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Title: International Law. A Treatise. Volume 2 (of 2)

Author: L. Oppenheim

Release date: October 16, 2012 [eBook #41047]

Language: English

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*** START OF THE PROJECT GUTENBERG EBOOK INTERNATIONAL LAW. A TREATISE. VOLUME 2 (OF 2) ***

INTERNATIONAL LAW

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 VOL. II. WAR AND NEUTRALITY SECOND EDITION 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

LONGMANS, GREEN AND CO.

39 PATERNOSTER ROW, LONDON

NEW YORK, BOMBAY, AND CALCUTTA

1912

All rights reserved

Transcriber's Note: Original spelling variations have not been standardized. Links have been provided to the first volume of this two-volume work, see International Law. A Treatise. Vol. I--Peace. Second Edition, by Lassa Oppenheim, M.A., LL.D., gutenberg ebooks 41046. Although we verify the correctness of these links at the time of posting, these links may not work, for various reasons, for various people, at various times.

[Pg v]

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 judicio100a), 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 [Pg vi]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[Pg vii] 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.[Pg viii]

[Pg ix]

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, = Barclay, Problems of International Practice Problems 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.[Pg x]

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, = Deuxième Conférence Internationale De Actes 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).[Pg xi]

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 = Hague Regulations respecting the Laws Regulations 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 = Holland, A Manual of Naval Prize Law 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).[Pg xii]

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).[Pg xiii]

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).[Pg xiv]

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 = The Laws and Usages of War at Sea, published Code 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, = Wehberg, Kommentar zu dem Haager Kommentar Abkommen betreffend die friedliche Erledigung internationaler Streitigkeiten (1911).

Westlake = Westlake, International Law, 2 vols. (1904-1907).

Westlake, = Westlake, Chapters on the Principles of Chapters 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.

[Pg xv]

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, § 100a, 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

Carolina, the, § 408, p. 519

Caroline, the (1808), § 409, p. 522 note 1

Caroline, the (1904), § 311, p. 376 note 1

Carthage, the, § 403a, 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, § 100a, p. 134 note 1

Dessaix, the, § 194, p. 244

De Wahl v. Browne, § 100a, 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 [Pg xvi]

Dorsey v. Kyle, § 100a, p. 134 note 1

Driefontein Consolidated Gold Mines Co. v. Janson, § 100a, 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, § 100a, 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, § 100a, 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[Pg xvii]

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, § 100a, 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

Phœnix, the, § 90, p. 116 note 4

Planche v. Fletcher, § 101, p. 136 note 3[Pg xviii]

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

Shepeler v. Durand, § 100a, 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, § 100a, 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

[Pg xix]

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[Pg xx]

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

25a. 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[Pg xxi]

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[Pg xxii]

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

100a. Persona standi in judicio on Enemy Territory 133

101. Intercourse, especially Trading, between Subjects of Belligerents 135[Pg xxiii]

102. Position of Belligerents' Property in the Enemy State 139

102a. 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

124a. Application of the Geneva Convention, and Prevention of Abuses 163

124b. 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[Pg xxiv]

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[Pg xxv]

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

182a. 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[Pg xxvi]

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

205a. Treatment of the Dead 254

206. Hospital Ships 254

206a. Hospital Ships in Neutral Ports 256

206b. 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

209a. Application of Convention X., and Prevention of Abuses 260

209b. 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[Pg xxvii]

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[Pg xxviii]

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

259a. How the Principle of Compensation for Violations of the Laws of War arose 319

259b. 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[Pg xxix]

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[Pg xxx]

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

317a. Neutrality Conventions of the Second Peace Conference 383

318. Contents of Duty of Belligerents to treat Neutrals in accordance with their Impartiality 384[Pg xxxi]

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

348a. 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[Pg xxxii]

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

363a. 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[Pg xxxiii]

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

385a. 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

396a. 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[Pg xxxiv]

402. The Case of the Bundesrath 502

403. Continental support to the Doctrine of Continuous Transports 504

403a. 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

406a. 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[Pg xxxv]

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[Pg xxxvi]

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

[Pg 3]

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.)

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,[Pg 4] 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.

[1] See above, vol. I. § 149.

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.

Amicable in contradistinction to compulsive settlement of Differences.

§ 3. Political and legal differences can be settled either by amicable or by compulsive means. There[Pg 5] 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.

[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.

[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.

[4] See above, vol. I. § 553.

[5] See below, § 17.[Pg 6]

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.

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.

[6] See above, vol. I. §§ 477-482, where the international transaction of negotiation in general is discussed.

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 [Pg 7]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[Pg 8] 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[Pg 9] 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).

[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.

[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.

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.[Pg 10]

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. 9321-9431—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.

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.

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[Pg 11] 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.

[9] But Italy did not comply with this stipulation before she declared war against Turkey in September 1911.

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[Pg 12] 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.

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:—

[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[Pg 13] 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).[Pg 14]

(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.

Value of Good Offices and Mediation.

§ 11. The value of good offices and mediation for[Pg 15] 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.

[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.

[Pg 16]

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).

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.

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[Pg 17] 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]

[12] See above, § 3.

[13] See Martens, N.R.G. 2nd Ser. XXII. p. 590.

[14] See below, § 17.

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[Pg 18] 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.

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.

[15] See below, § 335, concerning the "Three rules of Washington."

Binding force of Arbitral Verdict.

