IV. WARFARE ON SEA…

IV. WARFARE ON SEA

I

ON SEA WARFARE IN GENERAL

Hall, § 147--Lawrence, §§ 193-194--Westlake, II. pp. 120-132--Maine, pp. 117-122--Manning, pp. 183-184--Phillimore, III. § 347--Twiss, II. § 73--Halleck, II. pp. 80-82--Taylor, § 547--Wharton, III. §§ 342-345--Wheaton, § 355--Bluntschli, §§ 665-667--Heffter, § 139--Geffcken in Holtzendorff, IV. pp. 547-548, 571-581--Ullmann, §§ 187-188--Bonfils, Nos. 1268, 1294-1338--Despagnet, Nos. 647-649--Pradier-Fodéré, VIII. Nos. 3066-3090, 3107-3108--Nys, III. pp. 433-466--Rivier, II. pp. 329-335--Calvo, IV. §§ 2123, 2379-2410--Fiore, III. Nos. 1399-1413--Pillet, pp. 118-120--Perels, § 36--Testa, pp. 147-157--Boeck, Nos. 3-153--Lawrence, Essays, pp. 278-306--Westlake, Chapters, pp. 245-253--Ortolan, I. pp. 35-50--Hautefeuille, I. pp. 161-167--Gessner, Westlake, Lorimer, Rolin-Jaequemyns, Laveleye, Albéric Rolin, and Pierantoni in R.I. VII. (1875), pp. 256-272 and 558-656--Twiss, in R.I. XVI. (1884), pp. 113-137--See also the authors quoted below, § 178, p. 223, note 1.

[Sidenote: Aims and Means of Sea Warfare.]

§ 173. The purpose of war is the same in the case of warfare on land or on sea--namely, the overpowering of the enemy. But sea warfare serves this purpose by attempting the accomplishment of aims different from those of land warfare. Whereas the aims of land warfare are defeat of the enemy army and occupation of the enemy territory, the aims[342] of sea warfare are: defeat of the enemy navy; annihilation of the enemy merchant fleet; destruction of enemy coast fortifications, and of maritime as well as military establishments on the enemy coast; cutting off intercourse with the enemy coast; prevention of carriage of contraband and of rendering unneutral service to the enemy; all kinds of support to military operations on land, such as protection of a landing of troops on the enemy coast; and lastly, defence of the home coast and protection to the home merchant fleet.[343] The means by which belligerents in sea warfare endeavour to realise these aims are: attack on and seizure of enemy vessels, violence against enemy individuals, appropriation and destruction of enemy vessels and goods carried by them, requisitions and contributions, bombardment of the enemy coast, cutting of submarine cables, blockade, espionage, treason, ruses, capture of neutral vessels carrying contraband or rendering unneutral service.

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

[Footnote 343: Article 1 of the U.S. Naval War Code enumerates the following as aims of sea warfare:--The capture or destruction of the military and naval forces of the enemy, of his fortifications, arsenals, dry docks, and dockyards, of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and assist military operations on land; to protect and defend the national territory, property, and sea-borne commerce.]

[Sidenote: Lawful and Unlawful Practices of Sea Warfare.]

§ 174. As regards means of sea warfare, just as regards means of land warfare, it must be emphasised that not every practice capable of injuring the enemy in offence and defence is lawful. Although no regulations regarding the laws of war on sea have as yet been enacted by a general law-making treaty as a pendant to the Hague Regulations, there are treaties concerning special points--such as submarine mines, bombardment by naval forces, and others--and customary rules of International Law in existence which regulate the matter. Be that as it may, the rules concerning sea warfare are in many points identical with, but in many respects differ from, the rules in force regarding warfare on land. Therefore, the means of sea warfare must be discussed separately in the following sections. But blockade and capture of vessels carrying contraband and rendering unneutral service to the enemy, although they are means of warfare against an enemy, are of such importance as regards neutral trade that they will be discussed below in Part III. §§ 368-413.

[Sidenote: Objects of the Means of Sea Warfare.]

§ 175. Whereas the objects against which means of land warfare may be directed are innumerable, the number of the objects against which means of sea warfare are directed is very limited, comprising six objects only. The chief object is enemy vessels, whether public or private; the next, enemy individuals, with distinction between those taking part in fighting and others; the third, enemy goods on enemy vessels; the fourth, the enemy coast; the fifth and sixth, neutral vessels attempting to break blockade, carrying contraband, or rendering unneutral service to the enemy.

[Sidenote: Development of International Law regarding Private Property on Sea.]

§ 176. It is evident that in times when a belligerent could destroy all public and private enemy property he was able to seize, no special rule existed regarding private enemy ships and private enemy property carried by them on the sea. But the practice of sea warfare frequently went beyond the limits of even so wide a right, treating neutral goods on enemy ships as enemy goods, and treating neutral ships carrying enemy goods as enemy ships. It was not until the time of the Consolato del Mare in the fourteenth century that a set of clear and definite rules with regard to private enemy vessels and private enemy property on sea in contradistinction to neutral ships and neutral goods was adopted. According to this famous collection of maritime usages observed by the communities of the Mediterranean, there is no doubt that a belligerent may seize and appropriate all private enemy ships and goods. But a distinction is made in case of either ship or goods being neutral. Although an enemy ship may always be appropriated, neutral goods thereon have to be restored to the neutral owners. On the other hand, enemy goods on neutral ships may be appropriated, but the neutral ships carrying such goods must be restored to their owners. However, these rules of the Consolato del Mare were not at all generally recognised, although they were adopted by several treaties between single States during the fourteenth and fifteenth centuries. Neither the communities belonging to the Hanseatic League, nor the Netherlands and Spain during the War of Independence, nor England and Spain during their wars in the sixteenth century, adopted these rules. And France expressly enacted by Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods on enemy ships as well as neutral ships carrying enemy goods should be appropriated.[344] Although France adopted in 1650 the rules of the Consolato del Mare, Louis XIV. dropped them again by the Ordinance of 1681 and re-enacted that neutral goods on enemy ships and neutral ships carrying enemy goods should be appropriated. Spain enacted the same rules in 1718. The Netherlands, in contradistinction to the Consolato del Mare, endeavoured by a number of treaties to foster the principle that the flag covers the goods, so that enemy goods on neutral vessels were exempt from, whereas neutral goods on enemy vessels were subject to, appropriation. On the other hand, throughout the eighteenth and during the nineteenth century down to the beginning of the Crimean War in 1854, England adhered to the rules of the Consolato del Mare. Thus, no generally accepted rules of International Law regarding private property on sea were in existence.[345] Matters were made worse by privateering, which was generally recognised as lawful, and by the fact that belligerents frequently declared a coast blockaded without having a sufficient number of men-of-war on the spot to make the blockade effective. It was not until the Declaration of Paris in 1856 that general rules of International Law regarding private property on sea came into existence.

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

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

[Sidenote: Declaration of Paris.]

§ 177. Things began to undergo a change with the outbreak of the Crimean War in 1854, when all the belligerents proclaimed that they would not issue Letters of Marque, and when, further, Great Britain declared that she would not seize enemy goods on neutral vessels, and when, thirdly, France declared that she would not appropriate neutral goods on enemy vessels. Although this alteration of attitude on the part of the belligerents was originally intended for the Crimean War only and exceptionally, it led after the conclusion of peace in 1856 to the famous and epoch-making Declaration of Paris,[346] which enacted the four rules--(1) that privateering is abolished, (2) that the neutral flag covers enemy goods[347] with the exception of contraband of war, (3) that neutral goods, contraband of war excepted, are not liable to capture under the enemy flag, (4) that blockades, in order to be binding, must be effective, which means maintained by a force sufficient really to prevent access to the coast of the enemy. Since, with the exception of a few States such as the United States of America, Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of Nations are now parties to the Declaration of Paris, it may well be maintained that the rules quoted are general International Law, the more so as the non-signatory Powers have hitherto in practice always acted in accordance with those rules.[348]

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

[Footnote 347: It has been asserted--see, for instance, Rivier, II. p. 429--that the neutral flag covers only private, not public, enemy property, and therefore that such goods on neutral vessels as belong to the State of the enemy may be seized and appropriated. This opinion would seem, however, to be untenable in face of the fact that the Declaration of Paris speaks of marchandise neutre without any qualification, only excepting contraband goods, thus protecting the whole of the cargo under the neutral flag, contraband excepted. See below, § 319, p. 385, note 3.]

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

[Sidenote: The Principle of Appropriation of Private Enemy Vessels and Enemy Goods thereon.]

§ 178. The Declaration of Paris did not touch upon the old rule that private enemy vessels and private enemy goods thereon may be seized and appropriated, and this rule is, therefore, as valid as ever, although there is much agitation for its abolition. In 1785 Prussia and the United States of America had already stipulated by article 23 of their Treaty of Friendship[349] that in case of war between the parties each other's merchantmen shall not be seized and appropriated. Again, in 1871 the United States and Italy, by article 12 of their Treaty of Commerce,[350] stipulated that in case of war between the parties each other's merchantmen, with the exception of those carrying contraband of war or attempting to break a blockade, shall not be seized and appropriated. In 1823 the United States had already made the proposal to Great Britain, France, and Russia[351] for a treaty abrogating the rule that enemy merchantmen and enemy goods thereon may be appropriated; but Russia alone accepted the proposal under the condition that all other naval Powers should consent. Again, in 1856,[352] on the occasion of the Declaration of Paris, the United States endeavoured to obtain the victory of the principle that enemy merchantmen shall not be appropriated, making it a condition of their accession to the Declaration of Paris that this principle should be recognised. But again the attempt failed, owing to the opposition of Great Britain.

[Footnote 349: See Martens, R. IV. p. 37. Perels (p. 198) maintains that this article has not been adopted by the Treaty of Commerce between Prussia and the United States of May 1, 1828; but this statement is incorrect, for article 12 of this treaty--see Martens, N.R. VII. p. 615--adopts it expressly.]

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

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

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

At the outbreak of war in 1866, Prussia and Austria expressly declared that they would not seize and appropriate each other's merchantmen. At the outbreak of the Franco-German War in 1870, Germany declared French merchantmen exempt from capture, but she changed her attitude when France did not act upon the same lines. It should also be mentioned that already in 1865 Italy, by article 211 of her Marine Code, enacted that, in case of war with any other State, enemy merchantmen not carrying contraband of war or breaking a blockade shall not be seized and appropriated, provided reciprocity be granted. And it should further be mentioned that the United States of America made attempts[353] in vain to secure immunity from capture to enemy merchantmen and goods on sea at the First as well as at the Second Hague Peace Conference.

[Footnote 353: See Holls, The Peace Conference at the Hague, pp. 306-321, and Scott, Conferences, pp. 699-707.]

It cannot be denied that the constant agitation, since the middle of the eighteenth century, in favour of the abolition of the rule that private enemy vessels and goods may be captured on the High Seas, might, during the second half of the nineteenth century, have met with success but for the decided opposition of Great Britain. Public opinion in Great Britain was not, and is not, prepared to consent to the abolition of this rule. And there is no doubt that the abolition of the rule would involve a certain amount of danger to a country like Great Britain whose position and power depend chiefly upon her navy. The possibility of annihilating an enemy's commerce by annihilating his merchant fleet is a powerful weapon in the hands of a great naval Power. Moreover, if enemy merchantmen are not captured, they can be fitted out as cruisers, or at least be made use of for the transport of troops, munitions, and provisions. Have not several maritime States made arrangements with their steamship companies to secure the building of their Transatlantic liners according to plans which make these merchantmen easily convertible into men-of-war?

The argument that it is unjust that private enemy citizens should suffer through having their property seized has no weight in face of the probability that fear of the annihilation of its merchant fleet in case of war may well deter a State intending to go to war from doing so. It is a matter for politicians, not for jurists, to decide whether Great Britain must in the interest of self-preservation oppose the abolition of the rule that sea-borne private enemy property may be confiscated.

However this may be, since the end of the nineteenth century it has not been the attitude of Great Britain alone which stands in the way of the abolition of the rule. Since the growth of navies among continental Powers, these Powers have learnt to appreciate the value of the rule in war, and the outcry against the capture of merchantmen has become less loud. To-day, it may perhaps be said that, even if Great Britain were to propose the abolition of the rule, it is probable that a greater number of the maritime States would refuse to accede. For it should be noted that at the Second Peace Conference, France, Russia, Japan, Spain, Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted against the abolition of the rule. And there is noticeable a slow, but constant, increase in the number of continental publicists[354] who oppose the abolition of the once so much objected to practice of capturing enemy merchantmen.

[Footnote 354: See, for instance, Perels, § 36, pp. 195-198; Röpcke, Das Seebeuterecht (1904), pp. 36-47; Dupuis, Nos. 29-31; Pillet, p. 119; Giordana, La proprieta privata nelle guerre maritime, etc. (1907); Niemeyer, Prinzipien des Seekriegsrechts (1909); Boidin, pp. 144-167. On the other hand, the Institute of International Law has several times voted in favour of the abolition of the rule; see Tableau Général de l'Institut de droit International (1893), pp. 190-193. The literature concerning the question of confiscation of private enemy property on sea is abundant. The following authors, besides those already quoted above at the commencement of § 173, may be mentioned:--Upton, The Law of Nations affecting Commerce during War (1863); Cauchy, Du respect de la propriété privée dans la guerre maritime (1866); Vidari, Del rispetto della proprietà privata fra gli stati in guerra (1867); Gessner, Zur Reform des Kriegsseerechts (1875); Klobukowski, Die Seebeute oder das feindliche Privateigenthum zur See (1877); Bluntschli, Das Beuterecht im Kriege und das Seebeuterecht insbesondere (1878); Boeck, De la propriété privée ennemie sous pavillon ennemi (1882); Dupuis, La guerre maritime et les doctrines anglaises (1899); Leroy, La guerre maritime (1900); Röpcke, Das Seebeuterecht (1904); Hirst, Commerce and Property in Naval Warfare: A Letter of the Lord Chancellor (1906); Hamman, Der Streit um das Seebeuterecht (1907); Wehberg, Das Beuterecht im Land und Seekrieg (1909); Cohen, The Immunity of Enemy's Property from Capture at Sea (1909); Macdonell, Some plain Reasons for Immunity from Capture of Private Property at Sea (1910). See also the literature quoted by Bonfils, No. 1281, Pradier-Fodéré, VIII. Nos. 3070-3090, and Boeck, Nos. 382-572, where the arguments of the authors against and in favour of the present practice are discussed.]

[Sidenote: Impending Codification of Law of Sea Warfare.]

§ 179. Be that as it may, the time is not very far distant when the Powers will perforce come to an agreement on this as on other points of sea warfare, in a code of regulations regarding sea warfare as a pendant to the Hague Regulations regarding warfare on land. An initiative step was taken by the United States of America by her Naval War Code[355] published in 1900, although she withdrew[356] the Code in 1904. Meanwhile, the Second Peace Conference has produced a number of Conventions dealing with some parts of Sea Warfare, namely: (1) the Convention (VI.) concerning the status of enemy merchantmen at the outbreak of hostilities; (2) the Convention (VII.) concerning the conversion of merchantmen into warships; (3) the Convention (VIII.) concerning the laying of automatic submarine contact mines; (4) the Convention (IX.) concerning the bombardment by naval forces; (5) the Convention (XI.) concerning restrictions on the exercise of the right of capture in maritime war.

[Footnote 355: See above, vol. I. § 32.]

[Footnote 356: See above, § 68, p. 83, note 1.]

II

ATTACK AND SEIZURE OF ENEMY VESSELS

Hall, §§ 138 and 148--Lawrence, § 182--Westlake, II. pp. 133-140, 307-331--Phillimore, III. § 347--Twiss, II. § 73--Halleck, II. pp. 105-108--Taylor, §§ 545-546--Moore, VII. §§ 1175-1183, &c.,--Walker, § 50, p. 147--Wharton, III. § 345--Bluntschli, §§ 664-670--Heffter, §§ 137-139--Ullmann, § 188--Bonfils, Nos. 1269-1271, 1350-1354, 1398-1400--Despagnet, Nos. 650-659--Rivier, § 66--Nys, III. pp. 467-478--Pradier-Fodéré, VIII. Nos. 3155-3165, 3176-3178--Calvo, IV. §§ 2368-2378--Fiore, III. Nos. 1414-1424, and Code, Nos. 1643-1649--Pillet, pp. 120-128--Perels, § 35--Testa, pp. 155-157--Lawrence, War, pp. 48-55, 93-111--Ortolan, II. pp. 31-34--Boeck, Nos. 190-208--Dupuis, Nos. 150-158, and Guerre, Nos. 74-112--U.S. Naval War Code, articles 13-16--Bernsten, §§ 7-8.

[Sidenote: Importance of Attack and Seizure of Enemy Vessels.]

§ 180. Whereas in land warfare all sorts of violence against enemy individuals are the chief means, in sea warfare attack and seizure of enemy vessels are the most important means. For together with enemy vessels, a belligerent takes possession of the enemy individuals and enemy goods thereon, so that he can appropriate vessels and goods, as well as detain those enemy individuals who belong to the enemy armed forces as prisoners of war. For this reason, and compared with attack and seizure of enemy vessels, violence against enemy persons and the other means of sea warfare play only a secondary part, although such means are certainly not unimportant. For a weak naval Power can even restrict the operations of her fleet to mere coast defence, and thus totally refrain from directly attacking and seizing enemy vessels.

[Sidenote: Attack when legitimate.]

§ 181. All enemy men-of-war and other public vessels, which are met by a belligerent's men-of-war on the High Seas or within the territorial waters of either belligerent,[357] may at once be attacked, and the attacked vessel may, of course, defend herself by a counter-attack. Enemy merchantmen may be attacked only if they refuse to submit to visit after having been duly signalled to do so. And no duty exists for an enemy merchantman to submit to visit; on the contrary, she may refuse it, and defend herself against an attack. But only a man-of-war is competent to attack men-of-war as well as merchantmen, provided the war takes place between parties to the Declaration of Paris, so that privateering is prohibited. Any merchantman of a belligerent attacking a public or private vessel of the enemy would be considered and treated as a pirate, and the members of the crew would be liable to be treated as war criminals[358] to the same extent as private individuals committing hostilities in land warfare. However, if attacked by an enemy vessel, a merchantman is competent to deliver a counter-attack and need not discontinue her attack because the vessel which opened hostilities takes to flight, but may pursue and seize her.

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

[Footnote 358: See above, § 85, and below, § 254. Should a merchantman, legitimately--after having been herself attacked--or illegitimately, attack an enemy vessel, and succeed in capturing her, the prize, on condemnation, becomes droits of Admiralty and, therefore, the property of the British Government; see article 39 of the Naval Prize Act, 1864, and article 44 of the Naval Prize Bill introduced in 1911.]

It must be specially mentioned that an attack upon enemy vessels on the sea may be made by forces on the shore. For instance, this is done when coast batteries fire upon an enemy man-of-war within reach of their guns. Enemy merchantmen, however, may not be attacked in this way, for they may only be attacked by men-of-war after having been signalled in vain to submit to visit.

[Sidenote: Attack how effected.]

§ 182. One mode of attack which was in use at the time of sailing ships, namely, boarding and fighting the crew, which can be described as a parallel to assault in land warfare, is no longer used, but if an instance occurred, it would be perfectly lawful. Attack is nowadays effected by cannonade, torpedoes, and, if opportunity arises, by ramming; and nothing forbids an attack on enemy vessels by launching projectiles and explosives from air-vessels, provided the belligerents are not parties to the Declaration--see above, § 114--which prohibits such attacks. As a rule attacks on merchantmen will be made by cannonade only, as the attacking vessel aims at seizing her on account of her value. But, in case the attacked vessel not only takes to flight, but defends herself by a counter-attack, all modes of attack are lawful against her, just as she herself is justified in applying all modes of attack by way of defence.

As regards attack by torpedoes, article 1 No. 3 of Convention VIII. of the Second Peace Conference enacts that it is forbidden to use torpedoes which do not become harmless if they miss their mark.

[Sidenote: Submarine Contact Mines.]

§ 182_a_. A new mode of attack which requires special attention[359] is that by means of floating mechanical, in contradistinction to so-called electro-contact, mines. The latter need not specially be discussed, because they are connected with a battery on land, can naturally only be laid within territorial waters, and present no danger to neutral shipping except on the spot where they are laid. But floating mechanical mines can be dropped as well in the Open Sea as in territorial waters; they can, moreover, drift away to any distance from the spot where they were dropped and thus become a great danger to navigation in general. Mechanical mines were for the first time used, and by both parties, in the Russo-Japanese War during the blockade of Port Arthur in 1904, and the question of their admissibility was at once raised in the press of all neutral countries, the danger to neutral shipping being obvious. The Second Peace Conference took the matter up and, in spite of the opposing views of the Powers, was able to produce the Convention (VIII.) concerning the laying of automatic submarine contact mines. This Convention comprises thirteen articles and was signed, although by some only with reservations, by all the Powers represented at the Conference, except China, Montenegro, Nicaragua, Portugal, Russia, Spain, and Sweden. Most of the signatory States have already ratified, and Nicaragua has since acceded. The more important stipulations of this Convention are the following:--

(1) Belligerents[360] are forbidden to lay unanchored automatic contact mines, unless they be so constructed as to become harmless one hour at most after those who laid them have lost control over them, and it is forbidden to lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings (article 1).

