 1793 at the outbreak of war
between France and Great Britain. No case of confiscation occurred
during the nineteenth century, and although several writers maintain
that according to strict law the old rule, in contradistinction to the
usage which they do not deny, is still valid, it may safely be
maintained that it is obsolete, and that there is now a customary rule
of International Law in existence prohibiting the confiscation of
private enemy property and the annulment of enemy debts on the territory
of a belligerent. This rule, however, does not prevent a belligerent
from seizing public enemy property on his territory, such as funds,
ammunition, provisions, rolling stock of enemy state-railways, and other
valuables; from preventing the withdrawal of private enemy property
which may be made use of by the enemy[225] for military operations, such
as arms and munitions; from seizing and making use of rolling stock
belonging to private enemy railway companies, other means of transport
of persons or goods which are private enemy property, and, further, all
appliances for the transmission of news, although they are private enemy
property, provided all these articles are restored and indemnities are
paid for them after the conclusion of peace;[226] and from suspending,
as a measure of self preservation, the payment of large enemy debts till
after the conclusion of peace in order to prevent the increase of
resources of the enemy.
[Footnote 224: See above, § 100; Moore, VII. § 1196; Scott,
_Conferences_, pp. 559-563.]
[Footnote 225: The indulgence granted to enemy merchantmen in Russian
and Japanese ports at the outbreak of the war in 1904, to leave those
ports unmolested within a certain period of time, was conditional upon
there being no contraband in the cargoes. See Lawrence, _War_, p. 52.]
[Footnote 226: As the seizure of all these articles is, according to
article 53 of the Hague Regulations, permissible in occupied enemy
country, provided they are restored and indemnities paid after the
conclusion of peace, seizure must likewise--under the same
conditions--be permissible in case these articles are on the territory
of a belligerent. As regards rolling stock belonging to private enemy
railway companies, see Nowacki, _Die Eisenbahnen im Kriege_ (1906), §
15.]
[Sidenote: Effect of the Outbreak of War on Merchantmen.]
§ 102_a_. In former times International Law empowered States at the
outbreak of war to lay an embargo upon all enemy merchantmen in their
harbours in order to confiscate them. And enemy merchantmen on the sea
could at the outbreak of war be captured and confiscated although they
did not even know of the outbreak of war. As regards enemy merchantmen
in the harbours of the belligerents, it became, from the outbreak of the
Crimean War in 1854, a usage, if not a custom, that no embargo[227]
could be laid on them for the purpose of confiscating them, and that a
reasonable time must be granted them to depart unmolested; but no rule
was in existence until the Second Peace Conference of 1907 which
prescribed immunity from confiscation for such enemy merchantmen at sea
as did not know of the outbreak of war. This Conference took the matter
into consideration, and produced a Convention (VI.) relative to the
status of enemy merchantmen at the outbreak of hostilities[228] which is
signed by all the Powers represented at the Conference, except the
United States of America,[229] China, and Nicaragua; but Nicaragua
acceded later. In coming to an agreement on the subject, two facts had
to be taken into consideration. There is, firstly, the fact that in all
maritime countries numerous merchantmen are now built from special
designs in order that they may quickly, at the outbreak of or during
war, be converted into cruisers; it would therefore be folly on the part
of a belligerent to grant any lenient treatment to such vessels. There
is, secondly, the fact, that a belligerent fleet cannot nowadays remain
effective for long without being accompanied by a train of colliers,
transport vessels, and repairing vessels; it is, therefore, of the
greatest importance for a belligerent to have as many merchantmen as
possible at his disposal for the purpose of making use of them for such
assistance to the fleet. For this reason, Convention VI. represents a
compromise, and it distinguishes between vessels in the harbours of the
belligerents and vessels on the sea. Its provisions are the following:--
[Footnote 227: See above, § 40.]
[Footnote 228: See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold,
II. pp. 146-153; Scott, _Conferences_, pp. 556-568; Dupuis, _Guerre_,
Nos. 74-81; Scott in _A.J._ II. (1908), pp. 260-269.]
[Footnote 229: The United States of America refused to sign the
Convention because she considers its stipulations retrogressive as they
are less liberal than the practice which has prevailed since 1854. But
circumstances have changed since that time, and the two facts explained
in the text would seem to have compelled the maritime Powers to adopt
rules somewhat less liberal. This was the more necessary since no
agreement could be arrived at concerning the question of the locality in
which belligerents should be allowed to convert merchantmen into
cruisers.]
(1) Article 1 of the Convention enacts that, in case an enemy
merchantman is at the beginning of the war in the port of a belligerent,
it is _desirable_ that she should be allowed freely to depart, either
immediately or after a sufficient term of grace, and, after being
furnished with a passport, to proceed either direct to her port of
destination or to such other port as may be determined. It is obvious
that, since only the desirability of free departure of such vessels is
stipulated, a belligerent is not compelled to grant free departure;
nevertheless there must be grave reasons for not acting in accordance
with what is considered desirable by article 1. And it must be specially
observed that a belligerent may make a distinction in the treatment of
several enemy vessels in his harbours, and may grant free departure to
one or more of them, and refuse it to others, according to his
discretion.
(2) The former usage that enemy merchantmen in the harbours of the
belligerents at the outbreak of war may not be confiscated, has been
made a _binding rule_ by article 2 which enacts that such vessels as
were not allowed to leave, or were by _force majeure_ prevented from
leaving during the term of grace, may not be confiscated, but may only
be detained under the obligation that they shall be restored, without
indemnity, after the conclusion of peace, or they may be requisitioned
on condition of indemnities to be paid to the owners.
(3) Enemy merchantmen which have left their last port of departure
before the outbreak of war and which, while ignorant of the outbreak of
war, are met at sea by cruisers of the belligerents, may, according to
article 3, be captured, but they may not be confiscated, for they must
be restored after the war is ended, although no indemnities need be
paid. Indemnities are only to be paid in case the vessels have been
requisitioned or destroyed, for a belligerent is empowered to
requisition or destroy such vessels provided he takes care to preserve
the ship papers and makes arrangements for the safety of the persons on
board.
It is obvious that, in case such vessels are not ignorant of the
outbreak of war--having, for instance, received the news by wireless
telegraphy--they may not any longer claim the privileges stipulated by
article 3. And this article stipulates expressly that after having
touched a port of their own or of a neutral country, such vessels are no
longer privileged.
(4) Enemy goods on board such enemy merchantmen as are in the harbour
of a belligerent at the outbreak of war or at sea and are in ignorance
of the outbreak of war are, according to article 4, privileged to the
same extent as the vessels concerned.
(5) Enemy merchantmen whose construction indicates that they are
intended to be converted into cruisers may be seized and confiscated in
the harbours of the belligerents, as well as at sea, although ignorant
of the outbreak of war, for article 5 stipulates expressly that
Convention VI. does not affect such vessels.
CHAPTER III
WARFARE ON LAND
I
ON LAND WARFARE IN GENERAL
Vattel, III. §§ 136-138--Hall, §§ 184-185--Phillimore, III. §
94--Taylor, § 469--Wheaton, § 342--Bluntschli, §§
534-535--Heffter, § 125--Lueder in Holtzendorff, IV. pp.
388-389--Gareis, § 84--Bonfils, Nos. 1066-1067--Pradier-Fodéré,
VI. Nos. 2734-2741--Longuet, § 41--Mérignhac, p. 146--Pillet, pp.
85-89--_Kriegsbrauch_, p. 9--_Land Warfare_, § 39--Holland, _War_,
Nos. 1-15.
[Sidenote: Aims and Means of Land Warfare.]
§ 103. The purpose of war, namely, the overpowering of the enemy, is
served in land warfare through two aims[230]--firstly, defeat of the
enemy armed forces on land, and, secondly, occupation and administration
of the enemy territory. The chief means by which belligerents try to
realise those aims, and which are always conclusively decisive, are the
different sorts of force applied against enemy persons. But besides such
violence against enemy persons there are other means which are not at
all unimportant, although they play a secondary part only. Such means
are: appropriation, utilisation, and destruction of enemy property;
siege; bombardment; assault; espionage; utilisation of treason; ruses.
All these means of warfare on land must be discussed in this chapter, as
must also occupation of enemy territory.
[Footnote 230: Aims of land warfare must not be confounded with ends of
war; see above, § 66.]
[Sidenote: Lawful and Unlawful Practices of Land Warfare.]
§ 104. But--to use the words of article 22 of the Hague
Regulations--"the belligerents have not an unlimited right as to the
means they adopt for injuring the enemy." For not all possible practices
of injuring the enemy in offence and defence are lawful, certain
practices being prohibited under all circumstances and conditions, and
other practices being allowed only under certain circumstances and
conditions, or only with certain restrictions. The principles of
chivalry and of humanity have been at work[231] for many hundreds of
years to create these restrictions, and their work is not yet at an end.
However, apart from these restrictions, all kinds and degrees of force
and many other practices may be made use of in war.
[Footnote 231: See above, § 67.]
[Sidenote: Objects of the Means of Warfare.]
§ 105. In a sense all means of warfare are directed against one object
only--namely, the enemy State, which is to be overpowered by all
legitimate means. Apart from this, the means of land warfare are
directed against several objects.[232] Such objects are chiefly the
members of the armed forces of the enemy, but likewise, although in a
lesser degree, other enemy persons; further, private and public
property, fortresses, and roads. Indeed, apart from certain
restrictions, everything may eventually be the object of a means of
warfare, provided the means are legitimate in themselves and are capable
of fostering the realisation of the purpose of war.
[Footnote 232: See Oppenheim, _Die Objekte des Verbrechens_ (1894), pp.
64-146, where the relation of human actions with their objects is fully
discussed.]
[Sidenote: Land Warfare in contradistinction to Sea Warfare.]
§ 106. Land warfare must be distinguished from sea warfare chiefly for
two reasons. Firstly, their circumstances and conditions differ widely
from each other, and, therefore, their means and practices also differ.
Secondly, the law-making Conventions which deal with warfare rarely deal
with land and sea warfare at the same time, but mostly treat them
separately, for whereas some Conventions deal exclusively with warfare
on sea, the Hague Regulations (Convention IV.) deal exclusively with
warfare on land.
II
VIOLENCE AGAINST ENEMY PERSONS
Grotius, III. c. 4--Vattel, III. §§ 139-159--Hall, §§ 128, 129,
185--Westlake, II. pp. 72-76--Lawrence, §§ 161, 163,
166-169--Maine, pp. 123-148--Manning, pp. 196-205--Phillimore,
III. §§ 94-95--Halleck, II. pp. 14-18--Moore, VII. §§ 1111, 1119,
1122, 1124--Taylor, §§ 477-480--Walker, § 50--Wheaton, §§
343-345--Bluntschli, §§ 557-563--Heffter, § 126--Lueder in
Holtzendorff, IV. pp. 390-394--Gareis, § 85--Klüber, § 244--Liszt,
§ 40, III.--G. F. Martens, II. § 272--Ullmann, § 176--Bonfils,
Nos. 1068-1071, 1099, 1141--Despagnet, Nos.
525-527--Pradier-Fodéré, VI. Nos. 2742-2758--Rivier, II. pp.
260-265--Nys, III. pp. 206-209--Calvo, IV. 2098-2105--Fiore, III.
Nos. 1317-1320, 1342-1348, and Code, Nos. 1476-1483--Martens, II.
§ 110--Longuet, §§ 42-49--Mérignhac, pp. 146-165--Pillet, pp.
85-95--Holland, _War_, pp. 70-76--Zorn, pp. 127-161--Bordwell, pp.
278-283--Meurer, II. §§ 30-31--Spaight, pp.
73-156--_Kriegsbrauch_, pp. 9-11--_Land Warfare_, §§ 39-53.
[Sidenote: On Violence in general against Enemy Persons.]
§ 107. As war is a contention between States for the purpose of
overpowering each other, violence consisting of different sorts of force
applied against enemy persons is the chief and decisive means of
warfare. These different sorts of force are used against combatants as
well as non-combatants, but with discrimination and differentiation. The
purpose of the application of violence against combatants is their
disablement so that they can no longer take part in the fighting. And
this purpose may be realised through either killing or wounding them, or
making them prisoners. As regards non-combatant members of armed forces,
private enemy persons showing no hostile conduct, and officials in
important positions, only minor means of force may as a rule be applied,
since they do not take part in the armed contention of the belligerents.
[Sidenote: Killing and Wounding of Combatants.]
§ 108. Every combatant may be killed or wounded, whether a private
soldier or an officer, or even the monarch or a member of his family.
Some publicists[233] assert that it is a usage of warfare not to aim at
a sovereign or a member of his family. Be that as it may, there is in
strict law[234] no rule preventing the killing and wounding of such
illustrious persons. But combatants may only be killed or wounded if
they are able and willing to fight or to resist capture. Therefore, such
combatants as are disabled by sickness or wounds may not be killed.
Further, such combatants as lay down arms and surrender or do not resist
being made prisoners may neither be killed nor wounded, but must be
given quarter. These rules are universally recognised, and are now
expressly enacted by article 23 (_c_) of the Hague Regulations, although
the fury of battle frequently makes individual fighters[235] forget and
neglect them.
[Footnote 233: See Klüber, § 245; G. F. Martens, II. § 278; Heffter, §
126.]
[Footnote 234: Says Vattel, III. § 159: "Mais ce n'est point une loi de
la guerre d'épargner en toute rencontre la personne du roi ennemi; et on
n'y est obligé que quand on a la facilité de le faire prisonnier." The
example of Charles XII. of Sweden (quoted by Vattel), who was
intentionally fired at by the defenders of the fortress of Thorn,
besieged by him, and who said that the defenders were within their
right, ought to settle the point.]
[Footnote 235: See Baty, _International Law in South Africa_ (1900), pp.
84-85.]
[Sidenote: Refusal of Quarter.]
§ 109. However, the rule that quarter must be given has its exceptions.
Although it has of late been a customary rule of International Law, and
although the Hague Regulations now expressly stipulate by article 23
(_d_) that belligerents are prohibited from declaring that no quarter
will be given, quarter may nevertheless be refused[236] by way of
reprisal for violations of the rules of warfare committed by the other
side; and, further, in case of imperative necessity, when the granting
of quarter would so encumber a force with prisoners that its own
security would thereby be vitally imperilled.[237] But it must be
emphasised that the mere fact that numerous prisoners cannot safely be
guarded and fed by the captors[238] does not furnish an exceptional
case to the rule, provided that no vital danger to the captors is
therein involved. And it must likewise be emphasised that the former
rule is now obsolete according to which quarter could be refused to the
garrison of a fortress carried by assault, to the defenders of an
unfortified place against an attack of artillery, and to the weak
garrison who obstinately and uselessly persevered in defending a
fortified place against overwhelming enemy forces.
[Footnote 236: See Pradier-Fodéré, VII. Nos. 2800-2801, who opposes this
principle but discusses the subject in a very detailed way.]
[Footnote 237: See Payrat, _Le Prisonnier de Guerre_ (1910), pp.
191-220, and _Land Warfare_, § 80.]
[Footnote 238: Accordingly, the Boers frequently during the South
African War set free British soldiers whom they had captured.]
[Sidenote: Lawful and Unlawful Means of killing and wounding
Combatants.]
§ 110. Apart from such means as are expressly prohibited by treaties or
custom, all means of killing and wounding that exist or may be invented
are lawful. And it matters not whether the means used are directed
against single individuals, as swords and rifles, or against large
bodies of individuals, as, for instance, shrapnel, Gatlings, and mines.
On the other hand, all means are unlawful that render death inevitable
or that needlessly aggravate the sufferings of wounded combatants. A
customary rule of International Law, now expressly enacted by article 23
(_e_) of the Hague Regulations, prohibits, therefore, the employment of
poison and of such arms, projectiles, and material as cause unnecessary
injury. Accordingly: wells, pumps, rivers, and the like from which the
enemy draws drinking water must not be poisoned; poisoned weapons must
not be made use of; rifles must not be loaded with bits of glass,
irregularly shaped iron, nails, and the like; cannons must not be loaded
with chain shot, crossbar shot, red-hot balls, and the like. Another
customary rule, now likewise enacted by article 23 (_b_) of the Hague
Regulations, prohibits any treacherous way of killing and wounding
combatants. Accordingly: no assassin must be hired and no assassination
of combatants be committed; a price may not be put on the head of an
enemy individual; proscription and outlawing are prohibited; no
treacherous request for quarter must be made; no treacherous simulation
of sickness or wounds is permitted.
[Sidenote: Explosive Bullets.]
§ 111. In 1868 a conference met at St. Petersburg for the examination of
a proposition made by Russia with regard to the use of explosive
projectiles in war. The representatives of seventeen Powers--namely,
Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark,
France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North
German Confederation, Sweden-Norway, Switzerland, Turkey and Württemberg
(Brazil acceded later) signed on December 11, 1868, the so-called
Declaration of St. Petersburg,[239] which stipulates that the signatory
Powers, and those who should accede later, renounce in case of war
between themselves the employment, by their military and naval troops,
of any projectile of a weight below 400 grammes (14 ounces) which is
either explosive or charged with fulminating or inflammable substances.
This engagement is obligatory only upon the contracting Powers, and it
ceases to be obligatory in case a non-contracting Power takes part in a
war between any of the contracting Powers.
[Footnote 239: See above, vol. I. § 562, and Martens, _N.R.G._ XVIII. p.
474.]
[Sidenote: Expanding (Dum-Dum) Bullets.]
§ 112. As Great Britain had introduced bullets manufactured at the
Indian arsenal of Dum-Dum, near Calcutta, the hard jacket of which did
not quite cover the core and which therefore easily expanded and
flattened in the human body, the First Hague Peace Conference adopted a
declaration signed on July 29, 1899, by fifteen Powers--namely, Belgium,
Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia,
Roumania, Russia, Siam, Sweden-Norway, Turkey, and Bulgaria--stipulating
that the contracting Powers should abstain, in case of war between two
or more of them, from the use of bullets which expand or flatten easily
in the human body, such as bullets with hard envelopes which do not
entirely cover the core or are pierced with incisions. Austria-Hungary,
China, Germany, Italy, Nicaragua, Portugal, Japan, Luxemburg, Servia,
Switzerland, and Great Britain acceded later.
[Sidenote: Projectiles diffusing Asphyxiating or Deleterious Gases.]
§ 113. The First Hague Peace Conference also adopted a Declaration,
signed on July 29, 1899, by sixteen States--namely, Belgium, Denmark,
Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Portugal,
Roumania, Russia, Siam, Sweden-Norway, Turkey and Bulgaria--stipulating
that the signatory Powers should in a war between two or more of them
abstain from the use of projectiles the sole object of which is the
diffusion of asphyxiating or deleterious gases. Austria-Hungary, China,
Germany, Italy, Japan, Luxemburg, Nicaragua, Servia, Switzerland, and
Great Britain acceded later.
[Sidenote: Violence directed from Air-Vessels.]
§ 114. The First Hague Peace Conference adopted likewise a Declaration,
signed on July 29, 1899, prohibiting _for a term of five years_ the
launching of projectiles or explosives from balloons or other kinds of
aerial vessels. The Second Peace Conference, on October 18, 1907,
renewed this Declaration _up to the close of the Third Peace
Conference_, but out of twenty-seven States which signed the Declaration
only seven--namely, Great Britain, the United States of America, China,
Holland, Bolivia, Salvador, Haiti (Nicaragua acceded later)--ratified
it, and Germany, France, Italy, Japan, Russia--not to mention smaller
Powers--did not even sign it. There is, therefore, no doubt that the
Third Peace Conference will not renew the Declaration. Although it is
very much to be regretted, the fact must be taken into consideration
that in future violence directed from air-vessels will play a great part
in war. For this reason, the question as to the conditions under which
such violence is admissible, is of importance,[240] but it is as yet
impossible to give a satisfactory answer. The Institute of International
Law, at its meeting at Madrid in 1911, adopted the principle[241] that
_aerial warfare must not comprise greater danger to the person and the
property of the peaceful population than land or sea warfare_. However
this may be, there can be no doubt that the general principles laid down
in the Declaration of St. Petersburg of 1868, in the two Declarations,
adopted by the First Peace Conference, concerning expanding bullets and
projectiles diffusing asphyxiating or deleterious gases, in the Hague
rules concerning land warfare, and the like, must find application as
regards violence directed from air vessels.
[Footnote 240: See, besides the literature quoted above, vol. I. p. 237,
note 1, Mérignhac, pp. 198-209; Bonfils, Nos. 1440'4-1440'21; Despagnet,
No. 721 _bis_; Meyer, _Die Luftschiffahrt in kriegsrechtlicher
Beleuchtung_ (1909); Philet, _La guerre aérienne_ (1910); Nys,
Fauchille, and Bar in _Annuaire_, XIX. (1902), pp. 58-114, XXIV. (1911),
pp. 23-126; Fauchille in _R.G._ VIII. (1901), pp. 414-485.]
[Footnote 241: See _Annuaire_, XXIV. (1911), p. 346.]
[Sidenote: Violence against non-combatant Members of Armed Forces.]
§ 115. It will be remembered from above, § 79, that numerous individuals
belong to armed forces without being combatants. Now, since and in so
far as these non-combatant members of armed forces do not take part in
the fighting, they may not directly be attacked and killed or wounded.
However, they are exposed to all injuries indirectly resulting from the
operations of warfare. And, with the exception of the personnel[242]
engaged in the interest of the wounded, such as doctors, chaplains,
persons employed in military hospitals, official ambulance men, who,
according to articles 9 and 10 of the Geneva Convention, are specially
privileged, such non-combatant members of armed forces may certainly be
made prisoners, since the assistance they give to the fighting forces
may be of great importance.
[Footnote 242: See below, § 121.]
[Sidenote: Violence against Private Enemy Persons.]
§ 116. Whereas in former[243] times private enemy persons of either sex
could be killed or otherwise badly treated according to discretion, and
whereas in especial the inhabitants of fortified places taken by assault
used to be abandoned to the mercy of the assailants, in the eighteenth
century it became a universally recognised customary rule of the Law of
Nations that private enemy individuals should not be killed or attacked.
In so far as they do not take part in the fighting, they may not be
directly attacked and killed or wounded. They are, however, like
non-combatant members of the armed forces, exposed to all injuries
indirectly resulting from the operations of warfare. Thus, for instance,
when a town is bombarded and thousands of inhabitants are thereby
killed, or when a train carrying private individuals as well as soldiers
is wrecked by a mine, no violation of the rule prohibiting attack on
private enemy persons has taken place.
[Footnote 243: See Grotius, III. c. 4, §§ VI. and IX.]
As regards captivity, the rule is that private enemy persons may not be
made prisoners of war. But this rule has exceptions conditioned by the
carrying out of certain military operations, the safety of the armed
forces, and the order and tranquillity of occupied enemy territory.
Thus, for instance, influential enemy citizens who try to incite their
fellow-citizens to take up arms may be arrested and deported into
captivity. And even the whole population of a province may be imprisoned
in case a levy _en masse_ is threatening.[244]
[Footnote 244: Civilians who render assistance to the enemy as drivers,
or as labourers to construct fortifications or siege works, or in a
similar way, if captured while they are so engaged, may not be detained
as prisoners of war, whether they render these services voluntarily or
are requisitioned or hired. See _Land Warfare_, § 58 note (_a_).]
Apart from captivity, restrictions of all sorts may be imposed upon, and
means of force may be applied against, private enemy persons for many
purposes. Such purposes are:--the keeping of order and tranquillity on
occupied enemy territory; the prevention of any hostile conduct,
especially conspiracies; the prevention of intercourse with and
assistance to the enemy forces; the securing of the fulfilment of
commands and requests of the military authorities, such as those for the
provision of drivers, hostages, farriers; the securing of compliance
with requisitions and contributions, of the execution of public works
necessary for military operations, such as the building of
fortifications, roads, bridges, soldiers' quarters, and the like. What
kind of violent means may be applied for these purposes is in the
discretion of the respective military authorities, who on their part
will act according to expediency and the rules of martial law
established by the belligerents. But there is no doubt that, if
necessary, capital punishment and imprisonment[245] are lawful means for
these purposes. The essence of the position of private individuals in
modern warfare with regard to violence against them finds expression in
article 46 of the Hague Regulations, which lays down the rule that
"family honours and rights, individual lives and private property, as
well as religious convictions and liberty, must be respected."
[Footnote 245: That in case of general devastation the peaceful
population may be detained in so-called concentration camps, there is no
doubt; see below, § 154. And there is likewise no doubt that hostages
may be taken from the peaceful population; see below, § 170, p. 213, and
§ 259, p. 319, note 2.]
[Sidenote: Violence against the Head of the Enemy State and against
Officials in Important Positions.]
§ 117. The head of the enemy State and officials in important posts, in
case they do not belong to the armed forces, occupy, so far as their
liability to direct attack, death, or wounds is concerned, a position
similar to that of private enemy persons. But they are so important to
the enemy State, and they may be so useful to the enemy and so dangerous
to the invading forces, that they may certainly be made prisoners of
war. If a belligerent succeeds in obtaining possession of the head of
the enemy State or its Cabinet Ministers, he will certainly remove them
into captivity. And he may do the same with diplomatic agents and other
officials of importance, because by weakening the enemy Government he
may thereby influence the enemy to agree to terms of peace.
III
TREATMENT OF WOUNDED, AND DEAD BODIES
Hall, § 130--Lawrence, § 165--Maine, pp. 156-159--Manning, p.
205--Phillimore, III. § 95--Halleck, II. pp. 36-39--Moore, VII. §
1134--Taylor, §§ 527-528--Bluntschli, §§ 586-592--Lueder in
Holtzendorff, IV. pp. 289-319, 398-421--Liszt, § 40, V.--Ullmann,
§ 178 and in _R.G._ IV. (1897), pp. 437-447--Bonfils, Nos.
1108-1118'7--Despagnet, Nos. 551-553--Pradier-Fodéré, VI. No.
2794, VII. Nos. 2849-2881--Rivier, II. pp. 268-273--Nys, III. pp.
526-536--Calvo, IV. §§ 2161-2165--Fiore, III. Nos. 1363-1372, and
Code, Nos. 1589-1604--Martens, II. § 114--Longuet, §§
85-90--Mérignhac, pp. 114-142--Pillet, pp.
165-192--_Kriegsbrauch_, p. 26--_Land Warfare_, §§ 174-220--Zorn,
p. 122--Bordwell, pp. 249-277--Spaight, pp. 419-460--Higgins, pp.
35-38--Holland, _Studies_, pp. 61-65--Holland, _War_, Nos.
41-69--Güret, _Zur Geschichte der internationalen und freiwilligen
Krankenpflege_ (1873)--Lueder, _Die Genfer Convention_
(1876)--Moynier, _La croix rouge, son passé et son avenir_ (1882);
_La revision de la Convention de Genève_ (1898); _La fondation de
la croix rouge_ (1903)--Buzzati, _De l'emploi abusif ... de la
croix rouge_ (1890)--Triepel, _Die neuesten Fortschritte auf dem
Gebiet des Kriegsrechts_ (1894), pp. 1-41--Müller,
_Entstehungsgeschichte des rothen Kreuzes und der Genfer
Konvention_ (1897)--Münzel, _Untersuchungen über die Genfer
Konvention_ (1901)--Roszkoroski in _R.I._ 2nd Ser. IV. (1902), pp.
199, 299, 442--Gillot, _La revision de la Convention de Genève,
etc._ (1902)--Meurer, _Die Genfer Konvention und ihre Reform_
(1906)--Delpech in _R.G._ XIII. (1906), pp. 629-724--Macpherson in
_Z.V._ V. (1911), pp. 253-277.
[Sidenote: Origin of Geneva Convention.]
§ 118. Although[246] since the seventeenth century several hundreds of
special treaties have been concluded between different States regarding
the tending of each other's wounded and the exemption of army surgeons
from captivity, no general rule of the Law of Nations on these points
was in existence until the second half of the nineteenth century other
than one prohibiting the killing, mutilation, or ill-treatment of the
wounded. A change for the better was initiated by Jean Henry Dunant, a
Swiss citizen from Geneva, who was an eye-witness of the battle of
Solferino in 1859, where many thousands of wounded died who could, under
more favourable circumstances, have been saved. When he published, in
1861 and 1863, his pamphlet, _Un Souvenir de Solférino_, the Geneva
_Société d'utilité publique_, under the presidency of Gustave Moynier,
created an agitation in favour of better arrangements for the tending of
the wounded on the battlefield, and convoked an international congress
at Geneva in 1863, where thirty-six representatives of nearly all the
European States met and discussed the matter. In 1864 the Bundesrath,
the Government of the Federal State of Switzerland, took the matter in
hand officially, and invited all European and several American States to
send official representatives to a Congress at Geneva for the purpose of
discussing and concluding an international treaty regarding the wounded.
This Congress met in 1864, and sixteen States were represented. Its
result was the international "Convention[247] for the Amelioration of
the Condition of Soldiers wounded in Armies in the Field," commonly
called "Geneva Convention," signed on August 22, 1864. By-and-by States
other than the original signatories joined the Convention, and finally
the whole body of the civilised States of the world, with the exception
of Costa Rica, Monaco, and Lichtenstein, became parties. That the rules
of the Convention were in no wise perfect, and needed to be supplemented
regarding many points, soon became apparent. A second International
Congress met at the invitation of Switzerland in 1868 at Geneva, where
additional articles[248] to the original Convention were discussed and
signed. These additional articles have, however, never been ratified.
The First Hague Peace Conference in 1899 unanimously formulated the wish
that Switzerland should shortly take steps for the assemblage of another
international congress in order to revise the Geneva Convention. This
Congress assembled in June 1906, thirty-five States having sent
representatives, and on July 6, 1906, a new Geneva Convention[249] was
signed by Great Britain, Germany, Argentina, Austria-Hungary, Belgium,
Bulgaria, Chili, China, Congo Free State, Korea, Denmark, Spain, the
United States of America, Brazil, Mexico, France, Greece, Guatemala,
Honduras, Italy, Japan, Luxemburg, Montenegro, Norway, Holland, Peru,
Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland,
and Uruguay. Most of these States have already ratified, and Colombia,
Costa-Rica, Cuba, Nicaragua, Salvador, Turkey, and Venezuela, which were
not represented at the Congress, acceded later. There is no doubt that
in time all the civilised Powers will become parties.
[Footnote 246: See Macpherson, _loc. cit._ p. 254.]
[Footnote 247: See Martens, _N.R.G._ XVIII. p. 607, and above, vol. I. §
560.]
[Footnote 248: See Martens, _N.R.G._ XVIII. p. 61.]
[Footnote 249: See Martens, _N.R.G._ 3rd. Ser. II. (1910), p. 620, and
_Treaty Series_, 1907, No. 15.]
The new Convention consists of thirty-three articles instead of the ten
articles of the old Convention, and provides rules for the treatment of
the wounded and the dead; further rules concerning military hospitals
and mobile medical units; the personnel engaged in the interest of the
wounded including army chaplains; the material belonging to mobile
medical units, military hospitals, and voluntary aid societies; the
convoys of evacuation; the distinctive emblem; the carrying out of the
Convention; and the prevention of abuses and infractions.
In the final protocol the Conference expresses the desire that, in order
to arrive at a unanimous interpretation of the Convention, the parties
should, so far as the cases and the circumstances permit, submit to
Hague Court Arbitration any differences which _in time of peace_ might
arise between them concerning the interpretation of the Convention, but
Great Britain and Japan refused to become parties to this.
[Sidenote: The Wounded and the Sick.]
§ 119. According to articles 1-5 of the Geneva Convention,[250] the sick
and wounded persons belonging, or officially attached, to armies must be
respected and taken care of, without distinction of nationality, by the
belligerent in whose power they may be. Should, however, a belligerent
necessarily be compelled to abandon such sick and wounded persons to the
enemy, he must, so far as military exigencies permit, leave behind with
them a portion of his medical personnel to take care of them, and the
necessary material. The sick and wounded who have fallen into the hands
of the enemy are prisoners of war, but belligerents may exchange or
release them, or even hand them over to a neutral State which has to
intern them until after the conclusion of peace. After each engagement
the commander in possession of the field must have search made for the
wounded and must take measures to protect them against pillage and
maltreatment. A nominal roll of all wounded and sick who have been
collected must be sent as early as possible to the authorities of the
country or army to which they belong, and the belligerents must keep
each other mutually informed of any internments and changes as well as
of admissions into hospital. It is specially stipulated by article 5
that, if a military authority finds it necessary to appeal to the
charitable zeal of the inhabitants to collect and take care of, under
his direction, the wounded and sick of armies, he can grant to those
who have responded to his appeal special protection and certain
immunities.
[Footnote 250: The stipulations of the Geneva Convention are for the
most part of a technical military character, and it is, therefore,
impossible in a general treatise of International Law to enter into any
details. Readers who take a deeper interest in the matter must be
referred to the most valuable article by Macpherson in _Z.V._ V. (1911),
pp. 253-277.]
[Sidenote: Medical Units and Establishments, and Material.]
§ 120. In order that the wounded and sick may receive proper treatment,
mobile medical units as well as the fixed establishments of the medical
service must be respected and protected by the belligerents, but this
protection ceases if these units and establishments are made use of to
commit acts harmful to the enemy, for instance, to shelter combatants,
to carry on espionage, to conceal arms and ammunition (articles 6 and
7). But article 8 expressly enacts that the units and establishments do
not forego protection:--(_a_) in case the personnel is armed and use
their arms for their own defence or for the defence of the wounded and
sick under their charge; (_b_) in case, in default of armed orderlies,
units or establishments are guarded by pickets or by sentinels furnished
with authority in due form; (_c_) in case weapons and cartridges, taken
from the wounded and not yet handed over to the proper department, are
found in units or establishments.
As regards the _material_, a distinction is drawn between the treatment
of the material of mobile medical units, of fixed medical
establishments, and of material belonging to Voluntary Aid Societies.
(_a_) Mobile medical units which fall into the hands of the enemy must
not be deprived of their material, including their teams, whatever may
be the means of transport and whoever may be the drivers employed
(article 14). The competent military authority is, however, permitted to
make use of the material in captured medical units for the treatment of
the wounded and the sick at hand, provided it is restored under the same
conditions, and so far as possible at the same time, as laid down for
the release of the medical personnel by article 12.
(_b_) The buildings and material of fixed medical establishments which,
because the locality where they are is militarily occupied, fall into
the hands of the enemy, remain, according to article 15, "subject to the
laws of war," that means they remain entirely in the power of the
captor, but they may not be diverted from their medical purpose so long
as they are necessary for the proper treatment of the wounded and the
sick. Should, however, urgent military necessity demand it, a commander
may dispose of them, provided he makes previous arrangements for the
welfare of the wounded and sick found in the fixed establishments.
(_c_) The material of Voluntary Aid Societies, which are duly
recognised, is, according to article 16, considered private property and
must, therefore, be respected as such under all circumstances, although
it may be requisitioned.
[Sidenote: Personnel.]
§ 121. The personnel engaged exclusively in the collection, transport,
and treatment of the wounded and sick, as well as in the administration
of mobile medical units and establishments, the chaplains attached to
armies, and, lastly, pickets and sentinels guarding medical units and
establishments, must, according to article 9, under all circumstances be
respected and protected. If they fall into the hands of the enemy they
must not be treated as prisoners of war. According to article 12,
however, they are not free to act or move without let or hindrance, for,
if their assistance is indispensable, they may be called upon by the
captor to carry on their duties to the wounded and the sick. But when
their assistance is no longer indispensable, they must be sent back to
their army or to their country at such time and by such route as may be
compatible with military exigencies, and they must be allowed to take
with them such effects, instruments, arms, and horses as are their
private property. So long as they are detained by the enemy he must,
according to article 13, grant them the same allowances and the same pay
as are due to the personnel holding the same rank in his own army.
The personnel of Voluntary Aid Societies employed in the medical units
and establishments is, according to article 10, privileged to the same
extent as the official personnel, provided that the Voluntary Aid
Society concerned is duly recognised and authorised by its Government
and that the personnel of the Society is subject to military law and
regulations. Each State must notify to the other, either in time of
peace or at the commencement, or during the course, of hostilities, but
in every case before actually employing them, the names of societies
which it has authorised to render assistance to the regular medical
service of its armies. A recognised Voluntary Aid Society of a _neutral_
country cannot, according to article 11, afford the assistance of its
personnel and units to a belligerent unless it has previously received
the consent of its own Government and of the belligerent concerned. And
a belligerent who accepts such assistance from a Voluntary Aid Society
of a neutral country is bound, before making any use of it, to notify
the fact to the enemy.
[Sidenote: Convoys of Evacuation.]
§ 122. Convoys used for evacuating the wounded and sick must, as regards
their personnel and material, be treated in the same way as mobile
medical units, but subject to the following special provisions enacted
by article 17:--
A belligerent intercepting a convoy may, if military exigencies demand,
break it up, provided he takes charge of the sick and wounded who are in
it. In this case, the obligation to send back the medical personnel,
provided for in article 12, must be extended to the whole of the
military personnel detailed for the transport or the protection of the
convoy and furnished with an authority in due form to that effect.
The obligation to restore the medical material, provided for in article
14, must apply to railway trains and boats used in internal navigation,
which are specially arranged for evacuation, as well as to the material
belonging to the medical service for fitting up ordinary vehicles,
trains, and boats. Military vehicles, other than those of the medical
service, however, may be captured with their teams; and the civilian
personnel and the various means of transport obtained by requisition,
including railway material and boats used for convoys, are subject to
the general rules of International Law concerning war.
[Sidenote: Distinctive Emblem.]
§ 123. According to article 18 the Swiss heraldic device of the red
cross on a white ground, formed by reversing the federal colours, is
adopted as the emblem and distinctive sign of the medical service of
armies, but there is no objection to the adoption of another emblem on
the part of such non-Christian States as object to the cross on
religious grounds. Thus Turkey has substituted a red crescent, and
Persia a red sun for the cross.[251] The following are the rules
concerning the use of this emblem:--
(1) The emblem must be shown on the flags and the armlets (_brassards_)
as well as on all the material belonging to the medical service, but the
emblem cannot be recognised unless it is used with the permission of the
competent military authority (article 19).
(2) Medical units and establishments must hoist the red cross flag
accompanied by the national flag of the belligerent concerned (article
21), but medical units which have fallen into the hands of the enemy
must not, so long as they are in that situation, fly any other flag than
that of the red cross. The medical units belonging to neutral countries
which have, in accordance with article 11, been admitted to afford their
services, must fly, along with the red cross flag, the national flag of
the belligerent to whose army they are attached (article 22).
(3) All the personnel must, according to article 20, wear, fixed to the
left arm, an armlet (_brassard_) with a red cross on a white ground,
delivered and stamped by the competent military authority and
accompanied by a certificate of identity in the case of persons who are
attached to the medical service and armies without wearing the military
uniform.
(4) The employment of the red cross on a white ground and the words "Red
Cross" or "Geneva Cross" must not, according to article 23, be used,
either in time of peace or in time of war, except to indicate the
protected medical units, establishments, personnel, and material.
[Footnote 251: See below, § 207.]
[Sidenote: Treatment of the Dead.]
§ 124. According to a customary rule of the Law of Nations belligerents
have the right to demand from one another that dead soldiers shall not
be disgracefully treated, especially not mutilated, and shall be, so far
as possible, collected and buried[252] or cremated on the battlefield by
the victor. The Geneva Convention does not stipulate any rule concerning
the collection and burial or cremation of the dead, but article 3 enacts
that after each engagement the commander in possession of the field must
take measures to ensure protection of the dead against pillage and
maltreatment, and that a careful examination of the bodies, in order to
see that life is really extinct, must be made before the dead are buried
or cremated. Each belligerent must send as soon as possible to the
authorities of the country or army to which they belong the military
identification marks or tokens found on the dead (article 4). Pieces of
equipment found upon the dead of the enemy are public enemy property and
may, therefore, be appropriated as booty[253] by the victor. On the
other hand, letters, money, jewellery, and such other articles of value
found upon the dead on the battlefield, or on those who die in the
medical units or fixed establishments, as are apparently private
property, are not booty, but must, according to article 4 of the Geneva
Convention and article 14 of the Hague rules concerning warfare on land,
be collected and handed over to the Bureau of Information[254]
concerning the prisoners of war, which has to transmit them to the
persons interested through the channel of the authorities of their own
country.
[Footnote 252: See Grotius, II. c. 19, §§ 1 and 3. Regarding a valuable
suggestion of Ullmann's concerning sanitary measures for the purpose of
avoiding epidemics, see above, vol. I. p. 621, note 1.]
[Footnote 253: See below, § 139.]
[Footnote 254: See below, § 130.]
[Sidenote: Application of the Geneva Convention, and Prevention of
Abuses.]
§ 124_a_. The provisions of the Geneva Convention are only binding in
the case of war between two or more of the contracting parties, they
cease to be binding from the moment when one of the belligerent Powers
is not a party (article 24). The commanders-in-chief of the belligerent
armies must, in accordance with the instructions of their Governments
and in conformity with the general principles of the Geneva Convention,
arrange the details for carrying out the articles of the Geneva
Convention, as well as for cases not provided for in these articles
(article 25). The contracting parties must take the necessary measures
to instruct their troops, especially the personnel protected by the
Geneva Convention, in the provisions of the Convention, and to bring
these provisions to the notice of the civil population (article 26). In
countries whose legislation is not at the time of the signing of the
Convention adequate for the purpose, the contracting parties must adopt
such measures as may be necessary to prevent, at all times, the
employment of the emblem or the name of "Red Cross" or "Geneva Cross"
by private individuals or by Societies other than those which are
entitled to do so according to the Geneva Convention, and in particular
for commercial purposes as a trade mark or trading mark (article 27).
The contracting Governments must likewise adopt measures necessary for
the repression in time of war of individual acts of pillage and
maltreatment of the wounded and sick, as well as for the punishment of
the improper use of the Red Cross flag and armlet (_brassard_) by
officers and soldiers or private individuals not protected by the Geneva
Convention. They must, at the latest within five years from the
ratification of the Geneva Convention, communicate to one another
through the Swiss Federal Council, the provisions concerning these
measures of repression (article 28).[255]
[Footnote 255: By reason of the uncertainties of parliamentary
proceedings, Great Britain, in signing and ratifying the Geneva
Convention, entered a reservation against articles 23, 27, and 28, but
by the Geneva Convention Act, 1911 (1 & 2 Geo. V. ch. 20), Great Britain
is now able to carry out the stipulations of these three articles.]
[Sidenote: General provisions of the Geneva Convention.]
§ 124_b_. The Geneva Convention comes into force for each contracting
Power six months after the date of the deposit of its ratification
(article 30). The new Geneva Convention replaces the old of 1864, but
the old Geneva Convention remains in force between such of its
contracting parties as do not become parties to the new Convention of
1906 (article 31). Such of the Powers as signed the old Convention of
1864, but did not sign the new Convention of December 31, 1906, are free
to accede to it at any time later by means of a written notification to
the Swiss Federal Council. Other Powers may likewise notify their
accession at any time to the Swiss Federal Council, but their accession
only takes effect in case, within a period of one year from such
notification, no objection to the accession reaches the Swiss Federal
Council from any of the previous contracting Powers (article 32). Each
of the contracting Powers is at liberty at any time to denounce the
Geneva Convention by a written notification to the Swiss Federal
Council, which must immediately indicate it to all the other contracting
Powers (article 33). The denunciation, however, does not take effect
until one year after it has come to the notice of the Swiss Federal
Council, and a denunciation only affects such Power as has notified it.
IV
CAPTIVITY
Grotius, III. c. 14--Bynkershoek, _Quaest. jur. publ._ I. c.
3--Vattel, III. §§ 148-154--Hall, §§ 131-134--Westlake, II. pp.
63-68--Lawrence, § 164--Maine, pp. 160-167--Manning, pp.
210-222--Phillimore, III. § 95--Twiss, II. § 177--Halleck, II. pp.
19-30--Taylor, §§ 519-524--Moore, VII. §§ 1127-1133--Wharton, III.
§§ 348-348D--Wheaton, § 344--Bluntschli, §§ 593-626--Heffter, §§
127-129--Lueder in Holtzendorff, IV. pp. 423-445--Ullmann, §
177--Bonfils, Nos. 1119-1140--Despagnet, Nos.
544-550--Pradier-Fodéré, VII. Nos. 2796-2842, and VIII. No.
3208--Rivier, II. pp. 273-279--Nys, III. pp. 537-553--Calvo, IV.
§§ 2133-2157--Fiore, III. Nos. 1355-1362, and Code, Nos.
1567-1588--Martens, II. § 113--Longuet, §§ 77-83--Mérignhac, pp.
87-113--Pillet, pp. 145-164--_Kriegsbrauch_, pp. 11-18--Zorn, pp.
73-123--Bordwell, pp. 237-248--_Land Warfare_, §§ 54-116--Spaight,
pp. 260-320--Holland, _War_, Nos. 24-40--Eichelmann, _Über die
Kriegsgefangenschaft_ (1878)--Romberg, _Des belligérants et des
prisonniers de guerre_ (1894)--Triepel, _Die neuesten Fortschritte
auf dem Gebiet des Kriegsrechts_ (1894), pp. 41-55--Holls, _The
Peace Conference at the Hague_ (1900), pp. 145-151--Cros,
_Condition et traitement des prisonniers de guerre_
(1900)--Beinhauer, _Die Kriegsgefangenschaft_ (1910)--Payrat, _Le
prisonnier de guerre dans la guerre continentale_ (1910).
[Sidenote: Development of International Law regarding Captivity.]
§ 125. During antiquity, prisoners of war could be killed, and they were
very often at once actually butchered or offered as sacrifices to the
gods. If they were spared, they were as a rule made slaves and only
exceptionally liberated. But belligerents also exchanged their prisoners
or liberated them for ransom. During the first part of the Middle Ages
prisoners of war could likewise be killed or made slaves. Under the
influence of Christianity, however, their fate in time became mitigated.
Although they were often most cruelly treated during the second part of
the Middle Ages, they were not as a rule killed and, with the
disappearance of slavery in Europe, they were no longer enslaved. By the
time modern International Law gradually came into existence, killing and
enslaving prisoners of war had disappeared, but they were still often
treated as criminals and as objects of personal revenge. They were not
considered in the power of the State by whose forces they were captured,
but in the power of those very forces or of the individual soldiers that
had made the capture. And it was considered lawful on the part of
captors to make as much profit as possible out of their prisoners by way
of ransom, provided no exchange of prisoners took place. So general was
this practice that a more or less definite scale of ransom became usual.
Thus, Grotius (III. c. 14, § 9) mentions that in his time the ransom of
a private was the amount of his one month's pay. And since the pecuniary
value of a prisoner as regards ransom rose in proportion with his
fortune and his position in life and in the enemy army, it became usual
for prisoners of rank and note not to belong to the capturing forces but
to the Sovereign, who had, however, to recompense the captors. During
the seventeenth century, the custom that prisoners were considered in
the power of their captors died away. They were now considered to be in
the power of the Sovereign by whose forces they were captured. But rules
of the Law of Nations regarding their proper treatment were hardly in
existence. The practice of liberating prisoners in exchange, or for
ransom only, continued. Special cartels were often concluded at the
outbreak of or during a war for the purpose of stipulating a scale of
ransom according to which either belligerent could redeem his soldiers
and officers from captivity. The last[256] instance of such cartels is
that between England and France in 1780, stipulating the ransom for
members of the naval and military forces of both belligerents.
[Footnote 256: See Hall, § 134, p. 428, note 1.]
It was not until the eighteenth century, with its general tendencies to
mitigate the cruel practices of warfare, that matters changed for the
better. The conviction in time became general that captivity should only
be the means of preventing prisoners from returning to their corps and
taking up arms again, and should, as a matter of principle, be
distinguished from imprisonment as a punishment for crimes. The Treaty
of Friendship[257] concluded in 1785 between Prussia and the United
States of America was probably the first to stipulate (article 24) the
proper treatment of prisoners of war, prohibiting confinement in convict
prisons and the use of irons, and insisting upon their confinement in a
healthy place, where they may have exercise, and where they may be kept
and fed as troops. During the nineteenth century the principle that
prisoners of war should be treated by their captor in a manner analogous
to that meted out to his own troops became generally recognised, and the
Hague Regulations have now, by articles 4 to 20, enacted exhaustive
rules regarding captivity.
[Footnote 257: See Martens, _N.R._ IV. p. 37.]
[Sidenote: Treatment of Prisoners of War.]
§ 126. According to articles 4-7 and 16-19 of the Hague Regulations
prisoners of war are not in the power of the individuals or corps who
capture them, but in the power of the Government of the captor. They
must be humanely treated. All their personal belongings remain their
property, with the exception of arms, horses, and military papers, which
are booty;[258] and in practice[259] personal belongings are understood
to include military uniform, clothing, and kit required for personal
use, although technically they are Government property. They may only be
imprisoned as an unavoidable matter of safety, and only while the
circumstances which necessitate the measure continue to exist. They may,
therefore, be detained in a town, fortress, camp, or any other locality,
and they may be bound not to go beyond a certain fixed boundary. But
they may not be kept in convict prisons. Except in the case of officers,
their labour may be utilised by the Government according to their rank
and aptitude, but their tasks must not be excessive and must have
nothing to do with military operations. Work done by them for the State
must be paid for in accordance with tariffs in force for soldiers of the
national army employed on similar tasks, or, in case there are no such
tariffs in force, at rates proportional to the work executed. But
prisoners of war may also be authorised to work for other branches of
the public service or for private persons under conditions of employment
to be settled by the military authorities, and they may likewise be
authorised to work on their own account. All wages they receive go
towards improving their position, and a balance must be paid to them at
the time of their release, after deducting the cost of their
maintenance. But whether they earn wages or not, the Government is bound
under all circumstances to maintain them, and provide quarters, food,
and clothing for them on the same footing as for its own troops. Officer
prisoners must receive the same pay as officers of corresponding rank in
the country where they are detained, the amount to be repaid by their
Government after the conclusion of peace. All prisoners of war must
enjoy every latitude in the exercise of their religion, including
attendance at their own church service, provided only they comply with
the regulations for order issued by the military authorities. If a
prisoner wants to make a will, it must be received by the authorities or
drawn up on the same conditions as for soldiers of the national army.
And the same rules are valid regarding death certificates and the burial
of prisoners of war, and due regard must be paid to their grade and
rank. Letters, money orders, valuables, and postal parcels destined for
or despatched by prisoners of war must enjoy free postage, and gifts and
relief in kind for prisoners of war must be admitted free from all
custom and other duties as well as payments for carriage by Government
railways (article 16).
[Footnote 258: See below, § 144.]
[Footnote 259: See _Land Warfare_, § 69.]
