I. ON WAR IN GENERAL
I
CHARACTERISTICS OF WAR
Grotius, I. c. 1, § 2--Vattel, III. §§ 1-4, 69-72--Hall, §§ 15-18--Westlake, II. pp. 1-6--Lawrence, § 135--Lorimer, II. pp. 18-28--Manning, pp. 131-133--Phillimore, III. § 49--Twiss, II. §§ 22-29--Taylor, §§ 449-451--Wheaton, § 295--Bluntschli, §§ 510-514--Heffter, §§ 113-114--Lueder in Holtzendorff, IV. pp. 175-198--Klüber, §§ 235-237--G. F. Martens, II. § 263--Ullmann, § 165--Bonfils, Nos. 1000-1001--Despagnet, Nos. 499-505--Pradier-Fodéré, VI. Nos. 2650-2660--Rivier, II. § 61--Nys, III. pp. 95-117--Calvo, IV. §§ 1860-1864--Fiore, III. Nos. 1232-1268--Martens, II. § 106--Westlake, Chapters, pp. 258-264--Heilborn, System, pp. 321-332--Rettich, Zur Theorie und Geschichte des Rechts zum Kriege (1888), pp. 3-140--Wiesse, Le Droit international appliqué aux guerres civiles (1898)--Rougier, Les guerres civiles et le droit des gens (1903)--Higgins, War and the Private Citizen (1912), pp. 3-72.
[Sidenote: War no illegality.]
§ 53. As within the boundaries of the modern State an armed contention between two or more citizens is illegal, public opinion has become convinced that armed contests between citizens are inconsistent with Municipal Law. Influenced by this fact, impatient pacifists, as well as those innumerable individuals who cannot grasp the idea of a law between Sovereign States, frequently consider war and law inconsistent. They quote the fact that wars are frequently waged by States as a proof against the very existence of an International Law. It is not difficult to show the absurdity of this opinion. As States are Sovereign, and as consequently no central authority can exist above them able to enforce compliance with its demands, war cannot, under the existing conditions and circumstances of the Family of Nations, always be avoided. International Law recognises this fact, but at the same time provides regulations with which belligerents have to comply. Although with the outbreak of war peaceable relations between the belligerents cease, there remain certain mutual legal obligations and duties. Thus war is not inconsistent with, but a condition regulated by, International Law. The latter at present cannot and does not object to States which are in conflict waging war upon each other instead of peaceably settling their difference. But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations between belligerents and neutral States. That International Law, if it could forbid war altogether, would be a more perfect law than it is at present there is no doubt. Yet eternal peace is an impossibility in the conditions and circumstances under which mankind at present live and will have to live for a long time to come, although eternal peace is certainly an ideal of civilisation which will slowly and gradually be realised.
[Sidenote: Conception of War.]
§ 54. War is the contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. War is a fact recognised, and with regard to many points regulated, but not established, by International Law. Those writers[58] who define war as the legal remedy of self-help to obtain satisfaction for a wrong sustained from another State, forget that wars have often been waged by both parties engaged for political reasons only; they confound a possible but not at all necessary cause of war with the conception of war. A State may be driven into war because it cannot otherwise get reparation for an international delinquency, and such State may then maintain that it exercises by war nothing else than legally recognised self-help. But when States are driven into or deliberately wage war for political reasons, no legally recognised act of self-help is in such case performed by the war. And the same laws of war are valid, whether wars are waged on account of legal or of political differences.
[Footnote 58: See, for instance, Vattel, III. § 1; Phillimore, III. § 49; Twiss, II. § 26; Bluntschli, § 510; Bulmerincq, § 92.]
[Sidenote: War a contention.]
§ 55. In any case, it is universally recognised that war is a contention, which means, a violent struggle through the application of armed force. For a war to be in existence, two or more States must actually have their armed forces fighting against each other, although the commencement of a war may date back to its declaration or some other unilateral initiative act. Unilateral acts of force performed by one State against another without a previous declaration of war may be a cause of the outbreak of war, but are not war in themselves, as long as they are not answered by similar hostile acts by the other side, or at least by a declaration of the other side that it considers the particular acts as acts of war. Thus it comes about that acts of force performed by one State against another by way of reprisal or during a pacific blockade in the case of an intervention are not necessarily initiative acts of war. And even acts of force illegally performed by one State against another, such, for instance, as occupation of a part of its territory, are not acts of war so long as they are not met with acts of force from the other side, or at least with a declaration from the latter that it considers the particular acts as acts of war. Thus, when Louis XIV. of France, after the Peace of Nimeguen, instituted the so-called Chambers of Reunion and in 1680 and 1681 seized the territory of the then Free Town of Strassburg and other parts of the German Empire without the latter's offering armed resistance, these acts of force, although doubtless illegal, were not acts of war.
[Sidenote: War a contention between States.]
§ 56. To be considered war, the contention must be going on between States. In the Middle Ages wars were known between private individuals, so-called private wars, and wars between corporations, as the Hansa for instance, and between States. But such wars have totally disappeared in modern times. It may, of course, happen that a contention arises between the armed forces of a State and a body of armed individuals, but such contention[59] is not war. Thus the contention between the Raiders under Dr. Jameson and the former South African Republic in January 1896 was not war. Nor is a contention with insurgents or with pirates a war. And a so-called civil war[60] need not be from the beginning nor become at all a war in the technical sense of the term according to International Law. On the other hand, to an armed contention between a suzerain and its vassal[61] State the character of war ought not to be denied, for both parties are States, although the fact that the vassal makes war against the suzerain may, from the standpoint of Constitutional Law, be considered rebellion. And likewise an armed contention between a full Sovereign State and a State under the suzerainty of another State, as, for instance, the contention between Servia and Bulgaria[62] in 1885, is war. Again, an armed contention between one or more member-States of a Federal State and the latter ought to be considered as war in the technical sense of the term, according to International Law, although, according to the constitution of Federal States, war between the member-States as well as between any member-State and the Federal State itself is illegal, and recourse to arms by a member-State may therefore correctly, from the standpoint of the constitution, be called rebellion. Thus the War of Secession within the United States between the Northern and the Southern member-States in 1861-1865 was real war.
[Footnote 59: Some publicists maintain, however, that a contention between a State and the armed forces of a party fighting for public rights must be considered as war. See, for instance, Bluntschli, § 113, and Fiore, III. § 1265.]
[Footnote 60: See below, § 59.]
[Footnote 61: See below, § 75.]
[Footnote 62: Bulgaria was at that time still a vassal State under Turkish suzerainty.]
[Sidenote: War a contention between States through armed forces.]
§ 57. It must be emphasised that war nowadays is a contention of States through their armed forces. Those private subjects of the belligerents who do not directly or indirectly belong to the armed forces do not take part in the armed contention: they do not attack and defend, and no attack is therefore made upon them. This fact is the result of an evolution of practices totally different from those in vogue in former times. During antiquity and the greater part of the Middle Ages war was a contention between the whole of the populations of the belligerent States. In time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminative practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or indirectly belong to their armed forces are safe, as is also, with certain exceptions, their private property.
This is a generally admitted fact. But opinions disagree as to the general position of such private subjects in time of war. The majority of the European continental writers for the last three generations have propagated the doctrine that no relation of enmity exists between belligerents and such private subjects, or between the private subjects of the respective belligerents. This doctrine goes back to Rousseau, Contrat Social, I. c. 4. In 1801, on the occasion of the opening of the French Prize Court, the famous lawyer and statesman Portalis adopted Rousseau's[63] doctrine by declaring that war is a relation between States and not between individuals, and that consequently the subjects of the belligerents are only enemies as soldiers, not as citizens. And although this new doctrine did not, as Hall (§ 18) shows, spread at once, it has since the second half of the nineteenth century been proclaimed on the European continent by the majority of writers. British and American-English writers, however, have never adopted this doctrine, but have always maintained that the relation of enmity between the belligerents extends also to their private citizens.
[Footnote 63: See Lassudrie-Duchêne, Jean Jacques Rousseau et le droit des gens (1906).]
I think, if the facts of war are taken into consideration without prejudice, there ought to be no doubt that the British and American view is correct.[64] It is impossible to sever the citizens from their State, and the outbreak of war between two States cannot but make their citizens enemies. But the point is unworthy of dispute, because it is only one of terms without any material consequences.[65] For, apart from the terminology, the parties agree in substance upon the rules of the Law of Nations regarding such private subjects as do not directly or indirectly belong to the armed forces.[66] Nobody doubts that such private individuals are safe as regards their life and liberty, provided they behave peacefully and loyally; and that, with certain exceptions, their private property must not be touched. On the other hand, nobody doubts that, according to a generally recognised custom of modern warfare, the belligerent who has occupied a part or the whole of his opponent's territory, and who treats such private individuals leniently according to the rules of International Law, may punish them for any hostile act, since they do not enjoy the privileges of members of armed forces. Although, on the one hand, International Law by no means forbids, and, as a law between States, is not competent to forbid, private individuals to take up arms against an enemy, it gives, on the other hand, the right to the enemy to treat hostilities committed by private[67] individuals as acts of illegitimate warfare. A belligerent is under a duty to respect the life and liberty of private enemy individuals, but he can carry out this duty under the condition only that these private individuals abstain from hostilities against himself. Through military occupation in war such private individuals fall under the authority[68] of the occupant, and he may therefore demand that they comply with his orders regarding the safety of his forces. The position of private enemy individuals is made known to them through the proclamations which the commander-in-chief of an army occupying the territory usually publishes. Thus General Sir Redvers Buller, when entering the territory of the South African Republic in 1900, published the following proclamation:
"The troops of Queen Victoria are now passing through the Transvaal. Her Majesty does not make war on individuals, but is, on the contrary, anxious to spare them as far as may be possible the horrors of war. The quarrel England has is with the Government, not with the people, of the Transvaal. Provided they remain neutral, no attempt will be made to interfere with persons living near the line of march; every possible protection will be given them, and any of their property that it may be necessary to take will be paid for. But, on the other hand, those who are thus allowed to remain near the line of march must respect and maintain their neutrality, and the residents of any locality will be held responsible, both in their persons and property, if any damage is done to railway or telegraph, or any violence done to any member of the British forces in the vicinity of their home."
[Footnote 64: See Boidin, pp. 32-44.]
[Footnote 65: But many continental writers constantly make use of Rousseau's dictum in order to defend untenable positions. See Oppenheim, Die Zukunft des Völkerrechts (1911), pp. 59-61.]
[Footnote 66: See Breton, Les non-belligérants: Leurs devoirs, leurs droits, et la question des otages (1904).]
[Footnote 67: See below, § 254.]
[Footnote 68: The first edition of this work was wrong in stating that through military occupation private enemy individuals fall under the territorial supremacy of the occupant. Since military occupation by no means vests sovereignty in the occupant, but only actual authority, this authority may not be called territorial supremacy.]
It must be emphasised that this position of private individuals of the hostile States renders it inevitable that commanders of armies which have occupied hostile territory should consider and mark as criminals all such private individuals of the enemy as commit hostile acts, although such individuals may act from patriotic motives and may be highly praised for their acts by their compatriots. The high-sounding and well-meant words of Baron Lambermont, one of the Belgian delegates at the Conference of Brussels of 1874--"Il y a des choses qui se font à la guerre, qui se feront toujours, et que l'on doit bien accepter. Mais il s'agit ici de les convertir en lois, en prescriptions positives et internationales. Si les citoyens doivent être conduits au supplice pour avoir tenté de défendre leur pays au péril de leur vie, il ne faut pas qu'ils trouvent inscrits sur le poteau au pied duquel ils seront fusilés l'article d'un traité signé par leur propre gouvernement qui d'avance les condamnait à mort"--have no raison d'être in face of the fact that according to a generally recognised customary rule of International Law hostile acts on the part of private individuals are not acts of legitimate warfare, and the offenders may be treated and punished as war-criminals. Even those writers[69] who object to the term "criminals" do not deny that such hostile acts by private individuals, in contradistinction to hostile acts by members of the armed forces, may be severely punished. The controversy whether or not such acts may be styled "crimes" is again only one of terminology; materially the rule is not at all controverted.[70]
[Footnote 69: See, for instance, Hall, § 18, p. 74, and Westlake, Chapters, p. 262.]
[Footnote 70: It is of value to quote articles 20-26 of the Instructions for the Government of Armies of the United States in the Field, which the War Department of the United States published in 1863 during the War of Secession with the Southern member-States:
(20) "Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civil existence that men live in political, continuous societies, forming organised units, called States or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war."
(21) "The citizen or native of a hostile country is thus an enemy as one of the constituents of the hostile State or nation, and as such is subjected to the hardships of war."
(22) "Nevertheless, as civilisation has advanced during the last centuries, so has likewise advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit."
(23) "Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war."
(24) "The almost universal rule in remote times was ... that the private individual of the hostile country is destined to suffer every privation of liberty and protection and every disruption of family ties. Protection was ... the exception."
(25) "In modern regular wars ... protection of the inoffensive citizens of the hostile country is the rule; privation and disturbance of private relations are the exceptions."
(26) "Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious Government or rulers, and they may expel every one who declines to do so. But, whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives."]
[Sidenote: War a contention between States for the purpose of overpowering each other.]
§ 58. The last, and not the least important, characteristic of war is its purpose. It is a contention between States for the purpose of overpowering each other. This purpose of war is not to be confounded with the ends[71] of war, for, whatever the ends of war may be, they can only be realised by one belligerent overpowering the other. Such a defeat as compels the vanquished to comply with any demand the victor may choose to make is the purpose of war. Therefore war calls into existence the display of the greatest possible power and force on the part of the belligerents, rouses the passion of the nations in conflict to the highest possible degree, and endangers the welfare, the honour, and eventually the very existence of both belligerents. Nobody can predict with certainty the result of a war however insignificant one side may seem to be. Every war is a risk and a venture. Every State which goes to war knows beforehand what is at stake, and it would never go to war were it not for its firm, though very often illusory, conviction of its superiority in strength over its opponent. Victory is necessary in order to overpower the enemy; and it is this necessity which justifies all the indescribable horrors of war, the enormous sacrifice of human life and health, and the unavoidable destruction of property and devastation of territory. Apart from special restrictions imposed by the Law of Nations upon belligerents, all kinds and all degrees of force may be, and eventually must be, made use of in war in the interest and under the compulsion of its purpose, and in spite of their cruelty and the utter misery they entail. As war is a struggle for existence between States, no amount of individual suffering and misery can be regarded; the national existence and independence of the struggling State is a higher consideration than any individual well-being.
[Footnote 71: See below, § 66.]
[Sidenote: Civil War.]
§ 59. The characteristics of war as developed above must help to decide the question whether so-called civil wars are war in the technical meaning of the term. It has already been stated above (in § 56) that an armed contention between member-States of a Federal State and the latter and between a suzerain and its vassal ought to be considered as war because both parties are real States, although the Federal State as well as the suzerain may correctly designate it as a rebellion. Such armed contentions may be called civil wars in a wider sense of the term. In the proper sense of the term a civil war exists when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or when a large portion of the population of a State rises in arms against the legitimate Government. As war is an armed contention between States, such a civil war need not be from the beginning, nor become at all, war in the technical sense of the term. But it may become war through the recognition of each of the contending parties or of the insurgents as the case may be, as a belligerent Power.[72] Through this recognition a body of individuals receives an international position in so far as it is for some parts and in some points treated as though it were a subject[73] of International Law. Such recognition may be granted by the very State within the boundaries of which the civil war broke out, and then other States will in most cases, although they need not, likewise recognise a state of war as existing and bear the duties of neutrality. But it may happen that other States recognise insurgents as a belligerent Power before the State on whose territory the insurrection broke out so recognises them. In such case the insurrection is war in the eyes of these other States, but not in the eyes of the legitimate Government.[74] Be that as it may, it must be specially observed that, although a civil war becomes war in the technical sense of the term by recognition, this recognition has a lasting effect only when the insurgents succeed in getting their independence established through the defeat of the legitimate Government and a consequent treaty of peace which recognises their independence. Nothing, however, prevents the State concerned, after the defeat of the insurgents and reconquest of the territory which they had occupied, from treating them as rebels according to the Criminal Law of the land, for the character of a belligerent Power received through recognition is lost ipso facto by their defeat and the re-occupation by the legitimate Government of the territory occupied by them.
[Footnote 72: See below, §§ 76 and 298.]
[Footnote 73: See above, vol. I. § 63.]
[Footnote 74: See below, § 298.]
[Sidenote: Guerilla War.]
§ 60. The characteristics of war as developed above are also decisive for the answer to the question whether so-called guerilla war is real war in the technical sense of the term. Such guerilla war must not be confounded with guerilla tactics during a war. It happens during war that the commanders send small bodies of soldiers wearing their uniform to the rear of the enemy for the purpose of destroying bridges and railways, cutting off communications and supplies, attacking convoys, intercepting despatches, and the like. This is in every way legal, and the members of such bodies, when captured, enjoy the treatment due to enemy soldiers. It happens, further, that hitherto private individuals who did not take part in the armed contention take up arms and devote themselves mainly to similar tactics. According to the former rules of International Law such individuals, when captured, under no condition enjoyed the treatment due to enemy soldiers, but could be treated as criminals and punished with death. According to article 1 of the Regulations concerning war on land adopted by the Hague Conferences of 1899 and 1907 such guerilla fighters enjoy the treatment of soldiers under the four conditions that they (1) do not act individually, but form a body commanded by a person responsible for his subordinates, (2) have a fixed distinctive emblem recognisable at a distance, (3) carry arms openly, and (4) conduct their operations in accordance with the laws of war.[75]
[Footnote 75: See also article 2 of the Hague Regulations.]