(2) It is forbidden to lay automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation (article 2).[361]

(3) When anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful navigation. The belligerents must provide, as far as possible, for these mines becoming harmless after a limited time has elapsed, and, where the mines cease to be under observation, to notify the danger zones as soon as military exigencies permit, by notice to mariners, which must also be communicated to the Governments through the diplomatic channel (article 3).

(4) At the close of the war, each Power must remove the mines laid by it. As regards anchored automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters (article 5).

(5) The Convention remains in force for seven years, but, unless denounced, it continues in force afterwards (article 11). According to article 12, however, the contracting Powers agree to reopen the question of the employment of automatic contact mines after six and a half years unless the Third Peace Conference has already taken up and settled the matter.

[Footnote 359: See Lawrence, War, pp. 93-111; Wetzstein, Die Seeminenfrage im Völkerrecht (1909); Rocholl, Die Frage der Minen im Seekrieg (1910); Barclay, pp. 59 and 158; Lémonon, pp. 472-502; Higgins, pp. 328-345; Boidin, pp. 216-235; Dupuis, Guerre, Nos. 331-358; Scott, Conferences, pp. 576-587; Martitz in the Report of the 23rd Conference (1906) of the International Law Association, pp. 47-74; Stockton in A.J. II. (1908), pp. 276-284.]

[Footnote 360: As regards neutrals, see below, § 363_a_.]

[Footnote 361: France and Germany have signed with reservations against article 2.]

There is no doubt that the stipulations of Convention VIII. are totally inadequate to secure the safety of neutral shipping, and it is for this reason that Great Britain added the following reservation in signing the Convention:--"In placing their signatures to this Convention the British plenipotentiaries declare that the mere fact that the said Convention does not prohibit a particular act or proceeding must not be held to debar His Britannic Majesty's Government from contesting its legitimacy." It is to be hoped that the Third Peace Conference will produce a more satisfactory settlement of the problem. The Institute of International Law studied the matter at its meetings at Paris in 1910 and at Madrid in 1911, and produced a Règlementation[362] internationale de l'usage des mines sous-marines et torpilles, comprising nine articles, of which the more important are the following:--

(1) It is forbidden to place anchored or unanchored automatic mines in the Open Sea (the question of the laying of electric contact mines in the Open Sea being reserved for future consideration).

(2) Belligerents may lay mines in their own and in the enemy's territorial waters, but it is forbidden (a) to lay unanchored automatic contact mines which do not become harmless one hour at most after those who laid them have lost control over them; (b) to lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings.

(3) A belligerent is only allowed to lay mines off the coasts and ports of the enemy for naval and military purposes, he is not allowed to lay them there in order to establish or maintain a commercial blockade.

(4) If mines are laid, all precautions must be taken for the safety of peaceful navigation, and belligerents must, in especial, provide that mines become harmless after a limited time has elapsed. In case mines cease to be under observation the belligerents must, as soon as military exigencies permit, notify the danger zones to mariners and also to the Governments through the diplomatic channel.

(5) The question as to the laying of mines in straits is reserved for future consideration.

(6) At the end of the war each Power must remove the mines laid by it. As regards anchored automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters. The Power whose duty it is to remove the mines after the war must make known the date at which the removal of the mines is complete.

(7) A violation of these rules involves responsibility on the part of the guilty State. The State which has laid the mines is presumed to be guilty unless the contrary is proved, and an action may be brought against the guilty State, even by individuals who have suffered damage, before the competent International Tribunal.

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

[Sidenote: Duty of giving Quarter.]

§ 183. As soon as an attacked or counter-attacked vessel hauls down her flag and, therefore, signals that she is ready to surrender, she must be given quarter and seized without further firing. To continue an attack although she is ready to surrender, and to sink her and her crew, would constitute a violation of customary International Law, and would only as an exception be admissible in case of imperative necessity or of reprisals.

[Sidenote: Seizure.]

§ 184. Seizure is effected by securing possession of the vessel through the captor sending an officer and some of his own crew on board the captured vessel. But if for any reason this is impracticable, the captor orders the captured vessel to lower her flag and to steer according to his orders.

[Sidenote: Effect of Seizure.]

§ 185. The effect of seizure is different with regard to private enemy vessels, on the one hand, and, on the other, to public vessels.

Seizure of private enemy vessels may be described as a parallel to occupation of enemy territory in land warfare. Since the vessel and the individuals and goods thereon are actually placed under the captor's authority, her officers and crew, and any private individuals on board, are for the time being submitted to the discipline of the captor, just as private individuals on occupied enemy territory are submitted to the authority of the occupant.[363] Seizure of private enemy vessels does not, however, vest the property finally in the hands of the belligerent[364] whose forces effected the capture. The prize has to be brought before a Prize Court, and it is the latter's confirmation of the capture through adjudication of the prize which makes the appropriation by the capturing belligerent final.[365]

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

[Footnote 364: It is asserted that a captured enemy merchantman may at once be converted by the captor into a man-of-war, but the cases of the Ceylon (1811) and the Georgina (1814), 1 Dodson 105 and 397, which are quoted in favour of such a practice, are not decisive. See Higgins, War and the Private Citizen (1912), pp. 138-142.]

[Footnote 365: See below, § 192.]

On the other hand, the effect of seizure of public enemy vessels is their immediate and final appropriation. They may be either taken into a port or at once destroyed. All individuals on board become prisoners of war, although, if perchance there should be on board a private enemy individual of no importance, he would probably not be kept for long in captivity, but liberated in due time.

As regards goods on captured public enemy vessels, there is no doubt that the effect of seizure is the immediate appropriation of such goods on the vessels concerned as are enemy property, and these goods may therefore be destroyed at once, if desirable. Should, however, neutral goods be on board a captured enemy public vessel, it is a moot point whether or no they share the fate of the captured ship. According to British practice they do, but according to American practice they do not.[366]

[Footnote 366: See, on the one hand, the Fanny (1814), 1 Dodson, 443, and, on the other, the Nereide (1815), 9 Cranch, 388. See also below, § 424, p. 542 note 2.]

[Sidenote: Immunity of Vessels charged with Religious, Scientific, or Philanthropic Mission.]

§ 186. Enemy vessels engaged in scientific discovery and exploration were, according to a general international usage in existence before the Second Peace Conference of 1907, granted immunity from attack and seizure in so far and so long as they themselves abstained from hostilities. The usage grew up in the eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels La Boudeuse and L'Étoile on a voyage round the world, was furnished by the British Government with safe-conducts. In 1776, Captain Cook's vessels Resolution and Discovery, sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French Count Lapérouse, who started on a voyage of exploration in 1785 with the vessels Astrolabe and Boussole, was secured immunity from attack and seizure. During the nineteenth century this usage became quite general, and had almost ripened into a custom; examples are the Austrian cruiser Novara (1859) and the Swedish cruiser Vega (1878). No immunity, however, was granted to vessels charged with religious or philanthropic missions. A remarkable case occurred during the Franco-German war. In June, 1871, the Palme, a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed and the French Conseil d'État set the vessel free, not because the capture was not justified but because equity demanded that the fact that Swiss subjects owning sea-going vessels were obliged to have them sailing under the flag of another State, should be taken into consideration.[367]

[Footnote 367: See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck, No. 199.]

The Second Peace Conference embodied the previous usage concerning immunity of vessels of discovery and exploration in a written rule and extended the immunity to vessels with a religious or philanthropic mission, for article 4 of Convention XI. enacts that vessels charged with religious, scientific, or philanthropic missions are exempt from capture.

It must be specially observed that it matters not whether the vessel concerned is a private or a public vessel.[368]

[Footnote 368: See U.S. Naval War Code, article 13. The matter is discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning the case of the English explorer Flinders, who sailed with the vessel Investigator from England, but exchanged her for the Cumberland, which was seized in 1803 by the French at Port Louis, in Mauritius, as she was not the vessel to which a safe-conduct was given, see Lawrence, § 185.]

[Sidenote: Immunity of Fishing-boats and small boats employed in local Trade.]

§ 187. Coast fishing-boats, in contradistinction to boats engaged in deep-sea fisheries, were, according to a general, but not universal, custom in existence during the nineteenth century, granted immunity from attack and seizure so long and in so far as they were unarmed and were innocently employed in catching and bringing in fish.[369] As early as the sixteenth century treaties were concluded between single States stipulating such immunity to each other's fishing-boats for the time of war. But throughout the seventeenth and eighteenth centuries there were instances of a contrary practice, and Lord Stowell refused[370] to recognise in strict law any such exemption, although he recognised a rule of comity to that extent. Great Britain has always taken the standpoint that any immunity granted by her to fishing-boats was a relaxation[371] of strict right in the interest of humanity, but revocable at any moment, and that her cruisers were justified in seizing enemy fishing-boats unless prevented therefrom by special instructions on the part of the Admiralty.[372] But at the Second Peace Conference she altered her attitude, and agreed to the immunity not only of fishing vessels, but also of small boats employed in local trade. Article 3 of Convention XI. enacts, therefore, that vessels employed exclusively in coast fisheries, and small boats employed in local trade, are, together with appliances, rigging, tackle, and cargo, exempt from capture.

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

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

[Footnote 371: See Hall, § 148.]

[Footnote 372: See Holland, Prize Law, § 36.]

It must be specially observed that boats engaged in deep-sea fisheries and large boats engaged in local trade do not enjoy the privilege of immunity from capture, and that the fishing vessels and small boats employed in local trade lose that privilege in case they take any part whatever in hostilities. And article 3 expressly stipulates that belligerents must not take advantage of the harmless character of the said boats in order to use them for military purposes while preserving their peaceful appearance.

[Sidenote: Immunity of Merchantmen at the Outbreak of War on their Voyage to and from a Belligerent's Port.]

§ 188. Several times at the outbreak of war during the nineteenth century belligerents decreed that such enemy merchantmen as were on their voyage to one of the former's ports at the outbreak of war, should not be attacked and seized during the period of their voyage to and from such port. Thus, at the outbreak of the Crimean War, Great Britain and France decreed such immunity for Russian vessels, Germany did the same with regard to French vessels in 1870,[373] Russia with regard to Turkish vessels in 1877, the United States with regard to Spanish vessels in 1898, Russia and Japan with regard to each other's vessels in 1904. But there is no rule of International Law which compels a belligerent to grant such days of grace, and it is probable that in future wars days of grace will not be granted. The reason is that the steamboats of many countries are now built, according to an arrangement with the Government of their home State, from special designs which make them easily convertible into cruisers, and that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of transport-vessels, colliers, repairing-vessels, and the like.[374]

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

[Footnote 374: This point is ably argued by Lawrence, War, pp 54-55.]

In case, however, merchantmen, other than those constructed on special lines in order to make them easily convertible into cruisers, are, at the outbreak of war, on their voyage to an enemy port and are ignorant of the outbreak of hostilities, article 3 of Convention VI.[375] of the Second Peace Conference must find application. They may not, therefore, be confiscated, but may only be captured on condition that they shall be restored after the conclusion of peace, or that indemnities shall be paid for them if they have been requisitioned or destroyed.

[Footnote 375: See above, § 102_a_, Nos. 3 and 4.]

[Sidenote: Vessels in Distress.]

§ 189. Instances have occurred when enemy vessels which were forced by stress of weather to seek refuge in a belligerent's harbour were granted exemption from seizure.[376] Thus, when in 1746, during war with Spain, the Elisabeth, a British man-of-war, was forced to take refuge in the port of Havanna, she was not seized, but was offered facility for repairing damages, and furnished with a safe-conduct as far as the Bermudas. Thus, further, when in 1799, during war with France, the Diana, a Prussian merchantman, was forced to take refuge in the port of Dunkirk and seized, she was restored by the French Prize Court. But these and other cases have not created any rule of International Law whereby immunity from attack and seizure is granted to vessels in distress, and no such rule is likely to grow up, especially not as regards men-of-war and such merchantmen as are easily convertible into cruisers.

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

[Sidenote: Immunity of Hospital and Cartel Ships.]

§ 190. According to the Hague Convention, which adapted the principles of the Geneva Convention to warfare on sea, hospital ships are inviolable, and therefore may be neither attacked nor seized; see below in §§ 204-209. Concerning the immunity of cartel ships, see below in § 225.

[Sidenote: Immunity of Mail-boats and of Mail-bags.]

§ 191. No general rule of International Law exists granting enemy mail-boats immunity from attack and seizure, but the several States have frequently stipulated such immunity in the case of war by special treaties.[377] Thus, for instance, Great Britain and France by article 9 of the Postal Convention of August 30, 1860, and Great Britain and Holland by article 7 of the Postal Convention of October 14, 1843, stipulated that all mail-boats navigating between the countries of the parties shall continue to navigate in time of war between these countries without impediment or molestation until special notice be given by either party that the service is to be discontinued.

[Footnote 377: See Kleen, II. § 210, pp. 505-507.]

Whereas there is no general rule granting immunity from capture to enemy mail-boats, enemy mail-bags do, according to article 1 of Convention XI., enjoy the privilege of such immunity, for it is there enacted that the postal correspondence of neutrals or belligerents, whether official or private in character, which may be found on board a neutral[378] or enemy ship at sea, is inviolable, and that, in case the ship is detained, the correspondence is to be forwarded by the captor with the least possible delay. There is only one exception to this rule of article 1, for correspondence destined to or proceeding from a blockaded port does not enjoy the privilege of immunity.

[Footnote 378: See below, §§ 319 and 411.]

It must be specially observed that postal correspondence, and not parcels sent by parcel post, are immune from capture.

III

APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN

Hall, §§ 149-152, 171, 269--Lawrence, §§ 183-191--Westlake, II. pp. 156-160--Phillimore, III. §§ 345-381--Twiss, II. §§ 72-97--Halleck, II. pp. 362-431, 510-526--Taylor, §§ 552-567--Wharton, III. § 345--Wheaton, §§ 355-394--Moore, VII. §§ 1206-1214--Bluntschli, §§ 672-673--Heffter, §§ 137-138--Geffcken in Holtzendorff, IV. pp. 588-596--Ullmann, § 189--Bonfils, Nos. 1396-1440--Despagnet, Nos. 670-682--Pradier-Fodéré, VIII. Nos. 3179-3207--Rivier, II. § 66--Calvo, IV. §§ 2294-2366, V. §§ 3004-3034--Fiore, III. Nos. 1426-1443, and Code, Nos. 1693-1706--Martens, II. §§ 125-126--Pillet, pp. 342-352--Perels, §§ 36, 55-58--Testa, pp. 147-160--Valin, Traité des prises, 2 vols. (1758-60), and Commentaire sur l'ordonnance de 1681, 2 vols. (1766)--Pistoye et Duverdy, Traité des prises maritimes, 2 vols. (1854-1859)--Upton, The Law of Nations affecting Commerce during War (1863)--Boeck, Nos. 156-209, 329-380--Dupuis, Nos. 96-149, 282-301--Bernsten, § 8--Marsden, Early Prize Jurisdiction and Prize Law in England in The English Historical Review, XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p. 34--Roscoe, The Growth of English Law (1911), pp. 92-140. See also the literature quoted by Bonfils at the commencement of No. 1396.

[Sidenote: Prize Courts.]

§ 192. It has already been stated above, in § 185, that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through the latter's adjudication that the vessel becomes finally appropriated. The origin[379] of Prize Courts is to be traced back to the end of the Middle Ages. During the Middle Ages, after the Roman Empire had broken up, a state of lawlessness established itself on the High Seas. Piratical vessels of the Danes covered the North Sea and the Baltic, and navigation of the Mediterranean Sea was threatened by Greek and Saracen pirates. Merchantmen, therefore, associated themselves for mutual protection and sailed as a merchant fleet under a specially elected chief, the so-called Admiral. They also occasionally sent out a fleet of armed vessels for the purpose of sweeping pirates from certain parts of the High Seas. Piratical vessels and goods which were captured were divided among the captors according to a decision of their Admiral. During the thirteenth century the maritime States of Europe themselves endeavoured to keep order on the Open Sea. By-and-by armed vessels were obliged to be furnished with Letters Patent or Letters of Marque from the Sovereign of a maritime State and their captures submitted to the official control of such State as had furnished them with their Letters. A board, called the Admiralty, was instituted by maritime States, and officers of that Board of Admiralty exercised control over the armed vessels and their captures, inquiring in each case[380] into the legitimation of the captor and the nationality of the captured vessel and her goods. And after modern International Law had grown up, it was a recognised customary rule that in time of war the Admiralty of maritime belligerents should be obliged to institute a Court[381] or Courts whenever a prize was captured by public vessels or privateers in order to decide whether the capture was lawful or not. These Courts were called Prize Courts. This institution has come down to our times, and nowadays all maritime States either constitute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole institution is essentially one in the interest of neutrals, since belligerents want to be guarded by a decision of a Court against claims of neutral States regarding alleged unjustified capture of neutral vessels and goods. The capture of any private vessel, whether prima facie belonging to an enemy or a neutral, must, therefore, be submitted to a Prize Court. Article 1 of Convention XII. (as yet unratified) of the Second Peace Conference now expressly enacts the old customary rule that "the validity of the capture of a merchantman or its cargo, when neutral or enemy property is involved, is decided before a Prize Court." It must, however, be emphasised that the ordinary Prize-Courts are not International Courts, but National Courts instituted by Municipal Law, and that the law they administer is Municipal Law,[382] based on custom, statutes, or special regulations of their State. Every State is, however, bound by International Law to enact only such statutes and regulations[383] for its Prize Courts as are in conformity with International Law. A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be instituted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays constitute a breach of neutrality on the part of a neutral State to allow the institution on its territory of a Prize Court.[384]

[Footnote 379: I follow the excellent summary of the facts given by Twiss, II. §§ 74-75, but Marsden's articles in The English Historical Review, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34, must likewise be referred to.]

[Footnote 380: The first case that is mentioned as having led to judicial proceedings before the Admiral in England dates from 1357; see Marsden, loc. cit. XXIV. (1909), p. 680.]

[Footnote 381: In England an Order in Council, dated July 20, 1589, first provided that all captures should be submitted to the High Court of Admiralty; see Marsden, loc. cit. XXIV. (1909), p. 690.]

[Footnote 382: See below, § 434.]

[Footnote 383: The constitution and procedure of Prize Courts in Great Britain are governed by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25), and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Naval Prize Bill introduced by the British Government in 1911, although accepted by the House of Commons, was thrown out by the House of Lords.--It should be mentioned that the Institute of International Law has in various meetings occupied itself with the whole matter of capture, and adopted a body of rules in the Règlement international des Prises Maritimes, which represent a code of Prize Law; see Annuaire, IX. pp. 218-243, but also XVI. pp. 44 and 311.]

[Footnote 384: See below, § 327, and article 4 of Convention XIII. of the Second Peace Conference.]

Whereas the ordinary Prize Courts are national courts, Convention XII.--as yet unratified--of the Second Peace Conference, provides for the establishment of an International[385] Prize Court at the Hague, which, in certain matters, is to serve as a Court of Appeal in prize cases. In these cases jurisdiction in matters of prize is exercised, in the first instance, by the Prize Courts of belligerents (article 2), but, according to article 6, the national Prize Courts may not deal with any case in which there is a second appeal; since such cases necessarily come before the International Prize Court at the second appeal. This means that belligerents, besides Prize Courts of the first instance, may set up a Prize Court of Appeal, but they may not set up a second Court of Appeal above the first, except in cases in which the International Prize Court has no jurisdiction.

[Footnote 385: See above, vol. I. § 476_a_, and below, §§ 442-447.]

It must be specially observed that the proposed International Prize Court--see articles 3 and 4--is, in the main, a Court to decide between belligerents and neutrals, and not between two belligerents.

[Sidenote: Conduct of Prize to port of Prize Court.]