§ 16. An arbitral verdict is final if the arbitration treaty does not stipulate the contrary, and the verdict[Pg 19] 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.

[16] See Donker Curtius and Nys in R.I. 2nd Ser. XII. (1910), pp. 5-34 and 595-641.

[17] See Moore, VII. § 1082, and Moore, Arbitrations, I. pp. 81-161.

[18] See Fiore in R.G. XVII. (1910), pp. 225-256.

[19] See Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.

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[Pg 20] 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[Pg 21] 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,[Pg 22] 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]

[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.

[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.

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[Pg 23] 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.

[22] See examples in Calvo, III. §§ 1707-1712, and in Nys, Les origines du droit international (1894), pp. 52-61.

[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.

[24] See above, vol. I. § 476b.

V ARBITRATION ACCORDING TO THE HAGUE CONVENTION

Ullmann, §§ 155-156—Bonfils, Nos. 9531-9551—Despagnet, Nos. 742-746bis—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.

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[Pg 24] 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),[Pg 25] 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.

[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;[Pg 26] (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]

[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.

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[Pg 27] 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).

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[Pg 28] 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[Pg 29] 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[Pg 30] 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).

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).

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[Pg 31] 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).

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[Pg 32] 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).

[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.

Costs of Arbitration.

§ 25. Each party pays its own expenses and an equal share of those of the tribunal[28] (article 85).

[28] See details in Wehberg, Kommentar, pp. 155-158.

Arbitration by Summary Procedure.

§ 25a. 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[Pg 33] 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).

[Pg 34]

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.

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.

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[Pg 35] 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.

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[Pg 36] 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.

[29] See Pradier-Fodéré, VI. No. 2649, and below, § 95.

[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.

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[Pg 37] 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.

[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.

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.

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[Pg 38] 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.

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.

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[Pg 39] 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.

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.

[32] See, for instance, Twiss, II. § 19.

[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[Pg 40] 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.

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.

[34] See above, vol. I. §§ 149 and 150.[Pg 41]

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]

[35] See above, vol. I. § 167. The case is reported with all its details in Martens, Causes Célèbres, V. pp. 395-531.

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[Pg 42] 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.

Objects of Reprisals.

§ 37. An act of reprisal may be performed against[Pg 43] 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.

[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[Pg 44] 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]

[37] See the case reported in Martens, Causes Célèbres, I. p. 35.

[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.

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.

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.

Embargo.

§ 40. A kind of reprisal, which is called Embargo,[Pg 45] 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]

[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.

[40] See, however, below, § 102a 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.

[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.

[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[Pg 46] Sovereign to English ships not to leave English ports.

[43] See Phillimore, III. § 26.

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.

[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.

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.

[45] See below, § 247.

Value of Reprisals.

§ 43. The value of reprisals as a means of settling[Pg 47] 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.[Pg 48]

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.

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[Pg 49] 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,[Pg 50] and Italy blockaded, by way of reprisal, the coast of Venezuela.[48]

[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.

[47] See above, § 35.

[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.

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[Pg 51] admissibility of pacific blockades for the settlement of political as well as of legal international differences.

[49] The leader of these writers is Hautefeuille, Des Droits et des Devoirs des Nations Neutres (2nd ed. 1858, pp. 272-288).

[50] See Annuaire, IX. (1887), pp. 275-301.

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."

[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[Pg 52] 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.

[52] That this blockade was essentially a pacific blockade I have already stated above, p. 50, note 1.

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.

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[Pg 53] 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."

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]

[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."

[Pg 54]

V INTERVENTION

See the literature quoted above in vol. I. at the commencement of § 134.

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.

[54] See above, vol. I. §§ 134-138.[Pg 55]

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.

[55] Thus, for instance, Rivier, II. § 58. See also above, vol. I. § 134.

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]

[56] See above, vol. I. §§ 136 and 137.

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[Pg 56] 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]

[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.

[Pg 59]

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.

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[Pg 60] 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.

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[Pg 61] 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.

[58] See, for instance, Vattel, III. § 1; Phillimore, III. § 49; Twiss, II. § 26; Bluntschli, § 510; Bulmerincq, § 92.

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[Pg 62] Empire without the latter's offering armed resistance, these acts of force, although doubtless illegal, were not acts of war.

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[Pg 63] 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.

[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.

[60] See below, § 59.

[61] See below, § 75.

[62] Bulgaria was at that time still a vassal State under Turkish suzerainty.

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[Pg 64] 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.

[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[Pg 65] 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[Pg 66] 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."

[64] See Boidin, pp. 32-44.

[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.

[66] See Breton, Les non-belligérants: Leurs devoirs, leurs droits, et la question des otages (1904).

[67] See below, § 254.

[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[Pg 67] 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]

[69] See, for instance, Hall, § 18, p. 74, and Westlake, Chapters, p. 262.

[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."

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[Pg 68] 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.

[71] See below, § 66.

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[Pg 69] 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,[Pg 70] 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.

[72] See below, §§ 76 and 298.

[73] See above, vol. I. § 63.

[74] See below, § 298.

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]

[75] See also article 2 of the Hague Regulations.[Pg 71]

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[Pg 72] 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).

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[Pg 73] 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.

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[Pg 74] 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.

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[Pg 75] 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.

[76] See above, vol. I. §§ 151-156.

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,[Pg 76] whereas the real cause does not become apparent for some time.

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.

[77] See above, § 61.

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[Pg 77] 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.