On the other hand, one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants of the defeated army carry on the contention by mere guerilla tactics. Although hopeless of success in the end, such petty war can go on for a long time thus preventing the establishment of a state of peace in spite of the fact that regular war is over and the task of the army of occupation is no longer regular warfare. Now the question whether such guerilla war is real war in the strict sense of the term in International Law must, I think, be answered in the negative, for two reasons. First, there are no longer the forces of two States in the field, because the defeated belligerent State has ceased to exist through the military occupation of its territory, the downfall of its established Government, the capture of the main part and the routing of the remnant of its forces. And, secondly, there is no longer in progress a contention between armed forces. For although the guerilla bands are still fighting when attacked, or when attacking small bodies of enemy soldiers, they try to avoid a pitched battle, and content themselves with the constant harassing of the victorious army, the destroying of bridges and railways, cutting off communications and supplies, attacking convoys, and the like, always in the hope that some event or events may occur which will induce the victorious army to withdraw from the conquered territory. But if guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power and the captured members of those bands as soldiers. It is, however, not advisable that the victor should cease such treatment as long as those bands are under responsible commanders and observe themselves the laws and usages of war. For I can see no advantage or reason why, although in strict law it could be done, those bands should be treated as criminals. Such treatment would only call for acts of revenge on their part, without in the least accelerating the pacification of the country. And it is, after all, to be taken into consideration that those bands act not out of criminal but patriotic motives. With patience and firmness the victor will succeed in pacifying these bands without recourse to methods of harshness.
II
CAUSES, KINDS, AND ENDS OF WAR
Grotius, I. c. 3; II. c. 1; III. c. 3--Pufendorf, VIII. c. 6, § 9--Vattel, III. §§ 2, 5, 24-50, 183-187--Lorimer, II. pp. 29-48--Phillimore, III. §§ 33-48--Twiss, II. §§ 26-30--Halleck, I. pp. 488-519--Taylor, §§ 452-454--Wheaton, §§ 295-296--Bluntschli, §§ 515-521--Heffter, § 113--Lueder in Holtzendorff, IV. pp. 221-236--Klüber, §§ 41, 235, 237--G. F. Martens, §§ 265-266--Ullmann, § 166--Bonfils, Nos. 1002-1005--Despagnet, No. 506--Pradier-Fodéré, VI. Nos. 2661-2670--Rivier, II. p. 219--Nys, III. pp. 106-114--Calvo, IV. §§ 1866-1896--Fichte, Ueber den Begriff des wahrhaften Krieges (1815)--Rettich, Zur Theorie und Geschichte des Rechts zum Kriege (1888), pp. 141-292--Peyronnard, Des causes de la guerre (1901).
[Sidenote: Rules of Warfare independent of Causes of War.]
§ 61. Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral States. This being the case, the question as to the causes of war is of minor importance for the Law of Nations, although not for international ethics. The matter need not be discussed at all in a treatise on International Law were it not for the fact that many writers maintain that there are rules of International Law in existence which determine and define just causes of war. It must, however, be emphasised that this is by no means the case. All such rules laid down by writers on International Law as recognise certain causes as just and others as unjust are rules of writers, but not rules of International Law based on international custom or international treaties.
[Sidenote: Causes of War.]
§ 62. The causes of war are innumerable. They are involved in the fact that the development of mankind is indissolubly connected with the national development of States. The millions of individuals who as a body are called mankind do not face one another individually and severally, but in groups as races, nations, and States. With the welfare of the races, nations, and States to which they belong the welfare of individuals is more or less identified. And it is the development of races, nations, and States that carries with it the causes of war. A constant increase of population must in the end force upon a State the necessity of acquiring more territory, and if such territory cannot be acquired by peaceable means, acquisition by conquest alone remains. At certain periods of history the principle of nationality and the desire for national unity gain such a power over the hearts and minds of the individuals belonging to the same race or nation, but living within the boundaries of several different States, that wars break out for the cause of national unity and independence. And jealous rivalry between two or more States, the awakening of national ambition, the craving for rich colonies, the desire of a land-locked State for a sea coast, the endeavour of a hitherto minor State to become a world-Power, the ambition of dynasties or of great politicians to extend and enlarge their influence beyond the boundaries of their own State, and innumerable other factors, have been at work ever since history was first recorded in creating causes of war, and these factors likewise play their part in our own times. Although one must hope that the time will come when war will entirely disappear, there is no possibility of seeing this hope realised in the near future. The first necessities of the disappearance of war are that the surface of the earth should be shared between States of the same standard of civilisation, and that the moral ideas of the governing classes in all the States of the world should undergo such an alteration and progressive development as would create the conviction that decisions of international courts of justice and awards of arbitrators are alone adequate means for the settlement of international disputes and international political aims. So long as these first necessities are not realised, war will as heretofore remain the ultima ratio of international politics.
[Sidenote: Just Causes of War.]
§ 63. However this may be, it often depends largely upon the standpoint from which they are viewed whether or no causes of war are to be called just causes. A war may be just or unjust from the standpoint of both belligerents, or just from the standpoint of one and utterly unjust from the standpoint of the other. The assertion that whereas all wars waged for political causes are unjust, all wars waged for international delinquencies are just, if there be no other way of getting reparation and satisfaction, is certainly incorrect because too sweeping. The evils of war are so great that, even when caused by an international delinquency,[76] war cannot be justified if the delinquency be comparatively unimportant and trifling. And, on the other hand, under certain circumstances and conditions many political causes of war may correctly be called just causes. Only such individuals as lack insight into history and human nature can, for instance, defend the opinion that a war is unjust which has been caused by the desire for national unity or by the desire to maintain the balance of power which under the present conditions and circumstances is the basis of all International Law. Necessity for a war implies its justification, whatever may be the cause. In the past many wars have undoubtedly been waged which were unjust from whatever standpoint they may be viewed. Yet the number of wars diminishes gradually every year, and the majority of the European wars since the downfall of Napoleon I. were wars that were, from the standpoint of at any rate one of the belligerents, necessary and therefore just wars.
[Footnote 76: See above, vol. I. §§ 151-156.]
[Sidenote: Causes in contradistinction to Pretexts for War.]
§ 64. Be that as it may, causes of war must not be confounded with pretexts for war. A State which makes war against another will never confess that there is no just cause for war, and it will therefore, when it has made up its mind to make war for political reasons, always look out for a so-called just cause. Thus frequently the apparent reason of a war is only a pretext behind which the real cause is concealed. If two States are convinced that war between them is inevitable, and if consequently they face each other armed to the teeth, they will find at the suitable time many a so-called just cause plausible and calculated to serve as a pretext for the outbreak of the war which was planned and resolved upon long ago. The skill of politics and diplomacy are nowhere more needed than on the occasion of a State's conviction that it must go to war for one reason or another. Public opinion at home and abroad is often not ripe to appreciate the reason and not prepared for the scheme of the leading politicians, whose task it is to realise their plans with the aid of pretexts which appear as the cause of war, whereas the real cause does not become apparent for some time.
[Sidenote: Different kinds of War.]
§ 65. Such writers on International Law as lay great stress upon the causes of war in general and upon the distinction between just causes and others, also lay great stress upon the distinction between different kinds of war. But as the rules of the Law of Nations are the same[77] for the different kinds of war that may be distinguished, this distinction is in most cases of no importance. Apart from that, there is no unanimity respecting the kinds of war, and it is apparent that, just as the causes of war are innumerable, so innumerable kinds of war can be distinguished. Thus one speaks of offensive and defensive, or religious, political, dynastic, national, civil wars; of wars of unity, independence, conquest, intervention, revenge, and of many other kinds. As the very name which each different kind of war bears always explains its character no further details are necessary respecting kinds of war.
[Footnote 77: See above, § 61.]
[Sidenote: Ends of War.]
§ 66. The cause or causes of a war determine at its inception the ends of such war. The ends of war must not be confounded with the purpose of war.[78] Whereas the purpose of war is always the same--namely, the overpowering and utter defeat of the opponent--the ends of war may be different in each case. Ends of war are those objects for the realisation of which a war is made.[79] In the beginning of the war its ends are determined by its cause or causes, as already said. But these ends may undergo alteration, or at least modification, with the progress and development of the war. No moral or legal duty exists for a belligerent to stop the war when his opponent is ready to concede the object for which war was made. If war has once broken out the very national existence of the belligerents is more or less at stake. The risk the belligerents run, the exertion they make, the blood and wealth they sacrifice, the reputation they gain or lose through the changing fortune and chances of war--all these and many other factors work or may work together to influence the ends of a war so that eventually there is scarcely any longer a relation between them and the causes of the war. If war really were, as some writers maintain,[80] the legal remedy of self-help to obtain satisfaction for a wrong sustained from another State, no such alteration of the ends of war could take place without at once setting in the wrong such belligerent as changes the ends for which the war was initiated. But history shows that nothing of the kind is really the case, and the existing rules of International Law by no means forbid such alteration or modification of the ends of a war. This alteration or modification of the ends is the result of an alteration or modification of circumstances created during the progress of war through the factors previously mentioned; it could not be otherwise, and there is no moral, legal, or political reason why it should be otherwise. And the natural jealousy between the members of the Family of Nations, their conflicting interests in many points, and the necessity of a balance of power, are factors of sufficient strength to check the political dangers which such alteration of the ends of a war may eventually involve.
[Footnote 78: Ends of war must likewise not be confounded with aims of land and sea warfare; see below, §§ 103 and 173.]
[Footnote 79: See Bluntschli, § 536; Lueder in Holtzendorff, IV. p. 364; Rivier, II. p. 219.]
[Footnote 80: See above, § 54.]
III
THE LAWS OF WAR
Hall, § 17--Westlake, Chapters, pp. 232-235--Maine, pp. 122-159--Phillimore, III. § 50--Taylor, § 470--Walker, History, I. §§ 106-108--Heffter, § 119--Lueder in Holtzendorff, IV. pp. 253-333--Ullmann, §§ 167 and 170--Bonfils, Nos. 1006-1013--Despagnet, Nos. 508-510--Pradier-Fodéré, VIII. Nos. 3212-3213--Rivier, II. pp. 238-242--Nys, III. pp. 160-164--Calvo, IV. §§ 1897-1898--Fiore, III. Nos. 1244-1260--Martens, II. § 107--Longuet, p. 12--Bordwell, pp. 100-196--Spaight, pp. 1-19--Kriegsbrauch, p. 2--Land Warfare, §§ 1-7--Holland, Studies, pp. 40-96.
[Sidenote: Origin of the Laws of War.]
§ 67. Laws of War are the rules of the Law of Nations respecting warfare. The roots of the present Laws of War are to be traced back to practices of belligerents which arose and grew gradually during the latter part of the Middle Ages. The unsparing cruelty of the war practices during the greater part of the Middle Ages began gradually to be modified through the influence of Christianity and chivalry. And although these practices were cruel enough during the fifteenth, sixteenth, and seventeenth centuries, they were mild compared with those of still earlier times. Decided progress was made during the eighteenth, and again during the nineteenth century, after the close of the Napoleonic wars, especially in the years from 1850 to 1900. The laws of war evolved in this way: isolated milder practices became by-and-by usages, so-called usus in bello, manner of warfare, Kriegs-Manier, and these usages through custom and treaties turned into legal rules. And this evolution is constantly going on, for, besides the recognised Laws of War, there are usages in existence which have a tendency to become gradually legal rules of warfare. The whole growth of the laws and usages of war is determined by three principles. There is, first, the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realisation of the purpose of war--namely, the overpowering of the opponent. There is, secondly, the principle of humanity at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to a belligerent. And, thirdly and lastly, there is at work the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defence, and a certain mutual respect. And, in contradistinction to the savage cruelty of former times, belligerents have in modern times come to the conviction that the realisation of the purpose of war is in no way hampered by indulgence shown to the wounded, the prisoners, and the private individuals who do not take part in the fighting. Thus the influence of the principle of humanity has been and is still enormous upon the practice of warfare. And the methods of warfare, although by the nature of war to a certain degree cruel and unsparing, become less cruel and more humane every day. But it must be emphasised that the whole evolution of the laws and usages of war could not have taken place but for the institution of standing armies, which dates from the fifteenth century. The humanising of the practices of war would have been impossible without the discipline of standing armies; and the important distinction between members of armed forces and private individuals could not have arisen without the existence of standing armies.
[Sidenote: The latest Development of the Laws of War.]
§ 68. The latest and the most important development of the Laws of War was produced through general treaties concluded between the majority of States since the beginning of the second part of the nineteenth century. The following are the treaties concerned:--
(1) The Declaration of Paris of April 16, 1856, respecting warfare on sea. It abolishes privateering, recognises the principles that the neutral flag covers enemy goods and that neutral goods under an enemy flag cannot be seized, and enacts the rule that a blockade in order to be binding must be effective. The Declaration is signed by seven States, but eighteen others acceded in course of time.
(2) The Geneva Convention of August 22, 1864, for the amelioration of the condition of wounded soldiers in armies in the field, which originally was signed by only nine States, but to which in course of time all the civilised States--except Costa-Rica, Lichtenstein, and Monaco!--have acceded. A treaty containing a number of additional articles to the Convention was signed at Geneva on October 20, 1868, but was never ratified. A new Geneva Convention was signed on July 6, 1906, by thirty-five States, and several others have already acceded. There is no doubt that the whole civilised world will soon be a party to this new Geneva Convention. The principles of the Geneva Convention were adapted to maritime warfare by Conventions (see below, No. 8) of the First and Second Hague Peace Conferences.
(3) The Declaration of St. Petersburg of December 11, 1868, respecting the prohibition of the use in war of projectiles under 400 grammes (14 ounces) which are either explosive or charged with inflammable substances. It is signed by seventeen States.
(4) The Convention enacting "Regulations respecting the Laws of War on Land," agreed upon at the First Peace Conference of 1899.
The history of this Convention may be traced back to the Instructions for the Government of Armies of the United States in the Field which the United States published on April 14, 1863, during the War of Secession. These instructions, which were drafted by Professor Francis Lieber, of the Columbia College of New York, represent the first endeavour to codify the Laws of War, and they are even nowadays of great value and importance. In 1874 an International Conference, invited by the Emperor Alexander II. of Russia, met at Brussels for the purpose of discussing a draft code of the Laws of War on Land as prepared by Russia. The body of the articles agreed upon at this Conference, and known as the "Brussels Declarations," have, however, never become law, as ratification was never given by the Powers. But the Brussels Declarations were made the basis of deliberations on the part of the Institute of International Law, which at its meeting at Oxford in 1880 adopted a Manual[81] of the Laws of War consisting of a body of 86 rules under the title Les Lois de la Guerre sur Terre, and a copy of this draft code was sent to all the Governments of Europe and America. It was, however, not until the Hague Peace Conference of 1899 that the Powers reassembled to discuss again the codification of the Laws of War. At this Conference the Brussels Declarations were taken as the basis of the deliberations; but although the bulk of its articles was taken over, several important modifications were introduced in the Convention, which was finally agreed upon and ratified, only a few Powers abstaining from ratification.
[Footnote 81: See Annuaire, V. pp. 157-174.]
The Second Peace Conference of 1907 has revised this Convention, and its place is now taken by Convention IV. of the Second Peace Conference. The Convention,[82] as the preamble expressly states, does not aim at giving a complete code of the Laws of War on Land, and cases beyond its scope still remain the subject of customary rules and usages. Further, it does not create universal International Law, as article 2 of the Convention expressly stipulates that the Regulations shall be binding upon the contracting Powers only in case of war between two or more of them, and shall cease to be binding in case a non-contracting Power takes part in the war. But, in spite of this express stipulation, there can be no doubt that in time the Regulations will become universal International Law. For all the Powers represented at the Second Peace Conference signed the Convention, except China, Spain, and Nicaragua, although some States made certain reservations. Nicaragua has since acceded, and it is certain that the outstanding States will in time also accede.
[Footnote 82: For brevity's sake the Hague Convention enacting Regulations regarding the laws and customs of war on land will be referred to in the following pages as the Hague Regulations. It is, however, of importance to observe that the Hague Regulations, although they are intended to be binding upon the belligerents, are only the basis upon which the signatory Powers have to frame instructions for their forces. Article 1 declares: "The high contracting parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the Laws of War on Land annexed to the present Convention." The British War Office, therefore, published in 1912, a guide, Land Warfare: an Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty's Army, written by order of His Majesty's Secretary of War by Colonel Edmonds and Professor Oppenheim, in which the Hague Regulations are systematically set out; their full text is published in Appendix 6 of the guide. But it should be mentioned that the British War Office had already in 1903 published a manual, drafted with great precision and clearness by Professor Holland, for the information of the British forces, comprising "The Laws and Customs of War on Land, as defined by the Hague Convention of 1899." See also Holland, The Laws of War on Land (Written and Unwritten), Oxford, 1908.]