§ 193. As soon as a vessel is seized she must be conducted to a port where a Prize Court is sitting. As a rule the officer and the crew sent on board the prize by the captor will navigate the prize to the port. This officer can ask the master and crew of the vessel to assist him, but, if they refuse, they may not be compelled thereto. The captor need not accompany the prize to the port. In the exceptional case, however, where an officer and crew cannot be sent on board and the captured vessel is ordered to lower her flag and to steer according to orders, the captor must conduct the prize to the port. To which port a prize is to be taken is not for International Law to determine; the latter says only that the prize must be taken straight to a port of a Prize Court, and only in case of distress or necessity is delay allowed. If the neutral State concerned gives permission,[386] the prize may, in case of distress or in case she is in such bad condition as prevents her from being taken to a port of a Prize Court, be taken to a near neutral port, and, if admitted, the capturing man-of-war as well as the prize enjoy there the privilege of exterritoriality. But as soon as circumstances allow, the prize must be conducted from the neutral port to that of the Prize Court, and only if the condition of the prize does not at all allow this, may the Prize Court give its verdict in the absence of the prize after the ship papers of the prize and witnesses have been produced before it.

[Footnote 386: See below, § 328, and articles 21-23 of Convention XIII. of the Second Peace Conference.]

The whole of the crew of the prize are, as a rule, to be kept on board and to be brought before the Prize Court. But if this is impracticable, several important members of the crew, such as the master, mate, or supercargo, must be kept on board, whereas the others may be removed and forwarded to the port of the Prize Court by other means of transport. The whole of the cargo is, as a rule, also to remain on board the prize. But if the whole or part of the cargo is in a condition which prevents it from being sent to the port of the Prize Court, it may, according to the needs of the case, either be destroyed or sold in the nearest port, and in the latter case an account of the sale has to be sent to the Prize Court. All neutral goods amongst the cargo are also to be taken to the port of adjudication, although they have now, according to the Declaration of Paris, to be restored to their neutral owners. But if such neutral goods are not in a condition to be taken to the port of adjudication, they may likewise be sold or destroyed, as the case may require.

[Sidenote: Destruction of Prize.]

§ 194. Since through adjudication by the Prize Courts the ownership of captured private enemy vessels becomes finally transferred to the belligerent whose forces made the capture, it is evident that after transfer the captured vessel as well as her cargo may be destroyed. On the other hand, it is likewise evident that, since a verdict of a Prize Court is necessary before the appropriation of the prize becomes final, a captured merchantman must not as a rule be destroyed instead of being conducted to the port of a Prize Court. There are, however, exceptions to the rule, but no unanimity exists in theory or practice as regards those exceptions. Whereas some[387] consider the destruction of a prize allowable only in case of imperative necessity, others[388] allow it in nearly every case of convenience. Thus, the Government of the United States of America, on the outbreak of war with England in 1812, instructed the commanders of her vessels to destroy at once all captures, the very valuable excepted, because a single cruiser, however successful, could man a few prizes only, but by destroying each capture would be able to continue capturing, and thereby constantly diminish the enemy merchant fleet.[389] During the Civil War in America the cruisers of the Southern Confederated States destroyed all enemy prizes because there was no port open for them to bring prizes to. And during the Russo-Japanese War, Russian cruisers destroyed twenty-one captured Japanese merchantmen.[390] According to British practice,[391] the captor is allowed to destroy the prize in only two cases--namely, first, when the prize is in such a condition as prevents her from being sent to any port of adjudication; and, secondly, when the capturing vessel is unable to spare a prize crew to navigate the prize into such a port. The Règlement international des prises maritimes of the Institute of International Law enumerates in § 50 five cases in which destruction of the capture is allowed--namely (1) when the condition of the vessel and the weather make it impossible to keep the prize afloat; (2) when the vessel navigates so slowly that she cannot follow the captor and is therefore exposed to an easy recapture by the enemy; (3) when the approach of a superior enemy force creates the fear that the prize might be recaptured by the enemy; (4) when the captor cannot spare a prize crew; (5) when the port of adjudication to which the prize might be taken is too far from the spot where the capture was made. Be that as it may,[392] in every case of destruction of the vessel the captor must remove crew, ship papers, and, if possible, the cargo, before the destruction of the prize, and must afterwards send crew, papers, and cargo to a port of a Prize Court for the purpose of satisfying the latter that both the capture and the destruction were lawful.

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

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

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

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

[Footnote 391: The Actaeon (1815), 2 Dod. 48; the Felicity (1819), 2 Dod. 381; the Leucade (1855), Spinks, 217. See also Holland, Prize Law, §§ 303-304.]

[Footnote 392: The whole matter is thoroughly discussed by Boeck, Nos. 268-285; Dupuis, Nos. 262-268; and Calvo, V. §§ 3028-3034. As regards destruction of a neutral prize, see below, § 431.]

But if destruction of a captured enemy merchantman can as an exception be lawful, the question as to indemnities to be paid to the neutral owners of goods carried by the destroyed vessel requires attention. It seems to be obvious that, if the destruction of the vessel herself was lawful, and if it was not possible to remove her cargo, no indemnities need be paid. An illustrative case happened during the Franco-German War. On October 21, 1870, the French cruiser Dessaix seized two German merchantmen, the Ludwig and the Vorwärts, but burned them because she could not spare a prize crew to navigate the prizes into a French port. The neutral owners of part of the cargo claimed indemnities, but the French Conseil d'État refused to grant indemnities on the ground that the action of the captor was lawful.[393]

[Footnote 393: See Boeck, No. 146; Barboux, p. 153; Calvo, V. § 3033; Dupuis, No. 262; Hall, § 269. Should the International Prize Court at the Hague be established, article 3 of Convention XII. of the Second Peace Conference would enable the owners of neutral goods destroyed with the destroyed enemy merchantmen that carried them to bring the question as to whether they may claim damages before this Court.]

[Sidenote: Ransom of Prize.]

§ 195. Although prizes have as a rule to be brought before a Prize Court, International Law nevertheless does not forbid the ransoming of the captured vessel either directly after the capture or after she has been conducted to the port of a Prize Court, but before the Court has given its verdict. However, the practice of accepting and paying ransom, which grew up in the seventeenth century, is in many countries now prohibited by Municipal Law. Thus, for instance, Great Britain by section 45 of the Naval Prize Act, 1864, prohibits ransoming except in such cases as may be specially provided for by an Order of the King in Council.[394] Where ransom is accepted, a contract of ransom is entered into by the captor and the master of the captured vessel; the latter gives a so-called ransom bill to the former, in which he promises the amount of the ransom. He is given a copy of the ransom bill for the purpose of a safe-conduct to protect his vessel from again being captured, under the condition that he keeps the course to such port as is agreed upon in the ransom bill. To secure the payment of ransom, an officer of the captured vessel can be detained as hostage, otherwise the whole of the crew is to be liberated with the vessel, ransom being an equivalent for both the restoration of the prize and the release of her crew from captivity. So long as the ransom bill is not paid, the hostage can be kept in captivity. But it is exclusively a matter for the Municipal Law of the State concerned to determine whether or no the captor can sue upon the ransom bill, if the ransom is not voluntarily paid.[395] Should the capturing vessel, with the hostage or the ransom bill on board, be captured herself and thus become a prize of the enemy, the hostage is liberated, the ransom bill loses its effect, and need not be paid.[396]

[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as follows:--

(1) His Majesty in Council may, in relation to any war, make such orders as may seem expedient according to circumstances for prohibiting or allowing, wholly or in certain cases or subject to any conditions or regulations or otherwise as may from time to time seem meet, the ransoming or the entering into any contract or agreement for the ransoming of any ship or goods belonging to any of His Majesty's subjects, and taken as prize by any of His Majesty's enemies.

(2) Any contract or agreement entered into, and any bill, bond, or other security given for ransom of any ship or goods, shall be under the exclusive jurisdiction of the High Court as a Prize Court (subject to appeal to the Supreme Prize Court) and if entered into or given in contravention to any such Order in Council shall be deemed to have been entered into or given for an illegal consideration.

(3) If any person ransoms or enters into any contract or agreement for ransoming any ship or goods, in contravention of any such Order in Council, he shall for every such offence be liable to be proceeded against in the High Court at the suit of His Majesty in his office of Admiralty, and on conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds.]

[Footnote 395: See Hall, § 151, p. 479:--"The English Courts refuse to accept such arrangements (for ransom) from the effect of the rule that the character of an alien enemy carries with it a disability to sue, and compel payment of the debt indirectly through an action brought by the imprisoned hostage for the recovery of his freedom." The American Courts, in contradistinction to the British, recognise ransom bills. See on the one hand, the case of Cornu v. Blackburne (1781), 2 Douglas, 640, Anthon v. Fisher (1782), 2 Douglas, 649 note, the Hoop, 1 C. Rob. 201; and, on the other, Goodrich and De Forest v. Gordon (1818), 15 Johnson, 6.]

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

[Sidenote: Loss of Prize, especially Recapture.]

§ 196. A prize is lost--(1) when the captor intentionally abandons her, (2) when she escapes through being rescued by her own crew, or (3) when she is recaptured. Just as through capture the prize becomes, according to International Law, the property of the belligerent whose forces made the capture, provided a Prize Court confirms the capture, so such property is lost when the prize vessel becomes abandoned, or escapes, or is recaptured. And it seems to be obvious, and everywhere recognised by Municipal Law, that as soon as a captured enemy merchantman succeeds in escaping, the proprietorship of the former owners revives ipso facto. But the case is different when a captured vessel, whose crew has been taken on board the capturing vessel, is abandoned and afterwards met and taken possession of by a neutral vessel or by a vessel of her home State. It is certainly not for International Law to determine whether or not the original proprietorship revives through abandonment. This is a matter for Municipal Law. The case of recapture is different from escape. Here too Municipal Law has to determine whether or no the former proprietorship revives, since International Law lays down the rule only that recapture takes the vessel out of the property of the enemy and brings her into the property of the belligerent whose forces made the recapture. Municipal Law of the individual States has settled the matter in different ways. Thus, Great Britain, by section 40 of the Naval Prize Act, 1864, enacted that the recaptured vessel, except when she has been used by the captor as a ship of war, shall be restored to her former owner on his paying one-eighth to one-fourth, as the Prize Court may award, of her value as prize salvage, no matter if the recapture was made before or after the enemy Prize Court had confirmed the capture.[397] Other States restore a recaptured vessel only when the recapture was made within twenty-four hours[398] after the capture occurred, or before the captured vessel was conducted into an enemy port, or before she was condemned by an enemy Prize Court.

[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911 simply enacts that British merchantmen or goods captured by the enemy and recaptured by a British man-of-war shall be restored to the owner by a decree of the Prize Court.]

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

[Sidenote: Fate of Prize.]

§ 197. Through being captured and afterwards condemned by a Prize Court, a captured enemy vessel and captured enemy goods become the property of the belligerent whose forces made the capture. What becomes of the prize after the condemnation is not for International, but for Municipal Law to determine. A belligerent can hand the prize over to the officers and crew who made the capture, or can keep her altogether for himself, or can give a share to those who made the capture. As a rule, prizes are sold after they are condemned, and the whole or a part of the net proceeds is distributed among the officers and crew who made the capture. For Great Britain this distribution is regulated by the "Royal Proclamation as to Distribution of Prize Money" of August 3, 1886.[399] There is no doubt whatever that, if a neutral subject buys a captured ship after her condemnation, she may not be attacked and captured by the belligerent to whose subject she formerly belonged, although, if she is bought by an enemy subject and afterwards captured, she might be restored[400] to her former owner.

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

[Footnote 400: See above, § 196.]

[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing under Enemy Flag.]

§ 198. It has been already stated above in § 89 that merchantmen owned by subjects of neutral States but sailing under enemy flag are vested with enemy character. It is, therefore, evident that they may be captured and condemned. As at present no non-littoral State has a maritime flag, vessels belonging to subjects of such States are forced to navigate under the flag of another State,[401] and they are, therefore, in case of war exposed to capture.

[Footnote 401: See above, vol. I. § 261.]

[Sidenote: Effect of Sale of Enemy Vessels during War.]

§ 199. Since enemy vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during the war to a subject of a neutral or to a subject of the belligerent State whose forces seized her, has the effect of excluding her appropriation. It is obvious that, if the question is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. The question of transfer of enemy vessels must, therefore, be regarded as forming part of the larger questions of enemy character and has consequently been treated in detail above, § 91.

[Sidenote: Goods sold by and to Enemy Subjects during War.]

§ 200. If a captured enemy vessel carries goods consigned by enemy subjects to subjects of neutral States, or to subjects of the belligerent whose forces captured the vessel, they may not be appropriated, provided the consignee can prove that he is the owner. As regards such goods found on captured enemy merchantmen as are consigned to enemy subjects but have been sold in transitu to subjects of neutral States, no unanimous practice of the different States is in existence. The subject of goods sold in transitu must--in the same way as the question of transfer of enemy vessels--be considered as forming part of the larger question of enemy character. It has, for this reason, been treated above, § 92.

IV

VIOLENCE AGAINST ENEMY PERSONS

See the literature quoted above at the commencement of § 107. See also Bonfils, Nos. 1273-1273'3.

[Sidenote: Violence against Combatants.]

§ 201. As regards killing and wounding combatants in sea warfare and the means used for the purpose, customary rules of International Law are in existence according to which only those combatants may be killed or wounded who are able and willing to fight or who resist capture. Men disabled by sickness or wounds, or such men as lay down arms and surrender or do not resist capture, must be given quarter, except in a case of imperative necessity or of reprisals. Poison, and such arms, projectiles, and materials as cause unnecessary injury, are prohibited, as is also killing and wounding in a treacherous way.[402] The Declaration of St. Petersburg[403] and the Hague Declaration prohibiting the use of expanding (Dum-Dum)[404] bullets, apply to sea warfare as well as to land warfare, as also do the Hague Declarations concerning projectiles and explosives launched from balloons, and projectiles diffusing asphyxiating or deleterious gases.[405]

[Footnote 402: See the corresponding rules for warfare on land, which are discussed above in §§ 108-110. See also U.S. Naval War Code, article 3.]

[Footnote 403: See above,§ 111.]

[Footnote 404: See above, § 112.]

[Footnote 405: See above, §§ 113 and 114.]

All combatants, and also all officers and members of the crews of captured merchantmen, could formerly[406] be made prisoners of war. According to articles 5 to 7 of Convention XI. of the Second Peace Conference--see above in § 85--such members of the crews as are subjects of neutral States may never be made prisoners of war; but the captain, officers, and members of the crews who are enemy subjects, and, further, the captain and officers who are subjects of neutral States may be made prisoners of war in case they refuse to be released on parole. As soon as such prisoners are landed, their treatment falls under articles 4-20 of the Hague Regulations; but as long as they are on board, the old customary rule of International Law, that prisoners must be treated humanely,[407] and not like convicts, must be complied with. The Hague Convention for the adaptation of the Geneva Convention to sea warfare enacts, however, some particular rules concerning the shipwrecked, the wounded, and the sick who, through falling into the hands of the enemy, become prisoners of war.[408]

[Footnote 406: This was almost generally recognised, but was refused recognition by Count Bismarck during the Franco-German War (see below, § 249) and by some German publicists, as, for instance, Lueder in Holtzendorff, IV. p. 479, note 6.]

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

[Footnote 408: See below, § 205.]

[Sidenote: Violence against Non-combatant Members of Naval Forces.]

§ 202. Just as military forces consist of combatants and non-combatants, so do the naval forces of belligerents. Non-combatants, as, for instance, stokers, surgeons, chaplains, members of the hospital staff, and the like, who do not take part in the fighting, may not be attacked directly and killed or wounded.[409] But they are exposed to all injuries indirectly resulting from attacks on or by their vessels. And they may certainly be made prisoners of war, with the exception of members of the religious, medical, and hospital staff, who are inviolable according to article 10 of the Hague Convention for the adaptation to maritime warfare of the principles of the Geneva Convention.[410]

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

[Footnote 410: See below, § 209.]

[Sidenote: Violence against Enemy Individuals not belonging to the Naval Forces.]

§ 203. Since and so far as enemy individuals on board an attacked or seized enemy vessel who do not belong to the naval forces do not take part in the fighting, they may not directly be attacked and killed or wounded, although they are exposed to all injury indirectly resulting from an attack on or by their vessel. If they are mere private individuals, they may as an exception only and under the same circumstances as private individuals on occupied territory be made prisoners of war.[411] But they are nevertheless, for the time they are on board the captured vessel, under the discipline of the captor. All restrictive measures against them which are necessary are therefore lawful, as are also punishments, in case they do not comply with lawful orders of the commanding officer. If they are enemy officials in important positions,[412] they may be made prisoners of war.

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

[Footnote 412: See above, § 117.]

V

TREATMENT OF WOUNDED AND SHIPWRECKED

Perels, § 37--Pillet, pp. 188-191--Westlake, II. pp. 275-280--Moore, VII. § 1178--Bernsten, § 12--Bonfils, Nos. 1280-1280'9--Pradier-Fodéré, VIII. No. 3209--U.S. Naval War Code, articles 21-29--Ferguson, The Red Cross Alliance at Sea (1871)--Houette, De l'extension des principes de la Convention de Genève aux victimes des guerres maritimes (1892)--Cauwès, L'extension des principes de la Convention de Genève aux guerres maritimes (1899)--Holls, The Peace Conference at the Hague (1900), pp. 120-132--Boidin, pp. 248-262--Dupuis, Guerre, Nos. 82-105--Meurer, II. §§ 74-87--Higgins, pp. 382-394--Lémonon, pp. 526-554--Nippold, II. § 33--Scott, Conferences, pp. 599-614--Takahashi, pp. 375-385--Fauchille in R.G. VI. (1899), pp. 291-302--Bayer, in R.G. VIII. (1901), pp. 225-230--Renault in A.J. II. pp. 295-306--Higgins, War and the Private Citizen (1912), pp. 73-90, and in The Law Quarterly Review, XXVI (1910), pp. 408-414. See also the literature quoted above at the commencement of § 118.

[Sidenote: Adaptation of Geneva Convention to Sea Warfare.]

§ 204. Soon after the ratification of the Geneva Convention the necessity of adapting its principles to naval warfare was generally recognised, and among the non-ratified Additional articles to the Geneva Convention of 1868 were nine which aimed at such an adaptation. But it was not until the Hague Peace Conference in 1899 that an adaptation came into legal existence. This adaptation was contained in the "Convention[413] for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864," which comprised fourteen articles. It has, however, been replaced by the "Convention (X.) for the Adaptation of the Principles of the Geneva Convention to Maritime War," of the Second Hague Peace Conference. This new convention comprises twenty-eight articles and was signed, although with some reservations, by all the Powers represented at the Conference, except Nicaragua which acceded later, and it has already been ratified by most of the signatory Powers. It provides rules concerning the wounded, sick, shipwrecked, and dead; hospital ships; sickbays on men-of-war; the distinctive colour and emblem of hospital ships; neutral vessels taking on board belligerent wounded, sick, or shipwrecked; the religious, medical, and hospital staff of captured ships; the carrying out of the convention, and the prevention of abuses and infractions.

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

[Sidenote: The Wounded, Sick, and Shipwrecked.]

§ 205. Soldiers, sailors, and other persons officially attached to fleets or armies, whatever their nationality, who are taken on board when sick or wounded, must be respected and tended by the captors (article 11). All enemy shipwrecked, sick, or wounded who fall into the power of a belligerent are prisoners of war. It is left to the captor to determine whether they are to be kept on board, or to be sent to a port of his own country, or a neutral port, or even a hostile port; and in the last case such repatriated prisoners must be prevented by their Government from again serving in the war (article 14). The shipwrecked, wounded, or sick, who are landed at a neutral port with the consent of the local authorities, must, unless there is an arrangement to the contrary between the neutral State concerned and the belligerent States, be guarded by the neutral State so as to prevent them from again taking part in the war;[414] the expenses of tending and interning them must be borne by the State to whom they belong (article 15). After each engagement, both belligerents must, so far as military interests permit, take measures to search for the shipwrecked, wounded, and sick, and to ensure them protection against pillage and maltreatment (article 16). Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, a list of the names of the sick and wounded picked up by him; and the belligerents must keep each other informed as to internments and transfers as well as to admissions into hospital and deaths which have occurred amongst the sick and wounded in their hands. And they must collect all objects of personal use, valuables, letters, &c., that are found in the captured ships in order to have them forwarded to the persons concerned by the authorities of their own country (article 17).

[Footnote 414: See below, § 348_a_.]

[Sidenote: Treatment of the Dead.]

§ 205_a_. After each engagement both belligerents must, so far as military interests permit, take measures to ensure the dead protection against pillage and maltreatment, and they must see that the burial, whether by land or sea, or cremation of the dead is preceded by a careful examination of the corpses in order to determine that life is really extinct (article 16). Each belligerent must, as early as possible, send to the authorities of their country, navy, or army, the military identification marks or tokens found on the dead; they must also collect all the objects of personal use, valuables, letters, &c., which have been left by the wounded and sick who die in hospital, in order that they may be forwarded to the persons concerned by the authorities of their own country (article 17).