[78] Ends of war must likewise not be confounded with aims of land and sea warfare; see below, §§ 103 and 173.

[79] See Bluntschli, § 536; Lueder in Holtzendorff, IV. p. 364; Rivier, II. p. 219.

[80] See above, § 54.[Pg 78]

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.

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[Pg 79] 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.

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,[Pg 80] 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[Pg 81] 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.

[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[Pg 82] 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.

[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).

[Pg 83]

(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]

[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.

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,[Pg 84] 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.

[84] See below, § 248.

[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.

[86] See Rivier, II. p. 242.

[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[Pg 85] 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!

[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.

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[Pg 86] 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.

[89] This distinction, although of considerable importance, does not appear to have been made by any other publicist.

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.

[90] See above, vol. I. § 256.

[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[Pg 87] 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.

[92] See above, vol. I. §§ 91 and 169.

[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[Pg 88] 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.

[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.

[95] See below, § 320.

[96] See below, § 339.

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.[Pg 89]

(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.

[97] See above, vol. I. §§ 181 and 256.

[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.

[99] See above, vol. I. § 207.

[100] See Martens, N.R.G. XVIII. p. 63.

[101] See above, vol. I. § 183.

[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.

[103] See above, vol. I. § 184.

[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[Pg 90] War in 1911, Turkey proposed the neutralisation of the Red Sea, but Italy refused to agree to it.

[105] See Perels, § 33, p. 160, note 2.

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]

[106] See Perels, pp. 160-163, who discusses the question at some length and answers it in the affirmative.

[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.

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[Pg 91] 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.

[108] See Heilborn, System, p. 333.

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[Pg 92] 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.

[109] See Martens, N.R.G. 2nd Ser. IV. pp. 12, 14, 172.

[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.

[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.

[112] See above, § 56, and Baty, International Law in South Africa (1900), pp. 66-68.

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[Pg 93] 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.

[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.

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[Pg 94] § 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."

[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.

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[Pg 95] 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.

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.

[115] See Rey in R.G. XVII. (1910), pp. 73-102, and Higgins, War and the Private Citizen (1912), pp. 91-114.

[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.

[117] See below, § 127.[Pg 96]

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 [Pg 97](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]

[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.

[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.

[120] See below, § 254.

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[Pg 98] 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]

[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]

[122] Concerning the difference between invasion and occupation, see below, § 167.

[123] See Land Warfare, §§ 31-32.

[124] See Land Warfare, § 34.

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[Pg 99] 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.

[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.

Privateers.

§ 83. Formerly privateers were a generally recognised part of the armed forces of the belligerents, private vessels being commissioned by the belligerents[Pg 100] 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]

[126] See Martens, Essai concernant les armateurs, les prises, et surtout les reprises (1795).

[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.

[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.

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[Pg 101] 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]

[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[Pg 102] 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]

[130] See Dupuis, No. 85.

[131] See Dupuis, No. 86.

[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.

[133] See the details of the career of these vessels in Lawrence, War, pp. 205 seq.

[134] See above, vol. I. § 197.

This case was the cause of the question of the conversion of merchantmen into men-of-war being[Pg 103] 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).

[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[Pg 104] 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.

[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.

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,[Pg 105] 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]

[137] See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and Science, p. 268.

[138] See below, § 181, and Hall, § 183.

[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.

[140] This follows indirectly from article 8 of Convention XI.

[141] See below, § 201.[Pg 106]

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]

[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. 1343-13491—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.

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[Pg 107] 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,[Pg 108] 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.

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[Pg 109] 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]

[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[Pg 110] 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,[Pg 111] 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.

[144] Quaestiones juris publici, I. c. 3 in fine.

[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.[Pg 112] 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.

[146] See Albrecht, Requisitionen von neutralem Privateigenthum, &c. (1912), pp. 13-15.

[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]

[148] See the Postilion (1779), Hay & Marriot, 245; the Danous (1802), 4 C. Rob. 255, note; the Venus (1814), 8 Cranch, 253.

[149] See below, § 90.

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[Pg 113] 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,[Pg 114] 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[Pg 115] 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).

[150] See below, § 410.

[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.

[152] See the case of the Montara in Takahashi, p. 633.

[153] See below, § 289, and Higgins, War and the Private Citizen (1912), pp. 169-192.

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[Pg 116] 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[Pg 117] 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.

[154] The Postilion (1779), Hay & Marriot, 245; the Danous (1802), 4 C. Rob. 255, note.

[155] The Baltica (1857), 11 Moore, P.C. 141.

[156] The Indian Chief (1801), 3 C. Rob. 12.

[157] The Venus (1814), 8 Cranch, 253.

[158] From the judgment of Sir William Scott in the case of the Phœnix (1803), 5 C. Rob. 41; see also Thirty Hogsheads of Sugar v. Boyle (Bentzen v. Boyle) (1815), 9 Cranch, 191.

[159] The Portland (1800), 3 C. Rob. 41; the Jonge Klassina (1803), 5 C. Rob. 297; the Freundschaft (1819), 4 Wheaton, 105.

[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.

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[Pg 118] 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[Pg 119] 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.

[161] See Holland, Prize Law, § 19; Hall, § 171; Twiss, II. §§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos. 1344-13491; Dupuis, Nos. 117-129, and Guerre, Nos. 62-66.

[162] See Dupuis, No. 97.

