International Law Part 26

Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incorporate into the navy during the war vessels privately purchased and owned. Such vessels are still numbered in the "volunteer fleet," and though privately owned and managed are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war.

Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by which these governments, through agreements with certain of their great steamship lines, could hire or purchase at a fixed price specified vessels for use in case of war. The construction of such vessels is subject to government approval, and certain subsidies are granted to these companies. In time of war both officers and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism.[351]

-- 112. Capture and Ransom

For more than one hundred years the capture of private property at sea has been regarded with disfavor both on the continent of Europe and in America.

The att.i.tude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby merchant vessels of either state are to pa.s.s "free and unmolested."[352] John Quincy Adams, in 1823, proposed to England, France, and Russia to exempt private property from capture. This proposition was not accepted.[353] The United States withheld its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The resolution in the United States House of Representatives of Mr. Gillett of Ma.s.sachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pa.s.s, the argument being advanced that Spain had shown a lack of reciprocity. States in practice have attempted to introduce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The voice of the publicists seems to be strongly in favor of exemption. By international law private property cannot be said to be exempt, though the feeling in favor of exemption is growing.

Article 11 of the Naval War Code of the United States provides that "The personnel of a merchant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available for the naval service of the enemy, or they may be released from detention or confinement."[354]

Pa.s.sengers on such vessels should be treated with consideration and landed at a convenient port.[355]

Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession const.i.tuted valid capture. In earlier times the capture was complete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equable, as the effective possession is a better ground than the lapse of time.

The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held to be under the control of the captor, even when by reason of the weather no one has been placed on board.[356]

The captor should bring his prize into port for adjudication by the court. The t.i.tle to the prize immediately vests in the state, and is to be disposed of only by state authority. However, an enemy's vessel may be destroyed when it is no longer seaworthy, when it impedes unduly the progress of the capturing force, when its recapture is threatened by the enemy, when the capturing force is unable to place a sufficient prize crew on board without impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.[357] The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account of the fewness of its forces.

Sometimes the original owner is allowed to ransom by repurchase property which has been captured. In such case the transaction is embodied in a "ransom bill," by which the master agrees that the owner will pay to the captor a certain sum of money. A duplicate copy of this bill serves as a safe-conduct for the ransomed vessel so long as there is no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract is not violated when the ransomed vessel is driven from her course by stress of weather or by circ.u.mstances beyond her control.

The captor takes from the captured vessel a hostage for the fulfillment of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. The captor may bring suit in the courts of the captured vessel's state usually, though in England the process is by action of the imprisoned hostage to recover his freedom. Some of the European states forbid the practice, others limit it, and others, like the United States, allow ransom.

-- 113. Postliminium

The word "postliminium" is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for _jus postliminium_ supposes that the captive has never been absent.[358] The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invalidated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities.

When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the cooperation of an ally, the conditions of the alliance will determine the obligation of the original possessor.

Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before recapture, the court shall award salvage according to the circ.u.mstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restoration; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circ.u.mstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty.[359] When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not ent.i.tled to salvage.

When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their pa.s.sage to London in the ship were allowed salvage.[360]

While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of Dec 11, 1871.

-- 114. Prisoners and their Treatment

"A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field, or in the hospital, by individual surrender, or capitulation.... Citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government"[361] are liable to capture. Levies _en ma.s.se_ are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen.[362]

It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable.

(_a_) The refusal of =quarter= to prisoners of war is not now allowed.

Those who have violated the laws of war or the principles of humanity are liable to =retaliation= as a measure of protective retribution only.

It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."[363]

(_b_) =Employment.= Prisoners may be "employed upon public works which have no direct relation to the operations carried on in the theatre of war."[364] Such labor must be in accord with the rank of the prisoner and not detrimental to health. Prisoners who are allowed to engage in private industries do so with the understanding that their pay may be devoted to the bettering of their condition, or if expedient may be reserved for them and be paid to them on their release. From this amount may be deducted the expense of the maintenance while in captivity.

(_c_) The =exchange= of prisoners of war is purely a voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values where those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc.

(_d_) Prisoners of war may be released =on parole=, which is a promise to do or to refrain from doing certain acts in consideration of the grant of freedom in other respects. The punishment for breach of parole is death if the person is again captured.[365]

(_e_) The =sick and wounded= taken in the field become prisoners of war.

Their treatment is now determined for nearly all the important states by the provisions of the Geneva Convention of 1864. This convention provides for the neutralizing of hospitals and ambulances under proper restrictions, for the protection of those engaged in the care of the sick and wounded, and for such distinctive marks as shall identify those engaged in this service, particularly the Red Cross.[366]

-- 115. Non-hostile Relations of Belligerents

(_a_) In time of war it is necessary that belligerents should have certain relations not strictly hostile. Negotiations are often opened under a =flag of truce=. In regard to this the Brussels Code, Article 43, provides:--

"An individual authorized by one of the belligerents to confer with the other on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him, shall have the right of inviolability."[367]

He may be accompanied, "if necessary, by a guide and an interpreter." A commander is not obliged to receive the bearer of a flag of truce, and may take necessary measures to prevent injury on account of his presence. He may be blindfolded, detained at an outpost, or be put under other restrictions. If the bearer take advantage of his privilege to spy upon the enemy, he is liable to treatment as a spy, though he may report such military information as he may acquire without effort on his own part. If a bearer present himself during active operations, firing need not necessarily cease, and the bearer is liable to such consequences as his act may bring upon himself.

