International Law. A Treatise Volume Ii Part 15

[Footnote 218: _Griswold_ v. _Boddington_ (1819), 16 Johnson, 438; _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763.]

[Footnote 219: _Du Belloix_ v. _Lord Waterpark_ (1822), 1 Dowl. & R. 16; _Mayer_ v. _Reed_ (1867), 37 Gallison, 482.]

[Footnote 220: _h.o.a.re_ v. _Allan_ (1789), 2 Dallas, 102.]

[Footnote 221: _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763. See also the _Teutonia_ (1870), L. R. 4 Privy Council, 171.]

[Footnote 222: _Brandon_ v. _Curling_ (1803), 4 East, 410; but see also _Potts_ v. _Bell_ (1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802), 3 P. & B. 191; _Kellner_ v. _Le Mesurier_ (1803), 4 East, 396; _Gamba_ v. _Le Mesurier_ (1803), 4 East, 407.]

[Footnote 223: _New York Life Insurance Co._ v. _Stathem_, v. _Symes_, and v. _Buck_ (1876), 93 United States, 24; _New York Life Insurance Co._ v. _Davis_ (1877), 95 United States, 425.]

It must be specially observed that, if the continental interpretation of article 23 (_h_) of the Hague Regulations--see above, -- 100_a_--were not contradicted by Great Britain and the United States of America, both countries would be compelled to alter their Munic.i.p.al Laws in so far as these declare such contracts as have been entered into with alien enemies before the outbreak of war dissolved, void, or suspended.

Article 23 (_h_) distinctly enacts that it is forbidden to declare extinguished or suspended the rights of the nationals of the adverse party. Since, however, as stated above in -- 100_a_, Great Britain and the United States of America uphold a different interpretation, this article does not concern their Munic.i.p.al Laws respecting trading with alien enemies.

[Sidenote: Position of Belligerents' Property in the Enemy State.]

-- 102. In former times all private and public enemy property, immoveable or moveable, on each other's territory could be confiscated by the belligerents at the outbreak of war, as could also enemy debts; and the treaties[224] concluded between many States with regard to the withdrawal of each other's subjects at the outbreak of war stipulated likewise the unrestrained withdrawal of the private property of their subjects. Through the influence of such treaties as well as of Munic.i.p.al Laws and Decrees enacting the same, an international usage and practice grew up that belligerents should neither confiscate private enemy property nor annul enemy debts on their territory. The last case of confiscation of private property is that of 1793 at the outbreak of war between France and Great Britain. No case of confiscation occurred during the nineteenth century, and although several writers maintain that according to strict law the old rule, in contradistinction to the usage which they do not deny, is still valid, it may safely be maintained that it is obsolete, and that there is now a customary rule of International Law in existence prohibiting the confiscation of private enemy property and the annulment of enemy debts on the territory of a belligerent. This rule, however, does not prevent a belligerent from seizing public enemy property on his territory, such as funds, ammunition, provisions, rolling stock of enemy state-railways, and other valuables; from preventing the withdrawal of private enemy property which may be made use of by the enemy[225] for military operations, such as arms and munitions; from seizing and making use of rolling stock belonging to private enemy railway companies, other means of transport of persons or goods which are private enemy property, and, further, all appliances for the transmission of news, although they are private enemy property, provided all these articles are restored and indemnities are paid for them after the conclusion of peace;[226] and from suspending, as a measure of self preservation, the payment of large enemy debts till after the conclusion of peace in order to prevent the increase of resources of the enemy.

[Footnote 224: See above, -- 100; Moore, VII. -- 1196; Scott, _Conferences_, pp. 559-563.]

[Footnote 225: The indulgence granted to enemy merchantmen in Russian and j.a.panese ports at the outbreak of the war in 1904, to leave those ports unmolested within a certain period of time, was conditional upon there being no contraband in the cargoes. See Lawrence, _War_, p. 52.]

[Footnote 226: As the seizure of all these articles is, according to article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, seizure must likewise--under the same conditions--be permissible in case these articles are on the territory of a belligerent. As regards rolling stock belonging to private enemy railway companies, see Nowacki, _Die Eisenbahnen im Kriege_ (1906), -- 15.]

[Sidenote: Effect of the Outbreak of War on Merchantmen.]