[Sidenote: Who may claim to be Prisoners of War.]
§ 127. Every individual who is deprived of his liberty not for a crime
but for military reasons has a claim to be treated as a prisoner of war.
Article 13 of the Hague Regulations expressly enacts that
non-combatant[260] members of armed forces, such as newspaper
correspondents, reporters, sutlers, contractors, who are captured and
detained, may claim to be treated as prisoners of war, provided they can
produce a certificate from the military authorities of the army they
were accompanying. But although the Hague Regulations do not contain
anything regarding the treatment of private enemy individuals and enemy
officials whom a belligerent thinks it necessary[261] to make prisoners
of war, it is evident that they may claim all privileges of such
prisoners. Such individuals are not convicts; they are taken into
captivity for military reasons, and they are therefore prisoners of war.
[Footnote 260: See above, § 79.]
[Footnote 261: See above, §§ 116 and 117.]
[Sidenote: Discipline.]
§ 128. Articles 8 and 9 of the Hague Regulations lay down the discipline
to be observed in the case of prisoners of war in the following
way:--Every prisoner who, if questioned, does not declare his true name
and rank is liable to a curtailment of the advantages accorded to
prisoners of his class. All prisoners are subject to the laws,
regulations, and orders in force in the army of the belligerent that
keeps them in captivity. Any act of insubordination on the part of
prisoners may be punished in accordance with these laws,[262] but apart
from these laws, all kinds of severe measures are admissible to prevent
a repetition of such acts. Escaped prisoners, who, after having rejoined
their national army, are again taken prisoners, are not liable to any
punishment for their flight. But if they are recaptured before they
succeed in rejoining their army, or before they have quitted the
territory occupied by the capturing forces, they are liable to
disciplinary punishment.
[Footnote 262: Concerning the question whether after conclusion of peace
such prisoners as are undergoing a term of imprisonment for offences
against discipline may be detained, see below, § 275.]
[Sidenote: Release on Parole.]
§ 129. Articles 10 to 12 of the Hague Regulations deal with release on
parole in the following manner:--No belligerent is obliged to assent to
a prisoner's request to be released on parole, and no prisoner may be
forced to accept such release. But if the laws of his country authorise
him to do so, and if he acquiesces, any prisoner may be released on
parole. In such case he is in honour bound scrupulously to fulfil the
engagement he has contracted, both as regards his own Government and the
Government that released him. And his own Government is formally bound
neither to request, nor to accept, from him any service incompatible
with the parole given. Any prisoner released on parole and recaptured
bearing arms against the belligerent who released him, or against such
belligerent's allies, forfeits the privilege to be treated as a prisoner
of war, and may be tried by court-martial. The Hague Regulations do not
lay down the punishment for such breach of parole, but according to a
customary rule of International Law the punishment may be capital.
[Sidenote: Bureau of Information.]
§ 130. According to articles 14 and 16 of the Hague Regulations every
belligerent[263] must institute on the commencement of war a Bureau of
Information relative to his prisoners of war. This Bureau is intended to
answer all inquiries about prisoners. It must be furnished by all the
services concerned with all the necessary information to enable it to
make out and keep up to date a separate return for each prisoner, and it
must, therefore, be kept informed of internments and changes as well as
of admissions into hospital, of deaths, releases on parole, exchanges,
and escapes. It must state in its return for each prisoner the
regimental number, surname and name, age, place of origin, rank, unit,
wounds, date and place of capture, of internment, of the wounds
received, date of death, and any observations of a special character.
This separate return must, after conclusion of peace, be sent to the
Government of the other belligerent.
[Footnote 263: And likewise such neutral States as receive and detain
members of the armed forces of the belligerents; see article 14.]
The Bureau must likewise receive and collect all objects of personal
use, valuables, letters, and the like, found on battlefields[264] or
left by prisoners who have been released on parole, or exchanged, or who
have escaped, or died in hospital or ambulances, and must transmit these
articles to those interested. The Bureau must enjoy the privilege of
free postage.
[Footnote 264: See above, § 124.]
[Sidenote: Relief Societies.]
§ 131. A new and valuable rule, taken from the Brussels Declaration, is
that of article 15 of the Hague Regulations making it a duty of every
belligerent to grant facilities to Relief Societies to serve as
intermediaries for charity to prisoners of war. The condition of the
admission of such societies and their agents is that the former are
regularly constituted in accordance with the law of their country.
Delegates of such societies may be admitted to the places of internment
for the distribution of relief, as also to the halting-places of
repatriated prisoners, through a personal permit of the military
authorities, provided they give an engagement in writing that they will
comply with all regulations by the authorities for order and police.
[Sidenote: End of Captivity.]
§ 132. Captivity can come to an end through different modes. Apart from
release on parole, which has already been mentioned, captivity comes to
an end--(1) through simple release without parole; (2) through
successful flight; (3) through liberation by the invading enemy to whose
army the respective prisoners belong; (4) through exchange for prisoners
taken by the enemy; (5) through prisoners[265] being brought into
neutral territory by captors who take refuge there; and, lastly (6),
through the war coming to an end. Release of prisoners for ransom is no
longer practised, except in the case of the crew of a captured
merchantman released on a ransom bill.[266] It ought, however, to be
observed that the practice of ransoming prisoners might be revived if
convenient, provided the ransom is to be paid not to the individual
captor but to the belligerent whose forces made the capture.
[Footnote 265: See below, § 337.]
[Footnote 266: See below, § 195.]
As regards the end of captivity through the war coming to an end, a
distinction must be made according to the different modes of ending war.
If the war ends by peace being concluded, captivity comes to an end at
once[267] with the conclusion of peace, and, as article 20 of the Hague
Regulations expressly enacts, the repatriation of prisoners must be
effected as speedily as possible. If, however, the war ends through
conquest and annexation of the vanquished State, captivity comes to an
end as soon as peace is established. It ought to end with annexation,
and it will in most cases do so. But as guerilla war may well go on
after conquest and annexation, and thus prevent a condition of peace
from being established, although real warfare is over, it is necessary
not to confound annexation with peace.[268] The point is of interest
regarding such prisoners only as are subjects of neutral States. For
other prisoners become through annexation subjects of the State that
keeps them in captivity, and such State is, therefore, as far as
International Law is concerned, unrestricted in taking any measure it
likes with regard to them. It can repatriate them, and it will in most
cases do so. But if it thinks that they might endanger its hold over the
conquered territory, it might likewise prevent their repatriation for
any definite or indefinite period.[269]
[Footnote 267: That, nevertheless, the prisoners remain under the
discipline of the captor until they have been handed over to the
authorities of their home State, will be shown below, § 275.]
[Footnote 268: See above, § 60.]
[Footnote 269: Thus, after the South African War, Great Britain refused
to repatriate those prisoners of war who were not prepared to take the
oath of allegiance.]
V
APPROPRIATION AND UTILISATION OF PUBLIC ENEMY PROPERTY
Grotius, III. c. 5--Vattel, III. §§ 73, 160-164--Hall, §§
136-138--Westlake, II. pp. 102-107--Lawrence, § 171--Maine, pp.
192-206--Manning, pp. 179-183--Twiss, II. §§ 62-71--Halleck, II.
pp. 58-68--Moore, VII. § 1148--Taylor, §§ 529-536--Wharton, III. §
340--Wheaton, §§ 346, 352-354--Bluntschli, §§ 644-651A--Heffter,
§§ 130-136--Lueder in Holtzendorff, IV. pp. 488-500--G. F.
Martens, II. §§ 279-280--Ullmann, § 183--Bonfils, Nos.
1176-1193--Despagnet, Nos. 592-596--Pradier-Fodéré, VII. Nos.
2989-3018--Rivier, II. pp. 306-314--Nys, III. pp. 296-308--Calvo,
IV. §§ 2199-2214--Fiore, III. Nos. 1389, 1392, 1393, 1470, and
Code, Nos. 1557-1560--Martens, II. § 120--Longuet, §
96--Mérignhac, pp. 299-316--Pillet, pp. 319-340--_Kriegsbrauch_,
pp. 57-60--Holland, _War_, No. 113--_Land Warfare_, §§
426-432--Meurer, II. §§ 65-69--Spaight, pp. 410-418--Zorn, pp.
243-270--Rouard de Card, _La guerre continentale et la propriété_
(1877)--Bluntschli, _Das Beuterecht im Krieg, und das
Seebeuterecht insbesondere_ (1878)--Depambour, _Des effets de
l'occupation en temps de guerre sur la propriété et la jouissance
des biens publics et particuliers_ (1900)--Wehberg, _Das
Beuterecht im Land und Seekrieg_ (1909; an English translation
appeared in 1911 under the title _Capture in War on Land and
Sea_)--Latifi, _Effects of War on Property_ (1909).
[Sidenote: Appropriation of all the Enemy Property no longer
admissible.]
§ 133. Under a former rule of International Law belligerents could
appropriate all public and private[270] enemy property they found on
enemy territory. This rule is now obsolete. Its place is taken by
several rules, since distinctions are to be made between moveable and
immoveable property, public and private property, and, further, between
different kinds of private and public property. These rules must be
discussed _seriatim_.
[Footnote 270: It is impossible for a treatise to go into historical
details, and to show the gradual disappearance of the old rule. But it
is of importance to state the fact, that even during the nineteenth
century--see, for instance, G. F. Martens, II. § 280; Twiss, II. § 64;
Hall, § 139--it was asserted that in strict law all private enemy
moveable property was as much booty as public property, although the
growth of a usage was recognised which under certain conditions exempted
it from appropriation. In the face of articles 46 and 47 of the Hague
Regulations these assertions have no longer any basis, and all the
text-books of the nineteenth century are now antiquated with regard to
this matter.]
[Sidenote: Immoveable Public Property.]
§ 134. Appropriation of public immoveables is not lawful so long as the
territory on which they are has not become State property of the
occupant through annexation. During mere military occupation of the
enemy territory, a belligerent may not sell or otherwise alienate public
enemy land and buildings, but only appropriate the produce of them.
Article 55 of the Hague Regulations expressly enacts that a belligerent
occupying enemy territory shall only be regarded as administrator and
usufructuary of the public buildings, real property, forests, and
agricultural works belonging to the hostile State and situated on the
occupied territory; that he must protect the stock and plant, and that
he must administer them according to the rules of usufruct. He may,
therefore, sell the crop from public land, cut timber in the public
forests and sell it, may let public land and buildings for the time of
his occupation, and the like. He is, however, only usufructuary, and he
is, therefore, prohibited from exercising his right in a wasteful or
negligent way that would decrease the value of the stock and plant.
Thus, for instance, he must not cut down a whole forest unless the
necessities of war compel him.
[Sidenote: Immoveable Property of Municipalities, and of Religious,
Charitable, and the like Institutions.]
§ 135. It must, however, be observed that the produce of such public
immoveables only as belong to the State itself may be appropriated, but
not the produce of those belonging to municipalities or of those which,
although they belong to the hostile State, are permanently set aside for
religious purposes, for the maintenance of charitable and educational
institutions, and for the benefit of art and science. Article 56 of the
Hague Regulations expressly enacts that such property is to be treated
as private property.
[Sidenote: Utilisation of Public Buildings.]
§ 136. So far as the necessities of war demand, a belligerent may make
use of public enemy buildings for all kinds of purposes. Troops must be
housed, horses stabled, the sick and wounded nursed. Public buildings
may in the first instance, therefore, be made use of for such purposes,
although they may thereby be considerably damaged. And it matters not
whether the buildings belong to the enemy State or to municipalities,
whether they are regularly destined for ordinary governmental and
municipal purposes, or for religious, educational, scientific, and the
like purposes. Thus, churches may be converted into hospitals, schools
into barracks, buildings used for scientific research into stables. But
it must be observed that such utilisation of public buildings as damages
them is justified only if it is necessary. A belligerent who turned a
picture gallery into stables without being compelled thereto would
certainly commit a violation of the Law of Nations.
[Sidenote: Moveable Public Property.]
§ 137. Moveable public enemy property may certainly be appropriated by a
belligerent provided that it can directly or indirectly be useful for
military operations. Article 53 of the Hague Regulations unmistakably
enacts that a belligerent occupying hostile territory may take
possession of the cash, funds, realisable securities, depôts of arms,
means of transport, stores, supplies, appliances on land or at sea or in
the air adapted for the transmission of news or for the transport of
persons or goods, and of all other moveable property of the hostile
State which may be used for military operations. Thus, a belligerent is
entitled to seize not only the money and funds of the hostile State on
the one hand, and, on the other, munitions of war, depôts of arms,
stores and supplies, but also the rolling-stock of public railways[271]
and other means of transport and everything and anything he can directly
or indirectly make use of for military operations. He may, for
instance, seize a quantity of cloth for the purpose of clothing his
soldiers.
[Footnote 271: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), §§ 15
and 19. Some writers--see, for instance, Bonfils, No. 1185, and Wehberg,
_op. cit._ p. 22--maintain that such rolling stock may not be
appropriated, but may only be made use of during war and must be
restored after the conclusion of peace. The assertion that article 53,
second paragraph, is to be interpreted in that sense, is unfounded, for
restoration is there stipulated for such means of transport and the like
as are _private_ property.]
[Sidenote: Moveable Property of Municipalities, and of Religious,
Charitable, and the like Institutions.]
§ 138. But exceptions similar to those regarding the usufruct of public
immoveables are valid in the case of the appropriation of public
moveables. Article 56 of the Hague Regulations enumerates the property
of municipalities, of religious, charitable, educational institutions,
and of those of science and art. Thus the moveable property of churches,
hospitals, schools, universities, museums, picture galleries, even when
belonging to the hostile State, is exempt from appropriation by a
belligerent. As regards archives, they are no doubt institutions for
science, but a belligerent may nevertheless seize such State papers
deposited therein as are of importance to him in connection with the
war. The last instances of the former practice are presented by Napoleon
I., who seized works of art during his numerous wars and had them taken
to the galleries of Paris. But they had to be restored to their former
owners in 1815.
[Sidenote: Booty on the Battlefield.]
§ 139. The case of moveable enemy property found by an invading
belligerent on enemy territory is different from the case of moveable
enemy property on the battlefield. According to a former rule of the Law
of Nations all enemy property, public or private, which a belligerent
could get hold of on the battlefield was booty and could be
appropriated. Although some modern publicists[272] who wrote before the
Hague Peace Conference of 1899 teach the validity of this rule, it is
obvious from articles 4 and 14 of the Hague Regulations that it is now
obsolete as regards _private_[273] enemy property except military
papers, arms, horses, and the like. But as regards _public_ enemy
property this customary rule is still valid. Thus weapons, munition,
and valuable pieces of equipment which are found upon the dead, the
wounded, and the prisoners, whether they are public or private property,
may be seized, as may also the war-chest and State papers in possession
of a captured commander, enemy horses, batteries, carts, and everything
else that is of value. To whom the booty ultimately belongs is not for
International but for Municipal Law[274] to determine, since
International Law simply states that public enemy property on the
battlefield can be appropriated by belligerents. And it must be
specially observed that the restriction of article 53 of the Hague
Regulations according to which only such moveable property may be
appropriated as can be used for the operations of war, does not find
application in the case of moveable property found on the battlefield,
for article 53 speaks of "an army of occupation" only. Such property may
be appropriated, whether it can be used for military operations or not;
the mere fact that it was seized on the battlefield entitles a
belligerent to appropriate it.
[Footnote 272: See, for instance, Halleck, II. p. 73, and Heffter, §
135.]
[Footnote 273: See above, § 124, and below, § 144.]
[Footnote 274: According to British law all booty belongs to the Crown.
See Twiss, II. §§ 64 and 71.]
VI
APPROPRIATION AND UTILISATION OF PRIVATE ENEMY PROPERTY
Grotius, III. c. 5--Vattel, III. §§ 73, 160-164--Hall, §§ 139,
141-144--Lawrence, §§ 172-175--Maine, pp. 192-206--Manning, pp.
179-183--Twiss, II. §§ 62-71--Halleck, II. pp. 73-75--Moore, VII.
§§ 1121, 1151, 1152, 1155--Taylor, §§ 529, 532, 537--Wharton, III.
§ 338--Wheaton, § 355--Bluntschli, §§ 652, 656-659--Heffter, §§
130-136--Lueder in Holtzendorff, IV. pp. 488-500--G.F. Martens,
II. §§ 279-280--Ullmann, § 183--Bonfils, Nos.
1194-1206--Despagnet, Nos. 597-604--Pradier-Fodéré, VII. Nos.
3032-3047--Rivier, II. pp. 318-329--Nys, III. pp. 296-308--Calvo,
IV. §§ 2220-2229--Fiore, III. Nos. 1391, 1392, 1472, and Code,
Nos. 1530-1531--Martens, II. § 120--Longuet, §§ 97-98--Mérignhac,
pp. 263-268--Pillet, pp. 319-340--_Kriegsbrauch_, pp. 53-56--Zorn,
pp. 270-283--Meurer, II. § 64--Spaight, pp. 188-196--Holland,
_War_, Nos. 106-107--_Land Warfare_, §§ 407-415--Bentwich, _The
Law of Private Property in War_ (1907)--See also the monographs of
Rouard de Card, Bluntschli, Depambour, Wehberg, and Latifi, quoted
above at the commencement of § 133.
[Sidenote: Immoveable Private Property.]
§ 140. Immoveable private enemy property may under no circumstances or
conditions be appropriated by an invading belligerent. Should he
confiscate and sell private land or buildings, the buyer would acquire
no right[275] whatever to the property. Article 46 of the Hague
Regulations expressly enacts that "private property may not be
confiscated." But confiscation differs from the temporary use of private
land and buildings for all kinds of purposes demanded by the necessities
of war. What has been said above in § 136 with regard to utilisation of
public buildings finds equal application[276] to private buildings. If
necessary they may be converted into hospitals, barracks, and stables
without indemnification of the proprietors, and they may also be
converted into fortifications. A humane belligerent will not drive the
wretched inhabitants into the street if he can help it. But under the
pressure of necessity he may be obliged to do this, and he is certainly
not prohibited from doing it.
[Footnote 275: See below, § 283.]
[Footnote 276: The Hague Regulations do not mention this; they simply
enact in article 46 that private property must be "respected," and may
not be confiscated.]
[Sidenote: Private War Material and Means of Transport.]
§ 141. All kinds of private moveable property which can serve as war
material, such as arms, ammunition, cloth for uniforms, leather for
boots, saddles, and also all appliances, whether on land or at sea or in
the air, which are adapted for the transmission of news or for the
transportation of persons and goods, such as railway rolling-stock,[277]
ships, telegraphs, telephones, carts, and horses, may be seized and made
use of for military purposes by an invading belligerent, but they must
be restored at the conclusion of peace, and indemnities must be paid for
them. This is expressly enacted by article 53 of the Hague Regulations.
It is evident that the seizure of such material must be duly
acknowledged by receipt, although article 53 does not say so; for
otherwise how could indemnities be paid after the conclusion of peace?
As regards the question who is to pay the indemnities, Holland (_War_,
No. 113) correctly maintains that "the Treaty of Peace must settle upon
whom the burden of making compensation is ultimately to fall."
[Footnote 277: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), § 15.]
[Sidenote: Works of Art and Science, Historical Monuments.]
§ 142. On the other hand, works of art and science, and historical
monuments may not under any circumstances or conditions be appropriated
or made use of for military operations. Article 56 of the Hague
Regulations enacts categorically that "all seizure" of such works and
monuments is prohibited. Therefore, although the metal of which a statue
is cast may be of the greatest value for cannons, it must not be
touched.
[Sidenote: Other Private Personal Property.]
§ 143. Private personal property which does not consist of war material
or means of transport serviceable to military operations may not as a
rule be seized.[278] Articles 46 and 47 of the Hague Regulations
expressly stipulate that "private property may not be confiscated," and
"pillage is formally prohibited." But it must be emphasised that these
rules have in a sense exceptions, demanded and justified by the
necessities of war. Men and horses must be fed, men must protect
themselves against the weather. If there is no time for ordinary
requisitions[279] to provide food, forage, clothing, and fuel, or if the
inhabitants of a locality have fled so that ordinary requisitions cannot
be made, a belligerent must take these articles wherever he can get
them, and he is justified[280] in so doing. And it must further be
emphasised that quartering[281] of soldiers who, together with their
horses, must be well fed by the inhabitants of the houses concerned, is
likewise lawful, although it may be ruinous to the private individuals
upon whom they are quartered.
[Footnote 278: See above, § 133, note.]
[Footnote 279: See below, § 147.]
[Footnote 280: The Hague Regulations do not mention this case.]
[Footnote 281: See below, § 147.]
[Sidenote: Booty on the Battlefield.]
§ 144. Private enemy property on the battlefield is no longer in every
case an object of booty.[282] Arms, horses, and military papers may
indeed be appropriated,[283] even if they are private property, as may
also private means of transport, such as carts and other vehicles which
an enemy has made use of. But letters, cash, jewellery, and other
articles of value found upon the dead, wounded, and prisoners must,
according to article 14 of the Hague Regulations and article 4 of the
Geneva Convention, be handed over to the Bureau of Information regarding
prisoners of war, which must transmit them to those interested. Through
article 14 of the Hague Regulations and article 4 of the Geneva
Convention it becomes apparent that nowadays private enemy property,
except military papers, arms, horses, and the like, is no longer booty,
although, individual soldiers often take as much spoil as they can get.
It is impossible for the commanders to bring the offender to justice in
every case.[284]
[Footnote 282: See above, § 139.]
[Footnote 283: See above, § 139, and article 4 of the Hague Regulations.
This article only mentions arms, horses, and military papers, but
saddles, stirrups, and the like go with horses, as ammunition goes with
arms, and these may for this reason likewise be appropriated; see _Land
Warfare_, § 69, note (_e_).]
[Footnote 284: It is of interest to state the fact that, during the
Russo-Japanese War, Japan carried out to the letter the stipulation of
article 14 of the Hague Regulations. Through the intermediary of the
French Embassies in Tokio and St. Petersburg, all valuables found on the
Russian dead and seized by the Japanese were handed over to the Russian
Government.]
[Sidenote: Private Enemy Property brought into a Belligerent's
Territory.]
§ 145. The case of private property found by a belligerent on enemy
territory differs from the case of such property brought during time of
war into the territory of a belligerent. That private enemy property on
a belligerent's territory at the time of the outbreak of war may not be
confiscated has already been stated above in § 102. Taking this fact
into consideration, as well as the other fact that private property
found on enemy territory is nowadays likewise as a rule exempt from
confiscation, there can be no doubt that private enemy property brought
into a belligerent's territory during time of war may not, as a rule, be
confiscated.[285] On the other hand, a belligerent may prohibit the
withdrawal of those articles of property which can be made use of by the
enemy for military purposes, such as arms, ammunition, provisions, and
the like. And in analogy with article 53 of the Hague Regulations there
can be no doubt that a belligerent may seize such articles and make use
of them for military purposes, provided that he restores them at the
conclusion of peace and pays indemnities for them.
[Footnote 285: The case of enemy merchantmen seized in a belligerent's
territorial waters is, of course, an exception.]
VII
REQUISITIONS AND CONTRIBUTIONS
Vattel, III. § 165--Hall, § 140-140*--Lawrence, § 180--Westlake,
II. pp. 96-102--Maine, p. 200--Twiss, II. § 64--Halleck, II. pp.
68-69--Taylor, §§ 538-539--Moore, VII. § 1146--Bluntschli, §§
653-655--Heffter, § 131--Lueder in Holtzendorff, IV. pp.
500-510--Ullmann, § 183--Bonfils, Nos. 1207-1226--Despagnet, Nos.
587-590--Pradier-Fodéré, VII. Nos. 3048-3064--Rivier, II. pp.
323-327--Nys, III. pp. 368-432--Calvo, IV. §§ 2231-2284--Fiore,
III. Nos. 1394, 1473-1476--Martens, II. § 120--Longuet, §§
110-114--Mérignhac, pp. 272-298--Pillet, pp. 215-235--Zorn, pp.
283-315--_Kriegsbrauch_, pp. 61-63--Holland, _War_, Nos.
111-112--Bordwell, pp. 314-324--Meurer, II. §§ 56-60--Spaight, pp.
381-408--Ariga, §§ 116-122--_Land Warfare_, §§ 416-425--Thomas,
_Des réquisitions militaires_ (1884)--Keller, _Requisition und
Kontribution_ (1898)--Pont, _Les réquisitions militaires du temps
de guerre_ (1905)--Albrecht, _Requisitionen von neutralem
Privateigentum, etc._ (1912), pp. 1-24:--Risley in the _Journal of
the Society of Comparative Legislation_, new series, vol. II.
(1900), pp. 214-223.
[Sidenote: War must support War.]
§ 146. Requisitions and contributions in war are the outcome of the
eternal principle that war must support war.[286] This means that every
belligerent may make his enemy pay as far as possible for the
continuation of the war. But this principle, though it is as old as war
and will only die with war itself, has not the same effect in modern
times on the actions of belligerents as it formerly had. For thousands
of years belligerents used to appropriate all private and public enemy
property they could obtain, and, when modern International Law grew up,
this practice found legal sanction. But after the end of the seventeenth
century this practice grew milder under the influence of the experience
that the provisioning of armies in enemy territory became more or less
impossible when the inhabitants were treated according to the old
principle. Although belligerents retained in strict law the right to
appropriate all private besides all public property, it became usual to
abstain from enforcing such right, and in lieu thereof to impose
contributions of cash and requisitions in kind upon the inhabitants of
the invaded country.[287] And when this usage developed, no belligerent
ever thought of paying in cash for requisitions, or giving a receipt for
them. But in the nineteenth century another practice became usual.
Commanders then often gave a receipt for contributions and requisitions,
in order to avoid abuse and to prevent further demands for fresh
contributions and requisitions by succeeding commanders without
knowledge of the former impositions. And there are instances of cases
during the nineteenth century on record in which belligerents actually
paid in cash for all requisitions they made. The usual practice at the
end of the nineteenth century was that commanders always gave a receipt
for contributions, and that they either paid in cash for requisitions or
acknowledged them by receipt, so that the respective inhabitants could
be indemnified by their own Government after conclusion of peace.
However, no restriction whatever was imposed upon commanders with regard
to the amount of contributions and requisitions, and with regard to the
proportion between the resources of a country and the burden imposed.
The Hague Regulations have now settled the matter of contributions and
requisitions in a progressive way by enacting rules which put the whole
matter on a new basis. That war must support war remains a principle
under these regulations also. But they are widely influenced by the
demand that the enemy State as such, and not the private enemy
individuals, should be made to support the war, and that only so far as
the necessities of war demand it should contributions and requisitions
be imposed. Although certain public moveable property and the produce
of public immoveables may be appropriated as heretofore, requisitions
must be paid for in cash or, if this is impossible, acknowledged by
receipt.
[Footnote 286: Concerning the controversy as to the justification of
Requisitions and Contributions, see Albrecht, _op. cit._ pp. 18-21.]
[Footnote 287: An excellent sketch of the historical development of the
practice of requisitions and contributions is given by Keller,
_Requisition und Kontribution_ (1898), pp. 5-26.]
[Sidenote: Requisitions in Kind, and Quartering.]
§ 147. Requisition is the name for the demand for the supply of all
kinds of articles necessary for an army, such as provisions for men and
horses, clothing, or means of transport. Requisition of certain services
may also be made, but they will be treated below in § 170 together with
occupation, requisitions in kind only being within the scope of this
section. Now, what articles may be demanded by an army cannot once for
all be laid down, as they depend upon the actual need of an army.
According to article 52 of the Hague Regulations, requisitions may be
made from municipalities as well as from inhabitants, but they may be
made so far only as they are really necessary for the army. They may not
be made by individual soldiers or officers, but only by the commander in
the locality. All requisitions must be paid for in cash, and if this is
impossible, they must be acknowledged by receipt, and the payment of the
amount must be made as soon as possible. The principle that requisitions
must be paid for by the enemy is thereby absolutely recognised, but, of
course, commanders-in-chief may levy contributions--see below, § 148--in
case they do not possess cash for the payment of requisitions. However
this may be, by the rule that requisitions must always be paid for, it
again becomes apparent and beyond all doubt that henceforth private
enemy property is as a rule exempt from appropriation by an invading
army.
A special kind of requisition is the quartering[288] of soldiers in the
houses of private inhabitants of enemy territory, by which each
inhabitant is required to supply lodging and food for a certain number
of soldiers, and sometimes also stabling and forage for horses.
Although the Hague Regulations do not specially mention quartering,
article 52 is nevertheless to be applied to it, since quartering is
nothing else than a special kind of requisition. If cash cannot be paid
at once for quartering, every inhabitant concerned must get a receipt
for it, stating the number of soldiers quartered and the number of days
they were catered for, and the payment of the amount must be made as
soon as possible.
[Footnote 288: See above, § 143.]
But it must be specially observed, that neither in the case of ordinary
requisitions nor in the case of quartering of troops is a commander
compelled to pay the prices asked by the inhabitants concerned. On the
contrary, he may fix the prices himself, although it is expected that
the prices paid shall be fair.
[Sidenote: Contributions.]
§ 148. Contribution is a payment in ready money demanded either from
municipalities or from inhabitants, whether enemy subjects or foreign
residents. Whereas formerly no general rules concerning contributions
existed, articles 49 and 51 of the Hague Regulations now enact that
contributions may not be demanded extortionately, but exclusively[289]
for the needs of the army, in order, for instance, to pay for
requisitions or for the administration of the locality in question. They
may be imposed by a written order of a commander-in-chief only, in
contradistinction to requisitions which may be imposed by a mere
commander in a locality. They may not be imposed indiscriminately on the
inhabitants, but must so far as possible be assessed upon such
inhabitants in compliance with the rules in force of the respective
enemy Government regarding the assessment of taxes. And, finally, for
every individual contribution a receipt must be given. It is apparent
that these rules of the Hague Regulations try to exclude all
arbitrariness and despotism on the part of an invading enemy with regard
to contributions, and that they try to secure to the individual
contributors as well as to contributing municipalities the possibility
of being indemnified afterwards by their own Government, thus shifting,
so far as possible, the burden of supporting the war from private
individuals and municipalities to the State proper.[290]
[Footnote 289: As regards contributions as a penalty, see article 50 of
the Hague Regulations. See also Keller, _op. cit._ pp. 60-62.]
[Footnote 290: It is strange to observe that _Kriegsbrauch_, pp. 61-63,
does not mention the Hague Regulations at all.]
VIII
DESTRUCTION OF ENEMY PROPERTY
Grotius, III. c. 5, §§ 1-3; c. 12--Vattel, III. §§ 166-168--Hall,
§ 186--Lawrence, § 206--Manning, p. 186--Twiss, II. §§
65-69--Halleck, II. pp. 63, 64, 71, 74--Taylor, §§
481-482--Wharton, III. § 349--Moore, VII. § 1113--Wheaton, §§
347-351--Bluntschli, §§ 649, 651, 662, 663--Heffter, § 125--Lueder
in Holtzendorff, IV. pp. 482-485--Klüber, § 262--G. F. Martens,
II. § 280--Ullmann, § 176--Bonfils, Nos. 1078,
1178-1180--Pradier-Fodéré, VI. Nos. 2770-2774--Rivier, II. pp.
265-268--Nys, III. pp. 220-223--Calvo, IV. §§ 2215-2222--Fiore,
III. Nos. 1383-1388, and Code, Nos. 1525-1529--Martens, II. §
110--Longuet, §§ 99, 100--Mérignhac, pp. 266-268--_Kriegsbrauch_,
pp. 52-56--Holland, _War_, Nos. 3 and 76 (_g_)--Bordwell, p.
84--Spaight, pp. 129-140--_Land Warfare_, §§ 414, 422, 426, 427,
434.
[Sidenote: Wanton destruction prohibited.]
§ 149. In former times invading armies frequently used to fire and
destroy all enemy property they could not make use of or carry away.
Afterwards, when the practice of warfare grew milder, belligerents in
strict law retained the right to destroy enemy property according to
discretion, although they did not, as a rule, any longer make use of
such right. Nowadays, however, this right is obsolete. For in the
nineteenth century it became a universally recognised rule of
International Law that all useless and wanton destruction of enemy
property, be it public or private, is absolutely prohibited. And this
rule has now been expressly enacted by article 23 (_g_) of the Hague
Regulations, where it is categorically enacted that "to destroy ...
enemy's property, unless such destruction ... be imperatively demanded
by the necessities of war, is prohibited."
[Sidenote: Destruction for the purpose of Offence and Defence.]
§ 150. All destruction of and damage to enemy property for the purpose
of offence and defence is _necessary_ destruction and damage, and
therefore lawful. It is not only permissible to destroy and damage all
kinds of enemy property on the battlefield during battle, but also in
preparation for battle or siege. To strengthen a defensive position a
house may be destroyed or damaged. To cover the retreat of an army a
village on the battlefield may be fired. The district around an enemy
fortress held by a belligerent may be razed, and, therefore, all private
and public buildings, all vegetation may be destroyed, and all bridges
blown up within a certain area. If a farm, a village, or even a town is
not to be abandoned but prepared for defence, it may be necessary to
damage in many ways or entirely destroy private and public property.
Further, if and where a bombardment is lawful, all destruction of
property involved in it becomes likewise lawful. When a belligerent
force obtains possession of an enemy factory for ammunition or
provisions for the enemy troops, if it is not certain that they can hold
it against an attack, they may at least destroy the plant, if not the
buildings. Or if a force occupies an enemy fortress, they may raze the
fortifications. Even a force intrenching themselves on a battlefield may
be obliged to resort to the destruction of many kinds of property.
[Sidenote: Destruction in marching, reconnoitring, and conducting
Transport.]
§ 151. Destruction of enemy property in marching troops, conducting
military transport, and in reconnoitring, is likewise lawful if
unavoidable. A reconnoitring party need not keep on the road if they can
better serve their purpose by riding across the tilled fields. And
troops may be marched and transport may be conducted over crops when
necessary. A humane commander will not unnecessarily allow his troops
and transport to march and ride over tilled fields and crops. But if the
purpose of war necessitates it he is justified in so doing.
[Sidenote: Destruction of Arms, Ammunition, and Provisions.]
§ 152. Whatever enemy property a belligerent may appropriate he may
likewise destroy. To prevent the enemy from making use of them a
retreating force may destroy arms, ammunition, provisions, and the like,
which they have taken from the enemy or requisitioned and cannot carry
away. But it must be specially observed that they may not destroy
provisions in the possession of private enemy inhabitants in order to
prevent the enemy from making use of them in the future.[291]
[Footnote 291: Nor is a commander allowed to requisition such provisions
in order to have them destroyed, for article 52 of the Hague Regulations
expressly enacts that requisitions are only admissible for the
necessities of the army.]
[Sidenote: Destruction of Historical Monuments, Works of Art, and the
like.]
§ 153. All destruction of and damage to historical monuments, works of
art and science, buildings for charitable, educational, and
religious[292] purposes are specially prohibited by article 56 of the
Hague Regulations which enacts that the perpetrators of such acts must
be prosecuted (_poursuivie_), that is court-martialed. But it must be
emphasised that these objects enjoy this protection only during military
occupation of enemy territory. Should a battle be waged around an
historical monument on open ground, should a church, a school, or a
museum be defended and attacked during military operations, these
otherwise protected objects may be damaged or destroyed under the same
conditions as other enemy property.
[Footnote 292: It is of importance to state the fact that, according to
Grotius (III. c. 5, §§ 2 and 3), destruction of graves, tombstones,
churches, and the like is not prohibited by the Law of Nations, although
he strongly (III. c. 12, §§ 5-7) advises that they should be spared
unless their preservation is dangerous to the interests of the
invader.]
[Sidenote: General Devastation.]
§ 154. The question must also be taken into consideration whether and
under what conditions general devastation of a locality, be it a town or
a larger part of enemy territory, is permitted. There cannot be the
slightest doubt that such devastation is as a rule absolutely prohibited
and only in exceptional cases permitted when, to use the words of
article 23 (_g_) of the Hague Regulations, it is "imperatively demanded
by the necessities of war." It is, however, impossible to define once
for all the circumstances which make a general devastation necessary,
since everything depends upon the merits of the special case. But the
fact that a general devastation can be lawful must be admitted. And it
is, for instance, lawful in case of a levy _en masse_ on already
occupied territory, when self-preservation obliges a belligerent to
resort to the most severe measures. It is also lawful when, after the
defeat of his main forces and occupation of his territory, an enemy
disperses his remaining forces into small bands which carry on guerilla
tactics and receive food and information, so that there is no hope of
ending the war except by a general devastation which cuts off supplies
of every kind from the guerilla bands. But it must be specially observed
that general devastation is only justified by imperative necessity and
by the fact that there is no better and less severe way open to a
belligerent.[293]
[Footnote 293: See Hall, § 186, who gives _in nuce_ a good survey of the
doctrine and practice of general devastation from Grotius down to the
beginning of the nineteenth century. See also Spaight, pp. 125-139.]
Be that as it may, whenever a belligerent resorts to general devastation
he ought, if possible, to make some provision for the unfortunate
peaceful population of the devastated tract of territory. It would be
more humane to take them away into captivity rather than let them perish
on the spot. The practice, resorted to during the South African war, to
house the victims of devastation in concentration camps, must be
approved. The purpose of war may even oblige a belligerent to confine a
population forcibly[294] in concentration camps.
[Footnote 294: See above, p. 153, note 1. As regards the devastation
resorted to during the South African War, and as regards the
concentration camps instituted in consequence of devastation during this
war, see Beak, _The Aftermath of War_ (1906), pp. 1-30, and _The Times'
History of the War in South Africa_, vol. V. pp. 250-252.]
IX
ASSAULT, SIEGE, AND BOMBARDMENT
Vattel, III. §§ 168-170--Hall, § 186--Lawrence, § 204--Westlake,
II. pp. 76-79--Moore, VII. § 1112--Halleck, II. pp. 59, 67,
185--Taylor, §§ 483-485--Bluntschli, §§ 552-554B--Heffter, §
125--Lueder in Holtzendorff, IV. pp. 448-457--G. F. Martens, II. §
286--Ullmann, § 181--Bonfils, Nos. 1079-1087--Despagnet, Nos.
528-535--Pradier-Fodéré, VI. Nos. 2779-2786--Rivier, II. pp.
284-288--Nys, III. pp. 210-219--Calvo, IV. §§ 2067-2095--Fiore,
III. Nos. 1322-1330, and Code, Nos. 1519-1524--Longuet, §§
58-59--Mérignhac, pp. 171-182--Pillet, pp. 101-112--Zorn, pp.
161-174--Holland, _War_, Nos. 80-83--Rolin-Jaequemyns in _R.I._
II. (1870), pp. 659 and 674, III. (1871), pp. 297-307--Bordwell,
pp. 286-288--Meurer, §§ 32-34--Spaight, pp.
157-201--_Kriegsbrauch_, pp. 18-22--_Land Warfare_, §§ 117-138.
[Sidenote: Assault, Siege, and Bombardment, when lawful.]
§ 155. Assault is the rush of an armed force upon enemy forces in the
battlefield, or upon intrenchments, fortifications, habitations,
villages, or towns, such rushing force committing every violence against
opposing persons and destroying all impediments. Siege is the
surrounding and investing of an enemy locality by an armed force,
cutting off those inside from all communication for the purpose of
starving them into surrender or for the purpose of attacking the
invested locality and taking it by assault. Bombardment is the throwing
by artillery of shot and shell upon persons and things. Siege can be
accompanied by bombardment and assault, but this is not necessary, since
a siege can be carried out by mere investment and starvation caused
thereby. Assault, siege, and bombardment are severally and jointly
perfectly legitimate means of warfare.[295] Neither bombardment nor
assault, if they take place on the battlefield, needs special
discussion, as they are allowed under the same circumstances and
conditions as force in general is allowed. The only question here is
under what circumstances assault and bombardment are allowed outside the
battlefield. The answer is indirectly given by article 25 of the Hague
Regulations, where it is categorically enacted that "the attack or
bombardment, by any means[296] whatever, of towns, villages,
habitations, or buildings, which are not defended, is prohibited." Siege
is not specially mentioned, because no belligerent would dream of
besieging an undefended locality, and because siege of an undefended
town would involve unjustifiable violence against enemy persons and
would, therefore, be unlawful. Be this as it may, the fact that defended
localities only may now be bombarded, involves a decided advance in the
view taken by International Law. For it was formerly asserted by many
writers[297] and military experts that, for certain reasons and
purposes, undefended localities also might in exceptional cases be
bombarded. But it must be specially observed that it matters not whether
the defended locality be fortified or not, since an unfortified place
can be defended.[298] And it must be mentioned that nothing prevents a
belligerent who has taken possession of an undefended fortified place
from destroying the fortifications by bombardment as well as by other
means.
[Footnote 295: The assertion of some writers--see, for instance, Pillet,
pp. 104-107, and Mérignhac, p. 173--that bombardment is lawful only
after an unsuccessful attempt of the besiegers to starve the besieged
into surrender is not based upon a recognised rule of the Law of
Nations.]
[Footnote 296: The words _by any means whatever_ were inserted by the
Second Peace Conference in order to make it quite clear that the article
is likewise to refer to bombardment from air-vessels.]
[Footnote 297: See, for instance, Lueder in Holtzendorff, IV. p. 451.]
[Footnote 298: See Holls, _The Peace Conference at the Hague_ (1900), p.
152.]
[Sidenote: Assault, how carried out.]
§ 156. No special rules of International Law exist with regard to the
mode of carrying out an assault. Therefore, only the general rules
respecting offence and defence find application. It is in especial
not[299] necessary to give notice of an impending assault to the
authorities of the respective locality, or to request them to surrender
before an assault is made. That an assault may or may not be preceded or
accompanied by a bombardment, need hardly be mentioned, nor that by
article 28 of the Hague Regulations pillage of towns taken by assault is
now expressly prohibited.
[Footnote 299: This becomes indirectly apparent from article 26 of the
Hague Regulations.]
[Sidenote: Siege, how carried out.]
§ 157. With regard to the mode of carrying out siege without bombardment
no special rules of International Law exist, and here too only the
general rules respecting offence and defence find application.
Therefore, an armed force besieging a town may, for instance, cut off
the river which supplies drinking water to the besieged, but must not
poison[300] such river. And it must be specially observed that no rule
of law exists which obliges a besieging force to allow all
non-combatants, or only women, children, the aged, the sick and wounded,
or subjects of neutral Powers, to leave the besieged locality
unmolested. Although such permission[301] is sometimes granted, it is in
most cases refused, because the fact that non-combatants are besieged
together with the combatants, and that they have to endure the same
hardships, may, and very often does, exercise pressure upon the
authorities to surrender. Further, should the commander of a besieged
place expel the non-combatants in order to lessen the number of those
who consume his store of provisions, the besieging force need not allow
them to pass through its lines, but may drive them back.[302]
[Footnote 300: See above, § 110.]
[Footnote 301: Thus in 1870, during the Franco-German War, the German
besiegers of Strassburg as well as of Belfort allowed the women, the
children, and the sick to leave the besieged fortresses.]
[Footnote 302: See _Land Warfare_, § 129.]
That diplomatic envoys of neutral Powers may not be prevented from
leaving a besieged town is a consequence of their exterritoriality.
However, if they voluntarily remain, may they claim uncontrolled[303]
communication with their home State by correspondence and couriers? When
Mr. Washburne, the American diplomatic envoy at Paris during the siege
of that city in 1870 by the Germans, claimed the right of sending a
messenger with despatches to London in a sealed bag through the German
lines, Bismarck declared that he was ready to allow foreign diplomatists
in Paris to send a courier to their home States once a week, but only
under the condition that their despatches were open and did not contain
any remarks concerning the war. Although the United States and other
Powers protested, Bismarck did not alter his decision. The whole
question must be treated as open.[304]
[Footnote 303: The matter is discussed by Rolin-Jaequemyns in _R.I._
III. (1871), pp. 371-377.]
[Footnote 304: See above, vol. I. § 399, and Wharton, I. § 97.]
[Sidenote: Bombardment, how carried out.]
§ 158. Regarding bombardment, article 26 of the Hague Regulations enacts
that the commander of the attacking forces shall do all he can to notify
his intention to resort to bombardment. But it must be emphasised that a
strict duty of notification for all cases of bombardment is not thereby
imposed, since it is only enacted that a commander _shall do all he can_
to send notification. He cannot do it when the circumstances of the case
prevent him, or when the necessities of war demand an immediate
bombardment. Be that as it may, the purpose of notification is to enable
private individuals within the locality to be bombarded to seek shelter
for their persons and for their valuable personal property.
Article 27 of the Hague Regulations enacts the hitherto customary rule
that all necessary steps must be taken to spare as far as possible all
buildings devoted to religion, art, science, and charity; further,
historic monuments, hospitals, and all other places where the sick and
wounded are collected, provided these buildings, places, and monuments
are not used at the same time for military purposes. To enable the
attacking forces to spare these buildings and places, the latter must be
indicated by some particular signs, which must be previously notified to
the attacking forces and must be visible from the far distance from
which the besieging artillery carries out the bombardment.[305]
[Footnote 305: No siege takes place without the besieged accusing the
besiegers of neglecting the rule that buildings devoted to religion,
art, charity, the tending of the sick, and the like, must be spared
during bombardments. The fact is that in case of a bombardment the
destruction of such buildings cannot always be avoided, although the
artillery of the besiegers do not intentionally aim at them. That the
forces of civilised States intentionally destroy such buildings, I
cannot believe.]
It must be specially observed that no legal duty exists for the
attacking forces to restrict bombardment to fortifications only. On the
contrary, destruction of private and public buildings through
bombardment has always been and is still considered lawful, as it is one
of the means to impress upon the authorities the advisability of
surrender. Some writers[306] assert either that bombardment of the town,
in contradistinction to the fortifications, is never lawful, or that it
is only lawful when bombardment of the fortifications has not resulted
in inducing surrender. But this opinion does not represent the actual
practice of belligerents, and the Hague Regulations do not adopt it.
[Footnote 306: See, for instance, Pillet, pp. 104-107; Bluntschli §
554A; Mérignhac, p. 180. Vattel (III. § 169) does not deny the right to
bombard the town, although he does not recommend such bombardment.]
X
ESPIONAGE AND TREASON
Vattel, III. §§ 179-182--Hall, § 188--Westlake, II. pp. 79 and
90--Lawrence, § 199--Phillimore, III. § 96--Halleck, I. pp.
571-575, and in _A.J._ V.(1911), pp. 590-603--Taylor, §§ 490 and
492--Wharton, III. § 347--Moore, VII. § 1132--Bluntschli, §§
563-564, 628-640--Heffter, § 125--Lueder in Holtzendorff, IV. pp.
461-467--Ullmann, § 176--Bonfils, Nos. 1100-1104--Despagnet, Nos.
537-542--Pradier-Fodéré, VI. Nos. 2762-2768--Rivier, II. pp.
282-284--Nys, III. pp. 256-263--Calvo, IV. §§ 2111-2122--Fiore,
III. Nos. 1341, 1374-1376, and Code, Nos. 1487-1490--Martens, II.
§ 116--Longuet, §§ 63-75--Mérignhac, pp. 183-209--Pillet, pp.
97-100--Zorn, pp. 174-195--Holland, _War_, Nos. 84-87--Bordwell,
pp. 291-292--Meurer, §§ 35-38--Spaight, pp. 202-215,
333-335--Ariga, §§ 98-100--Takahashi, pp. 185-194--Friedemann,
_Die Lage der Kriegskundschafter und Spione_ (1892)--Violle,
_L'espionage militaire en temps de guerre_ (1904)--Adler, _Die
Spionage_ (1906)--_Kriegsbrauch_, pp. 30-31--_Land Warfare_, §§
155-173--Bentwich in _The Journal of the Society of Comparative
Legislation_, New Series, X. (1909), pp. 243-299.
[Sidenote: Twofold Character of Espionage and Treason.]
§ 159. War cannot be waged without all kinds of information about the
forces and the intentions of the enemy and about the character of the
country within the zone of military operations. To obtain the necessary
information, it has always been considered lawful, on the one hand, to
employ spies, and, on the other, to make use of the treason of enemy
soldiers or private enemy subjects, whether they were bribed[307] or
offered the information voluntarily and gratuitously. Article 24 of the
Hague Regulations enacts the old customary rule that the employment of
methods necessary to obtain information about the enemy and the country
is considered allowable. The fact, however, that these methods are
lawful on the part of the belligerent who employs them does not prevent
the punishment of such individuals as are engaged in procuring
information. Although a belligerent acts lawfully in employing spies and
traitors, the other belligerent, who punishes spies and traitors,
likewise acts lawfully. Indeed, espionage and treason bear a twofold
character. For persons committing acts of espionage or treason are--as
will be shown below in § 255--considered war criminals and may be
punished, but the employment of spies and traitors is considered lawful
on the part of the belligerents.
[Footnote 307: Some writers maintain, however, that it is not lawful to
bribe enemy soldiers into espionage; see below, § 162.]
[Sidenote: Espionage in contradistinction to Scouting and
Despatch-bearing.]
§ 160. Espionage must not be confounded, firstly, with scouting, or
secondly, with despatch-bearing. According to article 29 of the Hague
Regulations, espionage is the act of a soldier or other individual who
clandestinely, or under false pretences, seeks to obtain information
concerning one belligerent in the zone of belligerent operations with
the intention of communicating it to the other belligerent.[308]
Therefore, soldiers not in disguise, who penetrate into the zone of
operations of the enemy, are not spies. They are scouts who enjoy all
privileges of the members of armed forces, and they must, if captured,
be treated as prisoners of war. Likewise, soldiers or civilians charged
with the delivery of despatches for their own army or for that of the
enemy and carrying out their mission openly are not spies. And it
matters not whether despatch-bearers make use of balloons or of other
means of communication. Thus, a soldier or civilian trying to carry
despatches from a force besieged in a fortress to other forces of the
same belligerent, whether making use of a balloon or riding or walking
at night, may not be treated as a spy. On the other hand, spying can
well be carried out by despatch-bearers or by persons in a balloon,
whether they make use of the balloon of a despatch-bearer or rise in a
balloon for the special purpose of spying.[309] The mere fact that a
balloon is visible does not protect the persons using it from being
treated as spies; since spying can be carried out under false pretences
quite as well as clandestinely. But special care must be taken really to
prove the fact of espionage in such cases, for an individual carrying
despatches is _prima facie_ not a spy and must not be treated as a spy
until proved to be such.
[Footnote 308: Assisting or favouring espionage or knowingly concealing
a spy are, according to a customary rule of International Law,
punishable as though they were themselves acts of espionage; see _Land
Warfare_, § 172.]