(5) The Declaration concerning expanding (dumdum) bullets; see below, § 112.
(6) The Declaration concerning projectiles and explosives launched from balloons; see below, § 114.
(7) The Declaration concerning projectiles diffusing asphyxiating or deleterious gases; see below, § 113.
(8) The Convention for the adaptation to sea warfare of the principles of the Geneva Convention, produced by the First and revised by the Second Peace Conference.
(9) The Convention of 1907 concerning the opening of hostilities (Second Peace Conference).
(10) The Convention of 1907 concerning the status of enemy merchantmen at the outbreak of hostilities (Second Peace Conference).
(11) The Convention of 1907 concerning the conversion of merchantmen into men-of-war (Second Peace Conference).
(12) The Convention of 1907 concerning the laying of automatic submarine contact mines (Second Peace Conference).
(13) The Convention of 1907 concerning bombardment by naval forces in time of war (Second Peace Conference).
(14) The Convention of 1907 concerning certain restrictions on the exercise of the right of capture in maritime war (Second Peace Conference).
(15) The two Conventions of 1907 concerning the rights and duties of neutral Powers and persons in land warfare and in sea warfare (Second Peace Conference).
(16) The Declaration of London of February 26, 1909, concerning the Laws of Naval War, which was signed at the Conference of London by Great Britain, Germany, the United States of America, Austria-Hungary, Spain, France, Italy, Japan, Holland, and Russia, but is not yet ratified. This Declaration enacts rules concerning blockade, contraband, unneutral service, destruction of neutral prizes, transfer of vessels to a neutral flag, enemy character, convoy, and resistance to search.[83]
[Footnote 83: The United States of America (see above, vol. I. § 32), published on June 27, 1900, a body of rules for the use of her navy under the title The Laws and Usages of War on Sea--the so-called "United States Naval War Code." This code, although withdrawn on February 4, 1904, will undoubtedly be the starting-point of a movement for a Naval War Code to be generally agreed upon by the Powers. See below, § 179.]
[Sidenote: Binding force of the Laws of War.]
§ 69. As soon as usages of warfare have by custom or treaty evolved into laws of war, they are binding upon belligerents under all circumstances and conditions, except in the case of reprisals[84] as retaliation against a belligerent for illegitimate acts of warfare by the members of his armed forces or his other subjects. In accordance with the German proverb, Kriegsraeson geht vor Kriegsmanier (necessity in war overrules the manner of warfare), many German authors[85] and the Swiss-Belgian Rivier[86] maintain that the laws of war lose their binding force in case of extreme necessity. Such case of extreme necessity is said to have arisen when violation of the laws of war alone offers either a means of escape from extreme danger or the realisation of the purpose of war--namely, the overpowering of the opponent. This alleged exception to the binding force of the Laws of War, is, however, not at all generally accepted by German writers, for instance, Bluntschli does not mention it. English, American, French, and Italian writers do not, so far as I am aware, acknowledge it. The protest of Westlake,[87] therefore, against such an exception is the more justified, as a great danger would be involved by its admission.
[Footnote 84: See below, § 248.]
[Footnote 85: See, for instance, Lueder in Holtzendorff, IV. pp. 254-257; Ullmann, § 170; Meurer, II. pp. 7-15. Liszt, who in former editions agreed with these writers, deserts their ranks in the sixth edition (§ 24, IV. 3), and correctly takes the other side. See also Nys, III. p. 202, and Holland, War, § 2, where the older literature is quoted.]
[Footnote 86: See Rivier, II. p. 242.]
[Footnote 87: See Westlake, II. pp. 115-117, and Westlake, Chapters, p. 238.]
The proverb dates very far back in the history of warfare. It originated and found recognition in those times when warfare was not regulated by laws of war--that is universally binding customs and international treaties, but only by usages (Manier, i.e. Brauch), and it says that necessity in war overrules usages of warfare. In our days, however, warfare is no longer regulated by usages only, but to a greater extent by laws, firm rules recognised either by international treaties or by universal custom.[88] These conventional and customary rules cannot be overruled by necessity, unless they are framed in such a way as not to apply to a case of necessity in self-preservation. Thus, for instance, the rules that poisoned arms and poison are forbidden, and that it is not allowed treacherously to kill or wound individuals belonging to the hostile army, do not lose their binding force even if escape from extreme danger or the realisation of the purpose of war would result from an act of this kind. Article 22 of the Hague Rules stipulates distinctly that the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity. What may be ignored in case of military necessity are not the laws of war, but only the usages of war. Kriegsraeson geht vor Kriegsmanier, but not vor Kriegsrecht!
[Footnote 88: Concerning the distinction between usage and custom, see above, vol. I. § 17.]
IV
THE REGION OF WAR
Taylor, §§ 471 and 498--Heffter, § 118--Lueder in Holtzendorff, IV. pp. 362-364--Klüber, § 242--Liszt, § 40, I.--Ullmann, § 174--Pradier-Fodéré, VI. No. 2733, and VIII. Nos. 3104-3106--Rivier, II. pp. 216-219--Boeck, Nos. 214-230--Longuet, §§ 18-25--Perels, § 33--Rettich, _Zur Theorie und Geschichte des Rechts zum Kriege_ (1888), pp. 174-213.
[Sidenote: Region of War in contradistinction to Theatre of War.]
§ 70. Region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other. In this meaning region of war ought[89] to be distinguished from theatre of war. The latter is that part of a territory or the Open Sea on which hostilities actually take place. Legally no part of the earth which is not region of war may be made the theatre of war, but not every section of the whole region of war is necessarily theatre of war. Thus, in the war between Great Britain and the two South African Republics the whole of the territory of the British Empire and the Open Sea, as well as the territory of the Republics, was the region of war, but the theatre of war was in South Africa only. On the other hand, in a war between Great Britain and another great naval Power it might well happen that the region of war is in many of its sections made the theatre of war.
[Footnote 89: This distinction, although of considerable importance, does not appear to have been made by any other publicist.]
[Sidenote: Particular Region of every War.]
§ 71. The region of war depends upon the belligerents. For this reason every war has its particular region, so far at any rate as territorial region is concerned. For besides the Open Sea[90] and all such territories as are as yet not occupied by any State, which are always within the region of war, the particular region of every war is the whole of the territories and territorial waters of the belligerents. It must, however, be specially observed that any part of the globe which is permanently neutralised,[91] is always exempt from the region of war.
[Footnote 90: See above, vol. I. § 256.]
[Footnote 91: See below, § 72.]
Since colonies are a part of the territory of the mother country, they fall within the region of war in the case of a war between the mother country and another State, whatever their position may be within the colonial empire they belong to. Thus in a war between Great Britain and France the whole of Australia, of Canada, of India, and so on, would be included with the British Islands as region of war. And, further, as States under the suzerainty of another State are internationally in several respects considered to be a portion of the latter's territory,[92] they fall within the region of war in case of war between the suzerain and another Power. Again, such parts of the territory of a State as are under the condominium or under the administration of another State[93] fall within the region of war in case of war between one of the condomini and another Power and in case of war between the administrating State and another State. Thus, in a war between Great Britain and another Power, Cyprus would fall within the region of war; and the Soudan, which is in the condominium of England and Egypt, would likewise do so. On the other hand, Cyprus would not fall within the region of war in the case of war between Turkey and another Power, Great Britain excepted.
[Footnote 92: See above, vol. I. §§ 91 and 169.]
[Footnote 93: See above, vol. I. § 171.]
Although as a rule the territories of both belligerents, together with the Open Sea, fall within the region of war, and neutral territories do not, exceptions to the rule may occur:--
(1) A belligerent can deliberately treat certain territories which legally fall within the region of war, as well as parts of the Open Sea, as though they were not parts of the region of war, provided that such territories on their part fulfil the duties incumbent upon neutrals. Thus during the Turco-Italian War in 1911 and 1912, Italy treated Crete and Egypt as though they were not parts of the region of war.[94]
(2) Cases are possible in which a part or the whole of the territory of a neutral State falls within the region of war. These cases arise in wars in which such neutral territories are the very objects of the war, as Korea, which was at that time an independent State, and the Chinese province of Manchuria[95] were in the Russo-Japanese War of 1904 and 1905. Such a case may also occur if an army of one of the belligerents crosses the frontier of a neutral State, but is not at once disarmed and interned, and is, therefore, able at any moment to recross the frontier and attack the other belligerent.[96] Since necessity of self-preservation can compel the latter on his part also to cross the neutral frontier and pursue and attack the enemy on neutral territory, the part of such neutral territory concerned would for this reason become part of the region of war.
[Footnote 94: There is no doubt that this attitude of Italy is explained by the fact that Egypt, although legally under Turkish suzerainty, is actually under British occupation, and that Crete is forcibly kept by the Powers under Turkish suzerainty.]
[Footnote 95: See below, § 320.]
[Footnote 96: See below, § 339.]
[Sidenote: Exclusion from region of war through neutralisation.]
§ 72. Although the Open Sea in its whole extent and the whole of the territories of the belligerents are as a rule within the region of war, certain parts can be excluded through neutralisation. Such neutralisation can take place permanently through a general treaty of the Powers or temporarily through a special treaty of the belligerents. At present no part of the Open Sea is neutralised, as the neutralisation of the Black Sea was abolished[97] in 1871. But the following are some important instances[98] of permanent neutralisation of parts of territories:--
(1) The former Sardinian, but since 1860 French, provinces of Chablais and Faucigny[99] are permanently neutralised through article 92 of the Act of the Vienna Congress, 1815.
(2) The Ionian Islands through article 2 of the Treaty of London of November 14, 1863, are permanently neutralised since they merged in the kingdom of Greece. But this neutralisation was restricted[100] to the islands of Corfu and Paxo only by article 2 of the treaty of London of March 24, 1864.
(3) The Suez Canal is permanently neutralised[101] since 1888.
(4) The Straits of Magellan[102] are permanently neutralised through article 5 of the boundary treaty of Buenos Ayres of July 23, 1881. But this treaty is not a general treaty of the Powers, since it is concluded between Argentina and Chili only.
(5) The Panama[103] Canal is permanently neutralised through article 3 of the Hay-Pauncefote treaty of November 18, 1901. But this treaty is not a general treaty of the Powers either, being concluded between only Great Britain and the United States.
(6) A piece of territory along the frontier between Sweden and Norway is neutralised by the Convention of Stockholm of October 26, 1905, which includes rules concerning a neutral zone.[104] But this is a neutralisation agreed upon between Sweden and Norway only, no third Power has anything to do with it, and even the contracting Powers stipulate--see article 1, last paragraph--that the neutralisation shall not be valid in the case of a war against a common enemy.
[Footnote 97: See above, vol. I. §§ 181 and 256.]
[Footnote 98: The matter is thoroughly treated in Rettich, Zur Theorie und Geschichte des Rechtes zum Kriege (1888), pp. 174-213, where also the neutralisation of some so-called international rivers, especially the Danube, Congo, and Niger, is discussed.]
[Footnote 99: See above, vol. I. § 207.]
[Footnote 100: See Martens, N.R.G. XVIII. p. 63.]
[Footnote 101: See above, vol. I. § 183.]
[Footnote 102: See Martens, N.R.G. 2nd Ser. XII. p. 491, and above, vol. I. § 195, p. 267, note 2, and § 568, p. 592, note 2.]
[Footnote 103: See above, vol. I. § 184.]
[Footnote 104: See Martens, N.R.G. 2nd Ser. XXXIV. (1907), p. 703.]
As regards temporary neutralisation, it is possible for parts of the territories of belligerents and certain parts of the Open Sea to become neutralised through a treaty of the belligerents for the time of a particular war only. Thus, when in 1870 war broke out between France and Germany, the commander of the French man-of-war[105] Dupleix arranged with the commander of the German man-of-war Hertha--both stationed in the Japanese and Chinese waters--that they should, through their embassies in Yokohama, propose to their respective Governments the neutralisation of the Japanese and Chinese waters for the time of the war. Germany consented, but France refused the neutralisation. Again, at the commencement of the Turco-Italian War in 1911, Turkey proposed the neutralisation of the Red Sea, but Italy refused to agree to it.
[Footnote 105: See Perels, § 33, p. 160, note 2.]
[Sidenote: Asserted exclusion of the Baltic Sea from the Region of War.]
§ 73. That there is at present no part of the Open Sea neutralised is universally recognised, and this applies to the Baltic Sea, which is admittedly part of the Open Sea. Some writers,[106] however, maintain that the littoral States of the Baltic have a right to forbid all hostilities within the Baltic in case of a war between other States than themselves, and could thereby neutralise the Baltic without the consent and even against the will of the belligerents. This opinion is based on the fact that during the eighteenth century the littoral States of the Baltic claimed that right in several conventions, but it appears untenable, because it is opposed to the universally recognised principle of the freedom of the Open Sea. As no State has territorial supremacy over parts of the Open Sea, I cannot see how such a right of the littoral States of the Baltic could be justified.[107]
[Footnote 106: See Perels, pp. 160-163, who discusses the question at some length and answers it in the affirmative.]
[Footnote 107: See Rivier, II. p. 218; Bonfils, § 504; Nys, I. pp. 448-450.]
V
THE BELLIGERENTS
Vattel, III. § 4--Phillimore, III. §§ 92-93--Taylor, §§ 458-460--Wheaton, § 294--Bluntschli, §§ 511-514--Heffter, §§ 114-117--Lueder in Holtzendorff, IV. pp. 237-248--Klüber, § 236--G. F. Martens, II. § 264--Gareis, § 83--Liszt, § 39, II.--Ullmann, §§ 168-169--Pradier-Fodéré, VI. Nos. 2656-2660--Rivier, II. pp. 207-216--Nys. III. pp. 114-118--Calvo, IV. §§ 2004-2038--Martens, II. § 108--Heilborn, System, pp. 333-335.
[Sidenote: Qualification to become a Belligerent (facultas bellandi).]
§ 74. As the Law of Nations recognises the status of war and its effects as regards rights and duties between the two or more belligerents on the one hand, and, on the other, between the belligerents and neutral States, the question arises what kind of States are legally qualified to make war and to become thereby belligerents. Publicists who discuss this question at all speak mostly of a right of States to make war, a jus belli. But if this so-called right is examined, it turns out to be no right at all, as there is no corresponding duty in those against whom the right is said to exist.[108] A State which makes war against another exercises one of its natural functions, and the only question is whether such State is or is not legally qualified to exercise such function. Now, according to the Law of Nations full-Sovereign States alone possess the legal qualification to become belligerents; half-and part-Sovereign States are not legally qualified to become belligerents. Since neutralised States, as Switzerland, Belgium, and Luxemburg, are full-Sovereign States, they are legally qualified to become belligerents, although their neutralisation binds them not to make use of their qualification except for defence. If they become belligerents because they are attacked, they do not lose their character as neutralised States, but if they become belligerents for offensive purposes they ipso facto lose this character.
[Footnote 108: See Heilborn, System, p. 333.]
[Sidenote: Possibility in contradistinction to qualification to become a Belligerent.]
§ 75. Such States as do not possess the legal qualification to become belligerents are by law prohibited from offensive or defensive warfare. But the possession of armed forces makes it possible for them in fact to enter into war and to become belligerents. History records instances enough of such States having actually made war. Thus in 1876 Servia and Montenegro, although at that time vassal States under Turkish suzerainty, declared war against Turkey, and in March 1877, peace was concluded between Turkey and Servia.[109] And when in April 1877 war broke out between Russia and Turkey, the then Turkish vassal State Roumania joined Russia, and Servia declared war anew against Turkey in December 1877. Further in November 1885 a war was waged between Servia, which had become a full-Sovereign State, and Bulgaria, which was at the time still a vassal State under Turkish suzerainty; the war lasted actually only a fortnight, but the formal treaty of peace was not signed until March 3, 1886, at Bukarest.[110] And although Turkey is a party to this treaty, Bulgaria appears as a party thereto independently and on its own behalf.
[Footnote 109: See Martens, N.R.G. 2nd Ser. IV. pp. 12, 14, 172.]
[Footnote 110: See Martens, N.R.G. 2nd Ser. IV. p. 284.]
Whenever a case arises in which a State lacking the legal qualification to make war nevertheless actually makes war, such State is a belligerent, the contention is real war and all the rules of International Law respecting warfare apply to it.[111] Therefore, an armed contention between the suzerain and the vassal, between a full-Sovereign State and a vassal State under the suzerainty of another State, and, lastly, between a Federal State and one or more of its members, is war[112] in the technical sense of the term according to the Law of Nations.
[Footnote 111: This is quite apparent through the fact that Bulgaria by accession became a party to the Geneva Convention at a time when she was still a vassal State under Turkish suzerainty.]
[Footnote 112: See above, § 56, and Baty, International Law in South Africa (1900), pp. 66-68.]
[Sidenote: Insurgents as a Belligerent Power.]
§ 76. The distinction between legal qualification and actual power to make war explains the fact that insurgents may become a belligerent Power. It is a customary rule of the Law of Nations that any State may recognise insurgents as a belligerent Power, provided (1) they are in possession of a certain part of the territory of the legitimate Government; (2) they have set up a Government of their own; and (3) they conduct their armed contention with the legitimate Government according to the laws and usages of war.[113] Such insurgents in fact, although not in law, form a State-like community, and practically they are making war, although their contention is by International Law not considered as war in the technical sense of the term as long as they have not received recognition as a belligerent Power.
