Letters to "The Times" upon War and Neutrality (1881-1920) Part 13

SECTION 11

_Enemy Property in Occupied Territory_

By Art. 55 of The Hague _Reglement_ of 1899, which reproduces Art. 7 of the Brussels _Projet_, and is repeated as Art. 55 of the _Reglement_ of 1907: "The occupying State shall regard itself as being only administrator and usufructuary of the public buildings, immoveable property, forests and agricultural undertakings belonging to the hostile State and situated in the hostile country. It must protect the substance of these properties and administer them according to the rules of usufruct."

The following letter touches incidentally upon the description of the rights of an invader over certain kinds of State property in the occupied territory as being those of a "usufructuary."

INTERNATIONAL "USUFRUCT"

Sir,--The terminology of the law of nations has been enriched by a new phrase. We are all getting accustomed to "spheres of influence." We have been meditating for some time past upon the interpretation to be put upon "a lease of sovereign rights." But what is an international "usufruct"? The word has, of course, a perfectly ascertained sense in Roman law and its derivatives; but it has been hitherto employed, during, perhaps two thousand years, always as a term of private law--_i.e._ as descriptive of a right enjoyed by one private individual or corporation over the property of another. It is the "ius utendi fruendi, salva rerum substantia." The usufructuary of land not merely has the use of it, but may cut its forests and work its mines, so long as he does not destroy the character of the place as he received it. His interest terminates with his life, though it might also be granted to him for a shorter period. If the grantee be a corporation, in order to protect the outstanding right of the owner an artificial limit is imposed upon the tenure--e.g. in Roman law 100 years, by the French Code 30 years. For details it may suffice to refer to the Inst.i.tutes of Justinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636; the new German Civil Code, sects. 1030-1089.

It remains to be seen how the conception of "usufruct" is to be imported into the relations of sovereign States, and, more especially, what are to be the relations of the usufructuary to States other than the State under which he holds. It is, of course, quite possible to adapt the terms of Roman private law to international use. "Dominium,"

"Possessio," "Occupatio," have long been so adapted, but it has yet to be proved that "Usufructus" is equally malleable. I can recall no other use of the term in international discussions than the somewhat rhetorical statement that an invader should consider himself as merely the "usufructuary" of the resources of the country which he is invading; which is no more than to say that he should use them "en bon pere de famille." It will be a very different matter to put a strict legal construction upon the grant of the "usufruct" of Port Arthur. By way of homage to the conception of such a grant, as presumably creating at the outside a life-interest, Russia seems to have taken it, in the first instance, only for twenty-five years. One may, however, be pardoned for sharing, with reference to this transaction, the scruples which were felt at Rome as to allowing the grant of a usufruct to a corporation--"periculum enim esse videbatur, ne perpetuus fieret."

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, March 30 (1898).

P.S.--It would seem from M. Lehr's _elements du droit civil Russe_ that "usufruct" is almost unknown to the law of Russia, though a restricted form of it figures in the code of the Baltic provinces.

It is certain that, apart from general conventions, international law imposes no liability on an invader to pay for requisitioned property or services, or to honour any receipts which he may have given for them.

The Hague Convention of 1899 made no change in this respect.

Arts. 51 and 52 of the _Reglement_ annexed to the Convention direct, it is true, that receipts should be given for contributions ("un recu sera delivre aux contribuables") also for requisitions in kind, if not paid for ("elles seront constatees par des recus"), but these receipts were to be merely evidence that money or goods have been taken, and it was left an open question, by whom, if at all, compensation was to be made or the losses thus established.

The _Reglement_ of 1907 is more liberal than that of 1899 with reference to requisitioned property (though not with reference to contributions). By the new Art. 52, "supplies furnished in kind shall be paid for, so far as possible, on the spot. If not, they shall be vouched for (_constatees_) by receipts, and payment of the sums due shall be made as soon as may be." The Hague Convention mentioned in the following letter is, of course, that of 1899.

REQUISITIONS IN WARFARE

Sir,--A few words of explanation may not be out of place with reference to a topic touched upon last night in the House of Commons--viz. the liability of the British Government to pay for stock requisitioned during the late war from private enemy owners. It should be clearly understood that no such liability is imposed by international law. The commander of invading forces may, for valid reasons of his own, pay cash for any property which he takes, and, if he does not do so, is nowadays expected to give receipts for it. These receipts are, however, not in the nature of evidence of a contract to pay for the goods. They are intended merely to _constater_ the fact that the goods have been requisitioned, with a view to any indemnity which may eventually be granted to the sufferers by their own Government. What steps should be taken by a Government towards indemnifying enemies who have subsequently become its subjects, as is now happily the case in South Africa, is a question not of international law, but of grace and favour.

An article in the current number of the _Review of Reviews_, to which my attention has just been called, contains some extraordinary statements upon the topic under discussion. The uninformed public is a.s.sured that "we owe the Boers payment in full for all the devastation which we have inflicted upon their private property ... it is our plain legal obligation, from the point of view of international law, to pay it to the last farthing." Then The Hague Convention is invoked as permitting interference with private property "only on condition that it is paid for in cash by the conqueror, and, if that is not possible at the moment, he must in every case give a receipt, which he must discharge at the conclusion of hostilities." There is no such provision as to honouring receipts in this much-misquoted convention.

Your obedient servant, T. E. HOLLAND.

Oxford, July 30 (1962).

SECTION 12

_Enemy Property at Sea_

PRIVATE PROPERTY AT SEA

Sir,--The letter which you print this morning from Mr. Charles Stewart can hardly be taken as a serious contribution to the discussion of a question which has occupied for many years the attention of politicians, international lawyers, shipowners, traders, and naval experts. Mr.