[Footnote 309: See below, § 356 (4), concerning wireless telegraphy.]
A remarkable case of espionage is that of Major André,[310] which
occurred in 1780 during the American War of Independence. The American
General Arnold, who was commandant of West Point, on the North River,
intended to desert the Americans and join the British forces. He opened
negotiations with Sir Henry Clinton for the purpose of surrendering West
Point, and Major André was commissioned by Sir Henry Clinton to make the
final arrangements with Arnold. On the night of September 21, Arnold and
André met outside the American and British lines, but André, after
having changed his uniform for plain clothes, undertook to pass the
American lines on his return, furnished with a passport under the name
of John Anderson by General Arnold. He was caught, convicted as a spy,
and hanged. As he was not seeking information,[311] and therefore was
not a spy according to article 29 of the Hague Regulations, a conviction
for espionage would not, if such a case occurred to-day, be justified.
But it would be possible to convict for war treason, for André was no
doubt negotiating treason. Be that as it may, George III. considered
André a martyr, and honoured his memory by granting a pension to his
mother and a baronetcy to his brother.[312]
[Footnote 310: See Halleck in _A.J._ V. (1911), p. 594.]
[Footnote 311: Halleck, _loc. cit._, p. 598, asserts the contrary.]
[Footnote 312: See Phillimore, III. § 106; Halleck, I. p. 575; Rivier,
II. p. 284.]
[Sidenote: Punishment of Espionage.]
§ 161. The usual punishment for spying is hanging or shooting, but less
severe punishments are, of course, admissible and sometimes inflicted.
However this may be, according to article 30 of the Hague Regulations a
spy may not be punished without a trial before a court-martial. And
according to article 31 of the Hague Regulations a spy who is not
captured in the act but rejoins the army to which he belongs, and is
subsequently captured by the enemy, may not be punished for his previous
espionage and must be treated as a prisoner of war. But it must be
specially observed that article 31 concerns only such spies as belong to
the armed forces of the enemy; civilians who act as spies and are
captured later may be punished. Be that as it may, no regard is paid to
the status, rank, position, or motive of a spy. He may be a soldier or a
civilian, an officer or a private. He may be following instructions of
superiors or acting on his own initiative from patriotic motives. A case
of espionage, remarkable on account of the position of the spy, is that
of the American Captain Nathan Hale, which occurred in 1776. After the
American forces had withdrawn from Long Island, Captain Hale recrossed
under disguise and obtained valuable information about the English
forces that had occupied the island. But he was caught before he could
rejoin his army, and he was executed as a spy.[313]
[Footnote 313: The case of Major Jakoga and Captain Oki, which, though
reported as a case of espionage, is really a case of treason, will be
discussed below in § 255.]
[Sidenote: Treason.]
§ 162. Treason can be committed by a soldier or an ordinary subject of a
belligerent, but it can also be committed by an inhabitant of an
occupied enemy territory or even by the subject of a neutral State
temporarily staying there, and it can take place after an arrangement
with the favoured belligerent or without such an arrangement. In any
case a belligerent making use of treason acts lawfully, although the
Hague Regulations do not mention the matter at all. But many acts of
different sorts can be treasonable; the possible cases of treason and
the punishment of treason will be discussed below in § 255.
Although it is generally recognised that a belligerent acts lawfully who
makes use of the offer of a traitor, the question is controversial[314]
whether a belligerent acts lawfully who bribes a commander of an enemy
fortress into surrender, incites enemy soldiers to desertion, bribes
enemy officers for the purpose of getting important information, incites
enemy subjects to rise against the legitimate Government, and the like.
If the rules of the Law of Nations are formulated, not from doctrines of
book-writers, but from what is done by the belligerents in
practice,[315] it must be asserted that such acts, detestable and
immoral as they are, are not considered illegal according to the Law of
Nations.
[Footnote 314: See Vattel, III. § 180; Heffter, § 125; Taylor, § 490;
Martens, II. § 110 (8); Longuet, § 52; Mérignhac, p. 188, and others.
See also below, § 164.]
[Footnote 315: See _Land Warfare_, § 158.]
XI
RUSES
Grotius, III. c. 1, §§ 6-18--Bynkershoek, _Quaest. jur. publ._ I.
c. 1--Vattel, III. §§ 177-178--Hall, § 187--Lawrence, §
207--Westlake, II. p. 73--Phillimore, III. § 94--Halleck, I. pp.
566-571--Taylor, § 488--Moore, VII. § 1115--Bluntschli, §§
565-566--Heffter, § 125--Lueder in Holtzendorff, IV. pp.
457-461--Ullmann, § 176--Bonfils, Nos. 1073-1075--Despagnet, Nos.
526-527--Pradier-Fodéré, VI. Nos. 2759-2761--Rivier, II. p.
261--Nys, III. pp. 252-255--Calvo, IV. §§ 2106-2110--Fiore, III.
Nos. 1334-1339--Longuet, §§ 53-56--Mérignhac, pp. 165-168--Pillet,
pp. 93-97--_Kriegsbrauch_, pp. 23-24--Holland, _War_, Nos.
78-79--Bordwell, pp. 283-286--Meurer, II pp. 151-152--Spaight, pp.
152-156--_Land Warfare_, §§ 139-154--Brocher in _R.I._ V. (1873),
pp. 325-329.
[Sidenote: Character of Ruses of War.]
§ 163. Ruses of war or stratagems are deceit employed during military
operations for the purpose of misleading the enemy. Such deceit is of
great importance in war, and, just as belligerents are allowed to
employ all methods of obtaining information, so they are, on the other
hand, and article 24 of the Hague Regulations confirms this, allowed to
employ all sorts of ruses for the purpose of deceiving the enemy. Very
important objects can be attained through ruses of war, as, for
instance, the surrender of a force or of a fortress, the evacuation of
territory held by the enemy, the withdrawal from a siege, the
abandonment of an intended attack, and the like. But ruses of war are
also employed, and are very often the decisive factor, during battles.
[Sidenote: Different kinds of Stratagems.]
§ 164. Of ruses there are so many kinds that it is impossible to
enumerate[316] and classify them. But in order to illustrate acts
carried out as ruses some instances may be given. It is hardly necessary
to mention the laying of ambushes and traps, the masking of military
operations such as marches or the erection of batteries and the like,
the feigning of attacks or flights or withdrawals, the carrying out of a
surprise, and other stratagems employed every day in war. But it is
important to know that, when useful, feigned signals and bugle-calls may
be ordered, the watchword of the enemy may be used, deceitful
intelligence may be disseminated,[317] the signals and the bugle-calls
of the enemy may be mimicked[318] to mislead his forces. And even such
detestable acts[319] as bribery of enemy commanders and officials in
high position, and secret seduction of enemy soldiers to desertion, and
of enemy subjects to insurrection, are frequently committed, although
many writers protest. As regards the use of the national flag, the
military ensigns, and the uniforms of the enemy, theory and practice
are unanimous in rejecting it during actual attack and defence, since
the principle is considered inviolable that during actual fighting
belligerent forces ought to be certain who is friend and who is foe. But
many[320] publicists maintain that until the actual fighting begins
belligerent forces may by way of stratagem make use of the national
flag, military ensigns, and uniforms of the enemy. Article 23 (_f_) of
the Hague Regulations does not prohibit any and every use of these
symbols, but only their _improper_ use, thus leaving the question
open,[321] what uses are proper and what are not. Those who have
hitherto taught the admissibility of the use of these symbols outside
actual fighting can correctly maintain that the quoted article 23 (_f_)
does not prohibit it.[322]
[Footnote 316: See _Land Warfare_, § 144, where a great number of
legitimate ruses are enumerated.]
[Footnote 317: See the examples quoted by Pradier-Fodéré, VI. No. 2761.]
[Footnote 318: See Pradier-Fodéré, VI. No. 2760.]
[Footnote 319: The point has been discussed above in § 162.]
[Footnote 320: See, for instance, Hall, § 187; Bluntschli, § 565;
Taylor, § 488; Calvo, IV. No. 2106; Pillet, p. 95; Longuet, § 54. But,
on the other hand, the number of publicists who consider it illegal to
make use of the enemy flag, ensigns, and uniforms, even before an actual
attack, is daily becoming larger; see, for instance, Lueder in
Holtzendorff, IV. p. 458; Mérignhac, p. 166; Pradier-Fodéré, VI. No.
2760; Bonfils, No. 1074; _Kriegsbrauch_, p. 24. As regards the use of
the enemy flag on the part of men-of-war, see below, in § 211.]
[Footnote 321: Some writers maintain that article 23 (_f_) of the Hague
Regulations has settled the controversy, but they forget that this
article speaks only of the _improper_ use of the enemy ensigns and
uniform. See _Land Warfare_, § 152.]
[Footnote 322: The use of the enemy uniform for the purpose of deceit is
different from the case when members of armed forces who are deficient
in clothes wear the uniforms of prisoners or of the enemy dead. If this
is done--and it always will be done if necessary--such distinct
alterations in the uniform ought to be made as will make it apparent to
which side the soldiers concerned belong (see _Land Warfare_, § 154).
Different again is the case where soldiers are, through lack of
clothing, obliged to wear the apparel of civilians, such as greatcoats,
hats, and the like. Care must then be taken that the soldiers concerned
do nevertheless wear a fixed distinctive emblem which marks them as
soldiers, since otherwise they lose the privileges of members of the
armed forces of the belligerents (see article 1, No. 2, of the Hague
Regulations). During the Russo-Japanese War both belligerents repeatedly
accused each other of using Chinese clothing for members of their armed
forces; the soldiers concerned apparently were obliged through lack of
proper clothing temporarily to make use of Chinese garments. See,
however, Takahashi, pp. 174-178.]
[Sidenote: Stratagems in contradistinction to Perfidy.]
§ 165. Stratagems must be carefully distinguished from perfidy, since
the former are allowed, whereas the latter is prohibited. Halleck (I. p.
566) correctly formulates the distinction by laying down the principle
that, whenever a belligerent has expressly or tacitly engaged and is
therefore bound by a moral obligation to speak the truth to an enemy, it
is perfidy to betray the latter's confidence, because it contains a
breach of good faith.[323] Thus a flag of truce or the cross of the
Geneva Convention must never be made use of for a stratagem,
capitulations must be carried out to the letter, the feigning of
surrender for the purpose of luring the enemy into a trap is a
treacherous act, as is the assassination of enemy commanders or soldiers
or heads of States. On the other hand, stratagem may be met by
stratagem, and a belligerent cannot complain of the enemy who so
deceives him. If, for instance, a spy of the enemy is bribed to give
deceitful intelligence to his employer, or if an officer, who is
approached by the enemy and offered a bribe, accepts it feigningly but
deceives the briber and leads him to disaster, no perfidy is committed.
[Footnote 323: See _Land Warfare_, §§ 139-142, 146-150.]
XII
OCCUPATION OF ENEMY TERRITORY
Grotius, III. c. 6, § 4--Vattel, III. §§ 197-200--Hall, §§
153-161--Westlake, II. pp. 83-106--Lawrence, §§ 176-179--Maine,
pp. 176-183--Halleck, II. pp. 432-466--Taylor, §§
568-579--Wharton, III. §§ 354-355--Moore, VII. §§
1143-1155--Bluntschli, §§ 539-551--Heffter, §§ 131-132--Lueder in
Holtzendorff, IV. pp. 510-524--Klüber, §§ 255-256--G. F. Martens,
II. § 280--Ullmann, § 183--Bonfils, Nos. 1156-1175--Despagnet,
Nos. 567-578--Pradier-Fodéré, VII. Nos. 2939-2988, 3019-3028--Nys,
III. pp. 309-351--Rivier, II. pp. 299-306--Calvo, IV. §§
2166-2198--Fiore, III. Nos. 1454-1481, and Code, Nos.
1535-1563--Martens, II. §§ 117-119--Longuet, §§
115-133--Mérignhac, pp. 241-262--Pillet, pp. 237-259--Zorn, pp.
213-243--_Kriegsbrauch_, pp. 45-50--Holland, _War_, Nos.
102-106--Bordwell, pp. 312-330--Meurer, II. §§ 45-55--Spaight, pp.
320-380--_Land Warfare_, §§ 340-405--Waxel, _L'armée d'invasion el
la population_ (1874)--Litta, _L'occupazione militare_
(1874)--Löning, _Die Verwaltung des General-Gouvernements im
Elsass_ (1874), and in _R.I._ IV. (1872), p. 622, V. (1873), p.
69--Bernier, _De l'occupation militaire en temps de guerre_
(1884)--Corsi, _L'occupazione militare in tempo di guerra e le
relazione internazionale che ne derivano_ (2nd edit. 1886)--Bray,
_De l'occupation militaire en temps de guerre, etc._
(1891)--Magoon, _Law of Civil Government under Military
Occupation_ (2nd edit. 1900)--Lorriot, _De la nature de
l'occupation de guerre_ (1903)--Deherpe, _Essai sur le
developpement de l'occupation en droit international_
(1903)--Sichel, _Die kriegerische Besetzung feindlichen
Staatsgebietes_ (1905)--Nowacki, _Die Eisenbahnen im Kriege_
(1906), pp. 78-90--_Rolin-Jaequemyns_ in _R.I._ II. (1870), p.
666, and III. (1871), p. 311.
[Sidenote: Occupation as an Aim of Warfare.]
§ 166. If a belligerent succeeds in occupying a part or even the whole
of the enemy territory, he has realised a very important aim of warfare.
He can now not only make use of the resources of the enemy country for
military purposes, but can also keep it for the time being as a pledge
of his military success, and thereby impress upon the enemy the
necessity of submitting to terms of peace. And in regard to occupation,
International Law respecting warfare has progressed more than in any
other department. In former times enemy territory that was occupied by a
belligerent was in every point considered his State property, with which
and with the inhabitants therein he could do what he liked. He could
devastate the country with fire and sword, appropriate all public and
private property therein, kill the inhabitants, or take them away into
captivity, or make them take an oath of allegiance. He could, even
before the war was decided and his occupation was definitive, dispose of
the territory by ceding it to a third State, and an instance of this
happened during the Northern War (1700-1718), when in 1715 Denmark sold
the occupied Swedish territories of Bremen and Verden to Hanover. That
an occupant could force the inhabitants of the occupied territory to
serve in his own army and to fight against their legitimate sovereign,
was indubitable. Thus, during the Seven Years' War, Frederick II. of
Prussia repeatedly made forcible levies of thousands of recruits in
Saxony, which he had occupied. But during the second half of the
eighteenth century things gradually began to undergo a change. That the
distinction between mere temporary military occupation of territory, on
the one hand, and, on the other, real acquisition of territory through
conquest and subjugation, became more and more apparent, is shown by the
fact that Vattel (III. § 197) drew attention to it. However, it was not
till long after the Napoleonic wars in the nineteenth century that the
consequences of this distinction were carried to their full extent by
the theory and practice of International Law. So late as 1808, after the
Russian troops had militarily occupied Finland, which was at that time a
part of Sweden, Alexander I. of Russia made the inhabitants take an oath
of allegiance,[324] although it was only by article 4 of the Peace
Treaty of Frederikshamm[325] of September 17, 1809, that Sweden ceded
Finland to Russia. The first writer who drew all the consequences of the
distinction between mere military occupation and real acquisition of
territory was Heffter in his treatise _Das Europaeische Völkerrecht der
Gegenwart_ (§ 131), which made its appearance in 1844. And it is
certain that it took the whole of the nineteenth century to develop such
rules regarding occupation as are now universally recognised and in many
respects enacted by articles 42-56 of the Hague Regulations.
[Footnote 324: See Martens, _N.R._ I. p. 9.]
[Footnote 325: See Martens, _N.R._ I. p. 19.]
In so far as these rules touch upon the special treatment of persons and
property of the inhabitants of, and public property situated within,
occupied territory, they have already been taken into consideration
above in §§ 107-154. What concerns us here are the rights and duties of
the occupying belligerent in relation to his political administration of
the territory and to his political authority over its inhabitants.[326]
The principle underlying these modern rules is that, although the
occupant does in no wise acquire sovereignty over such territory through
the mere fact of having occupied it, he actually exercises for the time
being a military authority over it. As he thereby prevents the
legitimate Sovereign from exercising his authority and claims obedience
for himself from the inhabitants, he has to administer the country not
only in the interest of his own military advantage, but also, so far as
possible at any rate, for the public benefit of the inhabitants. Thus
the present International Law not only gives certain rights to an
occupant, but also imposes certain duties upon him.
[Footnote 326: The Hague Regulations (Section III. articles 42-56), and
all the French writers, but also many others, treat under the heading
"occupation" not only of the rights and duties of an occupant concerning
the political administration of the country and the political authority
over the inhabitants, but also of other matters, such as appropriation
of public and private property, requisitions and contributions, and
destruction of public and private property, violence against private
enemy subjects and enemy officials. These matters have, however, nothing
to do with occupation, but are better discussed in connection with the
means of land warfare; see above, §§ 107-154.]
[Sidenote: Occupation, when effected.]
§ 167. Since an occupant, although his power is merely military, has
certain rights and duties, the first question to deal with is, when and
under what circumstances a territory must be considered occupied.
Now it is certain that mere invasion is not occupation. Invasion is the
marching or riding of troops--or the flying of a military air
vessel--into enemy country. Occupation is invasion _plus_ taking
possession of enemy country for the purpose of holding it, at any rate
temporarily. The difference between mere invasion and occupation becomes
apparent by the fact that an occupant sets up some kind of
administration, whereas the mere invader does not. A small belligerent
force can raid enemy territory without establishing any administration,
but quickly rush on to some place in the interior for the purpose of
reconnoitring, of destroying a bridge or depôt of munitions and
provisions, and the like, and quickly withdraw after having realised its
purpose.[327] Although it may correctly be asserted that, so long and in
so far as such raiding force is in possession of a locality and sets up
a temporary administration therein, it occupies this locality, yet it
certainly does not occupy the whole territory, and even the occupation
of such locality ceases the moment the force withdraws.
[Footnote 327: See _Land Warfare_, § 343.]
However this may be, as a rule occupation will be coincident with
invasion. The troops march into a district, and the moment they get into
a village or town--unless they are actually fighting their way--they
take possession of the Municipal Offices, the Post Office, the Police
Stations, and the like, and assert their authority there. From the
military point of view such villages and towns are now "occupied."
Article 42 of the Hague Regulations enacts that territory is considered
occupied when it is actually placed under the authority of the hostile
army, and that such occupation applies only to the territory where that
authority is established and in a position to assert itself. This
definition of occupation is not at all precise, but it is as precise as
a legal definition of such kind of fact as occupation can be. If, as
some publicists[328] maintain, only such territory were actually
occupied, in which every part is held by a sufficient number of soldiers
to enforce immediately and on the very spot the authority of an
occupant, an effective occupation of a large territory would be
impossible, since then not only in every town, village, and railway
station, but also in every isolated habitation and hut the presence of a
sufficient number of soldiers would be necessary. Reasonably no other
conditions ought to be laid down as necessary to constitute effective
occupation in war than those under which in time of peace a Sovereign is
able to assert his authority over a territory. What these conditions are
is a question of fact which is to be answered according to the merits of
the special case. When the legitimate Sovereign is prevented from
exercising his powers and the occupant, being able to assert his
authority, actually establishes an administration over a territory, it
matters not with what means and in what ways his authority is exercised.
For instance, when in the centre of a territory a large force is
established from which flying columns are constantly sent round the
territory, such territory is indeed effectively occupied, provided there
are no enemy forces present, and, further, provided these columns can
really keep the territory concerned under control.[329] Again, when an
army is marching on through enemy territory, taking possession of the
lines of communication and the open towns, surrounding the fortresses
with besieging forces, and disarming the inhabitants in open places of
habitation, the whole territory left behind the army is effectively
occupied, provided some kind of administration is established, and
further provided that, as soon as it becomes necessary to assert the
authority of the occupant, a sufficient force can within reasonable time
be sent to the locality affected. The conditions vary with those of the
country concerned. When a vast country is thinly populated, a smaller
force is necessary to occupy it, and a smaller number of centres need be
garrisoned than in the case of a thickly populated country. Thus, the
occupation of the former Orange Free State and the former South African
Republic became effective in 1901 some time after their annexation by
Great Britain and the degeneration of ordinary war into guerilla war,
although only about 250,000 British soldiers had to keep up the
occupation of a territory of about 500,000 square miles. The fact that
all the towns and all the lines of communication were in the hands and
under the administration of the British army, that the inhabitants of
smaller places were taken away into concentration camps, that the enemy
forces were either in captivity or dispersed into comparatively small
guerilla bands, and finally, that wherever such bands tried to make an
attack, a sufficient British force could within reasonable time make its
appearance, was quite sufficient to assert British authority[330] over
that vast territory, although it was more than a year before peace was
finally established.
[Footnote 328: See, for instance, Hall, § 161. This was also the
standpoint of the delegates of the smaller States at the Brussels
Conference of 1874 when the Declaration of Brussels was drafted.]
[Footnote 329: This is not identical with so-called _constructive_
occupation, but is really _effective_ occupation. An occupation is
constructive only if an invader declares districts as occupied over
which he actually does not exercise control--for instance, when he
actually occupies only the capital of a large province, and proclaims
that he has thereby occupied the whole of the province, although he does
not take any steps to exercise control over it.]
[Footnote 330: The annexation of the Orange Free State dates from May
24, 1900, and that of the South African Republic from September 1, 1900.
It may well be doubted whether at these dates the occupation of the
territories concerned was already so complete as to be called effective.
The British Government ought not, therefore, to have proclaimed the
annexation at such early dates. But there ought to be no doubt that the
occupation became effective some time afterwards, in 1901. See, however,
Sir Thomas Barclay in _The Law Quarterly Review_, XXI. (1905), p. 307,
who asserts the contrary; see also, below, § 264, p. 326, note 2, and §
265, p. 327, note 1. _The Times' History of the War in South Africa_
(vol. V. p. 251) estimates the number of Boer fighters in May 1901 to be
about 13,000. These armed men were dispersed into a very large number of
guerilla bands, and they were in a great many cases men who seemingly
had submitted to the British authorities, but afterwards had taken up
arms.]
It must be emphasised that the rules regarding effective occupation must
be formulated on the basis of actual practice quite as much as rules
regarding other matters of International Law. Those rules are not
authoritative which are laid down by theorists, but only those which are
abstracted from the actual practice of warfare and are unopposed by the
Powers.[331]
[Footnote 331: The question is so much controverted that it is
impossible to enumerate the different opinions. Readers who want to
study the question must be referred to the literature quoted above at
the commencement of § 166.]
[Sidenote: Occupation, when ended.]
§ 168. Occupation comes to an end when an occupant withdraws from a
territory or is driven out of it. Thus, occupation remains only over a
limited area of a territory if the forces in occupation are drawn into a
fortress on that territory and are there besieged by the re-advancing
enemy, or if the occupant concentrates his forces in a certain place of
the territory, withdrawing before the re-advancing enemy. But occupation
does not cease because the occupant, after having disarmed the
inhabitants and having made arrangements for the administration of the
country, is marching on to overtake the retreating enemy, leaving only
comparatively few soldiers behind.
[Sidenote: Rights and Duties in General of the Occupant.]
§ 169. As the occupant actually exercises authority, and as the
legitimate Government is prevented from exercising its authority, the
occupant acquires a temporary right of administration over the
respective territory and its inhabitants. And all steps he takes in the
exercise of this right must be recognised by the legitimate Government
after occupation has ceased. This administration is in no wise to be
compared with ordinary administration, for it is distinctly and
precisely military administration. In carrying it out the occupant is,
on the one hand, totally independent of the Constitution and the laws
of the respective territory, since occupation is an aim of warfare, and
since the maintenance and safety of his forces and the purpose of war
stand in the foreground of his interest and must be promoted under all
circumstances and conditions. But, although as regards the safety of his
army and the purpose of war the occupant is vested with an almost
absolute power, he is not the Sovereign of the territory, and therefore
has no right to make changes in the laws or in the administration except
those which are temporarily necessitated by his interest in the
maintenance and safety of his army and the realisation of the purpose of
war. On the contrary, he has the duty of administrating the country
according to the existing laws and the existing rules of administration;
he must insure public order and safety, must respect family honour and
rights, individual lives, private property, religious convictions and
liberty. Article 43 of the Hague Regulations enacts the following rule
which is of fundamental importance: "The authority of the legitimate
Power having actually passed into the hands of the occupant, the latter
shall take all steps in his power to re-establish and insure, as far as
possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country."
[Sidenote: Rights of the Occupant regarding the Inhabitants.]
§ 170. An occupant having authority over the territory, the inhabitants
are under his sway and have to render obedience to his commands.
However, the power of the occupant over the inhabitants is not
unrestricted, for articles 23, 44, and 45 of the Hague Regulations
expressly enact, that he is prohibited from compelling the inhabitants
to take part in military operations against the legitimate Government,
to give information concerning the army of the other belligerent or
concerning the latter's means of defence, or to take an oath of
allegiance. On the other hand, he may compel them to take an
oath--sometimes called an "oath of neutrality"--to abstain from taking
up a hostile attitude against the occupant and willingly to submit to
his legitimate commands; and he may punish them severely for breaking
this oath. He may make requisitions and demand contributions[332] from
them, may compel them to render services as drivers, farriers, and the
like.[333] He may compel them to render services for the repair or the
erection of such roads, buildings, or other works as are necessary for
military operations.[334] He may also collect the ordinary taxes, dues,
and tolls imposed for the benefit of the State by the legitimate
Government. But in such case he is, according to article 48 of the Hague
Regulations, obliged to make the collection, as far as possible, in
accordance with the rules in existence and the assessment in force, and
he is, on the other hand, bound to defray the expenses of the
administration of the occupied territory on the same scale as that by
which the legitimate Government was bound.
[Footnote 332: See above, §§ 147 and 148.]
[Footnote 333: Formerly he could likewise compel them to render services
as guides, but this is now prohibited by the wording which article 44
received from the Second Peace Conference. It should, however, be
mentioned that Germany, Austria-Hungary, Japan, Montenegro, and Russia
have signed Convention IV. with a reservation against article 44, and
that in a war with these Powers the old rule is valid that inhabitants
may be compelled to serve as guides.]
[Footnote 334: See article 52 of the Hague regulations, and _Land
Warfare_, §§ 388-392.]
Whoever does not comply with his commands, or commits a prohibited act,
may be punished by him; but article 50 of the Hague Regulations
expressly enacts the rule that _no general penalty, pecuniary or
otherwise, may be inflicted on the population on account of the acts of
individuals for which it cannot be regarded as collectively
responsible_. It must, however, be specially observed that this rule
does not at all prevent[335] reprisals on the part of belligerents
occupying enemy territory. In case acts of illegitimate warfare are
committed by enemy individuals not belonging to the armed forces,
reprisals may be resorted to, although practically innocent individuals
are thereby punished for illegal acts for which they are neither legally
nor morally responsible--for instance, when a village is burned by way
of reprisal for a treacherous attack committed there on enemy soldiers
by some unknown individuals.[336] Nor does this new rule prevent an
occupant from taking hostages[337] in the interest of the safety of the
line of communication threatened by guerillas not belonging to the armed
forces, or for other purposes,[338] although the hostage must suffer for
acts or omissions of others for which he is neither legally nor morally
responsible.
[Footnote 335: See Holland, _War_, No. 110, and _Land Warfare_, §§
385-386. See also Zorn, pp. 239-243, where an important interpretation
of article 50 is discussed.]
[Footnote 336: See below, § 248.]
[Footnote 337: But this is a moot point; see below, § 259.]
[Footnote 338: Belligerents sometimes take hostages for the purpose of
securing compliance with demands for contributions, requisitions, and
the like. As long as such hostages obtain the same treatment as
prisoners of war, the practice does not seem to be illegal, although the
Hague Regulations do not mention and many publicists condemn it; see
above, § 116, p. 153, note 1, and below, § 259, p. 319, note 2.]
It must be particularly noted that in the treatment of the inhabitants
of enemy territory the occupant need not make any difference between
such as are subjects of the enemy and such as are subjects of neutral
States.[339]
[Footnote 339: See above,§ 88, and Frankenbach, _Die Rechtsstellung von
neutralen Staatsangehörigen in kriegführenden Staaten_ (1910), pp.
46-50.]
And it must be further observed that, according to British and American
views--see above, § 100_a_--article 23 (_h_) of the Hague Regulations
prohibits an occupant of enemy territory from declaring extinguished,
suspended, or unenforceable in a Court of Law the rights and the rights
of action of the inhabitants.
[Sidenote: Position of Government Officials and Municipal Functionaries
during Occupation.]
§ 171. As through occupation authority over the territory actually
passes into the hands of the occupant, he may for the time of his
occupation depose all Government officials and municipal functionaries
that have not withdrawn with the retreating enemy. On the other hand, he
must not compel them by force to carry on their functions during
occupation, if they refuse to do so, except where a military necessity
for the carrying on of a certain function arises. If they are willing to
serve under him, he may make them take an oath of obedience, but not of
allegiance, and he may not compel them to carry on their functions in
his name, but he may prevent them from doing so in the name of the
legitimate Government.[340] Since, according to article 43 of the Hague
Regulations, he has to secure public order and safety, he must
temporarily appoint other functionaries in case those of the legitimate
Government refuse to serve under him, or in case he deposes them for the
time of the occupation.
[Footnote 340: Many publicists assert that in case an occupant leaves
officials of the legitimate Government in office, he "must" pay them
their ordinary salaries. But I cannot see that there is a customary or
conventional rule in existence concerning this point. But it is in an
occupant's own interest to pay such salaries. and he will as a rule do
this. Only in the case of article 48 of the Hague Regulations is he
compelled to do it.]
[Sidenote: Position of Courts of Justice during Occupation.]
§ 172. The particular position which Courts of Justice have nowadays in
civilised countries, makes it necessary to discuss their position during
occupation.[341] There is no doubt that an occupant may suspend the
judges as well as other officials. However, if he does suspend them, he
must temporarily appoint others in their place. If they are willing to
serve under him, he must respect their independence according to the
laws of the country. Where it is necessary, he may set up military
Courts instead of the ordinary Courts. In case and in so far as he
admits the administration of justice by the ordinary Courts, he may
nevertheless, so far as it is necessary for military purposes or for the
maintenance of public order and safety, temporarily alter the laws,
especially the Criminal Law, on the basis of which justice is
administered, as well as the laws regarding procedure. He has, however,
no right to constrain the Courts to pronounce their verdicts in his
name, although he need not allow them to pronounce verdicts in the name
of the legitimate Government. A case that happened during the
Franco-German War may serve as an illustration. In September 1870, after
the fall of the Emperor Napoleon and the proclamation of the French
Republic, the Court of Appeal at Nancy pronounced its verdicts under the
formula "In the name of the French Government and People." Since Germany
had not yet recognised the French Republic, the Germans ordered the
Court to use the formula "In the name of the High German Powers
occupying Alsace and Lorraine," but gave the Court to understand that,
if the Court objected to this formula, they were disposed to admit
another, and were even ready to admit the formula "In the name of the
Emperor of the French," as the Emperor had not abdicated. The Court,
however, refused to pronounce its verdict otherwise than "In the name of
the French Government and People," and, consequently, suspended its
sittings. There can be no doubt that the Germans had no right to order
the formula, "In the name of the High German Powers, &c.," to be used,
but they were certainly not obliged to admit the formula preferred by
the Court; and the fact that they were disposed to admit another formula
than that at first ordered ought to have made the Court accept a
compromise. Bluntschli (§ 547) correctly maintains that the most natural
solution of the difficulty would have been to use the neutral formula
"In the name of the Law."
[Footnote 341: See Petit, _L'Administration de la justice en territoire
occupé_ (1900).]
CHAPTER IV
WARFARE ON SEA
I
ON SEA WARFARE IN GENERAL
Hall, § 147--Lawrence, §§ 193-194--Westlake, II. pp.
120-132--Maine, pp. 117-122--Manning, pp. 183-184--Phillimore,
III. § 347--Twiss, II. § 73--Halleck, II. pp. 80-82--Taylor, §
547--Wharton, III. §§ 342-345--Wheaton, § 355--Bluntschli, §§
665-667--Heffter, § 139--Geffcken in Holtzendorff, IV. pp.
547-548, 571-581--Ullmann, §§ 187-188--Bonfils, Nos. 1268,
1294-1338--Despagnet, Nos. 647-649--Pradier-Fodéré, VIII. Nos.
3066-3090, 3107-3108--Nys, III. pp. 433-466--Rivier, II. pp.
329-335--Calvo, IV. §§ 2123, 2379-2410--Fiore, III. Nos.
1399-1413--Pillet, pp. 118-120--Perels, § 36--Testa, pp.
147-157--Boeck, Nos. 3-153--Lawrence, _Essays_, pp.
278-306--Westlake, _Chapters_, pp. 245-253--Ortolan, I. pp.
35-50--Hautefeuille, I. pp. 161-167--Gessner, Westlake, Lorimer,
Rolin-Jaequemyns, Laveleye, Albéric Rolin, and Pierantoni in
_R.I._ VII. (1875), pp. 256-272 and 558-656--Twiss, in _R.I._ XVI.
(1884), pp. 113-137--See also the authors quoted below, § 178, p.
223, note 1.
[Sidenote: Aims and Means of Sea Warfare.]
§ 173. The purpose of war is the same in the case of warfare on land or
on sea--namely, the overpowering of the enemy. But sea warfare serves
this purpose by attempting the accomplishment of aims different from
those of land warfare. Whereas the aims of land warfare are defeat of
the enemy army and occupation of the enemy territory, the aims[342] of
sea warfare are: defeat of the enemy navy; annihilation of the enemy
merchant fleet; destruction of enemy coast fortifications, and of
maritime as well as military establishments on the enemy coast; cutting
off intercourse with the enemy coast; prevention of carriage of
contraband and of rendering unneutral service to the enemy; all kinds
of support to military operations on land, such as protection of a
landing of troops on the enemy coast; and lastly, defence of the home
coast and protection to the home merchant fleet.[343] The means by which
belligerents in sea warfare endeavour to realise these aims are: attack
on and seizure of enemy vessels, violence against enemy individuals,
appropriation and destruction of enemy vessels and goods carried by
them, requisitions and contributions, bombardment of the enemy coast,
cutting of submarine cables, blockade, espionage, treason, ruses,
capture of neutral vessels carrying contraband or rendering unneutral
service.
[Footnote 342: Aims of sea warfare must not be confounded with ends of
war; see above, § 66.]
[Footnote 343: Article 1 of the U.S. Naval War Code enumerates the
following as aims of sea warfare:--The capture or destruction of the
military and naval forces of the enemy, of his fortifications, arsenals,
dry docks, and dockyards, of his various military and naval
establishments, and of his maritime commerce; to prevent his procuring
war material from neutral sources; to aid and assist military operations
on land; to protect and defend the national territory, property, and
sea-borne commerce.]
[Sidenote: Lawful and Unlawful Practices of Sea Warfare.]
§ 174. As regards means of sea warfare, just as regards means of land
warfare, it must be emphasised that not every practice capable of
injuring the enemy in offence and defence is lawful. Although no
regulations regarding the laws of war on sea have as yet been enacted by
a general law-making treaty as a pendant to the Hague Regulations, there
are treaties concerning special points--such as submarine mines,
bombardment by naval forces, and others--and customary rules of
International Law in existence which regulate the matter. Be that as it
may, the rules concerning sea warfare are in many points identical with,
but in many respects differ from, the rules in force regarding warfare
on land. Therefore, the means of sea warfare must be discussed
separately in the following sections. But blockade and capture of
vessels carrying contraband and rendering unneutral service to the
enemy, although they are means of warfare against an enemy, are of such
importance as regards neutral trade that they will be discussed below in
Part III. §§ 368-413.
[Sidenote: Objects of the Means of Sea Warfare.]
§ 175. Whereas the objects against which means of land warfare may be
directed are innumerable, the number of the objects against which means
of sea warfare are directed is very limited, comprising six objects
only. The chief object is enemy vessels, whether public or private; the
next, enemy individuals, with distinction between those taking part in
fighting and others; the third, enemy goods on enemy vessels; the
fourth, the enemy coast; the fifth and sixth, neutral vessels attempting
to break blockade, carrying contraband, or rendering unneutral service
to the enemy.
[Sidenote: Development of International Law regarding Private Property
on Sea.]
§ 176. It is evident that in times when a belligerent could destroy all
public and private enemy property he was able to seize, no special rule
existed regarding private enemy ships and private enemy property carried
by them on the sea. But the practice of sea warfare frequently went
beyond the limits of even so wide a right, treating neutral goods on
enemy ships as enemy goods, and treating neutral ships carrying enemy
goods as enemy ships. It was not until the time of the _Consolato del
Mare_ in the fourteenth century that a set of clear and definite rules
with regard to private enemy vessels and private enemy property on sea
in contradistinction to neutral ships and neutral goods was adopted.
According to this famous collection of maritime usages observed by the
communities of the Mediterranean, there is no doubt that a belligerent
may seize and appropriate all private enemy ships and goods. But a
distinction is made in case of either ship or goods being neutral.
Although an enemy ship may always be appropriated, neutral goods thereon
have to be restored to the neutral owners. On the other hand, enemy
goods on neutral ships may be appropriated, but the neutral ships
carrying such goods must be restored to their owners. However, these
rules of the _Consolato del Mare_ were not at all generally recognised,
although they were adopted by several treaties between single States
during the fourteenth and fifteenth centuries. Neither the communities
belonging to the Hanseatic League, nor the Netherlands and Spain during
the War of Independence, nor England and Spain during their wars in the
sixteenth century, adopted these rules. And France expressly enacted by
Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods
on enemy ships as well as neutral ships carrying enemy goods should be
appropriated.[344] Although France adopted in 1650 the rules of the
_Consolato del Mare_, Louis XIV. dropped them again by the Ordinance of
1681 and re-enacted that neutral goods on enemy ships and neutral ships
carrying enemy goods should be appropriated. Spain enacted the same
rules in 1718. The Netherlands, in contradistinction to the _Consolato
del Mare_, endeavoured by a number of treaties to foster the principle
that the flag covers the goods, so that enemy goods on neutral vessels
were exempt from, whereas neutral goods on enemy vessels were subject
to, appropriation. On the other hand, throughout the eighteenth and
during the nineteenth century down to the beginning of the Crimean War
in 1854, England adhered to the rules of the _Consolato del Mare_. Thus,
no generally accepted rules of International Law regarding private
property on sea were in existence.[345] Matters were made worse by
privateering, which was generally recognised as lawful, and by the fact
that belligerents frequently declared a coast blockaded without having a
sufficient number of men-of-war on the spot to make the blockade
effective. It was not until the Declaration of Paris in 1856 that
general rules of International Law regarding private property on sea
came into existence.
[Footnote 344: _Robe d'ennemy confisque celle d'amy. Confiscantur ex
navibus res, ex rebus naves._]
[Footnote 345: Boeck, Nos. 3-103, and Geffcken in Holtzendorff, IV. pp.
572-578, give excellent summaries of the facts.]
[Sidenote: Declaration of Paris.]
§ 177. Things began to undergo a change with the outbreak of the Crimean
War in 1854, when all the belligerents proclaimed that they would not
issue Letters of Marque, and when, further, Great Britain declared that
she would not seize enemy goods on neutral vessels, and when, thirdly,
France declared that she would not appropriate neutral goods on enemy
vessels. Although this alteration of attitude on the part of the
belligerents was originally intended for the Crimean War only and
exceptionally, it led after the conclusion of peace in 1856 to the
famous and epoch-making Declaration of Paris,[346] which enacted the
four rules--(1) that privateering is abolished, (2) that the neutral
flag covers enemy goods[347] with the exception of contraband of war,
(3) that neutral goods, contraband of war excepted, are not liable to
capture under the enemy flag, (4) that blockades, in order to be
binding, must be effective, which means maintained by a force sufficient
really to prevent access to the coast of the enemy. Since, with the
exception of a few States such as the United States of America,
Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of
Nations are now parties to the Declaration of Paris, it may well be
maintained that the rules quoted are general International Law, the more
so as the non-signatory Powers have hitherto in practice always acted
in accordance with those rules.[348]
[Footnote 346: See Martens, _N.R.G._ XV. p. 767, and above, vol. I. §
559.]
[Footnote 347: It has been asserted--see, for instance, Rivier, II. p.
429--that the neutral flag covers only private, not public, enemy
property, and therefore that such goods on neutral vessels as belong to
the State of the enemy may be seized and appropriated. This opinion
would seem, however, to be untenable in face of the fact that the
Declaration of Paris speaks of _marchandise neutre_ without any
qualification, only excepting contraband goods, thus protecting the
whole of the cargo under the neutral flag, contraband excepted. See
below, § 319, p. 385, note 3.]
[Footnote 348: That there is an agitation for the abolition of the
Declaration of Paris has been mentioned above, § 83, p. 100, note 3.]
[Sidenote: The Principle of Appropriation of Private Enemy Vessels and
Enemy Goods thereon.]
§ 178. The Declaration of Paris did not touch upon the old rule that
private enemy vessels and private enemy goods thereon may be seized and
appropriated, and this rule is, therefore, as valid as ever, although
there is much agitation for its abolition. In 1785 Prussia and the
United States of America had already stipulated by article 23 of their
Treaty of Friendship[349] that in case of war between the parties each
other's merchantmen shall not be seized and appropriated. Again, in 1871
the United States and Italy, by article 12 of their Treaty of
Commerce,[350] stipulated that in case of war between the parties each
other's merchantmen, with the exception of those carrying contraband of
war or attempting to break a blockade, shall not be seized and
appropriated. In 1823 the United States had already made the proposal to
Great Britain, France, and Russia[351] for a treaty abrogating the rule
that enemy merchantmen and enemy goods thereon may be appropriated; but
Russia alone accepted the proposal under the condition that all other
naval Powers should consent. Again, in 1856,[352] on the occasion of the
Declaration of Paris, the United States endeavoured to obtain the
victory of the principle that enemy merchantmen shall not be
appropriated, making it a condition of their accession to the
Declaration of Paris that this principle should be recognised. But again
the attempt failed, owing to the opposition of Great Britain.
[Footnote 349: See Martens, _R._ IV. p. 37. Perels (p. 198) maintains
that this article has not been adopted by the Treaty of Commerce between
Prussia and the United States of May 1, 1828; but this statement is
incorrect, for article 12 of this treaty--see Martens, _N.R._ VII. p.
615--adopts it expressly.]
[Footnote 350: See Martens, _N.R.G._ 2nd Ser. I. p. 57.]
[Footnote 351: See Wharton, III. § 342, pp. 260-261, and Moore, VII. §
1198, p. 465.]
[Footnote 352: See Wharton, III. § 342, pp. 270-287, and Moore, VII. §
1198, p. 466.]
At the outbreak of war in 1866, Prussia and Austria expressly declared
that they would not seize and appropriate each other's merchantmen. At
the outbreak of the Franco-German War in 1870, Germany declared French
merchantmen exempt from capture, but she changed her attitude when
France did not act upon the same lines. It should also be mentioned that
already in 1865 Italy, by article 211 of her Marine Code, enacted that,
in case of war with any other State, enemy merchantmen not carrying
contraband of war or breaking a blockade shall not be seized and
appropriated, provided reciprocity be granted. And it should further be
mentioned that the United States of America made attempts[353] in vain
to secure immunity from capture to enemy merchantmen and goods on sea at
the First as well as at the Second Hague Peace Conference.
[Footnote 353: See Holls, _The Peace Conference at the Hague_, pp.
306-321, and Scott, _Conferences_, pp. 699-707.]
It cannot be denied that the constant agitation, since the middle of the
eighteenth century, in favour of the abolition of the rule that private
enemy vessels and goods may be captured on the High Seas, might, during
the second half of the nineteenth century, have met with success but for
the decided opposition of Great Britain. Public opinion in Great Britain
was not, and is not, prepared to consent to the abolition of this rule.
And there is no doubt that the abolition of the rule would involve a
certain amount of danger to a country like Great Britain whose position
and power depend chiefly upon her navy. The possibility of annihilating
an enemy's commerce by annihilating his merchant fleet is a powerful
weapon in the hands of a great naval Power. Moreover, if enemy
merchantmen are not captured, they can be fitted out as cruisers, or at
least be made use of for the transport of troops, munitions, and
provisions. Have not several maritime States made arrangements with
their steamship companies to secure the building of their Transatlantic
liners according to plans which make these merchantmen easily
convertible into men-of-war?
The argument that it is unjust that private enemy citizens should suffer
through having their property seized has no weight in face of the
probability that fear of the annihilation of its merchant fleet in case
of war may well deter a State intending to go to war from doing so. It
is a matter for politicians, not for jurists, to decide whether Great
Britain must in the interest of self-preservation oppose the abolition
of the rule that sea-borne private enemy property may be confiscated.
However this may be, since the end of the nineteenth century it has not
been the attitude of Great Britain alone which stands in the way of the
abolition of the rule. Since the growth of navies among continental
Powers, these Powers have learnt to appreciate the value of the rule in
war, and the outcry against the capture of merchantmen has become less
loud. To-day, it may perhaps be said that, even if Great Britain were to
propose the abolition of the rule, it is probable that a greater number
of the maritime States would refuse to accede. For it should be noted
that at the Second Peace Conference, France, Russia, Japan, Spain,
Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted
against the abolition of the rule. And there is noticeable a slow, but
constant, increase in the number of continental publicists[354] who
oppose the abolition of the once so much objected to practice of
capturing enemy merchantmen.
[Footnote 354: See, for instance, Perels, § 36, pp. 195-198; Röpcke,
_Das Seebeuterecht_ (1904), pp. 36-47; Dupuis, Nos. 29-31; Pillet, p.
119; Giordana, _La proprieta privata nelle guerre maritime, etc._
(1907); Niemeyer, _Prinzipien des Seekriegsrechts_ (1909); Boidin, pp.
144-167. On the other hand, the Institute of International Law has
several times voted in favour of the abolition of the rule; see _Tableau
Général de l'Institut de droit International_ (1893), pp. 190-193. The
literature concerning the question of confiscation of private enemy
property on sea is abundant. The following authors, besides those
already quoted above at the commencement of § 173, may be
mentioned:--Upton, _The Law of Nations affecting Commerce during War_
(1863); Cauchy, _Du respect de la propriété privée dans la guerre
maritime_ (1866); Vidari, _Del rispetto della proprietà privata fra gli
stati in guerra_ (1867); Gessner, _Zur Reform des Kriegsseerechts_
(1875); Klobukowski, _Die Seebeute oder das feindliche Privateigenthum
zur See_ (1877); Bluntschli, _Das Beuterecht im Kriege und das
Seebeuterecht insbesondere_ (1878); Boeck, _De la propriété privée
ennemie sous pavillon ennemi_ (1882); Dupuis, _La guerre maritime et les
doctrines anglaises_ (1899); Leroy, _La guerre maritime_ (1900); Röpcke,
_Das Seebeuterecht_ (1904); Hirst, _Commerce and Property in Naval
Warfare: A Letter of the Lord Chancellor_ (1906); Hamman, _Der Streit um
das Seebeuterecht_ (1907); Wehberg, _Das Beuterecht im Land und
Seekrieg_ (1909); Cohen, _The Immunity of Enemy's Property from Capture
at Sea_ (1909); Macdonell, _Some plain Reasons for Immunity from Capture
of Private Property at Sea_ (1910). See also the literature quoted by
Bonfils, No. 1281, Pradier-Fodéré, VIII. Nos. 3070-3090, and Boeck, Nos.
382-572, where the arguments of the authors against and in favour of the
present practice are discussed.]
[Sidenote: Impending Codification of Law of Sea Warfare.]
§ 179. Be that as it may, the time is not very far distant when the
Powers will perforce come to an agreement on this as on other points of
sea warfare, in a code of regulations regarding sea warfare as a pendant
to the Hague Regulations regarding warfare on land. An initiative step
was taken by the United States of America by her Naval War Code[355]
published in 1900, although she withdrew[356] the Code in 1904.
Meanwhile, the Second Peace Conference has produced a number of
Conventions dealing with some parts of Sea Warfare, namely: (1) the
Convention (VI.) concerning the status of enemy merchantmen at the
outbreak of hostilities; (2) the Convention (VII.) concerning the
conversion of merchantmen into warships; (3) the Convention (VIII.)
concerning the laying of automatic submarine contact mines; (4) the
Convention (IX.) concerning the bombardment by naval forces; (5) the
Convention (XI.) concerning restrictions on the exercise of the right of
capture in maritime war.
[Footnote 355: See above, vol. I. § 32.]
[Footnote 356: See above, § 68, p. 83, note 1.]
II
ATTACK AND SEIZURE OF ENEMY VESSELS
Hall, §§ 138 and 148--Lawrence, § 182--Westlake, II. pp. 133-140,
307-331--Phillimore, III. § 347--Twiss, II. § 73--Halleck, II. pp.
105-108--Taylor, §§ 545-546--Moore, VII. §§ 1175-1183,
&c.,--Walker, § 50, p. 147--Wharton, III. § 345--Bluntschli, §§
664-670--Heffter, §§ 137-139--Ullmann, § 188--Bonfils, Nos.
1269-1271, 1350-1354, 1398-1400--Despagnet, Nos. 650-659--Rivier,
§ 66--Nys, III. pp. 467-478--Pradier-Fodéré, VIII. Nos. 3155-3165,
3176-3178--Calvo, IV. §§ 2368-2378--Fiore, III. Nos. 1414-1424,
and Code, Nos. 1643-1649--Pillet, pp. 120-128--Perels, §
35--Testa, pp. 155-157--Lawrence, _War_, pp. 48-55,
93-111--Ortolan, II. pp. 31-34--Boeck, Nos. 190-208--Dupuis, Nos.
150-158, and _Guerre_, Nos. 74-112--U.S. Naval War Code, articles
13-16--Bernsten, §§ 7-8.
[Sidenote: Importance of Attack and Seizure of Enemy Vessels.]
§ 180. Whereas in land warfare all sorts of violence against enemy
individuals are the chief means, in sea warfare attack and seizure of
enemy vessels are the most important means. For together with enemy
vessels, a belligerent takes possession of the enemy individuals and
enemy goods thereon, so that he can appropriate vessels and goods, as
well as detain those enemy individuals who belong to the enemy armed
forces as prisoners of war. For this reason, and compared with attack
and seizure of enemy vessels, violence against enemy persons and the
other means of sea warfare play only a secondary part, although such
means are certainly not unimportant. For a weak naval Power can even
restrict the operations of her fleet to mere coast defence, and thus
totally refrain from directly attacking and seizing enemy vessels.
[Sidenote: Attack when legitimate.]
