International Law. A Treatise Volume Ii Part 29

ESPIONAGE, TREASON, RUSES

See, besides the literature quoted above at the commencement of ---- 159 and 163, Pradier-Fodere, 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 a.n.a.logous 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-Fodere, 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-Fodere, 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--Lemonon, 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 sh.o.r.e 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 Inst.i.tute 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 Inst.i.tute 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 Inst.i.tute 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 legitime, mais s'impose comme obligatoire. Il faut donc s'attendre a voir les flottes cuira.s.sees, maitresses de la mer, tourner leur puissance d'attaque et destruction, a defaut d'adversaires se derobant a leurs coups, contre toutes les villes du littoral, fortifiees ou non, pacifiques ou guerrieres, les incendier, les ruiner, et tout au moins les ranconner sans merci.

Cela s'est fait autrefois; cela ne se fait plus; cela se fera encore: Strasbourg et Peronne 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 att.i.tude....

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

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

On the basis of this report the Inst.i.tute, 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 Inst.i.tute.

(2) For the purpose of destroying sheds, military erections, depots 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 circ.u.mstances 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 circ.u.mstances 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 anch.o.r.ed off the harbour," but Great Britain, France, Germany, and j.a.pan 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, depots 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. Sh.e.l.ls 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 a.s.sault, 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-Fodere, VI. No. 2772--Fiore, III.

No. 1387, and Code, Nos. 1650-1655--Perels, -- 35, p. 185--Perdrix, _Les cables 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 Prive et de la Jurisprudence comparee_ (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 fur Oeffentliches Recht_, XV. (1900), pp. 414-421--Rey, in _R.G._ VIII. (1901), pp. 681-762--Dupuis, in _R.G._ X. (1903), pp.