[163] The Vigilantia (1798), 1 C. Rob. 1; the Baltica (1857), 11 Moore, P.C. 141; the Benito Estenger (1899), 176 United States, 568.

[164] The General Hamilton (1805), 6 C. Rob. 61.

[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.

[166] The Sechs Geschwistern (1801), 4 C. Rob. 100; the Jemmy (1801), 4 C. Rob. 31.

[167] The Jan Frederick (1804), 5 C. Rob. 128.

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[Pg 120] 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.

[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.

[169] The Jan Frederick (1804), 5 C. Rob. 128; the Ann Green (1812), I Gallison, 274.

[170] See Boeck, No. 162; Dupuis, No. 142.

[171] Great Britain is one of them, see Section 44 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71).

[Pg 121]

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. 1027-10312—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 3a 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.

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[Pg 122] (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[Pg 123] 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.

[172] See Maurice, Hostilities without Declaration of War (1883).

[173] See, for instance, Vattel, III. § 51; Calvo, IV. § 1907; Bluntschli, § 571; Fiore, III. No. 1274; Heffter, § 120.

[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.

[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.

[176] See Annuaire, XXI. (1906), p. 283.

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,[Pg 124] 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.[Pg 125]

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.

[177] See below, § 307.

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[Pg 126] 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.

[178] See above, § 28.

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[Pg 127] 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,[Pg 128] 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.

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[Pg 129] 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.

[179] See above, § 88.

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]

[180] See above, vol. I. §§ 413 and 436.

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[Pg 130] 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[Pg 131] are concerned, in case the necessities of war compel them to do so.[186]

[181] See, for instance, Phillimore, III. § 530, and Twiss, I. § 252, in contradistinction to Hall, § 125.

[182] See Jaconnet, op. cit. pp. 113-128.

[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.

[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.

[185] See above, vol. I. §§ 18, 492, 555-568b.

[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.

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[Pg 132] 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.

[187] See a list of such treaties in Hall, § 126, p. 107, note 1.

[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.

[189] See Twiss, II. § 50; Rivier, II. p. 320; Liszt, § 39, V.; Holland, Letters upon War and Neutrality (1909), p. 39.

[190] See Land Warfare, § 12.

[191] See Land Warfare, § 13.

[192] See above, vol. I. § 324.

[193] See above, vol. I. § 317, p. 394, where the case of De Jager v. Attorney General is discussed.

[Pg 133]

Persona standi in judicio on Enemy Territory.

§ 100a. 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,[Pg 134] 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.

[194] In strict law also in France.

[195] The leading case is the Hoop (1799), 1 C. Rob. 196.

[196] Wells v. Williams (1698), 1 Lord Raymond, 282.

[197] Shepeler v. Durand (1854), 14 P.C. 582.

[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.

[199] Maria v. Hall (1800), 2 B. & P. 236.

[200] Driefontein Consolidated Gold Mines Co. v. Janson (1910), 2 Q.B. 419; App. Cas. (1902), 484.

[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]

[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,[Pg 135] but are only suspended during war, and the Statute of Limitations does not, according to American[203] practice at any rate, run during war.

[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.

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.

[204] Quaestiones juris publici, I. c. 3: "quamvis autem nulla specialis sit commerciorum prohibitio ipsa tamen jure belli commercia sunt vetita."

[205] For instance, Pillet, p. 74, and Mérignhac, p. 57.

[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[Pg 136] 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.

[207] See above, vol. I. § 20.

[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[Pg 137] 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]

[Pg 138]

(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.

[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.

[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.

[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.

[212] Willison v. Paterson (1817), 7 Taunt, 439.

[213] Antoine v. Morshead (1815), 6 Taunt, 237.

[214] The Madonna delle Gracie (1802), 4 C. Rob. 195.

[215] Maria v. Hall (1800), 2 B. & P. 236.

[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.

[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.

[218] Griswold v. Boddington (1819), 16 Johnson, 438; Esposito v. Bowden (1857), 7 E. & B. 763.

[219] Du Belloix v. Lord Waterpark (1822), 1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.

[220] Hoare v. Allan (1789), 2 Dallas, 102.

[221] Esposito v. Bowden (1857), 7 E. & B. 763. See also the Teutonia (1870), L. R. 4 Privy Council, 171.

[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.

[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, § 100a—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 § 100a, 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.

[Pg 139]

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[Pg 140] 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.

[224] See above, § 100; Moore, VII. § 1196; Scott, Conferences, pp. 559-563.

[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.

[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.

Effect of the Outbreak of War on Merchantmen.

§ 102a. 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[Pg 141] 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:—

[227] See above, § 40.

[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.

[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[Pg 142] 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[Pg 143] 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.

[Pg 144]

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.

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.

[230] Aims of land warfare must not be confounded with ends of war; see above, § 66.

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[Pg 145] 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.

[231] See above, § 67.

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.

[232] See Oppenheim, Die Objekte des Verbrechens (1894), pp. 64-146, where the relation of human actions with their objects is fully discussed.

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.[Pg 146]

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.

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.

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[Pg 147] 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.

[233] See Klüber, § 245; G. F. Martens, II. § 278; Heffter, § 126.

[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.

[235] See Baty, International Law in South Africa (1900), pp. 84-85.

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[Pg 148] 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.

[236] See Pradier-Fodéré, VII. Nos. 2800-2801, who opposes this principle but discusses the subject in a very detailed way.