§ 181. All enemy men-of-war and other public vessels, which are met by a
belligerent's men-of-war on the High Seas or within the territorial
waters of either belligerent,[357] may at once be attacked, and the
attacked vessel may, of course, defend herself by a counter-attack.
Enemy merchantmen may be attacked only if they refuse to submit to visit
after having been duly signalled to do so. And no duty exists for an
enemy merchantman to submit to visit; on the contrary, she may refuse
it, and defend herself against an attack. But only a man-of-war is
competent to attack men-of-war as well as merchantmen, provided the war
takes place between parties to the Declaration of Paris, so that
privateering is prohibited. Any merchantman of a belligerent attacking a
public or private vessel of the enemy would be considered and treated as
a pirate, and the members of the crew would be liable to be treated as
war criminals[358] to the same extent as private individuals committing
hostilities in land warfare. However, if attacked by an enemy vessel, a
merchantman is competent to deliver a counter-attack and need not
discontinue her attack because the vessel which opened hostilities takes
to flight, but may pursue and seize her.
[Footnote 357: But not, of course, in territorial waters of neutral
States; see the _De Fortuyn_ (1760), Burrell 175.]
[Footnote 358: See above, § 85, and below, § 254. Should a merchantman,
legitimately--after having been herself attacked--or illegitimately,
attack an enemy vessel, and succeed in capturing her, the prize, on
condemnation, becomes _droits_ of Admiralty and, therefore, the property
of the British Government; see article 39 of the Naval Prize Act, 1864,
and article 44 of the Naval Prize Bill introduced in 1911.]
It must be specially mentioned that an attack upon enemy vessels on the
sea may be made by forces on the shore. For instance, this is done when
coast batteries fire upon an enemy man-of-war within reach of their
guns. Enemy merchantmen, however, may not be attacked in this way, for
they may only be attacked by men-of-war after having been signalled in
vain to submit to visit.
[Sidenote: Attack how effected.]
§ 182. One mode of attack which was in use at the time of sailing ships,
namely, boarding and fighting the crew, which can be described as a
parallel to assault in land warfare, is no longer used, but if an
instance occurred, it would be perfectly lawful. Attack is nowadays
effected by cannonade, torpedoes, and, if opportunity arises, by
ramming; and nothing forbids an attack on enemy vessels by launching
projectiles and explosives from air-vessels, provided the belligerents
are not parties to the Declaration--see above, § 114--which prohibits
such attacks. As a rule attacks on merchantmen will be made by cannonade
only, as the attacking vessel aims at seizing her on account of her
value. But, in case the attacked vessel not only takes to flight, but
defends herself by a counter-attack, all modes of attack are lawful
against her, just as she herself is justified in applying all modes of
attack by way of defence.
As regards attack by torpedoes, article 1 No. 3 of Convention VIII. of
the Second Peace Conference enacts that it is forbidden to use torpedoes
which do not become harmless if they miss their mark.
[Sidenote: Submarine Contact Mines.]
§ 182_a_. A new mode of attack which requires special attention[359] is
that by means of floating mechanical, in contradistinction to so-called
electro-contact, mines. The latter need not specially be discussed,
because they are connected with a battery on land, can naturally only be
laid within territorial waters, and present no danger to neutral
shipping except on the spot where they are laid. But floating mechanical
mines can be dropped as well in the Open Sea as in territorial waters;
they can, moreover, drift away to any distance from the spot where they
were dropped and thus become a great danger to navigation in general.
Mechanical mines were for the first time used, and by both parties, in
the Russo-Japanese War during the blockade of Port Arthur in 1904, and
the question of their admissibility was at once raised in the press of
all neutral countries, the danger to neutral shipping being obvious. The
Second Peace Conference took the matter up and, in spite of the opposing
views of the Powers, was able to produce the Convention (VIII.)
concerning the laying of automatic submarine contact mines. This
Convention comprises thirteen articles and was signed, although by some
only with reservations, by all the Powers represented at the Conference,
except China, Montenegro, Nicaragua, Portugal, Russia, Spain, and
Sweden. Most of the signatory States have already ratified, and
Nicaragua has since acceded. The more important stipulations of this
Convention are the following:--
(1) Belligerents[360] are forbidden to lay _unanchored_ automatic
contact mines, unless they be so constructed as to become harmless one
hour at most after those who laid them have lost control over them, and
it is forbidden to lay _anchored_ automatic contact mines which do not
become harmless as soon as they have broken loose from their moorings
(article 1).
(2) It is forbidden to lay automatic contact mines off the coasts and
ports of the enemy, with the sole object of intercepting commercial
navigation (article 2).[361]
(3) When anchored automatic contact mines are employed, every possible
precaution must be taken for the security of peaceful navigation. The
belligerents must provide, as far as possible, for these mines becoming
harmless after a limited time has elapsed, and, where the mines cease to
be under observation, to notify the danger zones as soon as military
exigencies permit, by notice to mariners, which must also be
communicated to the Governments through the diplomatic channel (article
3).
(4) At the close of the war, each Power must remove the mines laid by
it. As regards anchored automatic contact mines laid by one of the
belligerents off the coasts of the other, their position must be
notified to the other party by the Power which laid them, and each Power
must proceed with the least possible delay to remove the mines in its
own waters (article 5).
(5) The Convention remains in force for seven years, but, unless
denounced, it continues in force afterwards (article 11). According to
article 12, however, the contracting Powers agree to reopen the question
of the employment of automatic contact mines after six and a half years
unless the Third Peace Conference has already taken up and settled the
matter.
[Footnote 359: See Lawrence, _War_, pp. 93-111; Wetzstein, _Die
Seeminenfrage im Völkerrecht_ (1909); Rocholl, _Die Frage der Minen im
Seekrieg_ (1910); Barclay, pp. 59 and 158; Lémonon, pp. 472-502;
Higgins, pp. 328-345; Boidin, pp. 216-235; Dupuis, _Guerre_, Nos.
331-358; Scott, _Conferences_, pp. 576-587; Martitz in the _Report of
the 23rd Conference (1906) of the International Law Association_, pp.
47-74; Stockton in _A.J._ II. (1908), pp. 276-284.]
[Footnote 360: As regards neutrals, see below, § 363_a_.]
[Footnote 361: France and Germany have signed with reservations against
article 2.]
There is no doubt that the stipulations of Convention VIII. are totally
inadequate to secure the safety of neutral shipping, and it is for this
reason that Great Britain added the following reservation in signing the
Convention:--"In placing their signatures to this Convention the British
plenipotentiaries declare that the mere fact that the said Convention
does not prohibit a particular act or proceeding must not be held to
debar His Britannic Majesty's Government from contesting its
legitimacy." It is to be hoped that the Third Peace Conference will
produce a more satisfactory settlement of the problem. The Institute of
International Law studied the matter at its meetings at Paris in 1910
and at Madrid in 1911, and produced a _Règlementation_[362]
_internationale de l'usage des mines sous-marines et torpilles_,
comprising nine articles, of which the more important are the
following:--
(1) It is forbidden to place anchored or unanchored automatic mines in
the Open Sea (the question of the laying of electric contact mines in
the Open Sea being reserved for future consideration).
(2) Belligerents may lay mines in their own and in the enemy's
territorial waters, but it is forbidden (_a_) to lay unanchored
automatic contact mines which do not become harmless one hour at most
after those who laid them have lost control over them; (_b_) to lay
anchored automatic contact mines which do not become harmless as soon as
they have broken loose from their moorings.
(3) A belligerent is only allowed to lay mines off the coasts and ports
of the enemy for naval and military purposes, he is not allowed to lay
them there in order to establish or maintain a commercial blockade.
(4) If mines are laid, all precautions must be taken for the safety of
peaceful navigation, and belligerents must, in especial, provide that
mines become harmless after a limited time has elapsed. In case mines
cease to be under observation the belligerents must, as soon as military
exigencies permit, notify the danger zones to mariners and also to the
Governments through the diplomatic channel.
(5) The question as to the laying of mines in straits is reserved for
future consideration.
(6) At the end of the war each Power must remove the mines laid by it.
As regards anchored automatic contact mines laid by one of the
belligerents off the coasts of the other, their position must be
notified to the other party by the Power which laid them, and each Power
must proceed with the least possible delay to remove the mines in its
own waters. The Power whose duty it is to remove the mines after the war
must make known the date at which the removal of the mines is complete.
(7) A violation of these rules involves responsibility on the part of
the guilty State. The State which has laid the mines is presumed to be
guilty unless the contrary is proved, and an action may be brought
against the guilty State, even by individuals who have suffered damage,
before the competent International Tribunal.
[Footnote 362: See _Annuaire_, XXIV. (1911), p. 301.]
[Sidenote: Duty of giving Quarter.]
§ 183. As soon as an attacked or counter-attacked vessel hauls down her
flag and, therefore, signals that she is ready to surrender, she must be
given quarter and seized without further firing. To continue an attack
although she is ready to surrender, and to sink her and her crew, would
constitute a violation of customary International Law, and would only as
an exception be admissible in case of imperative necessity or of
reprisals.
[Sidenote: Seizure.]
§ 184. Seizure is effected by securing possession of the vessel through
the captor sending an officer and some of his own crew on board the
captured vessel. But if for any reason this is impracticable, the captor
orders the captured vessel to lower her flag and to steer according to
his orders.
[Sidenote: Effect of Seizure.]
§ 185. The effect of seizure is different with regard to private enemy
vessels, on the one hand, and, on the other, to public vessels.
Seizure of _private_ enemy vessels may be described as a parallel to
occupation of enemy territory in land warfare. Since the vessel and the
individuals and goods thereon are actually placed under the captor's
authority, her officers and crew, and any private individuals on board,
are for the time being submitted to the discipline of the captor, just
as private individuals on occupied enemy territory are submitted to the
authority of the occupant.[363] Seizure of private enemy vessels does
not, however, vest the property finally in the hands of the
belligerent[364] whose forces effected the capture. The prize has to be
brought before a Prize Court, and it is the latter's confirmation of
the capture through adjudication of the prize which makes the
appropriation by the capturing belligerent final.[365]
[Footnote 363: Concerning the ultimate fate of the crew, see above, §
85.]
[Footnote 364: It is asserted that a captured enemy merchantman may at
once be converted by the captor into a man-of-war, but the cases of the
_Ceylon_ (1811) and the _Georgina_ (1814), 1 Dodson 105 and 397, which
are quoted in favour of such a practice, are not decisive. See Higgins,
_War and the Private Citizen_ (1912), pp. 138-142.]
[Footnote 365: See below, § 192.]
On the other hand, the effect of seizure of _public_ enemy vessels is
their immediate and final appropriation. They may be either taken into a
port or at once destroyed. All individuals on board become prisoners of
war, although, if perchance there should be on board a private enemy
individual of no importance, he would probably not be kept for long in
captivity, but liberated in due time.
As regards goods on captured public enemy vessels, there is no doubt
that the effect of seizure is the immediate appropriation of such goods
on the vessels concerned as are enemy property, and these goods may
therefore be destroyed at once, if desirable. Should, however, neutral
goods be on board a captured enemy public vessel, it is a moot point
whether or no they share the fate of the captured ship. According to
British practice they do, but according to American practice they do
not.[366]
[Footnote 366: See, on the one hand, the _Fanny_ (1814), 1 Dodson, 443,
and, on the other, the _Nereide_ (1815), 9 Cranch, 388. See also below,
§ 424, p. 542 note 2.]
[Sidenote: Immunity of Vessels charged with Religious, Scientific, or
Philanthropic Mission.]
§ 186. Enemy vessels engaged in scientific discovery and exploration
were, according to a general international usage in existence before the
Second Peace Conference of 1907, granted immunity from attack and
seizure in so far and so long as they themselves abstained from
hostilities. The usage grew up in the eighteenth century. In 1766, the
French explorer Bougainville, who started from St. Malo with the vessels
_La Boudeuse_ and _L'Étoile_ on a voyage round the world, was furnished
by the British Government with safe-conducts. In 1776, Captain Cook's
vessels _Resolution_ and _Discovery_, sailing from Plymouth for the
purpose of exploring the Pacific Ocean, were declared exempt from
attack and seizure on the part of French cruisers by the French
Government. Again, the French Count Lapérouse, who started on a voyage
of exploration in 1785 with the vessels _Astrolabe_ and _Boussole_, was
secured immunity from attack and seizure. During the nineteenth century
this usage became quite general, and had almost ripened into a custom;
examples are the Austrian cruiser _Novara_ (1859) and the Swedish
cruiser _Vega_ (1878). No immunity, however, was granted to vessels
charged with religious or philanthropic missions. A remarkable case
occurred during the Franco-German war. In June, 1871, the _Palme_, a
vessel belonging to the Missionary Society of Basle, was captured by a
French man-of-war, and condemned by the Prize Court of Bordeaux. The
owners appealed and the French Conseil d'État set the vessel free, not
because the capture was not justified but because equity demanded that
the fact that Swiss subjects owning sea-going vessels were obliged to
have them sailing under the flag of another State, should be taken into
consideration.[367]
[Footnote 367: See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck,
No. 199.]
The Second Peace Conference embodied the previous usage concerning
immunity of vessels of discovery and exploration in a written rule and
extended the immunity to vessels with a religious or philanthropic
mission, for article 4 of Convention XI. enacts that vessels charged
with religious, scientific, or philanthropic missions are exempt from
capture.
It must be specially observed that it matters not whether the vessel
concerned is a private or a public vessel.[368]
[Footnote 368: See U.S. Naval War Code, article 13. The matter is
discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning
the case of the English explorer Flinders, who sailed with the vessel
_Investigator_ from England, but exchanged her for the _Cumberland_,
which was seized in 1803 by the French at Port Louis, in Mauritius, as
she was not the vessel to which a safe-conduct was given, see Lawrence,
§ 185.]
[Sidenote: Immunity of Fishing-boats and small boats employed in local
Trade.]
§ 187. Coast fishing-boats, in contradistinction to boats engaged in
deep-sea fisheries, were, according to a general, but not universal,
custom in existence during the nineteenth century, granted immunity from
attack and seizure so long and in so far as they were unarmed and were
innocently employed in catching and bringing in fish.[369] As early as
the sixteenth century treaties were concluded between single States
stipulating such immunity to each other's fishing-boats for the time of
war. But throughout the seventeenth and eighteenth centuries there were
instances of a contrary practice, and Lord Stowell refused[370] to
recognise in strict law any such exemption, although he recognised a
rule of comity to that extent. Great Britain has always taken the
standpoint that any immunity granted by her to fishing-boats was a
relaxation[371] of strict right in the interest of humanity, but
revocable at any moment, and that her cruisers were justified in seizing
enemy fishing-boats unless prevented therefrom by special instructions
on the part of the Admiralty.[372] But at the Second Peace Conference
she altered her attitude, and agreed to the immunity not only of fishing
vessels, but also of small boats employed in local trade. Article 3 of
Convention XI. enacts, therefore, that vessels employed exclusively in
coast fisheries, and small boats employed in local trade, are, together
with appliances, rigging, tackle, and cargo, exempt from capture.
[Footnote 369: The _Paquette Habana_ (1899), 175, United States, 677.
See U.S. Naval War Code, article 14; Japanese Prize Law, article 3 (1).]
[Footnote 370: The _Young Jacob and Joanna_ (1798), 1 C. Rob, 20.]
[Footnote 371: See Hall, § 148.]
[Footnote 372: See Holland, _Prize Law_, § 36.]
It must be specially observed that boats engaged in deep-sea fisheries
and large boats engaged in local trade do not enjoy the privilege of
immunity from capture, and that the fishing vessels and small boats
employed in local trade lose that privilege in case they take any part
whatever in hostilities. And article 3 expressly stipulates that
belligerents must not take advantage of the harmless character of the
said boats in order to use them for military purposes while preserving
their peaceful appearance.
[Sidenote: Immunity of Merchantmen at the Outbreak of War on their
Voyage to and from a Belligerent's Port.]
§ 188. Several times at the outbreak of war during the nineteenth
century belligerents decreed that such enemy merchantmen as were on
their voyage to one of the former's ports at the outbreak of war, should
not be attacked and seized during the period of their voyage to and from
such port. Thus, at the outbreak of the Crimean War, Great Britain and
France decreed such immunity for Russian vessels, Germany did the same
with regard to French vessels in 1870,[373] Russia with regard to
Turkish vessels in 1877, the United States with regard to Spanish
vessels in 1898, Russia and Japan with regard to each other's vessels in
1904. But there is no rule of International Law which compels a
belligerent to grant such days of grace, and it is probable that in
future wars days of grace will not be granted. The reason is that the
steamboats of many countries are now built, according to an arrangement
with the Government of their home State, from special designs which make
them easily convertible into cruisers, and that a belligerent fleet
cannot nowadays remain effective for long without being accompanied by a
train of transport-vessels, colliers, repairing-vessels, and the
like.[374]
[Footnote 373: See, however, above, § 178, p. 222.]
[Footnote 374: This point is ably argued by Lawrence, _War_, pp 54-55.]
In case, however, merchantmen, other than those constructed on special
lines in order to make them easily convertible into cruisers, are, at
the outbreak of war, on their voyage to an enemy port and are ignorant
of the outbreak of hostilities, article 3 of Convention VI.[375] of the
Second Peace Conference must find application. They may not, therefore,
be confiscated, but may only be captured on condition that they shall
be restored after the conclusion of peace, or that indemnities shall be
paid for them if they have been requisitioned or destroyed.
[Footnote 375: See above, § 102_a_, Nos. 3 and 4.]
[Sidenote: Vessels in Distress.]
§ 189. Instances have occurred when enemy vessels which were forced by
stress of weather to seek refuge in a belligerent's harbour were granted
exemption from seizure.[376] Thus, when in 1746, during war with Spain,
the _Elisabeth_, a British man-of-war, was forced to take refuge in the
port of Havanna, she was not seized, but was offered facility for
repairing damages, and furnished with a safe-conduct as far as the
Bermudas. Thus, further, when in 1799, during war with France, the
_Diana_, a Prussian merchantman, was forced to take refuge in the port
of Dunkirk and seized, she was restored by the French Prize Court. But
these and other cases have not created any rule of International Law
whereby immunity from attack and seizure is granted to vessels in
distress, and no such rule is likely to grow up, especially not as
regards men-of-war and such merchantmen as are easily convertible into
cruisers.
[Footnote 376: See Ortolan, II. pp. 286-291; Kleen, II. § 210, pp.
492-494.]
[Sidenote: Immunity of Hospital and Cartel Ships.]
§ 190. According to the Hague Convention, which adapted the principles
of the Geneva Convention to warfare on sea, hospital ships are
inviolable, and therefore may be neither attacked nor seized; see below
in §§ 204-209. Concerning the immunity of cartel ships, see below in §
225.
[Sidenote: Immunity of Mail-boats and of Mail-bags.]
§ 191. No general rule of International Law exists granting enemy
mail-boats immunity from attack and seizure, but the several States have
frequently stipulated such immunity in the case of war by special
treaties.[377] Thus, for instance, Great Britain and France by article 9
of the Postal Convention of August 30, 1860, and Great Britain and
Holland by article 7 of the Postal Convention of October 14, 1843,
stipulated that all mail-boats navigating between the countries of the
parties shall continue to navigate in time of war between these
countries without impediment or molestation until special notice be
given by either party that the service is to be discontinued.
[Footnote 377: See Kleen, II. § 210, pp. 505-507.]
Whereas there is no general rule granting immunity from capture to enemy
mail-boats, enemy _mail-bags_ do, according to article 1 of Convention
XI., enjoy the privilege of such immunity, for it is there enacted that
the postal correspondence of neutrals or belligerents, whether official
or private in character, which may be found on board a neutral[378] or
enemy ship at sea, is inviolable, and that, in case the ship is
detained, the correspondence is to be forwarded by the captor with the
least possible delay. There is only one exception to this rule of
article 1, for correspondence destined to or proceeding from a blockaded
port does not enjoy the privilege of immunity.
[Footnote 378: See below, §§ 319 and 411.]
It must be specially observed that postal correspondence, and not
parcels sent by parcel post, are immune from capture.
III
APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN
Hall, §§ 149-152, 171, 269--Lawrence, §§ 183-191--Westlake, II.
pp. 156-160--Phillimore, III. §§ 345-381--Twiss, II. §§
72-97--Halleck, II. pp. 362-431, 510-526--Taylor, §§
552-567--Wharton, III. § 345--Wheaton, §§ 355-394--Moore, VII. §§
1206-1214--Bluntschli, §§ 672-673--Heffter, §§ 137-138--Geffcken
in Holtzendorff, IV. pp. 588-596--Ullmann, § 189--Bonfils, Nos.
1396-1440--Despagnet, Nos. 670-682--Pradier-Fodéré, VIII. Nos.
3179-3207--Rivier, II. § 66--Calvo, IV. §§ 2294-2366, V. §§
3004-3034--Fiore, III. Nos. 1426-1443, and Code, Nos.
1693-1706--Martens, II. §§ 125-126--Pillet, pp. 342-352--Perels,
§§ 36, 55-58--Testa, pp. 147-160--Valin, _Traité des prises_, 2
vols. (1758-60), and _Commentaire sur l'ordonnance de 1681_, 2
vols. (1766)--Pistoye et Duverdy, _Traité des prises maritimes_, 2
vols. (1854-1859)--Upton, _The Law of Nations affecting Commerce
during War_ (1863)--Boeck, Nos. 156-209, 329-380--Dupuis, Nos.
96-149, 282-301--Bernsten, § 8--Marsden, _Early Prize Jurisdiction
and Prize Law in England_ in _The English Historical Review_,
XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p.
34--Roscoe, _The Growth of English Law_ (1911), pp. 92-140. See
also the literature quoted by Bonfils at the commencement of No.
1396.
[Sidenote: Prize Courts.]
§ 192. It has already been stated above, in § 185, that the capture of a
private enemy vessel has to be confirmed by a Prize Court, and that it
is only through the latter's adjudication that the vessel becomes
finally appropriated. The origin[379] of Prize Courts is to be traced
back to the end of the Middle Ages. During the Middle Ages, after the
Roman Empire had broken up, a state of lawlessness established itself on
the High Seas. Piratical vessels of the Danes covered the North Sea and
the Baltic, and navigation of the Mediterranean Sea was threatened by
Greek and Saracen pirates. Merchantmen, therefore, associated themselves
for mutual protection and sailed as a merchant fleet under a specially
elected chief, the so-called Admiral. They also occasionally sent out a
fleet of armed vessels for the purpose of sweeping pirates from certain
parts of the High Seas. Piratical vessels and goods which were captured
were divided among the captors according to a decision of their Admiral.
During the thirteenth century the maritime States of Europe themselves
endeavoured to keep order on the Open Sea. By-and-by armed vessels were
obliged to be furnished with Letters Patent or Letters of Marque from
the Sovereign of a maritime State and their captures submitted to the
official control of such State as had furnished them with their Letters.
A board, called the Admiralty, was instituted by maritime States, and
officers of that Board of Admiralty exercised control over the armed
vessels and their captures, inquiring in each case[380] into the
legitimation of the captor and the nationality of the captured vessel
and her goods. And after modern International Law had grown up, it was a
recognised customary rule that in time of war the Admiralty of maritime
belligerents should be obliged to institute a Court[381] or Courts
whenever a prize was captured by public vessels or privateers in order
to decide whether the capture was lawful or not. These Courts were
called Prize Courts. This institution has come down to our times, and
nowadays all maritime States either constitute permanent Prize Courts,
or appoint them specially in each case of an outbreak of war. The whole
institution is essentially one in the interest of neutrals, since
belligerents want to be guarded by a decision of a Court against claims
of neutral States regarding alleged unjustified capture of neutral
vessels and goods. The capture of any private vessel, whether _prima
facie_ belonging to an enemy or a neutral, must, therefore, be submitted
to a Prize Court. Article 1 of Convention XII. (as yet unratified) of
the Second Peace Conference now expressly enacts the old customary rule
that "the validity of the capture of a merchantman or its cargo, when
neutral or enemy property is involved, is decided before a Prize Court."
It must, however, be emphasised that the ordinary Prize-Courts are not
International Courts, but National Courts instituted by Municipal Law,
and that the law they administer is Municipal Law,[382] based on custom,
statutes, or special regulations of their State. Every State is,
however, bound by International Law to enact only such statutes and
regulations[383] for its Prize Courts as are in conformity with
International Law. A State may, therefore, instead of making special
regulations, directly order its Prize Courts to apply the rules of
International Law, and it is understood that, when no statutes are
enacted or regulations are given, Prize Courts have to apply
International Law. Prize Courts may be instituted by belligerents in any
part of their territory or the territories of allies, but not on neutral
territory. It would nowadays constitute a breach of neutrality on the
part of a neutral State to allow the institution on its territory of a
Prize Court.[384]
[Footnote 379: I follow the excellent summary of the facts given by
Twiss, II. §§ 74-75, but Marsden's articles in _The English Historical
Review_, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34,
must likewise be referred to.]
[Footnote 380: The first case that is mentioned as having led to
judicial proceedings before the Admiral in England dates from 1357; see
Marsden, _loc. cit._ XXIV. (1909), p. 680.]
[Footnote 381: In England an Order in Council, dated July 20, 1589,
first provided that all captures should be submitted to the High Court
of Admiralty; see Marsden, _loc. cit._ XXIV. (1909), p. 690.]
[Footnote 382: See below, § 434.]
[Footnote 383: The constitution and procedure of Prize Courts in Great
Britain are governed by the Naval Prize Act, 1864 (27 and 28 Vict. ch.
25), and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Naval
Prize Bill introduced by the British Government in 1911, although
accepted by the House of Commons, was thrown out by the House of
Lords.--It should be mentioned that the Institute of International Law
has in various meetings occupied itself with the whole matter of
capture, and adopted a body of rules in the _Règlement international des
Prises Maritimes_, which represent a code of Prize Law; see _Annuaire_,
IX. pp. 218-243, but also XVI. pp. 44 and 311.]
[Footnote 384: See below, § 327, and article 4 of Convention XIII. of
the Second Peace Conference.]
Whereas the ordinary Prize Courts are national courts, Convention
XII.--as yet unratified--of the Second Peace Conference, provides for
the establishment of an International[385] Prize Court at the Hague,
which, in certain matters, is to serve as a Court of Appeal in prize
cases. In these cases jurisdiction in matters of prize is exercised, in
the first instance, by the Prize Courts of belligerents (article 2),
but, according to article 6, the national Prize Courts may not deal with
any case in which there is a second appeal; since such cases necessarily
come before the International Prize Court at the second appeal. This
means that belligerents, besides Prize Courts of the first instance, may
set up a Prize Court of Appeal, but they may not set up a second Court
of Appeal above the first, except in cases in which the International
Prize Court has no jurisdiction.
[Footnote 385: See above, vol. I. § 476_a_, and below, §§ 442-447.]
It must be specially observed that the proposed International Prize
Court--see articles 3 and 4--is, in the main, a Court to decide between
belligerents and neutrals, and not between two belligerents.
[Sidenote: Conduct of Prize to port of Prize Court.]
§ 193. As soon as a vessel is seized she must be conducted to a port
where a Prize Court is sitting. As a rule the officer and the crew sent
on board the prize by the captor will navigate the prize to the port.
This officer can ask the master and crew of the vessel to assist him,
but, if they refuse, they may not be compelled thereto. The captor need
not accompany the prize to the port. In the exceptional case, however,
where an officer and crew cannot be sent on board and the captured
vessel is ordered to lower her flag and to steer according to orders,
the captor must conduct the prize to the port. To which port a prize is
to be taken is not for International Law to determine; the latter says
only that the prize must be taken straight to a port of a Prize Court,
and only in case of distress or necessity is delay allowed. If the
neutral State concerned gives permission,[386] the prize may, in case
of distress or in case she is in such bad condition as prevents her from
being taken to a port of a Prize Court, be taken to a near neutral port,
and, if admitted, the capturing man-of-war as well as the prize enjoy
there the privilege of exterritoriality. But as soon as circumstances
allow, the prize must be conducted from the neutral port to that of the
Prize Court, and only if the condition of the prize does not at all
allow this, may the Prize Court give its verdict in the absence of the
prize after the ship papers of the prize and witnesses have been
produced before it.
[Footnote 386: See below, § 328, and articles 21-23 of Convention XIII.
of the Second Peace Conference.]
The whole of the crew of the prize are, as a rule, to be kept on board
and to be brought before the Prize Court. But if this is impracticable,
several important members of the crew, such as the master, mate, or
supercargo, must be kept on board, whereas the others may be removed and
forwarded to the port of the Prize Court by other means of transport.
The whole of the cargo is, as a rule, also to remain on board the prize.
But if the whole or part of the cargo is in a condition which prevents
it from being sent to the port of the Prize Court, it may, according to
the needs of the case, either be destroyed or sold in the nearest port,
and in the latter case an account of the sale has to be sent to the
Prize Court. All neutral goods amongst the cargo are also to be taken to
the port of adjudication, although they have now, according to the
Declaration of Paris, to be restored to their neutral owners. But if
such neutral goods are not in a condition to be taken to the port of
adjudication, they may likewise be sold or destroyed, as the case may
require.
[Sidenote: Destruction of Prize.]
§ 194. Since through adjudication by the Prize Courts the ownership of
captured private enemy vessels becomes finally transferred to the
belligerent whose forces made the capture, it is evident that after
transfer the captured vessel as well as her cargo may be destroyed. On
the other hand, it is likewise evident that, since a verdict of a Prize
Court is necessary before the appropriation of the prize becomes final,
a captured merchantman must not as a rule be destroyed instead of being
conducted to the port of a Prize Court. There are, however, exceptions
to the rule, but no unanimity exists in theory or practice as regards
those exceptions. Whereas some[387] consider the destruction of a prize
allowable only in case of imperative necessity, others[388] allow it in
nearly every case of convenience. Thus, the Government of the United
States of America, on the outbreak of war with England in 1812,
instructed the commanders of her vessels to destroy at once all
captures, the very valuable excepted, because a single cruiser, however
successful, could man a few prizes only, but by destroying each capture
would be able to continue capturing, and thereby constantly diminish the
enemy merchant fleet.[389] During the Civil War in America the cruisers
of the Southern Confederated States destroyed all enemy prizes because
there was no port open for them to bring prizes to. And during the
Russo-Japanese War, Russian cruisers destroyed twenty-one captured
Japanese merchantmen.[390] According to British practice,[391] the
captor is allowed to destroy the prize in only two cases--namely, first,
when the prize is in such a condition as prevents her from being sent to
any port of adjudication; and, secondly, when the capturing vessel is
unable to spare a prize crew to navigate the prize into such a port.
The _Règlement international des prises maritimes_ of the Institute of
International Law enumerates in § 50 five cases in which destruction of
the capture is allowed--namely (1) when the condition of the vessel and
the weather make it impossible to keep the prize afloat; (2) when the
vessel navigates so slowly that she cannot follow the captor and is
therefore exposed to an easy recapture by the enemy; (3) when the
approach of a superior enemy force creates the fear that the prize might
be recaptured by the enemy; (4) when the captor cannot spare a prize
crew; (5) when the port of adjudication to which the prize might be
taken is too far from the spot where the capture was made. Be that as it
may,[392] in every case of destruction of the vessel the captor must
remove crew, ship papers, and, if possible, the cargo, before the
destruction of the prize, and must afterwards send crew, papers, and
cargo to a port of a Prize Court for the purpose of satisfying the
latter that both the capture and the destruction were lawful.
[Footnote 387: See, for instance, Bluntschli, § 672.]
[Footnote 388: See, for instance, Martens, § 126, who moreover makes no
difference between the prize being an enemy or a neutral ship.]
[Footnote 389: U.S. Naval War Code (article 14) allows the destruction
"in case of military or other necessity."]
[Footnote 390: See Takahashi, pp. 284-310.]
[Footnote 391: The _Actaeon_ (1815), 2 Dod. 48; the _Felicity_ (1819), 2
Dod. 381; the _Leucade_ (1855), Spinks, 217. See also Holland, _Prize
Law_, §§ 303-304.]
[Footnote 392: The whole matter is thoroughly discussed by Boeck, Nos.
268-285; Dupuis, Nos. 262-268; and Calvo, V. §§ 3028-3034. As regards
destruction of a neutral prize, see below, § 431.]
But if destruction of a captured enemy merchantman can as an exception
be lawful, the question as to indemnities to be paid to the neutral
owners of goods carried by the destroyed vessel requires attention. It
seems to be obvious that, if the destruction of the vessel herself was
lawful, and if it was not possible to remove her cargo, no indemnities
need be paid. An illustrative case happened during the Franco-German
War. On October 21, 1870, the French cruiser _Dessaix_ seized two German
merchantmen, the _Ludwig_ and the _Vorwärts_, but burned them because
she could not spare a prize crew to navigate the prizes into a French
port. The neutral owners of part of the cargo claimed indemnities, but
the French Conseil d'État refused to grant indemnities on the ground
that the action of the captor was lawful.[393]
[Footnote 393: See Boeck, No. 146; Barboux, p. 153; Calvo, V. § 3033;
Dupuis, No. 262; Hall, § 269. Should the International Prize Court at
the Hague be established, article 3 of Convention XII. of the Second
Peace Conference would enable the owners of neutral goods destroyed with
the destroyed enemy merchantmen that carried them to bring the question
as to whether they may claim damages before this Court.]
[Sidenote: Ransom of Prize.]
§ 195. Although prizes have as a rule to be brought before a Prize
Court, International Law nevertheless does not forbid the ransoming of
the captured vessel either directly after the capture or after she has
been conducted to the port of a Prize Court, but before the Court has
given its verdict. However, the practice of accepting and paying ransom,
which grew up in the seventeenth century, is in many countries now
prohibited by Municipal Law. Thus, for instance, Great Britain by
section 45 of the Naval Prize Act, 1864, prohibits ransoming except in
such cases as may be specially provided for by an Order of the King in
Council.[394] Where ransom is accepted, a contract of ransom is entered
into by the captor and the master of the captured vessel; the latter
gives a so-called ransom bill to the former, in which he promises the
amount of the ransom. He is given a copy of the ransom bill for the
purpose of a safe-conduct to protect his vessel from again being
captured, under the condition that he keeps the course to such port as
is agreed upon in the ransom bill. To secure the payment of ransom, an
officer of the captured vessel can be detained as hostage, otherwise the
whole of the crew is to be liberated with the vessel, ransom being an
equivalent for both the restoration of the prize and the release of her
crew from captivity. So long as the ransom bill is not paid, the hostage
can be kept in captivity. But it is exclusively a matter for the
Municipal Law of the State concerned to determine whether or no the
captor can sue upon the ransom bill, if the ransom is not voluntarily
paid.[395] Should the capturing vessel, with the hostage or the ransom
bill on board, be captured herself and thus become a prize of the enemy,
the hostage is liberated, the ransom bill loses its effect, and need not
be paid.[396]
[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as
follows:--
(1) His Majesty in Council may, in relation to any war, make such
orders as may seem expedient according to circumstances for
prohibiting or allowing, wholly or in certain cases or subject to
any conditions or regulations or otherwise as may from time to
time seem meet, the ransoming or the entering into any contract or
agreement for the ransoming of any ship or goods belonging to any
of His Majesty's subjects, and taken as prize by any of His
Majesty's enemies.
(2) Any contract or agreement entered into, and any bill, bond, or
other security given for ransom of any ship or goods, shall be
under the exclusive jurisdiction of the High Court as a Prize
Court (subject to appeal to the Supreme Prize Court) and if
entered into or given in contravention to any such Order in
Council shall be deemed to have been entered into or given for an
illegal consideration.
(3) If any person ransoms or enters into any contract or agreement
for ransoming any ship or goods, in contravention of any such
Order in Council, he shall for every such offence be liable to be
proceeded against in the High Court at the suit of His Majesty in
his office of Admiralty, and on conviction to be fined, in the
discretion of the Court, any sum not exceeding five hundred
pounds.]
[Footnote 395: See Hall, § 151, p. 479:--"The English Courts refuse to
accept such arrangements (for ransom) from the effect of the rule that
the character of an alien enemy carries with it a disability to sue, and
compel payment of the debt indirectly through an action brought by the
imprisoned hostage for the recovery of his freedom." The American
Courts, in contradistinction to the British, recognise ransom bills. See
on the one hand, the case of _Cornu_ v. _Blackburne_ (1781), 2 Douglas,
640, _Anthon_ v. _Fisher_ (1782), 2 Douglas, 649 note, the _Hoop_, 1 C.
Rob. 201; and, on the other, _Goodrich_ and _De Forest_ v. _Gordon_
(1818), 15 Johnson, 6.]
[Footnote 396: The matter of ransom is treated with great lucidity by
Twiss, II. §§ 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.]
[Sidenote: Loss of Prize, especially Recapture.]
§ 196. A prize is lost--(1) when the captor intentionally abandons her,
(2) when she escapes through being rescued by her own crew, or (3) when
she is recaptured. Just as through capture the prize becomes, according
to International Law, the property of the belligerent whose forces made
the capture, provided a Prize Court confirms the capture, so such
property is lost when the prize vessel becomes abandoned, or escapes, or
is recaptured. And it seems to be obvious, and everywhere recognised by
Municipal Law, that as soon as a captured enemy merchantman succeeds in
escaping, the proprietorship of the former owners revives _ipso facto_.
But the case is different when a captured vessel, whose crew has been
taken on board the capturing vessel, is abandoned and afterwards met and
taken possession of by a neutral vessel or by a vessel of her home
State. It is certainly not for International Law to determine whether or
not the original proprietorship revives through abandonment. This is a
matter for Municipal Law. The case of recapture is different from
escape. Here too Municipal Law has to determine whether or no the former
proprietorship revives, since International Law lays down the rule only
that recapture takes the vessel out of the property of the enemy and
brings her into the property of the belligerent whose forces made the
recapture. Municipal Law of the individual States has settled the matter
in different ways. Thus, Great Britain, by section 40 of the Naval Prize
Act, 1864, enacted that the recaptured vessel, except when she has been
used by the captor as a ship of war, shall be restored to her former
owner on his paying one-eighth to one-fourth, as the Prize Court may
award, of her value as prize salvage, no matter if the recapture was
made before or after the enemy Prize Court had confirmed the
capture.[397] Other States restore a recaptured vessel only when the
recapture was made within twenty-four hours[398] after the capture
occurred, or before the captured vessel was conducted into an enemy
port, or before she was condemned by an enemy Prize Court.
[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911
simply enacts that British merchantmen or goods captured by the enemy
and recaptured by a British man-of-war shall be restored to the owner by
a decree of the Prize Court.]
[Footnote 398: So, for instance, France; see Dupuis, Nos. 278-279.]
[Sidenote: Fate of Prize.]
§ 197. Through being captured and afterwards condemned by a Prize Court,
a captured enemy vessel and captured enemy goods become the property of
the belligerent whose forces made the capture. What becomes of the
prize after the condemnation is not for International, but for Municipal
Law to determine. A belligerent can hand the prize over to the officers
and crew who made the capture, or can keep her altogether for himself,
or can give a share to those who made the capture. As a rule, prizes are
sold after they are condemned, and the whole or a part of the net
proceeds is distributed among the officers and crew who made the
capture. For Great Britain this distribution is regulated by the "Royal
Proclamation as to Distribution of Prize Money" of August 3, 1886.[399]
There is no doubt whatever that, if a neutral subject buys a captured
ship after her condemnation, she may not be attacked and captured by the
belligerent to whose subject she formerly belonged, although, if she is
bought by an enemy subject and afterwards captured, she might be
restored[400] to her former owner.
[Footnote 399: See Holland, _Prize Law_, pp. 142-150.]
[Footnote 400: See above, § 196.]
[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing
under Enemy Flag.]
§ 198. It has been already stated above in § 89 that merchantmen owned
by subjects of neutral States but sailing under enemy flag are vested
with enemy character. It is, therefore, evident that they may be
captured and condemned. As at present no non-littoral State has a
maritime flag, vessels belonging to subjects of such States are forced
to navigate under the flag of another State,[401] and they are,
therefore, in case of war exposed to capture.
[Footnote 401: See above, vol. I. § 261.]
[Sidenote: Effect of Sale of Enemy Vessels during War.]
§ 199. Since enemy vessels are liable to capture, the question must be
taken into consideration whether the fact that an enemy vessel has been
sold during the war to a subject of a neutral or to a subject of the
belligerent State whose forces seized her, has the effect of excluding
her appropriation. It is obvious that, if the question is answered in
the affirmative, the owners of enemy vessels can evade the danger of
having their property captured by selling their vessels. The question
of transfer of enemy vessels must, therefore, be regarded as forming
part of the larger questions of enemy character and has consequently
been treated in detail above, § 91.
[Sidenote: Goods sold by and to Enemy Subjects during War.]
§ 200. If a captured enemy vessel carries goods consigned by enemy
subjects to subjects of neutral States, or to subjects of the
belligerent whose forces captured the vessel, they may not be
appropriated, provided the consignee can prove that he is the owner. As
regards such goods found on captured enemy merchantmen as are consigned
to enemy subjects but have been sold _in transitu_ to subjects of
neutral States, no unanimous practice of the different States is in
existence. The subject of goods sold _in transitu_ must--in the same way
as the question of transfer of enemy vessels--be considered as forming
part of the larger question of enemy character. It has, for this reason,
been treated above, § 92.
IV
VIOLENCE AGAINST ENEMY PERSONS
See the literature quoted above at the commencement of § 107. See
also Bonfils, Nos. 1273-1273'3.
[Sidenote: Violence against Combatants.]
§ 201. As regards killing and wounding combatants in sea warfare and the
means used for the purpose, customary rules of International Law are in
existence according to which only those combatants may be killed or
wounded who are able and willing to fight or who resist capture. Men
disabled by sickness or wounds, or such men as lay down arms and
surrender or do not resist capture, must be given quarter, except in a
case of imperative necessity or of reprisals. Poison, and such arms,
projectiles, and materials as cause unnecessary injury, are prohibited,
as is also killing and wounding in a treacherous way.[402] The
Declaration of St. Petersburg[403] and the Hague Declaration prohibiting
the use of expanding (Dum-Dum)[404] bullets, apply to sea warfare as
well as to land warfare, as also do the Hague Declarations concerning
projectiles and explosives launched from balloons, and projectiles
diffusing asphyxiating or deleterious gases.[405]
[Footnote 402: See the corresponding rules for warfare on land, which
are discussed above in §§ 108-110. See also U.S. Naval War Code, article
3.]
[Footnote 403: See above,§ 111.]
[Footnote 404: See above, § 112.]
[Footnote 405: See above, §§ 113 and 114.]
All combatants, and also all officers and members of the crews of
captured merchantmen, could formerly[406] be made prisoners of war.
According to articles 5 to 7 of Convention XI. of the Second Peace
Conference--see above in § 85--such members of the crews as are subjects
of neutral States may never be made prisoners of war; but the captain,
officers, and members of the crews who are enemy subjects, and, further,
the captain and officers who are subjects of neutral States may be made
prisoners of war in case they refuse to be released on parole. As soon
as such prisoners are landed, their treatment falls under articles 4-20
of the Hague Regulations; but as long as they are on board, the old
customary rule of International Law, that prisoners must be treated
humanely,[407] and not like convicts, must be complied with. The Hague
Convention for the adaptation of the Geneva Convention to sea warfare
enacts, however, some particular rules concerning the shipwrecked, the
wounded, and the sick who, through falling into the hands of the enemy,
become prisoners of war.[408]
[Footnote 406: This was almost generally recognised, but was refused
recognition by Count Bismarck during the Franco-German War (see below, §
249) and by some German publicists, as, for instance, Lueder in
Holtzendorff, IV. p. 479, note 6.]
[Footnote 407: See Holland, _Prize Law_, § 249, and U.S. Naval War Code,
articles 10, 11.]
[Footnote 408: See below, § 205.]
[Sidenote: Violence against Non-combatant Members of Naval Forces.]
§ 202. Just as military forces consist of combatants and
non-combatants, so do the naval forces of belligerents. Non-combatants,
as, for instance, stokers, surgeons, chaplains, members of the hospital
staff, and the like, who do not take part in the fighting, may not be
attacked directly and killed or wounded.[409] But they are exposed to
all injuries indirectly resulting from attacks on or by their vessels.
And they may certainly be made prisoners of war, with the exception of
members of the religious, medical, and hospital staff, who are
inviolable according to article 10 of the Hague Convention for the
adaptation to maritime warfare of the principles of the Geneva
Convention.[410]
[Footnote 409: See U.S. Naval War Code, article 3.]
[Footnote 410: See below, § 209.]
[Sidenote: Violence against Enemy Individuals not belonging to the Naval
Forces.]
§ 203. Since and so far as enemy individuals on board an attacked or
seized enemy vessel who do not belong to the naval forces do not take
part in the fighting, they may not directly be attacked and killed or
wounded, although they are exposed to all injury indirectly resulting
from an attack on or by their vessel. If they are mere private
individuals, they may as an exception only and under the same
circumstances as private individuals on occupied territory be made
prisoners of war.[411] But they are nevertheless, for the time they are
on board the captured vessel, under the discipline of the captor. All
restrictive measures against them which are necessary are therefore
lawful, as are also punishments, in case they do not comply with lawful
orders of the commanding officer. If they are enemy officials in
important positions,[412] they may be made prisoners of war.
[Footnote 411: See U.S. Naval War Code, article 11, and above, § 116.]
[Footnote 412: See above, § 117.]
V
TREATMENT OF WOUNDED AND SHIPWRECKED
Perels, § 37--Pillet, pp. 188-191--Westlake, II. pp.
275-280--Moore, VII. § 1178--Bernsten, § 12--Bonfils, Nos.
1280-1280'9--Pradier-Fodéré, VIII. No. 3209--U.S. Naval War Code,
articles 21-29--Ferguson, _The Red Cross Alliance at Sea_
(1871)--Houette, _De l'extension des principes de la Convention de
Genève aux victimes des guerres maritimes_ (1892)--Cauwès,
_L'extension des principes de la Convention de Genève aux guerres
maritimes_ (1899)--Holls, _The Peace Conference at the Hague_
(1900), pp. 120-132--Boidin, pp. 248-262--Dupuis, _Guerre_, Nos.
82-105--Meurer, II. §§ 74-87--Higgins, pp. 382-394--Lémonon, pp.
526-554--Nippold, II. § 33--Scott, _Conferences_, pp.
599-614--Takahashi, pp. 375-385--Fauchille in _R.G._ VI. (1899),
pp. 291-302--Bayer, in _R.G._ VIII. (1901), pp. 225-230--Renault
in _A.J._ II. pp. 295-306--Higgins, _War and the Private Citizen_
(1912), pp. 73-90, and in _The Law Quarterly Review_, XXVI (1910),
pp. 408-414. See also the literature quoted above at the
commencement of § 118.
[Sidenote: Adaptation of Geneva Convention to Sea Warfare.]
§ 204. Soon after the ratification of the Geneva Convention the
necessity of adapting its principles to naval warfare was generally
recognised, and among the non-ratified Additional articles to the Geneva
Convention of 1868 were nine which aimed at such an adaptation. But it
was not until the Hague Peace Conference in 1899 that an adaptation came
into legal existence. This adaptation was contained in the
"Convention[413] for the Adaptation to Maritime Warfare of the
Principles of the Geneva Convention of August 22, 1864," which comprised
fourteen articles. It has, however, been replaced by the "Convention
(X.) for the Adaptation of the Principles of the Geneva Convention to
Maritime War," of the Second Hague Peace Conference. This new convention
comprises twenty-eight articles and was signed, although with some
reservations, by all the Powers represented at the Conference, except
Nicaragua which acceded later, and it has already been ratified by most
of the signatory Powers. It provides rules concerning the wounded,
sick, shipwrecked, and dead; hospital ships; sickbays on men-of-war; the
distinctive colour and emblem of hospital ships; neutral vessels taking
on board belligerent wounded, sick, or shipwrecked; the religious,
medical, and hospital staff of captured ships; the carrying out of the
convention, and the prevention of abuses and infractions.
[Footnote 413: Martens, _N.R.G._ 2nd Ser. XXVI. p. 979.]
[Sidenote: The Wounded, Sick, and Shipwrecked.]
§ 205. Soldiers, sailors, and other persons officially attached to
fleets or armies, whatever their nationality, who are taken on board
when sick or wounded, must be respected and tended by the captors
(article 11). All enemy shipwrecked, sick, or wounded who fall into the
power of a belligerent are prisoners of war. It is left to the captor to
determine whether they are to be kept on board, or to be sent to a port
of his own country, or a neutral port, or even a hostile port; and in
the last case such repatriated prisoners must be prevented by their
Government from again serving in the war (article 14). The shipwrecked,
wounded, or sick, who are landed at a neutral port with the consent of
the local authorities, must, unless there is an arrangement to the
contrary between the neutral State concerned and the belligerent States,
be guarded by the neutral State so as to prevent them from again taking
part in the war;[414] the expenses of tending and interning them must be
borne by the State to whom they belong (article 15). After each
engagement, both belligerents must, so far as military interests permit,
take measures to search for the shipwrecked, wounded, and sick, and to
ensure them protection against pillage and maltreatment (article 16).
Each belligerent must, as early as possible, send to the authorities of
their country, navy, or army, a list of the names of the sick and
wounded picked up by him; and the belligerents must keep each other
informed as to internments and transfers as well as to admissions into
hospital and deaths which have occurred amongst the sick and wounded in
their hands. And they must collect all objects of personal use,
valuables, letters, &c., that are found in the captured ships in order
to have them forwarded to the persons concerned by the authorities of
their own country (article 17).
[Footnote 414: See below, § 348_a_.]
[Sidenote: Treatment of the Dead.]
§ 205_a_. After each engagement both belligerents must, so far as
military interests permit, take measures to ensure the dead protection
against pillage and maltreatment, and they must see that the burial,
whether by land or sea, or cremation of the dead is preceded by a
careful examination of the corpses in order to determine that life is
really extinct (article 16). Each belligerent must, as early as
possible, send to the authorities of their country, navy, or army, the
military identification marks or tokens found on the dead; they must
also collect all the objects of personal use, valuables, letters, &c.,
which have been left by the wounded and sick who die in hospital, in
order that they may be forwarded to the persons concerned by the
authorities of their own country (article 17).
[Sidenote: Hospital Ships.]
§ 206. Three different kinds of hospital ships must be
distinguished--namely, military hospital ships, hospital ships equipped
by private individuals or relief societies of the belligerents, and
hospital ships equipped by private neutral individuals and neutral
relief societies.
