Letters to "The Times" upon War and Neutrality (1881-1920) Part 5

CHAPTER V

THE COMMENCEMENT OF WAR

SECTION 1

_Declaration of War_

The following letter bears upon the question, much discussed in recent years, of the lawfulness of hostilities commenced without anything amounting to a declaration of war. Although several modern wars, e.g. the Franco-Prussian of 1870, and the Russo-Turkish of 1877, were preceded by declaration, it was hardly possible, in view of the practice of the last two centuries, to maintain, that this was required by international law, and it has never been alleged that any definite interval need intervene between a declaration and the first act of hostilities. On the destruction of the _Kowshing_, the present writer may further refer to his _Studies in International Law_, 1898, p. 126, and to Professor Takahashi's _International Law during the Chino-j.a.panese War_, 1899, pp. 24, 192. But see now the note at the end of the "Letter" which follows.

THE SINKING OF THE _KOWSHING_

Sir,--The words of soberness and truth were spoken with reference to the sinking of the _Kowshing_ in the letter from Professor Westlake which you printed on Friday last. Ignorance dies hard, or, after the appearance of that letter and of your remarks upon it, one might have expected that leading articles would be less lavishly garnished with such phrases as "act of piracy," "war without declaration," "insult to the British flag," "condign punishment of the j.a.panese commander." But these flowers of speech continue to blossom; and, now that the facts of the case seem to be established beyond reasonable doubt by the telegrams of this morning, I should be glad to be allowed to state shortly what I believe will be the verdict of international law upon what has occurred.

If the visiting, and eventual sinking, of the _Kowshing_ occurred in time of peace, or in time of war before she had notice that war had broken out, a gross outrage has taken place. But the facts are otherwise.

In the first place, a state of war existed. It is trite knowledge, and has been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, not preceded by declaration. How frequently this has occurred in practice may be seen from a glance at an historical statement prepared for the War Office by Colonel Maurice _a propos_ of the objections to a Channel tunnel. Whether or no hostilities had previously occurred upon the mainland, I hold that the acts of the j.a.panese commander in boarding the _Kowshing_ and threatening her with violence in case of disobedience to his orders were acts of war.

In the second place, the _Kowshing_ had notice of the existence of a war, at any rate from the moment when she received the orders of the j.a.panese commander.

The _Kowshing_, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a _ruse de guerre_ or otherwise, is wholly immaterial.) Her liabilities, as such ship, were twofold:--

1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a j.a.panese Prize Court. If, as was the fact, it was practically impossible for a j.a.panese prize crew to be placed on board of her, the j.a.panese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.

2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the _Kowshing_ was clearly part of a hostile expedition, or one which might be treated as hostile, which the j.a.panese were ent.i.tled, by the use of all needful force, to prevent from reaching its destination.

The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the _Kowshing_, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the j.a.panese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents _inter se_; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the j.a.panese commander by the rules of chivalrous dealing or of humanity.

Your obedient servant, T. E. HOLLAND.

Athenaeum Club, August 6 (1894)

The controversy caused by the sinking of the _Kowshing_ in 1894 was revived by the manner of the j.a.panese attack upon Port Arthur, in 1904 (see Professor Takahashi's _International Law applied to the Russo-j.a.panese War_, 1908, p. 1), and led to a careful study of the subject by a committee of the Inst.i.tut de Droit International, resulting in the adoption by the Inst.i.tut, at its Ghent Meeting in 1906, of the following resolutions:--

(1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning.

(2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war.

(3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded." See the _Annuaire de l'Inst.i.tut_, t, xxi. p. 292.

In accordance with the principles underlying the first and second of these resolutions, The Hague Convention, No. iii. of 1907 (ratified generally by Great Britain on November 27, 1909), has now laid down as a principle of International Law, binding upon the contracting Powers, that--

(1) "Hostilities between them ought not to commence without a warning previously given and unequivocal, in the form either of a reasoned declaration of war, or of an ultimatum, with a conditional declaration of war."