[237] See Payrat, Le Prisonnier de Guerre (1910), pp. 191-220, and Land Warfare, § 80.

[238] Accordingly, the Boers frequently during the South African War set free British soldiers whom they had captured.

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[Pg 149] be made; no treacherous simulation of sickness or wounds is permitted.

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.

[239] See above, vol. I. § 562, and Martens, N.R.G. XVIII. p. 474.

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,[Pg 150] 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.

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.

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[Pg 151] 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.

[240] See, besides the literature quoted above, vol. I. p. 237, note 1, Mérignhac, pp. 198-209; Bonfils, Nos. 14404-144021; 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.

[241] See Annuaire, XXIV. (1911), p. 346.

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.

[242] See below, § 121.

Violence against Private Enemy Persons.

§ 116. Whereas in former[243] times private enemy persons of either sex could be killed or otherwise badly[Pg 152] 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.

[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]

[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[Pg 153] 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."

[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.

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[Pg 154] 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. 1108-11187—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.

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[Pg 155] 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[Pg 156] 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.

[246] See Macpherson, loc. cit. p. 254.

[247] See Martens, N.R.G. XVIII. p. 607, and above, vol. I. § 560.

[248] See Martens, N.R.G. XVIII. p. 61.

[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[Pg 157] 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.

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[Pg 158] and sick of armies, he can grant to those who have responded to his appeal special protection and certain immunities.

[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.

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.[Pg 159]

(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.

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[Pg 160] 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.

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[Pg 161] 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.

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[Pg 162] 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.

[251] See below, § 207.

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[Pg 163] 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.

[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.

[253] See below, § 139.

[254] See below, § 130.

Application of the Geneva Convention, and Prevention of Abuses.

§ 124a. 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[Pg 164] 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]

[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.

General provisions of the Geneva Convention.

§ 124b. 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[Pg 165] 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).

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[Pg 166] 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[Pg 167] 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.

[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.

[257] See Martens, N.R. IV. p. 37.

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[Pg 168] 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[Pg 169] 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).

[258] See below, § 144.

[259] See Land Warfare, § 69.

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.

[260] See above, § 79.

[261] See above, §§ 116 and 117.

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[Pg 170] 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.

[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.

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.[Pg 171]

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.

[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.

[264] See above, § 124.

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[Pg 172] 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.

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.

[265] See below, § 337.

[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[Pg 173] 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]

[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.

[268] See above, § 60.

[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.[Pg 174]

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).

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.

[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.

Immoveable Public Property.

§ 134. Appropriation of public immoveables is not lawful so long as the territory on which they are has[Pg 175] 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.

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.

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[Pg 176] 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.

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[Pg 177] make use of for military operations. He may, for instance, seize a quantity of cloth for the purpose of clothing his soldiers.

[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.

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.

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[Pg 178] 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.

[272] See, for instance, Halleck, II. p. 73, and Heffter, § 135.

[273] See above, § 124, and below, § 144.

[274] According to British law all booty belongs to the Crown. See Twiss, II. §§ 64 and 71.

[Pg 179]

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.

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[Pg 180] the pressure of necessity he may be obliged to do this, and he is certainly not prohibited from doing it.

[275] See below, § 283.

[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.

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."

[277] See Nowacki, Die Eisenbahnen im Kriege (1906), § 15.

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.

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[Pg 181] 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.

[278] See above, § 133, note.

[279] See below, § 147.

[280] The Hague Regulations do not mention this case.

[281] See below, § 147.

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,[Pg 182] 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]

[282] See above, § 139.

[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).

[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.

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.

[285] The case of enemy merchantmen seized in a belligerent's territorial waters is, of course, an exception.[Pg 183]

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.

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,[Pg 184] 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[Pg 185] 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.

[286] Concerning the controversy as to the justification of Requisitions and Contributions, see Albrecht, op. cit. pp. 18-21.

[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.

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.[Pg 186] 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.

[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.

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[Pg 187] 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]

[289] As regards contributions as a penalty, see article 50 of the Hague Regulations. See also Keller, op. cit. pp. 60-62.

[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.

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[Pg 188] 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."

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.

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[Pg 189] 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.

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]

[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.

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.

[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.[Pg 190]

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]

[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.[Pg 191] The purpose of war may even oblige a belligerent to confine a population forcibly[294] in concentration camps.

[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.

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[Pg 192] 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.

[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.

[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.

[297] See, for instance, Lueder in Holtzendorff, IV. p. 451.

[298] See Holls, The Peace Conference at the Hague (1900), p. 152.[Pg 193]

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.

[299] This becomes indirectly apparent from article 26 of the Hague Regulations.

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[Pg 194] need not allow them to pass through its lines, but may drive them back.[302]

[300] See above, § 110.

[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.

[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]

[303] The matter is discussed by Rolin-Jaequemyns in R.I. III. (1871), pp. 371-377.

[304] See above, vol. I. § 399, and Wharton, I. § 97.

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.[Pg 195]

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]

[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.

[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.[Pg 196]

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.

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,[Pg 197] 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.

[307] Some writers maintain, however, that it is not lawful to bribe enemy soldiers into espionage; see below, § 162.

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[Pg 198] 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.

[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.

[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]

[310] See Halleck in A.J. V. (1911), p. 594.

[311] Halleck, loc. cit., p. 598, asserts the contrary.

[312] See Phillimore, III. § 106; Halleck, I. p. 575; Rivier, II. p. 284.