[Footnote 113: See above, § 59. See also Rougier, Les guerres civiles, &c. (1903), pp. 372-447, and Westlake, I. pp. 50-57. The Institute of International Law, at its meeting at Neuchatel in 1900, adopted a body of nine articles concerning the rights and duties of foreign States in case of an insurrection; articles 4-9 deal with the recognition of the belligerency of insurgents. See Annuaire, XVIII. p. 227.]
[Sidenote: Principal and accessory Belligerent Parties.]
§ 77. War occurs usually between two States, one belligerent party being on each side. But there are cases in which there are on one or on both sides several parties, and in some of such cases principal and accessory belligerent parties are to be distinguished.
Principal belligerent parties are those parties to a war who wage it on the basis of a treaty of alliance, whether such treaty was concluded before or during the war. On the other hand, accessory belligerent parties are such States as provide help and succour only in a limited way to a principal belligerent party at war with another State; for instance, by paying subsidies, sending a certain number of troops or men-of-war to take part in the contention, granting a coaling station to the men-of-war of the principal party, allowing the latter's troops a passage through their territory, and the like. Such accessory party becomes a belligerent through rendering help.
The matter need hardly be mentioned at all were it not for the fact that the question was formerly discussed by publicists whether or not it involved a violation of neutrality on the part of a neutral State in case it fulfilled in time of war a treaty concluded in time of peace, by the terms of which it had to grant a coaling station, the passage of troops through its territory, and the like, to one of the belligerents. This question is identical with the question, to be treated below in § 305, whether a qualified neutrality, in contradistinction to a perfect neutrality, is admissible. Since the answer to this question is in the negative, such State as fulfils a treaty obligation of this kind in time of war may be considered by the other side an accessory belligerent party to the war, and all doubt in the matter ought now to be removed since article 2 of Convention V. of the Second Peace Conference[114] categorically enacts that "belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies."
[Footnote 114: See also article 3 of Convention V.]
VI
THE ARMED FORCES OF THE BELLIGERENTS
Vattel, III. §§ 223-231--Hall, §§ 177-179, 181--Lawrence, §§ 148-150--Westlake, II. pp. 60-63--Manning, pp. 206-210--Phillimore, III. § 94--Twiss, II. § 45--Halleck, I. pp. 555-562--Taylor, §§ 471-476--Moore, VII. § 1109--Wheaton, §§ 356-358--Bluntschli, §§ 569-572--Heffter, §§ 124-124A--Lueder in Holtzendorff, IV. pp. 371-385--Klüber, 267--G. F. Martens, II. § 271--Gareis, § 83--Ullmann, § 175--Liszt, § 40, II.--Bonfils, Nos. 1088-1098--Despagnet, Nos. 520-523--Pradier-Fodéré, VI. Nos. 2721-2732, and VIII. Nos. 3091-3102--Nys, III. pp. 155-202--Rivier, II. pp. 242-259--Calvo, IV. §§ 2044-2065--Fiore, III. Nos. 1303-1316, and Code, Nos. 1455-1475--Martens, II. § 112--Longuet, §§ 26-36--Pillet, pp. 35-59--Kriegsbrauch, pp. 4-8--Perels, § 34--Boeck, Nos. 209-213--Dupuis, Nos. 74-91--Lawrence, War, pp. 195-218--Zorn, pp. 36-73--Bordwell, pp. 228-236--Land Warfare, § 17-38--Meurer, II. §§ 11-20--Spaight, pp. 34-72--Ariga, pp. 74-91--Takahashi, pp. 89-93.
[Sidenote: Regular Armies and Navies.]
§ 78. The chief part of the armed forces of the belligerents are their regular armies and navies. What kinds of forces constitute a regular army and a regular navy is not for International Law to determine, but a matter of Municipal Law exclusively. Whether or not so-called Militia and Volunteer corps belong to armies rests entirely with the Municipal Law of the belligerents. There are several States whose armies consist of Militia and Volunteer Corps exclusively, no standing army being provided for. The Hague Regulations expressly stipulate in article 1 that in countries where Militia or Volunteer Corps constitute the army or form part of it they are included under the denomination "Army." It is likewise irrelevant to consider the composition of a regular army, whether it is based on conscription or not, whether natives only or foreigners also are enrolled, and the like.
[Sidenote: Non-combatant Members of Armed Forces.]
§ 79. In the main, armed forces consist of combatants, but no army in the field consists of combatants exclusively, as there are always several kinds of other individuals, such as couriers, aeronauts, doctors, farriers, veterinary surgeons, chaplains, nurses, official and voluntary ambulance men, contractors, canteen-caterers, newspaper correspondents,[115] civil servants, diplomatists, and foreign military attachés[116] in the suite of the Commander-in-Chief.
[Footnote 115: See Rey in R.G. XVII. (1910), pp. 73-102, and Higgins, War and the Private Citizen (1912), pp. 91-114.]
[Footnote 116: See Rey in R.G. XVII. (1910), pp. 63-73.]
Writers on the Law of Nations do not agree as regards the position of such individuals; they are not mere private individuals, but, on the other hand, are certainly not combatants, although they may--as, for instance, couriers, doctors, farriers, and veterinary surgeons--have the character of soldiers. They may correctly be said to belong indirectly to the armed forces. Article 3 of the Hague Regulations expressly stipulates that the armed forces of the belligerents may consist of combatants and non-combatants, and that both in case of capture must be treated as prisoners of war, provided[117] they produce a certificate of identification from the military authorities of the army they are accompanying. However, when one speaks of armed forces generally, combatants only are in consideration.
[Footnote 117: See below, § 127.]
[Sidenote: Irregular Forces.]
§ 80. Very often the armed forces of belligerents consist throughout the war of their regular armies only, but, on the other hand, it happens frequently that irregular forces take part in the war. Of such irregular forces there are two different kinds to be distinguished--first, such as are authorised by the belligerents; and, secondly, such as are acting on their own initiative and their own account without special authorisation. Formerly it was a recognised rule of International Law that only the members of authorised irregular forces enjoyed the privileges due to the members of the armed forces of belligerents, whereas members of unauthorised irregular forces were considered to be war criminals and could be shot when captured. During the Franco-German war in 1870 the Germans acted throughout according to this rule with regard to the so-called "Franctireurs," requesting the production of a special authorisation from the French Government from every irregular combatant they captured, failing which he was shot. But according to article 1 of the Hague Regulations this rule is now obsolete, and its place is taken by the rule that irregulars enjoy the privileges due to members of the armed forces of the belligerents, although they do not act under authorisation, provided (1) that they are commanded by a person responsible for his subordinates, (2) that they have a fixed distinctive emblem recognisable at a distance,[118] (3) that they carry arms openly,[119] and (4) that they conduct their operations in accordance with the laws and customs of war. It must, however, be emphasised that this rule applies only to irregulars fighting in bodies, however small. Such individuals as take up arms or commit hostile acts singly and severally are still liable to be treated as war criminals, and shot.[120]
[Footnote 118: The distance at which the emblem should be visible is undetermined. See Land Warfare, § 23, where it is pointed out that it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline should be at once distinguishable from the outline of a peaceable inhabitant, and this by the naked eye of ordinary individuals, at a distance at which the form of an individual can be determined.--See Ariga, p. 87, concerning 120 irregulars who were treated as criminals and shot by the Japanese after the occupation of Vladimirowka on the island of Sakhaline.]
[Footnote 119: See Land Warfare, § 26; individuals whose sole arm is a pistol, hand-grenade, a dagger concealed about the person, or a sword-stick, are not such as carry their arms openly.]
[Footnote 120: See below, § 254.]
[Sidenote: Levies en masse.]
§ 81. It sometimes happens during war that on the approach of the enemy a belligerent calls the whole population of the country to arms and thus makes them a part, although a more or less irregular part, of his armed forces. Provided they receive some organisation and comply with the laws and usages of war, the combatants who take part in such a levy en masse organised by the State enjoy the privileges due to members of armed forces.
It sometimes happens, further, during wars, that a levy en masse takes place spontaneously without organisation by a belligerent, and the question arises whether or not those who take part in such levies en masse belong to the armed forces of the belligerents, and therefore enjoy the privileges due to members of such forces. Article 2 of the Hague Regulations stipulates that the population of a territory not yet occupied who, on the enemy's approach, spontaneously take up arms to resist the invading enemy, without having time to organise themselves under responsible commanders and to procure fixed distinctive emblems recognisable at a distance, shall nevertheless enjoy the privileges due to armed forces, provided that they carry arms openly and act otherwise in conformity with the laws and usages of war. But this case is totally different from a levy en masse of the population of a territory already invaded by the enemy, for the purpose of freeing the country from the invader. The stipulation of the Hague Regulations quoted above does not cover this case, in which, therefore, the old customary rule of International Law is valid, that those taking part in such a levy en masse, if captured, are liable to be shot.[121]
[Footnote 121: See below, § 254. Article 85 of the American Instructions for the Government of Armies in the Field of 1863 has enacted this rule as follows: "War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled Government or not...."]
It is of particular importance not to confound invasion with occupation in this matter. Article 2 distinctly speaks of the approach of the enemy, and thereby sanctions only such a levy en masse as takes place in territory not yet invaded by the enemy. Once the territory is invaded, although the invasion has not yet ripened into occupation,[122] a levy en masse is no longer legitimate. But, of course, the term territory, as used by article 2, is not intended to mean[123] the whole extent of the State of a belligerent, but refers only to such parts of it as are not yet invaded. For this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on the approach of the enemy, legitimately rise en masse. And it matters not whether the individuals taking part in the levy en masse are acting in immediate combination with a regular army or separately from it.[124]
[Footnote 122: Concerning the difference between invasion and occupation, see below, § 167.]
[Footnote 123: See Land Warfare, §§ 31-32.]
[Footnote 124: See Land Warfare, § 34.]
[Sidenote: Barbarous Forces.]
§ 82. As International Law grew up amongst the States of Christendom, and as the circle of the members of the Family of Nations includes only civilised, although not necessarily Christian, States, all writers on International Law agree that in wars between themselves the members of the Family of Nations should not make use of barbarous forces--that is, troops consisting of individuals belonging to savage tribes and barbarous races. But it can hardly be maintained that a rule of this kind has customarily grown up in practice, nor has it been stipulated by treaties, and the Hague Regulations overlook this point. This being the fact, it is difficult to say whether the members of such barbarous forces, if employed in a war between members of the Family of Nations, would enjoy the privileges due to members of armed forces generally. I see no reason why they should not, provided such barbarous forces would or could comply with the laws and usages of war prevalent according to International Law. But the very fact that they are barbarians makes it probable that they could or would not do so, and then it would be unreasonable to grant them the privileges generally due to members of armed forces, and it would be necessary to treat them according to discretion.[125] But it must be specially observed that the employment of barbarous forces must not be confounded with the enrolling of coloured individuals into the regular army and the employment of regiments consisting of disciplined coloured soldiers. There is no reason whatever why, for instance, the members of a regiment eventually formed by the United States of America out of negroes bred and educated in America, or why members of Indian regiments under English commanders, if employed in wars between members of the Family of Nations, should not enjoy the privileges due to the members of armed forces according to International Law.
[Footnote 125: As regards the limited use made of armed natives as scouts, and the like, on the part of the British commanders during the South-African War, see The Times' History of the War in South Africa, pp. 249-251. The Boers refused quarter to any such armed natives as fell into their hands.]
[Sidenote: Privateers.]
§ 83. Formerly privateers were a generally recognised part of the armed forces of the belligerents, private vessels being commissioned by the belligerents through Letters of Marque to carry on hostilities at sea, and particularly to capture enemy merchantmen.[126] From the fifteenth century, when privateering began to grow up, down to the eighteenth century, belligerents used to grant such Letters of Marque to private ships owned by their subjects and by the subjects of neutral States. But during the eighteenth century the practice grew up that belligerents granted Letters of Marque to private ships of their own subjects only.[127] However, privateering was abolished by the Declaration of Paris in 1856 as between the signatory Powers and others who joined it later. And although privateering would still be legal as between other Powers, it will in future scarcely be made use of. In all the wars that occurred after 1856 between such Powers, no Letters of Marque were granted to private ships.[128]
[Footnote 126: See Martens, Essai concernant les armateurs, les prises, et surtout les reprises (1795).]
[Footnote 127: Many publicists maintain that nowadays a privateer commissioned by another State than that of which he is a subject is liable to be treated as a pirate when captured. With this, however, I cannot agree; see above, vol. I. § 273, Hall, § 81, and below, § 330.]
[Footnote 128: See below, § 177. It is confidently to be hoped that the great progress made by the abolition of privateering through the Declaration of Paris will never be undone. But it is of importance to note the fact that up to the present day endeavours have been made on the part of freelances to win public opinion for a retrograde step. See, for instance, Munro-Butler Johnstone, Handbook of Maritime Rights; and the Declaration of Paris Considered (1876), and Gibson Bowles, The Declaration of Paris of 1856 (1900); see also Perels, pp. 177-179. The Declaration of Paris being a law-making treaty which does not provide the right of the several signatory Powers to give notice of withdrawal, a signatory Power is not at liberty to give such notice, although Mr. Gibson Bowles (op. cit. pp. 169-179) asserts that this could be done. See above, vol. I. § 12.]
[Sidenote: Converted Merchantmen.]
§ 84. A case which happened in 1870, soon after the outbreak of the Franco-German war, gave occasion for the question whether converted merchantmen could be considered a part of the armed naval forces of a belligerent. As the North-German Confederation owned only a few men-of-war, the creation of a volunteer fleet was intended. The King of Prussia, as President of the Confederation, invited the owners of private German vessels to make them a part of the German navy under the following conditions: Every ship should be assessed as to her value, and 10 per cent. of such value should at once be paid in cash to the owner as a price for the charter of the ship. The owner should engage the crew himself, but the latter should become for the time of the war members of the German navy, wear the German naval uniform, and the ship should sail under the German war flag and be armed and adapted for her purpose by the German naval authorities. Should the ship be captured or destroyed by the enemy, the assessed value should be paid to her owners in full; but should it be restored after the war undamaged, the owner should retain the 10 per cent. received as charter price. All such vessels should only try to capture or destroy French men-of-war, and if successful the owner should receive a sum between £1500 and £7500 as premium. The French Government considered this scheme a disguised evasion of the Declaration of Paris which abolished privateering, and requested the intervention of Great Britain. The British Government brought the case before the Law Officers of the Crown, who declared the German scheme to be substantially different from the revival of privateering, and consequently the British Government refused to object to it. The scheme, however, was never put into practice.[129]
[Footnote 129: See Perels, § 34; Hall, § 182; Boeck, No. 211; Dupuis, Nos. 81-84.]
Now, in spite of the opinion of the British Law Officers, writers on International Law differ as to the legality of the above scheme; but, on the other hand, they are unanimous that not every scheme for a voluntary fleet is to be rejected. Russia,[130] in fact, since 1877, has possessed a voluntary fleet. France[131] has made arrangements with certain steamship companies according to which their mail-boats have to be constructed on plans approved by the Government, have to be commanded by officers of the French navy, and have to be incorporated in the French navy at the outbreak of war. Great Britain from 1887 onwards has entered into agreements with several powerful British steamship companies for the purpose of securing their vessels at the outbreak of hostilities; and the United States of America in 1892 made similar arrangements with the American Line.[132]
[Footnote 130: See Dupuis, No. 85.]
[Footnote 131: See Dupuis, No. 86.]
[Footnote 132: See Lawrence, § 201, and Dupuis, Nos. 87-88. On the whole question see Pradier-Fodéré, VIII. Nos. 3102-3103.]
Matters were brought to a climax in 1904, during the Russo-Japanese War, through the cases of the Peterburg and the Smolensk.[133] On July 4 and 6 of that year, these vessels, which belonged to the Russian volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and the Dardanelles, which are closed[134] to men-of-war of all nations, because they were flying the Russian commercial flag. They likewise passed the Suez Canal under their commercial flag, but after leaving Suez they converted themselves into men-of-war by hoisting the Russian war flag, and began to exercise over neutral merchantmen all rights of supervision which belligerents can claim for their cruisers in time of war. On July 13 the Peterburg captured the British P. & O. steamer Malacca for alleged carriage of contraband, and put a prize-crew on board for the purpose of navigating her to Libau. But the British Government protested; the Malacca was released at Algiers on her way to Libau on July 27, and Russia agreed that the Peterburg and the Smolensk should no longer act as cruisers, and that all neutral vessels captured by them should be released.
[Footnote 133: See the details of the career of these vessels in Lawrence, War, pp. 205 seq.]
[Footnote 134: See above, vol. I. § 197.]
This case was the cause of the question of the conversion of merchantmen into men-of-war being taken up by the Second Peace Conference in 1907, which produced Convention VII. on the matter.[135] This Convention, which is signed by all the States represented at the Conference except the United States of America, China, San Domingo, Nicaragua, and Uruguay--but Nicaragua acceded later--comprises twelve articles; its more important stipulations are the following: No converted vessel can have the status of a warship unless she is placed under the direct authority, immediate control, and responsibility of the Power whose flag she flies (article 1). Such a vessel must, therefore, bear the external marks which distinguish the warships of her nationality (article 2); the commander must be in the service of the State concerned, must be duly commissioned, and his name must figure on the list of the officers of the military fleet (article 3); and the crew must be subject to the rules of military discipline (article 4). A converted vessel must observe the laws and usages of war (article 5) and her conversion must as soon as possible be announced by the belligerent concerned in the list of the ships of his military fleet (article 6).
