INTERNATIONAL LAW OF WAR
CHAPTER XVI
WAR
§ 94. Definition
Gentilis, one of the earliest writers on the laws of war, defined war in 1588 as "a properly conducted contest of armed public forces."[292] The nature of such contests varied with circumstances, and wars were, accordingly, classified by early writers as public, private, mixed, etc., distinctions that now have little more than historical value.[293] Wars are now sometimes classified as international and civil.
§ 95. Commencement
It is now assumed that peace is the normal relation of states. When these relations become strained it is customary for one or both of the states to indicate this condition by discontinuing some of the means of peaceful intercommunication, or by some act short of war. The withdrawal of a diplomatic representative, an embargo, or any similar action does not mark the commencement of war. War commences with the first act of hostilities, unless a declaration fixes an earlier date, and in case of a declaration subsequent to the first act of hostilities, war dates from the first act. A proclamation of the blockade of Cuban ports preceded the declaration of war between Spain and the United States in 1898.[294] Similarly, hostilities were begun before the declaration of war between China and Japan in 1894.[295] Indeed, few of the wars of the last two centuries have been declared before the outbreak of hostilities, and many have not been declared formally at all. Declaration at the present time is usually but a formal acknowledgment of a well-known fact. In the case of the war in South Africa, early in October, 1899, the government of the Transvaal requested the government of Great Britain to give "an immediate and affirmative answer" not later than 5 P.M. on October 11th to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as "a formal declaration of war." The government of Great Britain replied that the conditions demanded were such that the government deemed it impossible to discuss them. Hostilities immediately followed.
Civil war naturally is not preceded by a declaration, but exists from the time of the recognition of the belligerency by an outside state, or from the date when the parent state engaged in some act of war against the insurgent party.[296] In the case of the Civil War in the United States, the proclamation of blockade of the Southern ports by President Lincoln was held to be sufficient acknowledgment of a state of war.[297]
§ 96. Declaration
In ancient times wars between states were entered upon with great formality. A herald whose person was inviolate brought the challenge, or formal declaration, which received reply with due formality. At the beginning of the eighteenth century this practice had become unusual, and in the days of Vattel (1714-1767) the theory of the necessity of a formal declaration was set aside. It was, however, maintained that a proclamation or manifesto should be issued for the information of the subjects of the states parties to the war, and for the information of neutrals. The practice is now generally followed, and may be regarded as obligatory.[298] Such action is reasonable in view of the changes which a state of war brings about in the relations of the parties concerned, and of neutrals. The proclamations usually specify the date from which the war begins, and hence have weight in determining the nature of acts prior to the proclamation, as the legal effects of war date from the first act of hostilities if the proclamation does not fix an earlier date. The constitution of a state, written or unwritten, determines in what hands the right to declare war shall rest, e.g. in the United States in Congress.
By act of the United States Congress of April 25, 1898,[299] it was declared:—
"First, That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety eight, including said day, between the United States of America and the Kingdom of Spain.
"Second, That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect."[300]
§ 97. Object
The object of war may be considered from two points of view, the political and the military. International law cannot determine the limits of just objects for which a state may engage in war. Politically the objects have covered a wide range, though there is a growing tendency to limit the number of objects for which a state may go to war. It is generally held that self-preservation is a proper object, but as each state must decide for itself what threatens its existence and well-being, even this object may be very broadly interpreted. History shows that it has not been difficult from the political point of view to find an object of war when the inclination was present in the state. The nominal are often not the real objects, and the changing conditions during the progress of the war may make the final objects quite different from the initial objects. The simple cost of carrying on hostilities sometimes changes the conditions upon which peace can be made. The classification of causes and objects formerly made have little weight in determining whether a state will enter upon war. The questions of policy and conformity to current standards are the main ones at the present time.
The object of war in the military sense "is a renewed state of peace,"[301] or as stated in the English manual, "to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money." The "Institute of International Law," Oxford session of 1880, gave as a general principle that the only legitimate end that a state may have in war is to weaken the military strength of the enemy.[302]
§ 98. General Effects
The general and immediate effects of war are:—
(a) To suspend all non-hostile intercourse between the states parties to the war.
(b) To suspend the ordinary non-hostile intercourse between the citizens of the states parties to the war.