-- 102_a_. In former times International Law empowered States at the outbreak of war to lay an embargo upon all enemy merchantmen in their harbours in order to confiscate them. And enemy merchantmen on the sea could at the outbreak of war be captured and confiscated although they did not even know of the outbreak of war. As regards enemy merchantmen in the harbours of the belligerents, it became, from the outbreak of the Crimean War in 1854, a usage, if not a custom, that no embargo[227]

could be laid on them for the purpose of confiscating them, and that a reasonable time must be granted them to depart unmolested; but no rule was in existence until the Second Peace Conference of 1907 which prescribed immunity from confiscation for such enemy merchantmen at sea as did not know of the outbreak of war. This Conference took the matter into consideration, and produced a Convention (VI.) relative to the status of enemy merchantmen at the outbreak of hostilities[228] which is signed by all the Powers represented at the Conference, except the United States of America,[229] China, and Nicaragua; but Nicaragua acceded later. In coming to an agreement on the subject, two facts had to be taken into consideration. There is, firstly, the fact that in all maritime countries numerous merchantmen are now built from special designs in order that they may quickly, at the outbreak of or during war, be converted into cruisers; it would therefore be folly on the part of a belligerent to grant any lenient treatment to such vessels. There is, secondly, the fact, that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of colliers, transport vessels, and repairing vessels; it is, therefore, of the greatest importance for a belligerent to have as many merchantmen as possible at his disposal for the purpose of making use of them for such a.s.sistance to the fleet. For this reason, Convention VI. represents a compromise, and it distinguishes between vessels in the harbours of the belligerents and vessels on the sea. Its provisions are the following:--

[Footnote 227: See above, -- 40.]

[Footnote 228: See Lemonon, pp. 647-661; Higgins, pp. 300-307; Nippold, II. pp. 146-153; Scott, _Conferences_, pp. 556-568; Dupuis, _Guerre_, Nos. 74-81; Scott in _A.J._ II. (1908), pp. 260-269.]

[Footnote 229: The United States of America refused to sign the Convention because she considers its stipulations retrogressive as they are less liberal than the practice which has prevailed since 1854. But circ.u.mstances have changed since that time, and the two facts explained in the text would seem to have compelled the maritime Powers to adopt rules somewhat less liberal. This was the more necessary since no agreement could be arrived at concerning the question of the locality in which belligerents should be allowed to convert merchantmen into cruisers.]

(1) Article 1 of the Convention enacts that, in case an enemy merchantman is at the beginning of the war in the port of a belligerent, it is _desirable_ that she should be allowed freely to depart, either immediately or after a sufficient term of grace, and, after being furnished with a pa.s.sport, to proceed either direct to her port of destination or to such other port as may be determined. It is obvious that, since only the desirability of free departure of such vessels is stipulated, a belligerent is not compelled to grant free departure; nevertheless there must be grave reasons for not acting in accordance with what is considered desirable by article 1. And it must be specially observed that a belligerent may make a distinction in the treatment of several enemy vessels in his harbours, and may grant free departure to one or more of them, and refuse it to others, according to his discretion.

(2) The former usage that enemy merchantmen in the harbours of the belligerents at the outbreak of war may not be confiscated, has been made a _binding rule_ by article 2 which enacts that such vessels as were not allowed to leave, or were by _force majeure_ prevented from leaving during the term of grace, may not be confiscated, but may only be detained under the obligation that they shall be restored, without indemnity, after the conclusion of peace, or they may be requisitioned on condition of indemnities to be paid to the owners.

(3) Enemy merchantmen which have left their last port of departure before the outbreak of war and which, while ignorant of the outbreak of war, are met at sea by cruisers of the belligerents, may, according to article 3, be captured, but they may not be confiscated, for they must be restored after the war is ended, although no indemnities need be paid. Indemnities are only to be paid in case the vessels have been requisitioned or destroyed, for a belligerent is empowered to requisition or destroy such vessels provided he takes care to preserve the ship papers and makes arrangements for the safety of the persons on board.

It is obvious that, in case such vessels are not ignorant of the outbreak of war--having, for instance, received the news by wireless telegraphy--they may not any longer claim the privileges stipulated by article 3. And this article stipulates expressly that after having touched a port of their own or of a neutral country, such vessels are no longer privileged.

(4) Enemy goods on board such enemy merchantmen as are in the harbour of a belligerent at the outbreak of war or at sea and are in ignorance of the outbreak of war are, according to article 4, privileged to the same extent as the vessels concerned.

(5) Enemy merchantmen whose construction indicates that they are intended to be converted into cruisers may be seized and confiscated in the harbours of the belligerents, as well as at sea, although ignorant of the outbreak of war, for article 5 stipulates expressly that Convention VI. does not affect such vessels.