[Footnote 135: See Wilson in A.J. II. (1908), pp. 271-275; Lémonon, pp. 607-622; Higgins, pp. 312-321; Dupuis, Nos. 48-58; Nippold, II. pp. 73-84; Scott, Conferences, pp. 568-576; Higgins, War and the Private Citizen (1912), pp. 115-168.]
The opinion, which largely prevails, that through this admittance of the conversion of merchantmen into men-of-war privateering has been revived, is absolutely unfounded, for the rules stipulated by Convention VII. in no way abrogate the rule of the Declaration of Paris that privateering is and remains abolished. But the Convention does not give satisfaction in so far as it does not settle the questions where the conversion of a vessel may be performed, and whether it is permitted to reconvert, before the termination of the war, into a merchantman a vessel which during the war had been converted into a warship. The fact is, the Powers could not come to an agreement on these two points, the one party claiming that conversion could only be performed within a harbour of the converting Power, or an enemy harbour occupied by it, the other party defending the claim to convert likewise on the High Seas. One must look to the future for a compromise that will settle this vexed controversy. It is, however, important to notice the fact that the preamble of Convention VII. states expressly that the question of the place where a conversion may be performed remains open. Those Powers which claim that conversions[136] must not take place on the High Seas are not, therefore, prevented from refusing to acknowledge the public character of any vessel which had been converted on the High Seas, and from upholding their view that a converted vessel may not alternately claim the character and the privileges of a belligerent man-of-war and a merchantman.
[Footnote 136: Concerning the question whether an enemy merchantman, captured on the High Seas, may at once be converted into a warship, see below, p. 231, note 2.]
[Sidenote: The Crews of Merchantmen.]
§ 85. In a sense the crews of merchantmen owned by subjects of the belligerents belong to the latter's armed forces. For those vessels are liable to be seized by enemy men-of-war, and if attacked for that purpose they may defend themselves, may return the attack, and eventually seize the attacking men-of-war. The crews of merchantmen become in such cases combatants, and enjoy all the privileges of the members of armed forces. But unless attacked they must not commit hostilities, and if they do so they are liable to be treated as criminals just as are private individuals who commit hostilities in land warfare. Some writers[137] assert that, although merchantmen of the belligerents are not competent to exercise the right of visit, search, and capture towards neutral vessels, they may attack enemy vessels--merchantmen as well as public vessels--not merely in self-defence but even without having been previously attacked, and that, consequently, the crews must in such case enjoy the privileges due to members of the armed forces. But this opinion is absolutely without foundation nowadays,[138] even in former times it was not generally recognised.[139]
[Footnote 137: See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and Science, p. 268.]
[Footnote 138: See below, § 181, and Hall, § 183.]
[Footnote 139: See Vattel, III. § 226, and G. F. Martens, II. § 289.]
It should be mentioned in regard to the fate of the crews of captured merchantmen that a distinction is to be made according as to whether or no a vessel has defended herself against a legitimate attack. In the first case the members of the crew become prisoners of war, for by legitimately taking part in the fighting they have become members of the armed forces of the enemy.[140] In the second case, articles 5 to 7 of Convention XI. of the Second Peace Conference enact the following rules:[141]--
(1) Such members of the crew as are subjects of neutral States may not be made prisoners of war.
(2) The captain and the officers who are subjects of neutral States may only be made prisoners if they refuse to give a promise in writing not to serve on an enemy ship while the war lasts.
(3) The captain, officers, and such members of the crew who are enemy subjects may only be made prisoners if they refuse to give a written promise not to engage, while hostilities last, in any service connected with the operations of war.
(4) The names of all the individuals retaining their liberty under parole must be notified by the captor to the enemy, and the latter is forbidden knowingly to employ the individuals concerned in any service prohibited by the parole.
[Footnote 140: This follows indirectly from article 8 of Convention XI.]
[Footnote 141: See below, § 201.]
[Sidenote: Deserters and Traitors.]
§ 86. The privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. And the like is valid with regard to such treasonable subjects of a belligerent as, without having been members of his armed forces, are fighting in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.[142]
[Footnote 142: See below, § 222; Hall, § 190; Land Warfare, § 36.]
VII
ENEMY CHARACTER
Grotius, III. c. 4, §§ 6 and 7--Bynkershoek, Quaestiones juris publici, I. c. 3 in fine--Hall, §§ 167-175--Lawrence, §§ 151-159--Westlake, II. pp. 140-154--Phillimore, III. §§ 82-86--Twiss, II. §§ 152-162--Taylor, §§ 468 and 517--Walker, §§ 39-43--Wharton, III. §§ 352-353--Wheaton, §§ 324-341--Moore, VII. §§ 1185-1194--Geffcken in Holtzendorff, IV. pp. 581-588--Ullmann, § 192--Nys, III. pp. 150-154--Pradier-Fodéré, VIII. Nos. 3166-3175--Bonfils, Nos. 1343-1349'1--Despagnet, Nos. 650-653 quinto--Calvo, IV. §§ 1932-1952--Fiore, III. Nos. 1432-1436, and Code, Nos. 1701-1709--Boeck, Nos. 156-190--Dupuis, Nos. 92-129, and Guerre, Nos. 59-73--Lémonon, pp. 426-467--Higgins, p. 593--Nippold, II. pp. 40-54--Scott, Conferences, pp. 541-555--Frankenbach, Die Rechtsstellung von neutralen Staatsangehörigen in kriegführenden Staaten (1910)--Baty in The Journal of the Society of Comparative Legislation, New Series, IX. Part I. (1908), pp. 157-166, and Westlake, ibidem, Part II. (1909), pp. 265-268--Oppenheim in The Law Quarterly Review, XXV. (1909), pp. 372-383.
[Sidenote: On Enemy Character in general.]
§ 87. Since the belligerents, for the realisation of the purpose of war, are entitled to many kinds of measures against enemy persons and enemy property, the question must be settled as to what persons and what property are vested with enemy character. Now it is, generally speaking, correct to say that, whereas the subjects of the belligerents and the property of such subjects bear enemy character, the subjects of neutral States and the property of such subjects do not bear enemy character. This rule has, however, important exceptions. For under certain circumstances and conditions enemy persons and property of enemy subjects may not bear, and, on the other hand, subjects of neutral States and their property may bear, enemy character. And it is even possible that a subject of a belligerent may for some parts bear enemy character as between himself and his home State.
The matter of enemy character is, however, to a great extent in an unsettled condition, since on many points connected with it there are no universally recognised rules of International Law in existence. British and American Courts have worked out a body of precise and clear rules on the subject, but the practice of other countries, and especially of France, follows different lines. The Second Peace Conference of 1907 produced three articles on the matter--16, 17, and 18--in Convention V., accepted by all the signatory Powers, except Great Britain which, upon signing the Convention, entered a reservation against these three articles, and although these articles are only of minor importance, they have to be taken into consideration. On the other hand, the as yet unratified Declaration of London comprises a number of rules which, apart from two points, offer a common basis for the practice of all maritime States. At the first glance it would seem that only the four articles--57 to 60--of Chapter VI. headed "Enemy Character," treat of the subject under survey, but a closer examination shows that article 46, dealing with a certain kind of unneutral service, articles 55 and 56, dealing with transfer to a neutral flag, and, lastly, article 63, dealing with forcible resistance to the right of visitation, are also concerned with enemy character. In spite of these stipulations, which are accepted by all the Powers concerned, there remain two important points unsettled, since neither the Second Hague Peace Conference of 1907 nor the Naval Conference of London of 1908-9 succeeded in agreeing upon a compromise concerning the old controversy as to whether nationality exclusively, or domicile also, should determine the neutral or enemy character of individuals and their goods, and further, whether or not neutral vessels acquire enemy character by embarking in time of war, with permission of the enemy, upon such trade with the latter as was closed to them in time of peace (Rule of 1756). According to article 7 of Convention XII. of the Second Hague Peace Conference, concerning the establishment of an International Prize Court, likewise not yet ratified, this Court would in time have to evolve a uniform practice of all the maritime States on these two points.
For the consideration of enemy character in detail, it is convenient to distinguish between individuals, vessels, goods, the transfer of enemy vessels, and the transfer of enemy goods on enemy vessels.
[Sidenote: Enemy Character of Individuals.]
§ 88. The general rule with regard to individuals is that subjects of the belligerents bear enemy character, whereas subjects of neutral States do not. In this sense article 16 of Convention V. stipulates: "The nationals of a State which is not taking part in the war are considered to be neutral." These neutral individuals can, however, lose their neutral and acquire enemy character in several cases, just as subjects of the belligerents can in other cases lose their enemy character:--
(1) Since relations of peace obtain between either of the belligerents and neutral States, the subjects of the latter can, by way of trade and otherwise, render many kinds of service to either belligerent without thereby losing their neutral character. On the other hand, if they enter the armed forces of a belligerent, or if they commit other acts in his favour, or commit hostile acts against a belligerent, they acquire enemy character (article 17 of Convention V.). All measures that are allowed during war against enemy subjects are likewise allowed against such subjects of neutral Powers as have thus acquired enemy character. For instance, during the late South African War hundreds of subjects of neutral States, who were fighting in the ranks of the Boers, were captured by Great Britain and retained as prisoners until the end of the struggle. Such individuals must not, however, be more severely treated than enemy subjects, and, in especial, no punitive measures are allowed against them (article 17 of Convention V.). And article 18(a) of Convention V. stipulates expressly that subjects of neutral States not inhabiting the territory of the enemy or any territory militarily occupied by him do not acquire enemy character by furnishing supplies or making loans to the enemy, provided the supplies do not come from the enemy territory or any territory occupied by him.[143]
[Footnote 143: Since Great Britain has entered a reservation against articles 16, 17, and 18 of Convention V. she is not bound by them. It is, however, of importance to state that articles 16, 17, and 18(a)--not 18(b)!--enact only such rules as were always customarily recognised, unless such an interpretation is to be put upon article 16 as prevents a belligerent from considering subjects of neutral States inhabiting the enemy country as bearing enemy character. The matter is different with regard to article 18(b), which creates an entirely new rule, for nobody has hitherto doubted that the members of the police force and the administrative officials of the enemy bear enemy character whether or no they are subjects of the enemy State.]
Article 18(b) of Convention V. stipulates that such subjects of neutral States as render services to the enemy in matters of police and administration, likewise do not acquire enemy character. This stipulation must, however, be read with caution. It can only mean that such individuals do not lose their neutral character to a greater degree than other subjects of neutral States resident on enemy territory; it cannot mean that they are in every way to be considered and treated like subjects of neutral States not residing on enemy territory.
However that may be, it must be specially observed, that the acts by which subjects of neutral States lose their neutral and acquire enemy character need not necessarily be committed after the outbreak of war. Such individuals can, even before the outbreak of war, identify themselves to such a degree with a foreign State that, with the outbreak of war against that State, enemy character devolves upon them ipso facto unless they at once sever their connection with such State. This, for instance, is the case when a foreign subject in time of peace enlists in the armed forces of a State and continues to serve after the outbreak of war.
(2) From the time when International Law made its appearance down to our own no difference has been made by a belligerent in the treatment accorded to subjects of the enemy and subjects of neutral States inhabiting the enemy country. Thus Grotius (III. c. 4, §§ 6 and 7) teaches that foreigners must share the fate of the population living on enemy territory, and Bynkershoek[144] distinctly teaches that foreigners residing in enemy country bear enemy character. English[145] and American practice assert, therefore, that foreigners, whether subjects of the belligerents or of neutral States, acquire enemy character by being domiciled (i.e. resident) in enemy country, because they have thereby identified themselves with the enemy population and contribute, by paying taxes and the like, to the support of the enemy Government. For this reason, all measures which may legitimately be taken against the civil population of the enemy territory, may likewise be taken against them, unless they withdraw from the country or are expelled therefrom. It must, however, be remembered that they acquire enemy character in a sense and to a certain degree only, for their enemy character is not as intensive as that of enemy subjects resident on enemy territory. Such of them as are subjects of neutral States do not, therefore, lose the protection of their home State against arbitrary treatment inconsistent with the laws of war; and such of them as are subjects of the other belligerent are handed over to the protection of the Embassy of a neutral Power. However that may be, they are not exempt from requisitions and contributions; from the restrictions which an occupant imposes upon the population in the interest of the safety of his troops and his military operations; from punishments for hostile acts committed against the occupant; or from being taken into captivity, if exceptionally necessary.
[Footnote 144: Quaestiones juris publici, I. c. 3 in fine.]
[Footnote 145: See the Harmony (1800), 2 C. Rob. 322; the Johanna Emilie, otherwise Emilia (1854), Spinks, 12; the Baltica (1857), 11 Moore, P.C. 141.]
This treatment of foreigners resident on occupied enemy territory is generally recognised as legitimate by theory[146] and practice. The proposal of Germany, made at the Second Peace Conference, to agree upon rules which would have stipulated a more favourable treatment of subjects of neutral States resident on occupied enemy territory was, therefore, rejected. Not even France supported the German proposals, although according to the French conception foreigners residing in enemy country do not acquire enemy character, and therefore the German proposals were only a logical consequence of the French conception. This French conception of enemy character dates from the judgment of the Conseil des Prises in the case of Le Hardy contre La Voltigeante[147] (1802), which laid down the rule that neutral subjects residing in enemy country do not lose their neutral character, and enemy subjects residing in neutral countries do not lose their enemy character. But it must be emphasised that this French conception of enemy character has been developed, not with regard to the treatment of foreigners whom an occupant finds resident on occupied enemy territory, but with regard to the exercise of the right of capture of enemy vessels and goods in warfare at sea. France did not make an attempt to draw the logical consequences from this conception and, therefore, to mete out to foreigners resident on occupied enemy territory a treatment different from that of enemy subjects resident there.
[Footnote 146: See Albrecht, Requisitionen von neutralem Privateigenthum, &c. (1912), pp. 13-15.]
[Footnote 147: 1 Pistoye et Duverdy (1859), 321.]
(3) Since enemy subjects who reside in neutral countries, or are allowed to remain resident on the territory of the other belligerent, have to a great extent identified themselves with the local population and are not under the territorial supremacy of the enemy, they lose their enemy character according to English and American practice,[148] but according to French practice they do not, a difference of practice which bears upon many points, especially upon the character of goods.[149]
[Footnote 148: See the Postilion (1779), Hay & Marriot, 245; the Danous (1802), 4 C. Rob. 255, note; the Venus (1814), 8 Cranch, 253.]
[Footnote 149: See below, § 90.]
[Sidenote: Enemy Character of Vessels.]
§ 89. The general rule with regard to vessels is that their character is determined by their flag. Whatever may be the nationality of the owner of a vessel--whether he be a subject of a neutral State, or of either belligerent--she bears enemy character, if she be sailing under the enemy flag. For this reason, the vessel of an enemy owner which sails under a neutral flag does as little bear enemy character as the vessel of the subject of a neutral State sailing under the flag of another neutral State. But the flag is the deciding factor only when the vessel is legitimately sailing under it. Should it be found that a vessel sailing under the flag of a certain neutral State has, according to the Municipal Law of such State, no right to fly the flag she shows, the real character of the vessel must be determined in order to decide whether or no she bears enemy character. On the other hand, it makes no difference that the owner be the subject of a neutral non-littoral State without a maritime flag and that the vessel is, therefore, compelled to fly the flag of a maritime State: if the flag the vessel flies be the enemy flag, she bears enemy character.
The general rule that the flag is the deciding factor has exceptions, and it is convenient to expound the matter according to the rules of the Declaration of London, although it is not yet ratified. The general rule is laid down by article 57 of the Declaration which enacts that, subject to the provisions respecting transfer to another flag, the character of a vessel is determined by the flag she is entitled to fly. Nevertheless, there are two exceptions to this rule:--
(1) According to article 46 of the Declaration[150] a neutral merchantman acquires enemy character by taking a direct part in the hostilities, by being in the exclusive employment of the enemy government, and by being at the time exclusively intended either for the transport of troops or for the transmission of intelligence for the enemy. And it must be emphasised that the act by which a neutral merchantman acquires enemy character need not necessarily be committed after the outbreak of war, for she can, even before the outbreak of war, to such a degree identify herself with a foreign State that, with the outbreak of war against such State, enemy character devolves upon her ipso facto, unless she severs her connexion with the State concerned. This is, for instance, the case of a foreign merchantman which in time of peace has been hired by a State for the transport of troops or of war material, and is carrying out her contract in spite of the outbreak of war.[151]
(2) According to article 63 of the Declaration a neutral merchantman acquires enemy character ipso facto by forcibly resisting the legitimate exercise of the right of visitation and capture on the part of a belligerent cruiser (see details below, § 422).