[Sidenote: Hospital Ships.]

§ 206. Three different kinds of hospital ships must be distinguished--namely, military hospital ships, hospital ships equipped by private individuals or relief societies of the belligerents, and hospital ships equipped by private neutral individuals and neutral relief societies.

(1) Military hospital ships (article 1) are ships constructed or assigned by States specially and solely for the purpose of assisting the wounded, sick, and shipwrecked. Their names must be communicated to the belligerents at the commencement of or during hostilities, and in any case before they are employed. They must be respected by the belligerents, they may not be captured while hostilities last, and they are not on the same footing as men-of-war during their stay in a neutral port.

(2) Hospital ships equipped wholly or in part at the cost of private individuals or officially recognised relief societies of the belligerents must be respected by either belligerent (article 2), and are exempt from capture, provided their home State has given them an official commission and has notified their names to the other belligerent at the commencement of or during hostilities, and in any case before they are employed. They must, further, be furnished with a certificate from the competent authorities declaring that they had been under the latter's control while fitting out and on final departure.

(3) Hospital ships, equipped wholly or in part at the cost of private individuals or officially recognised relief societies of neutral States (article 3), must likewise be respected, and are exempt from capture, provided that they are placed under the control of one of the belligerents, with the previous consent of their own Government and with the authorisation of the belligerent himself, and that the latter has notified their names to his adversary at the commencement of, or during, hostilities, and in any case before they are employed.

According to article 4 all military and other hospital ships must afford relief and assistance to the wounded, sick, and shipwrecked of either belligerent. The respective Governments are prohibited from using these ships for any military purpose. The commanders of these vessels must not in any way hamper the movements of the combatants, and during and after an engagement they act at their own risk and peril. Both belligerents have a right to control and visit all military and other hospital ships, to refuse their assistance, to order them off, to make them take a certain course, to put a commissioner on board, and, lastly, to detain them temporarily, if important circumstances require this. In case a hospital ship receives orders from a belligerent, these orders must, as far as possible, be inscribed in the ship papers.

The protection to which hospital ships are entitled ceases if they are made use of to commit acts harmful to the enemy[415] (article 8). But the fact of the staff being armed for the purpose of maintaining order and defending the wounded and sick, and the fact of the presence of wireless telegraphic apparatus on board, are not sufficient reasons for withdrawing protection.

[Footnote 415: An interesting case of this kind occurred during the Russo-Japanese war. The Aryol (also called the Orel), a hospital ship of the Russian Red Cross Society, was captured, and afterwards condemned by the Prize Court on the following grounds:--(a) For having communicated the orders of the commander-in-chief of the Russian squadron with which she was sailing to other Russian vessels; (b) for carrying, by order of the commander-in-chief of the squadron, in order to take them to Vladivostock, the master and some members of the crew of the British steamship Oldhamia, which had been captured by the Russians; (c) for having been instructed to purchase in Cape Town, or its neighbourhood, 11,000 ft. of conducting wire of good insulation; (d) for having navigated at the head of the squadron in the position usually occupied by reconnoitring vessels.--See Takahashi, pp. 620-625, and Higgins, op. cit. p. 74, and in The Law Quarterly Review, XXVI. (1910), p. 408.]

It must be specially observed that any man-of-war of either belligerent may, according to article 12, demand the surrender of the wounded, sick, or shipwrecked who are on board hospital ships of any kind. According to a reservation by Great Britain, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: Hospital Ships in Neutral Ports.]

§ 206_a_. For the purpose of defining the status of hospital ships when entering neutral ports an International Conference met at the Hague in 1904, where Germany, Austria-Hungary, Belgium, China, Korea, Denmark, Spain, the United States of America, France, Greece, Guatemala, Italy, Japan, Luxemburg, Mexico, Holland, Persia, Portugal, Roumania, Russia, Servia, and Siam, were represented. Great Britain, however, did not take part. The following is the text of the six articles of the Convention signed by all the representatives:--

Article 1.--Hospital ships fulfilling the conditions prescribed in articles 1, 2, and 3 of the Convention concluded at the Hague on July 27, 1899, for the adaptation of the principles of the Geneva Convention of August 22, 1864, to naval warfare shall in time of war be exempt in the ports of the contracting parties from all dues and taxes imposed on vessels for the benefit of the State.

Article 2.--The provision contained in the preceding article shall not prevent the exercise of the right of search and other formalities demanded by the fiscal and other laws in force in the said ports.

Article 3.--The regulation laid down in article 1 is binding only upon the contracting Powers in case of war between two or more of themselves. The said rule shall cease to be obligatory as soon as in a war between any of the contracting Powers a non-contracting Power shall join one of the belligerents.

Article 4.--The present Convention, which bears date of this day and may be signed up to October 1, 1905, by any Power which shall have expressed a wish to do so, shall be ratified as speedily as possible. The ratifications shall be deposited at the Hague. On the deposit of the ratifications, a procès-verbal shall be drawn up, of which a certified copy shall be conveyed by diplomatic channels, after the deposit of each ratification, to all the contracting Powers.

Article 5.--Non-signatory Powers will be allowed to adhere to the present convention after October 1, 1905. For that purpose they will have to make known the fact of their adhesion to the contracting Powers by means of a written notification addressed to the Government of the Netherlands, which will be communicated by that Government to all the other contracting Powers.

Article 6.--In the event of any of the high contracting parties denouncing the present Convention, the denunciation shall only take effect after notification has been made in writing to the Government of the Netherlands and communicated by that Government at once to all the other contracting Powers. Such denunciation shall be effective only in respect of the Power which shall have given notice of it.

[Sidenote: Sick-Bays.]

§ 206_b_. According to article 7, in case of a fight on board a man-of-war, the sick-bays must, as far as possible, be respected and spared. These sick-bays, and the material belonging to them, remain subject to the laws of war; they may not, however, be used for any purpose other than that for which they were originally intended so long as they are required for the wounded and sick. But should the military situation require it, a commander into whose power they have fallen may nevertheless apply them to other purposes, under the condition that he previously makes arrangements for proper accommodation for the wounded and sick on board. The protection to which sick-bays are entitled ceases if they are made use of to commit acts harmful to the enemy (article 8). But the fact that the staff of sick-bays is armed in order to defend the wounded and sick is not sufficient reason for withdrawing protection.

[Sidenote: Distinctive Colour and Emblem of Hospital Ships.]

§ 207. All military hospital ships must be painted white outside with a horizontal band of green about one metre and a half in breadth. Other hospital ships must also be painted white outside, but with a horizontal band of red. The boats and small craft of hospital ships used for hospital work must likewise be painted white. And besides being painted in this distinguishing colour, all military and other hospital ships (article 5) must hoist, together with their national flag, the white flag with a red cross stipulated by the Geneva Convention. If they belong to a neutral State, they must also fly at the main mast the national flag of the belligerent under whose control they are placed. Hospital ships which, under the terms of article 4, are detained by the enemy, must haul down the national flag of the belligerent to whom they belong. All hospital ships which wish to ensure by night the freedom from interference to which they are entitled, must, subject to the assent of the belligerent they are accompanying, take the necessary measures to render their special painting sufficiently plain. According to article 6 the distinguishing signs mentioned in article 5 may only be used, whether in time of peace or war, for protecting or indicating the ships therein mentioned.

Although in this connection the red cross is especially stipulated as the distinctive emblem, there is no objection to the use by non-Christian States, who object to the cross on religious grounds, of another emblem. Thus Turkey reserved the right to use a red crescent, and Persia to use a red sun.

[Sidenote: Neutral Vessels assisting the Wounded, Sick, or Shipwrecked.]

§ 208. A distinction must be made between neutral men-of-war and private vessels assisting the sick, wounded, and shipwrecked.

(1) If men-of-war take on board wounded, sick, or shipwrecked persons, precaution must be taken, so far as possible, that they do not again take part in the operations of war (article 13). Such individuals must not, however, be handed over to the adversary but must be detained till the end of the war.[416]

(2) Neutral merchantmen,[417] yachts, or boats which have of their own accord rescued sick, wounded, or shipwrecked men, or who have taken such men on board at the appeal of the belligerent, must, according to article 9, enjoy special protection and certain immunities. In no case may they be captured for the sole reason of having such persons on board. But, subject to any undertaking that may have been given to them, they remain liable to capture for any violation of neutrality they may have committed.

[Footnote 416: See below, § 348.]

[Footnote 417: See below, § 348_a_.]

It must be specially observed that, according to article 12, any man-of-war of either belligerent may demand from merchant ships, yachts, and boats, whatever the nationality of such vessels, the surrender of the wounded, sick, or shipwrecked who are on board.

According to the reservation of Great Britain, mentioned above in § 206, article 12 is understood "to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part."

[Sidenote: The Religious, Medical, and Hospital Staff.]

§ 209. The religious, medical, and hospital staff of any captured vessel is inviolable, and the members may not be made prisoners of war, but they must continue to discharge their duties while necessary. If they do this, the belligerent into whose hands they have fallen has to give them the same allowances and the same pay as are granted to persons holding the same rank in his own navy. They may leave the ship, when the commander-in-chief considers it possible, and on leaving they are allowed to take with them all surgical articles and instruments which are their private property (article 10).

[Sidenote: Application of Convention X., and Prevention of Abuses.]

§ 209_a_. The provisions of Convention X. are only binding in the case of war between contracting Powers, they cease to be binding the moment a non-contracting Power becomes one of the belligerents (article 18). In the case of operations of war between land and sea forces of belligerents, the provisions of Convention X. only apply to forces on board ship (article 22). The commanders-in-chief of the belligerent fleets must, in accordance with the instructions of their Governments and in conformity with the general principles of the Convention, arrange the details for carrying out the articles of Convention X., as well as for cases not provided for in these articles (article 19). The contracting parties must take the necessary measures to instruct their naval forces, especially the personnel protected by Convention X., in the provisions of the Convention, and to bring these provisions to the notice of the public (article 20). The contracting Powers must, in case their criminal laws are inadequate, enact measures necessary for checking, in time of war, individual acts of pillage or maltreatment of the wounded and sick in the fleet, as well as for punishing, as unjustifiable adoption of military or naval marks, the unauthorised use of the distinctive signs mentioned in article 5 on the part of vessels not protected by the present Convention; they must communicate to each other, through the Dutch Government, the enactments for preventing such acts at the latest within five years of the ratification of Convention X.[418] (article 21).

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

[Sidenote: General Provisions of Convention X.]

§ 209_b_. Convention X. comes into force sixty days after ratification or accession on the part of each Power concerned (article 26). It replaces the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention, but this latter Convention remains in force between such of its contracting parties as do not become parties to Convention X. (article 25). Such non-signatory Powers of Convention X. as are parties to the Geneva Convention of 1906 are free to accede at any time, and a Power desiring to accede must notify its intention in writing to the Dutch Government which must communicate the accession to all the contracting Powers (article 24). Each of the contracting Powers is at any time at liberty to denounce Convention X. by a written notification to the Dutch Government which must immediately communicate the notification to all the other contracting Powers; the denunciation, however, does not take effect until one year after the notification has reached the Dutch Government, and a denunciation only affects the Power making the notification (article 27). A register kept by the Dutch Minister of Foreign Affairs must record the dates of the deposit of ratifications, as well as the dates of accessions or of denunciations; each contracting Power is entitled to have access to this register and to be supplied with duly certified extracts from it (article 28).

VI

ESPIONAGE, TREASON, RUSES

See, besides the literature quoted above at the commencement of §§ 159 and 163, Pradier-Fodéré, VIII. No. 3157, and Bentwich in The Journal of the Society of Comparative Legislation, New Series, X. (1909), pp. 243-249.

[Sidenote: Espionage and Treason.]

§ 210. Espionage[419] and treason do not play as large a part in sea warfare as in land warfare;[420] still they may be made use of by belligerents. But it must be specially observed that, since the Hague Regulations deal only with land warfare, the legal necessity of trying a spy by court-martial according to article 30 of these Regulations does not exist for sea warfare, although such trial by court-martial is advisable.

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

[Footnote 420: See above, §§ 159-162.]

[Sidenote: Ruses.]

§ 211. Ruses are customarily allowed in sea warfare within the same limits as in land warfare, perfidy being excluded. As regards the use of a false flag, it is by most publicists considered perfectly lawful for a man-of-war to use a neutral's or the enemy's flag (1) when chasing an enemy vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action.[421] On the other hand, it is universally agreed that immediately before an attack a vessel must fly her national flag. Halleck (I. p. 568) relates the following instance: In 1783 the Sybille, a French frigate of thirty-eight guns, enticed the British man-of-war Hussar by displaying the British flag and intimating herself to be a distressed prize of a British captor. The Hussar approached to succour her, but the latter at once attacked the Hussar without showing the French flag. She was, however, overpowered and captured, and the commander of the Hussar publicly broke the sword of the commander of the Sybille, whom he justly accused of perfidy, although the French commander was acquitted when subsequently brought to trial by the French Government. Again, Halleck (I. p. 568) relates: In 1813 two merchants of New York carried out a plan for destroying the British man-of-war Ramillies in the following way. A schooner with some casks of flour on deck was expressly laden with several casks of gunpowder having trains leading from a species of gunlock, which, by the action of clockwork, went off at a given time after it had been set. To entice the Ramillies to seize her, the schooner came up, and the Ramillies then sent a boat with thirteen men and a lieutenant to cut her off. Subsequently the crew of the schooner abandoned her and she blew up with the lieutenant and his men on board.

[Footnote 421: The use of a false flag on the part of a belligerent man-of-war is analogous to the use of the enemy flag and the like in land warfare; see above, § 164. British practice--see Holland, Prize Law, § 200--permits the use of false colours. U.S. Naval War Code, article 7, forbids it altogether, whereas as late as 1898, during the war with Spain in consequence of the Cuban insurrection, two American men-of-war made use of the Spanish flag (see Perels, p. 183). And during the war between Turkey and Russia, in 1877, Russian men-of-war in the Black Sea made use of the Italian flag (see Martens, II. § 103, p. 566). The question of the permissibility of the use of a neutral or enemy flag is answered in the affirmative, among others, by Ortolan, II. p. 29; Fiore, III. No. 1340; Perels, § 35, p. 183; Pillet, p. 116; Bonfils, No. 1274; Calvo, IV. 2106; Hall, § 187. See also Pillet in R.G. V. (1898), pp. 444-451. But see the arguments against the use of a false flag in Pradier-Fodéré, VI. No. 2760.]

Vattel (III. § 178) relates the following case of perfidy: In 1755, during war between Great Britain and France, a British man-of-war appeared off Calais, made signals of distress for the purpose of soliciting French vessels to approach to her succour, and seized a sloop and some sailors who came to bring her help. Vattel is himself not certain whether this case is a fact or fiction. But be that as it may, there is no doubt that, if the case be true, it is an example of perfidy, which is not allowed.

VII

REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT

Hall, § 140*--Lawrence, § 204--Westlake, II. pp. 315-318--Moore, VII. §§ 1166-1174--Taylor, § 499--Bonfils, Nos. 1277-1277'1--Despagnet, Nos. 618-618 bis--Fiore, Code, Nos. 1633-1642--Pradier-Fodéré, VIII. Nos. 3153-3154--Nys, III. pp. 430-432--Pillet, p. 117--Perels, § 35, p. 181--Holland, Studies, pp. 96-111--Dupuis, Nos. 67-73, and Guerre, Nos. 42-47--Barclay, Problems, p. 51--Higgins, pp. 352-357--Lémonon, pp. 503-525--Bernsten, § 7, III.--Boidin, pp. 201-215--Nippold, II. § 28--Scott, Conferences, pp. 587-598, and in A.J. II. (1908), pp. 285-294.

[Sidenote: Requisitions and Contributions upon Coast Towns.]

§ 212. No case has to my knowledge occurred in Europe[422] of requisitions or contributions imposed by naval forces upon enemy coast towns. The question whether or not such requisitions and contributions would be lawful became of interest through an article on naval warfare of the future, published in 1882 by the French Admiral Aube in the Revue des Deux Mondes (vol. 50, p. 331). Aube pointed out that one of the tasks of the fleet in sea warfare of the future would be to attack and destroy by bombardment fortified and unfortified military and commercial enemy coast towns, or at least to compel them mercilessly to requisitions and contributions. As during the British naval manoeuvres of 1888 and 1889 imaginary contributions were imposed upon several coast towns, Hall (§ 140*) took into consideration the question under what conditions requisitions and contributions would be lawful in sea warfare. He concluded, after careful consideration and starting from the principles regarding requisitions and contributions in land warfare, that such requisitions and contributions may be levied, provided a force is landed which actually takes possession of the respective coast town and establishes itself there, although only temporarily, until the imposed requisitions and contributions have been complied with; that, however, no requisitions or contributions could be demanded by a single message sent on shore under threatened penalty of bombardment in case of refusal. There is no doubt that Hall's arguments are, logically, correct; but it was not at all certain that the naval Powers would adopt them, since neither the Institute of International Law nor the U.S. Naval War Code had done so.[423] The Second Hague Peace Conference has now settled the matter through the Convention (IX.) concerning bombardment by naval forces in time of war which amongst its thirteen articles includes two--3 and 4--dealing with requisitions and contributions. This Convention has been signed, although with some reservations, by all the Powers represented at the Conference except Spain, China, and Nicaragua, but China and Nicaragua acceded later. Many States have already ratified.

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

[Footnote 423: The Institute of International Law has touched upon the question of requisitions and contributions in sea warfare in article 4, No. 1, of its rules regarding the bombardment of open towns by naval forces; see below, § 213, p. 267. U.S. Naval War Code, article 4, allows "reasonable" requisitions, but no contributions since "ransom" is not allowed.]

According to article 3 undefended ports, towns, villages, dwellings, or other buildings may be bombarded by a naval force, if the local authorities, on a formal summons being made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force concerned. These requisitions must be proportional to the resources of the place; they can only be demanded by the commander of the naval force concerned; they must be paid for in cash, and, if this is not possible for want of sufficient ready money, their receipt must be acknowledged.

As regards contributions, Convention IX. does not directly forbid the demand for them, but article 4 expressly forbids bombardment of undefended places by a naval force on account of non-payment of money contributions; in practice, therefore, the demand for contributions will not occur in naval warfare.

[Sidenote: Bombardment of the Enemy Coast.]

§ 213. There is no doubt whatever that enemy coast towns which are defended may be bombarded by naval forces, acting either independently or in co-operation with a besieging army. But before the Second Peace Conference of 1907 the question was not settled as to whether or not open and undefended coast places might be bombarded by naval forces. The Institute of International Law in 1895, at its meeting at Cambridge, appointed a committee to investigate the matter. The report[424] of this committee, drafted by Professor Holland with the approval of the Dutch General Den Beer Portugael, and presented in 1896 at the meeting at Venice,[425] is of such interest that it is advisable to reproduce here a translation of the following chief parts:--

When the Prince de Joinville recommended in 1844, in case of war, the devastation of the great commercial towns of England, the Duke of Wellington wrote:--"What but the inordinate desire of popularity could have induced a man in his station to write and publish such a production, an invitation and provocation to war, to be carried on in a manner such as has been disclaimed by the civilised portions of mankind?" (Raikes, Correspondence, p. 367). The opinion of the Prince de Joinville has been taken up by Admiral Aube in an article which appeared in the Revue des Deux Mondes in 1882. After having remarked that the ultimate object of war is to inflict the greatest possible damage to the enemy and that "La richesse est le nerf de la guerre," he goes on as follows:--"Tout ce qui frappe l'ennemi dans sa richesse devient non seulement légitime, mais s'impose comme obligatoire. Il faut donc s'attendre à voir les flottes cuirassées, maîtresses de la mer, tourner leur puissance d'attaque et déstruction, à défaut d'adversaires se dérobant à leurs coups, contre toutes les villes du littoral, fortifiées ou non, pacifiques ou guerrières, les incendier, les ruiner, et tout au moins les rançonner sans merci. Cela s'est fait autrefois; cela ne se fait plus; cela se fera encore: Strasbourg et Péronne en sont garants...."

The discussion was opened again in 1888, on the occasion of manoeuvres executed by the British Fleet, the enemy part of which feigned to hold to ransom, under the threat of bombardment, great commercial towns, such as Liverpool, and to cause unnecessary devastation to pleasure towns and bathing-places, such as Folkestone, through throwing bombs. One of your reporters observed in a series of letters addressed to the Times that such acts are contrary to the rules of International Law as well as to the practice of the present century. He maintained that bombardment of an open town ought to be allowed only for the purpose of obtaining requisitions in kind necessary for the enemy fleet and contributions instead of requisitions, further by the way of reprisal, and in case the town defends itself against occupation by enemy troops approaching on land.... Most of the admirals and naval officers of England who took part in the lively correspondence which arose in the Times and other journals during the months of August and September 1880 took up a contrary attitude....

