International Law. A Treatise Volume Ii Part 20

[Footnote 285: The case of enemy merchantmen seized in a belligerent's territorial waters is, of course, an exception.]

VII

REQUISITIONS AND CONTRIBUTIONS

Vattel, III. -- 165--Hall, -- 140-140*--Lawrence, -- 180--Westlake, II. pp. 96-102--Maine, p. 200--Twiss, II. -- 64--Halleck, II. pp.

68-69--Taylor, ---- 538-539--Moore, VII. -- 1146--Bluntschli, ---- 653-655--Heffter, -- 131--Lueder in Holtzendorff, IV. pp.

500-510--Ullmann, -- 183--Bonfils, Nos. 1207-1226--Despagnet, Nos.

587-590--Pradier-Fodere, VII. Nos. 3048-3064--Rivier, II. pp.

323-327--Nys, III. pp. 368-432--Calvo, IV. ---- 2231-2284--Fiore, III. Nos. 1394, 1473-1476--Martens, II. -- 120--Longuet, ---- 110-114--Merignhac, pp. 272-298--Pillet, pp. 215-235--Zorn, pp.

283-315--_Kriegsbrauch_, pp. 61-63--Holland, _War_, Nos.

111-112--Bordwell, pp. 314-324--Meurer, II. ---- 56-60--Spaight, pp.

381-408--Ariga, ---- 116-122--_Land Warfare_, ---- 416-425--Thomas, _Des requisitions militaires_ (1884)--Keller, _Requisition und Kontribution_ (1898)--Pont, _Les requisitions militaires du temps de guerre_ (1905)--Albrecht, _Requisitionen von neutralem Privateigentum, etc._ (1912), pp. 1-24:--Risley in the _Journal of the Society of Comparative Legislation_, new series, vol. II.

(1900), pp. 214-223.

[Sidenote: War must support War.]

-- 146. Requisitions and contributions in war are the outcome of the eternal principle that war must support war.[286] This means that every belligerent may make his enemy pay as far as possible for the continuation of the war. But this principle, though it is as old as war and will only die with war itself, has not the same effect in modern times on the actions of belligerents as it formerly had. For thousands of years belligerents used to appropriate all private and public enemy property they could obtain, and, when modern International Law grew up, this practice found legal sanction. But after the end of the seventeenth century this practice grew milder under the influence of the experience that the provisioning of armies in enemy territory became more or less impossible when the inhabitants were treated according to the old principle. Although belligerents retained in strict law the right to appropriate all private besides all public property, it became usual to abstain from enforcing such right, and in lieu thereof to impose contributions of cash and requisitions in kind upon the inhabitants of the invaded country.[287] And when this usage developed, no belligerent ever thought of paying in cash for requisitions, or giving a receipt for them. But in the nineteenth century another practice became usual.

Commanders then often gave a receipt for contributions and requisitions, in order to avoid abuse and to prevent further demands for fresh contributions and requisitions by succeeding commanders without knowledge of the former impositions. And there are instances of cases during the nineteenth century on record in which belligerents actually paid in cash for all requisitions they made. The usual practice at the end of the nineteenth century was that commanders always gave a receipt for contributions, and that they either paid in cash for requisitions or acknowledged them by receipt, so that the respective inhabitants could be indemnified by their own Government after conclusion of peace.

However, no restriction whatever was imposed upon commanders with regard to the amount of contributions and requisitions, and with regard to the proportion between the resources of a country and the burden imposed.

The Hague Regulations have now settled the matter of contributions and requisitions in a progressive way by enacting rules which put the whole matter on a new basis. That war must support war remains a principle under these regulations also. But they are widely influenced by the demand that the enemy State as such, and not the private enemy individuals, should be made to support the war, and that only so far as the necessities of war demand it should contributions and requisitions be imposed. Although certain public moveable property and the produce of public immoveables may be appropriated as heretofore, requisitions must be paid for in cash or, if this is impossible, acknowledged by receipt.

[Footnote 286: Concerning the controversy as to the justification of Requisitions and Contributions, see Albrecht, _op. cit._ pp. 18-21.]

[Footnote 287: An excellent sketch of the historical development of the practice of requisitions and contributions is given by Keller, _Requisition und Kontribution_ (1898), pp. 5-26.]

[Sidenote: Requisitions in Kind, and Quartering.]

-- 147. Requisition is the name for the demand for the supply of all kinds of articles necessary for an army, such as provisions for men and horses, clothing, or means of transport. Requisition of certain services may also be made, but they will be treated below in -- 170 together with occupation, requisitions in kind only being within the scope of this section. Now, what articles may be demanded by an army cannot once for all be laid down, as they depend upon the actual need of an army.