(1) Military hospital ships (article 1) are ships constructed or
assigned by States specially and solely for the purpose of assisting the
wounded, sick, and shipwrecked. Their names must be communicated to the
belligerents at the commencement of or during hostilities, and in any
case before they are employed. They must be respected by the
belligerents, they may not be captured while hostilities last, and they
are not on the same footing as men-of-war during their stay in a
neutral port.
(2) Hospital ships equipped wholly or in part at the cost of private
individuals or officially recognised relief societies of the
belligerents must be respected by either belligerent (article 2), and
are exempt from capture, provided their home State has given them an
official commission and has notified their names to the other
belligerent at the commencement of or during hostilities, and in any
case before they are employed. They must, further, be furnished with a
certificate from the competent authorities declaring that they had been
under the latter's control while fitting out and on final departure.
(3) Hospital ships, equipped wholly or in part at the cost of private
individuals or officially recognised relief societies of neutral States
(article 3), must likewise be respected, and are exempt from capture,
provided that they are placed under the control of one of the
belligerents, with the previous consent of their own Government and with
the authorisation of the belligerent himself, and that the latter has
notified their names to his adversary at the commencement of, or during,
hostilities, and in any case before they are employed.
According to article 4 all military and other hospital ships must afford
relief and assistance to the wounded, sick, and shipwrecked of either
belligerent. The respective Governments are prohibited from using these
ships for any military purpose. The commanders of these vessels must not
in any way hamper the movements of the combatants, and during and after
an engagement they act at their own risk and peril. Both belligerents
have a right to control and visit all military and other hospital ships,
to refuse their assistance, to order them off, to make them take a
certain course, to put a commissioner on board, and, lastly, to detain
them temporarily, if important circumstances require this. In case a
hospital ship receives orders from a belligerent, these orders must, as
far as possible, be inscribed in the ship papers.
The protection to which hospital ships are entitled ceases if they are
made use of to commit acts harmful to the enemy[415] (article 8). But
the fact of the staff being armed for the purpose of maintaining order
and defending the wounded and sick, and the fact of the presence of
wireless telegraphic apparatus on board, are not sufficient reasons for
withdrawing protection.
[Footnote 415: An interesting case of this kind occurred during the
Russo-Japanese war. The _Aryol_ (also called the _Orel_), a hospital
ship of the Russian Red Cross Society, was captured, and afterwards
condemned by the Prize Court on the following grounds:--(_a_) For having
communicated the orders of the commander-in-chief of the Russian
squadron with which she was sailing to other Russian vessels; (_b_) for
carrying, by order of the commander-in-chief of the squadron, in order
to take them to Vladivostock, the master and some members of the crew of
the British steamship _Oldhamia_, which had been captured by the
Russians; (_c_) for having been instructed to purchase in Cape Town, or
its neighbourhood, 11,000 ft. of conducting wire of good insulation;
(_d_) for having navigated at the head of the squadron in the position
usually occupied by reconnoitring vessels.--See Takahashi, pp. 620-625,
and Higgins, _op. cit._ p. 74, and in _The Law Quarterly Review_, XXVI.
(1910), p. 408.]
It must be specially observed that any man-of-war of either belligerent
may, according to article 12, demand the surrender of the wounded, sick,
or shipwrecked who are on board hospital ships of any kind. According to
a reservation by Great Britain, article 12 is understood "to apply only
to the case of combatants rescued during or after a naval engagement in
which they have taken part."
[Sidenote: Hospital Ships in Neutral Ports.]
§ 206_a_. For the purpose of defining the status of hospital ships when
entering neutral ports an International Conference met at the Hague in
1904, where Germany, Austria-Hungary, Belgium, China, Korea, Denmark,
Spain, the United States of America, France, Greece, Guatemala, Italy,
Japan, Luxemburg, Mexico, Holland, Persia, Portugal, Roumania, Russia,
Servia, and Siam, were represented. Great Britain, however, did not
take part. The following is the text of the six articles of the
Convention signed by all the representatives:--
Article 1.--Hospital ships fulfilling the conditions prescribed in
articles 1, 2, and 3 of the Convention concluded at the Hague on
July 27, 1899, for the adaptation of the principles of the Geneva
Convention of August 22, 1864, to naval warfare shall in time of
war be exempt in the ports of the contracting parties from all
dues and taxes imposed on vessels for the benefit of the State.
Article 2.--The provision contained in the preceding article shall
not prevent the exercise of the right of search and other
formalities demanded by the fiscal and other laws in force in the
said ports.
Article 3.--The regulation laid down in article 1 is binding only
upon the contracting Powers in case of war between two or more of
themselves. The said rule shall cease to be obligatory as soon as
in a war between any of the contracting Powers a non-contracting
Power shall join one of the belligerents.
Article 4.--The present Convention, which bears date of this day
and may be signed up to October 1, 1905, by any Power which shall
have expressed a wish to do so, shall be ratified as speedily as
possible. The ratifications shall be deposited at the Hague. On
the deposit of the ratifications, a _procès-verbal_ shall be drawn
up, of which a certified copy shall be conveyed by diplomatic
channels, after the deposit of each ratification, to all the
contracting Powers.
Article 5.--Non-signatory Powers will be allowed to adhere to the
present convention after October 1, 1905. For that purpose they
will have to make known the fact of their adhesion to the
contracting Powers by means of a written notification addressed to
the Government of the Netherlands, which will be communicated by
that Government to all the other contracting Powers.
Article 6.--In the event of any of the high contracting parties
denouncing the present Convention, the denunciation shall only
take effect after notification has been made in writing to the
Government of the Netherlands and communicated by that Government
at once to all the other contracting Powers. Such denunciation
shall be effective only in respect of the Power which shall have
given notice of it.
[Sidenote: Sick-Bays.]
§ 206_b_. According to article 7, in case of a fight on board a
man-of-war, the sick-bays must, as far as possible, be respected and
spared. These sick-bays, and the material belonging to them, remain
subject to the laws of war; they may not, however, be used for any
purpose other than that for which they were originally intended so long
as they are required for the wounded and sick. But should the military
situation require it, a commander into whose power they have fallen may
nevertheless apply them to other purposes, under the condition that he
previously makes arrangements for proper accommodation for the wounded
and sick on board. The protection to which sick-bays are entitled ceases
if they are made use of to commit acts harmful to the enemy (article 8).
But the fact that the staff of sick-bays is armed in order to defend the
wounded and sick is not sufficient reason for withdrawing protection.
[Sidenote: Distinctive Colour and Emblem of Hospital Ships.]
§ 207. All military hospital ships must be painted white outside with a
horizontal band of green about one metre and a half in breadth. Other
hospital ships must also be painted white outside, but with a horizontal
band of red. The boats and small craft of hospital ships used for
hospital work must likewise be painted white. And besides being painted
in this distinguishing colour, all military and other hospital ships
(article 5) must hoist, together with their national flag, the white
flag with a red cross stipulated by the Geneva Convention. If they
belong to a neutral State, they must also fly at the main mast the
national flag of the belligerent under whose control they are placed.
Hospital ships which, under the terms of article 4, are detained by the
enemy, must haul down the national flag of the belligerent to whom they
belong. All hospital ships which wish to ensure by night the freedom
from interference to which they are entitled, must, subject to the
assent of the belligerent they are accompanying, take the necessary
measures to render their special painting sufficiently plain. According
to article 6 the distinguishing signs mentioned in article 5 may only be
used, whether in time of peace or war, for protecting or indicating the
ships therein mentioned.
Although in this connection the red cross is especially stipulated as
the distinctive emblem, there is no objection to the use by
non-Christian States, who object to the cross on religious grounds, of
another emblem. Thus Turkey reserved the right to use a red crescent,
and Persia to use a red sun.
[Sidenote: Neutral Vessels assisting the Wounded, Sick, or Shipwrecked.]
§ 208. A distinction must be made between neutral men-of-war and private
vessels assisting the sick, wounded, and shipwrecked.
(1) If men-of-war take on board wounded, sick, or shipwrecked persons,
precaution must be taken, so far as possible, that they do not again
take part in the operations of war (article 13). Such individuals must
not, however, be handed over to the adversary but must be detained till
the end of the war.[416]
(2) Neutral merchantmen,[417] yachts, or boats which have of their own
accord rescued sick, wounded, or shipwrecked men, or who have taken such
men on board at the appeal of the belligerent, must, according to
article 9, enjoy special protection and certain immunities. In no case
may they be captured for the sole reason of having such persons on
board. But, subject to any undertaking that may have been given to them,
they remain liable to capture for any violation of neutrality they may
have committed.
[Footnote 416: See below, § 348.]
[Footnote 417: See below, § 348_a_.]
It must be specially observed that, according to article 12, any
man-of-war of either belligerent may demand from merchant ships, yachts,
and boats, whatever the nationality of such vessels, the surrender of
the wounded, sick, or shipwrecked who are on board.
According to the reservation of Great Britain, mentioned above in §
206, article 12 is understood "to apply only to the case of combatants
rescued during or after a naval engagement in which they have taken
part."
[Sidenote: The Religious, Medical, and Hospital Staff.]
§ 209. The religious, medical, and hospital staff of any captured vessel
is inviolable, and the members may not be made prisoners of war, but
they must continue to discharge their duties while necessary. If they do
this, the belligerent into whose hands they have fallen has to give them
the same allowances and the same pay as are granted to persons holding
the same rank in his own navy. They may leave the ship, when the
commander-in-chief considers it possible, and on leaving they are
allowed to take with them all surgical articles and instruments which
are their private property (article 10).
[Sidenote: Application of Convention X., and Prevention of Abuses.]
§ 209_a_. The provisions of Convention X. are only binding in the case
of war between contracting Powers, they cease to be binding the moment a
non-contracting Power becomes one of the belligerents (article 18). In
the case of operations of war between land and sea forces of
belligerents, the provisions of Convention X. only apply to forces on
board ship (article 22). The commanders-in-chief of the belligerent
fleets must, in accordance with the instructions of their Governments
and in conformity with the general principles of the Convention, arrange
the details for carrying out the articles of Convention X., as well as
for cases not provided for in these articles (article 19). The
contracting parties must take the necessary measures to instruct their
naval forces, especially the personnel protected by Convention X., in
the provisions of the Convention, and to bring these provisions to the
notice of the public (article 20). The contracting Powers must, in case
their criminal laws are inadequate, enact measures necessary for
checking, in time of war, individual acts of pillage or maltreatment of
the wounded and sick in the fleet, as well as for punishing, as
unjustifiable adoption of military or naval marks, the unauthorised use
of the distinctive signs mentioned in article 5 on the part of vessels
not protected by the present Convention; they must communicate to each
other, through the Dutch Government, the enactments for preventing such
acts at the latest within five years of the ratification of Convention
X.[418] (article 21).
[Footnote 418: Great Britain has entered a reservation against articles
6 and 21, but see above, § 124_b_, p. 164, note 1.]
[Sidenote: General Provisions of Convention X.]
§ 209_b_. Convention X. comes into force sixty days after ratification
or accession on the part of each Power concerned (article 26). It
replaces the Convention of 1899 for the adaptation to naval warfare of
the principles of the Geneva Convention, but this latter Convention
remains in force between such of its contracting parties as do not
become parties to Convention X. (article 25). Such non-signatory Powers
of Convention X. as are parties to the Geneva Convention of 1906 are
free to accede at any time, and a Power desiring to accede must notify
its intention in writing to the Dutch Government which must communicate
the accession to all the contracting Powers (article 24). Each of the
contracting Powers is at any time at liberty to denounce Convention X.
by a written notification to the Dutch Government which must immediately
communicate the notification to all the other contracting Powers; the
denunciation, however, does not take effect until one year after the
notification has reached the Dutch Government, and a denunciation only
affects the Power making the notification (article 27). A register kept
by the Dutch Minister of Foreign Affairs must record the dates of the
deposit of ratifications, as well as the dates of accessions or of
denunciations; each contracting Power is entitled to have access to
this register and to be supplied with duly certified extracts from it
(article 28).
VI
ESPIONAGE, TREASON, RUSES
See, besides the literature quoted above at the commencement of §§
159 and 163, Pradier-Fodéré, VIII. No. 3157, and Bentwich in _The
Journal of the Society of Comparative Legislation_, New Series, X.
(1909), pp. 243-249.
[Sidenote: Espionage and Treason.]
§ 210. Espionage[419] and treason do not play as large a part in sea
warfare as in land warfare;[420] still they may be made use of by
belligerents. But it must be specially observed that, since the Hague
Regulations deal only with land warfare, the legal necessity of trying a
spy by court-martial according to article 30 of these Regulations does
not exist for sea warfare, although such trial by court-martial is
advisable.
[Footnote 419: As regards the case of the _Haimun_, see below, § 356.]
[Footnote 420: See above, §§ 159-162.]
[Sidenote: Ruses.]
§ 211. Ruses are customarily allowed in sea warfare within the same
limits as in land warfare, perfidy being excluded. As regards the use of
a false flag, it is by most publicists considered perfectly lawful for a
man-of-war to use a neutral's or the enemy's flag (1) when chasing an
enemy vessel, (2) when trying to escape, and (3) for the purpose of
drawing an enemy vessel into action.[421] On the other hand, it is
universally agreed that immediately before an attack a vessel must fly
her national flag. Halleck (I. p. 568) relates the following instance:
In 1783 the _Sybille_, a French frigate of thirty-eight guns, enticed
the British man-of-war _Hussar_ by displaying the British flag and
intimating herself to be a distressed prize of a British captor. The
_Hussar_ approached to succour her, but the latter at once attacked the
_Hussar_ without showing the French flag. She was, however, overpowered
and captured, and the commander of the _Hussar_ publicly broke the sword
of the commander of the _Sybille_, whom he justly accused of perfidy,
although the French commander was acquitted when subsequently brought to
trial by the French Government. Again, Halleck (I. p. 568) relates: In
1813 two merchants of New York carried out a plan for destroying the
British man-of-war _Ramillies_ in the following way. A schooner with
some casks of flour on deck was expressly laden with several casks of
gunpowder having trains leading from a species of gunlock, which, by the
action of clockwork, went off at a given time after it had been set. To
entice the _Ramillies_ to seize her, the schooner came up, and the
_Ramillies_ then sent a boat with thirteen men and a lieutenant to cut
her off. Subsequently the crew of the schooner abandoned her and she
blew up with the lieutenant and his men on board.
[Footnote 421: The use of a false flag on the part of a belligerent
man-of-war is analogous to the use of the enemy flag and the like in
land warfare; see above, § 164. British practice--see Holland, _Prize
Law_, § 200--permits the use of false colours. U.S. Naval War Code,
article 7, forbids it altogether, whereas as late as 1898, during the
war with Spain in consequence of the Cuban insurrection, two American
men-of-war made use of the Spanish flag (see Perels, p. 183). And during
the war between Turkey and Russia, in 1877, Russian men-of-war in the
Black Sea made use of the Italian flag (see Martens, II. § 103, p. 566).
The question of the permissibility of the use of a neutral or enemy flag
is answered in the affirmative, among others, by Ortolan, II. p. 29;
Fiore, III. No. 1340; Perels, § 35, p. 183; Pillet, p. 116; Bonfils, No.
1274; Calvo, IV. 2106; Hall, § 187. See also Pillet in _R.G._ V. (1898),
pp. 444-451. But see the arguments against the use of a false flag in
Pradier-Fodéré, VI. No. 2760.]
Vattel (III. § 178) relates the following case of perfidy: In 1755,
during war between Great Britain and France, a British man-of-war
appeared off Calais, made signals of distress for the purpose of
soliciting French vessels to approach to her succour, and seized a sloop
and some sailors who came to bring her help. Vattel is himself not
certain whether this case is a fact or fiction. But be that as it may,
there is no doubt that, if the case be true, it is an example of
perfidy, which is not allowed.
VII
REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT
Hall, § 140*--Lawrence, § 204--Westlake, II. pp. 315-318--Moore,
VII. §§ 1166-1174--Taylor, § 499--Bonfils, Nos.
1277-1277'1--Despagnet, Nos. 618-618 _bis_--Fiore, Code, Nos.
1633-1642--Pradier-Fodéré, VIII. Nos. 3153-3154--Nys, III. pp.
430-432--Pillet, p. 117--Perels, § 35, p. 181--Holland, _Studies_,
pp. 96-111--Dupuis, Nos. 67-73, and _Guerre_, Nos. 42-47--Barclay,
_Problems_, p. 51--Higgins, pp. 352-357--Lémonon, pp.
503-525--Bernsten, § 7, III.--Boidin, pp. 201-215--Nippold, II. §
28--Scott, _Conferences_, pp. 587-598, and in _A.J._ II. (1908),
pp. 285-294.
[Sidenote: Requisitions and Contributions upon Coast Towns.]
§ 212. No case has to my knowledge occurred in Europe[422] of
requisitions or contributions imposed by naval forces upon enemy coast
towns. The question whether or not such requisitions and contributions
would be lawful became of interest through an article on naval warfare
of the future, published in 1882 by the French Admiral Aube in the
_Revue des Deux Mondes_ (vol. 50, p. 331). Aube pointed out that one of
the tasks of the fleet in sea warfare of the future would be to attack
and destroy by bombardment fortified and unfortified military and
commercial enemy coast towns, or at least to compel them mercilessly to
requisitions and contributions. As during the British naval manoeuvres
of 1888 and 1889 imaginary contributions were imposed upon several coast
towns, Hall (§ 140*) took into consideration the question under what
conditions requisitions and contributions would be lawful in sea
warfare. He concluded, after careful consideration and starting from the
principles regarding requisitions and contributions in land warfare,
that such requisitions and contributions may be levied, provided a force
is landed which actually takes possession of the respective coast town
and establishes itself there, although only temporarily, until the
imposed requisitions and contributions have been complied with; that,
however, no requisitions or contributions could be demanded by a single
message sent on shore under threatened penalty of bombardment in case of
refusal. There is no doubt that Hall's arguments are, logically,
correct; but it was not at all certain that the naval Powers would adopt
them, since neither the Institute of International Law nor the U.S.
Naval War Code had done so.[423] The Second Hague Peace Conference has
now settled the matter through the Convention (IX.) concerning
bombardment by naval forces in time of war which amongst its thirteen
articles includes two--3 and 4--dealing with requisitions and
contributions. This Convention has been signed, although with some
reservations, by all the Powers represented at the Conference except
Spain, China, and Nicaragua, but China and Nicaragua acceded later. Many
States have already ratified.
[Footnote 422: Holland, _Studies_, p. 101, mentions a case which
occurred in South America in 1871.]
[Footnote 423: The Institute of International Law has touched upon the
question of requisitions and contributions in sea warfare in article 4,
No. 1, of its rules regarding the bombardment of open towns by naval
forces; see below, § 213, p. 267. U.S. Naval War Code, article 4, allows
"reasonable" requisitions, but no contributions since "ransom" is not
allowed.]
According to article 3 undefended ports, towns, villages, dwellings, or
other buildings may be bombarded by a naval force, if the local
authorities, on a formal summons being made to them, decline to comply
with requisitions for provisions or supplies _necessary_ for the
_immediate_ use of the naval force concerned. These requisitions must be
proportional to the resources of the place; they can only be demanded by
the commander of the naval force concerned; they must be paid for in
cash, and, if this is not possible for want of sufficient ready money,
their receipt must be acknowledged.
As regards contributions, Convention IX. does not directly forbid the
demand for them, but article 4 expressly forbids bombardment of
undefended places by a naval force on account of non-payment of money
contributions; in practice, therefore, the demand for contributions will
not occur in naval warfare.
[Sidenote: Bombardment of the Enemy Coast.]
§ 213. There is no doubt whatever that enemy coast towns which are
defended may be bombarded by naval forces, acting either independently
or in co-operation with a besieging army. But before the Second Peace
Conference of 1907 the question was not settled as to whether or not
_open and undefended_ coast places might be bombarded by naval forces.
The Institute of International Law in 1895, at its meeting at Cambridge,
appointed a committee to investigate the matter. The report[424] of this
committee, drafted by Professor Holland with the approval of the Dutch
General Den Beer Portugael, and presented in 1896 at the meeting at
Venice,[425] is of such interest that it is advisable to reproduce here
a translation of the following chief parts:--
When the Prince de Joinville recommended in 1844, in case of war,
the devastation of the great commercial towns of England, the Duke
of Wellington wrote:--"What but the inordinate desire of
popularity could have induced a man in his station to write and
publish such a production, an invitation and provocation to war,
to be carried on in a manner such as has been disclaimed by the
civilised portions of mankind?" (Raikes, _Correspondence_, p.
367). The opinion of the Prince de Joinville has been taken up by
Admiral Aube in an article which appeared in the _Revue des Deux
Mondes_ in 1882. After having remarked that the ultimate object of
war is to inflict the greatest possible damage to the enemy and
that "La richesse est le nerf de la guerre," he goes on as
follows:--"Tout ce qui frappe l'ennemi dans sa richesse devient
non seulement légitime, mais s'impose comme obligatoire. Il faut
donc s'attendre à voir les flottes cuirassées, maîtresses de la
mer, tourner leur puissance d'attaque et déstruction, à défaut
d'adversaires se dérobant à leurs coups, contre toutes les villes
du littoral, fortifiées ou non, pacifiques ou guerrières, les
incendier, les ruiner, et tout au moins les rançonner sans merci.
Cela s'est fait autrefois; cela ne se fait plus; cela se fera
encore: Strasbourg et Péronne en sont garants...."
The discussion was opened again in 1888, on the occasion of
manoeuvres executed by the British Fleet, the enemy part of which
feigned to hold to ransom, under the threat of bombardment, great
commercial towns, such as Liverpool, and to cause unnecessary
devastation to pleasure towns and bathing-places, such as
Folkestone, through throwing bombs. One of your reporters observed
in a series of letters addressed to the _Times_ that such acts are
contrary to the rules of International Law as well as to the
practice of the present century. He maintained that bombardment of
an open town ought to be allowed only for the purpose of obtaining
requisitions in kind necessary for the enemy fleet and
contributions instead of requisitions, further by the way of
reprisal, and in case the town defends itself against occupation
by enemy troops approaching on land.... Most of the admirals and
naval officers of England who took part in the lively
correspondence which arose in the _Times_ and other journals
during the months of August and September 1880 took up a contrary
attitude....
[Footnote 424: See _Annuaire_, XV. (1896), pp. 148-150.]
[Footnote 425: See _Annuaire_, XV. (1896), p. 313.]
On the basis of this report the Institute, at the same meeting, adopted
a body of rules regarding the bombardment of open towns by naval forces,
declaring that the rules of the law of war concerning bombardment are
the same in the case of land warfare and sea warfare. Of special
interest are articles 4 and 5 of these rules, which run as follows:--
Article 4. In virtue of the general principles above, the
bombardment by a naval force of an open town, that is to say one
which is not defended by fortifications or by other means of
attack or of resistance for immediate defence, or by detached
forts situated in proximity, for example of the maximum distance
of from four to ten kilometres, is inadmissible except in the
following cases:--
(1) For the purpose of obtaining by requisitions or contributions
what is necessary for the fleet. These requisitions or
contributions must in every case remain within the limits
prescribed by articles 56 and 58 of the Manual of the Institute.
(2) For the purpose of destroying sheds, military erections,
depôts of war munitions, or of war vessels in a port. Further, an
open town which defends itself against the entrance of troops or
of disembarked marines can be bombarded for the purpose of
protecting the disembarkation of the soldiers and of the marines,
if the open town attempts to prevent it, and as an auxiliary
measure of war to facilitate the result made by the troops and the
disembarked marines, if the town defends itself. Bombardments of
which the object is only to exact a ransom are specially
forbidden, and, with the stronger reason, those which are intended
only to bring about the submission of the country by the
destruction, for which there is no other motive, of the peaceful
inhabitants or of their property.
Article 5. An open town cannot be exposed to a bombardment for the
only reasons:--
(_a_) That it is the capital of the State or the seat of the
Government (but naturally these circumstances do not guarantee it
in any way against a bombardment).
(_b_) That it is actually occupied by troops, or that it is
ordinarily the garrison of troops of different arms intended to
join the army in time of war.
The First Peace Conference did not settle the matter, but expressed the
desire "that the proposal to settle the question of bombardment of
ports, towns, and villages by a naval force may be referred to a
subsequent Conference for consideration." The Second Peace Conference,
however, by Convention IX.--see above, § 212, p. 265--has provided
detailed rules concerning all the points in question, and the following
is now the law concerning bombardment by naval forces:--
(1) The bombardment of undefended ports, towns, villages, dwellings, or
other buildings is under all circumstances and conditions prohibited
(article 1). To define the term "undefended," article 1 expressly enacts
that "a place cannot be bombarded solely because automatic submarine
contact mines are anchored off the harbour," but Great Britain, France,
Germany, and Japan entered a reservation against this, since they
correctly consider such a place to be "defended."
(2) Although undefended places themselves are exempt, nevertheless
military works, military or naval establishments, depôts of arms or war
material, workshops or plant which could be utilised for the needs of
the hostile fleet or army, and men-of-war in the harbour of undefended
places may be bombarded. And no responsibility is incurred for any
unavoidable damage caused thereby to the undefended place or its
inhabitants. As a rule, however, the commander must, before resorting to
bombardment of these works, ships, and the like, give warning to the
local authorities so that they can destroy the works and vessels
themselves. Only if, for military reasons, immediate action is necessary
and no delay can be allowed to the enemy, may bombardment be resorted to
without previous warning, the commander being compelled to take all due
measures in order that the undefended place itself may suffer as little
harm as possible (article 2).
The first case in which naval forces acted according to these rules
occurred during the Turco-Italian war. On February 25, 1912, Admiral
Faravelli, the commander of an Italian squadron, surprised, at dawn, the
Turkish gunboat _Awni-Illa_ and a torpedo-boat in the port of Beirut.
These vessels were called upon to surrender, they were given until nine
o'clock a.m. to comply with the demand, and the demand was communicated
to the Governor and the Consular authorities. At nine o'clock the
Turkish vessels were again, by signal, summoned to surrender, and as no
reply was received, they were fired at and destroyed, but not without
first having vigorously answered the fire of the Italians. Shells
missing the vessels and bursting on the quay killed and wounded a number
of individuals and damaged several buildings. The Turkish Government
protested against this procedure as a violation of Convention IX. of the
Second Peace Conference, but, provided the official report of Admiral
Faravelli corresponds with the facts, the Turkish protest is unfounded.
(3) In case undefended places do not comply with legitimate
requisitions, they likewise may be bombarded; see details above, § 212.
(4) In case of bombardments, all necessary steps must be taken to spare
buildings devoted to public worship, art, science, or charitable
purposes; historical monuments; hospitals, and places where the sick or
wounded are collected, provided they are not at the time used for
military purposes. To enable the attacking force to carry out this
injunction, the privileged buildings, monuments, and places must be
indicated by visible signs, which shall consist of large stiff
rectangular panels, divided diagonally into two coloured triangular
portions, the upper portion black, the lower portion white (article 5).
Unless military exigencies render it impossible the commander of an
attacking naval force must, before commencing the bombardment, do all in
his power to warn the authorities (article 6).
(5) The giving over to pillage of a town or place, even when taken by
assault, is forbidden (article 7).
VIII
INTERFERENCE WITH SUBMARINE TELEGRAPH CABLES
Moore, VII. § 1176--Westlake, II. pp. 280-283--Liszt, § 41,
III.--Bonfils, No. 1278--Pradier-Fodéré, VI. No. 2772--Fiore, III.
No. 1387, and Code, Nos. 1650-1655--Perels, § 35, p. 185--Perdrix,
_Les câbles sousmarines et leur protection internationale_
(1902)--Kraemer, _Die unterseeischen Telegraphenkabel in
Kriegszeiten_ (1903)--Scholz, _Krieg und Seekabel_
(1904)--Zuculin, _I cavi sottomarini e il telegrafo senza fili nel
diritto di guerra_ (1907)--Holland, in _Journal de Droit
International Privé et de la Jurisprudence comparée_ (Clunet),
XXV. (1898), pp. 648-652, and _War_, No. 114--Goffin, in _The Law
Quarterly Review_, XV. (1899), pp. 145-154--Bar, in the _Archiv
für Oeffentliches Recht_, XV. (1900), pp. 414-421--Rey, in _R.G._
VIII. (1901), pp. 681-762--Dupuis, in _R.G._ X. (1903), pp.
532-547--Nordon in _The Law Magazine and Review_, XXXII. (1907),
pp. 166-188. See also the literature quoted above, vol. I., at the
commencement of § 286.
[Sidenote: Uncertainty of Rules concerning Interference with Submarine
Telegraph Cables.]
§ 214. As the "International Convention[426] for the Protection of
Submarine Telegraph Cables" of 1884 expressly stipulates by article 15
that freedom of action is reserved to belligerents, the question is not
settled how far belligerents are entitled to interfere with submarine
telegraph cables. The only conventional rule concerning this question is
article 54 of the Hague Regulations, inserted by the Second Peace
Conference, which enacts that submarine cables connecting occupied enemy
territory with a neutral territory shall not be seized or destroyed, and
that, if a case of absolute necessity has compelled the occupant to
seize or destroy such cable, it must be restored after the conclusion of
peace and indemnities paid. There is no rule in existence which deals
with other possible cases of seizure and destruction.
[Footnote 426: See above, vol. I. §§ 286 and 287.]
The Institute of International Law has studied the matter and
adopted,[427] at its meeting at Brussels in 1902, the following five
rules:--
(1) Le câble sousmarin reliant deux territoires neutres est
inviolable.
(2) Le câble reliant les territoires de deux belligérants ou deux
parties du territoire d'un des belligérants peut être coupé
partout, excepté dans la mer territoriale et dans les eaux
neutralisées dépendant d'un territoire neutre.
(3) Le câble reliant un territoire neutre au territoire d'un des
belligérants ne peut en aucun cas être coupé dans la mer
territoriale ou dans les eaux neutralisées dépendant d'un
territoire neutre. En haute mer, ce câble ne peut être coupé que
s'il y a blocus effectif et dans les limites de la ligne du
blocus, sauf rétablissement du câble dans le plus bref délai
possible. Le câble peut toujours être coupé sur le territoire et
dans la mer territoriale dépendant d'un territoire ennemi jusqu'à
d'une distance de trois milles marins de la laisse de basse-marée.
(4) Il est entendu que la liberté de l'État neutre de transmettre
des dépêches n'implique pas la faculté d'en user ou d'en permettre
l'usage manifestement pour prêter assistance à l'un des
belligérants.
(5) En ce qui concerne l'application des règles précédentes, il
n'y a de différence à établir ni entre les câbles d'État et les
câbles appartenant à des particuliers, ni entre les câbles de
propriété ennemie et ceux qui sont de propriété neutre.
[Footnote 427: See _Annuaire_, XIX. (1902), p. 331.]
The U.S. Naval War Code, article 5, laid down the following rules:--
(1) Submarine telegraphic cables between points in the territory
of an enemy, or between the territory of the United States and
that of an enemy, are subject to such treatment as the necessities
of war may require.
(2) Submarine telegraphic cables between the territory of an enemy
and neutral territory may be interrupted within the territorial
jurisdiction of the enemy.
(3) Submarine telegraphic cables between two neutral territories
shall be held inviolable and free from interruption.[428]
[Footnote 428: It is impossible for a treatise to discuss the details of
the absolutely unsettled question as to how far belligerents may
interfere with submarine telegraph cables. Readers who take a particular
interest in it may be referred to the excellent monograph of Scholz,
_Krieg und Seekabel_ (1904), which discusses the matter thoroughly and
ably.]
CHAPTER V
NON-HOSTILE RELATIONS OF BELLIGERENTS
I
ON NON-HOSTILE RELATIONS IN GENERAL BETWEEN BELLIGERENTS
Grotius, III. c. 19--Pufendorf, VIII. c. 7, §§ 1-2--Bynkershoek,
_Quaest. jur. publ._ I. c. 1--Vattel, III. §§ 174-175--Hall, §
189--Lawrence, § 210--Phillimore, III. § 97--Halleck, I. pp.
310-311--Taylor, § 508--Wheaton, § 399--Bluntschli, §
679--Heffter, § 141--Lueder in Holtzendorff, IV. pp.
525-527--Ullmann, § 185--Bonfils, Nos. 1237-1238--Despagnet, No.
555--Pradier-Fodéré, VII. Nos. 2882-2887--Rivier, II. p.
367--Calvo, IV. §§ 2411-2412--Fiore, III. No. 1482, and Code, Nos.
1721-1723--Martens, II. § 127--Longuet, §§ 134-135--Mérignhac, pp.
218-220--Pillet, pp. 355-356--_Kriegsbrauch_, p. 38--_Land
Warfare_, §§ 221-223--Emanuel, _Les conventions militaires dans la
guerre continentale_ (1904).
[Sidenote: _Fides etiam hosti servanda._]
§ 215. Although the outbreak of war between States as a rule brings
non-hostile intercourse to an end, necessity of circumstances,
convenience, humanity, and other factors call, or may call, some kinds
of non-hostile relations of belligerents into existence. And it is a
universally recognised principle of International Law that, where such
relations arise, belligerents must carry them out in good faith. _Fides
etiam hosti servanda_ is a rule which was adhered to in antiquity, when
no International Law in the modern sense of the term existed. But it had
then a religious and moral sanction only. Since in modern times war is
not a condition of anarchy and lawlessness between belligerents, but a
contention in many respects regulated, restricted, and modified by law,
it is obvious that, where non-hostile relations between belligerents
occur, they are protected by law. _Fides etiam hosti servanda_ is,
therefore, a principle which nowadays enjoys as well a legal as a
religious and moral sanction.
[Sidenote: Different kinds of Non-hostile Relations.]
§ 216. As through the outbreak of war all diplomatic intercourse and
other non-hostile relations come to an end, it is obvious that
non-hostile relations between belligerents must originate either from
special rules of International Law or from special agreements between
the belligerents.
No special rules of International Law which demanded non-hostile
relations between belligerents existed in former times, but of late a
few rules of this kind have arisen. Thus, for instance, release on
parole[429] of prisoners of war creates an obligation on the part of the
enemy not to re-admit the individuals concerned into the forces while
the war lasts. And, to give another example, by article 4 of the Geneva
Convention of 1906, and article 14 of the Hague Regulations--see also
article 17 of Convention X. of the Second Peace Conference--it is the
duty of either belligerent to return to the enemy, by his
prisoner-of-war bureau, all objects of personal use, letters, jewellery,
and the like found on the battlefield or left by those who died in
hospital.[430] Non-hostile relations of this kind, however, need not be
considered in this chapter, since they have already been discussed on
several previous pages.
[Footnote 429: See above, § 129.]
[Footnote 430: See above, § 144.]
Non-hostile relations originating from special agreements of
belligerents, so-called _commercia belli_, may either be concluded in
time of peace for the purpose of creating certain non-hostile relations
between the parties in case war breaks out, or they may be concluded
during the actual time of war. Such non-hostile relations are created
through passports, safe-conducts, safeguards, flags of truce, cartels,
capitulations, and armistices. Non-hostile relations can also be
created by peace negotiations.[431] Each of these non-hostile relations
must be discussed separately.
[Footnote 431: See below, § 267.]
[Sidenote: Licences to Trade.]
§ 217. Several writers[432] speak of non-hostile relations between
belligerents created by licences to trade granted by a belligerent to
enemy subjects either within certain limits or generally. It has been
explained above, in § 101, that it is for Municipal Law to determine
whether or not through the outbreak of war all trade and the like is
prohibited between the subjects of belligerents. If the Municipal Law of
one or both belligerents does contain such a prohibition, it is of
course within the discretion of one or both of them to grant exceptional
licences to trade to their own or the other belligerent's subjects, and
such licences naturally include certain privileges. Thus, for instance,
if a belligerent allows enemy subjects to trade with his own subjects,
enemy merchantmen engaged in such trade are exempt from capture and
appropriation by the grantor. Yet it is not International Law which
creates this exemption, but the very licence to trade granted by the
belligerent and revocable at any moment; and no non-hostile
international relations between the belligerents themselves originate
from such licences. The matter would be different if, either in time of
peace for the time of war, or, during war, the belligerents agreed to
allow certain trade between their subjects; but non-hostile relations
originating from such an agreement would not be relations arising from a
licence to trade, but from a cartel.[433]
[Footnote 432: See, for instance, Hall, § 196; Halleck, II. pp. 343-363;
Lawrence, § 214; Manning, p. 168; Taylor, § 512; Wheaton, §§ 409-410;
Fiore, III. No. 1500; Pradier-Fodéré, VII. No. 2938.]
[Footnote 433: See below, § 224.]
II
PASSPORTS, SAFE-CONDUCTS, SAFEGUARDS
Grotius, III. c. 21, §§ 14-22--Vattel, III. §§ 265-277--Hall, §§
191 and 195--Lawrence, § 213--Phillimore, III. §§ 98-102--Halleck,
II. pp. 323-328--Taylor, § 511--Wheaton, § 408--Moore, VII. §§
1158-1159--Bluntschli, §§ 675-678--Heffter, § 142--Lueder in
Holtzendorff, IV. pp. 525-527--Ullmann, § 185--Bonfils, Nos.
1246-1247--Despagnet, Nos. 558-561--Pradier-Fodéré, VII. Nos.
2884, 2932-2938--Nys, III. pp. 504-505--Calvo, IV. §§
2413-2418--Fiore, III. No. 1499, and Code, Nos.
1742-1749--Longuet, §§ 142-143--Mérignhac, pp. 239-240--Pillet,
pp. 359-360--_Kriegsbrauch_, p. 41--Holland, _War_, No. 101--_Land
Warfare_, §§ 326-337.
[Sidenote: Passports and Safe-conducts.]
§ 218. Belligerents on occasions arrange between themselves that
passports and safe-conducts shall be given to certain of each other's
subjects. Passports are written permissions given by a belligerent to
enemy subjects, or others, allowing them to travel within that
belligerent's territory or enemy territory occupied by him.
Safe-conducts are written permissions given by a belligerent to enemy
subjects, or others, allowing them to proceed to a particular place for
a defined object, for instance, to a besieged town for conducting
certain negotiations; but safe-conducts may also be given for goods, and
they then comprise permission to carry such goods without molestation to
a certain place. Passports as well as safe-conducts make the grantee
inviolable so long and in so far as he complies with the conditions
specially imposed upon him or made necessary by the circumstances of the
special case. Passports and safe-conducts are not transferable, and they
may be granted to enemy subjects for a limited or an unlimited period;
in the former case their validity ceases with the expiration of the
period. Both may be withdrawn, not only when the grantee abuses the
protection, but also for military expediency. It must, however, be
specially observed that passports and safe-conducts are only a matter
of International Law when the granting of them has been arranged between
the belligerents or their responsible commanders, or between
belligerents and neutral Powers. If they are granted without such an
arrangement, unilaterally on the part of one of the belligerents, they
fall outside the scope of International Law.[434]
[Footnote 434: The distinction between passports and the like arranged
between the belligerents to be granted, on the one hand, and, on the
other, such as are granted unilaterally, would seem to be necessary,
although it is not generally made.]
[Sidenote: Safeguards.]
§ 219. Belligerents on occasions arrange between themselves that they
shall grant protection to certain of each other's subjects or property
against their own forces in the form of safeguards, of which there are
two kinds. One consists in a written order given to an enemy subject or
left with enemy property and addressed to the commander of armed forces
of the grantor, in which the former is charged with the protection of
the respective individual or property, and by which both become
inviolable. The other kind of safeguard is given by detailing one or
more soldiers to accompany enemy subjects or to guard the spot where
certain enemy property is, for the purpose of protection. Soldiers on
this duty are inviolable on the part of the other belligerent; they must
neither be attacked nor made prisoners, and they must, on falling into
the hands of the enemy, be fed, well kept, and eventually safely sent
back to their corps. As in the case of passports and safe-conducts, it
must be specially observed that safeguards are only a matter of
International Law when the granting of them has been arranged by the
belligerents, and not otherwise; except in the case of the safeguards
mentioned by article 8, No. 2, of the Geneva Convention of 1906, who,
according to articles 9 and 12 of that Convention, are inviolable.
III
FLAGS OF TRUCE
Hall, § 190--Lawrence, § 211--Westlake, II. p. 81--Moore, VII. §
1157--Phillimore, III. § 115--Halleck, II. pp. 333, 334--Taylor, §
510--Bluntschli, §§ 681-684--Heffter, § 126--Lueder in
Holtzendorff, IV. pp. 421-423--Ullmann, § 180--Bonfils, Nos.
1239-1245--Despagnet, Nos. 556-557--Pradier-Fodéré, VII. Nos.
2927-2931--Rivier, II. pp. 279-280--Calvo, IV. §§
2430-2432--Fiore, III. No. 1378, and Code, Nos.
1495-1500--Martens, II. § 127--Longuet, §§ 136-138--Mérignhac, pp.
220-225--Pillet, pp. 356-358--Zorn, pp. 195-199--Meurer, II. §§
39-40--Bordwell, p. 293--Spaight, pp. 216-231--_Kriegsbrauch_, pp.
26-29--Holland, _War_, Nos. 88-91--_Land Warfare_, §§ 224-255.
[Sidenote: Meaning of Flags of Truce.]
§ 220. Although the outbreak of war brings all negotiations between
belligerents to an end, and although no negotiations are as a rule
conducted during war, certain circumstances and conditions make it
necessary or convenient for the armed forces of belligerents to enter
into negotiations with each other for various purposes. Since time
immemorial a white flag has been used as a symbol by an armed force
wishing to negotiate with the enemy, and always and everywhere it has
been considered a duty of the enemy to respect this symbol. In land
warfare the flag of truce is made use of in the following manner.[435]
An individual--soldier or civilian--charged by his force with the task
of negotiating with the enemy, approaches the latter either carrying the
flag himself, or accompanied by a flag-bearer and, often, also by a
drummer, a bugler, or a trumpeter, and an interpreter. In sea warfare
the individual charged with the task of negotiating approaches the enemy
in a boat flying the white flag. The Hague Regulations have now by
articles 32 to 34 enacted most of the customary rules of International
Law regarding flags of truce without adding any new rule. These rules
are the same for land warfare as for sea warfare, although their
validity for land warfare is now grounded on the Hague Regulations,
whereas their validity for sea warfare is still based on custom only.
[Footnote 435: See Hague Regulations, article 32.]
[Sidenote: Treatment of Unadmitted Flag-bearers.]
§ 221. As a commander of an armed force is not, according to article 33
of the Hague Regulations, compelled to receive a bearer of a flag of
truce, a flag-bearer who makes his appearance may at once be signalled
to withdraw. Yet even then he is inviolable from the time he displays
the flag to the end of the time necessary for withdrawal. During this
time he may neither be intentionally attacked nor made prisoner.
However, an armed force in battle is not obliged to stop its military
operations on account of the approach of an enemy flag-bearer who has
been signalled to withdraw. Although the latter may not be fired upon
intentionally, should he be wounded or killed accidentally, during the
battle, no responsibility or moral blame would rest upon the belligerent
concerned. In former times the commander of an armed force could inform
the enemy that, within a certain defined or indefinite period, he would
under no circumstances or conditions receive a flag-bearer; if, in spite
of such notice, a flag-bearer approached, he did not enjoy any
privilege, and he could be attacked and made prisoner like any other
member of the enemy forces. But this rule is now obsolete, and its place
is taken by the rule that a commander must never, except in a case of
reprisals, declare beforehand, even only for a specified period, that he
will not receive a bearer of a flag of truce.[436]
[Footnote 436: This becomes quite apparent from the discussion of the
subject at the First Peace Conference; see Martens, _N.R.G._ 2nd Ser.
XXVI. p. 465; and _Land Warfare_, § 234.]
[Sidenote: Treatment of Admitted Flag-bearers.]
§ 222. Bearers of flags of truce and their parties, when admitted by the
other side, must be granted the privilege of inviolability. They may
neither be attacked nor taken prisoners, and they must be allowed to
return safely in due time to their own lines. On the other hand, the
forces admitting enemy flag-bearers need not allow them to acquire
information about the receiving forces and to carry it back to their own
corps. Flag-bearers and their parties may, therefore, be blindfolded by
the receiving forces, or be conducted by roundabout ways, or be
prevented from entering into communication with individuals other than
those who confer officially with them, and they may even temporarily be
prevented from returning till a certain military operation of which they
have obtained information is carried out. Article 33 of the Hague
Regulations specifically enacts that a commander to whom a flag of truce
is sent "may take all steps necessary to prevent the envoy taking
advantage of his mission to obtain information." Bearers of flags of
truce are not, however, prevented from reporting to their corps any
information they have gained by observation in passing through the enemy
lines and in communicating with enemy individuals. But they are not
allowed to sketch maps of defences and positions, to gather information
secretly and surreptitiously, to provoke or to commit treacherous acts,
and the like. If nevertheless they do any of these acts, they may be
court-martialed. Articles 33 and 34 of the Hague Regulations
specifically enact that a flag-bearer may temporarily be detained in
case he abuses his mission for the purpose of obtaining information, and
that he loses all privileges of inviolability "if it is proved beyond
doubt that he has taken advantage of his privileged position to provoke
or commit an act of treachery." Bearers of white flags and their party,
who approach the enemy and are received, must carry[437] some
authorisation with them to show that they are charged with the task of
entering into negotiations (article 32), otherwise they may be detained
as prisoners, since it is his mission and not the white flag itself
which protects the flag-bearer. This mission protects every one who is
charged with it, notwithstanding his position in his corps and his
status as a civilian or a soldier, but it does not protect a deserter.
The latter may be detained, court-martialed, and punished, notice being
given to his principal of the reason of punishment.[438]
[Footnote 437: Article 32 of the Hague Regulations confirms this
customary rule by speaking of an individual who is "authorised" by one
of the belligerents to enter into communication with the other.]
[Footnote 438: See Hall, § 190.]
[Sidenote: Abuse of Flag of Truce.]
§ 223. Abuse of his mission by an authorised flag-bearer must be
distinguished from an abuse of the flag of truce itself. Such abuse is
possible in two different forms:--
(1) The force which sends an authorised flag-bearer to the enemy has to
take up a corresponding attitude; the ranks which the flag-bearer leaves
being obliged to halt and to cease fire. Now it constitutes an abuse of
the flag of truce if such attitude corresponding with the sending of a
flag of truce is intentionally not taken up by the sending force. The
case is even worse when a flag-bearer is intentionally sent on a feigned
mission in order that military operations may be carried out by the
sender under the protection due from the enemy to the flag-bearer and
his party.
(2) The second form of a possible abuse appears in the case in which a
white flag is made use of for the purpose of making the enemy believe
that a flag of truce is about to be sent, although it is not sent, and
of carrying out operations under the protection granted by the enemy to
this pretended flag of truce.
It need hardly be specially mentioned that both forms of abuse are gross
perfidy and may be met with reprisals, or with punishment of the
offenders in case they fall into the hands of the enemy. The following
case of abuse is related by Sir Sherston Baker in Halleck (II. p.
315):--"On July 12, 1882, while the British fleet was lying off
Alexandria, in support of the authority of the Khedive of Egypt, and the
rebels under Arabi Pasha were being driven to great straits, a rebel
boat, carrying a white flag of truce, was observed approaching H.M.S.
_Invincible_ from the harbour, whereupon H.M. ships _Temeraire_ and
_Inflexible_, which had just commenced firing, were ordered to suspend
fire. So soon as the firing ceased, the boat, instead of going to the
_Invincible_, returned to the harbour. A flag of truce was
simultaneously hoisted by the rebels on the Ras-el-Tin fort. These
deceits gave the rebels time to leave the works and to retire through
the town, abandoning the forts, and withdrawing the whole of their
garrison under the flag of truce."
IV
CARTELS
Grotius, III. c. 21, §§ 23-30--Vattel, III. §§ 278-286--Hall, §
193--Lawrence, § 212--Westlake, II. p. 139--Phillimore, III. §§
111-112--Halleck, II. pp. 326-329--Taylor, § 599--Bluntschli, §§
679-680--Heffter, § 142--Lueder in Holtzendorff, IV. pp.
525-529--Ullmann, § 185--Bonfils, Nos. 827 and 1280--Despagnet,
No. 658--Pradier-Fodéré, VII. Nos. 2832-2837, 2888--Rivier, II. p.
360--Nys, III. pp. 521-525--Calvo, IV. §§ 2419-2429--Longuet, §§
140, 141--Pillet, p. 359--_Kriegsbrauch_, p. 38--Holland, _War_,
No. 100, and _Prize Law_, §§ 32-35--_Land Warfare_, §§ 338-339.
[Sidenote: Definition and Purpose of Cartels.]
§ 224. Cartels are conventions between belligerents concluded for the
purpose of permitting certain kinds of non-hostile intercourse between
one another such as would otherwise be prevented by the condition of
war. Cartels may be concluded during peace in anticipation of war, or
during the time of war, and they may provide for numerous purposes.
Thus, communication by post, telegraph, telephone, and railway, which
would otherwise not take place, can be arranged by cartels, as can also
the exchange of prisoners, or a certain treatment of wounded, and the
like. Thus, further, intercourse between each other's subjects through
trade[439] can, either with or without limits, be agreed upon by
belligerents. All rights and duties originating from cartels must be
complied with in the same manner and good faith as rights and duties
arising from other treaties.
[Footnote 439: See above, § 217. But arrangements for granting
passports, safe-conducts, and safeguards--see above, §§ 218 and 219--are
not a matter of cartels.]
[Sidenote: Cartel Ships.]
§ 225. Cartel ships[440] are vessels of belligerents which are
commissioned for the carriage by sea of exchanged prisoners from the
enemy country to their own country, or for the carriage of official
communications to and from the enemy. Custom has sanctioned the
following rules regarding these cartel ships for the purpose of securing
protection for them on the one hand, and, on the other, their exclusive
employment as a means for the exchange of prisoners: Cartel ships must
not do any trade or carry any cargo or despatches;[441] they are
especially not allowed to carry ammunition or instruments of war, except
one gun for firing signals. They have to be furnished with a document
from an official belonging to the home State of the prisoners and
stationed in the country of the enemy declaring that they are
commissioned as cartel ships. They are under the protection of both
belligerents and may neither be seized nor appropriated. They enjoy this
protection not only when actually carrying exchanged prisoners or
official communications, but also on their way home after such carriage
and on their way to fetch prisoners or official communications.[442]
They lose the protection at once, and may consequently be seized and
eventually be appropriated, in case they do not comply, either with the
general rules regarding cartel ships, or with the special conditions
imposed upon them.
[Footnote 440: See above, § 190.]
[Footnote 441: The _La Rosina_ (1800), 2 C. Rob. 372; the _Venus_
(1803), 4 C. Rob. 355.]
[Footnote 442: The _Daifje_ (1800), 3 C. Rob. 139; the _La Gloire_
(1804), 5 C. Rob. 192.]