Stewart actually thinks that Lord Sydenham's argument to the effect that "the fear of the severe economic strain which must result from the stoppage of a great commerce is a factor which makes for peace" may be fairly paraphrased as advice to "retain the practice because it is so barbarous that it will sicken the enemy of warfare." He goes on to say that this argument "would apply equally to the poisoning of wells and to the use of explosive bullets."

It may be worth while to contrast with the att.i.tude of a writer who seems unable to distinguish between economic pressure and physical cruelty that taken up by a competent body, the large majority of the members of which belong to nations which, for various reasons, incline to the abolition of the usage in question. The Inst.i.tut de Droit International, encouraged by the weight attached to its _Manual of the Law of War on Land_ by the first and second Peace Conferences, has been, for some time past, working upon a _Manual of the Laws of War at Sea_.

At its Christiania meeting in 1912 the Inst.i.tut, while maintaining the previously expressed opinion of a majority of its members in favour of a change in the law, recognised that such a change has not yet come to pa.s.s, and that, till it occurs, regulations for the exercise of capture are indispensable, and directed the committee charged with the topic to draft rules presupposing the right of capture, and other rules to be applied should the right be hereafter surrendered (_Annuaire_, t. xxv., p. 602).

The committee accordingly prepared a draft, framed in accordance with the existing practice, to the discussion of which the Inst.i.tut devoted the whole of its recent session at Oxford, eventually giving its _imprimatur_ to a Manual of the law of maritime warfare, as between the belligerents, in 116 articles. As opportunity serves, the committee will prepare a second draft, proceeding upon the hypothesis that the right of capturing private property at sea has been surrendered, which, in its turn, will be debated, word for word, by the Inst.i.tut de Droit International.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, November 4 (1913).

SECTION 13

_Martial Law_

The first of the letters which follow has reference to the case of two Boer prisoners who, having taken the oath of neutrality on the British occupation of Pretoria, attempted to escape from the town. Both were armed, and one of them fired upon and wounded a sentinel who called upon them to stop. They were tried by court-martial, condemned to death, and shot on June 11, 1901. The Hague Convention quoted in the letter is that of 1899, but the same Art. 8 figures in the Convention of 1907.

The second and third of these letters relate to a question of English public law, growing out of the exercise of martial law in British territory in time of war. One Marais, accused of having contravened the martial law regulations of May 1, 1901, was imprisoned in Cape Colony by military authority, and the Supreme Court at the Cape held that it had no authority to order his release. The Privy Council refused an application for leave to appeal against this decision, saying that "no doubt has ever existed that, when war actually prevails, the ordinary courts have no jurisdiction over the action of the military authorities"; adding that "the framers of the Pet.i.tion of Right knew well what they meant when they made a condition of peace the ground of the illegality of unconst.i.tutional procedure"

(_Ex parte_ D.F. Marais, [1902] A.C. 109). Thereupon arose a discussion as to the extent of the prohibition of the exercise of martial law contained in the Pet.i.tion of Right; and Mr.

Edward Jenks, in letters to _The Times_ of December 27, 1901, and January 4, 1902, maintained that the prohibition in question was not confined to time of peace.

The last letter deals with the true character of a Proclamation of Martial Law, and was suggested by the refusal of the Privy Council, on April 2, 1906, to grant leave to appeal from sentences pa.s.sed in Natal by court-martial, in respect of acts committed on February 8, 1906, whereby retrospective effect had, it was alleged, been given to a proclamation not issued till the day after the acts were committed, _See_ Mcomini Mzinelwe and Wanda _v._ H.E. the Governor and the A.G. for the Colony of Natal, 22 _Times Law Reports_, 413.

THE EXECUTIONS AT PRETORIA

Sir,--No doubt is possible that by international law, as probably by every system of national law, all necessary means, including shooting, may be employed to prevent the escape of a prisoner of war. The question raised by the recent occurrence at Pretoria is, however, a different one--viz. What are the circ.u.mstances in connection with an attempt to escape which justify execution after trial by court-martial of the persons concerned in it? This question may well be dealt with a part from the facts, as to which we are as yet imperfectly informed, which have called for Mr. Winston Churchill's letter. With the arguments of that letter I in the main agree, but should not attach so much importance as Mr. Churchill appears to do to a chapter of the British _Manual of Military Law_, which, though included in a Government publication, cannot be taken as official, since it is expressly stated "to have no official authority" and to "express only the opinions of the compiler, as drawn from the authorities cited."

I propose, without comment, to call attention to what may be found upon this subject in conventional International Law, in one or two representative national codes, and in the considered judgment of the leading contemporary international lawyers.

I. The Hague "Convention on the laws and customs of war on land"

(ratified by twenty Powers) lays down:--

"ARTICLE 8.--Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption as regards them of such measures of severity as may be necessary. Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment. Prisoners who after succeeding in escaping are again taken prisoners are not liable to any punishment for their previous flight."

The Hague Conference, in adopting this article, adopted also, as an "authentic interpretation" of it, a statement that the indulgence granted to escapes does not apply to such as are accompanied by "special circ.u.mstances," of which the instances given are "complot, rebellion, emeute."

"ARTICLE 12.--Any prisoner of war who is liberated on parole and recaptured bearing arms against the Government to which he had pledged his honour, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be put on his trial."

II. The United States Instructions:--

"ARTICLE 77.--A prisoner of war may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted on him simply for his attempt.... If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished even with death, &c."

"ARTICLE 78.--If prisoners of war, having given no pledge nor made any promise on their honour, forcibly or otherwise, escape, and are captured again in battle, having rejoined their own army, they shall not be punished for their escape."

"ARTICLE 124.--Breaking the parole is punished with death when the person breaking the parole is captured again."