According to article 52 of the Hague Regulations, requisitions may be made from munic.i.p.alities as well as from inhabitants, but they may be made so far only as they are really necessary for the army. They may not be made by individual soldiers or officers, but only by the commander in the locality. All requisitions must be paid for in cash, and if this is impossible, they must be acknowledged by receipt, and the payment of the amount must be made as soon as possible. The principle that requisitions must be paid for by the enemy is thereby absolutely recognised, but, of course, commanders-in-chief may levy contributions--see below, -- 148--in case they do not possess cash for the payment of requisitions. However this may be, by the rule that requisitions must always be paid for, it again becomes apparent and beyond all doubt that henceforth private enemy property is as a rule exempt from appropriation by an invading army.

A special kind of requisition is the quartering[288] of soldiers in the houses of private inhabitants of enemy territory, by which each inhabitant is required to supply lodging and food for a certain number of soldiers, and sometimes also stabling and forage for horses.

Although the Hague Regulations do not specially mention quartering, article 52 is nevertheless to be applied to it, since quartering is nothing else than a special kind of requisition. If cash cannot be paid at once for quartering, every inhabitant concerned must get a receipt for it, stating the number of soldiers quartered and the number of days they were catered for, and the payment of the amount must be made as soon as possible.

[Footnote 288: See above, -- 143.]

But it must be specially observed, that neither in the case of ordinary requisitions nor in the case of quartering of troops is a commander compelled to pay the prices asked by the inhabitants concerned. On the contrary, he may fix the prices himself, although it is expected that the prices paid shall be fair.

[Sidenote: Contributions.]

-- 148. Contribution is a payment in ready money demanded either from munic.i.p.alities or from inhabitants, whether enemy subjects or foreign residents. Whereas formerly no general rules concerning contributions existed, articles 49 and 51 of the Hague Regulations now enact that contributions may not be demanded extortionately, but exclusively[289]

for the needs of the army, in order, for instance, to pay for requisitions or for the administration of the locality in question. They may be imposed by a written order of a commander-in-chief only, in contradistinction to requisitions which may be imposed by a mere commander in a locality. They may not be imposed indiscriminately on the inhabitants, but must so far as possible be a.s.sessed upon such inhabitants in compliance with the rules in force of the respective enemy Government regarding the a.s.sessment of taxes. And, finally, for every individual contribution a receipt must be given. It is apparent that these rules of the Hague Regulations try to exclude all arbitrariness and despotism on the part of an invading enemy with regard to contributions, and that they try to secure to the individual contributors as well as to contributing munic.i.p.alities the possibility of being indemnified afterwards by their own Government, thus shifting, so far as possible, the burden of supporting the war from private individuals and munic.i.p.alities to the State proper.[290]

[Footnote 289: As regards contributions as a penalty, see article 50 of the Hague Regulations. See also Keller, _op. cit._ pp. 60-62.]

[Footnote 290: It is strange to observe that _Kriegsbrauch_, pp. 61-63, does not mention the Hague Regulations at all.]

VIII

DESTRUCTION OF ENEMY PROPERTY

Grotius, III. c. 5, ---- 1-3; c. 12--Vattel, III. ---- 166-168--Hall, -- 186--Lawrence, -- 206--Manning, p. 186--Twiss, II. ---- 65-69--Halleck, II. pp. 63, 64, 71, 74--Taylor, ---- 481-482--Wharton, III. -- 349--Moore, VII. -- 1113--Wheaton, ---- 347-351--Bluntschli, ---- 649, 651, 662, 663--Heffter, -- 125--Lueder in Holtzendorff, IV. pp. 482-485--Kluber, -- 262--G. F. Martens, II. -- 280--Ullmann, -- 176--Bonfils, Nos. 1078, 1178-1180--Pradier-Fodere, VI. Nos. 2770-2774--Rivier, II. pp.

265-268--Nys, III. pp. 220-223--Calvo, IV. ---- 2215-2222--Fiore, III. Nos. 1383-1388, and Code, Nos. 1525-1529--Martens, II. -- 110--Longuet, ---- 99, 100--Merignhac, pp. 266-268--_Kriegsbrauch_, pp. 52-56--Holland, _War_, Nos. 3 and 76 (_g_)--Bordwell, p.

84--Spaight, pp. 129-140--_Land Warfare_, ---- 414, 422, 426, 427, 434.

[Sidenote: Wanton destruction prohibited.]

-- 149. In former times invading armies frequently used to fire and destroy all enemy property they could not make use of or carry away.

Afterwards, when the practice of warfare grew milder, belligerents in strict law retained the right to destroy enemy property according to discretion, although they did not, as a rule, any longer make use of such right. Nowadays, however, this right is obsolete. For in the nineteenth century it became a universally recognised rule of International Law that all useless and wanton destruction of enemy property, be it public or private, is absolutely prohibited. And this rule has now been expressly enacted by article 23 (_g_) of the Hague Regulations, where it is categorically enacted that "to destroy ...

enemy's property, unless such destruction ... be imperatively demanded by the necessities of war, is prohibited."

[Sidenote: Destruction for the purpose of Offence and Defence.]