(c) To introduce new principles in the intercourse of the states parties to the war with third states. These impose new duties upon neutrals and allies.
(d) To abrogate or suspend certain treaties:—
(1) To abrogate those treaties which can have force only in time of peace, e.g. of amity, commerce, navigation, etc.
(2) To suspend those treaties which are permanent and naturally revive at the end of the war, e.g. of boundaries, public debts, etc.
(3) To bring into operation treaties concerning the conduct of hostilities.
The fuller consideration of the effects of war upon general relations will be found in the succeeding chapters.
CHAPTER XVII
STATUS OF PERSONS IN WAR
§ 99. Persons affected by War
(a) By the strict theory of war "the subjects of enemy states are enemies."[303] The treatment of the subjects of enemy states is not, however, determined by the allegiance alone, but in part by conduct and in part by domicile of the subject.
(b) The subjects of neutral states are affected by their relations to the hostile states as established by their own government, as determined by their conduct, and as determined by their domicile.
(c) By conduct persons are divided into combatants and non-combatants, according as they do or do not participate in the hostilities. The status of such persons may be further modified by domicile or by political allegiance.
§ 100. Combatants
Combatants in the full sense are the regularly authorized military and naval forces of the states. They are liable to the risks and entitled to the immunities of warfare, and if captured become prisoners of war.
(a) The status of combatants is also allowed to two classes which engage in defensive hostilities:—
(1) The officers and crew of a merchant vessel which defends itself by force are liable to capture as prisoners of war.
(2) With regard to levies en masse much difference of opinion exists. Article 10 of the Declaration of Brussels, 1874, was adopted at the Hague Conference in 1899, and may be considered as representing a generally accepted position, namely, "The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9 [providing for responsible leader, uniform, etc.], shall be considered as belligerents, if they respect the laws and customs of war."[304]
(b) The status of combatants is not allowable for those who, without state authorization, engage in aggressive hostilities.
(1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protection.
(2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in offensive hostilities, they are liable to the same treatment as above mentioned.
(3) Spies are those who, acting secretly or under false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the intention of communicating it to the opposing force.[305] Such agents are not forbidden, but are liable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging. The office of spy is not necessarily dishonorable.
§ 101. Non-combatants
Non-combatants include those who do not participate in the hostilities. In practice this status is generally conceded to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hardships consequent upon war.
(a) When the armed forces of one state obtain authority over territory previously occupied by the other state, the non-combatant population is free from all violence or constraint other than that required by military necessity. They are liable, however, to the burdens imposed by civilized warfare.
(b) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times detained as prisoners. While Grotius (1625) allows this on the ground of weakening the forces of the enemy,[306] and while Ayala had earlier (1597) sanctioned it,[307] Bynkershoek, writing in 1737, mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice may be said to be so well established that, in absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nineteenth century have provisions to the effect of Article XXVI. of the treaty between the United States and Great Britain of 1795: "The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they live peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property." This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Persons thus allowed to remain are generally treated as neutrals, though in the case of Alcinous v. Nigreu[308] it was held that an enemy subject, residing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored.
CHAPTER XVIII
STATUS OF PROPERTY ON LAND
§ 102. Public Property of the Enemy
Formerly the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. The practice in regard to public property of the enemy has now become fairly defined.
The public property of one belligerent state within the territory of the other at the outbreak of war, if real property, may be administered during the war for the benefit of the local state; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.[309] The Treaty of Aug. 20, 1890, between Great Britain and France, exempts public vessels employed in the postal service.
In case one belligerent by military occupation acquires authority over territory formerly within the jurisdiction of the other, the rules of the Hague Conference of 1899 provide as follows:—
"Art. 53. An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depots of arms, means of transport, stores and supplies, and generally, all movable property of the State which may be used for military operations.
"Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depots of arms and, generally, all kinds of war material, even though belonging to Companies or to private persons, are likewise material which may serve for military operations, but they must be restored at the conclusion of peace, and indemnities paid for them."
"Art. 55. The occupying state shall only be regarded as administrator and usufructuary of public buildings, real property, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of trusteeship.
"Art. 56. The property of municipalities, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property.