Punishment of Espionage.

§ 161. The usual punishment for spying is hanging[Pg 199] 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]

[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.

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[Pg 200] 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.

[314] See Vattel, III. § 180; Heffter, § 125; Taylor, § 490; Martens, II. § 110 (8); Longuet, § 52; Mérignhac, p. 188, and others. See also below, § 164.

[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.

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[Pg 201] 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.

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[Pg 202] 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]

[316] See Land Warfare, § 144, where a great number of legitimate ruses are enumerated.

[317] See the examples quoted by Pradier-Fodéré, VI. No. 2761.

[318] See Pradier-Fodéré, VI. No. 2760.

[319] The point has been discussed above in § 162.

[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.

[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.

[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.

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[Pg 203] 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.

[323] See Land Warfare, §§ 139-142, 146-150.[Pg 204]

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.

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[Pg 205] 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.[Pg 206] 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.

[324] See Martens, N.R. I. p. 9.

[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.

[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.

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.[Pg 207] 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.

[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[Pg 208] 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[Pg 209] 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[Pg 210] that vast territory, although it was more than a year before peace was finally established.

[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.

[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.

[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]

[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.

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.

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[Pg 211] 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."

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[Pg 212] 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.

[332] See above, §§ 147 and 148.

[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.

[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[Pg 213] 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.

[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.

[336] See below, § 248.

[337] But this is a moot point; see below, § 259.

[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]

[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, § 100a—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.

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,[Pg 214] 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.

[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.

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[Pg 215] 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."

[341] See Petit, L'Administration de la justice en territoire occupé (1900).

[Pg 216]

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.

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[Pg 217] 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.

[342] Aims of sea warfare must not be confounded with ends of war; see above, § 66.

[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.

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[Pg 218] warfare against an enemy, are of such importance as regards neutral trade that they will be discussed below in Part III. §§ 368-413.

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.

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[Pg 219] 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[Pg 220] 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.

[344] Robe d'ennemy confisque celle d'amy. Confiscantur ex navibus res, ex rebus naves.

[345] Boeck, Nos. 3-103, and Geffcken in Holtzendorff, IV. pp. 572-578, give excellent summaries of the facts.

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[Pg 221] in practice always acted in accordance with those rules.[348]

[346] See Martens, N.R.G. XV. p. 767, and above, vol. I. § 559.

[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.

[348] That there is an agitation for the abolition of the Declaration of Paris has been mentioned above, § 83, p. 100, note 3.

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.

[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.

[350] See Martens, N.R.G. 2nd Ser. I. p. 57.

[351] See Wharton, III. § 342, pp. 260-261, and Moore, VII. § 1198, p. 465.

[352] See Wharton, III. § 342, pp. 270-287, and Moore, VII. § 1198, p. 466.[Pg 222]

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.

[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,[Pg 223] 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[Pg 224] the abolition of the once so much objected to practice of capturing enemy merchantmen.

[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.

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.

[355] See above, vol. I. § 32.

[356] See above, § 68, p. 83, note 1.[Pg 225]

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.

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.

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[Pg 226] 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.

[357] But not, of course, in territorial waters of neutral States; see the De Fortuyn (1760), Burrell 175.

[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.

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[Pg 227] 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.

Submarine Contact Mines.

§ 182a. 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[Pg 228] 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).[Pg 229]

(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.

[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.

[360] As regards neutrals, see below, § 363a.

[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).[Pg 230]

(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[Pg 231] the guilty State, even by individuals who have suffered damage, before the competent International Tribunal.

[362] See Annuaire, XXIV. (1911), p. 301.

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.

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.

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[Pg 232] 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]

[363] Concerning the ultimate fate of the crew, see above, § 85.

[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.

[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]

[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.

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[Pg 233] 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]

[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]

[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.[Pg 234]

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.

[369] The Paquette Habana (1899), 175, United States, 677. See U.S. Naval War Code, article 14; Japanese Prize Law, article 3 (1).

[370] The Young Jacob and Joanna (1798), 1 C. Rob, 20.

[371] See Hall, § 148.

[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[Pg 235] 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.

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]

[373] See, however, above, § 178, p. 222.

[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[Pg 236] 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.

[375] See above, § 102a, Nos. 3 and 4.

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.

[376] See Ortolan, II. pp. 286-291; Kleen, II. § 210, pp. 492-494.

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.

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[Pg 237] 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.

[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.

[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.[Pg 238]

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.

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[Pg 239] 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[Pg 240] 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]

[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.

[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.

[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.

[382] See below, § 434.

[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.

[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[Pg 241] 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.

[385] See above, vol. I. § 476a, 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.

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[Pg 242] 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.

[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.

Destruction of Prize.

§ 194. Since through adjudication by the Prize Courts the ownership of captured private enemy vessels[Pg 243] 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[Pg 244] 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.

[387] See, for instance, Bluntschli, § 672.

[388] See, for instance, Martens, § 126, who moreover makes no difference between the prize being an enemy or a neutral ship.

[389] U.S. Naval War Code (article 14) allows the destruction "in case of military or other necessity."

[390] See Takahashi, pp. 284-310.

[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.

[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[Pg 245] grant indemnities on the ground that the action of the captor was lawful.[393]

[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.

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[Pg 246] 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]

[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.

[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.

[396] The matter of ransom is treated with great lucidity by Twiss, II. §§ 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.

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[Pg 247] 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.

[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.