-- 150. All destruction of and damage to enemy property for the purpose of offence and defence is _necessary_ destruction and damage, and therefore lawful. It is not only permissible to destroy and damage all kinds of enemy property on the battlefield during battle, but also in preparation for battle or siege. To strengthen a defensive position a house may be destroyed or damaged. To cover the retreat of an army a village on the battlefield may be fired. The district around an enemy fortress held by a belligerent may be razed, and, therefore, all private and public buildings, all vegetation may be destroyed, and all bridges blown up within a certain area. If a farm, a village, or even a town is not to be abandoned but prepared for defence, it may be necessary to damage in many ways or entirely destroy private and public property.

Further, if and where a bombardment is lawful, all destruction of property involved in it becomes likewise lawful. When a belligerent force obtains possession of an enemy factory for ammunition or provisions for the enemy troops, if it is not certain that they can hold it against an attack, they may at least destroy the plant, if not the buildings. Or if a force occupies an enemy fortress, they may raze the fortifications. Even a force intrenching themselves on a battlefield may be obliged to resort to the destruction of many kinds of property.

[Sidenote: Destruction in marching, reconnoitring, and conducting Transport.]

-- 151. Destruction of enemy property in marching troops, conducting military transport, and in reconnoitring, is likewise lawful if unavoidable. A reconnoitring party need not keep on the road if they can better serve their purpose by riding across the tilled fields. And troops may be marched and transport may be conducted over crops when necessary. A humane commander will not unnecessarily allow his troops and transport to march and ride over tilled fields and crops. But if the purpose of war necessitates it he is justified in so doing.

[Sidenote: Destruction of Arms, Ammunition, and Provisions.]

-- 152. Whatever enemy property a belligerent may appropriate he may likewise destroy. To prevent the enemy from making use of them a retreating force may destroy arms, ammunition, provisions, and the like, which they have taken from the enemy or requisitioned and cannot carry away. But it must be specially observed that they may not destroy provisions in the possession of private enemy inhabitants in order to prevent the enemy from making use of them in the future.[291]

[Footnote 291: Nor is a commander allowed to requisition such provisions in order to have them destroyed, for article 52 of the Hague Regulations expressly enacts that requisitions are only admissible for the necessities of the army.]

[Sidenote: Destruction of Historical Monuments, Works of Art, and the like.]

-- 153. All destruction of and damage to historical monuments, works of art and science, buildings for charitable, educational, and religious[292] purposes are specially prohibited by article 56 of the Hague Regulations which enacts that the perpetrators of such acts must be prosecuted (_poursuivie_), that is court-martialed. But it must be emphasised that these objects enjoy this protection only during military occupation of enemy territory. Should a battle be waged around an historical monument on open ground, should a church, a school, or a museum be defended and attacked during military operations, these otherwise protected objects may be damaged or destroyed under the same conditions as other enemy property.

[Footnote 292: It is of importance to state the fact that, according to Grotius (III. c. 5, ---- 2 and 3), destruction of graves, tombstones, churches, and the like is not prohibited by the Law of Nations, although he strongly (III. c. 12, ---- 5-7) advises that they should be spared unless their preservation is dangerous to the interests of the invader.]

[Sidenote: General Devastation.]

-- 154. The question must also be taken into consideration whether and under what conditions general devastation of a locality, be it a town or a larger part of enemy territory, is permitted. There cannot be the slightest doubt that such devastation is as a rule absolutely prohibited and only in exceptional cases permitted when, to use the words of article 23 (_g_) of the Hague Regulations, it is "imperatively demanded by the necessities of war." It is, however, impossible to define once for all the circ.u.mstances which make a general devastation necessary, since everything depends upon the merits of the special case. But the fact that a general devastation can be lawful must be admitted. And it is, for instance, lawful in case of a levy _en ma.s.se_ on already occupied territory, when self-preservation obliges a belligerent to resort to the most severe measures. It is also lawful when, after the defeat of his main forces and occupation of his territory, an enemy disperses his remaining forces into small bands which carry on guerilla tactics and receive food and information, so that there is no hope of ending the war except by a general devastation which cuts off supplies of every kind from the guerilla bands. But it must be specially observed that general devastation is only justified by imperative necessity and by the fact that there is no better and less severe way open to a belligerent.[293]

[Footnote 293: See Hall, -- 186, who gives _in nuce_ a good survey of the doctrine and practice of general devastation from Grotius down to the beginning of the nineteenth century. See also Spaight, pp. 125-139.]

Be that as it may, whenever a belligerent resorts to general devastation he ought, if possible, to make some provision for the unfortunate peaceful population of the devastated tract of territory. It would be more humane to take them away into captivity rather than let them perish on the spot. The practice, resorted to during the South African war, to house the victims of devastation in concentration camps, must be approved. The purpose of war may even oblige a belligerent to confine a population forcibly[294] in concentration camps.

[Footnote 294: See above, p. 153, note 1. As regards the devastation resorted to during the South African War, and as regards the concentration camps inst.i.tuted in consequence of devastation during this war, see Beak, _The Aftermath of War_ (1906), pp. 1-30, and _The Times'

History of the War in South Africa_, vol. V. pp. 250-252.]

IX

a.s.sAULT, SIEGE, AND BOMBARDMENT