"All seizure, destruction of, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should he made the subject of civil and criminal proceedings."[310]
§ 103. Real Property of Enemy Subjects
The real property of the subject of one belligerent situated within the territory of the other belligerent was in early times appropriated by the state, later practice administered it during the war, for the benefit of the state; but at present it is treated as the real property of any non-hostile foreigner.
It is generally conceded that real property of the subjects of either state is unaffected by hostile occupation by the forces of the other state, except so far as the necessities of warfare may require.[311]
§ 104. Personal Property of Enemy Subjects
The movable property of the subject of one of the belligerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown v. United States,[312] in 1814, the Supreme Court held that the "existence of war gave the right to confiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws."[313] The most recent practice has been to exempt personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property is liable to the taxes, etc., imposed upon others not enemy subjects.
In case of hostile occupation, the Hague Conference of 1899 summarized the rules as follows:—
"Art. 46. Private property cannot be confiscated.
"Art. 47. Pillage is formally prohibited.
"Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, so far as possible, in accordance with the rules in existence and the assessment in force....
"Art. 49. If ... the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory."
Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for contributions.[314]
The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity.[315]
With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the public debt held by an enemy subject is wholly exempt from seizure or sequestration, and practice even demands that interest must be paid to enemy subjects during the continuance of the war.[316]
In case of belligerent occupation, contributions, requisitions, and other methods are sometimes resorted to in supplying military needs.
Contributions are money exactions in excess of taxes.[317] Contributions should be levied only by the general-in-chief.
Requisitions consist in payment in kind of such articles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region.
Receipts for the value of both contributions and requisitions should be given, in order that subsequent impositions may not be made without due knowledge, and in order that the sufferers may obtain due reparation from their own state on the conclusion of peace.
In naval warfare "reasonable requisitions for provisions and supplies essential at the time"[318] is allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, cannot be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.[319]
Foraging is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual process of requisition, and consists in the actual taking of provisions for men and animals by the troops themselves.
Booty commonly applies to military supplies seized from the enemy. In a more general sense it applies to all property of the enemy which is susceptible of appropriation. Such property passes to the state of the captor, and its disposition should be determined by that state.
CHAPTER XIX
STATUS OF PROPERTY AT SEA
§ 105. Vessels
Vessels may be classed as public, belonging to the state, and private, belonging to citizens of the state.
(a) Public vessels of a belligerent are liable to capture in any port or sea except in territorial waters of a neutral. The following public vessels are, however, exempt from capture unless they perform some hostile act:—
(1) Cartel ships commissioned for the exchange of prisoners.
(2) Vessels engaged exclusively in non-hostile scientific work and in exploration.[320]
(3) Hospital ships, properly designated and engaged exclusively in the care of the sick and wounded.
(b) Private vessels of the enemy are liable to capture in any port or sea except in territorial waters of a neutral. The following private vessels are, however, exempt from capture unless they perform some hostile act:—
(1) Cartel ships.
(2) Vessels engaged in explorations and scientific work.
(3) Hospital ships.
(4) Small coast fishing vessels. This exemption is not allowed to deep sea fishing vessels.[321]
(5) Vessels of one of the belligerents in the ports of the other at the outbreak of hostilities are usually allowed a specified time in which to take cargo and depart. In the war between the United States and Spain, 1898, Spanish vessels were allowed thirty days in which to depart and were to be exempt on homeward voyage. Vessels sailing from Spain for the United States ports before the declaration of war were to be allowed to continue their voyages.[322] Spain allowed vessels of the United States five days in which to depart.[323] It did not prohibit the capture of such ships after departure. No provision was made for vessels sailing from the United States for Spanish ports before the declaration of war.
In the Prize Law of Japan, 1898, the following exemptions of enemy's vessels are made:—
"(1) Boats engaged in coast fisheries.
"(2) Ships engaged exclusively on a voyage of scientific discovery, philanthropy, or religious mission.
"(3) Vessels actually engaged in cartel service, and this even when they actually have prisoners on board.
"(4) Boats belonging to lighthouses."[324]
§ 106. Goods
In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, historical and scientific collections are sometimes held to be exempt, and probably would not be captured.
Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under § 105, (b).
Contraband of war under any flag, outside of neutral territory, and destined for the enemy, is liable to capture.
Neutral goods in the act of violating an established blockade may be captured.
Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that:—
"The neutral flag covers enemy's goods, with the exception of contraband of war," and
"Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[325]
Nearly all the important states of the world acceded to these provisions except the United States and Spain, and both of these powers formally proclaimed that they would observe these provisions in the war of 1898.[326]
§ 107. Submarine Telegraphic Cables
The position of submarine telegraphic cables has in recent years become of great importance. Such a cable easily becomes an instrument of value in the carrying on the operations of war. A convention of representatives of the important states of the world met at Paris in 1884, and agreed upon rules for the protection of submarine cables.[327] Article XV. of this convention announces that, "It is understood that the stipulations of this convention shall in no wise affect the liberty of action of belligerents." The principles recognized in war seem to accord with Article 5 of the Naval War Code of the United States, which provides that:—
"The following rules are to be followed with regard to submarine telegraphic cables in time of war irrespective of their ownership:—
"(a) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.
"(b) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy.
"(c) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption."[328]
There is reason to believe that a submarine cable connecting the enemy's country with a neutral country is liable to such censorship as will render it neutral; and if this cannot be secured, it is liable to interruption outside of neutral jurisdiction, otherwise it might become a most dangerous organ of unneutral service.[329]
CONDUCT OF HOSTILITIES
This is defined by the "Institute of International Law," Oxford, 1880, as follows:—
"A territory is considered to be occupied, when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists."[331]
The sovereignty of the occupied territory does not pass to the occupying state, but only the right to exercise the authority necessary for safety and operations of war. Belligerent occupation was formerly held to carry with it the right to full disposition of whatever appertained to the territory. During the nineteenth century it has been given a clearer definition. Belligerent occupation is a fact impairing the usual jurisdiction, but it does not transfer sovereignty.
In general the civil laws of the invaded state continue in force in so far as they do not affect the hostile occupant unfavorably. The regular judicial tribunals continue to act in cases not affecting the military occupation. Administrative officers continue to perform their functions in absence of orders to the contrary, though of course purely political officers would be limited in the exercise of their functions; e.g. registrars of marriages, births, and deaths might act as usual, while the authority of a governor might be suspended. There is no doubt that the freedom of the press cannot be claimed, as this might bring grave consequences upon the occupying force.
The belligerent occupant may destroy or appropriate public property which may have a hostile purpose, as forts, arms, armories, etc. The occupying force may enjoy the income from the public sources. Strictly private property should be inviolable, except so far as the necessity of war requires contrary action.
Means of transportation, railways, boats, etc., as of direct use in military operations, can be appropriated for the use of the invader. "Their destruction is forbidden, unless it be required by the necessities of war. They are restored, at the peace, in the state in which they then are."[332]
The invader is bound to give such measure of protection to the inhabitants of the occupied territory as he is able.[333]
Belligerent occupation begins when an invaded territory is effectively held by a military force.
§ 109. Forbidden Methods
In the conduct of hostilities certain methods of action and certain instruments are generally forbidden.
Deceit involving perfidy is forbidden.[334] As there are certain conventional agreements held to exist even between enemies, violations of these agreements remove from the violator the protection of the laws of war. On land it is not permitted to use the flag or uniform of the enemy for purposes of deceit.[335] Article 7 of the Naval War Code of the United States provides that "The use of false colors in war is forbidden, and when summoning a vessel to lie to, or before firing a gun in action, the national colors should be displayed by vessels of the United States."[336] Not all authorities agree in regard to the provision forbidding false colors, though agreeing upon the other provisions. The use of the conventional flag of truce, a white flag, or of the hospital flag, red cross on white ground, to cover military operations or supplies is forbidden.[337] Stratagems, such as feigned attacks, ambush, and deceit not involving perfidy are allowed.[338] Assassination by treachery is forbidden.[339]
"The bombardment, by a naval force, of unfortified and undefended towns, villages, or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in port, or unless reasonable requisitions for provisions and supplies essential at the time to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given. The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden."[340]
By the declaration of the Hague Conference of 1898, "the contracting parties agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons or by other new methods of a similar nature."[341]
The use of poison, of projectiles or weapons inflicting unnecessary suffering, is prohibited.[342] The Hague Conference also declared against the "use of projectiles, the object of which is the diffusion of asphyxiating or deleterious gases."[343]
Retaliation, devastation, refusal of quarter, and other severe methods once resorted to are now generally forbidden, except as punishment for violation of the laws of war.