V
CAPITULATIONS
Grotius, III. c. 22, § 9--Vattel, III. §§ 261-264--Hall, §
194--Lawrence, § 215--Westlake, II. p. 81--Phillimore, III. §§
122-127--Halleck, II. pp. 319-322--Taylor, §§ 514-516--Wheaton, §
405--Moore, VII. § 1160--Bluntschli, §§ 697-699--Heffter, §
142--Lueder in Holtzendorff, IV. p. 527--Ullmann, § 185--Bonfils,
Nos. 1259-1267--Despagnet, No. 562--Pradier-Fodéré, VII. Nos.
2917-2926--Rivier, II. pp. 361-362--Nys, III. pp. 514-517--Calvo,
IV. §§ 2450-2452--Fiore, III. Nos. 1495-1497, and Code, Nos.
1733-1740--Martens, II. § 127--Longuet, §§ 151-154--Mérignhac, pp.
225-230--Pillet, pp. 361-364--Bordwell, p. 294--Meurer, II. §§
41-42--Spaight, pp. 249-259--_Kriegsbrauch_, pp. 38-41--Holland,
_War_, No. 92--_Land Warfare_, §§ 301-325.
[Sidenote: Character and Purpose of Capitulations.]
§ 226. Capitulations are conventions between armed forces of
belligerents stipulating the terms of surrender of fortresses and other
defended places, or of men-of-war, or of troops. It is, therefore,
necessary to distinguish between a _simple_ and a _stipulated_
surrender. If one or more soldiers lay down their arms and surrender, or
if a fortress or a man-of-war surrenders without making any terms
whatever, there is no capitulation, for capitulation is a convention
stipulating the terms of surrender.
Capitulations are military conventions only and exclusively; they must
not, therefore, contain arrangements other than those of a local and
military character concerning the surrendering forces, places, or
ships. If they do contain such arrangements, the latter are not valid,
unless they are ratified by the political authorities of both
belligerents.[443] The surrender of a certain place or force may, of
course, be arranged by some convention containing other than military
stipulations, but then such surrender would not originate from a
capitulation. And just as is their character, so the purpose of
capitulations is merely military--namely, the abandonment of a hopeless
struggle and resistance which would only involve useless loss of life on
the part of a hopelessly beset force. Therefore, whatever may be the
indirect consequences of a certain capitulation, its direct consequences
have nothing to do with the war at large, but are local only and concern
the surrendering force exclusively.
[Footnote 443: See Phillimore, III. § 123, who discusses the promise of
Lord William Bentinck to Genoa, in 1814, regarding its independence,
which was disowned by the British Government. Phillimore himself
disapproves of the attitude of Great Britain, and so do some foreign
publicists, as, for instance, Despagnet (No. 562); but the rule that
capitulations are military conventions, and that, therefore, such
stipulations are not valid as are not of a local military character, is
indubitable.]
[Sidenote: Contents of Capitulations.]
§ 227. If special conditions are not agreed upon in a capitulation, it
is concluded under the obvious condition that the surrendering force
become prisoners of war, and that all war material and other public
property in their possession or within the surrendering place or ship
are surrendered in the condition they were at the time when the
signature was given to the capitulation. Nothing prevents a force
fearing surrender from destroying their provisions, munitions, their
arms and other instruments of war which, when falling into the hands of
the enemy, would be useful to him. Again, nothing prevents a commander,
even after negotiations regarding surrender have begun, from destroying
such articles. But when once a capitulation has been signed,[444] such
destruction is no longer lawful, and, if carried out, constitutes
perfidy which may be punished by the other party as a war crime.
[Footnote 444: When, during the Russo-Japanese War, in January 1905,
General Stoessel, the Commander of Port Arthur, had fortifications blown
up and vessels sunk, during negotiations for surrender, but before the
capitulation was signed, the Press undeservedly accused him of perfidy.
U.S. Naval War Code, article 52, enacted the right principle, that
"_after agreeing upon or signing_ a capitulation, the capitulator must
neither injure nor destroy the vessels, property, or stores in his
possession that he is to deliver up, unless the right to do so is
expressly reserved to him in the agreement or capitulation."]
But special conditions may be agreed upon between the forces concerned,
and they must then be faithfully adhered to by both parties. The only
rule which article 35 of the Hague Regulations enacts regarding
capitulations is that the latter must be in accordance with the demands
of military honour, and that, when once settled, they must be
scrupulously observed. It is instructive to give some instances of
possible conditions:--A condition of a capitulation may be the provision
that the convention shall be valid only if within a certain period
relief troops are not approaching. Provision may, further, be made that
the surrendering forces shall not in every detail be treated like
ordinary prisoners of war. Thus it may be stipulated that the officers
or even the soldiers shall be released on parole, that officers
remaining prisoners shall retain their swords. Whether or not a
belligerent will grant or even offer such specially favourable
conditions depends upon the importance of the force, place, or ship to
be surrendered, and upon the bravery of the surrendering force. There
are even instances of capitulations which stipulated that the
surrendering forces should leave the place with full honours, carrying
their arms and baggage away and joining their own army unmolested by the
enemy through whose lines they had to march.[445]
[Footnote 445: During the Franco-German War the Germans granted these
most favourable conditions to the French forces that surrendered Belfort
on February 15, 1871.]
[Sidenote: Form of Capitulations.]
§ 228. No rule of International Law exists regarding the form of
capitulations, which may, therefore, be concluded either orally or in
writing. But they are usually concluded in writing. Negotiations for
surrender, from whichever side they emanate, are usually sent under a
flag of truce, but a force which is ready to surrender without special
conditions can indicate their intention by hoisting a white flag as a
signal that they abandon all and every resistance. The question whether
the enemy must at once cease firing and accept the surrender, is to be
answered in the affirmative, provided he is certain that the white flag
was hoisted by order or with the authority of the commander of the
respective force. As, however, such hoisting may well have taken place
without the authority of the commander and may, therefore, be disowned
by the latter, no duty exists for the enemy to cease his attack until he
is convinced that the white flag really indicates the intention of the
commander to surrender.
[Sidenote: Competence to conclude Capitulations.]
§ 229. The competence to conclude capitulations is vested in the
commanders of the forces opposing each other. Capitulations entered into
by unauthorised subordinate officers may, therefore, be disowned by the
commander concerned without breach of faith. As regards special
conditions of capitulations, it must be particularly noted that the
competence of a commander to grant them is limited[446] to those the
fulfilment of which depends entirely upon the forces under his command.
If he grants conditions against his instructions, his superiors may
disown such conditions. And the same is valid if he grants conditions
the fulfilment of which depends upon forces other than his own and upon
superior officers. The capitulation in El Arish[447] on January 24,
1800, arranged between the French General Kléber and the Turkish Grand
Vizier, and approved by the British Admiral, Sir Sidney Smith, presents
an illustrative example of this rule. As General Kléber, who was
commanding the French army in Egypt, thought that he could not remain in
Egypt, he proposed surrender under the condition that his army should be
safely transported to France, carrying away their arms and baggage. The
Grand Vizier accepted these conditions. The British Admiral, Sir Sidney
Smith, who approved of these conditions, was the local commander on the
coast of Egypt, but was an officer inferior to Lord Keith, the commander
of the British Mediterranean fleet. The latter had, on January 8, 1800,
received secret orders, dated December 15, 1799, from the British
Government instructing him not to agree to any capitulation which
stipulated the free return of Kléber's army to France. Sir Sidney Smith
did not, however, receive instructions based on these orders until
February 22, 1800, and, therefore, when he approved of the capitulation
of El Arish in January, was not aware that he acted against orders of
the British Government.[448] Lord Keith, after having received the above
orders on January 8, 1800, wrote at once to General Kléber, pointing out
that he was not allowed to grant the return of the French army to
France.[449] On the other hand, the British Government, after having
been informed that Sir Sidney Smith had approved of the return of the
French army, sent, on March 28, 1800, fresh orders[450] to Lord Keith,
received by him at the end of April, advising him, although Sir Sidney
Smith had exceeded his competence, to allow the capitulation to be
carried out and the French army to be safely transported to France.
Meanwhile, however, circumstances had entirely changed. When General
Kléber had on March 17, 1800, received Lord Keith's letter of January 8,
he addressed a proclamation,[451] in which Lord Keith's letter was
embodied, to his troops asking them to prepare themselves for battle and
actually began hostilities again on March 20. He was assassinated on
June 14, and General Menou took over the command, and it was the latter
who received, on June 20, 1800, information of the changed attitude of
the British Government regarding the capitulation of El Arish.
Hostilities having been renewed as far back as March, General Menou
refused,[452] on his part, to consent to the carrying out of the
capitulation, and continued hostilities.
[Footnote 446: See U.S. Naval War Code, article 51.]
[Footnote 447: Martens, _R._ VII. p. 1.]
[Footnote 448: Martens, _R._ VII. pp. 8 and 9.]
[Footnote 449: Martens, _R._ VII. p. 10.]
[Footnote 450: Martens, _R._ VII. p. 11.]
[Footnote 451: Martens, _R._ VII. p. 15.]
[Footnote 452: Martens, _R._ VII. p. 16.]
It is obvious that Sir Sidney Smith, in approving the capitulation,
granted a condition which did not depend entirely upon himself and the
forces under him, but which depended upon Lord Keith and his fleet. Lord
Keith as well as the British Government could have lawfully disowned
this condition. That the British Government did not do so, but was ready
to ratify Sir Sidney Smith's approval, was due to the fact that it did
not want to disavow the promises of Sir Sidney Smith, who was not at the
time aware of the orders of his Government to Lord Keith. On the other
hand, the French Generals were not wrong in resuming hostilities after
having received Lord Keith's first information, as thereby the
capitulation fell to the ground.
[Sidenote: Violation of Capitulations.]
§ 230. That capitulations must be scrupulously adhered to is an old
customary rule, now enacted by article 35 of the Hague Regulations. Any
act contrary to a capitulation would constitute an international
delinquency if ordered by the belligerent Government concerned, and a
war crime if committed without such order. Such violation may be met
with reprisals or punishment of the offenders as war criminals.
VI
ARMISTICES
Grotius, III. c. 21, §§ 1-13, c. 22, § 8--Pufendorf, VIII. c. 7,
§§ 3-12--Vattel, III. §§ 233-260--Hall, § 192--Lawrence, §
216--Westlake, p. 82--Phillimore, III. §§ 116-121--Halleck, II.
pp. 311-319--Moore, VII. § 1162--Taylor, §§ 513 and 516--Wheaton,
§§ 400-404--Bluntschli, §§ 688-699--Heffter, § 142--Lueder in
Holtzendorff, IV. pp. 531-544--Ullmann, § 186--Bonfils, Nos.
1248-1258--Despagnet, Nos. 563-566--Pradier-Fodéré, VII. Nos.
2889-2918--Rivier, II. pp. 362-368--Nys, III. pp. 518-520--Calvo,
IV. §§ 2433-2449--Fiore, III. Nos. 1484-1494, and Code, Nos.
1750-1763--Martens, II. § 127--Longuet, §§ 145-149--Mérignhac, pp.
230-239--Pillet, pp. 364-370--Zorn. pp. 201-206--Bordwell, p.
291--Meurer, II. §§ 43-44--Spaight, pp. 232-248--_Kriegsbrauch_,
pp. 41-44--Holland, _War_, Nos. 93-99--_Land Warfare_, §§ 256-300.
[Sidenote: Character and Kinds of Armistices.]
§ 231. Armistices or truces, in the wider sense of the term, are all
agreements between belligerent forces for a temporary cessation of
hostilities. They are in no wise to be compared with peace, and ought
not to be called temporary peace, because the condition of war remains
between the belligerents themselves, and between the belligerents and
neutrals on all points beyond the mere cessation of hostilities. In
spite of such cessation the right of visit and search over neutral
merchantmen therefore remains intact, as does likewise the right to
capture neutral vessels attempting to break a blockade, and the right to
seize contraband of war. However, although all armistices are
essentially alike in so far as they consist of cessation of hostilities,
three different kinds must be distinguished--namely, (1) suspensions of
arms, (2) general armistices, and (3) partial armistices.[453] It must
be emphasised that the Hague Regulations deal with armistices in
articles 36 to 41 very incompletely, so that the gaps need filling up
from old customary rules.
[Footnote 453: Although, as will be seen from the following sections,
this distinction is absolutely necessary, it is not made by several
publicists. Holland, _War_, No. 93, even says: "There is no difference
of meaning, according to British usage at least, between a 'truce,' an
'armistice,' and a 'suspension of arms.'" _Land Warfare_, § 256--see in
especial note (_a_)--accepts the distinction as indispensable.]
[Sidenote: Suspensions of Arms.]
§ 232. Suspensions of arms, in contradistinction to armistices in the
narrower sense of the term, are such cessations of hostilities as are
agreed upon between large or small military or naval forces for a very
short time and regarding momentary and local military purposes only.
Such purposes may be--collection of the wounded; burial of the dead;
negotiation regarding surrender or evacuation of a defended place, or
regarding an armistice in the narrower sense of the term; but may also
be the creation of a possibility for a commander to ask for and receive
instructions from a superior authority,[454] and the like. Suspensions
of arms have nothing to do with political purposes, or with the war
generally, since they are of momentary and local importance only. They
concern exclusively those forces and that spot which are the object of
the suspension of arms. The Hague Regulations do not specially mention
suspensions of arms, since article 37 speaks of local armistices only,
apparently comprising suspensions of arms among local armistices.
[Footnote 454: An instructive example of a suspension of arms for such
purposes is furnished by the Convention between the German forces
besieging Belfort and the French forces holding this fortress during the
Franco-German War, signed on February 13, 1871; see Martens, _N.R.G._
XIX. p. 646.]
[Sidenote: General Armistices.]
§ 233. A general armistice is such a cessation of hostilities as, in
contradistinction to suspensions of arms with their momentary and local
military purposes, is agreed upon between belligerents for the whole of
their forces and the whole region of war. General armistices are always
conventions of vital political importance affecting the whole of the
war. They are as a rule, although not necessarily, concluded for a
political purpose. It may be that negotiations of peace have ripened so
far that the end of the war is in sight and that, therefore, military
operations appear superfluous; or that the forces of either belligerent
are exhausted and need rest; or that the belligerents have to face
domestic difficulties, the settlement of which is more pressing than the
continuation of the war; or any other political purpose. Thus article 2
of the general armistice agreed upon at the end of the Franco-German War
on January 28, 1871,[455] expressly declared the purpose of the
armistice to be the creation of the possibility for the French
Government to convoke a Parliamentary Assembly which could determine
whether or not the war was to be continued or what conditions of peace
should be accepted.
[Footnote 455: Martens, _N.R.G._ XIX. p. 626.]
It is of importance to note that, for particular reasons, small parts of
the belligerent forces and small parts of the theatre of war may be
specially excluded without detracting from the general character of the
armistice, provided the bulk of the forces and the greater part of the
region of war are included. Thus, article 1 of the above-mentioned
general armistice at the end of the Franco-German war specially excluded
all military operations in the Départements du Doubs, du Jura, de la
Côte d'Or, and likewise the siege of Belfort. It should also be
mentioned that in the practice of belligerents the terms "suspension of
arms" and "general armistice" are sometimes not sufficiently
distinguished, but are interchangeable. Thus, for instance, the
above-mentioned general armistice between France and Germany is entitled
"Convention entre l'Allemagne et la France pour la suspension des
hostilités, ..." whereas the different articles of the Convention always
speak correctly of an armistice, and whereas, further, an annexe to the
Convention signed on January 29 is entitled[456] "Annexe à la Convention
d'armistice."
[Footnote 456: Martens, _N.R.G._ XIX. p. 636.]
[Sidenote: Partial Armistices.]
§ 234. Partial armistices are agreements for cessations of hostilities
which are not concluded by belligerents for their whole forces and the
whole region of war, but do not merely serve, like suspensions of arms,
momentary and local military purposes. They are armistices concluded by
belligerents for a considerable part of their forces and front; they are
always of political importance affecting the war in general; and they
are very often, although they need not be, agreed upon for political
purposes. Article 37 of the Hague Regulations apparently includes
partial armistices together with suspensions of arms under the term
"local" armistices. A partial armistice may be concluded for the
military or the naval forces only; for cessation of hostilities in the
colonies only; for cessation of hostilities between two of the
belligerents in case more than two are parties to the war, and the like.
But it is always a condition that a considerable part of the forces and
region of war must be included, and that the purpose is not only a
momentary one.
[Sidenote: Competence to conclude Armistices.]
§ 235. As regards the competence to conclude armistices, a distinction
is necessary between suspensions of arms and general and partial
armistices.
(1) Since the character and purpose of suspensions of arms are military,
local, and momentary only, every commander is supposed to be competent
to agree upon a suspension of arms, and no ratification on the part of
superior officers or other authorities is required. Even commanders of
the smallest opposing detachments may arrange a suspension of arms.
(2) On the other hand, since general armistices are of vital political
importance, only the belligerent Governments themselves or their
commanders-in-chief are competent to conclude them, and ratification,
whether specially stipulated or not, is necessary. Should a
commander-in-chief conclude a general armistice which would not find
ratification, hostilities may at once be recommenced without breach of
faith, it being a matter of common knowledge that a commander-in-chief
is not authorised to agree upon exclusion of ratification, unless he
received special powers thereto.
(3) Partial armistices may be concluded by the commanders-in-chief of
the respective forces, and ratification is not necessary, unless
specially stipulated; the commanders being responsible to their own
Governments in case they agree upon a partial armistice without being
specially authorised thereto.
[Sidenote: Form of Armistices.]
§ 236. No legal rule exists regarding the form of armistices, which may
therefore be concluded either orally or in writing. However, the
importance of general as well as partial armistices makes it advisable
to conclude them by signing written documents containing all items which
have been agreed upon. No instance is known of a general or partial
armistice of modern times concluded otherwise than in writing. But
suspensions of arms are often only orally concluded.
[Sidenote: Contents of Armistices.]
§ 237. That hostilities must cease is the obvious content of all kinds
of armistices. Usually, although not at all necessarily, the parties
embody special conditions in the agreement instituting an armistice. If
and so far as this has not been done, the import of armistices is for
some parts much controverted. Everybody agrees that belligerents during
an armistice may, outside the line where the forces face each other, do
everything and anything they like regarding defence and preparation of
offence; for instance, they may manufacture and import munitions and
guns, drill recruits, build fortresses, concentrate or withdraw troops.
But no unanimity exists regarding such acts as must be left undone or
may be done within the very line where the belligerent forces face each
other. The majority of writers, led by Vattel (III. § 245), maintain
that in the absence of special stipulations it is essentially implied in
an armistice that within such line no alteration of the _status quo_
shall take place which the other party, were it not for the armistice,
could by application of force, for instance by a cannonade or by some
other means, prevent from taking place. These writers consider it a
breach of faith for a belligerent to make such alterations under the
protection of the armistice. On the other hand, a small minority of
writers, but led by Grotius (III. c. 21, § 7) and Pufendorf (VIII. 7, §
7), assert that cessation of hostilities and of further advance only are
essentially implied in an armistice; all other acts, such as
strengthening of positions by concentration of more troops on the spot,
erection and strengthening of defences, repairing of breaches of
besieged fortresses, withdrawing of troops, making of fresh batteries on
the part of besiegers without advancing, and the like, being allowed. As
the Hague Regulations do not mention the matter, the controversy still
remains unsettled. I believe the opinion of the minority to be correct,
since an armistice does not mean anything else than a cessation of
actual hostilities, and it is for the parties who agree upon an
armistice to stipulate such special conditions as they think necessary
or convenient. This applies particularly to the other controversial
questions as to revictualling of besieged places and as to intercourse,
commercial and otherwise, of the inhabitants of the region where actual
fighting was going on before the armistice. As regards revictualling, it
has been correctly maintained that, if it were not allowed, the position
of the besieged forces would thereby be weakened by the action of the
armistice. But I cannot see why this should be an argument to hold
revictualling permissible. The principle _vigilantibus jura sunt
scripta_ applies to armistices as well as to all other legal
transactions. It is for the parties to prepare such arrangements as
really suit their needs and wants. Thus, during the Franco-German War an
armistice for twenty-five days proposed in November 1870 fell to the
ground on the Germans refusing to grant the revictualling of Paris.[457]
It seems to be the intention of the Hague Regulations that the parties
should always stipulate those special conditions which they need.
Article 39 pronounces this intention regarding intercourse, commercial
and otherwise, during armistices, by the following words:--"It is for
the contracting parties to settle in the terms of the armistice what
communications may be held within the theatre of war with the population
and with each other."
[Footnote 457: See Pradier-Fodéré, VII. No. 2908, where the question of
revictualling during an armistice is discussed at some length, and the
opinions of many publicists from Grotius to our own days are quoted.]
It must be specially mentioned that for the purpose of preventing the
outbreak of hostilities during an armistice it is usual to agree upon
so-called lines of demarcation[458]--that is, a small neutral zone
between the forces facing each other which must not be entered by
members of either force. But such lines of demarcation do not exist, if
they are not specially stipulated by the armistice concerned.
[Footnote 458: See Pradier-Fodéré, VII. No. 2901.]
[Sidenote: Commencement of Armistices.]
§ 238. In case the contrary is not stipulated, an armistice commences
the very moment the agreement upon it is complete. But often the parties
stipulate in the agreement the time from which the armistice shall
begin. If this is done in so detailed a manner that the very hour of the
commencement is mentioned, no cause for controversy is given. But
sometimes the parties fix only the date by stipulating that the
armistice shall last from one certain day to another, _e.g._ from June
15 to July 15. In such case the actual commencement is controversial.
Most publicists maintain that in such case the armistice begins at 12
o'clock of the night between the 14th and the 15th of June, but Grotius
(III. c. 21, § 4) maintains that it begins at 12 o'clock of the night
between the 15th and the 16th of June.[459] Therefore, to avoid
difficulties, agreements concerning armistices ought always to stipulate
whether the first day is to be included in the armistice. Be that as it
may, when the forces included in an armistice are dispersed over a very
large area, the parties very often stipulate different dates of
commencement for the different parts of the front, because it is not
possible to announce the armistice at once to all the forces included.
Thus, for instance, article 1 of the general armistice at the end of the
Franco-German War[460] stipulated its immediate commencement for the
forces in and around Paris, but that with regard to the other forces its
commencement should be delayed three days. Article 38 of the Hague
Regulations enacts that an armistice must be notified officially and in
good time to the competent authorities and the troops, and that
hostilities are suspended immediately after the ratification or at a
fixed date, as the case may be.
[Footnote 459: See Pradier-Fodéré, VII. No. 2897. The controversy occurs
again with regard to the end of an armistice; see below, § 240.]
[Footnote 460: Martens, _N.R.G._ XIX. p. 626.]
It sometimes happens that hostilities are carried on after the
commencement of an armistice by forces which did not know of its
commencement. In such cases the _status quo_ at the date of the
commencement of armistice has to be re-established so far as possible,
prisoners made and enemy vessels seized being liberated, capitulations
annulled, places occupied evacuated, and the like; but the parties may,
of course, stipulate the contrary.
[Sidenote: Violation of Armistices.]
§ 239. Any violation of armistices is prohibited, and, if ordered by the
Governments concerned, constitutes an international delinquency. In case
an armistice is violated by members of the forces on their own account,
the individuals concerned may be punished by the other party in case
they fall into its hands. Be that as it may, the question must be
answered, what general attitude is to be taken by one party, if the
other violates the armistice? No unanimity regarding this point exists
among the writers on International Law, many[461] asserting that in case
of violation the other party may at once, without giving notice, re-open
hostilities; others[462] maintaining that such party may not do this,
but has only the right to denounce the armistice. The Hague Regulations
endeavour to settle the controversy, article 40 enacting that any
serious violation of an armistice by one of the parties gives the other
the right to denounce it, and even, in case of urgency, to recommence
hostilities at once. Three rules may be formulated from this--(1)
violations which are not serious do not even give the right to denounce
an armistice; (2) serious violations do as a rule empower the other
party to denounce only the armistice, but not to recommence hostilities
at once without notice; (3) only in case of urgency is a party justified
in recommencing hostilities without notice, when the other party has
broken an armistice. But since the terms "serious violation" and
"urgency" lack precise definition, it is practically left to the
discretion of the injured party.
It must be specially observed that violation of an armistice committed
by private individuals acting on their own initiative is to be
distinguished from violation by members of the armed forces. In the
former case the injured party has, according to article 41 of the Hague
Regulations, only the right of demanding punishment of the offenders,
and, if necessary, indemnity for losses sustained.
[Footnote 461: See, for instance, Grotius, III. c. 21, § 11; Pufendorf,
VIII. c. 7, § 11; Vattel, III. § 242; Phillimore, II. § 121; Bluntschli,
§ 695; Fiore, III. No. 1494.]
[Footnote 462: See, for instance, Calvo, IV. § 2436; Despagnet, No. 566;
Pradier-Fodéré, VII. No. 2913.]
[Sidenote: End of Armistices.]
§ 240. In case an armistice has been concluded for an indefinite period,
the parties having made no stipulations regarding notice to recommence
hostilities, notice may be given at any time, and hostilities
recommenced at once after notification. In most cases, however,
armistices are agreed upon for a definite period, and then they expire
with such period without special notice, unless notification has been
expressly stipulated. If, in case of an armistice for a definite period,
the exact hour of the termination has not been agreed upon, but only the
date, the armistice terminates at twelve o'clock midnight of such date.
In case an armistice has been arranged to last from one certain day to
another, _e.g._ from June 15 to July 15, it is again[463] controversial
whether July 15 is excluded or included. An armistice may, lastly, be
concluded under a resolutive condition, in which case the occurrence of
the condition brings the armistice to an end.
[Footnote 463: See above, § 238.]
CHAPTER VI
MEANS OF SECURING LEGITIMATE WARFARE
I
ON MEANS IN GENERAL OF SECURING LEGITIMATE WARFARE
Bonfils, Nos. 1014-1017--Spaight, p. 460--_Land Warfare_, §§
435-438.
[Sidenote: Legitimate and Illegitimate Warfare.]
§ 241. Since war is not a condition of anarchy and lawlessness,
International Law requires that belligerents shall comply with its rules
in carrying on their military and naval operations. So long and in so
far as belligerents do this, their warfare is legitimate; if they do not
comply with the rules, their warfare is illegitimate. Now, illegitimate
acts and omissions can be committed by belligerent Governments
themselves, by the commanders or members of their forces, and by their
subjects not belonging to the forces. Experience teaches that, on the
whole, omissions and the committal of illegitimate acts on the part of
individual soldiers are unavoidable during war, since the passions which
are aroused by and during war will always carry away some individuals.
But belligerents bear a vicarious responsibility for internationally
illegal acts of their soldiers, which turns into original responsibility
if they refuse to repair the wrong done by punishing the offenders and,
if necessary, indemnifying the sufferers.[464] Cases in which
belligerent Governments themselves commit illegitimate acts, as well as
cases in which they refuse to punish their soldiers for illegitimate
acts constitute international delinquencies.[465] Now, if in time of
peace an international delinquency is committed, the offended State can,
if the worst comes to the worst, make war against the offender to compel
adequate reparation.[466] But if an international delinquency is
committed during warfare itself, no means whatever exist of compelling
reparation.
[Footnote 464: See above, vol. I. §§ 149-150.]
[Footnote 465: See above, vol. I. § 151.]
[Footnote 466: See above, vol. I. § 156.]
[Sidenote: How Legitimate Warfare is on the whole secured.]
§ 242. Yet legitimate warfare is, on the whole at any rate, secured
through several means recognised by International Law. These means of
securing legitimate warfare may be divided into three classes. The first
class comprises measures of self-help:--reprisals; punishment of war
crimes committed by enemy soldiers and other enemy subjects; the taking
of hostages. The second class comprises:--complaints lodged with the
enemy; complaints lodged with neutral States; good offices, mediation,
and intervention on the part of neutral States. And there is, thirdly,
the fact that, according to article 3 of Convention IV. of the Second
Peace Conference, belligerents are responsible for all acts committed by
persons forming part of their forces, and are liable to make
compensation, if the case demands it, for any violation of the Hague
Regulations. These means, as I have said, do on the whole secure the
legitimacy of warfare, because it is to the interest of either
belligerent to prevent the enemy from getting a justifiable opportunity
of making use of them. On the other hand, isolated illegitimate acts of
individual enemy soldiers will always occur; but they will in many cases
meet with punishment either by one party to the war or the other. As
regards hostile acts of private enemy individuals not belonging to the
armed forces, belligerents have a right[467] to consider and punish them
severely as acts of illegitimate warfare.
[Footnote 467: See below, § 254.]
II
COMPLAINTS, GOOD OFFICES AND MEDIATION, INTERVENTION
_Land Warfare_, §§ 439-440.
[Sidenote: Complaints lodged with the Enemy.]
§ 243. Commanders of forces engaged in hostilities frequently lodge
complaints with each other regarding single acts of illegitimate warfare
committed by members of their forces, such as abuses of the flag of
truce, violations of such flag or of the Geneva Convention, and the
like. The complaint is sent to the enemy under the protection of a flag
of truce, and the interest which every commander takes in the legitimate
behaviour of his troops will always make him attend to complaints and
punish the offenders, provided the complaints concerned are found to be
justified. Very often, however, it is impossible to verify the
statements in the complaint, and then certain assertions by one party,
and their denial by the other, face each other without there being any
way of solving the difficulty. It also often happens during war that the
belligerent Governments lodge with each other mutual complaints of
illegitimate acts and omissions. Since diplomatic intercourse is broken
off during war, such complaints are either sent to the enemy under the
protection of a flag of truce or through a neutral[468] State which
lends its good offices. But here too indignant assertion and emphatic
denial frequently face each other without there being a way of solving
the conflict.
[Footnote 468: Thus, in October 1904, during the Russo-Japanese War,
Japan sent a complaint concerning the alleged use of Chinese clothing on
the part of Russian troops to the Russian Government, through the
intermediary of the United States of America; see Takahashi, pp.
174-178.]
[Sidenote: Complaints lodged with Neutrals.]
§ 244. If certain grave illegitimate acts or omissions of warfare occur,
belligerents frequently lodge complaints with neutral States, either
asking their good offices, mediation, or intervention to make the enemy
comply with the laws of war, or simply drawing their attention to the
facts. Thus, at the beginning of the Franco-German War, France lodged a
complaint with Great Britain and asked her intervention on account of
the intended creation of a volunteer fleet on the part of Germany, which
France considered a violation of the Declaration of Paris.[469]
Conversely, in January 1871, Germany, in a circular addressed to her
diplomatic envoys abroad, and to be communicated to the respective
neutral Governments, complained of twenty-one cases in which the French
forces had, deliberately and intentionally it was alleged, fired on
bearers of a flag of truce. Again, in November 1911, and in February
1912, during the Turco-Italian War, Turkey lodged a complaint with the
Powers on account of the execution of Arabs in Tripoli as war criminals,
and on account of the bombardment of Turkish war vessels in the harbour
of Beirut.[470]
[Footnote 469: See above, § 84.]
[Footnote 470: See above, § 213.]
[Sidenote: Good Offices and Mediation.]
§ 245. Complaints lodged with neutral States may have the effect of one
or more of the latter lending their offices or their mediation to the
belligerents for the purpose of settling such conflict as arose out of
the alleged illegitimate acts or omissions of warfare, thus preventing
them from resorting to reprisals. Such good offices and mediation do not
differ from those which settle a difference between States in time of
peace and which have been discussed above in §§ 7-11; they are friendly
acts in contradistinction to intervention, which is dictatorial
interference for the purpose of making the respective belligerents
comply with the laws of war.
[Sidenote: Intervention on the part of Neutrals.]
§ 246. There can be no doubt that neutral States, whether a complaint
has been lodged with them or not, may either singly, or jointly and
collectively, exercise intervention in cases of illegitimate acts or
omissions of warfare being committed by belligerent Governments, or
committed by members of belligerent forces if the Governments concerned
do not punish the offenders. It will be remembered that it has been
stated above in Vol. I. § 135, No. 4, that other States have a right to
intervene in case a State violates in time of peace or war those
principles of the Law of Nations which are universally recognised. There
is not the slightest doubt that such principles of International Law are
endangered in case a belligerent Government commits acts of illegitimate
warfare or does not punish the offenders in case such acts are committed
by members of its armed forces. But apart from this, the Hague
Regulations make illegitimate acts of warfare on land now appear as by
right the affair of all signatory States to the Convention, and
therefore, in case of war between signatory States, the neutral
signatory States certainly would have a right of intervention if acts of
warfare were committed which are illegitimate according to the Hague
Regulations. It must, however, be specially observed that any such
intervention, if it ever occurred, would have nothing to do with the war
in general and would not make the intervening State a party to the war,
but would concern only the international delinquency committed by the
one belligerent through acts of illegitimate warfare.
III
REPRISALS
Vattel, III. p. 142--Hall, § 135--Westlake, II. pp. 112-115, and
_Chapters_, pp. 253-258--Taylor, §§ 487 and 507--Wharton, III. §
348B--Moore, VII. § 1114--Bluntschli, §§ 567, 580, 654,
685--Lueder in Holtzendorff, IV. p. 392--Pradier-Fodéré, VIII.
Nos. 3214-3221--Bonfils, Nos. 1018-1026--Despagnet, No.
543--Rivier, II. pp. 298-299--Calvo, IV. §§ 2041-2043--Martens,
II. § 121--Mérignhac, pp. 210-218--Holland, _War_, Nos.
119-120--Bordwell, p. 305--Spaight, pp. 462-465--_Land Warfare_,
§§ 452-460--Halleck in _A.J._ VI. (1912), pp. 107-118.
[Sidenote: Reprisals between Belligerents in contradistinction to
Reprisals in time of Peace.]
§ 247. Whereas reprisals in time of peace are to be distinguished from
retorsion and are injurious acts committed for the purpose of compelling
a State to consent to a satisfactory settlement of a difference created
through an international delinquency,[471] reprisals between
belligerents are retaliation of an illegitimate act of warfare, whether
constituting an international delinquency or not, for the purpose of
making the enemy comply in future with the rules of legitimate warfare.
Reprisals between belligerents are terrible means, because they are in
most cases directed against innocent enemy individuals, who must suffer
for real or alleged offences for which they are not responsible. But
reprisals cannot be dispensed with, because without them illegitimate
acts of warfare would be innumerable. As matters stand, every
belligerent and every member of his forces knows for certain that
reprisals are to be expected in case they violate the rules of
legitimate warfare. And when nevertheless an illegal act occurs and is
promptly met with reprisals as a retaliation, human nature would not be
what it is if such retaliation did not act as a deterrent against a
repetition of illegitimate acts.
[Footnote 471: See above, §§ 33 and 42.]
[Sidenote: Reprisals admissible for every Illegitimate Act of Warfare.]
§ 248. Whereas reprisals in time of peace are admissible for
international delinquencies only, reprisals between belligerents are at
once admissible for every and any act of illegitimate warfare, whether
the act constitutes an international delinquency or not. It is for the
consideration of the injured belligerent as to whether he will at once
resort to reprisals, or, before doing so, will lodge complaints with the
enemy or with neutral States. Practically, however, a belligerent will
rarely resort at once to reprisals, provided the violation of the rules
of legitimate warfare is not very grave and the safety of his troops
does not require prompt and drastic measures. Thus, the Germans during
the Franco-German War frequently by way of reprisal, bombarded and fired
undefended open villages where their soldiers were treacherously killed
by enemy individuals in ambush who did not belong to the armed forces.
And Lord Roberts, during the South African War, ordered[472] by way of
reprisal the destruction of houses and farms in the vicinity of the
place where damage was done to the lines of communication.[473]
[Footnote 472: See section 4 of the Proclamation of June 19, 1900
(Martens, _N.R.G._ 2nd Ser., XXXII. p. 147), and Beak, _The Aftermath of
War_ (1906), p. 11.]
[Footnote 473: That prisoners of war may be made the objects of
reprisals for acts of illegitimate warfare committed by the enemy, there
is hardly any doubt; see Beinhauer, _Die Kriegsgefangenschaft_ (1910),
p. 74.]
[Sidenote: Danger of Arbitrariness in Reprisals.]
§ 249. The right to exercise reprisals carries with it great danger of
arbitrariness, for often the alleged facts which make belligerents
resort to reprisals are not sufficiently verified, or the rules of war
which they consider the enemy has violated are sometimes not generally
recognised, or the act of reprisal performed is often excessive compared
with the precedent act of illegitimate warfare. Three cases may
illustrate this danger.
(1) In 1782 Joshua Huddy, a captain in the army of the American
insurgents, was taken prisoner by loyalists and handed over to a Captain
Lippencott for the ostensible purpose of being exchanged, but was
arbitrarily hanged. The commander of the British troops had Lippencott
arrested, and ordered him to be tried for murder. Lippencott was,
however, acquitted by the court-martial, as there was evidence to show
that his command to execute Huddy was in accordance with orders of a
Board which he was bound to obey. Thereupon some British officers who
were prisoners of war in the hands of the Americans were directed to
cast lots to determine who should be executed by way of reprisal for the
execution of Huddy. The lot fell on Captain Asgill, a young officer only
nineteen years old, and he would have been executed but for the
mediation of the Queen of France, who saved his life.[474]
(2) "The British Government, having sent to England, early in 1813, to
be tried for treason, twenty-three Irishmen, naturalised in the United
States, who had been captured on vessels of the United States, Congress
authorised the President to retaliate. Under this act, General Dearborn
placed in close confinement twenty-three prisoners taken at Fort George.
General Prevost, under express directions of Lord Bathurst, ordered the
close imprisonment of double the number of commissioned and
non-commissioned United States' officers. This was followed by a threat
of 'unmitigated severity against the American citizens and villages' in
case the system of retaliation was pursued. Mr. Madison having retorted
by putting in confinement a similar number of British officers taken by
the United States, General Prevost immediately retorted by subjecting to
the same discipline all his prisoners whatsoever.... A better temper,
however, soon came over the British Government, by whom this system had
been instituted. A party of United States' officers, who were prisoners
of war in England, were released on parole, with instructions to state
to the President that the twenty-three prisoners who had been charged
with treason in England had not been tried, but remained on the usual
basis of prisoners of war. This led to the dismissal on parole of all
the officers of both sides."[475]
(3) During the Franco-German War the French had captured forty German
merchantmen, and made their captains and crews prisoners of war. Count
Bismarck, who considered it against International Law to detain these
men as prisoners, demanded their liberation, and when the French refused
this, ordered by way of reprisal forty French private individuals of
local importance to be arrested and to be sent as prisoners of war to
Bremen, where they were kept until the end of the war. Count Bismarck
was decidedly wrong,[476] since France had, as the law then stood, in no
way committed an illegal act by detaining the German crews as prisoners
of war.[477]
[Footnote 474: See the case reported in Martens, _Causes Célèbres_, III,
pp. 311-321. See also Phillimore, III. § 105.]
[Footnote 475: See Wharton, III. § 348B.]
[Footnote 476: That Bismarck's standpoint was wrong has been pointed out
above in § 201. Some German writers, however, take his part; see, for
instance, Lueder in Holtzendorff, IV. p. 479, note 6. As regards the
present law on the subject, see above, §§ 85 and 201.]
[Footnote 477: The case is one of reprisals, and has nothing to do with
the taking of hostages; see below, § 258.]
[Sidenote: Proposed Restriction of Reprisals.]
§ 250. The Hague Regulations do not mention reprisals at all because the
Brussels Conference of 1874, which accepted the unratified Brussels
Declaration, had struck out several sections of the Russian draft code
regarding reprisals. These original sections[478] (69-71)
stipulated--(1) that reprisals should be admitted only in extreme cases
of absolutely certain violations of the rules of legitimate warfare; (2)
that the acts performed by way of reprisal must not be excessive, but in
proportion to the respective violation; (3) that reprisals should be
ordered by commanders-in-chief only. Articles 85 and 86 of the Manual of
the Laws of War, adopted by the Institute of International Law,[479]
propose the following rules:--(1) Reprisals are to be prohibited in
case reparation is given for the damage done by an illegal act; (2) in
grave cases, in which reprisals are an imperative necessity, they must
never exceed the degree of the violation committed by the enemy; (3)
they may only be resorted to with the authorisation of the
commander-in-chief; (4) they must in every case respect the laws of
humanity and of morality. In face of the arbitrariness with which,
according to the present state of International Law, reprisals may be
exercised, it cannot be denied that an agreement upon some precise rules
regarding reprisals is an imperative necessity.
[Footnote 478: See Martens, _N.R.G._ 2nd Ser. IV. pp. 14, 139, 207.]
[Footnote 479: See _Annuaire_, V. p. 174.]
IV
PUNISHMENT OF WAR CRIMES
Hall, § 135--Bluntschli, §§ 627-643A--Spaight, p. 462--Holland,
_War_, Nos. 117-118--Ariga, §§ 96-99--Takahashi, pp.
166-184--Landa in _R.I._ X. (1878), pp. 182-184--_Land Warfare_,
§§ 441-451.
[Sidenote: Conception of War Crimes.]
§ 251. In contradistinction to hostile acts of soldiers by which the
latter do not lose their privilege of being treated as members of armed
forces who have done no wrong, war crimes are such hostile or other acts
of soldiers or other individuals as may be punished by the enemy on
capture of the offenders. It must, however, be emphasised that the term
war crime is used, not in the moral sense of the term crime, but only in
a technical legal sense, on account of the fact that perpetrators of
these acts may be punished by the enemy. For, although among the acts
called war crimes are many which are crimes in the moral sense of the
term, such, for instance, as the abuse of a flag of truce or
assassination of enemy soldiers; there are others which may be highly
praiseworthy and patriotic acts, such as taking part in a levy _en
masse_ on territory occupied by the enemy. But because every belligerent
may, and actually must, in the interest of his own safety punish these
acts, they are termed war crimes, whatever may be the motive, the
purpose, and the moral character of the respective act.[480]
[Footnote 480: See above, § 57.]
[Sidenote: Different kinds of War Crimes.]
§ 252. In spite of the uniform designation of these acts as war crimes,
four different kinds of war crimes must be distinguished on account of
the essentially different character of the acts. Violations of
recognised rules regarding warfare committed by members of the armed
forces belong to the first kind; all hostilities in arms committed by
individuals who are not members of the enemy armed forces constitute the
second kind; espionage and war treason belong to the third; and all
marauding acts belong to the fourth kind.
[Sidenote: Violations of Rules regarding Warfare.]
§ 253. Violations of rules regarding warfare are war crimes only when
committed without an order of the belligerent Government concerned. If
members of the armed forces commit violations _by order_ of their
Government, they are not war criminals and may not be punished by the
enemy; the latter may, however, resort to reprisals. In case members of
forces commit violations ordered by their commanders, the members may
not be punished, for the commanders are alone responsible, and the
latter may, therefore, be punished as war criminals on their capture by
the enemy.
The following are the more important violations that may occur:
(1) Making use of poisoned or otherwise forbidden arms and ammunition.
(2) Killing or wounding soldiers disabled by sickness or wounds, or who
have laid down arms and surrendered.
(3) Assassination, and hiring of assassins.
(4) Treacherous request for quarter, or treacherous feigning of sickness
and wounds.
(5) Ill-treatment of prisoners of war, of the wounded and sick.
Appropriation of such of their money and valuables as are not public
property.
(6) Killing or attacking harmless private enemy individuals. Unjustified
appropriation and destruction of their private property, and especially
pillaging. Compulsion of the population of occupied territory to furnish
information about the army of the other belligerent or about his means
of defence.
(7) Disgraceful treatment of dead bodies on battlefields. Appropriation
of such money and other valuables found upon dead bodies as are not
public property, nor arms, ammunition, and the like.
(8) Appropriation and destruction of property belonging to museums,
hospitals, churches, schools, and the like.
(9) Assault, siege, and bombardment of undefended open towns and other
habitations. Unjustified bombardment of undefended places on the part of
naval forces.
(10) Unnecessary bombardment of historical monuments, and of such
hospitals and buildings devoted to religion, art, science, and charity,
as are indicated by particular signs notified to the besiegers
bombarding a defended town.
(11) Violations of the Geneva Convention.
(12) Attack on or sinking of enemy vessels which have hauled down their
flags as a sign of surrender. Attack on enemy merchantmen without
previous request to submit to visit.
(13) Attack or seizure of hospital ships, and all other violations of
the Hague Convention for the adaptation to naval warfare of the
principles of the Geneva Convention.
(14) Unjustified destruction of enemy prizes.[481]
(15) Use of enemy uniforms and the like during battle, use of the enemy
flag during attack by a belligerent vessel.
(16) Violation of enemy individuals furnished with passports or
safe-conducts, violation of safeguards.
(17) Violation of bearers of flags of truce.
(18) Abuse of the protection granted to flags of truce.
(19) Violation of cartels, capitulations, and armistices.
(20) Breach of parole.
[Footnote 481: Unjustified destruction of neutral prizes--see below, §
431--is not a war crime, but is nevertheless an international
delinquency, if ordered by the belligerent government.]
[Sidenote: Hostilities in Arms by Private Individuals.]
§ 254. Since International Law is a law between States only and
exclusively, no rules of International Law can exist which prohibit
private individuals from taking up arms and committing hostilities
against the enemy. But private individuals committing such acts do not
enjoy the privileges of members of armed forces, and the enemy has
according to a customary rule of International Law the right to consider
and punish such individuals as war criminals. Hostilities in arms
committed by private individuals are not war crimes because they really
are violations of recognised rules regarding warfare, but because the
enemy has the right to consider and punish them as acts of illegitimate
warfare. The conflict between praiseworthy patriotism on the part of
such individuals and the safety of the enemy troops does not allow of
any solution. It would be unreasonable for International Law to impose
upon belligerents the duty to forbid the taking up of arms by their
private subjects, because such action may occasionally be of the
greatest value to a belligerent, especially for the purpose of freeing a
country from the enemy who has militarily occupied it. Nevertheless the
safety of his troops compels the enemy to consider and punish such
hostilities as acts of illegitimate warfare, and International Law gives
him a right to do so.
It is usual to make a distinction between hostilities in arms on the
part of private individuals against an invading or retiring enemy on the
one hand, and, on the other, hostilities in arms committed on the part
of the inhabitants against an enemy occupying a conquered territory. In
the latter case one speaks of war rebellion, whether inhabitants take up
arms singly or rise in a so-called levy _en masse_. Articles 1 and 2 of
the Hague Regulations make the greatest possible concessions regarding
hostilities committed by irregulars.[482] Beyond the limits of these
concessions belligerents will never be able to go without the greatest
danger to their troops.
[Footnote 482: See above, §§ 80 and 81.]
It must be particularly noted that merchantmen of belligerents, which
attack enemy vessels without previously having been attacked by them,
commit a war crime,[483] and that the captains, officers, and members of
the crews may, therefore, be punished as war criminals to the same
extent as private individuals who commit hostilities in land warfare.
[Footnote 483: See above, §§ 85 and 181.]
[Sidenote: Espionage and War Treason.]
§ 255. Article 24 of the Hague Regulations now enacts the old customary
rule that a belligerent has a right to employ all methods necessary to
obtain information, and these methods include espionage and treason. But
this right stands face to face with the right to consider and punish as
war criminals enemy individuals, whether soldiers or not, committing
acts of espionage or treason. There is an irreconcilable conflict
between the necessity of obtaining information on the one hand, and
self-preservation on the other; and accordingly espionage and treason,
as has been explained above in § 159, bear a twofold character. On the
one hand, International Law gives a right to belligerents to make use of
espionage and treason. On the other hand, the same law gives a right to
belligerents to consider espionage and treason, committed by enemy
soldiers or enemy private individuals within their lines, as acts of
illegitimate warfare, and consequently punishable.
Espionage has already been treated above in §§ 159-161. War treason may
be committed in different ways. The following are the chief cases of war
treason that may occur:--
(1) Information of any kind given to the enemy.
(2) Voluntary supply of money, provisions, ammunition, horses, clothing,
and the like, to the enemy.
(3) Any voluntary assistance to military operations of the enemy, be it
by serving as guide in the country, by opening the door of a defended
habitation, by repairing a destroyed bridge, or otherwise.
(4) Attempt to induce soldiers to desert, to surrender, to serve as
spies, and the like, and negotiating desertion, surrender, and espionage
offered by soldiers.
(5) Attempt to bribe soldiers or officials in the interest of the enemy,
and negotiating such bribe.
(6) Liberation of enemy prisoners of war.
(7) Conspiracy against the armed forces or against individual officers
and members of them.
(8) Wrecking of military trains, destruction of the lines of
communication or of the telegraphs or telephones in the interest of the
enemy, and the destruction of any war material for the same purpose.
(9) Circulation of enemy proclamations dangerous to the interests of the
belligerent concerned.
(10) Intentional false guidance of troops by a hired guide or by one who
offered his services voluntarily.
(11) Rendering courier or similar services to the enemy.
It must be specially observed that enemy soldiers--in contradistinction
to private enemy individuals--may only be punished for war treason when
they have committed the act of treason during their stay within a
belligerent's lines under disguise. If, for instance, two soldiers in
uniform are sent into the rear of the enemy for the purpose of
destroying a bridge, they may not, when caught by the enemy, be punished
for war treason, because their act was one of legitimate warfare. But if
they exchange their uniforms for plain clothes and thereby appear as
members of the peaceful private population, they may be punished for war
treason. A remarkable case of this kind occurred in the summer of 1904,
during the Russo-Japanese War. Two Japanese disguised in Chinese clothes
were caught in the attempt to destroy, with the aid of dynamite, a
railway bridge in Manchuria, in the rear of the Russian forces. Brought
before a court-martial, they confessed themselves to be Shozo Jakoga,
forty-three years of age, a Major on the Japanese General Staff, and
Teisuki Oki, thirty-one years of age, a Captain on the Japanese General
Staff. They were convicted, and condemned to be hanged, but the mode of
punishment was changed and they were shot. All the newspapers which
mentioned this case reported it as a case of espionage, but it is in
fact one of war treason. Although the two officers were in disguise,
their conviction for espionage was impossible according to article 29 of
the Hague Regulations, provided, of course, they were court-martialed
for no other act than the attempt to destroy a bridge.
It must be particularly noted that there are many acts of inhabitants
which a belligerent may forbid and punish in the interests of order and
the safety of his army, although these acts do not fall under the
category of war treason, and are not therefore punished as war crimes.
To this class belong all acts which violate the orders legitimately
decreed by an occupant of enemy territory.[484]
[Footnote 484: See _Land Warfare_, § 446.]
[Sidenote: Marauding.]