[398] So, for instance, France; see Dupuis, Nos. 278-279.

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[Pg 248] 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.

[399] See Holland, Prize Law, pp. 142-150.

[400] See above, § 196.

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.

[401] See above, vol. I. § 261.

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[Pg 249] 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.

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. 1273-12733

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[Pg 250] 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]

[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.

[403] See above,§ 111.

[404] See above, § 112.

[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]

[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.

[407] See Holland, Prize Law, § 249, and U.S. Naval War Code, articles 10, 11.

[408] See below, § 205.

Violence against Non-combatant Members of Naval Forces.

§ 202. Just as military forces consist of combatants[Pg 251] 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]

[409] See U.S. Naval War Code, article 3.

[410] See below, § 209.

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.

[411] See U.S. Naval War Code, article 11, and above, § 116.

[412] See above, § 117.

[Pg 252]

V TREATMENT OF WOUNDED AND SHIPWRECKED

Perels, § 37—Pillet, pp. 188-191—Westlake, II. pp. 275-280—Moore, VII. § 1178—Bernsten, § 12—Bonfils, Nos. 1280-12809—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.

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,[Pg 253] 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.

[413] Martens, N.R.G. 2nd Ser. XXVI. p. 979.

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[Pg 254] 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).

[414] See below, § 348a.

Treatment of the Dead.

§ 205a. 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).

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[Pg 255] 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[Pg 256] 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.

[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."

Hospital Ships in Neutral Ports.

§ 206a. 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[Pg 257] 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.

Sick-Bays.

§ 206b. According to article 7, in case of a fight on board a man-of-war, the sick-bays must, as far as[Pg 258] 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.

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[Pg 259] 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.

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.

[416] See below, § 348.

[417] See below, § 348a.

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,[Pg 260] 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."

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).

Application of Convention X., and Prevention of Abuses.

§ 209a. 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[Pg 261] 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).

[418] Great Britain has entered a reservation against articles 6 and 21, but see above, § 124b, p. 164, note 1.

General Provisions of Convention X.

§ 209b. 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[Pg 262] 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.

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.

[419] As regards the case of the Haimun, see below, § 356.

[420] See above, §§ 159-162.

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[Pg 263] 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.

[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.[Pg 264]

VII REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT

Hall, § 140*—Lawrence, § 204—Westlake, II. pp. 315-318—Moore, VII. §§ 1166-1174—Taylor, § 499—Bonfils, Nos. 1277-12771—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.

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 manœuvres 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[Pg 265] 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.

[422] Holland, Studies, p. 101, mentions a case which occurred in South America in 1871.

[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[Pg 266] 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.

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,[Pg 267] 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...."

[424] See Annuaire, XV. (1896), pp. 148-150.

[425] See Annuaire, XV. (1896), p. 313.

The discussion was opened again in 1888, on the occasion of manœuvres 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....

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,[Pg 268] 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."[Pg 269]

(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,[Pg 270] 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).[Pg 271]

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.

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.

[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:[Pg 272]

(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.

[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]

[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.

[Pg 273]

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).

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[Pg 274] 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.

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.

[429] See above, § 129.

[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[Pg 275] also be created by peace negotiations.[431] Each of these non-hostile relations must be discussed separately.

[431] See below, § 267.

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]

[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.

[433] See below, § 224.[Pg 276]

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.

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[Pg 277] 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]

[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.

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.[Pg 278]

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.

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[Pg 279] 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.

[435] See Hague Regulations, article 32.

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]

[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.

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[Pg 280] 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[Pg 281] 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]

[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.

[438] See Hall, § 190.

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[Pg 282] (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.

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[Pg 283] 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.

[439] See above, § 217. But arrangements for granting passports, safe-conducts, and safeguards—see above, §§ 218 and 219—are not a matter of cartels.

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[Pg 284] be appropriated, in case they do not comply, either with the general rules regarding cartel ships, or with the special conditions imposed upon them.

[440] See above, § 190.

[441] The La Rosina (1800), 2 C. Rob. 372; the Venus (1803), 4 C. Rob. 355.

[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.

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[Pg 285] 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.

[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.

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,[Pg 286] constitutes perfidy which may be punished by the other party as a war crime.

[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]

[445] During the Franco-German War the Germans granted these most favourable conditions to the French forces that surrendered Belfort on February 15, 1871.

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[Pg 287] 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.

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[Pg 288] 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,[Pg 289] 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.

[446] See U.S. Naval War Code, article 51.

[447] Martens, R. VII. p. 1.

[448] Martens, R. VII. pp. 8 and 9.

[449] Martens, R. VII. p. 10.

[450] Martens, R. VII. p. 11.

[451] Martens, R. VII. p. 15.

[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.

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.[Pg 290]

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.

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[Pg 291] to 41 very incompletely, so that the gaps need filling up from old customary rules.

[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.

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.

[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.

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[Pg 292] 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.

[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."

[456] Martens, N.R.G. XIX. p. 636.[Pg 293]

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.

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[Pg 294] 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.

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.

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[Pg 295] 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[Pg 296] 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."

[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.

[458] See Pradier-Fodéré, VII. No. 2901.

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[Pg 297] 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.

[459] See Pradier-Fodéré, VII. No. 2897. The controversy occurs again with regard to the end of an armistice; see below, § 240.

[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.

Violation of Armistices.