§ 110. Privateers
A private armed vessel owned and manned by private persons and under a state commission called a "letter of marque,"[344] is a privateer.
This method of carrying on hostilities has gradually met with less and less of favor.[345] From the early days of the fifteenth century neutrals were given commissions. Toward the end of the eighteenth century treaties and domestic laws gradually provided against this practice, though letters of marque were offered to foreigners by Mexico in 1845, and by the Confederate States in 1861-1865. These were not accepted, however, as such action had then come to be regarded as piracy by many states. Privateering of any kind, as Kent said, "under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce.... Under the best regulations, the business tends to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity."[346] The granting of letters of marque to private persons of either of the belligerent states was attended with grave evils, and, by the Declaration of Paris, 1856, "Privateering is, and remains, abolished."[347] This declaration was agreed to by the leading states of the world, with the exception of the United States, Spain, Mexico, Venezuela, and China. In the Spanish-American War of 1898 the United States formally announced that it would not resort to privateering.[348] Spain, while maintaining her right to issue letters of marque, declared the intention to organize for the present (May 3, 1898) a service of "auxiliary cruisers of the navy." The importance of the subject of privateering is now largely historical, as it is doubtful whether any civilized state would resort to this method of carrying on maritime war.
§ 111. Voluntary and Auxiliary Navy
The relations of private vessels to the state in time of war, which had been settled by the Declaration of Paris in 1856, was again made an issue by the act of Prussia in the Franco-German War. By a decree of July 24, 1870, the owners of vessels were invited to equip them for war and place them under the naval discipline. The officers and crews were to be furnished by the owners of the vessels, to wear naval uniform, to sail under the North-German flag, to take oath to the articles of war, and to receive certain premiums for capture or destruction of the enemy's ships. The French authorities complained to the British that this was privateering in disguise and a violation of the Declaration of Paris. The law officers of the crown declared that there was a "substantial difference" between such a volunteer navy and a system of privateering, and that the action of Prussia was not contrary to the Declaration of Paris. With this position some authorities agree, while others dissent.[349] The weight of the act as a precedent is less on account of the fact that no ships of this navy ever put to sea. Similarly, the plan of Greece for a volunteer navy in 1897 was never put into operation.[350]
Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incorporate into the navy during the war vessels privately purchased and owned. Such vessels are still numbered in the "volunteer fleet," and though privately owned and managed are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war.
Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by which these governments, through agreements with certain of their great steamship lines, could hire or purchase at a fixed price specified vessels for use in case of war. The construction of such vessels is subject to government approval, and certain subsidies are granted to these companies. In time of war both officers and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism.[351]
§ 112. Capture and Ransom
For more than one hundred years the capture of private property at sea has been regarded with disfavor both on the continent of Europe and in America.
The attitude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby merchant vessels of either state are to pass "free and unmolested."[352] John Quincy Adams, in 1823, proposed to England, France, and Russia to exempt private property from capture. This proposition was not accepted.[353] The United States withheld its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The resolution in the United States House of Representatives of Mr. Gillett of Massachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pass, the argument being advanced that Spain had shown a lack of reciprocity. States in practice have attempted to introduce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The voice of the publicists seems to be strongly in favor of exemption. By international law private property cannot be said to be exempt, though the feeling in favor of exemption is growing.
Article 11 of the Naval War Code of the United States provides that "The personnel of a merchant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available for the naval service of the enemy, or they may be released from detention or confinement."[354]
Passengers on such vessels should be treated with consideration and landed at a convenient port.[355]
Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession constituted valid capture. In earlier times the capture was complete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equable, as the effective possession is a better ground than the lapse of time.
The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held to be under the control of the captor, even when by reason of the weather no one has been placed on board.[356]
The captor should bring his prize into port for adjudication by the court. The title to the prize immediately vests in the state, and is to be disposed of only by state authority. However, an enemy's vessel may be destroyed when it is no longer seaworthy, when it impedes unduly the progress of the capturing force, when its recapture is threatened by the enemy, when the capturing force is unable to place a sufficient prize crew on board without impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.[357] The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account of the fewness of its forces.