CHAPTER III

WARFARE ON LAND

I

ON LAND WARFARE IN GENERAL

Vattel, III. ---- 136-138--Hall, ---- 184-185--Phillimore, III. -- 94--Taylor, -- 469--Wheaton, -- 342--Bluntschli, ---- 534-535--Heffter, -- 125--Lueder in Holtzendorff, IV. pp.

388-389--Gareis, -- 84--Bonfils, Nos. 1066-1067--Pradier-Fodere, VI. Nos. 2734-2741--Longuet, -- 41--Merignhac, p. 146--Pillet, pp.

85-89--_Kriegsbrauch_, p. 9--_Land Warfare_, -- 39--Holland, _War_, Nos. 1-15.

[Sidenote: Aims and Means of Land Warfare.]

-- 103. The purpose of war, namely, the overpowering of the enemy, is served in land warfare through two aims[230]--firstly, defeat of the enemy armed forces on land, and, secondly, occupation and administration of the enemy territory. The chief means by which belligerents try to realise those aims, and which are always conclusively decisive, are the different sorts of force applied against enemy persons. But besides such violence against enemy persons there are other means which are not at all unimportant, although they play a secondary part only. Such means are: appropriation, utilisation, and destruction of enemy property; siege; bombardment; a.s.sault; espionage; utilisation of treason; ruses.

All these means of warfare on land must be discussed in this chapter, as must also occupation of enemy territory.

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

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

-- 104. But--to use the words of article 22 of the Hague Regulations--"the belligerents have not an unlimited right as to the means they adopt for injuring the enemy." For not all possible practices of injuring the enemy in offence and defence are lawful, certain practices being prohibited under all circ.u.mstances and conditions, and other practices being allowed only under certain circ.u.mstances and conditions, or only with certain restrictions. The principles of chivalry and of humanity have been at work[231] for many hundreds of years to create these restrictions, and their work is not yet at an end.

However, apart from these restrictions, all kinds and degrees of force and many other practices may be made use of in war.

[Footnote 231: See above, -- 67.]

[Sidenote: Objects of the Means of Warfare.]

-- 105. In a sense all means of warfare are directed against one object only--namely, the enemy State, which is to be overpowered by all legitimate means. Apart from this, the means of land warfare are directed against several objects.[232] Such objects are chiefly the members of the armed forces of the enemy, but likewise, although in a lesser degree, other enemy persons; further, private and public property, fortresses, and roads. Indeed, apart from certain restrictions, everything may eventually be the object of a means of warfare, provided the means are legitimate in themselves and are capable of fostering the realisation of the purpose of war.

[Footnote 232: See Oppenheim, _Die Objekte des Verbrechens_ (1894), pp.

64-146, where the relation of human actions with their objects is fully discussed.]

[Sidenote: Land Warfare in contradistinction to Sea Warfare.]

-- 106. Land warfare must be distinguished from sea warfare chiefly for two reasons. Firstly, their circ.u.mstances and conditions differ widely from each other, and, therefore, their means and practices also differ.

Secondly, the law-making Conventions which deal with warfare rarely deal with land and sea warfare at the same time, but mostly treat them separately, for whereas some Conventions deal exclusively with warfare on sea, the Hague Regulations (Convention IV.) deal exclusively with warfare on land.

II

VIOLENCE AGAINST ENEMY PERSONS

Grotius, III. c. 4--Vattel, III. ---- 139-159--Hall, ---- 128, 129, 185--Westlake, II. pp. 72-76--Lawrence, ---- 161, 163, 166-169--Maine, pp. 123-148--Manning, pp. 196-205--Phillimore, III. ---- 94-95--Halleck, II. pp. 14-18--Moore, VII. ---- 1111, 1119, 1122, 1124--Taylor, ---- 477-480--Walker, -- 50--Wheaton, ---- 343-345--Bluntschli, ---- 557-563--Heffter, -- 126--Lueder in Holtzendorff, IV. pp. 390-394--Gareis, -- 85--Kluber, -- 244--Liszt, -- 40, III.--G. F. Martens, II. -- 272--Ullmann, -- 176--Bonfils, Nos. 1068-1071, 1099, 1141--Despagnet, Nos.

525-527--Pradier-Fodere, VI. Nos. 2742-2758--Rivier, II. pp.

260-265--Nys, III. pp. 206-209--Calvo, IV. 2098-2105--Fiore, III.

Nos. 1317-1320, 1342-1348, and Code, Nos. 1476-1483--Martens, II.