(3) According to British practice--adopted by America and Japan[152]--neutral merchantmen likewise acquire enemy character by violating the so-called rule of 1756,[153] in case they engage in time of war in a trade which the enemy prior to the war reserved exclusively for merchantmen sailing under his own flag. The Declaration of London has neither rejected nor accepted this rule of 1756, for article 57 stipulates expressly that the case where a neutral vessel is engaged in a trade which is closed in time of peace, remains unsettled. It would, therefore, according to article 7 of Convention XII. of the Second Peace Conference, be the task of the proposed International Prize Court to settle this point.
Of whatever kind may be the case of the acquisition of enemy character on the part of a neutral vessel, the following four rules apply to all cases of such neutral vessels as have acquired enemy character:--(a) all enemy goods on board may now be confiscated, although when they were first shipped the vessels concerned were neutral; (b) all goods on board will now be presumed to be enemy goods, and the owners of neutral goods will have to prove the neutral character of the latter; (c) the stipulations of articles 48 and 49 of the Declaration of London concerning the sinking of neutral prizes do not apply, because these vessels are now enemy vessels; (d) no appeal may be brought from the national prize courts to the International Prize Court, except with regard to the one question only, whether the vessel concerned has been justly considered to have acquired enemy character (see article 4 of Convention XII. of the Second Hague Peace Conference, concerning the establishment of an International Prize Court).
[Footnote 150: See below, § 410.]
[Footnote 151: The case of the Kow-shing ought here to be mentioned, although it has now lost its former importance:--
On July 14, 1894, the Kow-shing, a British ship, was hired at Shanghai by the Chinese Government to serve as a transport for eleven hundred Chinese soldiers and also for arms and ammunition from Tien-tsin to Korea. She was met on July 25 near the island of Phung-do, in Korean waters, by the Japanese fleet; she was signalled to stop, was visited by some prize officers, and, as it was apparent that she was a transport for Chinese soldiers, she was ordered to follow the Japanese cruiser, Naniwa. But although the British captain of the vessel was ready to comply with these orders, the Chinese on board would not allow it. Thereupon the Japanese opened fire and sank the vessel. As formerly hostilities could be commenced without a previous declaration of war the action of the Japanese was in accordance with the rules of International Law existing at the time. But in consequence of Convention III. of the Second Peace Conference which requires a declaration of war before the opening of hostilities, such action nowadays would not be justifiable. See Hall, § 168*; Takahashi, pp. 27-51; Holland, Studies, pp. 126-128.]
[Footnote 152: See the case of the Montara in Takahashi, p. 633.]
[Footnote 153: See below, § 289, and Higgins, War and the Private Citizen (1912), pp. 169-192.]
[Sidenote: Enemy Character of Goods.]
§ 90. It is an old customary rule that all goods found on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by the neutral owners concerned. It is, further, generally recognised that the enemy character of goods depends upon the enemy character of their owners. As, however, no universally recognised rules exist as to the enemy character of individuals, there are likewise no universally recognised rules in existence as to the enemy character of goods.
(1) Since, according to British and American practice, domicile in enemy country makes an individual bear enemy character, all goods belonging to individuals domiciled in enemy country are enemy goods, and all goods belonging to individuals not resident in enemy country are not, as a rule, enemy goods. For this reason, goods belonging to enemy subjects residing in neutral countries[154] do not, but goods belonging to subjects of neutral States residing in enemy country[155] do bear enemy character, although they may be the goods of a foreign consul appointed and residing in enemy country.[156] Further, the goods of such subjects of the belligerents as are domiciled on each other's territory and are allowed to remain there after the outbreak of war, acquire enemy character in the eyes of the belligerent whose subjects they are, but lose their enemy character in the eyes of the belligerent on whose territory they are allowed to remain.[157] Again, the produce of an estate on enemy territory belonging to a subject of a neutral State who resides abroad, does bear enemy character, for "Nothing[158] can be more decided and fixed than the principle ... that the possession of the soil does impress upon the owner the character of the country, as far as the produce of that plantation is concerned ... whatever the local residence of the owner may be." Lastly, all such property of a subject of a neutral State residing abroad but having a house of trade within the enemy country as is concerned in the commercial transactions of such house of trade,[159] likewise bears enemy character, because the owner of these goods has a "commercial domicile" in enemy country.
(2) On the other hand, according to French practice, the nationality of the owner of the goods is exclusively the deciding factor, and it does not matter where he resides. Hence only such goods on enemy merchantmen bear enemy character as belong to subjects of the enemy, whether those subjects are residing on enemy or neutral territory; and all such goods on enemy merchantmen as belong to subjects of neutral States do not bear enemy character, whether those subjects reside on neutral or enemy country.[160]
(3) The Declaration of London does not purport to decide the controversy, since the Powers represented at the Naval Conference of London could not agree. Whereas Holland, Spain, and Japan approved of the British and American practice, Austria-Hungary, Italy, Germany, and Russia sided with France. For this reason, the Declaration, by articles 58 and 59, only enacts that the enemy character of goods on enemy vessels is determined by the enemy character of their owner, and that all goods on enemy vessels are presumed to be enemy goods unless the contrary is proved. But the chief question, namely, what is the factor that decides the enemy character of an owner, is deliberately left unanswered. It would, therefore, according to article 7 of Convention XII., be for the proposed International Prize Court to settle it.
[Footnote 154: The Postilion (1779), Hay & Marriot, 245; the Danous (1802), 4 C. Rob. 255, note.]
[Footnote 155: The Baltica (1857), 11 Moore, P.C. 141.]
[Footnote 156: The Indian Chief (1801), 3 C. Rob. 12.]
[Footnote 157: The Venus (1814), 8 Cranch, 253.]
[Footnote 158: From the judgment of Sir William Scott in the case of the Phoenix (1803), 5 C. Rob. 41; see also Thirty Hogsheads of Sugar v. Boyle (Bentzen v. Boyle) (1815), 9 Cranch, 191.]
[Footnote 159: The Portland (1800), 3 C. Rob. 41; the Jonge Klassina (1803), 5 C. Rob. 297; the Freundschaft (1819), 4 Wheaton, 105.]
[Footnote 160: See the French cases of:--Le Hardy contre La Voltigeante (1802) and La Paix (1803), 1 Pistoye et Duverdy, pp. 321 and 486; Le Joan (1871), Le Nicolaüs (1871), Le Thalia (1871); Le Laura-Louise (1871), Barboux, pp. 101, 108, 116, 119.]
[Sidenote: Transfer of Enemy Vessels.]
§ 91. The question of the transfer of enemy vessels to subjects of neutral States, either shortly before or during the war, must be regarded as forming part of the larger question of enemy character, for the point to be decided is whether such transfer[161] divests these vessels of their enemy character. It is obvious that, if this point is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property seized and confiscated by selling their vessels to subjects of neutral States. Before the Declaration of London, which is, however, not yet ratified, the maritime Powers had not agreed upon common rules concerning this subject. According to French[162] practice no transfer of enemy vessels to neutrals could be recognised, and a vessel thus transferred retained enemy character; but this concerned only transfer after the outbreak of war, any legitimate transfer anterior to the outbreak of war did give neutral character to a vessel. According to British and American practice, on the other hand, neutral vessels could well be transferred to a neutral flag before or after the outbreak of war and lose thereby their enemy character, provided that the transfer took place bona fide,[163] was not effected either in a blockaded port[164] or while the vessel was in transitu,[165] the vendor did not retain an interest in the vessel or did not stipulate a right to recover or repurchase the vessel after the conclusion of the war,[166] and the transfer was not made in transitu in contemplation of war.[167]
The Declaration of London offers clear and decisive rules concerning the transfer of enemy vessels, making a distinction between the transfer to a neutral flag before and after the outbreak of hostilities:
(1) According to article 55 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected before the outbreak of hostilities, is valid, unless the captor is able to prove that the transfer was made in order to avoid capture. However, if the bill of sale is not on board the transferred vessel, and if the transfer was effected less than sixty days before the outbreak of hostilities, the transfer is presumed to be void, unless the vessel can prove that such transfer was not effected in order to avoid capture. To provide commerce with a guarantee that a transfer should not easily be treated as void on the ground that it was effected for the purpose of evading capture, it is stipulated that, in case the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption of its validity, provided the transfer was unconditional, complete, and in conformity with the laws of the countries concerned, and further, provided that neither the control of, nor the profits arising from, the employment of the vessels remain in the same hands as before the transfer. But even in this case a vessel is suspect if the transfer took place less than sixty days before the outbreak of hostilities, and if her bill of sale is not on board. Hence she may be seized and brought into a port of a prize court for investigation, and she cannot claim damages for the capture, even if the Court releases her.
(2) According to article 56 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected after the outbreak of hostilities, is void unless the vessel can prove that the transfer was not made in order to avoid capture. And such proof is excluded, and an absolute presumption is established that the transfer is void, if the transfer has been made in a blockaded port or while the vessel was in transitu, further, if a right to repurchase or recover the vessel is reserved to the vendor, and lastly, if the requirements of the Municipal Law governing the right to fly the flag under which the vessel is sailing have not been fulfilled.
[Footnote 161: See Holland, Prize Law, § 19; Hall, § 171; Twiss, II. §§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos. 1344-1349'1; Dupuis, Nos. 117-129, and Guerre, Nos. 62-66.]
[Footnote 162: See Dupuis, No. 97.]
[Footnote 163: The Vigilantia (1798), 1 C. Rob. 1; the Baltica (1857), 11 Moore, P.C. 141; the Benito Estenger (1899), 176 United States, 568.]
[Footnote 164: The General Hamilton (1805), 6 C. Rob. 61.]
[Footnote 165: The moment a vessel transferred in transitu reaches a port where the new owner takes possession of her, the voyage of the vessel is considered to have terminated. The Vrow Margaretha (1799), 1 C. Rob. 336; the Jan Frederick (1804), 5 C. Rob. 128.]
[Footnote 166: The Sechs Geschwistern (1801), 4 C. Rob. 100; the Jemmy (1801), 4 C. Rob. 31.]
[Footnote 167: The Jan Frederick (1804), 5 C. Rob. 128.]
[Sidenote: Transfer of Goods on Enemy Vessels.]
§ 92. The subject of the transfer of enemy goods on enemy vessels must likewise be considered as forming part of the larger subject of enemy character, for the question is here also whether such a transfer divests these goods of their enemy character. And concerning this question[168] there was likewise no unanimous practice in existence among the maritime States before the agreement on the Declaration of London. British and American practice refused to recognise a sale in transitu under any circumstances or conditions, if the vessel concerned was captured before the neutral buyer had actually taken possession of the transferred goods.[169] On the other hand, French practice recognised such a sale in transitu, provided it could be proved that the transaction was made bona fide.[170]
The Declaration of London now stipulates, by article 60, that enemy goods on board an enemy vessel retain their enemy character until they reach their destination, notwithstanding any transfer effected after the outbreak of hostilities while the goods are in transitu. Hence if such enemy vessel is captured before having reached her destination, goods consigned to enemy subjects may be confiscated, although they have been sold in transitu to subjects of neutral States. A special rule is provided for the case of the enemy consignee of goods on board an enemy vessel becoming bankrupt while the goods are in transitu. In a number of countries[171] an unpaid vendor has, in the event of the bankruptcy of the buyer, a recognised legal right to recover such goods as have already become the property of the buyer, but have not yet reached him (right of stoppage in transitu). For this reason, article 60 of the Declaration stipulates in the second paragraph, that if, prior to the capture, the neutral consignor exercises, on the bankruptcy of the enemy consignee, his right of stoppage in transitu, the goods regain their neutral character and may not therefore be confiscated.
[Footnote 168: See Hall, § 172; Twiss, II. §§ 162 and 163; Phillimore, III. §§ 387 and 388; Dupuis, No. 1421, and Guerre, Nos. 68-73; Boeck, Nos. 182 and 183.]
[Footnote 169: The Jan Frederick (1804), 5 C. Rob. 128; the Ann Green (1812), I Gallison, 274.]
[Footnote 170: See Boeck, No. 162; Dupuis, No. 142.]
[Footnote 171: Great Britain is one of them, see Section 44 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71).]
II. THE OUTBREAK OF WAR
I
COMMENCEMENT OF WAR
Grotius, c. 3, 5-14--Bynkershoek, Quaestiones juris publici, I. c. 2--Vattel, III. §§ 51-65--Hall, § 123--Westlake, II. pp. 18-26, and 267--Lawrence, § 140--Manning, pp. 161-163--Phillimore, III. §§ 51-56--Twiss, II. §§ 31-40--Halleck, I. pp. 521-526--Taylor, §§ 455-456--Moore, VII. §§ 1106-1108--Walker, § 37--Wharton, III. §§ 333-335--Wheaton, § 297--Bluntschli, §§ 521-528--Heffter, § 120--Lueder in Holtzendorff, IV. pp. 332-347--Gareis, § 80--Liszt, § 39, V.--Ullmann, § 171--Bonfils, Nos. 1027-1031'2--Despagnet, Nos. 513-516--Pradier-Fodéré, VI. Nos. 2671-2693--Nys, III. pp. 118-133--Rivier, II. pp. 220-228--Calvo, IV. §§ 1899-1911--Fiore, III. Nos. 1272-1276, and Code, 1422-1428--Martens, II. § 109--Longuet, §§ 1-7, 15-16--Mérignhac, pp. 29-41--Pillet, pp. 61-72--Lawrence, War, pp. 26-44--Barclay, pp. 53-58--Boidin, pp. 116-121--Bordwell, pp. 198-200--Higgins, pp. 202-205--Holland, War, § 16--Lémonon, pp. 309-406--Nippold, II. pp. 6-10--Scott, Conferences, pp. 516-522--Spaight, pp. 20-33--Ariga, §§ 11-12--Takahashi, pp. 1-25--Land Warfare, §§ 8-10--Holland, Studies, p. 115--Sainte-Croix, La Déclaration de guerre et ses effets immédiats (1892)--Bruyas, De la déclaration de guerre, etc. (1899)--Tambaro, L'inizio della guerra et la 3'a convenzione dell' Aja del 1907 (1911)--Maurel, De la déclaration de guerre (1907)--Soughimoura, De la Déclaration de Guerre (1912)--Brocher in R.I. IV. (1872), p. 400; Férand-Giraud in R.I. XVII. (1885), p. 19; Nagaoka in R.I. 2nd Ser. VI. p. 475--Rolin in Annuaire, XX. (1904), pp. 64-70--Ebren and Martens in R.G. XI. (1904), pp. 133 and 148--Dupuis in R.G. XIII. (1906), pp. 725-735--Stowell in A.J. II. (1908), pp. 50-62.
[Sidenote: Commencement of War in General.]
§ 93. According to the former practice of the States a condition of war could de facto arise either through a declaration of war; or through a proclamation and manifesto of a State that it considered itself at war with another State; or through the committal by one State of certain hostile acts of force against another State. History presents many instances of wars commenced in one of these three ways. Although Grotius (III. c. 3, § 5) laid down the rule that a declaration of war is necessary for its commencement, the practice of the States shows that this rule was not accepted, and many wars have taken place between the time of Grotius and our own without a previous[172] declaration of war. Indeed many writers,[173] following the example of Grotius, have always asserted the existence of a rule that a declaration is necessary for the commencement of war, but it cannot be denied that until the Second Peace Conference of 1907 such a rule was neither sanctioned by custom nor by a general treaty of the Powers. Moreover many writers[174] distinctly approved of the practice of the Powers. This does not mean that in former times a State would have been justified in opening hostilities without any preceding conflict. There was, and can be, no greater violation of the Law of Nations than for a State to begin hostilities in time of peace without previous controversy and without having endeavoured to settle the conflict by negotiation.[175] But if negotiation had been tried without success, a State did not act treacherously in case it resorted to hostilities without a declaration of war, especially after diplomatic intercourse had been broken off. The rule, adopted by the First Peace Conference of 1899--see article 2 of the Conventions for the peaceful settlement of international differences of 1899 and 1907--which stipulates that, as far as circumstances allow, before the appeal to arms recourse must be had to the good offices or mediation of friendly Powers, did not essentially alter matters, for the formula as far as circumstances allow leaves practically everything to the discretion of the Power bent on making war.
The outbreak of war between Russia and Japan in 1904 through Japanese torpedo boats attacking Russian men-of-war at Port Arthur before a formal declaration of war, caused a movement for the establishment of some written rules concerning the commencement of war. The Institute of International Law, at its meeting at Ghent in 1906, adopted three principles[176] according to which war should not be commenced without either a declaration of war or an ultimatum, and in either case a certain delay sufficient to ensure against treacherous surprise must be allowed before the belligerent can have recourse to actual hostilities. The Second Peace Conference at the Hague in 1907 took the matter up and produced the Convention (III.) relative to the commencement of hostilities which comprises four articles and has been signed by all the Powers represented at the Conference, except China and Nicaragua, both of which, however, acceded later.
[Footnote 172: See Maurice, Hostilities without Declaration of War (1883).]
[Footnote 173: See, for instance, Vattel, III. § 51; Calvo, IV. § 1907; Bluntschli, § 571; Fiore, III. No. 1274; Heffter, § 120.]
[Footnote 174: See, for instance, Bynkershoek, Quaestiones juris publici, I. c. 2; Klüber, § 238; G. F. Martens, § 267; Twiss, II. § 35: Phillimore, III. §§ 51-55; Hall, § 123; Ullmann (first edition), § 145; Gareis, § 80.]
[Footnote 175: See above, § 3, where the rule is quoted that no State is allowed to make use of compulsive means of settling differences before negotiation has been tried.]