Sometimes the original owner is allowed to ransom by repurchase property which has been captured. In such case the transaction is embodied in a "ransom bill," by which the master agrees that the owner will pay to the captor a certain sum of money. A duplicate copy of this bill serves as a safe-conduct for the ransomed vessel so long as there is no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract is not violated when the ransomed vessel is driven from her course by stress of weather or by circumstances beyond her control.
The captor takes from the captured vessel a hostage for the fulfillment of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. The captor may bring suit in the courts of the captured vessel's state usually, though in England the process is by action of the imprisoned hostage to recover his freedom. Some of the European states forbid the practice, others limit it, and others, like the United States, allow ransom.
§ 113. Postliminium
The word "postliminium" is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for jus postliminium supposes that the captive has never been absent.[358] The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invalidated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities.
When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the coÖperation of an ally, the conditions of the alliance will determine the obligation of the original possessor.
Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before recapture, the court shall award salvage according to the circumstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restoration; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circumstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty.[359] When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.[360]
While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of Dec 11, 1871.
§ 114. Prisoners and their Treatment
"A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field, or in the hospital, by individual surrender, or capitulation.... Citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government"[361] are liable to capture. Levies en masse are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen.[362]
It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable.
(a) The refusal of quarter to prisoners of war is not now allowed. Those who have violated the laws of war or the principles of humanity are liable to retaliation as a measure of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."[363]
(b) Employment. Prisoners may be "employed upon public works which have no direct relation to the operations carried on in the theatre of war."[364] Such labor must be in accord with the rank of the prisoner and not detrimental to health. Prisoners who are allowed to engage in private industries do so with the understanding that their pay may be devoted to the bettering of their condition, or if expedient may be reserved for them and be paid to them on their release. From this amount may be deducted the expense of the maintenance while in captivity.
(c) The exchange of prisoners of war is purely a voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values where those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc.
(d) Prisoners of war may be released on parole, which is a promise to do or to refrain from doing certain acts in consideration of the grant of freedom in other respects. The punishment for breach of parole is death if the person is again captured.[365]
(e) The sick and wounded taken in the field become prisoners of war. Their treatment is now determined for nearly all the important states by the provisions of the Geneva Convention of 1864. This convention provides for the neutralizing of hospitals and ambulances under proper restrictions, for the protection of those engaged in the care of the sick and wounded, and for such distinctive marks as shall identify those engaged in this service, particularly the Red Cross.[366]
§ 115. Non-hostile Relations of Belligerents
(a) In time of war it is necessary that belligerents should have certain relations not strictly hostile. Negotiations are often opened under a flag of truce. In regard to this the Brussels Code, Article 43, provides:—
"An individual authorized by one of the belligerents to confer with the other on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him, shall have the right of inviolability."[367]
He may be accompanied, "if necessary, by a guide and an interpreter." A commander is not obliged to receive the bearer of a flag of truce, and may take necessary measures to prevent injury on account of his presence. He may be blindfolded, detained at an outpost, or be put under other restrictions. If the bearer take advantage of his privilege to spy upon the enemy, he is liable to treatment as a spy, though he may report such military information as he may acquire without effort on his own part. If a bearer present himself during active operations, firing need not necessarily cease, and the bearer is liable to such consequences as his act may bring upon himself.
"In operations afloat the senior officer alone is authorized to dispatch or to admit communication by flag of truce; a vessel in position to observe such a flag should communicate the fact promptly. The firing of a gun by the senior officer's vessel is generally understood as a warning not to approach nearer. The flag of truce should be met at a suitable distance by a boat or vessel in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return."[368]
(b) Cartels are agreements made to regulate intercourse during war. Such conventions may regulate postal and telegraphic communication, the reception of flags of truce, the exchange of prisoners, the care and treatment of the same and of the sick and wounded.
A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying exchanged prisoners. When thus employed the vessel is not subject to seizure, although this exemption does not extend to a voyage from one port to another in her own state for the sake of taking on prisoners. The immunity is lost if the vessel departs from the strict line of service by engaging in ordinary commerce, transportation, or hostile acts.[369] Such a vessel may carry one gun for the purpose of salutes.
(c) Passports, safe-conducts, and safeguards are sometimes given in time of war.
A passport is a written permission given by the belligerent government or by its authorized agent to the subject of the enemy state to travel generally in belligerent territory.