§ 256. Marauders are individuals roving either singly or collectively in
bands over battlefields, or following advancing or retreating forces in
quest of booty. They have nothing to do with warfare in the strict sense
of the term, but they are an unavoidable accessory to warfare and
frequently consist of soldiers who have left their corps. Their acts are
considered acts of illegitimate warfare, and their punishment takes
place in the interest of the safety of either belligerent.
[Sidenote: Mode of Punishment of War Crimes.]
§ 257. All war crimes may be punished with death, but belligerents may,
of course, inflict a more lenient punishment, or commute a sentence of
death into a more lenient penalty. If this be done and imprisonment take
the place of capital punishment, the question arises whether such
convicts must be released at the end of the war, although their term of
imprisonment has not yet expired. Some publicists[485] answer this
question in the affirmative, maintaining that it could never be lawful
to inflict a penalty extending beyond the duration of the war. But I
believe that the question has to be answered in the negative. If a
belligerent has a right to pronounce a sentence of capital punishment,
it is obvious that he may select a more lenient penalty and carry the
latter out even beyond the duration of the war. And it would in no wise
be in the interest of humanity to deny this right, for otherwise
belligerents would have always to pronounce and carry out sentence of
capital punishment in the interest of self-preservation.
[Footnote 485: See, for instance, Hall, § 135, p. 432.]
V
TAKING OF HOSTAGES
Hall, §§ 135 and 156--Taylor, § 525--Bluntschli, § 600--Lueder in
Holtzendorff, IV. pp. 475-477--Klüber, §§ 156 and 247--G. F.
Martens, II. 277--Ullmann, § 183--Bonfils, Nos. 1145 and
1151--Pradier-Fodéré, VII. Nos. 2843-2848--Rivier, II. p.
302--Calvo, IV. §§ 2158-2160--Fiore, III. Nos. 1363-1364--Martens,
II. § 119--Longuet, § 84--Bordwell, p. 305--Spaight, pp.
465-470--_Kriegsbrauch_, pp. 49, 50--_Land Warfare_, §§ 461-464.
[Sidenote: Former Practice of taking Hostages.]
§ 258. The practice of taking hostages as a means of securing legitimate
warfare prevailed in former times much more than nowadays. It was
frequently resorted to in cases in which belligerent forces depended
more or less upon each other's good faith, such as capitulations and
armistices for instance. To make sure that no perfidy was intended,
officers or prominent private individuals were taken as hostages and
could be held responsible with their lives for any perfidy committed by
the enemy. This practice has totally disappeared, and is hardly likely
to be revived. But this former practice must not be confounded with the
still existing practice of seizing enemy individuals for the purpose of
making them the object of reprisals. Thus, when in 1870, during the
Franco-German War, Count Bismarck ordered forty French notables to be
seized and to be taken away into captivity as a retaliation upon the
French for refusing to liberate the crews of forty captured merchantmen,
these forty French notables were not taken as hostages, but were made
the object of reprisals.[486]
[Footnote 486: The case has been discussed above in § 249. All the
French writers who comment upon this case make the mistake of referring
to it as an instance of the taking of hostages.]
[Sidenote: Modern Practice of taking Hostages.]
§ 259. A new practice of taking hostages was resorted to by the Germans
in 1870 during the Franco-German War for the purpose of securing the
safety of forces against possible hostile acts on the part of private
inhabitants of occupied enemy territory. Well-known men were seized and
detained in the expectation that the population would refrain from
hostile acts out of regard for the fate of the hostages. Thus, when
unknown people frequently wrecked the trains transporting troops, the
Germans seized prominent enemy citizens and put them on the engines of
trains to prevent the latter from being wrecked, a means which always
proved effective and soon put a stop to further train-wrecking. The same
practice was resorted to, although for a short time only, by Lord
Roberts[487] in 1900 during the South African War. This practice has
been condemned by the majority of publicists. But, with all due
deference to the authority of so many prominent men who oppose the
practice, I cannot agree with their opinion. Matters would be different
if hostages were seized and exposed to dangers for the purpose of
preventing legitimate hostilities on the part of members of the armed
forces of the enemy.[488] But no one can deny that train-wrecking on
occupied enemy territory by private enemy individuals is an act which a
belligerent is justified in considering and punishing as war
treason.[489] It is for the purpose of guarding against an act of
illegitimate warfare that these hostages are put on the engines. The
danger they are exposed to comes from their fellow-citizens, who are
informed of the fact that hostages are on the engines and who ought
therefore to refrain from wrecking the trains. It cannot, and will not,
be denied that the measure is a harsh one, and that it makes individuals
liable to suffer for acts for which they are not responsible. But the
safety of his troops and lines of communication is at stake for the
belligerent concerned, and I doubt, therefore, whether even the most
humane commanders will be able to dispense with this measure, since it
alone has proved effective. And it must further be taken into
consideration that the amount of cruelty connected with it is no greater
than in reprisals where also innocent individuals must suffer for
illegitimate acts for which they are not responsible. And is it not more
reasonable to prevent train-wrecking by putting hostages on the engines
than to resort to reprisals for wreckage of trains? For there is no
doubt that a belligerent is justified in resorting to reprisals[490] in
each case of train-wrecking by private enemy individuals.[491]
[Footnote 487: See section 3 of the Proclamation of Lord Roberts, dated
Pretoria, June 19, 1900, but this section was repealed by the
Proclamation of July 29, 1900. See Martens, _N.R.G._ 2nd Ser. XXXII.
(1905), pp. 147 and 149.]
[Footnote 488: _Land Warfare_, § 463, does not consider the practice
commendable, because innocent citizens are thereby exposed to legitimate
acts of train-wrecking on the part of raiding parties of armed forces of
the enemy.]
[Footnote 489: See above, § 255, No. 8.]
[Footnote 490: See above, § 248.]
[Footnote 491: Belligerents sometimes take hostages to secure compliance
with requisitions, contributions, ransom bills, and the like, but such
cases have nothing to do with illegitimate warfare: see above, § 116, p.
153, note 1, and § 170, p. 213, note 3. The Hague Regulations do not
mention the taking of hostages for any purpose.]
VI
COMPENSATION
Bonfils, No. 1026'1--Despagnet, No. 510 _bis_--Lémonon, pp.
344-346--Higgins, pp. 260-261--Scott, _Conferences_, p.
528--Nippold, II. § 24--Boidin, pp. 83-84--Spaight, p.
462--Holland, _War_, No. 19--_Land Warfare_, § 436.
[Sidenote: How the Principle of Compensation for Violations of the Laws
of War arose.]
§ 259_a_. There is no doubt that, if a belligerent can be made to pay
compensation for all damage done by him in violating the laws of war,
this will be an indirect means of securing legitimate warfare. In former
times no rule existed which stipulated such compensation, although, of
course, violation of the laws of war was always an international
delinquency. On the contrary, it was an established customary rule[492]
that claims for reparation of damages caused by violations of the rules
of legitimate warfare could not be raised after the conclusion of peace,
unless the contrary was expressly stipulated. It was not until the
Second Hague Peace Conference that matters underwent a change. In
revising the Convention concerning the laws and customs of war on land,
besides other alterations, a new article (3) was adopted which enacts
that a belligerent who violates the provisions of the Hague Regulations,
shall, if the case demand, be liable to make compensation, and that he
shall be responsible for all acts committed by persons forming part of
his armed forces.
[Footnote 492: See below, § 274, p. 335.]
Attention should be drawn to the fact that Germany, on whose initiative
this principle was adopted, proposed two articles concerning the matter,
the one dealing with the payment of compensation for violations of the
Hague Regulations with regard to subjects of neutral States,[493] and
the other for violations of these Regulations with regard to enemy
subjects. The conference, however, preferred to make no distinction
between the different cases of violation but to adopt the general
principle.
[Footnote 493: See below, § 357.]
[Sidenote: Compensation for Violations of the Hague Regulations.]
§ 259_b_. It is apparent that article 3 of Convention IV. enacts two
different rules: firstly, that a belligerent who violates the Hague
Regulations shall, if the case demand, pay compensation; and secondly,
that a belligerent is responsible for all acts committed by any person
forming part of his armed forces.
To take this second rule first, the responsibility of a State for
internationally illegal acts on the part of members of its armed forces
is, provided the acts have not been committed by the State's command or
authorisation, only a vicarious responsibility, but nevertheless the
State concerned must, as was pointed out above, Vol. I. § 163, pay
damages for these acts when required. For this reason, article 3 does
not create a new rule in so far as it enacts that belligerents must pay
for damage caused by members of their forces.
On the other hand, the rule that compensation must be paid by
belligerents for damage done through violations of the Hague
Regulations, is a new rule, at any rate in so far as it is laid down in
a general way. If interpreted according to the letter, article 3 of
Convention IV. establishes the rule for payment of compensation for
violations of the Hague Regulations only, and not for violations of
other rules of International Law concerning land warfare or even
concerning sea warfare. I have, however, no doubt that the Powers would
recognise that the principle of article 3 must find application to any
rule of the laws of war, if by the violation of such rule subjects of
the enemy, or of neutral States, suffer damage. For instance, if the
commander of a naval force, in contravention of Convention IX. of the
Second Peace Conference, were to bombard an undefended place,
compensation could be claimed for such subjects of the enemy and
subjects of neutral States as suffered damage through the bombardment.
A point, however, to be kept in view is that article 3, although it
establishes the obligation to pay compensation, does not stipulate
anything concerning the time or the way in which claims for compensation
are to be settled. This is clearly a case for arbitration, and it is to
be hoped that the Third Peace Conference will make arbitration
obligatory in cases of claims for compensation arising from violations,
on the part of a belligerent, of the Hague Regulations as well as of
other laws of war.
CHAPTER VII
END OF WAR, AND POSTLIMINIUM
I
ON TERMINATION OF WAR IN GENERAL
Hall, § 197--Lawrence, § 217--Phillimore, III. § 510--Taylor, §
580--Moore, VII. § 1163--Heffter, § 176--Kirchenheim in
Holtzendorff, IV. pp. 791-792--Ullmann, § 198--Bonfils, No.
1692--Despagnet, No. 605--Calvo, V. § 3115--Fiore, III. No.
1693--Martens, II. § 128--Longuet, § 155.
[Sidenote: War a Temporary Condition.]
§ 260. The normal condition between two States being peace, war can
never be more than a temporary condition; whatever may have been the
cause or causes of a war, the latter cannot possibly last for ever. For
either the purpose of war will be realised and one belligerent will be
overpowered by the other, or both will sooner or later be so exhausted
by their exertions that they will desist from the struggle. Nevertheless
wars may last for many years, although of late European wars have
gradually become shorter. The shortening of European wars in recent
times has resulted from several causes, the more important of which
are:--conscription, the foundation of the armies of all the great
European Powers, Great Britain excepted; the net of railways which
extends over all European countries, and which enables a much quicker
transport of troops on enemy territory; and lastly, the vast numbers of
the opposing forces which usually hasten a decisive battle.
[Sidenote: Three Modes of Termination of War.]
§ 261. Be that as it may, a war may be terminated in three different
ways. Belligerents may, first, abstain from further acts of war and
glide into peaceful relations without expressly making peace through a
special treaty. Or, secondly, belligerents may formally establish the
condition of peace through a special treaty of peace. Or, thirdly, a
belligerent may end the war through subjugation of his adversary.[494]
[Footnote 494: That a civil war may come to an end through simple
cessation of hostilities or through a treaty of peace need hardly be
mentioned. But it is of importance to state the fact that there is a
difference between civil war and other war concerning the third mode of
ending war, namely subjugation. For to terminate a civil war, conquest
_and_ annexation, which together make subjugation, is unnecessary (see
below, § 264), but conquest alone is sufficient.]
II
SIMPLE CESSATION OF HOSTILITIES
Hall, § 203--Phillimore, III. § 511--Halleck, II. p. 468--Taylor,
§ 584--Bluntschli, § 700--Heffter, § 177--Kirchenheim in
Holtzendorff, IV. p. 793--Ullmann, § 198--Bonfils, No.
1693--Despagnet, No. 605--Rivier, II. pp. 435-436--Calvo, V. §
3116--Fiore, III. No. 1693--Martens, II. § 128--Longuet, §
155--Mérignhac, p. 323--Pillet, p. 370.
[Sidenote: Exceptional Occurrence of simple Cessation of Hostilities.]
§ 262. The regular modes of termination of war are treaties of peace or
subjugation, but cases have occurred in which simple cessation of all
acts of war on the part of both belligerents has actually and informally
brought the war to an end. Thus ended in 1716 the war between Sweden and
Poland, in 1720 the war between Spain and France, in 1801 the war
between Russia and Persia, in 1867 the war between France and Mexico.
And it may also be mentioned that, whereas the war between Prussia and
several German States in 1866 came to an end through subjugation of some
States and through treaties of peace with others, Prussia has never
concluded a treaty of peace with the Principality of Lichtenstein, which
was also a party to the war. Although such termination of war through
simple cessation of hostilities is for many reasons inconvenient, and
is, therefore, as a rule avoided, it may nevertheless in the future as
in the past occasionally occur.
[Sidenote: Effect of Termination of War through simple Cessation of
Hostilities.]
§ 263. Since in the case of termination of war through simple cessation
of hostilities no treaty of peace embodies the conditions of peace
between the former belligerents, the question arises whether the
_status_ which existed between the parties before the outbreak of war,
the _status quo ante bellum_, should be revived, or the _status_ which
exists between the parties at the time when they simply ceased
hostilities, the _status quo post bellum_ (the _uti possidetis_), can be
upheld. The majority of publicists[495] correctly maintain that the
_status_ which exists at the time of cessation of hostilities becomes
silently recognised through such cessation, and is, therefore, the basis
of the future relations of the parties. This question is of the greatest
importance regarding enemy territory militarily occupied by a
belligerent at the time hostilities cease. According to the correct
opinion such territory can be annexed by the occupier, the adversary
through the cessation of hostilities having dropped all rights he
possessed over such territory. On the other hand, this termination of
war through cessation of hostilities contains no decision regarding such
claims of the parties as have not been settled by the actual position of
affairs at the termination of hostilities, and it remains for the
parties to settle them by special agreement or to let them stand over.
[Footnote 495: See, however, Phillimore, III. § 511, who maintains that
the _status quo ante bellum_ has to be revived.]
III
SUBJUGATION
Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, §
77--Phillimore, III. § 512--Halleck, I. pp. 467-498--Taylor, §§
220, 585-588--Moore, I. § 87--Walker, § 11--Wheaton, §
165--Bluntschli, §§ 287-289, 701-702--Heffter, § 178--Kirchenheim
in Holtzendorff, IV. p. 792--Liszt, § 10--Ullmann, §§ 92, 97, and
197--Bonfils, Nos. 535 and 1694--Despagnet, Nos. 387-390,
605--Rivier, II. pp. 436-441--Calvo, V. §§ 3117-3118--Fiore, II.
Nos. 863, III. No. 1693, and Code, Nos. 1078-1089--Martens. I. §
91, II. § 128--Longuet, § 155--Mérignhac, p. 324--Pillet, p.
371--Holtzendorff, _Eroberung und Eroberungsrecht_
(1871)--Heimburger, _Der Erwerb der Gebietshoheit_ (1888), pp.
121-132--Westlake, in _The Law Quarterly Review_, XVII. (1901), p.
392.
[Sidenote: Subjugation in contradistinction to Conquest.]
§ 264. Subjugation must not be confounded with conquest, although there
can be no subjugation without conquest. Conquest is taking possession of
enemy territory by military force. Conquest is completed as soon as the
territory concerned is effectively[496] occupied. Now it is obvious that
conquest of a part of enemy territory has nothing to do with
subjugation, because the enemy may well reconquer it. But even the
conquest of the whole of the enemy territory need not necessarily
include subjugation. For, first, in a war between more than two
belligerents the troops of one of them may evacuate their country and
join the army of allies, so that the armed contention is continued,
although the territory of one of the allies is completely conquered.
Again, a belligerent, although he has annihilated the forces, conquered
the whole of the territory of his adversary, and thereby actually
brought the armed contention to an end,[497] may nevertheless not choose
to exterminate the enemy State by annexing the conquered territory, but
may conclude a treaty of peace with the expelled or imprisoned head of
the defeated State, re-establish the latter's Government, and hand the
whole or a part of the conquered territory over to it. Subjugation takes
place only when a belligerent, after having annihilated the forces and
conquered the territory of his adversary, destroys his existence by
annexing the conquered territory. Subjugation may, therefore, correctly
be defined as _extermination in war of one belligerent by another
through annexation_[498] _of the former's territory after conquest, the
enemy forces having been annihilated_.[499]
[Footnote 496: The conditions of effective occupation have been
discussed above in § 167. Regarding subjugation as a mode of acquisition
of territory, see above, vol. I. §§ 236-241.]
[Footnote 497: The continuation of guerilla war after the termination of
a real war is discussed above in § 60.]
[Footnote 498: That conquest alone is sufficient for the termination of
civil wars has been pointed out above, § 261, p. 323, note 1.]
[Footnote 499: It should be mentioned that a premature annexation can
become valid through the occupation in question becoming soon afterwards
effective. Thus, although the annexation of the South African Republic,
on September 1, 1900, was premature, it became valid through the
occupation becoming effective in 1901. See above, § 167, p. 209, note
1.]
[Sidenote: Subjugation a formal End of War.]
§ 265. Although complete conquest, together with annihilation of the
enemy forces, brings the armed contention, and thereby the war, actually
to an end, the formal end of the war is thereby not yet realised, as
everything depends upon the resolution of the victor regarding the fate
of the vanquished State. If he be willing to re-establish the captive or
expelled head of the vanquished State, it is a treaty of peace concluded
with the latter which terminates the war. But if he desires to acquire
the whole of the conquered territory for himself, he annexes it, and
thereby formally ends the war through subjugation. That the expelled
head of the vanquished State protests and keeps up his claims, matters
as little eventually as protests on the part of neutral States. These
protests may be of political importance for the future, legally they are
of no importance at all.
History presents numerous instances of subjugation. Although no longer
so frequent as in former times, subjugation is not at all of rare
occurrence. Thus, modern Italy came into existence through the
subjugation by Sardinia in 1859 of the Two Sicilies, the Grand Dukedom
of Tuscany, the Dukedoms of Parma and Modena, and in 1870 the Papal
States. Thus, further, Prussia subjugated in 1866 the Kingdom of
Hanover, the Dukedom of Nassau, the Electorate of Hesse-Cassel, and the
Free Town of Frankfort-on-the-Main. And Great Britain annexed in 1900
the Orange Free State and the South African Republic.[500]
[Footnote 500: Since Great Britain annexed these territories in 1900,
the agreement of 1902, regarding "Terms of Surrender of the Boer Forces
in the Field"--see _Parliamentary Papers_, South Africa, 1902, Cd.
1096--is not a treaty of peace, and the South African War came formally
to an end through subjugation, although--see above, § 167, p. 209, note
1--the proclamation of the annexation was somewhat premature. The
agreement embodying the terms of surrender of the routed remnants of the
Boer forces has, therefore, no internationally legal basis (see also
below, § 274, p. 334, note 2). The case would be different if the
British Government had really--as Sir Thomas Barclay asserts in _The Law
Quarterly Review_, XXI. (1905), pp. 303 and 307--recognised the
existence of the Government of the South African Republic down to May
31, 1902.]
IV
TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 9-18--Phillimore, III. §§
513-516--Halleck, I. pp. 306-324--Taylor, §§ 590-592--Moore, VII.
§ 1163--Wheaton, §§ 538-543--Bluntschli, §§ 703-707--Heffter, §
179--Kirchenheim in Holtzendorff, IV. pp. 794-804--Ullmann, §
198--Bonfils, Nos. 1696-1697, 1703-1705--Despagnet, Nos.
606-611--Rivier, II. pp. 443-453--Nys, III. pp. 719-734--Calvo, V.
§§ 3119-3136--Fiore, III. Nos. 1694-1700, and Code, Nos.
1931-1941--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp.
324-329--Pillet, pp. 372-375.
[Sidenote: Treaty of Peace the most frequent End of War.]
§ 266. Although occasionally war ends through simple cessation of
hostilities, and although subjugation is not at all rare or irregular,
the most frequent end of war is a treaty of peace. Many publicists
correctly call a treaty of peace the normal mode of terminating war. On
the one hand, simple cessation of hostilities is certainly an irregular
mode. Subjugation, on the other hand, is in most cases either not
within the scope of the intention of the victor or not realisable. And
it is quite reasonable that a treaty of peace should be the normal end
of war. States which are driven from disagreement to war will, sooner or
later, when the fortune of war has given its decision, be convinced that
the armed contention ought to be terminated. Thus a mutual understanding
and agreement upon certain terms is the normal mode of ending the
contention. And it is a treaty of peace which embodies such
understanding.
[Sidenote: Peace Negotiations.]
§ 267. However, as the outbreak of war interrupts all regular
non-hostile intercourse between belligerents, negotiations for peace are
often difficult of initiation. Each party, although willing to
negotiate, may have strong reasons for not opening negotiations. Good
offices and mediation on the part of neutrals, therefore, always are of
great importance, as thereby negotiations are called into existence
which otherwise might have been long delayed. But it must be emphasised
that neither formal nor informal peace negotiations do _ipso facto_
bring hostilities to a standstill, although a partial or general
armistice may be concluded for the purpose of such negotiations. The
fact that peace negotiations are going on directly between belligerents
does not create any non-hostile relations between them apart from those
negotiations themselves. Such negotiations can take place by the
exchange of letters between the belligerent Governments, or through
special negotiators who may meet on neutral territory or on the
territory of one of the belligerents. In case they meet on belligerent
territory, the enemy negotiators are inviolable and must be treated on
the same footing as bearers of flags of truce, if not as diplomatic
envoys. For it can happen that a belligerent receives an enemy
diplomatic envoy for the purpose of peace negotiations. Be that as it
may, negotiations, wherever taking place and by whomsoever conducted,
may always be broken off before an agreement is arrived at.
[Sidenote: Preliminaries of Peace.]
§ 268. Although ready to terminate the war through a treaty of peace,
belligerents are frequently not able to settle all the terms of peace at
once. In such cases hostilities are usually brought to an end through
so-called preliminaries of peace, the definite treaty, which has to take
the place of the preliminaries, being concluded later on. Such
preliminaries are a treaty in themselves, embodying an agreement of the
parties regarding such terms of peace as are essential. Preliminaries
are as binding as any other treaty, and therefore they need
ratification. Very often, but not necessarily, the definitive treaty of
peace is concluded at a place other than that at which the preliminaries
were settled. Thus, the war between Austria, France, and Sardinia was
ended by the Preliminaries of Villafranca of July 11, 1859, yet the
definitive treaty of peace was concluded at Zurich on November 10, 1859.
The war between Austria and Prussia was ended by the Preliminaries of
Nickolsburg of July 26, 1866, yet the definitive treaty of peace was
concluded at Prague on August 23. In the Franco-German War the
Preliminaries of Versailles of February 26, 1871, were the precursor of
the definitive treaty of peace concluded at Frankfort on May 10,
1871.[501]
[Footnote 501: No preliminaries of peace were agreed upon at the end of
the Russo-Japanese war. After negotiations at Portsmouth (New Hampshire)
had led to a final understanding on August 29, 1905, the treaty of peace
was signed on September 5, and ratified on October 16.]
The purpose for which preliminaries of peace are agreed upon makes it
obvious that such essential terms of peace as are stipulated by the
Preliminaries are the basis of the definitive treaty of peace. It may
happen, however, that neutral States protest for the purpose of
preventing this. Thus, when the war between Russia and Turkey had been
ended through the Preliminaries of San Stefano of March 3, 1878, Great
Britain protested, a Congress met at Berlin, and Russia had to be
content with less favourable terms of peace than those stipulated at San
Stefano.
[Sidenote: Form and Parts of Peace Treaties.]
§ 269. International Law does not contain any rules regarding the form
of peace treaties; they may, therefore, be concluded verbally or in
writing. But the importance of the matter makes the parties always
conclude a treaty of peace in writing, and there is no instance of a
verbally concluded treaty of peace.
According to the different points stipulated, it is usual to distinguish
different parts within a peace treaty. Besides the preamble, there are
general, special, and separate articles. General articles are those
which stipulate such points as are to be agreed upon in every treaty of
peace, as the date of termination of hostilities, the release of
prisoners of war, and the like. Special articles are those which
stipulate the special terms of the agreement of peace in question.
Separate articles are those which stipulate points with regard to the
execution of the general and special articles, or which contain
reservations and other special remarks of the parties. Sometimes
_additional_ articles occur. Such are stipulations agreed upon in a
special treaty following the treaty of peace and comprising stipulations
regarding such points as have not been mentioned in the treaty of peace.
[Sidenote: Competence to conclude Peace.]
§ 270. As the treaty-making Power is according to the Law of Nations in
the hands of the head[502] of the State, it is he who is competent to
conclude peace. But just as constitutional restrictions imposed upon
heads of States regarding their general power of concluding
treaties[503] are of importance for International Law, so constitutional
restrictions imposed upon heads of States regarding their competence to
make peace are of similar importance. And, therefore, such treaties of
peace concluded by heads of States as violate constitutional
restrictions are not binding upon the States concerned, because the
heads have exceeded their powers. The Constitutions of the several
States settle the matter differently, and it is not at all necessary
that the power of declaring war and that of making peace should be
vested by a Constitution in the same hands. In Great Britain the power
of the Crown to declare war and to make peace is indeed unrestricted.
But in the German Empire, for instance, it is different; for whereas the
Emperor, the case of an attack on German territory excepted, may declare
war only with the consent of the Bundesrath, his power of making peace
is unrestricted.[504]
[Footnote 502: See above, vol. I. § 495.]
[Footnote 503: See above, vol. I. § 497.]
[Footnote 504: See more examples in Rivier, II. p. 445.]
The controverted question as to whether the head of a State who is a
prisoner of war is competent to make peace ought to be answered in the
negative. The reason is that the head of a constitutional State,
although he does not by becoming a prisoner of war lose his position, he
nevertheless thereby loses the power of exercising the rights connected
with his position.[505]
[Footnote 505: See Vattel, IV. § 13.]
[Sidenote: Date of Peace.]
§ 271. Unless the treaty provides otherwise, peace commences with the
signing of the peace treaty. Should the latter not be ratified,
hostilities may be recommenced, and the unratified peace treaty is
considered as an armistice. Sometimes, however, the peace treaty fixes a
future date for the commencement of peace, stipulating that hostilities
must cease on a certain future day. This is the case when war is waged
in several or widely separated parts of the world, and when, therefore,
it is impossible at once to inform the opposing forces of the conclusion
of peace.[506] It may even occur that different dates are stipulated
for the termination of hostilities in different parts of the world.
[Footnote 506: The ending of the Russo-Japanese war was quite peculiar.
Although the treaty of peace was signed on September 5, 1905, the
agreement concerning an armistice pending ratification of the peace
treaty was not signed until September 14, and hostilities went on till
September 16.]
The question has arisen as to whether, in case a peace treaty provides a
future date for the termination of hostilities in distant parts, and in
case the forces in these parts hear of the conclusion of peace before
such date, they must abstain at once from further hostilities. Most
publicists correctly answer this question in the affirmative. But the
French Prize Courts in 1801 condemned as a good prize the English vessel
_Swineherd_ which was captured by the French privateer _Bellona_ in the
Indian Seas within the period of five months fixed by the Peace of
Amiens for the termination of hostilities in these seas.[507]
[Footnote 507: The details of this case are given by Hall, § 199; see
also Phillimore, III. § 521.]
V
EFFECTS OF TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 19-23--Hall, §§
198-202--Lawrence, § 218--Phillimore, III. §§ 518-528--Halleck, I.
pp. 312-324--Taylor, §§ 581-583--Wheaton, §§ 544-547--Bluntschli,
§§ 708-723--Heffter, §§ 180-183, 184A--Kirchenheim in
Holtzendorff, IV. pp. 804-817--Ullmann, § 199--Bonfils, Nos.
1698-1702--Despagnet, No. 607--Rivier, II. pp. 454-461--Calvo, V.
§§ 3137-3163--Fiore, III. Nos. 1701-1703, and Code, Nos.
1942-1962--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp.
330-336--Pillet, pp. 375-377.
[Sidenote: Restoration of Condition of Peace.]
§ 272. The chief and general effect of a peace treaty is restoration of
the condition of peace between the former belligerents. As soon as the
treaty is ratified, all rights and duties which exist in time of peace
between the members of the family of nations are _ipso facto_ and at
once revived between the former belligerents.
On the one hand, all acts legitimate in warfare cease to be legitimate.
Neither contributions and requisitions, nor attacks on members of the
armed forces or on fortresses, nor capture of ships, nor occupation of
territory are any longer lawful. If forces, ignorant of the conclusion
of peace, commit such hostile acts, the condition of things at the time
peace was concluded must as far as possible be restored.[508] Thus,
ships captured must be set free, territory occupied must be evacuated,
members of armed forces taken prisoners must be liberated, contributions
imposed and paid must be repaid.
[Footnote 508: The _Mentor_ (1799), 1 C. Rob. 179. Matters are, of
course, different in case a future date--see above, § 271--is stipulated
for the termination of hostilities.]
On the other hand, all peaceful intercourse between the former
belligerents as well as between their subjects is resumed as before the
war. Thus diplomatic intercourse is restored, and consular officers
recommence their duties.[509]
[Footnote 509: The assertion of many writers, that such contracts
between subjects of belligerents as have been suspended by the outbreak
of war revive _ipso facto_ by the conclusion of peace is not the outcome
of a rule of International Law. But just as Municipal Law may suspend
such contracts _ipso facto_ by the outbreak of war, so it may revive
them _ipso facto_ by the conclusion of peace. See above, § 101.]
Attention must be drawn to the fact that the condition of peace created
by a peace treaty is legally final in so far as the order of things set
up and stipulated by the treaty of peace is the settled basis of future
relations between the parties, however contentious the matters concerned
may have been before the outbreak of war. In concluding peace the
parties expressly or implicitly declare that they have come to an
understanding regarding such settled matters. They may indeed make war
against each other in future on other grounds, but they are legally
bound not to go to war over such matters as have been settled by a
previous treaty of peace. That the practice of States does not always
comply with this rule is a well-known fact which, although it discredits
this rule, cannot shake its theoretical validity.
[Sidenote: Principle of _Uti Possidetis_.]
§ 273. Unless the parties stipulate otherwise, the effect of a treaty of
peace is that conditions remain as at the conclusion of peace. Thus, all
moveable State property, as munitions, provisions, arms, money, horses,
means of transport, and the like, seized by an invading belligerent
remain his property, as likewise do the fruits of immoveable property
seized by him. Thus further, if nothing is stipulated regarding
conquered territory, it remains in the hands of the possessor, who may
annex it. But it is nowadays usual, although not at all legally
necessary, for the conqueror desirous of retaining conquered territory
to stipulate cession of such territory in the treaty of peace.
[Sidenote: Amnesty.]
§ 274. Since a treaty of peace is considered a final settlement of the
war, one of the effects of every peace treaty is the so-called
amnesty--that is, an immunity for all wrongful acts done by the
belligerents themselves, the members of their forces, and their subjects
during the war, and due to political motives.[510] It is usual, but not
at all necessary, to insert an amnesty clause in a treaty of peace.
So-called war crimes[511] which were not punished before the conclusion
of peace may no longer be punished after its conclusion. Individuals
who have committed such war crimes and have been arrested for them must
be liberated.[512] International delinquencies committed intentionally
by belligerents through violation of the rules of legitimate warfare are
considered condoned. Formerly even claims for reparation of damages
caused by such acts could not be raised after the conclusion of peace,
unless the contrary was expressly stipulated, but the matter is
different now in accordance with article 3 of Convention IV. of the
Second Peace Conference.[513] On the other hand, the amnesty has nothing
to do with ordinary crimes or with debts incurred during war. A prisoner
of war who commits murder during captivity may be tried and punished
after the conclusion of peace, just as a prisoner who runs into debt
during captivity may be sued after the conclusion of peace, or an action
may be brought on ransom bills after peace has been restored.
[Footnote 510: Stress must be laid on the fact that this immunity is
only effective in regard to the other party to the war. For instance,
the occupant of enemy territory may not, after the conclusion of peace,
punish war criminals. Nothing, however, prevents a belligerent from
punishing members of his own forces or any of his own subjects who
during war committed violations of the laws of war, _e.g._ killed
wounded enemy soldiers and the like.]
[Footnote 511: See above, §§ 251-257. Clause 4 of the "Terms of
Surrender of the Boer Forces in the Field"--see _Parliamentary Papers_,
South Africa, 1902, Cd. 1096--seems to contradict this assertion, as it
expressly excludes from the amnesty "certain acts, contrary to usages of
war, which have been notified by the Commander-in-Chief to the Boer
Generals, and which shall be tried by court-martial immediately after
the close of hostilities." But it will be remembered--see above, § 265,
p. 327, note 1--that the agreement embodying these terms of surrender
does not bear the character of a treaty of peace, the Boer War having
been terminated through subjugation.]
[Footnote 512: This applies to such individuals only as have not yet
been convicted. Those who are undergoing a term of imprisonment need not
be liberated at the conclusion of peace; see above, § 257.]
[Footnote 513: See above, § 259_a_.]
But it is important to remember here again that the amnesty grants
immunity only for wrongful acts done by the subjects of one belligerent
against the other. Such wrongful acts as have been committed by the
subjects of a belligerent against their own Government are not covered
by the amnesty. Therefore treason, desertion, and the like committed
during the war by his own subjects may be punished by a belligerent
after the conclusion of peace, unless the contrary has been expressly
stipulated in the treaty of peace.[514]
[Footnote 514: Thus Russia stipulated by article 17 of the Preliminaries
of San Stefano, in 1878--see Martens, _N.R.G._ 2nd Ser. III. p.
252--that Turkey must accord an amnesty to such of her own subjects as
had compromised themselves during the war.]
[Sidenote: Release of Prisoners of War.]
§ 275. A very important effect of a treaty of peace is termination of
the captivity of prisoners of war.[515] This, however, does not mean
that with the conclusion of peace all prisoners of war must at once be
released. It only means--to use the words of article 20 of the Hague
Regulations--that "After the conclusion of peace, the repatriation of
prisoners of war shall take place as speedily as possible." The instant
release of prisoners at the very place where they were detained, would
be inconvenient not only for the State which kept them in captivity, but
also for themselves, as in most cases they would not possess means to
pay for their journey home. Therefore, although with the conclusion of
peace they cease to be captives in the technical sense of the term,
prisoners of war remain as a body under military discipline until they
are brought to the frontier and handed over to their Government. That
prisoners of war may be detained after the conclusion of peace until
they have paid debts incurred during captivity seems to be an almost
generally[516] recognised rule. But it is controversial whether such
prisoners of war may be detained as are undergoing a term of
imprisonment imposed upon them for offences against discipline. After
the Franco-German War in 1871 Germany detained such prisoners,[517]
whereas Japan after the Russo-Japanese War in 1905 released them.
[Footnote 515: See above, § 132.]
[Footnote 516: See, however, Pradier-Fodéré, VII. No. 2839, who objects
to it.]
[Footnote 517: See Pradier-Fodéré, VII. No. 2840; Beinhauer, _Die
Kriegsgefangenschaft_ (1910), p. 79; Payrat, _Le prisonnier de Guerre_
(1910), pp. 364-370.]
[Sidenote: Revival of Treaties.]
§ 276. The question how far a peace treaty has the effect of reviving
treaties concluded between the parties before the outbreak of war is
much controverted. The answer depends upon the other question, how far
the outbreak of war cancels existing treaties between belligerents.[518]
There can be no doubt that all such treaties as have been cancelled by
the outbreak of war do not revive. On the other hand, there can likewise
be no doubt that such treaties as have only become suspended by the
outbreak of war do revive. But no certainty or unanimity exists
regarding such treaties as do not belong to the above two classes, and
it must, therefore, be emphasised that no rule of International Law
exists concerning these treaties. It is for the parties to make such
special stipulations in the peace treaty as will settle the matter.
[Footnote 518: See the very detailed discussion of the question in
Phillimore, III. §§ 529-538; see also above, § 99.]
VI
PERFORMANCE OF TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 24-34--Phillimore, III. §
597--Halleck, I. pp. 322-324--Taylor, §§ 593-594--Wheaton, §§
548-550--Bluntschli, §§ 724-726--Heffter, § 184--Kirchenheim in
Holtzendorff, IV. pp. 817-822--Ullmann, § 199--Bonfils, Nos.
1706-1709--Despagnet, Nos. 612 and 613--Rivier, II. pp.
459-461--Calvo, V. §§ 3164-3168--Fiore, III. Nos.
1704-1705--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp.
336-337.
[Sidenote: Treaty of Peace, how to be carried out.]
§ 277. The general rule, that treaties must be performed in good faith,
applies to peace treaties as well as to others. The great importance,
however, of a treaty of peace and its special circumstances and
conditions make it necessary to draw attention to some points connected
with the performance of treaties of peace. Occupied territory may have
to be evacuated, a war indemnity to be paid in cash, boundary lines of
ceded territory may have to be drawn, and many other tasks performed.
These tasks often necessitate the conclusion of numerous treaties for
the purpose of performing details of the peace treaty concerned, and the
appointment of commissioners who meet in conference to inquire into
details and prepare a compromise. Difficulties may arise in regard to
the interpretation[519] of certain stipulations of the peace treaty
which arbitration will settle if the parties cannot agree.
[Footnote 519: See above, vol. I. §§ 553-554.] Arrangements may have to
be made for the case in which a part or the whole of the territory
occupied during the war remains, according to the peace treaty, for some
period under military occupation, such occupation to serve as a means of
securing the performance of the peace treaty.[520] One can form an idea
of the numerous points of importance to be dealt with during the
performance of a treaty of peace if one takes into consideration the
fact that, after the Franco-German War was terminated in 1871 by the
Peace of Frankfort, more than a hundred Conventions were successively
concluded between the parties for the purpose of carrying out this
treaty of peace.
[Footnote 520: See above, vol. I. § 527.]
[Sidenote: Breach of Treaty of Peace.]
§ 278. Just as is the performance, so is the breach of peace treaties of
great importance. A peace treaty can be violated in its entirety or in
one of its stipulations only. Violation by one of the parties does not
_ipso facto_ cancel the treaty, but the other party may cancel it on the
ground of violation. Just as in connection with violation of treaties in
general, so in violations of treaties of peace, some publicists maintain
that a distinction must be drawn between essential and non-essential
stipulations, and that violation of essential stipulations only creates
a right of cancelling the treaty of peace. It has been shown above, Vol.
I. § 547, that the majority of publicists rightly oppose the
distinction.
But a distinction must be made between violation during the period in
which the conditions of the peace treaty have to be fulfilled, and
violation after such period. In the first case, the other party may at
once recommence hostilities, the war being considered not to have
terminated through the violated peace treaty. The second case, which
might happen soon or several years after the period for the fulfilment
of the peace conditions, is in no way different from violation of any
treaty in general. And if a party cancels the peace treaty and wages war
against the offender who violated it, this war is a new war, and in no
way a continuation of the previous war which was terminated by the
violated treaty of peace. It must, however, be specially observed that,
just as in case of violation of a treaty in general, so in case of
violation of a peace treaty, the offended party who wants to cancel the
treaty on the ground of its violation must do this in reasonable time
after the violation has taken place, otherwise the treaty remains valid,
or at least the non-violated parts of it. A mere protest neither
constitutes a cancellation nor reserves the right of cancellation.[521]
[Footnote 521: See above, vol. I. § 547.]
VII
POSTLIMINIUM
Grotius, III. c. 9--Bynkershoek, _Quaest. jur. publ._ I. c. 15 and
16--Vattel, III. §§ 204-222--Hall, §§ 162-166--Manning, pp.
190-195--Phillimore, III. §§ 568-590--Halleck, II. pp.
500-526--Taylor, § 595--Wheaton, § 398--Bluntschli, §§
727-741--Heffter, §§ 188-192--Kirchenheim in Holtzendorff, IV. pp.
822-836--Bonfils, No. 1710--Despagnet, No. 611--Nys, III. pp.
738-739--Rivier, II. pp. 314-316--Calvo, V. §§ 3169-3226--Fiore,
III. Nos. 1706-1712--Martens, II. § 128--Pillet, p. 377.
[Sidenote: Conception of Postliminium.]
§ 279. The term "postliminium" is originally one of Roman Law derived
from _post_ and _limen_ (_i.e._ boundary). According to Roman Law the
relations of Rome with a foreign State depended upon the fact whether or
not a treaty of friendship[522] existed. If such a treaty was not in
existence, Romans entering the foreign State concerned could be
enslaved, and Roman goods taken there could be appropriated. Now, _jus
postliminii_ denoted the rule, firstly, that such an enslaved Roman,
should he ever return into the territory of the Roman Empire, became
_ipso facto_ a Roman citizen again with all the rights he possessed
previous to his capture, and, secondly, that Roman property,
appropriated after entry into the territory of a foreign State, should
at once upon being taken back into the territory of the Roman Empire
_ipso facto_ revert to its former Roman owner. Modern International and
Municipal Law have adopted the term for the purpose of indicating the
fact that territory, individuals, and property, after having come in
time of war under the sway of the enemy, return either during the war or
with the end of the war under the sway of their original Sovereign. This
can occur in different ways. An occupied territory can voluntarily be
evacuated by the enemy and then at once be reoccupied by the owner. Or
it can be reconquered by the legitimate Sovereign. Or it can be
reconquered by a third party and restored to its legitimate owner.
Conquered territory can also be freed through a successful levy _en
masse_. Property seized by the enemy can be retaken, but it can also be
abandoned by the enemy and subsequently revert to the belligerent from
whom it was taken. And, further, conquered territory can in consequence
of a treaty of peace be restored to its legitimate Sovereign. In all
cases concerned, the question has to be answered what legal effects the
postliminium has in regard to the territory, the individuals thereon, or
the property concerned.
[Footnote 522: See above, vol. I. § 40.]
[Sidenote: Postliminium according to International Law, in
contradistinction to Postliminium according to Municipal Law.]
§ 280. Most writers confound the effects of postliminium according to
Municipal Law with those according to International Law. For instance:
whether a private ship which is recaptured reverts _ipso facto_ to its
former owner;[523] whether the former laws of a reconquered State revive
_ipso facto_ by the reconquest; whether sentences passed on criminals
during the time of an occupation by the enemy should be annulled--these
and many similar questions treated in books on International Law have
nothing at all to do with International Law, but have to be answered
exclusively by the Municipal Law of the respective States. International
Law can deal only with such effects of postliminium as are
international. These international effects of postliminium may be
grouped under the following heads: revival of the former condition of
things, validity of legitimate acts, invalidity of illegitimate acts.
[Footnote 523: See above, § 196.]
[Sidenote: Revival of the Former Condition of Things.]
§ 281. Although a territory and the individuals thereon come through
military occupation in war under the actual sway of the enemy, neither
such territory nor such individuals, according to the rules of
International Law of our times, fall under the sovereignty of the
invader. They rather remain, if not acquired by the conqueror through
subjugation, under the sovereignty of the other belligerent, although
the latter is in fact prevented from exercising his supremacy over them.
Now, the moment the invader voluntarily evacuates such territory, or is
driven away by a levy _en masse_, or by troops of the other belligerent
or of his ally, the former condition of things _ipso facto_ revives; the
territory and individuals concerned being at once, so far as
International Law is concerned, considered to be again under the sway of
their legitimate Sovereign. For all events of international importance
taking place on such territory the legitimate Sovereign is again
responsible towards third States, whereas during the time of occupation
the occupant was responsible for such events.
But it must be specially observed that the case in which the occupant of
a territory is driven out of it by the forces of a third State not
allied with the legitimate Sovereign of such territory is not a case of
postliminium, and that consequently the former state of things does not
revive, unless the new occupant hands the territory over to the
legitimate Sovereign. If this is not done, the military occupation of
the new occupant takes the place of that of the previous occupant.
[Sidenote: Validity of Legitimate Acts.]
§ 282. Postliminium has no effect upon such acts of the former military
occupant connected with the occupied territory and the individuals and
property thereon as were legitimate acts of warfare. On the contrary,
the State into whose possession such territory has reverted must
recognise all such legitimate acts of the former occupant, and the
latter has by International Law a right to demand such recognition.
Therefore, if the occupant has collected the ordinary taxes, has sold
the ordinary fruits of immoveable property, has disposed of such
moveable state property as he was competent to appropriate, or has
performed other acts in conformity with the laws of war, this may not be
ignored by the legitimate Sovereign after he has again taken possession
of the territory.
However, only those consequences of such acts must be recognised which
have occurred during the occupation. A case which illustrates this
happened after the Franco-German War. In October 1870, during occupation
by German troops of the _Départements de la Meuse_ and _de la Meurthe_,
a Berlin firm entered into a contract with the German Government to fell
15,000 oak trees in the State forests of these _départements_, paying in
advance £2250. The Berlin firm sold the contract rights to others, who
felled 9000 trees and sold, in March 1871, their right to fell the
remaining 6000 trees to a third party. The last-named felled a part of
these trees during the German occupation, but, when the French
Government again took possession of the territory concerned, the
contractors were without indemnity prevented from further felling of
trees.[524] The question whether the Germans had a right at all to enter
into the contract is doubtful. But even if they had such right, it
covered the felling of trees during their occupation only, and not
afterwards.
[Footnote 524: The Protocol of Signature added to the Additional
Convention to the Peace Treaty of Frankfort, signed on December 11,
1871--see Martens, _N.R.G._ XX. p. 868--comprises a declaration stating
the fact that the French Government does not recognise any liability to
pay indemnities to the contractors concerned.]
[Sidenote: Invalidity of Illegitimate Acts.]
§ 283. If the occupant has performed acts which are not legitimate acts
of warfare, postliminium makes their invalidity apparent. Therefore, if
the occupant has sold immoveable State property, such property may
afterwards be claimed from the acquirer, whoever he is, without any
indemnity. If he has given office to individuals, they may afterwards be
dismissed. If he has appropriated and sold such private or public
property as may not legitimately be appropriated by a military occupant,
it may afterwards be claimed from the acquirer without payment of
damages.
[Sidenote: No Postliminium after Interregnum.]
§ 284. Cases of postliminium occur only when a conquered territory comes
either during or at the end of the war again into the possession of the
legitimate Sovereign. No case of postliminium arises when a territory,
ceded to the enemy by the treaty of peace or conquered and annexed
without cession at the end of a war which was terminated through simple
cessation of hostilities,[525] later on reverts to its former owner
State, or when the whole of the territory of a State which was conquered
and subjugated regains its liberty and becomes again the territory of an
independent State. Such territory has actually been under the
sovereignty of the conqueror; the period between the conquest and the
revival of the previous condition of things was not one of mere military
occupation during war, but one of interregnum during time of peace, and
therefore the revival of the former condition of things is not a case
of postliminium. An illustrative instance of this is furnished by the
case of the domains of the Electorate of Hesse-Cassel.[526] This
hitherto independent State was subjugated in 1806 by Napoleon and became
in 1807 part of the Kingdom of Westphalia constituted by Napoleon for
his brother Jerome, who governed it up to the end of 1813, when, with
the downfall of Napoleon, the Kingdom of Westphalia fell to pieces and
the former Elector of Hesse-Cassel was reinstated. Jerome had during his
reign sold many of the domains of Hesse-Cassel. The Elector, however, on
his return, did not recognise these contracts, but deprived the owners
of their property without indemnification, maintaining that a case of
postliminium had arisen, and that Jerome had no right to sell the
domains. The Courts of the Electorate pronounced against the Elector,
denying that a case of postliminium had arisen, since Jerome, although a
usurper, had been King of Westphalia during an interregnum, and since
the sale of the domains was therefore no wrongful act. But the Elector,
who was absolute in the Electorate, did not comply with the verdict of
his own courts, and the Vienna Congress, which was approached in the
matter by the unfortunate proprietors of the domains, refused its
intervention, although Prussia strongly took their part. It is generally
recognised by all writers on International Law that this case was not
one of postliminium, and the attitude of the Elector cannot therefore be
defended by appeal to International Law.
[Footnote 525: See above, § 263.]
[Footnote 526: See Phillimore, III. §§ 568-574, and the literature there
quoted.]
PART III
NEUTRALITY
CHAPTER I
ON NEUTRALITY IN GENERAL
I
DEVELOPMENT OF THE INSTITUTION OF NEUTRALITY
Hall, §§ 208-214--Lawrence, § 223--Westlake, II. pp.
169-177--Phillimore, III. §§ 161-226--Twiss, II. §§
208-212--Taylor, §§ 596-613--Walker, _History_, pp. 195-203, and
_Science_, pp. 374-385--Geffcken in Holtzendorff, IV. pp.
614-634--Ullmann, § 190--Bonfils, Nos. 1494-1521--Despagnet, No.
687--Rivier, II. pp. 370-375--Nys, III. pp. 558-567--Calvo, IV. §§
2494-2591--Fiore, III. Nos. 1503-1535--Martens, II. § 130--Dupuis,
Nos. 302-307--Mérignhac, pp. 339-342--Boeck, Nos. 8-153--Kleen, I.
pp. 1-70--Cauchy, _Le droit maritime international_ (1862), vol.
II. pp. 325-430--Gessner, pp. 1-69--Bergbohm, _Die bewaffnete
Neutralität 1780-1783_ (1884)--Fauchille, _La diplomatie française
et la ligue des neutres 1780_ (1893)--Schweizer, _Geschichte der
schweizerischen Neutralitaet_ (1895), I. pp. 10-72.
[Sidenote: Neutrality not practised in Ancient Times.]
§ 285. Since in antiquity there was no notion of an International
Law,[527] it is not to be expected that neutrality as a legal
institution should have existed among the nations of old. Neutrality did
not exist even in practice, for belligerents never recognised an
attitude of impartiality on the part of other States. If war broke out
between two nations, third parties had to choose between the
belligerents and become allies or enemies of one or other. This does not
mean that third parties had actually to take part in the fighting.
Nothing of the kind was the case. But they had, if necessary, to render
assistance; for example, to allow the passage of belligerent forces
through their country, to supply provisions and the like to the party
they favoured, and to deny all such assistance to the enemy. Several
instances are known of efforts[528] on the part of third parties to take
up an attitude of impartiality, but belligerents never recognised such
impartiality.
[Footnote 527: See above, vol. I. § 37.]
[Footnote 528: See Geffcken in Holtzendorff, IV. pp. 614-615.]
[Sidenote: Neutrality during the Middle Ages.]