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

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

On the basis of this report the Institute, at the same meeting, adopted a body of rules regarding the bombardment of open towns by naval forces, declaring that the rules of the law of war concerning bombardment are the same in the case of land warfare and sea warfare. Of special interest are articles 4 and 5 of these rules, which run as follows:--

Article 4. In virtue of the general principles above, the bombardment by a naval force of an open town, that is to say one which is not defended by fortifications or by other means of attack or of resistance for immediate defence, or by detached forts situated in proximity, for example of the maximum distance of from four to ten kilometres, is inadmissible except in the following cases:--

(1) For the purpose of obtaining by requisitions or contributions what is necessary for the fleet. These requisitions or contributions must in every case remain within the limits prescribed by articles 56 and 58 of the Manual of the Institute.

(2) For the purpose of destroying sheds, military erections, depôts of war munitions, or of war vessels in a port. Further, an open town which defends itself against the entrance of troops or of disembarked marines can be bombarded for the purpose of protecting the disembarkation of the soldiers and of the marines, if the open town attempts to prevent it, and as an auxiliary measure of war to facilitate the result made by the troops and the disembarked marines, if the town defends itself. Bombardments of which the object is only to exact a ransom are specially forbidden, and, with the stronger reason, those which are intended only to bring about the submission of the country by the destruction, for which there is no other motive, of the peaceful inhabitants or of their property.

Article 5. An open town cannot be exposed to a bombardment for the only reasons:--

(a) That it is the capital of the State or the seat of the Government (but naturally these circumstances do not guarantee it in any way against a bombardment).

(b) That it is actually occupied by troops, or that it is ordinarily the garrison of troops of different arms intended to join the army in time of war.

The First Peace Conference did not settle the matter, but expressed the desire "that the proposal to settle the question of bombardment of ports, towns, and villages by a naval force may be referred to a subsequent Conference for consideration." The Second Peace Conference, however, by Convention IX.--see above, § 212, p. 265--has provided detailed rules concerning all the points in question, and the following is now the law concerning bombardment by naval forces:--

(1) The bombardment of undefended ports, towns, villages, dwellings, or other buildings is under all circumstances and conditions prohibited (article 1). To define the term "undefended," article 1 expressly enacts that "a place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour," but Great Britain, France, Germany, and Japan entered a reservation against this, since they correctly consider such a place to be "defended."

(2) Although undefended places themselves are exempt, nevertheless military works, military or naval establishments, depôts of arms or war material, workshops or plant which could be utilised for the needs of the hostile fleet or army, and men-of-war in the harbour of undefended places may be bombarded. And no responsibility is incurred for any unavoidable damage caused thereby to the undefended place or its inhabitants. As a rule, however, the commander must, before resorting to bombardment of these works, ships, and the like, give warning to the local authorities so that they can destroy the works and vessels themselves. Only if, for military reasons, immediate action is necessary and no delay can be allowed to the enemy, may bombardment be resorted to without previous warning, the commander being compelled to take all due measures in order that the undefended place itself may suffer as little harm as possible (article 2).

The first case in which naval forces acted according to these rules occurred during the Turco-Italian war. On February 25, 1912, Admiral Faravelli, the commander of an Italian squadron, surprised, at dawn, the Turkish gunboat Awni-Illa and a torpedo-boat in the port of Beirut. These vessels were called upon to surrender, they were given until nine o'clock a.m. to comply with the demand, and the demand was communicated to the Governor and the Consular authorities. At nine o'clock the Turkish vessels were again, by signal, summoned to surrender, and as no reply was received, they were fired at and destroyed, but not without first having vigorously answered the fire of the Italians. Shells missing the vessels and bursting on the quay killed and wounded a number of individuals and damaged several buildings. The Turkish Government protested against this procedure as a violation of Convention IX. of the Second Peace Conference, but, provided the official report of Admiral Faravelli corresponds with the facts, the Turkish protest is unfounded.

(3) In case undefended places do not comply with legitimate requisitions, they likewise may be bombarded; see details above, § 212.

(4) In case of bombardments, all necessary steps must be taken to spare buildings devoted to public worship, art, science, or charitable purposes; historical monuments; hospitals, and places where the sick or wounded are collected, provided they are not at the time used for military purposes. To enable the attacking force to carry out this injunction, the privileged buildings, monuments, and places must be indicated by visible signs, which shall consist of large stiff rectangular panels, divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white (article 5). Unless military exigencies render it impossible the commander of an attacking naval force must, before commencing the bombardment, do all in his power to warn the authorities (article 6).

(5) The giving over to pillage of a town or place, even when taken by assault, is forbidden (article 7).

VIII

INTERFERENCE WITH SUBMARINE TELEGRAPH CABLES

Moore, VII. § 1176--Westlake, II. pp. 280-283--Liszt, § 41, III.--Bonfils, No. 1278--Pradier-Fodéré, VI. No. 2772--Fiore, III. No. 1387, and Code, Nos. 1650-1655--Perels, § 35, p. 185--Perdrix, Les câbles sousmarines et leur protection internationale (1902)--Kraemer, Die unterseeischen Telegraphenkabel in Kriegszeiten (1903)--Scholz, Krieg und Seekabel (1904)--Zuculin, I cavi sottomarini e il telegrafo senza fili nel diritto di guerra (1907)--Holland, in Journal de Droit International Privé et de la Jurisprudence comparée (Clunet), XXV. (1898), pp. 648-652, and War, No. 114--Goffin, in The Law Quarterly Review, XV. (1899), pp. 145-154--Bar, in the Archiv für Oeffentliches Recht, XV. (1900), pp. 414-421--Rey, in R.G. VIII. (1901), pp. 681-762--Dupuis, in R.G. X. (1903), pp. 532-547--Nordon in The Law Magazine and Review, XXXII. (1907), pp. 166-188. See also the literature quoted above, vol. I., at the commencement of § 286.

[Sidenote: Uncertainty of Rules concerning Interference with Submarine Telegraph Cables.]

§ 214. As the "International Convention[426] for the Protection of Submarine Telegraph Cables" of 1884 expressly stipulates by article 15 that freedom of action is reserved to belligerents, the question is not settled how far belligerents are entitled to interfere with submarine telegraph cables. The only conventional rule concerning this question is article 54 of the Hague Regulations, inserted by the Second Peace Conference, which enacts that submarine cables connecting occupied enemy territory with a neutral territory shall not be seized or destroyed, and that, if a case of absolute necessity has compelled the occupant to seize or destroy such cable, it must be restored after the conclusion of peace and indemnities paid. There is no rule in existence which deals with other possible cases of seizure and destruction.

[Footnote 426: See above, vol. I. §§ 286 and 287.]

The Institute of International Law has studied the matter and adopted,[427] at its meeting at Brussels in 1902, the following five rules:--

(1) Le câble sousmarin reliant deux territoires neutres est inviolable.

(2) Le câble reliant les territoires de deux belligérants ou deux parties du territoire d'un des belligérants peut être coupé partout, excepté dans la mer territoriale et dans les eaux neutralisées dépendant d'un territoire neutre.

(3) Le câble reliant un territoire neutre au territoire d'un des belligérants ne peut en aucun cas être coupé dans la mer territoriale ou dans les eaux neutralisées dépendant d'un territoire neutre. En haute mer, ce câble ne peut être coupé que s'il y a blocus effectif et dans les limites de la ligne du blocus, sauf rétablissement du câble dans le plus bref délai possible. Le câble peut toujours être coupé sur le territoire et dans la mer territoriale dépendant d'un territoire ennemi jusqu'à d'une distance de trois milles marins de la laisse de basse-marée.

(4) Il est entendu que la liberté de l'État neutre de transmettre des dépêches n'implique pas la faculté d'en user ou d'en permettre l'usage manifestement pour prêter assistance à l'un des belligérants.

(5) En ce qui concerne l'application des règles précédentes, il n'y a de différence à établir ni entre les câbles d'État et les câbles appartenant à des particuliers, ni entre les câbles de propriété ennemie et ceux qui sont de propriété neutre.

[Footnote 427: See Annuaire, XIX. (1902), p. 331.]

The U.S. Naval War Code, article 5, laid down the following rules:--

(1) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.

(2) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy.

(3) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption.[428]

[Footnote 428: It is impossible for a treatise to discuss the details of the absolutely unsettled question as to how far belligerents may interfere with submarine telegraph cables. Readers who take a particular interest in it may be referred to the excellent monograph of Scholz, Krieg und Seekabel (1904), which discusses the matter thoroughly and ably.]

V. NON-HOSTILE RELATIONS OF BELLIGERENTS

I

ON NON-HOSTILE RELATIONS IN GENERAL BETWEEN BELLIGERENTS

Grotius, III. c. 19--Pufendorf, VIII. c. 7, §§ 1-2--Bynkershoek, Quaest. jur. publ. I. c. 1--Vattel, III. §§ 174-175--Hall, § 189--Lawrence, § 210--Phillimore, III. § 97--Halleck, I. pp. 310-311--Taylor, § 508--Wheaton, § 399--Bluntschli, § 679--Heffter, § 141--Lueder in Holtzendorff, IV. pp. 525-527--Ullmann, § 185--Bonfils, Nos. 1237-1238--Despagnet, No. 555--Pradier-Fodéré, VII. Nos. 2882-2887--Rivier, II. p. 367--Calvo, IV. §§ 2411-2412--Fiore, III. No. 1482, and Code, Nos. 1721-1723--Martens, II. § 127--Longuet, §§ 134-135--Mérignhac, pp. 218-220--Pillet, pp. 355-356--Kriegsbrauch, p. 38--Land Warfare, §§ 221-223--Emanuel, Les conventions militaires dans la guerre continentale (1904).

[Sidenote: Fides etiam hosti servanda.]

§ 215. Although the outbreak of war between States as a rule brings non-hostile intercourse to an end, necessity of circumstances, convenience, humanity, and other factors call, or may call, some kinds of non-hostile relations of belligerents into existence. And it is a universally recognised principle of International Law that, where such relations arise, belligerents must carry them out in good faith. Fides etiam hosti servanda is a rule which was adhered to in antiquity, when no International Law in the modern sense of the term existed. But it had then a religious and moral sanction only. Since in modern times war is not a condition of anarchy and lawlessness between belligerents, but a contention in many respects regulated, restricted, and modified by law, it is obvious that, where non-hostile relations between belligerents occur, they are protected by law. Fides etiam hosti servanda is, therefore, a principle which nowadays enjoys as well a legal as a religious and moral sanction.

[Sidenote: Different kinds of Non-hostile Relations.]

§ 216. As through the outbreak of war all diplomatic intercourse and other non-hostile relations come to an end, it is obvious that non-hostile relations between belligerents must originate either from special rules of International Law or from special agreements between the belligerents.

No special rules of International Law which demanded non-hostile relations between belligerents existed in former times, but of late a few rules of this kind have arisen. Thus, for instance, release on parole[429] of prisoners of war creates an obligation on the part of the enemy not to re-admit the individuals concerned into the forces while the war lasts. And, to give another example, by article 4 of the Geneva Convention of 1906, and article 14 of the Hague Regulations--see also article 17 of Convention X. of the Second Peace Conference--it is the duty of either belligerent to return to the enemy, by his prisoner-of-war bureau, all objects of personal use, letters, jewellery, and the like found on the battlefield or left by those who died in hospital.[430] Non-hostile relations of this kind, however, need not be considered in this chapter, since they have already been discussed on several previous pages.

[Footnote 429: See above, § 129.]

[Footnote 430: See above, § 144.]

Non-hostile relations originating from special agreements of belligerents, so-called commercia belli, may either be concluded in time of peace for the purpose of creating certain non-hostile relations between the parties in case war breaks out, or they may be concluded during the actual time of war. Such non-hostile relations are created through passports, safe-conducts, safeguards, flags of truce, cartels, capitulations, and armistices. Non-hostile relations can also be created by peace negotiations.[431] Each of these non-hostile relations must be discussed separately.

[Footnote 431: See below, § 267.]

[Sidenote: Licences to Trade.]

§ 217. Several writers[432] speak of non-hostile relations between belligerents created by licences to trade granted by a belligerent to enemy subjects either within certain limits or generally. It has been explained above, in § 101, that it is for Municipal Law to determine whether or not through the outbreak of war all trade and the like is prohibited between the subjects of belligerents. If the Municipal Law of one or both belligerents does contain such a prohibition, it is of course within the discretion of one or both of them to grant exceptional licences to trade to their own or the other belligerent's subjects, and such licences naturally include certain privileges. Thus, for instance, if a belligerent allows enemy subjects to trade with his own subjects, enemy merchantmen engaged in such trade are exempt from capture and appropriation by the grantor. Yet it is not International Law which creates this exemption, but the very licence to trade granted by the belligerent and revocable at any moment; and no non-hostile international relations between the belligerents themselves originate from such licences. The matter would be different if, either in time of peace for the time of war, or, during war, the belligerents agreed to allow certain trade between their subjects; but non-hostile relations originating from such an agreement would not be relations arising from a licence to trade, but from a cartel.[433]

[Footnote 432: See, for instance, Hall, § 196; Halleck, II. pp. 343-363; Lawrence, § 214; Manning, p. 168; Taylor, § 512; Wheaton, §§ 409-410; Fiore, III. No. 1500; Pradier-Fodéré, VII. No. 2938.]

[Footnote 433: See below, § 224.]

II

PASSPORTS, SAFE-CONDUCTS, SAFEGUARDS

Grotius, III. c. 21, §§ 14-22--Vattel, III. §§ 265-277--Hall, §§ 191 and 195--Lawrence, § 213--Phillimore, III. §§ 98-102--Halleck, II. pp. 323-328--Taylor, § 511--Wheaton, § 408--Moore, VII. §§ 1158-1159--Bluntschli, §§ 675-678--Heffter, § 142--Lueder in Holtzendorff, IV. pp. 525-527--Ullmann, § 185--Bonfils, Nos. 1246-1247--Despagnet, Nos. 558-561--Pradier-Fodéré, VII. Nos. 2884, 2932-2938--Nys, III. pp. 504-505--Calvo, IV. §§ 2413-2418--Fiore, III. No. 1499, and Code, Nos. 1742-1749--Longuet, §§ 142-143--Mérignhac, pp. 239-240--Pillet, pp. 359-360--Kriegsbrauch, p. 41--Holland, War, No. 101--_Land Warfare_, §§ 326-337.

[Sidenote: Passports and Safe-conducts.]

§ 218. Belligerents on occasions arrange between themselves that passports and safe-conducts shall be given to certain of each other's subjects. Passports are written permissions given by a belligerent to enemy subjects, or others, allowing them to travel within that belligerent's territory or enemy territory occupied by him. Safe-conducts are written permissions given by a belligerent to enemy subjects, or others, allowing them to proceed to a particular place for a defined object, for instance, to a besieged town for conducting certain negotiations; but safe-conducts may also be given for goods, and they then comprise permission to carry such goods without molestation to a certain place. Passports as well as safe-conducts make the grantee inviolable so long and in so far as he complies with the conditions specially imposed upon him or made necessary by the circumstances of the special case. Passports and safe-conducts are not transferable, and they may be granted to enemy subjects for a limited or an unlimited period; in the former case their validity ceases with the expiration of the period. Both may be withdrawn, not only when the grantee abuses the protection, but also for military expediency. It must, however, be specially observed that passports and safe-conducts are only a matter of International Law when the granting of them has been arranged between the belligerents or their responsible commanders, or between belligerents and neutral Powers. If they are granted without such an arrangement, unilaterally on the part of one of the belligerents, they fall outside the scope of International Law.[434]

[Footnote 434: The distinction between passports and the like arranged between the belligerents to be granted, on the one hand, and, on the other, such as are granted unilaterally, would seem to be necessary, although it is not generally made.]

[Sidenote: Safeguards.]

§ 219. Belligerents on occasions arrange between themselves that they shall grant protection to certain of each other's subjects or property against their own forces in the form of safeguards, of which there are two kinds. One consists in a written order given to an enemy subject or left with enemy property and addressed to the commander of armed forces of the grantor, in which the former is charged with the protection of the respective individual or property, and by which both become inviolable. The other kind of safeguard is given by detailing one or more soldiers to accompany enemy subjects or to guard the spot where certain enemy property is, for the purpose of protection. Soldiers on this duty are inviolable on the part of the other belligerent; they must neither be attacked nor made prisoners, and they must, on falling into the hands of the enemy, be fed, well kept, and eventually safely sent back to their corps. As in the case of passports and safe-conducts, it must be specially observed that safeguards are only a matter of International Law when the granting of them has been arranged by the belligerents, and not otherwise; except in the case of the safeguards mentioned by article 8, No. 2, of the Geneva Convention of 1906, who, according to articles 9 and 12 of that Convention, are inviolable.

III

FLAGS OF TRUCE

Hall, § 190--Lawrence, § 211--Westlake, II. p. 81--Moore, VII. § 1157--Phillimore, III. § 115--Halleck, II. pp. 333, 334--Taylor, § 510--Bluntschli, §§ 681-684--Heffter, § 126--Lueder in Holtzendorff, IV. pp. 421-423--Ullmann, § 180--Bonfils, Nos. 1239-1245--Despagnet, Nos. 556-557--Pradier-Fodéré, VII. Nos. 2927-2931--Rivier, II. pp. 279-280--Calvo, IV. §§ 2430-2432--Fiore, III. No. 1378, and Code, Nos. 1495-1500--Martens, II. § 127--Longuet, §§ 136-138--Mérignhac, pp. 220-225--Pillet, pp. 356-358--Zorn, pp. 195-199--Meurer, II. §§ 39-40--Bordwell, p. 293--Spaight, pp. 216-231--Kriegsbrauch, pp. 26-29--Holland, War, Nos. 88-91--Land Warfare, §§ 224-255.

[Sidenote: Meaning of Flags of Truce.]

§ 220. Although the outbreak of war brings all negotiations between belligerents to an end, and although no negotiations are as a rule conducted during war, certain circumstances and conditions make it necessary or convenient for the armed forces of belligerents to enter into negotiations with each other for various purposes. Since time immemorial a white flag has been used as a symbol by an armed force wishing to negotiate with the enemy, and always and everywhere it has been considered a duty of the enemy to respect this symbol. In land warfare the flag of truce is made use of in the following manner.[435] An individual--soldier or civilian--charged by his force with the task of negotiating with the enemy, approaches the latter either carrying the flag himself, or accompanied by a flag-bearer and, often, also by a drummer, a bugler, or a trumpeter, and an interpreter. In sea warfare the individual charged with the task of negotiating approaches the enemy in a boat flying the white flag. The Hague Regulations have now by articles 32 to 34 enacted most of the customary rules of International Law regarding flags of truce without adding any new rule. These rules are the same for land warfare as for sea warfare, although their validity for land warfare is now grounded on the Hague Regulations, whereas their validity for sea warfare is still based on custom only.

[Footnote 435: See Hague Regulations, article 32.]

[Sidenote: Treatment of Unadmitted Flag-bearers.]

§ 221. As a commander of an armed force is not, according to article 33 of the Hague Regulations, compelled to receive a bearer of a flag of truce, a flag-bearer who makes his appearance may at once be signalled to withdraw. Yet even then he is inviolable from the time he displays the flag to the end of the time necessary for withdrawal. During this time he may neither be intentionally attacked nor made prisoner. However, an armed force in battle is not obliged to stop its military operations on account of the approach of an enemy flag-bearer who has been signalled to withdraw. Although the latter may not be fired upon intentionally, should he be wounded or killed accidentally, during the battle, no responsibility or moral blame would rest upon the belligerent concerned. In former times the commander of an armed force could inform the enemy that, within a certain defined or indefinite period, he would under no circumstances or conditions receive a flag-bearer; if, in spite of such notice, a flag-bearer approached, he did not enjoy any privilege, and he could be attacked and made prisoner like any other member of the enemy forces. But this rule is now obsolete, and its place is taken by the rule that a commander must never, except in a case of reprisals, declare beforehand, even only for a specified period, that he will not receive a bearer of a flag of truce.[436]

[Footnote 436: This becomes quite apparent from the discussion of the subject at the First Peace Conference; see Martens, N.R.G. 2nd Ser. XXVI. p. 465; and Land Warfare, § 234.]

[Sidenote: Treatment of Admitted Flag-bearers.]