A safe-conduct is a pass given to an enemy subject or to an enemy vessel, allowing passage between defined points. Safe-conducts are granted either by the government or by the officer in command of the region within which it is effective.[370]
A safeguard is a protection granted by a commanding officer either to person or property within his command. "Sometimes they are delivered to the parties whose persons or property are to be protected; at others they are posted upon the property itself, as upon a church, museum, library, public office, or private dwelling."[371] When the protection is enforced by a detail of men, this guard must use extreme measures, if necessary to fulfill their trust, and are themselves exempt from attack or capture by the enemy.
(d) A license to trade is a permission given by competent authority to the subject of that authority or to another to carry on trade even though there is a state of war. These licenses may be general or special. A general license grants to all the subjects of the enemy state or to all its own subjects the right to trade in specified places or in specified articles. A special license grants to a certain person the right to trade in the manner specified in his license. Neutrals may receive a license to trade in lines which otherwise would not be open to them.
A general license is granted by the head of the state. A special license may be granted by a subordinate, valid in the region which he commands so far as his subordinates are concerned. His superior officers are not necessarily bound by his act, however.[372]
It is held that a license must receive a reasonable construction. In general, fraud vitiates a license; it is not negotiable unless expressly made so; a fair compliance in regard to the terms as to goods is sufficient; a deviation from the prescribed course invalidates the license unless caused by stress of weather or by accident; and a delay in completing a voyage within the specified time invalidates the license unless caused by enemy or the elements.[373] When a license becomes void, the vessel is liable to the penalties which would fall upon it if it had committed the act without license.
(e) The cessation of hostilities for a time is sometimes brought about by agreement between the parties to the conflict. When this cessation is for a temporary or military end, and for a short time or within a limited area, it is usually termed a suspension of hostilities. When the cessation is quite general, for a considerable time, or for a political end, it is usually termed a truce or armistice.
Acts of hostility done in ignorance of the existence of the cessation of hostilities are not violations of the agreement unless there has been negligence in conveying the information to the subordinates. Prisoners and property captured after the cessation in a given region must be restored. During the period of the truce, the commercial and personal intercourse between the opposing parties is under the same restrictions as during the active hostilities, unless there is provision to the contrary in the agreement. The relative position of the parties is supposed to be the same at the end of the truce as at the beginning.
Hall says, "The effect of truces and like agreements is therefore not only to put a stop to all directly offensive acts, but to interdict all acts tending to strengthen a belligerent which his enemy, apart from the agreement, would have been in a position to hinder."[374] Acts which the enemy would not have been in a position to hinder, even in the absence of a truce, are not necessarily interrupted by the agreement.[375]
The provisioning of a besieged place during a truce has been the subject of some difference of opinion. If the conditions of the truce are to be fair to the besieged party, that party must be allowed to bring in a supply of provisions equal to the consumption during the continuance of the truce.[376] At the present time this matter is usually provided for in the terms of the truce.
A truce or other form of cessation of hostilities, if for a definite time, comes to an end by the expiration of the time limit; if for an indefinite time, by notice from one party to the other, or is terminated by the violation of the conditions by either of the parties. A violation of a truce by an individual renders him liable to such punishment as his state may prescribe.[377]
(f) A capitulation is an agreement defining the conditions of surrender of military forces, places, or districts within the command of an officer. Such agreements are purely military and can have no political force. The capitulation agreed upon between Generals Sherman and Johnston, in 1865, was not sanctioned because it involved political provisions. By the capitulation of Santiago, July, 1898, the American commander agreed to transport the Spanish troops to Spain. The conditions involved in a capitulation may vary greatly, but at the present time it is usually possible to obtain the sanction of the political authority before entering upon an agreement, owing to the improved methods of communication. It is therefore hardly probable that the terms of capitulations will be set aside, as in the celebrated case of El Arisch, in 1800.[378] Agreements made by officers not possessing proper authority or made in excess of authority, are called sponsions or sub spe rati, and require ratification or acceptance by the state to render them effective.[379]
CHAPTER XXI
TERMINATION OF WAR
§ 116. Methods of Termination
War may come to an end, (1) by the complete submission of one of the parties to the conflict or by conquest, (2) by the cessation of hostilities between the parties to the conflict, or (3) by a treaty of peace duly concluded.[380]
The object of war in early times was often conquest, and the conflict ended only with the submission of one of the parties. This end is at present usually disavowed, and the object of war is proclaimed to be some purpose that will meet with as little disapproval as possible.[381] The conditions under which the war will be brought to an end will be in some measure determined by the object for which the war was undertaken.