[Footnote 176: See Annuaire, XXI. (1906), p. 283.]
[Sidenote: Declaration of War.]
§ 94. According to article 1 of Convention III. hostilities must not commence without a previous and unequivocal warning, and one of the forms which this warning may take is a declaration of war stating the reasons why the Power concerned has recourse to arms.
A declaration of war is a communication of one State to another that the condition of peace between them has come to an end and a condition of war has taken its place. In former times declarations of war used to take place under greater or lesser solemnities, but during the last few centuries all these formalities have vanished, and a declaration of war nowadays may take place through a simple communication. The only two conditions with which, according to article 1, declarations of war must comply are, that they must be unmistakable, and that they must state the reason for the resort to arms. No delay between the declaration and the actual commencement of hostilities is stipulated, and it is, therefore, possible for a Power to open hostilities immediately after the communication of the declaration of war to the enemy. All the more is it necessary to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent a declaration to another without previously having tried to settle the difference concerned by negotiation.
However this may be, the question as to the way in which the communication of the declaration of war is to be made requires attention. Since there is nowhere a rule expressly formulated according to which the declaration must be communicated in writing, it might be asserted that communication by any means, be it by a written document, by telegraph or by telephone message, or by direct word of mouth, is admissible. I believe that such an assertion cannot be supported. The essential importance of the declaration of war and the fact that according to article 1 of Convention III. it must be unmistakable and must state the reason for the resort to arms, would seem to require a written document which is to be handed over to the other party by an envoy. Further, the fact that article 2 of Convention III. expressly enacts that the notification of the outbreak of war to neutrals may even be made by telegraph, points the same way, for the conclusion is justified that the declaration of war stipulated as necessary by article I may not be made by telegraph. And if a telegraph message is inadmissible, much more are telephone messages and communications by word of mouth. Moreover, the practice of the States throughout the last centuries has been to hand in a written declaration of war, when any declaration has been made.
Particular attention must be paid to the fact that, in case of a declaration of war, the war, as between the belligerents, is considered to have commenced with the date of its declaration, although actual hostilities may not have been commenced until a much later date. On the other hand, as regards relations between the belligerents and neutrals, a war is not considered to have commenced until its outbreak has either been notified to the neutrals or has otherwise become unmistakably known to them. For this reason, article 2 of Convention III. enacts that the belligerents must at once after the outbreak of war notify[177] the neutrals, even if only by telegraph, and that the state of war shall not take effect with regard to neutrals until after they have received notification, unless it be established beyond doubt that they were in fact aware of the condition of war.
[Footnote 177: See below, § 307.]
[Sidenote: Ultimatum.]
§ 95. The second form which the unequivocal warning, stipulated by article 1 of Convention III. as necessary before the commencement of hostilities, may take is an ultimatum with a conditional declaration of war.
Ultimatum[178] is the technical term for a written communication of one State to another which ends amicable negotiations respecting a difference, and formulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted. An ultimatum may be simple or qualified. It is simple in case it does not include an indication of the measures contemplated by the Power sending it; such measures may be acts of retorsion or reprisals, or hostilities. It is qualified if it includes an indication of the measures contemplated by the Power sending it, for instance a pacific blockade, occupation of a certain territory, or war. Now the ultimatum stipulated by article 1 of Convention III. must be a qualified one, for it must be so worded that the recipient can have no doubt about the commencement of war in case he does not comply with the demands of the ultimatum. For this reason, if a State has sent a simple ultimatum to another, or a qualified ultimatum threatening a measure other than war, it is not, in case of non-compliance, justified in at once commencing hostilities without a previous declaration of war. For this reason, Italy sent a declaration of war to Turkey in 1911, although an ultimatum threatening the occupation of Tripoli had preceded it.
Nothing is enacted by article 1 of Convention III. concerning the minimum length of time which an ultimatum must grant before the commencement of hostilities; this period may, therefore, be only very short, as, for instance, a number of hours. All the more is it necessary here likewise to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent an ultimatum without previously having tried to settle the difference concerned by negotiation.
It must be specially observed that the state of war following an ultimatum must likewise be notified to neutrals, for article 2 of Convention III. applies to this case also. And it must further be observed that, for the same reason as in the case of a declaration of war, an ultimatum containing a conditional declaration of war must be communicated to the other party by a written document.
[Footnote 178: See above, § 28.]
[Sidenote: Initiative hostile Acts of War.]
§ 96. There is no doubt that, in consequence of Convention III. of the Second Peace Conference, the recourse to hostilities without a previous declaration of war or qualified ultimatum is forbidden. But the fact must not be overlooked that a war can nevertheless break out without these preliminaries. Thus a State might deliberately order hostilities to be commenced without a previous declaration of war or qualified ultimatum. Further, the armed forces of two States having a grievance against one another might engage in hostilities without having been authorised thereto and without the respective Governments ordering them to desist from further hostilities. Again, acts of force by way of reprisals or during a pacific blockade or an intervention might be forcibly resisted by the other party, hostilities breaking out in this way.
It is certain that States which deliberately order the commencement of hostilities without a previous declaration of war or qualified ultimatum, commit an international delinquency, but they are nevertheless engaged in war. Further, it is certain that States which allow themselves to be dragged into a condition of war through unauthorised hostile acts of their armed forces, commit an international delinquency, but they are nevertheless engaged in war. Again, war is actually in existence if the other party forcibly resists acts of force undertaken by a State by way of reprisals, or during a pacific blockade or an intervention. Now in all these and similar cases, although war has broken out without a previous declaration or qualified ultimatum, all the laws of warfare must find application, for a war is still war in the eyes of International Law even though it has been illegally commenced, or has automatically arisen from acts of force which were not intended to be acts of war.
However that may be, article 2 of Convention III. also applies to wars which have broken out without a previous declaration or qualified ultimatum, and the belligerents must without delay send a notification to neutral Powers so that these may be compelled to fulfil the duties of neutrality. But, of course, neutral Powers must in this case likewise, even without notification, fulfil the duties of neutrality if they are unmistakably aware of the outbreak of war.
II
EFFECTS OF THE OUTBREAK OF WAR
Vattel, III. § 63--Hall, §§ 124-126--Westlake, II. pp. 29-32--Lawrence, §§ 143-146--Manning, pp. 163-165--Phillimore, III. §§ 67-91--Twiss, II. §§ 41-61--Halleck, I. pp. 526-552, and II. pp. 124-140--Taylor, §§ 461-468--Walker, §§ 44-50--Wharton, III. §§ 336-337A--Wheaton, §§ 298-319--Moore, V. § 779, and VII. §§ 1135-1142--Heffter, §§ 121-123--Lueder in Holtzendorff, IV. pp. 347-363--Gareis, § 81--Liszt, § 39, V.--Ullmann, § 173--Bonfils, Nos. 1044-1065--Despagnet, Nos. 517-519--Pradier-Fodéré, VI. Nos. 2694-2720--Nys, III. pp. 134-150--Rivier, II. pp. 228-237--Calvo, IV. §§ 1911-1931--Fiore, III. Nos. 1290-1301, and Code, Nos. 1439-1445--Martens, II. § 109--Longuet, §§ 8-15--Mérignhac, pp. 72-84--Pillet, pp. 42-59--Bordwell, pp. 200-211--Spaight, pp. 25-33--Ariga, §§ 13-15--Takahashi, pp. 26-88--Lawrence, War, pp. 45-55--Sainte-Croix, _La Déclaration de guerre et ses effets immédiats_ (1892), pp. 166-207--Meyer, _De l'interdiction du commerce entre les belligérants_ (1902)--Jaconnet, _La guerre et les traités_ (1909)--Politis in Annuaire XXIII. (1910), pp. 251-282, and XXIV. (1911), pp. 200-223.
[Sidenote: General Effects of the Outbreak of War.]
§ 97. When war breaks out, even if it be limited to only two members of the Family of Nations, nevertheless the whole Family of Nations is thereby affected, since the rights and duties of neutrality devolve upon such States as are not parties to the war. And the subjects of neutral States may feel the consequences of the outbreak of war in many ways. War is not only a calamity to the commerce and industry of the whole world, but also involves the alteration of the legal position of neutral merchantmen on the Open Sea, and of the subjects of neutral States within the boundaries of the belligerents. For the belligerents have the right of visit, search, and eventually capture of neutral merchantmen on the Open Sea, and foreigners who remain within the boundaries of the belligerents, although subjects of neutral Powers, acquire in a degree and to a certain extent enemy character.[179] However, the outbreak of war tells chiefly and directly upon the relations between the belligerents and their subjects. Yet it would not be correct to maintain that all legal relations between the parties thereto and between their subjects disappear with the outbreak of war. War is not a condition of anarchy, indifferent or hostile to law, but a condition recognised and ruled by International Law, although it involves a rupture of peaceful relations between the belligerents.
[Footnote 179: See above, § 88.]
[Sidenote: Rupture of Diplomatic Intercourse and Consular Activity.]
§ 98. The outbreak of war causes at once the rupture of diplomatic intercourse between the belligerents, if such rupture has not already taken place. The respective diplomatic envoys are recalled and ask for their passports, or receive them without any previous request, but they enjoy their privileges of inviolability and exterritoriality for the period of time requisite for leaving the country. Consular activity likewise comes to an end through the outbreak of war.[180]
[Footnote 180: See above, vol. I. §§ 413 and 436.]
[Sidenote: Cancellation of Treaties.]
§ 99. The doctrine was formerly held, and a few writers[181] maintain it even now, that the outbreak of war ipso facto cancels all treaties previously concluded between the belligerents, such treaties only excepted as have been concluded especially for the case of war. The vast majority of modern writers on International Law have abandoned this standpoint,[182] and the opinion is pretty general that war by no means annuls every treaty. But unanimity as to what treaties are or are not cancelled by war does not exist. Neither does a uniform practice of the States exist, cases having occurred in which States have expressly declared[183] that they considered all treaties annulled through war. Thus the whole question remains as yet unsettled. Nevertheless a majority of writers agree on the following points:--
(1) The outbreak of war cancels all political treaties between the belligerents which have not been concluded for the purpose of setting up a permanent condition of things, for instance, treaties of alliance.
(2) On the other hand, it is obvious that such treaties as have been especially concluded for the case of war are not annulled, such as treaties in regard to the neutralisation of certain parts of the territories of the belligerents.
(3) Such political and other treaties as have been concluded for the purpose of setting up a permanent[184] condition of things are not ipso facto annulled by the outbreak of war, but nothing prevents the victorious party from imposing upon the other party in the treaty of peace any alterations in, or even the dissolution of, such treaties.
(4) Such non-political treaties as do not intend to set up a permanent condition of things, as treaties of commerce for example, are not ipso facto annulled, but the parties may annul them or suspend them according to discretion.
(5) So-called law-making[185] treaties, as the Declaration of Paris for example, are not cancelled by the outbreak of war. The same is valid in regard to all treaties to which a multitude of States are parties, as the International Postal Union for example, but the belligerents may suspend them, as far as they themselves are concerned, in case the necessities of war compel them to do so.[186]
[Footnote 181: See, for instance, Phillimore, III. § 530, and Twiss, I. § 252, in contradistinction to Hall, § 125.]
[Footnote 182: See Jaconnet, op. cit. pp. 113-128.]
[Footnote 183: As, for instance, Spain in 1898, at the outbreak of the war with the United States of America, see Moore, V. pp. 375-380.]
[Footnote 184: Thus American and English Courts--see the cases of the Society for the Propagation of the Gospel v. Town of Newhaven (1823), 8 Wheaton 464, and Sutton v. Sutton (1830), 1 Russel & Mylne, 663--have declared that article IX. of the treaty of Nov. 19, 1794, between Great Britain and the United States was not annulled by the outbreak of war in 1812. See Moore, V. § 779 and Westlake, II. p. 30; see also the foreign cases discussed by Jaconnet, op. cit. pp. 168-179.]
[Footnote 185: See above, vol. I. §§ 18, 492, 555-568_b_.]
[Footnote 186: The Institute of International Law is studying the whole question of the effect of war on treaties; see Politis, l.c., and especially Annuaire, XXIV. (1911), pp. 201-213, and 220-221.]
[Sidenote: Precarious position of Belligerents' subjects on Enemy Territory.]
§ 100. The outbreak of war affects likewise such subjects of the belligerents as are at the time within the enemy's territory. In former times they could at once be detained as prisoners of war, and many States, therefore, concluded in time of peace special treaties for the time of war expressly stipulating a specified period during which their subjects should be allowed to leave each other's territory unmolested.[187] Through the influence of such treaties, which became pretty general during the eighteenth century, it became an international practice that, as a rule, enemy subjects must be allowed to withdraw within a reasonable period, and no instance of the former rule has occurred during the nineteenth[188] century. Although some[189] writers even nowadays maintain that according to strict law the old rule is still in force, it may safely[190] be maintained that there is now a customary rule of International Law, according to which all such subjects of the enemy as have not according to the Municipal Law of their country to join the armed forces of the enemy must be allowed a reasonable period for withdrawal. On the other hand, such enemy subjects as are active or reserve officers, or reservists, and the like, may be prevented from leaving the country and detained as prisoners of war, for the principle of self-preservation must justify belligerents in refusing to furnish each other with resources which increase their means of offence and defence.[191] However that may be, a belligerent need not allow[192] enemy subjects to remain on his territory, although this is frequently done. Thus, during the Crimean War Russian subjects in Great Britain and France were allowed to remain there, as were likewise Russians in Japan and Japanese in Russia during the Russo-Japanese War, and Turks in Italy during the Turco-Italian War. On the other hand, France expelled all Germans during the Franco-German war in 1870; the former South African Republics expelled most British subjects when war broke out in 1899; Russia, although during the Russo-Japanese War she allowed Japanese subjects to remain in other parts of her territory, expelled them from her provinces in the Far East; and in May 1912, eight months after the outbreak of the Turko-Italian War, Turkey decreed the expulsion of all Italians, certain classes excepted. In case a belligerent allows the residence of enemy subjects on his territory, he can, of course, give the permission under certain conditions only, such as an oath to abstain from all hostile acts or a promise not to leave a certain region, and the like. And it must be especially observed that an enemy subject who is allowed to stay in the country after the outbreak of war must not, in case the forces of his home State militarily occupy the part of the country inhabited by him, join these forces or assist them in any way. If, nevertheless, he does so, he is liable to be punished for treason[193] by the local Sovereign after the withdrawal of the enemy forces.
[Footnote 187: See a list of such treaties in Hall, § 126, p. 107, note 1.]
[Footnote 188: With regard to the 10,000 Englishmen who were arrested in France by Napoleon at the outbreak of war with England in 1803 and kept as prisoners of war for many years, it must be borne in mind that Napoleon did not claim a right to make such civilians prisoners of war as were at the outbreak of war on French soil. He justified his act as one of reprisals, considering it a violation of the Law of Nations on the part of England to begin hostilities by capturing two French merchantmen in the Bay of Audierne without a formal declaration of war. See Alison, History of Europe, V. p. 277, and Bonfils, No. 1052.]
[Footnote 189: See Twiss, II. § 50; Rivier, II. p. 320; Liszt, § 39, V.; Holland, Letters upon War and Neutrality (1909), p. 39.]
[Footnote 190: See Land Warfare, § 12.]
[Footnote 191: See Land Warfare, § 13.]
[Footnote 192: See above, vol. I. § 324.]
[Footnote 193: See above, vol. I. § 317, p. 394, where the case of De Jager v. Attorney General is discussed.]
[Sidenote: Persona standi in judicio on Enemy Territory.]
§ 100_a_. Formerly the rule prevailed everywhere that an enemy subject has no persona standi in judicio and is, therefore, ipso facto by the outbreak of war, prevented from either taking or defending proceedings in the Courts. This rule dates from the time when war was considered such a condition between belligerents as justified the committing of hostilities on the part of all subjects of the one belligerent against all subjects of the other, and, further, the killing of all enemy subjects irrespective of sex and age, and, at any rate, the confiscation of all private enemy property. War in those times used to put enemy subjects entirely ex lege, and it was only a logical consequence from this principle that enemy subjects could not sustain persona standi in judicio. Since the rule that enemy subjects are entirely ex lege has everywhere vanished, the rule that they may not take or defend proceedings in the Courts has in many countries, such as Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in Great Britain and the United States of America[194] enemy subjects are still prevented from taking and defending legal proceedings,[195] although there are six exceptions to the general rule. Firstly, enemy subjects who do not bear enemy character because they are resident in neutral country or have a licence to trade or are allowed[196] to remain in the country of a belligerent, are therefore permitted to sue and be sued in British and American Courts. Secondly, if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing.[197] Thirdly, if a contract was entered into and executed before the war, and if an absent enemy subject has property within the boundaries of a belligerent, he may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on a contract for wages. Fifthly, if the parties, being desirous to obtain a decision on the merits of the case, waive the objection, enemy subjects may sue and be sued.[200] Lastly, a petition on the part of a creditor who is an enemy subject, to prove a debt under a commission of bankruptcy must be admitted[201] although the dividend will not be paid till after the conclusion of peace.
[Footnote 194: In strict law also in France.]
[Footnote 195: The leading case is the Hoop (1799), 1 C. Rob. 196.]