§ 222. Bearers of flags of truce and their parties, when admitted by the other side, must be granted the privilege of inviolability. They may neither be attacked nor taken prisoners, and they must be allowed to return safely in due time to their own lines. On the other hand, the forces admitting enemy flag-bearers need not allow them to acquire information about the receiving forces and to carry it back to their own corps. Flag-bearers and their parties may, therefore, be blindfolded by the receiving forces, or be conducted by roundabout ways, or be prevented from entering into communication with individuals other than those who confer officially with them, and they may even temporarily be prevented from returning till a certain military operation of which they have obtained information is carried out. Article 33 of the Hague Regulations specifically enacts that a commander to whom a flag of truce is sent "may take all steps necessary to prevent the envoy taking advantage of his mission to obtain information." Bearers of flags of truce are not, however, prevented from reporting to their corps any information they have gained by observation in passing through the enemy lines and in communicating with enemy individuals. But they are not allowed to sketch maps of defences and positions, to gather information secretly and surreptitiously, to provoke or to commit treacherous acts, and the like. If nevertheless they do any of these acts, they may be court-martialed. Articles 33 and 34 of the Hague Regulations specifically enact that a flag-bearer may temporarily be detained in case he abuses his mission for the purpose of obtaining information, and that he loses all privileges of inviolability "if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery." Bearers of white flags and their party, who approach the enemy and are received, must carry[437] some authorisation with them to show that they are charged with the task of entering into negotiations (article 32), otherwise they may be detained as prisoners, since it is his mission and not the white flag itself which protects the flag-bearer. This mission protects every one who is charged with it, notwithstanding his position in his corps and his status as a civilian or a soldier, but it does not protect a deserter. The latter may be detained, court-martialed, and punished, notice being given to his principal of the reason of punishment.[438]

[Footnote 437: Article 32 of the Hague Regulations confirms this customary rule by speaking of an individual who is "authorised" by one of the belligerents to enter into communication with the other.]

[Footnote 438: See Hall, § 190.]

[Sidenote: Abuse of Flag of Truce.]

§ 223. Abuse of his mission by an authorised flag-bearer must be distinguished from an abuse of the flag of truce itself. Such abuse is possible in two different forms:--

(1) The force which sends an authorised flag-bearer to the enemy has to take up a corresponding attitude; the ranks which the flag-bearer leaves being obliged to halt and to cease fire. Now it constitutes an abuse of the flag of truce if such attitude corresponding with the sending of a flag of truce is intentionally not taken up by the sending force. The case is even worse when a flag-bearer is intentionally sent on a feigned mission in order that military operations may be carried out by the sender under the protection due from the enemy to the flag-bearer and his party.

(2) The second form of a possible abuse appears in the case in which a white flag is made use of for the purpose of making the enemy believe that a flag of truce is about to be sent, although it is not sent, and of carrying out operations under the protection granted by the enemy to this pretended flag of truce.

It need hardly be specially mentioned that both forms of abuse are gross perfidy and may be met with reprisals, or with punishment of the offenders in case they fall into the hands of the enemy. The following case of abuse is related by Sir Sherston Baker in Halleck (II. p. 315):--"On July 12, 1882, while the British fleet was lying off Alexandria, in support of the authority of the Khedive of Egypt, and the rebels under Arabi Pasha were being driven to great straits, a rebel boat, carrying a white flag of truce, was observed approaching H.M.S. Invincible from the harbour, whereupon H.M. ships Temeraire and Inflexible, which had just commenced firing, were ordered to suspend fire. So soon as the firing ceased, the boat, instead of going to the Invincible, returned to the harbour. A flag of truce was simultaneously hoisted by the rebels on the Ras-el-Tin fort. These deceits gave the rebels time to leave the works and to retire through the town, abandoning the forts, and withdrawing the whole of their garrison under the flag of truce."

IV

CARTELS

Grotius, III. c. 21, §§ 23-30--Vattel, III. §§ 278-286--Hall, § 193--Lawrence, § 212--Westlake, II. p. 139--Phillimore, III. §§ 111-112--Halleck, II. pp. 326-329--Taylor, § 599--Bluntschli, §§ 679-680--Heffter, § 142--Lueder in Holtzendorff, IV. pp. 525-529--Ullmann, § 185--Bonfils, Nos. 827 and 1280--Despagnet, No. 658--Pradier-Fodéré, VII. Nos. 2832-2837, 2888--Rivier, II. p. 360--Nys, III. pp. 521-525--Calvo, IV. §§ 2419-2429--Longuet, §§ 140, 141--Pillet, p. 359--Kriegsbrauch, p. 38--Holland, War, No. 100, and Prize Law, §§ 32-35--Land Warfare, §§ 338-339.

[Sidenote: Definition and Purpose of Cartels.]

§ 224. Cartels are conventions between belligerents concluded for the purpose of permitting certain kinds of non-hostile intercourse between one another such as would otherwise be prevented by the condition of war. Cartels may be concluded during peace in anticipation of war, or during the time of war, and they may provide for numerous purposes. Thus, communication by post, telegraph, telephone, and railway, which would otherwise not take place, can be arranged by cartels, as can also the exchange of prisoners, or a certain treatment of wounded, and the like. Thus, further, intercourse between each other's subjects through trade[439] can, either with or without limits, be agreed upon by belligerents. All rights and duties originating from cartels must be complied with in the same manner and good faith as rights and duties arising from other treaties.

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

[Sidenote: Cartel Ships.]

§ 225. Cartel ships[440] are vessels of belligerents which are commissioned for the carriage by sea of exchanged prisoners from the enemy country to their own country, or for the carriage of official communications to and from the enemy. Custom has sanctioned the following rules regarding these cartel ships for the purpose of securing protection for them on the one hand, and, on the other, their exclusive employment as a means for the exchange of prisoners: Cartel ships must not do any trade or carry any cargo or despatches;[441] they are especially not allowed to carry ammunition or instruments of war, except one gun for firing signals. They have to be furnished with a document from an official belonging to the home State of the prisoners and stationed in the country of the enemy declaring that they are commissioned as cartel ships. They are under the protection of both belligerents and may neither be seized nor appropriated. They enjoy this protection not only when actually carrying exchanged prisoners or official communications, but also on their way home after such carriage and on their way to fetch prisoners or official communications.[442] They lose the protection at once, and may consequently be seized and eventually be appropriated, in case they do not comply, either with the general rules regarding cartel ships, or with the special conditions imposed upon them.

[Footnote 440: See above, § 190.]

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

[Footnote 442: The Daifje (1800), 3 C. Rob. 139; the La Gloire (1804), 5 C. Rob. 192.]

V

CAPITULATIONS

Grotius, III. c. 22, § 9--Vattel, III. §§ 261-264--Hall, § 194--Lawrence, § 215--Westlake, II. p. 81--Phillimore, III. §§ 122-127--Halleck, II. pp. 319-322--Taylor, §§ 514-516--Wheaton, § 405--Moore, VII. § 1160--Bluntschli, §§ 697-699--Heffter, § 142--Lueder in Holtzendorff, IV. p. 527--Ullmann, § 185--Bonfils, Nos. 1259-1267--Despagnet, No. 562--Pradier-Fodéré, VII. Nos. 2917-2926--Rivier, II. pp. 361-362--Nys, III. pp. 514-517--Calvo, IV. §§ 2450-2452--Fiore, III. Nos. 1495-1497, and Code, Nos. 1733-1740--Martens, II. § 127--Longuet, §§ 151-154--Mérignhac, pp. 225-230--Pillet, pp. 361-364--Bordwell, p. 294--Meurer, II. §§ 41-42--Spaight, pp. 249-259--Kriegsbrauch, pp. 38-41--Holland, War, No. 92--Land Warfare, §§ 301-325.

[Sidenote: Character and Purpose of Capitulations.]

§ 226. Capitulations are conventions between armed forces of belligerents stipulating the terms of surrender of fortresses and other defended places, or of men-of-war, or of troops. It is, therefore, necessary to distinguish between a simple and a stipulated surrender. If one or more soldiers lay down their arms and surrender, or if a fortress or a man-of-war surrenders without making any terms whatever, there is no capitulation, for capitulation is a convention stipulating the terms of surrender.

Capitulations are military conventions only and exclusively; they must not, therefore, contain arrangements other than those of a local and military character concerning the surrendering forces, places, or ships. If they do contain such arrangements, the latter are not valid, unless they are ratified by the political authorities of both belligerents.[443] The surrender of a certain place or force may, of course, be arranged by some convention containing other than military stipulations, but then such surrender would not originate from a capitulation. And just as is their character, so the purpose of capitulations is merely military--namely, the abandonment of a hopeless struggle and resistance which would only involve useless loss of life on the part of a hopelessly beset force. Therefore, whatever may be the indirect consequences of a certain capitulation, its direct consequences have nothing to do with the war at large, but are local only and concern the surrendering force exclusively.

[Footnote 443: See Phillimore, III. § 123, who discusses the promise of Lord William Bentinck to Genoa, in 1814, regarding its independence, which was disowned by the British Government. Phillimore himself disapproves of the attitude of Great Britain, and so do some foreign publicists, as, for instance, Despagnet (No. 562); but the rule that capitulations are military conventions, and that, therefore, such stipulations are not valid as are not of a local military character, is indubitable.]

[Sidenote: Contents of Capitulations.]

§ 227. If special conditions are not agreed upon in a capitulation, it is concluded under the obvious condition that the surrendering force become prisoners of war, and that all war material and other public property in their possession or within the surrendering place or ship are surrendered in the condition they were at the time when the signature was given to the capitulation. Nothing prevents a force fearing surrender from destroying their provisions, munitions, their arms and other instruments of war which, when falling into the hands of the enemy, would be useful to him. Again, nothing prevents a commander, even after negotiations regarding surrender have begun, from destroying such articles. But when once a capitulation has been signed,[444] such destruction is no longer lawful, and, if carried out, constitutes perfidy which may be punished by the other party as a war crime.

[Footnote 444: When, during the Russo-Japanese War, in January 1905, General Stoessel, the Commander of Port Arthur, had fortifications blown up and vessels sunk, during negotiations for surrender, but before the capitulation was signed, the Press undeservedly accused him of perfidy. U.S. Naval War Code, article 52, enacted the right principle, that "after agreeing upon or signing a capitulation, the capitulator must neither injure nor destroy the vessels, property, or stores in his possession that he is to deliver up, unless the right to do so is expressly reserved to him in the agreement or capitulation."]

But special conditions may be agreed upon between the forces concerned, and they must then be faithfully adhered to by both parties. The only rule which article 35 of the Hague Regulations enacts regarding capitulations is that the latter must be in accordance with the demands of military honour, and that, when once settled, they must be scrupulously observed. It is instructive to give some instances of possible conditions:--A condition of a capitulation may be the provision that the convention shall be valid only if within a certain period relief troops are not approaching. Provision may, further, be made that the surrendering forces shall not in every detail be treated like ordinary prisoners of war. Thus it may be stipulated that the officers or even the soldiers shall be released on parole, that officers remaining prisoners shall retain their swords. Whether or not a belligerent will grant or even offer such specially favourable conditions depends upon the importance of the force, place, or ship to be surrendered, and upon the bravery of the surrendering force. There are even instances of capitulations which stipulated that the surrendering forces should leave the place with full honours, carrying their arms and baggage away and joining their own army unmolested by the enemy through whose lines they had to march.[445]

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

[Sidenote: Form of Capitulations.]

§ 228. No rule of International Law exists regarding the form of capitulations, which may, therefore, be concluded either orally or in writing. But they are usually concluded in writing. Negotiations for surrender, from whichever side they emanate, are usually sent under a flag of truce, but a force which is ready to surrender without special conditions can indicate their intention by hoisting a white flag as a signal that they abandon all and every resistance. The question whether the enemy must at once cease firing and accept the surrender, is to be answered in the affirmative, provided he is certain that the white flag was hoisted by order or with the authority of the commander of the respective force. As, however, such hoisting may well have taken place without the authority of the commander and may, therefore, be disowned by the latter, no duty exists for the enemy to cease his attack until he is convinced that the white flag really indicates the intention of the commander to surrender.

[Sidenote: Competence to conclude Capitulations.]

§ 229. The competence to conclude capitulations is vested in the commanders of the forces opposing each other. Capitulations entered into by unauthorised subordinate officers may, therefore, be disowned by the commander concerned without breach of faith. As regards special conditions of capitulations, it must be particularly noted that the competence of a commander to grant them is limited[446] to those the fulfilment of which depends entirely upon the forces under his command. If he grants conditions against his instructions, his superiors may disown such conditions. And the same is valid if he grants conditions the fulfilment of which depends upon forces other than his own and upon superior officers. The capitulation in El Arish[447] on January 24, 1800, arranged between the French General Kléber and the Turkish Grand Vizier, and approved by the British Admiral, Sir Sidney Smith, presents an illustrative example of this rule. As General Kléber, who was commanding the French army in Egypt, thought that he could not remain in Egypt, he proposed surrender under the condition that his army should be safely transported to France, carrying away their arms and baggage. The Grand Vizier accepted these conditions. The British Admiral, Sir Sidney Smith, who approved of these conditions, was the local commander on the coast of Egypt, but was an officer inferior to Lord Keith, the commander of the British Mediterranean fleet. The latter had, on January 8, 1800, received secret orders, dated December 15, 1799, from the British Government instructing him not to agree to any capitulation which stipulated the free return of Kléber's army to France. Sir Sidney Smith did not, however, receive instructions based on these orders until February 22, 1800, and, therefore, when he approved of the capitulation of El Arish in January, was not aware that he acted against orders of the British Government.[448] Lord Keith, after having received the above orders on January 8, 1800, wrote at once to General Kléber, pointing out that he was not allowed to grant the return of the French army to France.[449] On the other hand, the British Government, after having been informed that Sir Sidney Smith had approved of the return of the French army, sent, on March 28, 1800, fresh orders[450] to Lord Keith, received by him at the end of April, advising him, although Sir Sidney Smith had exceeded his competence, to allow the capitulation to be carried out and the French army to be safely transported to France. Meanwhile, however, circumstances had entirely changed. When General Kléber had on March 17, 1800, received Lord Keith's letter of January 8, he addressed a proclamation,[451] in which Lord Keith's letter was embodied, to his troops asking them to prepare themselves for battle and actually began hostilities again on March 20. He was assassinated on June 14, and General Menou took over the command, and it was the latter who received, on June 20, 1800, information of the changed attitude of the British Government regarding the capitulation of El Arish. Hostilities having been renewed as far back as March, General Menou refused,[452] on his part, to consent to the carrying out of the capitulation, and continued hostilities.

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

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

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

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

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

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

[Footnote 452: Martens, R. VII. p. 16.]

It is obvious that Sir Sidney Smith, in approving the capitulation, granted a condition which did not depend entirely upon himself and the forces under him, but which depended upon Lord Keith and his fleet. Lord Keith as well as the British Government could have lawfully disowned this condition. That the British Government did not do so, but was ready to ratify Sir Sidney Smith's approval, was due to the fact that it did not want to disavow the promises of Sir Sidney Smith, who was not at the time aware of the orders of his Government to Lord Keith. On the other hand, the French Generals were not wrong in resuming hostilities after having received Lord Keith's first information, as thereby the capitulation fell to the ground.

[Sidenote: Violation of Capitulations.]

§ 230. That capitulations must be scrupulously adhered to is an old customary rule, now enacted by article 35 of the Hague Regulations. Any act contrary to a capitulation would constitute an international delinquency if ordered by the belligerent Government concerned, and a war crime if committed without such order. Such violation may be met with reprisals or punishment of the offenders as war criminals.

VI

ARMISTICES

Grotius, III. c. 21, §§ 1-13, c. 22, § 8--Pufendorf, VIII. c. 7, §§ 3-12--Vattel, III. §§ 233-260--Hall, § 192--Lawrence, § 216--Westlake, p. 82--Phillimore, III. §§ 116-121--Halleck, II. pp. 311-319--Moore, VII. § 1162--Taylor, §§ 513 and 516--Wheaton, §§ 400-404--Bluntschli, §§ 688-699--Heffter, § 142--Lueder in Holtzendorff, IV. pp. 531-544--Ullmann, § 186--Bonfils, Nos. 1248-1258--Despagnet, Nos. 563-566--Pradier-Fodéré, VII. Nos. 2889-2918--Rivier, II. pp. 362-368--Nys, III. pp. 518-520--Calvo, IV. §§ 2433-2449--Fiore, III. Nos. 1484-1494, and Code, Nos. 1750-1763--Martens, II. § 127--Longuet, §§ 145-149--Mérignhac, pp. 230-239--Pillet, pp. 364-370--Zorn. pp. 201-206--Bordwell, p. 291--Meurer, II. §§ 43-44--Spaight, pp. 232-248--Kriegsbrauch, pp. 41-44--Holland, War, Nos. 93-99--Land Warfare, §§ 256-300.

[Sidenote: Character and Kinds of Armistices.]

§ 231. Armistices or truces, in the wider sense of the term, are all agreements between belligerent forces for a temporary cessation of hostilities. They are in no wise to be compared with peace, and ought not to be called temporary peace, because the condition of war remains between the belligerents themselves, and between the belligerents and neutrals on all points beyond the mere cessation of hostilities. In spite of such cessation the right of visit and search over neutral merchantmen therefore remains intact, as does likewise the right to capture neutral vessels attempting to break a blockade, and the right to seize contraband of war. However, although all armistices are essentially alike in so far as they consist of cessation of hostilities, three different kinds must be distinguished--namely, (1) suspensions of arms, (2) general armistices, and (3) partial armistices.[453] It must be emphasised that the Hague Regulations deal with armistices in articles 36 to 41 very incompletely, so that the gaps need filling up from old customary rules.

[Footnote 453: Although, as will be seen from the following sections, this distinction is absolutely necessary, it is not made by several publicists. Holland, War, No. 93, even says: "There is no difference of meaning, according to British usage at least, between a 'truce,' an 'armistice,' and a 'suspension of arms.'" Land Warfare, § 256--see in especial note (a)--accepts the distinction as indispensable.]

[Sidenote: Suspensions of Arms.]

§ 232. Suspensions of arms, in contradistinction to armistices in the narrower sense of the term, are such cessations of hostilities as are agreed upon between large or small military or naval forces for a very short time and regarding momentary and local military purposes only. Such purposes may be--collection of the wounded; burial of the dead; negotiation regarding surrender or evacuation of a defended place, or regarding an armistice in the narrower sense of the term; but may also be the creation of a possibility for a commander to ask for and receive instructions from a superior authority,[454] and the like. Suspensions of arms have nothing to do with political purposes, or with the war generally, since they are of momentary and local importance only. They concern exclusively those forces and that spot which are the object of the suspension of arms. The Hague Regulations do not specially mention suspensions of arms, since article 37 speaks of local armistices only, apparently comprising suspensions of arms among local armistices.

[Footnote 454: An instructive example of a suspension of arms for such purposes is furnished by the Convention between the German forces besieging Belfort and the French forces holding this fortress during the Franco-German War, signed on February 13, 1871; see Martens, N.R.G. XIX. p. 646.]

[Sidenote: General Armistices.]

§ 233. A general armistice is such a cessation of hostilities as, in contradistinction to suspensions of arms with their momentary and local military purposes, is agreed upon between belligerents for the whole of their forces and the whole region of war. General armistices are always conventions of vital political importance affecting the whole of the war. They are as a rule, although not necessarily, concluded for a political purpose. It may be that negotiations of peace have ripened so far that the end of the war is in sight and that, therefore, military operations appear superfluous; or that the forces of either belligerent are exhausted and need rest; or that the belligerents have to face domestic difficulties, the settlement of which is more pressing than the continuation of the war; or any other political purpose. Thus article 2 of the general armistice agreed upon at the end of the Franco-German War on January 28, 1871,[455] expressly declared the purpose of the armistice to be the creation of the possibility for the French Government to convoke a Parliamentary Assembly which could determine whether or not the war was to be continued or what conditions of peace should be accepted.

[Footnote 455: Martens, N.R.G. XIX. p. 626.]

It is of importance to note that, for particular reasons, small parts of the belligerent forces and small parts of the theatre of war may be specially excluded without detracting from the general character of the armistice, provided the bulk of the forces and the greater part of the region of war are included. Thus, article 1 of the above-mentioned general armistice at the end of the Franco-German war specially excluded all military operations in the Départements du Doubs, du Jura, de la Côte d'Or, and likewise the siege of Belfort. It should also be mentioned that in the practice of belligerents the terms "suspension of arms" and "general armistice" are sometimes not sufficiently distinguished, but are interchangeable. Thus, for instance, the above-mentioned general armistice between France and Germany is entitled "Convention entre l'Allemagne et la France pour la suspension des hostilités, ..." whereas the different articles of the Convention always speak correctly of an armistice, and whereas, further, an annexe to the Convention signed on January 29 is entitled[456] "Annexe à la Convention d'armistice."

[Footnote 456: Martens, N.R.G. XIX. p. 636.]