§ 117. By Conquest
Conquest in the complete sense, as in the case of the debellatio of the Romans, is not now common. This implies a submission of one of the parties without condition. There have been examples of absorption of the sovereignty of the vanquished state in recent times, as in the Prussian Decree of Sept. 20, 1866, by which conquered Hanover, Hesse, Nassau, and Frankfort were incorporated into the Prussian state. Similarly, some of the Italian states were absorbed by the kingdom of Italy after the Treaty of Villafranca, 1859, and Madagascar became a part of France in 1896.
Conquest is held to be complete when the fact is evident from actual, continued, and recognized possession. All of these evidences may not be present in a given case, but if the intention and the fact of the conquest and the submission are fully shown, it is sufficient to constitute validity.[382]
§ 118. By Cessation of Hostilities
Certain wars have terminated by the simple cessation of hostilities. Cases of such termination are rare. Such a method leaves in doubt the relations of the parties to the conflict, and occasions inconvenience to all states which may have intercourse with the contestants. The war between Sweden and Poland in 1716, and also the war between France and Spain in 1720, came to an end in this way. The war between Spain and her American colonies ceased in 1825, but no diplomatic relations were established with them till 1840, and the independence of Venezuela was not recognized till 1850. After the hostilities between France and Mexico, 1862-1867, no diplomatic relations were entered into till 1881. It is only fair to neutrals that a declaration of the conclusion of hostilities should be made.
§ 119. By Treaty of Peace
War is most often terminated by a treaty of peace, which is usually a diplomatic agreement upon the manner of cessation of hostilities and upon the conditions of the reËstablishment of friendly relations. In recent years such treaties have often been preceded by preliminary agreements. These are sometimes preceded by an armistice in order that the terms may not be changed from day to day by the current fortunes of war, as was the case in the discussions pending the Treaty of Westphalia in 1648. In the war between China and Japan, in 1894-1895, an agreement for the suspension of hostilities was made on March 30, 1895, but the treaty of peace was not signed till April 17th. These preliminary agreements may sometimes be made through the friendly offices of a third power, as in the protocol of Aug. 12, 1898, in regard to the suspension of hostilities between Spain and the United States. The ambassador of France acted for Spain.[383] These preliminary agreements can be concluded only by those persons delegated for the purpose, and they are as binding as any international agreement in the matters upon which they touch.
A treaty of peace usually covers, (1) the cessation of hostilities, (2) the subjects which have led to war,[384] (3) agreements for immunity for acts done during the war without sufficient authority or in excess of authority. Such acts might otherwise become bases for civil or criminal process. Acts not consequent upon the existence of war, but such as are actionable under the ordinary laws of the state, as for violation of private contract, ordinary debts, etc., are not included unless there is a direct stipulation to that effect. This immunity is commonly called amnesty. (4) Provision for the release of the prisoners of war is often included. (5) The renewal of former treaties is provided for in many peace agreements. (6) Special provision may be made for cession of territory, indemnity, boundaries, or other contingent points.[385]
A treaty of peace is usually held to be effective from the date of signature, or from the date set in the treaty. Provisions fixing the time at which hostilities shall cease at different points are common. Acts of war committed after the conclusion of peace or after the official notice of the termination of hostilities, are void.[386] The Treaty of Frankfort, 1871, provides that maritime captures not condemned at the conclusion of the war are not good prize.
"The general effect of a treaty of peace is to replace the belligerent countries in their normal relation to each other."[387] In case of no stipulations to the contrary, the doctrine of uti possidetis applies, by which the property and territory in the actual possession of either of the belligerents at the conclusion of the war vests in the one having possession.
Private rights suspended during the war revive on the conclusion of peace. Though it was once held that debts could be confiscated during war, this is now nowhere maintained.[388] In such cases the obligation revives on the conclusion of peace, and by the Statute of Limitations the period of the war is not reckoned in the time specified as the period at which debts become outlawed.[389]