[Footnote 196: Wells v. Williams (1698), 1 Lord Raymond, 282.]
[Footnote 197: Shepeler v. Durand (1854), 14 P.C. 582.]
[Footnote 198: Dorsey v. Kyle (1869), 3 Maryland, 512. It would seem that the American Courts are inclined to drop the rule that an enemy subject cannot be sued; see De Jarnett v. De Giversville (1874), 56 Missouri, 440.]
[Footnote 199: Maria v. Hall (1800), 2 B. & P. 236.]
[Footnote 200: Driefontein Consolidated Gold Mines Co. v. Janson (1910), 2 Q.B. 419; App. Cas. (1902), 484.]
[Footnote 201: Ex parte Boussmaker (1806), 13 Vesey Jun. 71.]
It is asserted that, in consequence of article 23 (h) of the Hague Regulations concerning land warfare enacting the injunction "to declare extinguished, suspended, or unenforceable in a Court of Law the rights and rights of action of the nationals of the adverse party," Great Britain and the United States are compelled to abolish their rule that enemy subjects may not sue. But the interpretation of article 23 (h) is controversial, Great Britain and the United States of America--in contradistinction to Germany and France--maintaining that the article has nothing to do with their Municipal Law but concerns the conduct of armies in occupied enemy territory.[202]
[Footnote 202: It is impossible here to discuss the details of this controversy which the third Peace Conference must settle. See above, vol. I. § 554, No. 10; Politis in R.G. XVIII. (1911), pp. 249-259, and the literature there quoted; Kohler in Z.V. V. (1911), pp. 384-393; Holland in The Law Quarterly Review, XXVIII. (1912), pp. 94-98; Charteris in The Juridical Review, XXIII. (1911), pp. 307-323; Oppenheim, Die Zukunft des Völkerrechts (1911), pp. 30-32.]
However this may be, it must be especially observed that, according to British and American law, claims arising out of contracts concluded before the war do not become extinguished through the outbreak of war, but are only suspended during war, and the Statute of Limitations does not, according to American[203] practice at any rate, run during war.
[Footnote 203: Hanger v. Abbot (1867), 6 Wallace, 532. The point is not settled in English law, for the obiter dictum in De Wahl v. Browne (1856), 25 L.J. (N.S.) Ex. 343, "It may be that the effect would ultimately be to bar the action by reason of the Statute of Limitations is no answer...", is not decisive, although Anson, Principles of the English Law of Contract (11th ed. 1906), p. 122, and other writers accept it as decisive.]
[Sidenote: Intercourse, especially Trading, between Subjects of Belligerents.]
§ 101. Following Bynkershoek,[204] all British and American writers and cases, and also some French[205] and German[206] writers assert the existence of a rule of International Law that all intercourse, and especially trading, is ipso facto by the outbreak of war prohibited between the subjects of the belligerents, unless it is permitted under the customs of war, as, for instance, ransom bills, or is allowed under special licences, and that all contracts concluded between the subjects of the belligerents before the outbreak of war become extinct or suspended. On the other hand, most German, French, and Italian writers deny the existence of such a rule, but assert the existence of another according to which belligerents are empowered to prohibit by special orders all trade between their own and enemy subjects.
[Footnote 204: Quaestiones juris publici, I. c. 3: "quamvis autem nulla specialis sit commerciorum prohibitio ipsa tamen jure belli commercia sunt vetita."]
[Footnote 205: For instance, Pillet, p. 74, and Mérignhac, p. 57.]
[Footnote 206: For instance, Geffcken in his note 4 to Heffter, p. 265.]
These assertions are remnants of the time when the distinction[207] between International and Municipal Law was not, or not clearly, drawn. International Law, being a law for the conduct of States only and exclusively, has nothing to do directly with the conduct of private individuals, and both assertions are, therefore, nowadays untenable. Their place must be taken by the statement that, States being sovereign and the outbreak of war bringing the peaceful relations between belligerents to an end, it is within the competence of every State to enact by its Municipal Law such rules as it pleases concerning intercourse, and especially trading, between its own and enemy subjects. And if we look at the Municipal Laws of the several countries, we find that they have to be divided into two groups. To the one group belong those States--such as Austria-Hungary, Germany, Holland, and Italy--whose Governments are empowered by their Municipal Laws to prohibit by special order all trading with enemy subjects at the outbreak of war. In these countries trade with enemy subjects is permitted to continue after the outbreak of war unless special prohibitive orders are issued. To the other group belong those States--such as Great Britain, the United States of America, and, unless desuetudo[208] has made an alteration, France--whose Municipal Laws declare trade and intercourse with enemy subjects ipso facto by the outbreak of war prohibited, but empowers the Governments to allow by special licences all or certain kinds of such trade.
[Footnote 207: See above, vol. I. § 20.]
[Footnote 208: See Meyer, op. cit. p. 91.]
As regards the law of Great Britain[209] and the United States of America, it has been, since the end of the eighteenth century, an absolutely settled[210] rule of the Common Law that, certain cases excepted, all trading with alien enemies is ipso facto by the outbreak of war illegal unless it is allowed by special licences of the Crown. From the general principle asserted in the leading cases,[211] the Courts have drawn the following more important consequences:--
(1) All contracts, entered into during a war,[212] with alien enemies without a special licence are illegal, invalid, and can never be enforced, unless the contract was one entered into in case of necessity,[213] or in order to supply[214] an invading English army or the English fleet, or by prisoners[215] of war concerning personal services and requirements.
(2) Trading with the enemy does not become legal by the fact that goods coming from the enemy country to Great Britain, or going from Great Britain to the enemy country, are sent to their destination through a neutral country.[216]
(3) As regards contracts entered into before[217] the outbreak of war, a distinction must be drawn:--(a) Executory contracts are avoided, both parties being released from performance. (b) Contracts executed before the outbreak of war and not requiring to be acted upon during the war are suspended until after the conclusion of peace. (c) Executed contracts which require acting upon during the war are dissolved.
(4) Partnerships[218] with alien enemies are dissolved.
(5) No interest runs on debts[219] or mortgages.[220]
(6) A contract of affreightment[221] must not be fulfilled; therefore English ships must not load or unload goods in an enemy port.
(7) Contracts of insurance of enemy vessels and goods are so to be construed as to contain a proviso that the assurance shall not cover any loss occurring during a war between the country of the assurer and the country of the assured.[222]
(8) A life insurance policy,[223] entered into before the outbreak of war conditioning the payment of yearly premiums on pain of forfeiture of the policy, is forfeited ipso facto by the outbreak of war because the payment of the premium is now prohibited. After the conclusion of peace, however, the insured may claim the equitable value of the policy arising, at the time of the outbreak of war, from the premiums actually paid.
[Footnote 209: See besides the English and American text-books quoted above at the commencement of § 97, Pennant, Chadwick, and Gregory in The Law Quarterly Review, XVIII. (1902), pp. 289-296, XX. (1904), pp. 167-185, XXV. (1909), pp. 297-316; Bentwich, The Law of Private Property in War (1907), pp. 46-61; Phillipson, The Effect of War on Contracts (1909); Latifi, Effects of War on Property (1909), pp. 50-58.]
[Footnote 210: Whereas the Admiralty Court did at all times, the Common Law Courts did not during the eighteenth century hold trading with enemy subjects to be illegal, at any rate not in so far as insurance of enemy vessels and goods against capture on the part of English cruisers was concerned; see Henkle v. London Exchange Assurance Co. (1749), 1 Vesey Sen. 320; Planche v. Fletcher (1779), 1 Dougl. 251; Lavabre v. Wilson (1779), 1 Dougl. 284; Gist v. Mason (1786), 1 T.R. 84.]
[Footnote 211: Besides the Admiralty case of the Hoop (1799), 1 C. Rob. 196, the following are the leading cases:--Potts v. Bell (1800), 8 D. & E. 548; Furtado v. Rodgers (1802), 3 P. & B. 191; Esposito v. Bowden (1857), 7 E. & B. 763; the Mashona (1900), 10 Cape Times Law Reports, 170.]
[Footnote 212: Willison v. Paterson (1817), 7 Taunt, 439.]
[Footnote 213: Antoine v. Morshead (1815), 6 Taunt, 237.]
[Footnote 214: The Madonna delle Gracie (1802), 4 C. Rob. 195.]
[Footnote 215: Maria v. Hall (1800), 2 B. & P. 236.]
[Footnote 216: The Jonge Pieter (1801), 4 C. Rob. 79. But if the goods have been bought by the subject of a neutral State bona fide by himself and are afterwards shipped through neutral country to the enemy, it is not a case of trading with the enemy; see the Samuel (1802), 4 C. Rob. 284, note.]
[Footnote 217: Melville v. De Wold (1855), 4 E. & B. 844; Esposito v. Bowden (1857), 7 E. & B. 763; Ex parte Boussmaker (1806), 13 Ves. Jun. 71; Alcinous v. Nygreu (1854), 4 E. & B. 217; the Charlotta (1814), 1 Dodson, 390.]
[Footnote 218: Griswold v. Boddington (1819), 16 Johnson, 438; Esposito v. Bowden (1857), 7 E. & B. 763.]
[Footnote 219: Du Belloix v. Lord Waterpark (1822), 1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.]
[Footnote 220: Hoare v. Allan (1789), 2 Dallas, 102.]
[Footnote 221: Esposito v. Bowden (1857), 7 E. & B. 763. See also the Teutonia (1870), L. R. 4 Privy Council, 171.]
[Footnote 222: Brandon v. Curling (1803), 4 East, 410; but see also Potts v. Bell (1800), 8 D. & E. 548; Furtado v. Rodgers (1802), 3 P. & B. 191; Kellner v. Le Mesurier (1803), 4 East, 396; Gamba v. Le Mesurier (1803), 4 East, 407.]
[Footnote 223: New York Life Insurance Co. v. Stathem, v. Symes, and v. Buck (1876), 93 United States, 24; New York Life Insurance Co. v. Davis (1877), 95 United States, 425.]
It must be specially observed that, if the continental interpretation of article 23 (h) of the Hague Regulations--see above, § 100_a_--were not contradicted by Great Britain and the United States of America, both countries would be compelled to alter their Municipal Laws in so far as these declare such contracts as have been entered into with alien enemies before the outbreak of war dissolved, void, or suspended. Article 23 (h) distinctly enacts that it is forbidden to declare extinguished or suspended the rights of the nationals of the adverse party. Since, however, as stated above in § 100_a_, Great Britain and the United States of America uphold a different interpretation, this article does not concern their Municipal Laws respecting trading with alien enemies.
[Sidenote: Position of Belligerents' Property in the Enemy State.]
§ 102. In former times all private and public enemy property, immoveable or moveable, on each other's territory could be confiscated by the belligerents at the outbreak of war, as could also enemy debts; and the treaties[224] concluded between many States with regard to the withdrawal of each other's subjects at the outbreak of war stipulated likewise the unrestrained withdrawal of the private property of their subjects. Through the influence of such treaties as well as of Municipal Laws and Decrees enacting the same, an international usage and practice grew up that belligerents should neither confiscate private enemy property nor annul enemy debts on their territory. The last case of confiscation of private property is that of 1793 at the outbreak of war between France and Great Britain. No case of confiscation occurred during the nineteenth century, and although several writers maintain that according to strict law the old rule, in contradistinction to the usage which they do not deny, is still valid, it may safely be maintained that it is obsolete, and that there is now a customary rule of International Law in existence prohibiting the confiscation of private enemy property and the annulment of enemy debts on the territory of a belligerent. This rule, however, does not prevent a belligerent from seizing public enemy property on his territory, such as funds, ammunition, provisions, rolling stock of enemy state-railways, and other valuables; from preventing the withdrawal of private enemy property which may be made use of by the enemy[225] for military operations, such as arms and munitions; from seizing and making use of rolling stock belonging to private enemy railway companies, other means of transport of persons or goods which are private enemy property, and, further, all appliances for the transmission of news, although they are private enemy property, provided all these articles are restored and indemnities are paid for them after the conclusion of peace;[226] and from suspending, as a measure of self preservation, the payment of large enemy debts till after the conclusion of peace in order to prevent the increase of resources of the enemy.
[Footnote 224: See above, § 100; Moore, VII. § 1196; Scott, Conferences, pp. 559-563.]
[Footnote 225: The indulgence granted to enemy merchantmen in Russian and Japanese ports at the outbreak of the war in 1904, to leave those ports unmolested within a certain period of time, was conditional upon there being no contraband in the cargoes. See Lawrence, War, p. 52.]
[Footnote 226: As the seizure of all these articles is, according to article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, seizure must likewise--under the same conditions--be permissible in case these articles are on the territory of a belligerent. As regards rolling stock belonging to private enemy railway companies, see Nowacki, Die Eisenbahnen im Kriege (1906), § 15.]
[Sidenote: Effect of the Outbreak of War on Merchantmen.]
§ 102_a_. In former times International Law empowered States at the outbreak of war to lay an embargo upon all enemy merchantmen in their harbours in order to confiscate them. And enemy merchantmen on the sea could at the outbreak of war be captured and confiscated although they did not even know of the outbreak of war. As regards enemy merchantmen in the harbours of the belligerents, it became, from the outbreak of the Crimean War in 1854, a usage, if not a custom, that no embargo[227] could be laid on them for the purpose of confiscating them, and that a reasonable time must be granted them to depart unmolested; but no rule was in existence until the Second Peace Conference of 1907 which prescribed immunity from confiscation for such enemy merchantmen at sea as did not know of the outbreak of war. This Conference took the matter into consideration, and produced a Convention (VI.) relative to the status of enemy merchantmen at the outbreak of hostilities[228] which is signed by all the Powers represented at the Conference, except the United States of America,[229] China, and Nicaragua; but Nicaragua acceded later. In coming to an agreement on the subject, two facts had to be taken into consideration. There is, firstly, the fact that in all maritime countries numerous merchantmen are now built from special designs in order that they may quickly, at the outbreak of or during war, be converted into cruisers; it would therefore be folly on the part of a belligerent to grant any lenient treatment to such vessels. There is, secondly, the fact, that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of colliers, transport vessels, and repairing vessels; it is, therefore, of the greatest importance for a belligerent to have as many merchantmen as possible at his disposal for the purpose of making use of them for such assistance to the fleet. For this reason, Convention VI. represents a compromise, and it distinguishes between vessels in the harbours of the belligerents and vessels on the sea. Its provisions are the following:--
[Footnote 227: See above, § 40.]
[Footnote 228: See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold, II. pp. 146-153; Scott, Conferences, pp. 556-568; Dupuis, Guerre, Nos. 74-81; Scott in A.J. II. (1908), pp. 260-269.]
[Footnote 229: The United States of America refused to sign the Convention because she considers its stipulations retrogressive as they are less liberal than the practice which has prevailed since 1854. But circumstances have changed since that time, and the two facts explained in the text would seem to have compelled the maritime Powers to adopt rules somewhat less liberal. This was the more necessary since no agreement could be arrived at concerning the question of the locality in which belligerents should be allowed to convert merchantmen into cruisers.]
(1) Article 1 of the Convention enacts that, in case an enemy merchantman is at the beginning of the war in the port of a belligerent, it is desirable that she should be allowed freely to depart, either immediately or after a sufficient term of grace, and, after being furnished with a passport, to proceed either direct to her port of destination or to such other port as may be determined. It is obvious that, since only the desirability of free departure of such vessels is stipulated, a belligerent is not compelled to grant free departure; nevertheless there must be grave reasons for not acting in accordance with what is considered desirable by article 1. And it must be specially observed that a belligerent may make a distinction in the treatment of several enemy vessels in his harbours, and may grant free departure to one or more of them, and refuse it to others, according to his discretion.
(2) The former usage that enemy merchantmen in the harbours of the belligerents at the outbreak of war may not be confiscated, has been made a binding rule by article 2 which enacts that such vessels as were not allowed to leave, or were by force majeure prevented from leaving during the term of grace, may not be confiscated, but may only be detained under the obligation that they shall be restored, without indemnity, after the conclusion of peace, or they may be requisitioned on condition of indemnities to be paid to the owners.
(3) Enemy merchantmen which have left their last port of departure before the outbreak of war and which, while ignorant of the outbreak of war, are met at sea by cruisers of the belligerents, may, according to article 3, be captured, but they may not be confiscated, for they must be restored after the war is ended, although no indemnities need be paid. Indemnities are only to be paid in case the vessels have been requisitioned or destroyed, for a belligerent is empowered to requisition or destroy such vessels provided he takes care to preserve the ship papers and makes arrangements for the safety of the persons on board.
It is obvious that, in case such vessels are not ignorant of the outbreak of war--having, for instance, received the news by wireless telegraphy--they may not any longer claim the privileges stipulated by article 3. And this article stipulates expressly that after having touched a port of their own or of a neutral country, such vessels are no longer privileged.
(4) Enemy goods on board such enemy merchantmen as are in the harbour of a belligerent at the outbreak of war or at sea and are in ignorance of the outbreak of war are, according to article 4, privileged to the same extent as the vessels concerned.
(5) Enemy merchantmen whose construction indicates that they are intended to be converted into cruisers may be seized and confiscated in the harbours of the belligerents, as well as at sea, although ignorant of the outbreak of war, for article 5 stipulates expressly that Convention VI. does not affect such vessels.