[Sidenote: Partial Armistices.]

§ 234. Partial armistices are agreements for cessations of hostilities which are not concluded by belligerents for their whole forces and the whole region of war, but do not merely serve, like suspensions of arms, momentary and local military purposes. They are armistices concluded by belligerents for a considerable part of their forces and front; they are always of political importance affecting the war in general; and they are very often, although they need not be, agreed upon for political purposes. Article 37 of the Hague Regulations apparently includes partial armistices together with suspensions of arms under the term "local" armistices. A partial armistice may be concluded for the military or the naval forces only; for cessation of hostilities in the colonies only; for cessation of hostilities between two of the belligerents in case more than two are parties to the war, and the like. But it is always a condition that a considerable part of the forces and region of war must be included, and that the purpose is not only a momentary one.

[Sidenote: Competence to conclude Armistices.]

§ 235. As regards the competence to conclude armistices, a distinction is necessary between suspensions of arms and general and partial armistices.

(1) Since the character and purpose of suspensions of arms are military, local, and momentary only, every commander is supposed to be competent to agree upon a suspension of arms, and no ratification on the part of superior officers or other authorities is required. Even commanders of the smallest opposing detachments may arrange a suspension of arms.

(2) On the other hand, since general armistices are of vital political importance, only the belligerent Governments themselves or their commanders-in-chief are competent to conclude them, and ratification, whether specially stipulated or not, is necessary. Should a commander-in-chief conclude a general armistice which would not find ratification, hostilities may at once be recommenced without breach of faith, it being a matter of common knowledge that a commander-in-chief is not authorised to agree upon exclusion of ratification, unless he received special powers thereto.

(3) Partial armistices may be concluded by the commanders-in-chief of the respective forces, and ratification is not necessary, unless specially stipulated; the commanders being responsible to their own Governments in case they agree upon a partial armistice without being specially authorised thereto.

[Sidenote: Form of Armistices.]

§ 236. No legal rule exists regarding the form of armistices, which may therefore be concluded either orally or in writing. However, the importance of general as well as partial armistices makes it advisable to conclude them by signing written documents containing all items which have been agreed upon. No instance is known of a general or partial armistice of modern times concluded otherwise than in writing. But suspensions of arms are often only orally concluded.

[Sidenote: Contents of Armistices.]

§ 237. That hostilities must cease is the obvious content of all kinds of armistices. Usually, although not at all necessarily, the parties embody special conditions in the agreement instituting an armistice. If and so far as this has not been done, the import of armistices is for some parts much controverted. Everybody agrees that belligerents during an armistice may, outside the line where the forces face each other, do everything and anything they like regarding defence and preparation of offence; for instance, they may manufacture and import munitions and guns, drill recruits, build fortresses, concentrate or withdraw troops. But no unanimity exists regarding such acts as must be left undone or may be done within the very line where the belligerent forces face each other. The majority of writers, led by Vattel (III. § 245), maintain that in the absence of special stipulations it is essentially implied in an armistice that within such line no alteration of the status quo shall take place which the other party, were it not for the armistice, could by application of force, for instance by a cannonade or by some other means, prevent from taking place. These writers consider it a breach of faith for a belligerent to make such alterations under the protection of the armistice. On the other hand, a small minority of writers, but led by Grotius (III. c. 21, § 7) and Pufendorf (VIII. 7, § 7), assert that cessation of hostilities and of further advance only are essentially implied in an armistice; all other acts, such as strengthening of positions by concentration of more troops on the spot, erection and strengthening of defences, repairing of breaches of besieged fortresses, withdrawing of troops, making of fresh batteries on the part of besiegers without advancing, and the like, being allowed. As the Hague Regulations do not mention the matter, the controversy still remains unsettled. I believe the opinion of the minority to be correct, since an armistice does not mean anything else than a cessation of actual hostilities, and it is for the parties who agree upon an armistice to stipulate such special conditions as they think necessary or convenient. This applies particularly to the other controversial questions as to revictualling of besieged places and as to intercourse, commercial and otherwise, of the inhabitants of the region where actual fighting was going on before the armistice. As regards revictualling, it has been correctly maintained that, if it were not allowed, the position of the besieged forces would thereby be weakened by the action of the armistice. But I cannot see why this should be an argument to hold revictualling permissible. The principle vigilantibus jura sunt scripta applies to armistices as well as to all other legal transactions. It is for the parties to prepare such arrangements as really suit their needs and wants. Thus, during the Franco-German War an armistice for twenty-five days proposed in November 1870 fell to the ground on the Germans refusing to grant the revictualling of Paris.[457] It seems to be the intention of the Hague Regulations that the parties should always stipulate those special conditions which they need. Article 39 pronounces this intention regarding intercourse, commercial and otherwise, during armistices, by the following words:--"It is for the contracting parties to settle in the terms of the armistice what communications may be held within the theatre of war with the population and with each other."

[Footnote 457: See Pradier-Fodéré, VII. No. 2908, where the question of revictualling during an armistice is discussed at some length, and the opinions of many publicists from Grotius to our own days are quoted.]

It must be specially mentioned that for the purpose of preventing the outbreak of hostilities during an armistice it is usual to agree upon so-called lines of demarcation[458]--that is, a small neutral zone between the forces facing each other which must not be entered by members of either force. But such lines of demarcation do not exist, if they are not specially stipulated by the armistice concerned.

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

[Sidenote: Commencement of Armistices.]

§ 238. In case the contrary is not stipulated, an armistice commences the very moment the agreement upon it is complete. But often the parties stipulate in the agreement the time from which the armistice shall begin. If this is done in so detailed a manner that the very hour of the commencement is mentioned, no cause for controversy is given. But sometimes the parties fix only the date by stipulating that the armistice shall last from one certain day to another, e.g. from June 15 to July 15. In such case the actual commencement is controversial. Most publicists maintain that in such case the armistice begins at 12 o'clock of the night between the 14th and the 15th of June, but Grotius (III. c. 21, § 4) maintains that it begins at 12 o'clock of the night between the 15th and the 16th of June.[459] Therefore, to avoid difficulties, agreements concerning armistices ought always to stipulate whether the first day is to be included in the armistice. Be that as it may, when the forces included in an armistice are dispersed over a very large area, the parties very often stipulate different dates of commencement for the different parts of the front, because it is not possible to announce the armistice at once to all the forces included. Thus, for instance, article 1 of the general armistice at the end of the Franco-German War[460] stipulated its immediate commencement for the forces in and around Paris, but that with regard to the other forces its commencement should be delayed three days. Article 38 of the Hague Regulations enacts that an armistice must be notified officially and in good time to the competent authorities and the troops, and that hostilities are suspended immediately after the ratification or at a fixed date, as the case may be.

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

[Footnote 460: Martens, N.R.G. XIX. p. 626.]

It sometimes happens that hostilities are carried on after the commencement of an armistice by forces which did not know of its commencement. In such cases the status quo at the date of the commencement of armistice has to be re-established so far as possible, prisoners made and enemy vessels seized being liberated, capitulations annulled, places occupied evacuated, and the like; but the parties may, of course, stipulate the contrary.

[Sidenote: Violation of Armistices.]

§ 239. Any violation of armistices is prohibited, and, if ordered by the Governments concerned, constitutes an international delinquency. In case an armistice is violated by members of the forces on their own account, the individuals concerned may be punished by the other party in case they fall into its hands. Be that as it may, the question must be answered, what general attitude is to be taken by one party, if the other violates the armistice? No unanimity regarding this point exists among the writers on International Law, many[461] asserting that in case of violation the other party may at once, without giving notice, re-open hostilities; others[462] maintaining that such party may not do this, but has only the right to denounce the armistice. The Hague Regulations endeavour to settle the controversy, article 40 enacting that any serious violation of an armistice by one of the parties gives the other the right to denounce it, and even, in case of urgency, to recommence hostilities at once. Three rules may be formulated from this--(1) violations which are not serious do not even give the right to denounce an armistice; (2) serious violations do as a rule empower the other party to denounce only the armistice, but not to recommence hostilities at once without notice; (3) only in case of urgency is a party justified in recommencing hostilities without notice, when the other party has broken an armistice. But since the terms "serious violation" and "urgency" lack precise definition, it is practically left to the discretion of the injured party.

It must be specially observed that violation of an armistice committed by private individuals acting on their own initiative is to be distinguished from violation by members of the armed forces. In the former case the injured party has, according to article 41 of the Hague Regulations, only the right of demanding punishment of the offenders, and, if necessary, indemnity for losses sustained.

[Footnote 461: See, for instance, Grotius, III. c. 21, § 11; Pufendorf, VIII. c. 7, § 11; Vattel, III. § 242; Phillimore, II. § 121; Bluntschli, § 695; Fiore, III. No. 1494.]

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

[Sidenote: End of Armistices.]

§ 240. In case an armistice has been concluded for an indefinite period, the parties having made no stipulations regarding notice to recommence hostilities, notice may be given at any time, and hostilities recommenced at once after notification. In most cases, however, armistices are agreed upon for a definite period, and then they expire with such period without special notice, unless notification has been expressly stipulated. If, in case of an armistice for a definite period, the exact hour of the termination has not been agreed upon, but only the date, the armistice terminates at twelve o'clock midnight of such date. In case an armistice has been arranged to last from one certain day to another, e.g. from June 15 to July 15, it is again[463] controversial whether July 15 is excluded or included. An armistice may, lastly, be concluded under a resolutive condition, in which case the occurrence of the condition brings the armistice to an end.

[Footnote 463: See above, § 238.]

VI. MEANS OF SECURING LEGITIMATE WARFARE

I

ON MEANS IN GENERAL OF SECURING LEGITIMATE WARFARE

Bonfils, Nos. 1014-1017--Spaight, p. 460--Land Warfare, §§ 435-438.

[Sidenote: Legitimate and Illegitimate Warfare.]

§ 241. Since war is not a condition of anarchy and lawlessness, International Law requires that belligerents shall comply with its rules in carrying on their military and naval operations. So long and in so far as belligerents do this, their warfare is legitimate; if they do not comply with the rules, their warfare is illegitimate. Now, illegitimate acts and omissions can be committed by belligerent Governments themselves, by the commanders or members of their forces, and by their subjects not belonging to the forces. Experience teaches that, on the whole, omissions and the committal of illegitimate acts on the part of individual soldiers are unavoidable during war, since the passions which are aroused by and during war will always carry away some individuals. But belligerents bear a vicarious responsibility for internationally illegal acts of their soldiers, which turns into original responsibility if they refuse to repair the wrong done by punishing the offenders and, if necessary, indemnifying the sufferers.[464] Cases in which belligerent Governments themselves commit illegitimate acts, as well as cases in which they refuse to punish their soldiers for illegitimate acts constitute international delinquencies.[465] Now, if in time of peace an international delinquency is committed, the offended State can, if the worst comes to the worst, make war against the offender to compel adequate reparation.[466] But if an international delinquency is committed during warfare itself, no means whatever exist of compelling reparation.

[Footnote 464: See above, vol. I. §§ 149-150.]

[Footnote 465: See above, vol. I. § 151.]

[Footnote 466: See above, vol. I. § 156.]

[Sidenote: How Legitimate Warfare is on the whole secured.]

§ 242. Yet legitimate warfare is, on the whole at any rate, secured through several means recognised by International Law. These means of securing legitimate warfare may be divided into three classes. The first class comprises measures of self-help:--reprisals; punishment of war crimes committed by enemy soldiers and other enemy subjects; the taking of hostages. The second class comprises:--complaints lodged with the enemy; complaints lodged with neutral States; good offices, mediation, and intervention on the part of neutral States. And there is, thirdly, the fact that, according to article 3 of Convention IV. of the Second Peace Conference, belligerents are responsible for all acts committed by persons forming part of their forces, and are liable to make compensation, if the case demands it, for any violation of the Hague Regulations. These means, as I have said, do on the whole secure the legitimacy of warfare, because it is to the interest of either belligerent to prevent the enemy from getting a justifiable opportunity of making use of them. On the other hand, isolated illegitimate acts of individual enemy soldiers will always occur; but they will in many cases meet with punishment either by one party to the war or the other. As regards hostile acts of private enemy individuals not belonging to the armed forces, belligerents have a right[467] to consider and punish them severely as acts of illegitimate warfare.

[Footnote 467: See below, § 254.]

II

COMPLAINTS, GOOD OFFICES AND MEDIATION, INTERVENTION

Land Warfare, §§ 439-440.

[Sidenote: Complaints lodged with the Enemy.]

§ 243. Commanders of forces engaged in hostilities frequently lodge complaints with each other regarding single acts of illegitimate warfare committed by members of their forces, such as abuses of the flag of truce, violations of such flag or of the Geneva Convention, and the like. The complaint is sent to the enemy under the protection of a flag of truce, and the interest which every commander takes in the legitimate behaviour of his troops will always make him attend to complaints and punish the offenders, provided the complaints concerned are found to be justified. Very often, however, it is impossible to verify the statements in the complaint, and then certain assertions by one party, and their denial by the other, face each other without there being any way of solving the difficulty. It also often happens during war that the belligerent Governments lodge with each other mutual complaints of illegitimate acts and omissions. Since diplomatic intercourse is broken off during war, such complaints are either sent to the enemy under the protection of a flag of truce or through a neutral[468] State which lends its good offices. But here too indignant assertion and emphatic denial frequently face each other without there being a way of solving the conflict.

[Footnote 468: Thus, in October 1904, during the Russo-Japanese War, Japan sent a complaint concerning the alleged use of Chinese clothing on the part of Russian troops to the Russian Government, through the intermediary of the United States of America; see Takahashi, pp. 174-178.]

[Sidenote: Complaints lodged with Neutrals.]

§ 244. If certain grave illegitimate acts or omissions of warfare occur, belligerents frequently lodge complaints with neutral States, either asking their good offices, mediation, or intervention to make the enemy comply with the laws of war, or simply drawing their attention to the facts. Thus, at the beginning of the Franco-German War, France lodged a complaint with Great Britain and asked her intervention on account of the intended creation of a volunteer fleet on the part of Germany, which France considered a violation of the Declaration of Paris.[469] Conversely, in January 1871, Germany, in a circular addressed to her diplomatic envoys abroad, and to be communicated to the respective neutral Governments, complained of twenty-one cases in which the French forces had, deliberately and intentionally it was alleged, fired on bearers of a flag of truce. Again, in November 1911, and in February 1912, during the Turco-Italian War, Turkey lodged a complaint with the Powers on account of the execution of Arabs in Tripoli as war criminals, and on account of the bombardment of Turkish war vessels in the harbour of Beirut.[470]

[Footnote 469: See above, § 84.]

[Footnote 470: See above, § 213.]

[Sidenote: Good Offices and Mediation.]

§ 245. Complaints lodged with neutral States may have the effect of one or more of the latter lending their offices or their mediation to the belligerents for the purpose of settling such conflict as arose out of the alleged illegitimate acts or omissions of warfare, thus preventing them from resorting to reprisals. Such good offices and mediation do not differ from those which settle a difference between States in time of peace and which have been discussed above in §§ 7-11; they are friendly acts in contradistinction to intervention, which is dictatorial interference for the purpose of making the respective belligerents comply with the laws of war.

[Sidenote: Intervention on the part of Neutrals.]

§ 246. There can be no doubt that neutral States, whether a complaint has been lodged with them or not, may either singly, or jointly and collectively, exercise intervention in cases of illegitimate acts or omissions of warfare being committed by belligerent Governments, or committed by members of belligerent forces if the Governments concerned do not punish the offenders. It will be remembered that it has been stated above in Vol. I. § 135, No. 4, that other States have a right to intervene in case a State violates in time of peace or war those principles of the Law of Nations which are universally recognised. There is not the slightest doubt that such principles of International Law are endangered in case a belligerent Government commits acts of illegitimate warfare or does not punish the offenders in case such acts are committed by members of its armed forces. But apart from this, the Hague Regulations make illegitimate acts of warfare on land now appear as by right the affair of all signatory States to the Convention, and therefore, in case of war between signatory States, the neutral signatory States certainly would have a right of intervention if acts of warfare were committed which are illegitimate according to the Hague Regulations. It must, however, be specially observed that any such intervention, if it ever occurred, would have nothing to do with the war in general and would not make the intervening State a party to the war, but would concern only the international delinquency committed by the one belligerent through acts of illegitimate warfare.

III

REPRISALS

Vattel, III. p. 142--Hall, § 135--Westlake, II. pp. 112-115, and Chapters, pp. 253-258--Taylor, §§ 487 and 507--Wharton, III. § 348B--Moore, VII. § 1114--Bluntschli, §§ 567, 580, 654, 685--Lueder in Holtzendorff, IV. p. 392--Pradier-Fodéré, VIII. Nos. 3214-3221--Bonfils, Nos. 1018-1026--Despagnet, No. 543--Rivier, II. pp. 298-299--Calvo, IV. §§ 2041-2043--Martens, II. § 121--Mérignhac, pp. 210-218--Holland, War, Nos. 119-120--Bordwell, p. 305--Spaight, pp. 462-465--Land Warfare, §§ 452-460--Halleck in A.J. VI. (1912), pp. 107-118.

[Sidenote: Reprisals between Belligerents in contradistinction to Reprisals in time of Peace.]

§ 247. Whereas reprisals in time of peace are to be distinguished from retorsion and are injurious acts committed for the purpose of compelling a State to consent to a satisfactory settlement of a difference created through an international delinquency,[471] reprisals between belligerents are retaliation of an illegitimate act of warfare, whether constituting an international delinquency or not, for the purpose of making the enemy comply in future with the rules of legitimate warfare. Reprisals between belligerents are terrible means, because they are in most cases directed against innocent enemy individuals, who must suffer for real or alleged offences for which they are not responsible. But reprisals cannot be dispensed with, because without them illegitimate acts of warfare would be innumerable. As matters stand, every belligerent and every member of his forces knows for certain that reprisals are to be expected in case they violate the rules of legitimate warfare. And when nevertheless an illegal act occurs and is promptly met with reprisals as a retaliation, human nature would not be what it is if such retaliation did not act as a deterrent against a repetition of illegitimate acts.

[Footnote 471: See above, §§ 33 and 42.]

[Sidenote: Reprisals admissible for every Illegitimate Act of Warfare.]

§ 248. Whereas reprisals in time of peace are admissible for international delinquencies only, reprisals between belligerents are at once admissible for every and any act of illegitimate warfare, whether the act constitutes an international delinquency or not. It is for the consideration of the injured belligerent as to whether he will at once resort to reprisals, or, before doing so, will lodge complaints with the enemy or with neutral States. Practically, however, a belligerent will rarely resort at once to reprisals, provided the violation of the rules of legitimate warfare is not very grave and the safety of his troops does not require prompt and drastic measures. Thus, the Germans during the Franco-German War frequently by way of reprisal, bombarded and fired undefended open villages where their soldiers were treacherously killed by enemy individuals in ambush who did not belong to the armed forces. And Lord Roberts, during the South African War, ordered[472] by way of reprisal the destruction of houses and farms in the vicinity of the place where damage was done to the lines of communication.[473]

[Footnote 472: See section 4 of the Proclamation of June 19, 1900 (Martens, N.R.G. 2nd Ser., XXXII. p. 147), and Beak, The Aftermath of War (1906), p. 11.]

[Footnote 473: That prisoners of war may be made the objects of reprisals for acts of illegitimate warfare committed by the enemy, there is hardly any doubt; see Beinhauer, Die Kriegsgefangenschaft (1910), p. 74.]

[Sidenote: Danger of Arbitrariness in Reprisals.]

§ 249. The right to exercise reprisals carries with it great danger of arbitrariness, for often the alleged facts which make belligerents resort to reprisals are not sufficiently verified, or the rules of war which they consider the enemy has violated are sometimes not generally recognised, or the act of reprisal performed is often excessive compared with the precedent act of illegitimate warfare. Three cases may illustrate this danger.