"In operations afloat the senior officer alone is authorized to dispatch or to admit communication by flag of truce; a vessel in position to observe such a flag should communicate the fact promptly.

The firing of a gun by the senior officer's vessel is generally understood as a warning not to approach nearer. The flag of truce should be met at a suitable distance by a boat or vessel in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return."[368]

(_b_) =Cartels= are agreements made to regulate intercourse during war.

Such conventions may regulate postal and telegraphic communication, the reception of flags of truce, the exchange of prisoners, the care and treatment of the same and of the sick and wounded.

A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying exchanged prisoners. When thus employed the vessel is not subject to seizure, although this exemption does not extend to a voyage from one port to another in her own state for the sake of taking on prisoners. The immunity is lost if the vessel departs from the strict line of service by engaging in ordinary commerce, transportation, or hostile acts.[369] Such a vessel may carry one gun for the purpose of salutes.

(_c_) =Pa.s.sports, safe-conducts, and safeguards= are sometimes given in time of war.

A pa.s.sport is a written permission given by the belligerent government or by its authorized agent to the subject of the enemy state to travel generally in belligerent territory.

A safe-conduct is a pa.s.s given to an enemy subject or to an enemy vessel, allowing pa.s.sage between defined points. Safe-conducts are granted either by the government or by the officer in command of the region within which it is effective.[370]

A safeguard is a protection granted by a commanding officer either to person or property within his command. "Sometimes they are delivered to the parties whose persons or property are to be protected; at others they are posted upon the property itself, as upon a church, museum, library, public office, or private dwelling."[371] When the protection is enforced by a detail of men, this guard must use extreme measures, if necessary to fulfill their trust, and are themselves exempt from attack or capture by the enemy.

(_d_) =A license to trade= is a permission given by competent authority to the subject of that authority or to another to carry on trade even though there is a state of war. These licenses may be general or special. A general license grants to all the subjects of the enemy state or to all its own subjects the right to trade in specified places or in specified articles. A special license grants to a certain person the right to trade in the manner specified in his license. Neutrals may receive a license to trade in lines which otherwise would not be open to them.

A general license is granted by the head of the state. A special license may be granted by a subordinate, valid in the region which he commands so far as his subordinates are concerned. His superior officers are not necessarily bound by his act, however.[372]

It is held that a license must receive a reasonable construction. In general, fraud vitiates a license; it is not negotiable unless expressly made so; a fair compliance in regard to the terms as to goods is sufficient; a deviation from the prescribed course invalidates the license unless caused by stress of weather or by accident; and a delay in completing a voyage within the specified time invalidates the license unless caused by enemy or the elements.[373] When a license becomes void, the vessel is liable to the penalties which would fall upon it if it had committed the act without license.

(_e_) =The cessation of hostilities= for a time is sometimes brought about by agreement between the parties to the conflict. When this cessation is for a temporary or military end, and for a short time or within a limited area, it is usually termed a suspension of hostilities.

When the cessation is quite general, for a considerable time, or for a political end, it is usually termed a truce or armistice.

Acts of hostility done in ignorance of the existence of the cessation of hostilities are not violations of the agreement unless there has been negligence in conveying the information to the subordinates. Prisoners and property captured after the cessation in a given region must be restored. During the period of the truce, the commercial and personal intercourse between the opposing parties is under the same restrictions as during the active hostilities, unless there is provision to the contrary in the agreement. The relative position of the parties is supposed to be the same at the end of the truce as at the beginning.

Hall says, "The effect of truces and like agreements is therefore not only to put a stop to all directly offensive acts, but to interdict all acts tending to strengthen a belligerent which his enemy, apart from the agreement, would have been in a position to hinder."[374] Acts which the enemy would not have been in a position to hinder, even in the absence of a truce, are not necessarily interrupted by the agreement.[375]

The provisioning of a besieged place during a truce has been the subject of some difference of opinion. If the conditions of the truce are to be fair to the besieged party, that party must be allowed to bring in a supply of provisions equal to the consumption during the continuance of the truce.[376] At the present time this matter is usually provided for in the terms of the truce.

A truce or other form of cessation of hostilities, if for a definite time, comes to an end by the expiration of the time limit; if for an indefinite time, by notice from one party to the other, or is terminated by the violation of the conditions by either of the parties. A violation of a truce by an individual renders him liable to such punishment as his state may prescribe.[377]