§ 286. During the Middle Ages matters changed in so far only as, in the
latter part of this period, belligerents did not exactly force third
parties to a choice; but legal duties and rights connected with
neutrality did not exist. A State could maintain that it was no party to
a war, although it furnished one of the belligerents with money, troops,
and other kinds of assistance. To prevent such assistance, which was in
no way considered illegal, treaties were frequently concluded, during
the latter part of the Middle Ages, for the purpose of specially
stipulating that the parties were not to assist each other's enemies in
any way during time of war, and were to prevent their subjects from
rendering such assistance. Through the influence of such treaties the
difference between a really and feigned impartial attitude of third
States during war became recognised, and neutrality, as an institution
of International Law, gradually developed during the sixteenth century.
Of great importance was the fact that the Swiss Confederation, in
contradistinction to her policy during former times, made it a matter of
policy from the end of the sixteenth century always to remain neutral
during wars between other States. Although this former neutrality of the
Swiss can in no way be compared with modern neutrality, since Swiss
mercenaries for centuries afterwards fought in all European wars, the
Swiss Government itself succeeded in each instance in taking up and
preserving such an attitude of impartiality as complied with the current
rules of neutrality.
It should be mentioned that the collection of rules and customs
regarding Maritime Law which goes under the name of _Consolato del Mare_
made its appearance about the middle of the fourteenth century. One of
the rules there laid down, that in time of war enemy goods on neutral
vessels may be confiscated, but that, on the other hand, neutral goods
on enemy vessels must be restored, became of great importance, since
Great Britain acted accordingly from the beginning of the eighteenth
century until the outbreak of the Crimean War in 1854.[529]
[Footnote 529: See above, § 176.]
[Sidenote: Neutrality during the Seventeenth Century.]
§ 287. At the time of Grotius, neutrality was recognised as an
institution of International Law, although such institution was in its
infancy only and needed a long time to reach its present range. Grotius
did not know, or at any rate did not make use of, the term
neutrality.[530] He treats neutrality in the very short seventeenth
chapter of the Third Book on the Law of War and Peace, under the head
_De his, qui in bello medii sunt_, and establishes in § 3 two doubtful
rules only. The first is that neutrals shall do nothing which may
strengthen a belligerent whose cause is unjust, or which may hinder the
movements of a belligerent whose cause is just. The second rule is that
in a war in which it is doubtful whose cause is just, neutrals shall
treat both belligerents alike, in permitting the passage of troops, in
supplying provisions for the troops, and in not rendering assistance to
persons besieged.
[Footnote 530: That the term was known at the time of Grotius may be
inferred from the fact that Neumayr de Ramsla in 1620 published his work
_Von der Neutralität und Assistenz ... in Kriegszeiten_; see Nys in
_R.I._ XVII. (1885), p. 78.]
The treatment of neutrality by Grotius shows, on the one hand, that
apart from the recognition of the fact that third parties could remain
neutral, not many rules regarding the duties of neutrals existed, and,
on the other hand, that the granting of passage to troops of
belligerents and the supply of provisions to them was not considered
illegal. And the practice of the seventeenth century furnishes numerous
instances of the fact that neutrality was not really an attitude of
impartiality, and that belligerents did not respect the territories of
neutral States. Thus, although Charles I. remained neutral, the Marquis
of Hamilton and six thousand British soldiers were fighting in 1631
under Gustavus Adolphus. "In 1626 the English captured a French ship in
Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port;
in 1639 the Dutch were in turn the aggressors, and attacked the Spanish
Fleet in English waters; again, in 1666 they captured English vessels in
the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch
East India Squadron in the harbour of Bergen, but were beaten off with
the help of the forts; finally, in 1693, the French attempted to cut
some Dutch ships out of Lisbon, and on being prevented by the guns of
the place from carrying them off, burnt them in the river."[531]
[Footnote 531: See Hall, § 209, p. 604.]
[Sidenote: Progress of Neutrality during the Eighteenth Century.]
§ 288. It was not until the eighteenth century that theory and practice
agreed upon the duty of neutrals to remain impartial, and the duty of
belligerents to respect the territories of neutrals. Bynkershoek and
Vattel formulated adequate conceptions of neutrality. Bynkershoek[532]
does not use the term "neutrality," but calls neutrals _non hostes_, and
he describes them as those who are of neither party--_qui neutrarum
partium sunt_--in a war, and who do not, in accordance with a treaty,
give assistance to either party. Vattel (III. § 103), on the other hand,
makes use of the term "neutrality," and gives the following
definition:--"Neutral nations, during a war, are those who take no one's
part, remaining friends common to both parties, and not favouring the
armies of one of them to the prejudice of the other." But although
Vattel's book appeared in 1758, twenty-one years after that of
Bynkershoek, his doctrines are in some ways less advanced than those of
Bynkershoek. The latter, in contradistinction to Grotius, maintained
that neutrals had nothing to do with the question as to which party to a
war had a just cause; that neutrals, being friends to both parties, have
not to sit as judges between these parties, and, consequently, must not
give or deny to one or other party more or less in accordance with their
conviction as to the justice or injustice of the cause of each. Vattel,
however, teaches (III. § 135) that a neutral, although he may generally
allow the passage of troops of the belligerents through his territory,
may refuse this passage to such belligerent as is making war for an
unjust cause.
[Footnote 532: _Quaest. jur. publ._ I. c. 9.]
Although the theory and practice of the eighteenth century agreed upon
the duty of neutrals to remain impartial, the impartiality demanded was
not at all a strict one. For, firstly, throughout the greater part of
the century a State was considered not to violate neutrality in case it
furnished one of the belligerents with such limited assistance as it had
previously promised by treaty.[533] In this way troops could be supplied
by a neutral to a belligerent, and passage through neutral territory
could be granted to his forces. And, secondly, the possibility existed
for either belligerent to make use of the resources of neutrals. It was
not considered a breach of neutrality on the part of a State to allow
one or both belligerents to levy troops on its territory, or to grant
Letters of Marque to vessels belonging to its commercial fleet. During
the second half of the eighteenth century, theory and practice became
aware of the fact that neutrality was not consistent with these and
other indulgences. But this only led to the distinction between
neutrality in the strict sense of the term and an imperfect neutrality.
[Footnote 533: See examples in Hall, § 211.]
As regards the duty of belligerents to respect neutral territory,
progress was also made in the eighteenth century. Whenever neutral
territory was violated, reparation was asked and made. But it was
considered lawful for the victor to pursue the vanquished army into
neutral territory, and, likewise, for a fleet to pursue[534] the
defeated enemy fleet into neutral territorial waters.
[Footnote 534: See below, §§ 320 and 347 (4).]
[Sidenote: First Armed Neutrality.]
§ 289. Whereas, on the whole, the duty of neutrals to remain impartial
and the duty of belligerents to respect neutral territory became
generally recognised during the eighteenth century, the members of the
Family of Nations did not come to an agreement during this period
regarding the treatment of neutral vessels trading with belligerents. It
is true that the right of visit and search for contraband of war and the
right to seize the latter was generally recognised, but in other
respects no general theory and practice was agreed upon. France and
Spain upheld the rule that neutral goods on enemy ships as well as
neutral ships carrying enemy goods could be seized by belligerents.
Although England granted from time to time, by special treaties with
special States, the rule "Free ship, free goods," her general practice
throughout the eighteenth century followed the rule of the _Consolato
del Mare_, according to which enemy goods on neutral vessels may be
confiscated, whereas neutral goods on enemy vessels must be restored.
England, further, upheld the principle that the commerce of neutrals
should in time of war be restricted to the same limits as in time of
peace, since most States in time of peace reserved cabotage and trade
with their colonies to vessels of their own merchant marine. It was in
1756 that this principle first came into question. In this year, during
war with England, France found that on account of the naval superiority
of England she was unable to carry on her colonial trade by her own
merchant marine, and she, therefore, threw open this trade to vessels of
the Netherlands, which had remained neutral. England, however, ordered
her fleet to seize all such vessels with their cargoes on the ground
that they had become incorporated with the French merchant marine, and
had thereby acquired enemy character. From this time the above principle
is commonly called the "rule[535] of 1756." England, thirdly, followed
other Powers in the practice of declaring enemy coasts to be blockaded
and condemning captured neutral vessels for breach of blockade, although
the blockades were by no means always effective.
[Footnote 535: See Phillimore, III. §§ 212-222; Hall, § 234; Manning,
pp. 260-267; Westlake, II. p. 254; Moore, VII. § 1180; Boeck, No. 52:
Dupuis, Nos. 131-133. Stress must be laid on the fact that the original
meaning of the rule of 1756 is different from the meaning it received by
its extension in 1793. From that year onwards England not only
considered those neutral vessels which embarked upon the French coasting
and colonial trade thrown open to them during the war with England, as
having acquired enemy character, but likewise those neutral vessels
which carried neutral goods from neutral ports to ports of a French
colony. This extension of the rule of 1756 was clearly unjustified, and
it is not possible to believe that it will ever be revived.]
As privateering was legitimate and in general use, neutral commerce was
considerably disturbed during every war between naval States. Now in
1780, during war between Great Britain, her American colonies, France,
and Spain, Russia sent a circular[536] to England, France, and Spain, in
which she proclaimed the following five principles: (1) That neutral
vessels should be allowed to navigate from port to port of belligerents
and along their coasts; (2) that enemy goods on neutral vessels,
contraband excepted, should not be seized by belligerents; (3) that,
with regard to contraband, articles 10 and 11 of the treaty of 1766
between Russia and Great Britain should be applied in all cases; (4)
that a port should only be considered blockaded if the blockading
belligerent had stationed vessels there, so as to create an obvious
danger for neutral vessels entering the port; (5) that these principles
should be applied in the proceedings and judgments on the legality of
prizes. In July and August 1780, Russia[537] entered into a treaty,
first with Denmark and then with Sweden, for the purpose of enforcing
those principles by equipping a number of men-of-war. Thus the "Armed
Neutrality" made its appearance. In 1781, the Netherlands, Prussia, and
Austria, in 1782 Portugal, and in 1783 the Two Sicilies joined the
league. France, Spain, and the United States of America accepted the
principles of the league without formally joining. The war between
England, the United States, France, and Spain was terminated in 1783,
and the war between England and the Netherlands in 1784, but in the
treaties of peace the principles of the "Armed Neutrality" were not
mentioned. This league had no direct practical consequences, since
England retained her former standpoint. Moreover, some of the States
that had joined the league acted contrary to some of its principles when
they themselves went to war--as did Sweden during her war with Russia
1788-1790, and France and Russia in 1793--and some of them concluded
treaties in which were stipulations at variance with those principles.
Nevertheless, the First Armed Neutrality has proved of great importance,
because its principles have furnished the basis of the Declaration of
Paris of 1856.
[Footnote 536: Martens, _R._ III. p. 158.]
[Footnote 537: Martens, _R._ III. pp. 189 and 198.]
[Sidenote: The French Revolution and the Second Armed Neutrality.]
§ 290. The wars of the French Revolution showed that the time was not
yet ripe for the progress aimed at by the First Armed Neutrality.
Russia, the very same Power which had initiated the Armed Neutrality in
1780 under the Empress Catharine II. (1762-1796), joined Great Britain
in 1793 in order to interdict all neutral navigation into ports of
France, with the intention of subduing France by famine. Russia and
England justified their attitude by the exceptional character of their
war against France, which country had proved to be the enemy of the
security of all other nations. The French Convention answered with an
order to the French fleet to capture all neutral ships carrying
provisions to enemy ports or carrying enemy goods.
But although Russia herself had acted in defiance of the principles of
the First Armed Neutrality, she called a second into existence in 1800,
during the reign of the Emperor Paul. The Second Armed Neutrality was
caused by the refusal of England to concede immunity from visit and
search to neutral merchantmen under convoy.[538] Sweden was the first to
claim in 1653, during war between Holland and Great Britain, that the
belligerents should not visit and search Swedish merchantmen under
convoy of Swedish men-of-war, provided a declaration was made by the
men-of-war that the merchantmen had no contraband on board. Other States
later raised the same claim, and many treaties were concluded which
stipulated the immunity from visit and search of neutral merchantmen
under convoy. But Great Britain refused to recognise the principle, and
when, in July 1800, a British squadron captured a Danish man-of-war and
her convoy of several merchantmen for having resisted visit and search,
Russia invited Sweden, Denmark, and Prussia to renew the "Armed
Neutrality," and to add to its principles the further one, that
belligerents should not have a right of visit and search in case the
commanding officer of the man-of-war, under whose convoy neutral
merchantmen were sailing, should declare that the convoyed vessels did
not carry contraband of war. In December 1800 Russia concluded treaties
with Sweden, Denmark, and Prussia consecutively, by which the "Second
Armed Neutrality" became a fact.[539] But it lasted only a year on
account of the assassination of the Emperor Paul of Russia on March 23,
and the defeat of the Danish fleet by Nelson on April 2, 1801, in the
battle of Copenhagen. Nevertheless, the Second Armed Neutrality likewise
proved of importance, for it led to a compromise in the "Maritime
Convention" concluded by England and Russia under the Emperor Alexander
I. on June 17, 1801, at St. Petersburg.[540] By article 3 of this
treaty, England recognised, as far as Russia was concerned, the rules
that neutral vessels might navigate from port to port and on the coasts
of belligerents, and that blockades must be effective. But in the same
article England enforced recognition by Russia of the rule that enemy
goods on neutral vessels may be seized, and she did not recognise the
immunity of neutral vessels under convoy from visit and search,
although, by article 4, she conceded that the right of visit and search
should be exercised only by men-of-war, and not by privateers, in case
the neutral vessels concerned sailed under convoy.
[Footnote 538: See below, § 417.]
[Footnote 539: Martens, _R._ VII. pp. 127-171. See also Martens, _Causes
Célèbres_, IV. pp. 218-302.]
[Footnote 540: Martens, _R._ VII. p. 260.]
But this compromise did not last long. When in November 1807 war broke
out between Russia and England, the former in her declaration of
war[541] annulled the Maritime Convention of 1801, proclaimed again the
principles of the First Armed Neutrality, and asserted that she would
never again drop these principles. Great Britain proclaimed in her
counter-declaration[542] her return to those principles against which
the First and the Second Armed Neutrality were directed, and she was
able to point out that no Power had applied these principles more
severely than Russia under the Empress Catharine II. after the latter
had initiated the First Armed Neutrality.
[Footnote 541: Martens, _R._ VIII. p. 706.]
[Footnote 542: Martens, _R._ VIII. p. 710.]
Thus all progress made by the Maritime Convention of 1801 fell to the
ground. Times were not favourable to any progress. After Napoleon's
Berlin decrees in 1806 ordering the boycott of all English goods,
England declared all French ports and all the ports of the allies of
France blockaded, and ordered her fleet to capture all ships destined to
these ports. And Russia, which had in her declaration of war against
England in 1807 solemnly asserted that she would never again drop the
principles of the First Armed Neutrality, by article 2 of the Ukase[543]
published on August 1, 1809, violated one of the most important of these
principles by ordering that neutral vessels carrying enemy (English)
goods were to be stopped, the enemy goods seized, and the vessels
themselves seized if more than the half of their cargoes consisted of
enemy goods.
[Footnote 543: Martens, _N.R._ I. p. 484.]
[Sidenote: Neutrality during the Nineteenth Century.]
§ 291. The development of the rules of neutrality during the nineteenth
century was due to four factors.
(1) The most prominent and influential factor is the attitude of the
United States of America towards neutrality from 1793 to 1818. When in
1793 England joined the war which had broken out in 1792 between the
so-called First Coalition and France, Genêt, the French diplomatic envoy
accredited to the United States, granted Letters of Marque to American
merchantmen manned by American citizens in American ports. These
privateers were destined to cruise against English vessels, and French
Prize Courts were set up by the French Minister in connection with
French consulates in American ports. On the complaint of Great Britain,
the Government of the United States ordered these privateers to be
disarmed and the French Prize Courts to be disorganised.[544] As the
trial of Gideon Henfield,[545] who was acquitted, proved that the
Municipal Law of the United States did not prohibit the enlistment of
American citizens in the service of a foreign belligerent, Congress in
1794 passed an Act temporarily forbidding American citizens to accept
Letters of Marque from a foreign belligerent and to enlist in the army
or navy of a foreign State, and forbidding the fitting out and arming of
vessels intended as privateers for foreign belligerents. Other Acts were
passed from time to time. Finally, on April 20, 1818, Congress passed
the Foreign Enlistment Act, which deals definitely with the matter, and
is still in force,[546] and which afforded the basis of the British
Foreign Enlistment Act of 1819. The example of the United States
initiated the present practice, according to which it is the duty of
neutrals to prevent the fitting out and arming on their territory of
cruisers for belligerents, to prevent enlistment on their territory for
belligerents, and the like.
[Footnote 544: See Wharton, III. §§ 395-396.]
[Footnote 545: Concerning this trial, see Taylor, § 609.]
[Footnote 546: See Wheaton, §§ 434-437; Taylor, § 610; Lawrence, § 223.]
(2) Of great importance for the development of neutrality during the
nineteenth century became the permanent neutralisation of Switzerland
and Belgium. These States naturally adopted and retained throughout
every war an exemplary attitude of impartiality towards the
belligerents. And each time war broke out in their vicinity they took
effectual military measures for the purpose of preventing belligerents
from making use of their neutral territory and resources.
(3) The third factor is the Declaration of Paris of 1856, which
incorporated into International Law the rule "Free ship, free goods,"
the rule that neutral goods on enemy ships cannot be appropriated, and
the rule that blockade must be effective.
(4) The fourth and last factor is the general development of the
military and naval resources of all members of the Family of Nations. As
all the larger States were, during the second half of the nineteenth
century, obliged to keep their armies and navies at every moment ready
for war, it followed as a consequence that, whenever war broke out, each
belligerent was anxious not to injure neutral States in order to avoid
their taking the part of the enemy. On the other hand, neutral States
were always anxious to fulfil the duties of neutrality for fear of being
drawn into the war. Thus the general rule, that the development of
International Law has been fostered by the interests of the members of
the Family of Nations, applies also to the special case of neutrality.
But for the fact that it is to the interest of belligerents to remain
during war on good terms with neutrals, and that it is to the interest
of neutrals not to be drawn into war, the institution of neutrality
would never have developed so favourably as it actually did during the
nineteenth century.
[Sidenote: Neutrality in the Twentieth Century.]
§ 292. And this development has continued during the first decade of the
twentieth century. The South African and Russo-Japanese wars produced
several incidents which gave occasion for the Second Peace Conference of
1907 to take the matter of neutrality within the range of its
deliberations and to agree upon the Convention (V.) concerning the
rights and duties of neutral Powers and persons in war on land, as well
as upon the Convention (XIII.) concerning the rights and duties of
neutral Powers in maritime war. And some of the other Conventions agreed
upon at this Conference, although they do not directly concern neutral
Powers, are indirectly of great importance to them. Thus the Convention
(VII.) respecting the conversion of merchantmen into men-of-war
indirectly concerns neutral trade as well as the Convention (VIII.)
respecting the laying of submarine mines, and the Convention (XI.)
concerning restrictions on the exercise of the right of capture. Of the
greatest importance, however, is the fact that by the as yet unratified
Convention XII. the Conference agreed upon the establishment of an
International Prize Court to serve as a Court of Appeal in such prize
cases decided by the Prize Courts of either belligerent as concern the
interests of neutral Powers or their subjects. To enable this proposed
Court to find its verdicts on the basis of a generally accepted prize
law the Naval Conference of London met in 1908 and produced, in 1909,
the Declaration of London concerning the laws of naval war, which
represents a code comprising the rules respecting blockade, contraband,
unneutral service, destruction of neutral prizes, transfer to neutral
flag, enemy character, convoy, resistance to search, and compensation.
Although the Declaration of London has been signed by only ten Powers,
none of which has as yet ratified,[547] there is no doubt that sooner or
later, perhaps with some slight modifications, it will either be
_expressly_ ratified, or become customary law by the fact that maritime
Powers which go to war will carry out its rules.[548] Be that as it may,
the Declaration of London is a document of epoch-making character and
the future historian of International Law will reckon its development
from the Declaration of Paris (1856) to the Declaration of London[549]
(1909).
[Footnote 547: See Smith, _International Law_, 4th ed. by Wylie (1911),
pp. 353-371, where the chief points against ratification, and the
answers made thereto, are impartially set forth.]
[Footnote 548: Thus both Italy and Turkey, although the latter is not
even a signatory Power, during the Turco-Italian War, complied with the
rules of the Declaration of London.]
[Footnote 549: As regards the literature in favour and against the
ratification, on the part of Great Britain, of the Declaration of
London, see above, vol. I. § 568_b_, p. 595, note 1, and as regards the
value of the Report of the Drafting Committee of the Naval Conference of
London, see above, vol. I. § 554, No. 7.]
II
CHARACTERISTICS OF NEUTRALITY
Grotius, III. c. 17, § 3--Bynkershoek, _Quaest. jur. publ._ I. c.
9--Vattel, III. §§ 103-104--Hall, §§ 19-20--Lawrence, §
222--Westlake, II. pp. 161-169--Phillimore, III. §§
136-137--Halleck, II. p. 141--Taylor, § 614--Moore, VII. §§
1287-1291--Walker, § 54--Wheaton, § 412--Bluntschli, §§
742-744--Heffter, § 144--Geffcken in Holtzendorff, IV. pp.
605-606--Gareis, § 87--Liszt, § 42--Ullmann, § 190--Bonfils, Nos.
1441 and 1443--Despagnet, No. 686--Rivier, II. pp.
368-370--Pradier-Fodéré, VIII. Nos. 3222-3224, 3232-3233--Nys,
III. pp. 570-581--Calvo, IV. §§ 2491-2493--Fiore, III. Nos.
1536-1541, and Code, Nos. 1768-1775--Martens, II. § 129--Dupuis,
No. 316--Mérignhac, pp. 349-351--Pillet, pp. 272-274--Heilborn,
_System_, pp. 336-351--Perels, § 38--Testa, pp. 167-172--Kleen, I.
§§ 1-4--Hautefeuille, I. pp. 195-200--Gessner, pp.
22-23--Schopfer, _Le principe juridique de la neutralité et son
évolution dans l'histoire de la guerre_ (1894).
[Sidenote: Conception of Neutrality.]
§ 293. Such States as do not take part in a war between other States are
neutrals.[550] The term "neutrality" is derived from the Latin _neuter_.
Neutrality may be defined as _the attitude of impartiality adopted by
third States towards belligerents and recognised by belligerents, such
attitude creating rights and duties between the impartial States and the
belligerents_. Whether or not a third State will adopt and preserve an
attitude of impartiality during war is not a matter for International
Law but for International Politics. Therefore, unless a previous treaty
stipulates it expressly, no duty exists for a State, according to
International Law, to remain neutral in war. On the other hand, it ought
not to be maintained, although this is done by some writers,[551] that
every State has by the Law of Nations a right not to remain neutral. The
fact is that every Sovereign State, as an independent member of the
Family of Nations, is master of its own resolutions, and that the
question of remaining neutral or not is, in absence of a treaty
stipulating otherwise, one of policy and not of law. However, all States
which do not expressly declare the contrary by word or action, are
supposed to be neutral, and the rights and duties arising from
neutrality come into and remain in existence through the mere fact that
a State takes up and preserves an attitude of impartiality and is not
drawn into the war by the belligerents themselves. A special assertion
of intention to remain neutral is not therefore legally necessary on the
part of neutral States, although they often expressly and formally
proclaim[552] their neutrality.
[Footnote 550: Grotius (III. c. 17) calls them _medii in bello_;
Bynkershoek (I. c. 9) _non hostes qui neutrarum partium sunt_.]
[Footnote 551: See, for instance, Vattel, III. § 106, and Bonfils, No.
1443.]
[Footnote 552: See below, § 309.]
[Sidenote: Neutrality an Attitude of Impartiality.]
§ 294. Since neutrality is an attitude of impartiality, it excludes such
assistance and succour to one of the belligerents as is detrimental to
the other, and, further, such injuries to the one as benefit the other.
But it requires, on the other hand, active measures from neutral States.
For neutrals must prevent belligerents from making use of their neutral
territories and of their resources for military and naval purposes
during the war. This concerns not only actual fighting on neutral
territories, but also transport of troops, war materials, and provisions
for the troops, the fitting out of men-of-war and privateers, the
activity of Prize Courts, and the like.
But it is important to remember that the necessary attitude of
impartiality is not incompatible with sympathy with one and antipathy
against the other belligerent, so long as such sympathy and antipathy
are not realised in actions violating impartiality. Thus, not only
public opinion and the Press of a neutral State, but also the
Government,[553] may show their sympathy to one party or another
without thereby violating neutrality. And it must likewise be specially
observed that acts of humanity on the part of neutrals and their
subjects, such as the sending of doctors, medicine, provisions, dressing
material, and the like, to military hospitals, and the sending of
clothes and money to prisoners of war, can never be construed as acts of
partiality, although these comforts are provided for the wounded and the
prisoners of one of the belligerents only.
[Footnote 553: See, however, Geffcken in Holtzendorff, IV. p. 656, and
Frankenbach, _Die Rechtsstellung von neutralen Staatsangehörigen in
kriegführenden Staaten_ (1910), p. 53, who assert the contrary.]
[Sidenote: Neutrality an Attitude creating Rights and Duties.]
§ 295. Since neutrality is an attitude during the condition of war only,
this attitude calls into existence special rights and duties which do
not generally obtain. They come into existence by the fact that the
outbreak of war has been notified or has otherwise[554] unmistakably
become known to third States who take up an attitude of impartiality,
and they expire _ipso facto_ by the termination of the war.
[Footnote 554: See article 2 of Convention III. of the Second Peace
Conference.]
Rights and duties deriving from neutrality do not exist before the
outbreak of war, although such outbreak may be expected every moment.
Even so-called neutralised States, as Switzerland and Belgium, have
during time of peace no duties connected with neutrality, although as
neutralised States they have even in time of peace certain duties. These
duties are not duties connected with neutrality, but duties imposed upon
the neutralised States as a condition of their neutralisation. They
include restrictions for the purpose of safeguarding the neutralised
States from being drawn into war.[555]
[Footnote 555: See above, vol. I. § 96.]
[Sidenote: Neutrality an Attitude of States.]
§ 296. As International Law is a law between States only and
exclusively, neutrality is an attitude of impartiality on the part of
States, and not on the part of individuals.[556] Individuals derive
neither rights nor duties, according to International Law, from the
neutrality of those States whose subjects they are. Neutral States are
indeed obliged by International Law to prevent their subjects from
committing certain acts, but the duty of these subjects to comply with
such injunctions of their Sovereigns is a duty imposed upon them by
Municipal, not by International Law. Belligerents, on the other hand,
are indeed permitted by International Law to punish subjects of neutrals
for breach of blockade, for carriage of contraband and for rendering
unneutral service to the enemy; but the duty of subjects of neutrals to
comply with these injunctions of belligerents is a duty imposed upon
them by these very injunctions of the belligerents, and not by
International Law. Although as a rule a State has no jurisdiction over
foreign subjects on the Open Sea,[557] either belligerent has,
exceptionally, by International Law, the right to punish foreign
subjects by confiscation of cargo, and eventually of the vessel itself,
in case their vessels break blockade, carry contraband, or render
unneutral service to the enemy; but punishment is threatened and
executed by the belligerents, not by International Law. Therefore, if
neutral merchantmen commit such acts, they neither violate neutrality
nor do they act against International Law, but they simply violate
injunctions of the belligerents concerned. If they choose to run the
risk of punishment in the form of losing their property, this is their
own concern, and their neutral home State need not prevent them from
doing so. But to the right of belligerents to punish subjects of
neutrals for the acts specified corresponds the duty of neutral States
to acquiesce on their part in the exercise of this right by either
belligerent.
[Footnote 556: It should be specially observed that it is an inaccuracy
of language to speak (as is commonly done in certain cases) of
individuals as being neutral. Thus, article 16 of Convention V. of the
Second Peace Conference designates the nationals of a State which is not
taking part in a war as "neutrals." Thus, further, belligerents
occupying enemy territory frequently make enemy individuals who are not
members of the armed forces of the enemy take a so-called oath of
neutrality.]
[Footnote 557: See above, vol. I. § 146.]
Moreover, apart from carriage of contraband, breach of blockade, and
unneutral service to the enemy, which a belligerent may punish by
capturing and confiscating the vessels or goods concerned, subjects of
neutrals are perfectly unhindered in their movements, and neutral States
have in especial no duty to prevent their subjects from selling arms,
munitions, and provisions to a belligerent, from enlisting in his
forces, and the like.
[Sidenote: No Cessation of Intercourse during Neutrality between
Neutrals and Belligerents.]
§ 297. Neutrality as an attitude of impartiality involves the duty of
abstaining from assisting either belligerent either actively or
passively, but it does not include the duty of breaking off all
intercourse with the belligerents. Apart from certain restrictions
necessitated by impartiality, all intercourse between belligerents and
neutrals takes place as before, a condition of peace prevailing between
them in spite of the war between the belligerents. This applies
particularly to the working of treaties, to diplomatic intercourse, and
to trade. But indirectly, of course, the condition of war between
belligerents may have a disturbing influence upon intercourse between
belligerents and neutrals. Thus the treaty-rights of a neutral State may
be interfered with through occupation of enemy territory by a
belligerent; its subjects living on such territory bear in a sense enemy
character; its subjects trading with the belligerents are hampered by
the right of visit and search, and the right of the belligerents to
capture blockade-runners and contraband of war.
[Sidenote: Neutrality an Attitude during War (Neutrality in Civil War).]
§ 298. Since neutrality is an attitude during war, the question arises
as to the necessary attitude of foreign States during civil war. As
civil war becomes real war through recognition[558] of the insurgents as
a belligerent Power, a distinction must be made as to whether
recognition has taken place or not. There is no doubt that a foreign
State commits an international delinquency by assisting insurgents in
spite of its being at peace with the legitimate Government. But matters
are different after recognition. The insurgents are now a belligerent
Power, and the civil war is now real war. Foreign States can either
become a party to the war or remain neutral, and in the latter case all
duties and rights of neutrality devolve upon them. Since, however,
recognition may be granted by foreign States independently of the
attitude of the legitimate Government, and since recognition granted by
the latter is not at all binding upon foreign Governments, it may happen
that insurgents are granted recognition on the part of the legitimate
Government, whereas foreign States refuse it, and _vice versa_.[559] In
the first case, the rights and duties of neutrality devolve upon foreign
States as far as the legitimate Government is concerned. Men-of-war of
the latter may visit and search merchantmen of foreign States for
contraband; a blockade declared by the legitimate Government is binding
upon foreign States, and the like. But no rights and duties of
neutrality devolve upon foreign States as regards the insurgents. A
blockade declared by them is not binding, their men-of-war may not visit
and search merchantmen for contraband. On the other hand, if insurgents
are recognised by a foreign State but not by the legitimate Government,
such foreign State has all rights and duties of neutrality so far as the
insurgents are concerned, but not so far as the legitimate Government is
concerned.[560] In practice, however, recognition of insurgents on the
part of foreign States will, if really justified, always have the effect
of causing the legitimate Government to grant its recognition also.
[Footnote 558: See above, §§ 59 and 76, and Rougier, _Les guerres
civiles et le droit des gens_ (1903), pp. 414-447.]
[Footnote 559: See above, § 59.]
[Footnote 560: See the body of nine rules regarding the position of
foreign States in case of an insurrection, adopted by the Institute of
International Law at its meeting at Neuchâtel in 1900 (_Annuaire_,
XVIII. p. 227). The question as to whether, in case foreign States
refuse recognition to insurgents, although the legitimate Government has
granted it, the legitimate Government has a right of visit and search
for contraband is controversial; see _Annuaire_, XVIII. pp. 213-216.]
[Sidenote: Neutrality to be recognised by the Belligerents.]
§ 299. Just as third States have no duty to remain neutral in a war, so
they have no right[561] to demand that they be allowed to remain
neutral. History reports many cases in which States, although they
intended to remain neutral, were obliged by one or both belligerents to
make up their minds and choose the belligerent with whom they would
throw in their lot. For neutrality to come into existence it is,
therefore, not sufficient for a third State at the outbreak of war to
take up an attitude of impartiality, but it is also necessary that the
belligerents recognise this attitude by acquiescing in it and by not
treating such third State as a party to the war. This does not mean, as
has been maintained,[562] that neutrality is based on a contract
concluded either _expressis verbis_ or by unmistakable actions between
the belligerents and third States, and that, consequently, a third State
might at the outbreak of war take up the position of one which is
neither neutral nor a party to the war, reserving thereby for itself
freedom in its future resolutions and actions. Since the normal relation
between members of the Family of Nations is peace, the outbreak of war
between some of the members causes the others to become neutrals _ipso
facto_ by their taking up an attitude of impartiality and by their not
being treated by the belligerents as parties to the war. Thus, it is not
a contract that calls neutrality into existence, but this condition is
rather a legal consequence of a certain attitude on the part of third
States at the outbreak of war, on the one hand, and, on the other, on
the part of the belligerents themselves.
[Footnote 561: But many writers assert the existence of such a right;
see, for instance, Vattel, III. § 106; Wheaton, § 414; Kleen, I. § 2;
Bonfils, No. 1443.]
[Footnote 562: See Heilborn, _System_, pp. 347 and 350.]
III
DIFFERENT KINDS OF NEUTRALITY
Vattel, III. §§ 101, 105, 107, 110--Phillimore, III. §§
138-139--Halleck, II. p. 142--Taylor, § 618--Wheaton, §§
413-425--Bluntschli, §§ 745-748--Geffcken in Holtzendorff, IV. pp.
634-636--Ullmann, § 190--Despagnet, No. 685--Pradier-Fodéré, VIII.
Nos. 3225-3231--Rivier, II. pp. 370-379--Calvo, IV. §§
2592-2642--Fiore, III. Nos. 1542-1545--Mérignhac, pp.
347-349--Pillet, pp. 277-284--Kleen, I. §§ 6-22.
[Sidenote: Perpetual Neutrality.]
§ 300. The very first distinction to be made between different kinds of
neutrality is that between perpetual or other neutrality. Perpetual or
permanent is the neutrality of States which are neutralised by special
treaties of the members of the Family of Nations, as at the present time
that of Switzerland, Belgium, and Luxemburg. Apart from duties arising
from the fact of their neutralisation which are to be performed in time
of peace as well as in time of war, the duties and rights of neutrality
are the same for neutralised as for other States. It must be specially
observed that this concerns not only the obligation not to assist either
belligerent, but likewise the obligation to prevent them from making use
of the neutral territory for their military purposes. Thus, Switzerland
in 1870 and 1871, during the Franco-German War, properly prevented the
transport of troops, recruits, and war material of either belligerent
over her territory, disarmed the French army which had saved itself by
crossing the Swiss frontier, and detained the members of this army until
the conclusion of peace.[563]
[Footnote 563: See below, § 339.]
[Sidenote: General and Partial Neutrality.]
§ 301. The distinction between general and partial neutrality derives
from the fact that a part of the territory of a State may be
neutralised,[564] as are, for instance, the Ionian Islands of Corfu and
Paxo, which are now a part of the territory of the Kingdom of Greece.
Such State has the duty to remain always partially neutral--namely, as
far as its neutralised part is concerned. In contradistinction to such
partial neutrality, general neutrality is the neutrality of States no
part of whose territory is neutralised by treaty.
[Footnote 564: See above, § 72.]
[Sidenote: Voluntary and Conventional Neutrality.]
§ 302. A third distinction is that between voluntary and conventional
neutrality. Voluntary (or simple or natural) is the neutrality of such
State as is not bound by a general or special treaty to remain neutral
in a certain war. Neutrality is in most cases voluntary, and States
whose neutrality is voluntary may at any time during the war give up
their attitude of impartiality and take the part of either belligerent.
On the other hand, the neutrality of such State as is by treaty bound to
remain neutral in a war is conventional. Of course, the neutrality of
neutralised States is in every case conventional. Yet not-neutralised
States can likewise by treaty be obliged to remain neutral in a certain
war, just as in other cases they can by treaty of alliance be compelled
not to remain neutral, but to take the part of one of the belligerents.
[Sidenote: Armed Neutrality.]
§ 303. One speaks of an armed neutrality when a neutral State takes
military measures for the purpose of defending its neutrality against
possible or probable attempts of either belligerent to make use of the
neutral territory. Thus, the neutrality of Switzerland during the
Franco-German War was an armed neutrality. In another sense of the term,
one speaks of an armed neutrality when neutral States take military
measures for the purpose of defending the real or pretended rights of
neutrals against threatening infringements on the part of either
belligerent. The First and Second Armed Neutrality[565] of 1780 and 1800
were armed neutralities in the latter sense of the term.
[Footnote 565: See above, §§ 289 and 290.]
[Sidenote: Benevolent Neutrality.]
§ 304. Treaties stipulating neutrality often stipulate a "benevolent"
neutrality of the parties regarding a certain war. The term is likewise
frequently used during diplomatic negotiations. However, at present
there is no distinction between benevolent neutrality and neutrality
pure and simple. The idea dates from earlier times, when the obligations
imposed by neutrality were not so stringent, and neutral States could
favour one of the belligerents in many ways without thereby violating
their neutral attitude. If a State remained neutral in the then lax
sense of the term, but otherwise favoured a belligerent, its neutrality
was called benevolent.
[Sidenote: Perfect and Qualified Neutrality.]
§ 305. A distinction of great practical importance was in former times
that between perfect, or absolute, and qualified, or imperfect,
neutrality. The neutrality of a State was qualified if it remained
neutral on the whole, but actively or passively, directly or indirectly,
gave some kind of assistance to one of the belligerents in consequence
of an obligation entered into by a treaty previous to the war, and not
for the special war exclusively. On the other hand, a neutrality was
termed perfect if a neutral State neither actively nor passively, and
neither directly nor indirectly, favoured either belligerent. There is
no doubt that in the eighteenth century, when it was recognised that a
State could be considered neutral, although it was by a previous treaty
bound to render more or less limited assistance to one of the
belligerents, this distinction between neutrality perfect and qualified
was justified. But during the second half of the nineteenth century it
became controversial whether a so-called qualified neutrality was
neutrality at all, and whether a State, which, in fulfilment of a treaty
obligation, rendered some assistance to one of the belligerents,
violated its neutrality. The majority of modern writers[566] maintained,
correctly I think, that a State was either neutral or not, and that a
State violated its neutrality in case it rendered any assistance
whatever to one of the belligerents from any motive whatever. For this
reason, a State which had entered into such obligations as those just
mentioned would in time of war frequently be in a conflict of duties.
For, in fulfilling its treaty obligations, it would frequently be
obliged to violate its duty of neutrality, and _vice versa_. Several
writers,[567] however, maintained that such fulfilment of treaty
obligations would not contain a violation of neutrality. All doubt in
the matter ought now to be removed, since article 2 of Convention V. of
the Second Peace Conference categorically enacts that "belligerents are
forbidden to move across the territory of a neutral Power troops or
convoys either of munitions of war or of supplies." The principle at the
back of this enactment no doubt is that a qualified neutrality has no
longer any _raison d'être_, and that neutrality must in every case be
perfect.[568]
[Footnote 566: See, for instance, Ullmann, § 190; Despagnet, No. 685;
Rivier, II. p. 378; Calvo, IV. § 2594; Taylor, § 618; Fiore, III. No.
1541; Kleen, I. § 21; Hall, § 215 (see also Hall, § 219, concerning
passage of troops). Phillimore, III. § 138, goes with the majority of
publicists, but in § 139 he thinks that it would be too rigid to
consider acts of "minor" partiality which are the result of conventions
previous to the war as violations of neutrality.]
[Footnote 567: See, for instance, Heffter, § 144; Manning, p. 225;
Wheaton, §§ 425-426; Bluntschli, § 746; Halleck, II. p. 142.]
[Footnote 568: See above, § 77, where it has been pointed out that a
neutral who takes up an attitude of qualified neutrality may nowadays be
considered as an accessory belligerent party to the war.]
[Sidenote: Some Historical Examples of Qualified Neutrality.]
§ 306. For the purpose of illustration the following instances of
qualified neutrality may be mentioned:--
(1) By a treaty of amity and commerce concluded in 1778 between the
United States of America and France, the former granted for the time of
war to French privateers and their prizes the right of admission to
American ports, and entered into the obligation not to admit the
privateers of the enemies of France. When subsequently, in 1793, war was
waged between England and France, and England complained of the
admission of French privateers to American ports, the United States met
the complaint by advancing their treaty obligations.[569]
(2) Denmark had by several treaties, especially by one of 1781,
undertaken the obligation to furnish Russia with a certain number of
men-of-war and troops. When, in 1788, during war between Russia and
Sweden, Denmark fulfilled her obligations towards Russia, she
nevertheless declared herself neutral. And although Sweden protested
against the possibility of such qualified neutrality, she acquiesced in
the fact and did not consider herself to be at war with Denmark.[570]
(3) In 1848, during war between Germany and Denmark, Great Britain,
fulfilling a treaty obligation towards Denmark, prohibited the
exportation of arms to Germany, whereas such exportation to Denmark
remained undisturbed.[571]
(4) In 1900, during the South African War, Portugal, for the purpose of
complying with a treaty obligation[572] towards Great Britain regarding
the passage of British troops through Portuguese territory in South
Africa, allowed such passage to an English force which had landed at
Beira[573] and was destined for Rhodesia.
[Footnote 569: See Wheaton, § 425, and Phillimore, III. § 139.]
[Footnote 570: See Phillimore, III. § 140.]
[Footnote 571: See Geffcken in Holtzendorff, VI. p. 610, and Rivier, II.
p. 379.]
[Footnote 572: Article 11 of the treaty between Great Britain and
Portugal concerning the delimitation of spheres of influence in Africa.
(Martens, _N.R.G._ 2nd Ser. XVIII. p. 185.)]
[Footnote 573: See below, § 323; Baty, _International Law in South
Africa_ (1900), p. 75; and _The Times' History of the War in South
Africa_, vol. IV. p. 366.]
IV
COMMENCEMENT AND END OF NEUTRALITY
Hall, § 207--Phillimore, I. §§ 392-392A, III. §§ 146-149--Taylor,
§§ 610-611--Wheaton, §§ 437-439, and Dana's note 215--Heffter, §
145--Bonfils, Nos. 1445-1446--Despagnet, No. 689--Pradier-Fodéré,
VIII. Nos. 3234-3237--Rivier, II. pp. 379-381--Martens, II. §
138--Kleen, I. §§ 5, 36-42.
[Sidenote: Neutrality commences with Knowledge of the War.]
§ 307. Since neutrality is an attitude of impartiality deliberately
taken up by a State not implicated in a war, neutrality cannot begin
before the outbreak of war becomes known. It is only then that third
States can make up their minds whether or not they intend to remain
neutral. They are supposed to remain neutral, and the duties deriving
from neutrality are incumbent upon them so long as they do not
_expressis verbis_ or by unmistakable acts declare that they will be
parties to the war. It had long been the usual practice on the part of
belligerents to notify the outbreak of war to third States for the
purpose of enabling them to take up the necessary attitude of
impartiality, but such notification was not formerly in strict law
necessary. The mere fact of the knowledge of the outbreak of war which
had been obtained in any way gave a third State an opportunity of making
up its mind regarding the attitude which it intended to take up, and, if
it remained neutral, its neutrality was to be dated from the time of its
knowledge of the outbreak of war. But it is apparent that an immediate
notification of the war on the part of belligerents is of great
importance, as thereby all doubt and controversy regarding the knowledge
of the outbreak of war are excluded. For the fact must always be
remembered that a neutral State may in no way be made responsible for
acts of its own or of its subjects which have been performed before it
knew of the war, although the outbreak of war might be expected. For
this reason article 2 of Convention III. of the Second Peace Conference
enacts that belligerents must without delay send a notification of the
outbreak of war, which may even be made by telegraph, to neutral Powers,
and that the condition of war shall not take effect in regard to neutral
Powers until after receipt of a notification, unless it be established
beyond doubt that they were in fact aware of the outbreak of war.[574]
[Footnote 574: See above, §§ 94 and 95.]
[Sidenote: Commencement of Neutrality in Civil War.]
§ 308. As civil war becomes real war through recognition of the
insurgents as a belligerent Power, neutrality during a civil war begins
for every foreign State from the moment recognition is granted. That
recognition might be granted or refused by foreign States independently
of the attitude of the legitimate Government has been stated above in §
298, where also an explanation is given of the consequences of
recognition granted either by foreign States alone or by the legitimate
Government alone.
[Sidenote: Establishment of Neutrality by Declarations.]
§ 309. Neutrality being an attitude of States creating rights and
duties, active measures on the part of a neutral state are required for
the purpose of preventing its officials and subjects from committing
acts incompatible with its duty of impartiality. Now, the manifesto by
which a neutral State orders its organs and subjects to comply with the
attitude of impartiality adopted by itself is called a declaration of
neutrality in the special sense of the term. Such declaration of
neutrality must not, however, be confounded, on the one hand, with
manifestoes of the belligerents proclaiming to neutrals the rights and
duties devolving upon them through neutrality, or, on the other hand,
with the assertions made by neutrals to belligerents or _urbi et orbi_
that they will remain neutral, although these manifestoes and assertions
are often also called declarations of neutrality.[575]
[Footnote 575: See above, § 293.]
[Sidenote: Municipal Neutrality Laws.]
§ 310. International Law leaves the provision of necessary measures for
the establishment of neutrality to the discretion of each State. Since
in constitutional States the powers of Governments are frequently so
limited by Municipal Law that they may not take adequate measures
without the consent of their Parliaments, and since it is, so far as
International Law is concerned, no excuse for a Government if it is by
its Municipal Law prevented from taking adequate measures, several
States have once for all enacted so-called Neutrality Laws, which
prescribe the attitude to be taken up by their officials and subjects in
case the States concerned remain neutral in a war. These Neutrality Laws
are latent in time of peace, but their provisions become operative _ipso
facto_ by the respective States making a declaration of neutrality to
their officials and subjects.
[Sidenote: British Foreign Enlistment Act.]
§ 311. After the United States of America had on April 20, 1818,
enacted[576] a Neutrality Law, Great Britain followed the example in
1819 with her Foreign Enlistment Act,[577] which was in force till 1870.
As this Act did not give adequate powers to the Government, Parliament
passed on August 9, 1870, a new Foreign Enlistment Act,[578] which is
still in force. This Act, in the event of British neutrality,
prohibits--(1) The enlistment by a British subject in the military or
naval service of either belligerent, and similar acts (sections 4-7);
(2) the building, equipping,[579] and despatching[580] of vessels for
employment in the military or naval service of either belligerent
(sections 8-9); (3) the increase, on the part of any individual living
on British territory, of the armament of a man-of-war of either
belligerent being at the time in a British port (section 10); (4) the
preparing or fitting out of a naval or military expedition against a
friendly State (section 11).
[Footnote 576: Printed in Phillimore, I. pp. 667-672.]
[Footnote 577: 59 Geo. III. c. 69.]
[Footnote 578: 33 and 34 Vict. c. 90. See Sibley in the _Law Magazine
and Review_, XXIX. (1904), pp. 453-464, and XXX. (1905), pp. 37-53.]
[Footnote 579: According to section 30, the Interpretation Clause of the
Act, "equipping" includes "the furnishing of a ship with any tackle,
apparel, furniture, provisions, arms, munitions, or stores, or any other
thing which is used in or about a ship for the purpose of fitting or
adapting her for the sea or for naval service." It is, therefore, not
lawful for British ships, in case Great Britain is neutral, to supply a
belligerent fleet direct with coal, a point which became of interest
during the Russo-Japanese War. German steamers laden with coal followed
the Russian fleet on her journey to the Far East, and British shipowners
were prevented from doing the same by the Foreign Enlistment Act. And it
was in application of this Act that the British Government ordered, in
1904, the detention of the German steamer _Captain W. Menzel_, which
took in Welsh coal at Cardiff for the purpose of carrying it to the
Russian fleet _en route_ to the Far East. See below, § 350.]
[Footnote 580: An interesting case which ought here to be mentioned
occurred in October 1904, during the Russo-Japanese War. Messrs. Yarrow
& Co., the shipbuilders, possessed a partly completed vessel, the
_Caroline_, which could be finally fitted up either as a yacht or as a
torpedo-boat. In September 1904, a Mr. Sinnet and the Hon. James Burke
Roche called at the shipbuilding yard of Messrs. Yarrow, bought the
_Caroline_, and ordered her to be fitted up as a high-speed yacht. The
required additions were finished on October 3. On October 6 the vessel
left Messrs. Yarrow's yard and was navigated by a Captain Ryder, _via_
Hamburg, to the Russian port of Libau, there to be altered into a
torpedo-boat. That section 8 of the Foreign Enlistment Act applies to
this case there is no doubt. But there is no doubt either that it is
this Act, and not the rules of International Law, which required the
prosecution of Messrs. Sinnet and Roche on the part of the British
Government. For, if viewed from the basis of International Law, the case
is merely one of contraband. See below, §§ 321, 334, and 397.]
It must be specially observed that the British Foreign Enlistment Act
goes beyond the requirements of International Law in so far as it tries
to prohibit and penalises a number of acts which, according to the
present rules of International Law, a neutral State is not required to
prohibit and penalise. Thus, for instance, a neutral State need not
prohibit its private subjects from enlisting in the service of a
belligerent; from supplying coal, provisions, arms, and ammunition
direct to a belligerent fleet, provided such fleet is not within or just
outside the territorial waters of the neutral concerned; from selling
ships to a belligerent although it is known that they will be converted
into cruisers or used as transport ships. For article 7 of Convention
VII. as well as of Convention XIII. of the Second Peace Conference
categorically enacts that "a neutral Power is not bound to prevent the
export or transit, on behalf of either belligerent, of arms, munitions
of war, or, in general, of anything which could be of use to an army or
fleet."
[Sidenote: End of Neutrality.]
§ 312. Neutrality ends with the war, or through the commencement of war
by a hitherto neutral State against one of the belligerents, or through
one of the belligerents commencing war against a hitherto neutral State.
Since, apart from a treaty obligation, no State has by International Law
the duty to remain neutral in a war between other States,[581] or, if it
is a belligerent, to allow a hitherto neutral State to remain
neutral,[582] it does not constitute a violation of neutrality on the
part of a hitherto neutral to declare war against one of the
belligerents, and on the part of a belligerent to declare war against a
neutral. Duties of neutrality exist so long only as a State remains
neutral. They come to an end _ipso facto_ by a hitherto neutral State
throwing up its neutrality, or by a belligerent beginning war against a
hitherto neutral State. But the ending of neutrality must not be
confounded with violation of neutrality. Such violation does not _ipso
facto_ bring neutrality to an end, as will be shown below in § 358.
[Footnote 581: See above, § 293.]
[Footnote 582: See above, § 299.]