(1) In 1782 Joshua Huddy, a captain in the army of the American insurgents, was taken prisoner by loyalists and handed over to a Captain Lippencott for the ostensible purpose of being exchanged, but was arbitrarily hanged. The commander of the British troops had Lippencott arrested, and ordered him to be tried for murder. Lippencott was, however, acquitted by the court-martial, as there was evidence to show that his command to execute Huddy was in accordance with orders of a Board which he was bound to obey. Thereupon some British officers who were prisoners of war in the hands of the Americans were directed to cast lots to determine who should be executed by way of reprisal for the execution of Huddy. The lot fell on Captain Asgill, a young officer only nineteen years old, and he would have been executed but for the mediation of the Queen of France, who saved his life.[474]

(2) "The British Government, having sent to England, early in 1813, to be tried for treason, twenty-three Irishmen, naturalised in the United States, who had been captured on vessels of the United States, Congress authorised the President to retaliate. Under this act, General Dearborn placed in close confinement twenty-three prisoners taken at Fort George. General Prevost, under express directions of Lord Bathurst, ordered the close imprisonment of double the number of commissioned and non-commissioned United States' officers. This was followed by a threat of 'unmitigated severity against the American citizens and villages' in case the system of retaliation was pursued. Mr. Madison having retorted by putting in confinement a similar number of British officers taken by the United States, General Prevost immediately retorted by subjecting to the same discipline all his prisoners whatsoever.... A better temper, however, soon came over the British Government, by whom this system had been instituted. A party of United States' officers, who were prisoners of war in England, were released on parole, with instructions to state to the President that the twenty-three prisoners who had been charged with treason in England had not been tried, but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all the officers of both sides."[475]

(3) During the Franco-German War the French had captured forty German merchantmen, and made their captains and crews prisoners of war. Count Bismarck, who considered it against International Law to detain these men as prisoners, demanded their liberation, and when the French refused this, ordered by way of reprisal forty French private individuals of local importance to be arrested and to be sent as prisoners of war to Bremen, where they were kept until the end of the war. Count Bismarck was decidedly wrong,[476] since France had, as the law then stood, in no way committed an illegal act by detaining the German crews as prisoners of war.[477]

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

[Footnote 475: See Wharton, III. § 348B.]

[Footnote 476: That Bismarck's standpoint was wrong has been pointed out above in § 201. Some German writers, however, take his part; see, for instance, Lueder in Holtzendorff, IV. p. 479, note 6. As regards the present law on the subject, see above, §§ 85 and 201.]

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

[Sidenote: Proposed Restriction of Reprisals.]

§ 250. The Hague Regulations do not mention reprisals at all because the Brussels Conference of 1874, which accepted the unratified Brussels Declaration, had struck out several sections of the Russian draft code regarding reprisals. These original sections[478] (69-71) stipulated--(1) that reprisals should be admitted only in extreme cases of absolutely certain violations of the rules of legitimate warfare; (2) that the acts performed by way of reprisal must not be excessive, but in proportion to the respective violation; (3) that reprisals should be ordered by commanders-in-chief only. Articles 85 and 86 of the Manual of the Laws of War, adopted by the Institute of International Law,[479] propose the following rules:--(1) Reprisals are to be prohibited in case reparation is given for the damage done by an illegal act; (2) in grave cases, in which reprisals are an imperative necessity, they must never exceed the degree of the violation committed by the enemy; (3) they may only be resorted to with the authorisation of the commander-in-chief; (4) they must in every case respect the laws of humanity and of morality. In face of the arbitrariness with which, according to the present state of International Law, reprisals may be exercised, it cannot be denied that an agreement upon some precise rules regarding reprisals is an imperative necessity.

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

[Footnote 479: See Annuaire, V. p. 174.]

IV

PUNISHMENT OF WAR CRIMES

Hall, § 135--Bluntschli, §§ 627-643A--Spaight, p. 462--Holland, War, Nos. 117-118--Ariga, §§ 96-99--Takahashi, pp. 166-184--Landa in R.I. X. (1878), pp. 182-184--Land Warfare, §§ 441-451.

[Sidenote: Conception of War Crimes.]

§ 251. In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as members of armed forces who have done no wrong, war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. It must, however, be emphasised that the term war crime is used, not in the moral sense of the term crime, but only in a technical legal sense, on account of the fact that perpetrators of these acts may be punished by the enemy. For, although among the acts called war crimes are many which are crimes in the moral sense of the term, such, for instance, as the abuse of a flag of truce or assassination of enemy soldiers; there are others which may be highly praiseworthy and patriotic acts, such as taking part in a levy en masse on territory occupied by the enemy. But because every belligerent may, and actually must, in the interest of his own safety punish these acts, they are termed war crimes, whatever may be the motive, the purpose, and the moral character of the respective act.[480]

[Footnote 480: See above, § 57.]

[Sidenote: Different kinds of War Crimes.]

§ 252. In spite of the uniform designation of these acts as war crimes, four different kinds of war crimes must be distinguished on account of the essentially different character of the acts. Violations of recognised rules regarding warfare committed by members of the armed forces belong to the first kind; all hostilities in arms committed by individuals who are not members of the enemy armed forces constitute the second kind; espionage and war treason belong to the third; and all marauding acts belong to the fourth kind.

[Sidenote: Violations of Rules regarding Warfare.]

§ 253. Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and may not be punished by the enemy; the latter may, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.

The following are the more important violations that may occur:

(1) Making use of poisoned or otherwise forbidden arms and ammunition.

(2) Killing or wounding soldiers disabled by sickness or wounds, or who have laid down arms and surrendered.

(3) Assassination, and hiring of assassins.

(4) Treacherous request for quarter, or treacherous feigning of sickness and wounds.

(5) Ill-treatment of prisoners of war, of the wounded and sick. Appropriation of such of their money and valuables as are not public property.

(6) Killing or attacking harmless private enemy individuals. Unjustified appropriation and destruction of their private property, and especially pillaging. Compulsion of the population of occupied territory to furnish information about the army of the other belligerent or about his means of defence.

(7) Disgraceful treatment of dead bodies on battlefields. Appropriation of such money and other valuables found upon dead bodies as are not public property, nor arms, ammunition, and the like.

(8) Appropriation and destruction of property belonging to museums, hospitals, churches, schools, and the like.

(9) Assault, siege, and bombardment of undefended open towns and other habitations. Unjustified bombardment of undefended places on the part of naval forces.

(10) Unnecessary bombardment of historical monuments, and of such hospitals and buildings devoted to religion, art, science, and charity, as are indicated by particular signs notified to the besiegers bombarding a defended town.

(11) Violations of the Geneva Convention.

(12) Attack on or sinking of enemy vessels which have hauled down their flags as a sign of surrender. Attack on enemy merchantmen without previous request to submit to visit.

(13) Attack or seizure of hospital ships, and all other violations of the Hague Convention for the adaptation to naval warfare of the principles of the Geneva Convention.

(14) Unjustified destruction of enemy prizes.[481]

(15) Use of enemy uniforms and the like during battle, use of the enemy flag during attack by a belligerent vessel.

(16) Violation of enemy individuals furnished with passports or safe-conducts, violation of safeguards.

(17) Violation of bearers of flags of truce.

(18) Abuse of the protection granted to flags of truce.

(19) Violation of cartels, capitulations, and armistices.

(20) Breach of parole.

[Footnote 481: Unjustified destruction of neutral prizes--see below, § 431--is not a war crime, but is nevertheless an international delinquency, if ordered by the belligerent government.]

[Sidenote: Hostilities in Arms by Private Individuals.]

§ 254. Since International Law is a law between States only and exclusively, no rules of International Law can exist which prohibit private individuals from taking up arms and committing hostilities against the enemy. But private individuals committing such acts do not enjoy the privileges of members of armed forces, and the enemy has according to a customary rule of International Law the right to consider and punish such individuals as war criminals. Hostilities in arms committed by private individuals are not war crimes because they really are violations of recognised rules regarding warfare, but because the enemy has the right to consider and punish them as acts of illegitimate warfare. The conflict between praiseworthy patriotism on the part of such individuals and the safety of the enemy troops does not allow of any solution. It would be unreasonable for International Law to impose upon belligerents the duty to forbid the taking up of arms by their private subjects, because such action may occasionally be of the greatest value to a belligerent, especially for the purpose of freeing a country from the enemy who has militarily occupied it. Nevertheless the safety of his troops compels the enemy to consider and punish such hostilities as acts of illegitimate warfare, and International Law gives him a right to do so.

It is usual to make a distinction between hostilities in arms on the part of private individuals against an invading or retiring enemy on the one hand, and, on the other, hostilities in arms committed on the part of the inhabitants against an enemy occupying a conquered territory. In the latter case one speaks of war rebellion, whether inhabitants take up arms singly or rise in a so-called levy en masse. Articles 1 and 2 of the Hague Regulations make the greatest possible concessions regarding hostilities committed by irregulars.[482] Beyond the limits of these concessions belligerents will never be able to go without the greatest danger to their troops.

[Footnote 482: See above, §§ 80 and 81.]

It must be particularly noted that merchantmen of belligerents, which attack enemy vessels without previously having been attacked by them, commit a war crime,[483] and that the captains, officers, and members of the crews may, therefore, be punished as war criminals to the same extent as private individuals who commit hostilities in land warfare.

[Footnote 483: See above, §§ 85 and 181.]

[Sidenote: Espionage and War Treason.]

§ 255. Article 24 of the Hague Regulations now enacts the old customary rule that a belligerent has a right to employ all methods necessary to obtain information, and these methods include espionage and treason. But this right stands face to face with the right to consider and punish as war criminals enemy individuals, whether soldiers or not, committing acts of espionage or treason. There is an irreconcilable conflict between the necessity of obtaining information on the one hand, and self-preservation on the other; and accordingly espionage and treason, as has been explained above in § 159, bear a twofold character. On the one hand, International Law gives a right to belligerents to make use of espionage and treason. On the other hand, the same law gives a right to belligerents to consider espionage and treason, committed by enemy soldiers or enemy private individuals within their lines, as acts of illegitimate warfare, and consequently punishable.

Espionage has already been treated above in §§ 159-161. War treason may be committed in different ways. The following are the chief cases of war treason that may occur:--

(1) Information of any kind given to the enemy.

(2) Voluntary supply of money, provisions, ammunition, horses, clothing, and the like, to the enemy.

(3) Any voluntary assistance to military operations of the enemy, be it by serving as guide in the country, by opening the door of a defended habitation, by repairing a destroyed bridge, or otherwise.

(4) Attempt to induce soldiers to desert, to surrender, to serve as spies, and the like, and negotiating desertion, surrender, and espionage offered by soldiers.

(5) Attempt to bribe soldiers or officials in the interest of the enemy, and negotiating such bribe.

(6) Liberation of enemy prisoners of war.

(7) Conspiracy against the armed forces or against individual officers and members of them.

(8) Wrecking of military trains, destruction of the lines of communication or of the telegraphs or telephones in the interest of the enemy, and the destruction of any war material for the same purpose.

(9) Circulation of enemy proclamations dangerous to the interests of the belligerent concerned.

(10) Intentional false guidance of troops by a hired guide or by one who offered his services voluntarily.

(11) Rendering courier or similar services to the enemy.

It must be specially observed that enemy soldiers--in contradistinction to private enemy individuals--may only be punished for war treason when they have committed the act of treason during their stay within a belligerent's lines under disguise. If, for instance, two soldiers in uniform are sent into the rear of the enemy for the purpose of destroying a bridge, they may not, when caught by the enemy, be punished for war treason, because their act was one of legitimate warfare. But if they exchange their uniforms for plain clothes and thereby appear as members of the peaceful private population, they may be punished for war treason. A remarkable case of this kind occurred in the summer of 1904, during the Russo-Japanese War. Two Japanese disguised in Chinese clothes were caught in the attempt to destroy, with the aid of dynamite, a railway bridge in Manchuria, in the rear of the Russian forces. Brought before a court-martial, they confessed themselves to be Shozo Jakoga, forty-three years of age, a Major on the Japanese General Staff, and Teisuki Oki, thirty-one years of age, a Captain on the Japanese General Staff. They were convicted, and condemned to be hanged, but the mode of punishment was changed and they were shot. All the newspapers which mentioned this case reported it as a case of espionage, but it is in fact one of war treason. Although the two officers were in disguise, their conviction for espionage was impossible according to article 29 of the Hague Regulations, provided, of course, they were court-martialed for no other act than the attempt to destroy a bridge.

It must be particularly noted that there are many acts of inhabitants which a belligerent may forbid and punish in the interests of order and the safety of his army, although these acts do not fall under the category of war treason, and are not therefore punished as war crimes. To this class belong all acts which violate the orders legitimately decreed by an occupant of enemy territory.[484]

[Footnote 484: See Land Warfare, § 446.]

[Sidenote: Marauding.]

§ 256. Marauders are individuals roving either singly or collectively in bands over battlefields, or following advancing or retreating forces in quest of booty. They have nothing to do with warfare in the strict sense of the term, but they are an unavoidable accessory to warfare and frequently consist of soldiers who have left their corps. Their acts are considered acts of illegitimate warfare, and their punishment takes place in the interest of the safety of either belligerent.

[Sidenote: Mode of Punishment of War Crimes.]

§ 257. All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take the place of capital punishment, the question arises whether such convicts must be released at the end of the war, although their term of imprisonment has not yet expired. Some publicists[485] answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But I believe that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of capital punishment, it is obvious that he may select a more lenient penalty and carry the latter out even beyond the duration of the war. And it would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would have always to pronounce and carry out sentence of capital punishment in the interest of self-preservation.

[Footnote 485: See, for instance, Hall, § 135, p. 432.]

V

TAKING OF HOSTAGES

Hall, §§ 135 and 156--Taylor, § 525--Bluntschli, § 600--Lueder in Holtzendorff, IV. pp. 475-477--Klüber, §§ 156 and 247--G. F. Martens, II. 277--Ullmann, § 183--Bonfils, Nos. 1145 and 1151--Pradier-Fodéré, VII. Nos. 2843-2848--Rivier, II. p. 302--Calvo, IV. §§ 2158-2160--Fiore, III. Nos. 1363-1364--Martens, II. § 119--Longuet, § 84--Bordwell, p. 305--Spaight, pp. 465-470--Kriegsbrauch, pp. 49, 50--Land Warfare, §§ 461-464.

[Sidenote: Former Practice of taking Hostages.]

§ 258. The practice of taking hostages as a means of securing legitimate warfare prevailed in former times much more than nowadays. It was frequently resorted to in cases in which belligerent forces depended more or less upon each other's good faith, such as capitulations and armistices for instance. To make sure that no perfidy was intended, officers or prominent private individuals were taken as hostages and could be held responsible with their lives for any perfidy committed by the enemy. This practice has totally disappeared, and is hardly likely to be revived. But this former practice must not be confounded with the still existing practice of seizing enemy individuals for the purpose of making them the object of reprisals. Thus, when in 1870, during the Franco-German War, Count Bismarck ordered forty French notables to be seized and to be taken away into captivity as a retaliation upon the French for refusing to liberate the crews of forty captured merchantmen, these forty French notables were not taken as hostages, but were made the object of reprisals.[486]

[Footnote 486: The case has been discussed above in § 249. All the French writers who comment upon this case make the mistake of referring to it as an instance of the taking of hostages.]

[Sidenote: Modern Practice of taking Hostages.]

§ 259. A new practice of taking hostages was resorted to by the Germans in 1870 during the Franco-German War for the purpose of securing the safety of forces against possible hostile acts on the part of private inhabitants of occupied enemy territory. Well-known men were seized and detained in the expectation that the population would refrain from hostile acts out of regard for the fate of the hostages. Thus, when unknown people frequently wrecked the trains transporting troops, the Germans seized prominent enemy citizens and put them on the engines of trains to prevent the latter from being wrecked, a means which always proved effective and soon put a stop to further train-wrecking. The same practice was resorted to, although for a short time only, by Lord Roberts[487] in 1900 during the South African War. This practice has been condemned by the majority of publicists. But, with all due deference to the authority of so many prominent men who oppose the practice, I cannot agree with their opinion. Matters would be different if hostages were seized and exposed to dangers for the purpose of preventing legitimate hostilities on the part of members of the armed forces of the enemy.[488] But no one can deny that train-wrecking on occupied enemy territory by private enemy individuals is an act which a belligerent is justified in considering and punishing as war treason.[489] It is for the purpose of guarding against an act of illegitimate warfare that these hostages are put on the engines. The danger they are exposed to comes from their fellow-citizens, who are informed of the fact that hostages are on the engines and who ought therefore to refrain from wrecking the trains. It cannot, and will not, be denied that the measure is a harsh one, and that it makes individuals liable to suffer for acts for which they are not responsible. But the safety of his troops and lines of communication is at stake for the belligerent concerned, and I doubt, therefore, whether even the most humane commanders will be able to dispense with this measure, since it alone has proved effective. And it must further be taken into consideration that the amount of cruelty connected with it is no greater than in reprisals where also innocent individuals must suffer for illegitimate acts for which they are not responsible. And is it not more reasonable to prevent train-wrecking by putting hostages on the engines than to resort to reprisals for wreckage of trains? For there is no doubt that a belligerent is justified in resorting to reprisals[490] in each case of train-wrecking by private enemy individuals.[491]

[Footnote 487: See section 3 of the Proclamation of Lord Roberts, dated Pretoria, June 19, 1900, but this section was repealed by the Proclamation of July 29, 1900. See Martens, N.R.G. 2nd Ser. XXXII. (1905), pp. 147 and 149.]

[Footnote 488: Land Warfare, § 463, does not consider the practice commendable, because innocent citizens are thereby exposed to legitimate acts of train-wrecking on the part of raiding parties of armed forces of the enemy.]

[Footnote 489: See above, § 255, No. 8.]

[Footnote 490: See above, § 248.]

[Footnote 491: Belligerents sometimes take hostages to secure compliance with requisitions, contributions, ransom bills, and the like, but such cases have nothing to do with illegitimate warfare: see above, § 116, p. 153, note 1, and § 170, p. 213, note 3. The Hague Regulations do not mention the taking of hostages for any purpose.]

VI

COMPENSATION

Bonfils, No. 1026'1--Despagnet, No. 510 bis--Lémonon, pp. 344-346--Higgins, pp. 260-261--Scott, Conferences, p. 528--Nippold, II. § 24--Boidin, pp. 83-84--Spaight, p. 462--Holland, War, No. 19--Land Warfare, § 436.

[Sidenote: How the Principle of Compensation for Violations of the Laws of War arose.]

§ 259_a_. There is no doubt that, if a belligerent can be made to pay compensation for all damage done by him in violating the laws of war, this will be an indirect means of securing legitimate warfare. In former times no rule existed which stipulated such compensation, although, of course, violation of the laws of war was always an international delinquency. On the contrary, it was an established customary rule[492] that claims for reparation of damages caused by violations of the rules of legitimate warfare could not be raised after the conclusion of peace, unless the contrary was expressly stipulated. It was not until the Second Hague Peace Conference that matters underwent a change. In revising the Convention concerning the laws and customs of war on land, besides other alterations, a new article (3) was adopted which enacts that a belligerent who violates the provisions of the Hague Regulations, shall, if the case demand, be liable to make compensation, and that he shall be responsible for all acts committed by persons forming part of his armed forces.

[Footnote 492: See below, § 274, p. 335.]

Attention should be drawn to the fact that Germany, on whose initiative this principle was adopted, proposed two articles concerning the matter, the one dealing with the payment of compensation for violations of the Hague Regulations with regard to subjects of neutral States,[493] and the other for violations of these Regulations with regard to enemy subjects. The conference, however, preferred to make no distinction between the different cases of violation but to adopt the general principle.

[Footnote 493: See below, § 357.]

[Sidenote: Compensation for Violations of the Hague Regulations.]

§ 259_b_. It is apparent that article 3 of Convention IV. enacts two different rules: firstly, that a belligerent who violates the Hague Regulations shall, if the case demand, pay compensation; and secondly, that a belligerent is responsible for all acts committed by any person forming part of his armed forces.

To take this second rule first, the responsibility of a State for internationally illegal acts on the part of members of its armed forces is, provided the acts have not been committed by the State's command or authorisation, only a vicarious responsibility, but nevertheless the State concerned must, as was pointed out above, Vol. I. § 163, pay damages for these acts when required. For this reason, article 3 does not create a new rule in so far as it enacts that belligerents must pay for damage caused by members of their forces.

On the other hand, the rule that compensation must be paid by belligerents for damage done through violations of the Hague Regulations, is a new rule, at any rate in so far as it is laid down in a general way. If interpreted according to the letter, article 3 of Convention IV. establishes the rule for payment of compensation for violations of the Hague Regulations only, and not for violations of other rules of International Law concerning land warfare or even concerning sea warfare. I have, however, no doubt that the Powers would recognise that the principle of article 3 must find application to any rule of the laws of war, if by the violation of such rule subjects of the enemy, or of neutral States, suffer damage. For instance, if the commander of a naval force, in contravention of Convention IX. of the Second Peace Conference, were to bombard an undefended place, compensation could be claimed for such subjects of the enemy and subjects of neutral States as suffered damage through the bombardment.

A point, however, to be kept in view is that article 3, although it establishes the obligation to pay compensation, does not stipulate anything concerning the time or the way in which claims for compensation are to be settled. This is clearly a case for arbitration, and it is to be hoped that the Third Peace Conference will make arbitration obligatory in cases of claims for compensation arising from violations, on the part of a belligerent, of the Hague Regulations as well as of other laws of war.