And the Convention goes on to provide that--

(2) "The state of war ought to be notified without delay to neutral Powers, and shall be of no effect with reference to them, until after a notification, which may be made even telegraphically. Nevertheless, neutral Powers may not plead absence of notification, if it has been shown beyond question that they were in fact cognisant of the state of war." Any reference to the need of an interval between declaration and the first act of hostility (such as is contained in the third of the resolutions of the Inst.i.tut) was deliberately omitted from the Convention, although a declaration immediately followed by an attack would obviously be of little service to the party attacked. (See the present writer's _Laws of War on Land (written and unwritten)_, 1908, P. 18.)

SECTION 2

_The Immediate Effects of the Outbreak of War_

_Enemy Residents_

Before any actual hostilities have taken place, each belligerent acquires, _ipso facto_, certain new rights over persons and property belonging to the other, which happen to be at the time within its power, e.g. the right, much softened in modern practice, and specifically dealt with in The Hague Convention, No. vi. of 1907, of capturing enemy merchant vessels so situated.

The following letter deals with the permissible treatment of enemy persons so situated; and was suggested by a question asked in the House of Commons on February 25, 1909, by Mr.

Arnold-Forster: viz. "What would be the _status_ of officers and men of the regular Army of a hostile belligerent Power, found within the limits of the United Kingdom after an act or declaration of war; and would such persons be liable to be treated as prisoners of war, or would they be despatched under the protection of the Government to join the forces of the enemy?" The general effect of the Attorney-General's reply may be gathered from the quotations from it made in the letter.

The topic was again touched upon on March 3, in a question put by Captain Faber, to which Mr. Haldane replied.

FOREIGN SOLDIERS IN ENGLAND

Sir,--The question raised last night by Mr. Arnold-Forster is one which calls for more careful consideration than it appears yet to have received. International law has in modern times spoken with no very certain voice as to the permissible treatment of alien enemies found within the territory of a belligerent at the outbreak of war.

There is, however, little doubt that such persons, although now more usually allowed to remain, during good behaviour, may be expelled, and, if necessary, wholesale, as were Germans from France in 1870. But may such persons be, for good reasons, arrested, or otherwise prevented from leaving the country, as Germans were prevented from leaving France in the earlier days of the Franco-Prussian War? Grotius speaks with approval of such a step being taken, "ad minuendas hostium vires."

Bynkershoek, more than a century later, recognises the right of thus acting, "though it is rarely exercised." So the Supreme Court of the United States in _Brown v. United States_ (1814). So Chancellor Kent (1826), and Mr. Manning (1889) is explicit that the arrest in question is lawful, and that "the individuals are prisoners of war."

Vattel, is it true (1758), ventures to lay down that--

"Le Souverain qui declare la guerre ne peut retenir les sujets de ennemi qui se trouvent dans ses etats au moment de la declaration ... en leur permettant d'entrer dans ses terres et d'y sejourner, il leur a promis tacitement toute liberte et toute surete pour le retour."

And he has been followed by some recent writers. There is, however, I venture to hold, no ground for a.s.serting that this indulgent system is imposed by international law. I am glad, therefore, to find the Attorney-General laying down that--

"for strictly military reasons, any nation is ent.i.tled to detain and to intern soldiers found upon the territory at the outbreak of war."

And I should be surprised if, under all circ.u.mstances, as the learned Attorney-General seems to think probable--

"England would follow, whatever the strict law may be, the humane and chivalrous practice of modern times, and would give to any subjects of a hostile Power who might be found here engaging in civilian pursuits a reasonable time within which to leave for their own country, even although they were under the obligation of entering for service under the enemy's flag."

The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.

There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.

I am only concerned to maintain that, as far as international law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.

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

Oxford, February 25 (1909).

_Civil Disabilities of Alien Enemies_