§ 239. Any violation of armistices is prohibited, and, if ordered by the Governments concerned, constitutes an international delinquency. In case an[Pg 298] 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[Pg 299] the Hague Regulations, only the right of demanding punishment of the offenders, and, if necessary, indemnity for losses sustained.

[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.

[462] See, for instance, Calvo, IV. § 2436; Despagnet, No. 566; Pradier-Fodéré, VII. No. 2913.

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.

[463] See above, § 238.

[Pg 300]

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.

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[Pg 301] 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.

[464] See above, vol. I. §§ 149-150.

[465] See above, vol. I. § 151.

[466] See above, vol. I. § 156.

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[Pg 302] to the armed forces, belligerents have a right[467] to consider and punish them severely as acts of illegitimate warfare.

[467] See below, § 254.

II COMPLAINTS, GOOD OFFICES AND MEDIATION, INTERVENTION

Land Warfare, §§ 439-440.

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[Pg 303] frequently face each other without there being a way of solving the conflict.

[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.

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]

[469] See above, § 84.

[470] See above, § 213.

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[Pg 304] of making the respective belligerents comply with the laws of war.

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.[Pg 305]

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.

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.

[471] See above, §§ 33 and 42.

Reprisals admissible for every Illegitimate Act of Warfare.

§ 248. Whereas reprisals in time of peace are admissible for international delinquencies only, reprisals[Pg 306] 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]

[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.

[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.

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[Pg 307] 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[Pg 308] 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]

[474] See the case reported in Martens, Causes Célèbres, III, pp. 311-321. See also Phillimore, III. § 105.

[475] See Wharton, III. § 348B.

[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.

[477] The case is one of reprisals, and has nothing to do with the taking of hostages; see below, § 258.

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[Pg 309] 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.

[478] See Martens, N.R.G. 2nd Ser. IV. pp. 14, 139, 207.

[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.

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[Pg 310] 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]

[480] See above, § 57.

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.

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.[Pg 311]

(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.[Pg 312]

(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.

[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.

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[Pg 313] 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.

[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.

[483] See above, §§ 85 and 181.

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[Pg 314] 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.[Pg 315]

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[Pg 316] orders legitimately decreed by an occupant of enemy territory.[484]

[484] See Land Warfare, § 446.

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.

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.

[485] See, for instance, Hall, § 135, p. 432.[Pg 317]

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.

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]

[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.

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[Pg 318] 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[Pg 319] 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]

[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.

[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.

[489] See above, § 255, No. 8.

[490] See above, § 248.

[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. 10261—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.

How the Principle of Compensation for Violations of the Laws of War arose.

§ 259a. 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[Pg 320] 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.

[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.

[493] See below, § 357.

Compensation for Violations of the Hague Regulations.

§ 259b. 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.[Pg 321] 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.

[Pg 322]

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.

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.

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[Pg 323]

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]

[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.

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[Pg 324] 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.

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.

[495] See, however, Phillimore, III. § 511, who maintains that the status quo ante bellum has to be revived.[Pg 325]

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.

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[Pg 326] 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]

[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.

[497] The continuation of guerilla war after the termination of a real war is discussed above in § 60.

[498] That conquest alone is sufficient for the termination of civil wars has been pointed out above, § 261, p. 323, note 1.

[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.

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,[Pg 327] 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]

[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 le gal 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.

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,[Pg 328] 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.

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.[Pg 329] Be that as it may, negotiations, wherever taking place and by whomsoever conducted, may always be broken off before an agreement is arrived at.

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]

[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[Pg 330] 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.

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.

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[Pg 331] 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]

[502] See above, vol. I. § 495.

[503] See above, vol. I. § 497.

[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]

[505] See Vattel, IV. § 13.

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[Pg 332] occur that different dates are stipulated for the termination of hostilities in different parts of the world.

[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]

[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.

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.[Pg 333]

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.

[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]

[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[Pg 334] not always comply with this rule is a well-known fact which, although it discredits this rule, cannot shake its theoretical validity.

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.

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[Pg 335] 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.

[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.

[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.

[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.

[513] See above, § 259a.

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]

[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.

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[Pg 336] 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.

[515] See above, § 132.

[516] See, however, Pradier-Fodéré, VII. No. 2839, who objects to it.

[517] See Pradier-Fodéré, VII. No. 2840; Beinhauer, Die Kriegsgefangenschaft (1910), p. 79; Payrat, Le prisonnier de Guerre (1910), pp. 364-370.

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[Pg 337] 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.

[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.

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.

[519] See above, vol. I. §§ 553-554. [Pg 338]

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.

[520] See above, vol. I. § 527.

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[Pg 339] 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]

[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.

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[Pg 340] 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.

[522] See above, vol. I. § 40.

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;[Pg 341] 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.

[523] See above, § 196.

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[Pg 342] 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.

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[Pg 343] 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.

[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.

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.

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[Pg 344] 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.

[525] See above, § 263.

[526] See Phillimore, III. §§ 568-574, and the literature there quoted.

[Pg 347]

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.

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[Pg 348] 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.

[527] See above, vol. I. § 37.

[528] See Geffcken in Holtzendorff, IV. pp. 614-615.

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.[Pg 349]

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]

[529] See above, § 176.

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.

[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[Pg 350] 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]

[531] See Hall, § 209, p. 604.

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[Pg 351] 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.

[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[Pg 352] 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.

[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.

[534] See below, §§ 320 and 347 (4).

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[Pg 353] 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.

[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