Chapter 90
[Footnote 140: This follows indirectly from article 8 of Convention XI.]
[Footnote 141: See below, -- 201.]
[Sidenote: Deserters and Traitors.]
-- 86. The privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. And the like is valid with regard to such treasonable subjects of a belligerent as, without having been members of his armed forces, are fighting in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.[142]
[Footnote 142: See below, -- 222; Hall, -- 190; _Land Warfare_, -- 36.]
VII
ENEMY CHARACTER
Grotius, III. c. 4, ---- 6 and 7--Bynkershoek, _Quaestiones juris publici_, I. c. 3 _in fine_--Hall, ---- 167-175--Lawrence, ---- 151-159--Westlake, II. pp. 140-154--Phillimore, III. ---- 82-86--Twiss, II. ---- 152-162--Taylor, ---- 468 and 517--Walker, ---- 39-43--Wharton, III. ---- 352-353--Wheaton, ---- 324-341--Moore, VII.
---- 1185-1194--Geffcken in Holtzendorff, IV. pp. 581-588--Ullmann, -- 192--Nys, III. pp. 150-154--Pradier-Fodere, VIII. Nos.
3166-3175--Bonfils, Nos. 1343-1349'1--Despagnet, Nos. 650-653 _quinto_--Calvo, IV. ---- 1932-1952--Fiore, III. Nos. 1432-1436, and Code, Nos. 1701-1709--Boeck, Nos. 156-190--Dupuis, Nos. 92-129, and _Guerre_, Nos. 59-73--Lemonon, pp. 426-467--Higgins, p.
593--Nippold, II. pp. 40-54--Scott, _Conferences_, pp.
541-555--Frankenbach, _Die Rechtsstellung von neutralen Staatsangehorigen in kriegfuhrenden Staaten_ (1910)--Baty in _The Journal of the Society of Comparative Legislation_, New Series, IX. Part I. (1908), pp. 157-166, and Westlake, _ibidem_, Part II.
(1909), pp. 265-268--Oppenheim in _The Law Quarterly Review_, XXV.
(1909), pp. 372-383.
[Sidenote: On Enemy Character in general.]
-- 87. Since the belligerents, for the realisation of the purpose of war, are ent.i.tled to many kinds of measures against enemy persons and enemy property, the question must be settled as to what persons and what property are vested with enemy character. Now it is, generally speaking, correct to say that, whereas the subjects of the belligerents and the property of such subjects bear enemy character, the subjects of neutral States and the property of such subjects do not bear enemy character.
This rule has, however, important exceptions. For under certain circ.u.mstances and conditions enemy persons and property of enemy subjects may not bear, and, on the other hand, subjects of neutral States and their property may bear, enemy character. And it is even possible that a subject of a belligerent may for some parts bear enemy character as between himself and his home State.
The matter of enemy character is, however, to a great extent in an unsettled condition, since on many points connected with it there are no universally recognised rules of International Law in existence. British and American Courts have worked out a body of precise and clear rules on the subject, but the practice of other countries, and especially of France, follows different lines. The Second Peace Conference of 1907 produced three articles on the matter--16, 17, and 18--in Convention V., accepted by all the signatory Powers, except Great Britain which, upon signing the Convention, entered a reservation against these three articles, and although these articles are only of minor importance, they have to be taken into consideration. On the other hand, the as yet unratified Declaration of London comprises a number of rules which, apart from two points, offer a common basis for the practice of all maritime States. At the first glance it would seem that only the four articles--57 to 60--of Chapter VI. headed "Enemy Character," treat of the subject under survey, but a closer examination shows that article 46, dealing with a certain kind of unneutral service, articles 55 and 56, dealing with transfer to a neutral flag, and, lastly, article 63, dealing with forcible resistance to the right of visitation, are also concerned with enemy character. In spite of these stipulations, which are accepted by all the Powers concerned, there remain two important points unsettled, since neither the Second Hague Peace Conference of 1907 nor the Naval Conference of London of 1908-9 succeeded in agreeing upon a compromise concerning the old controversy as to whether nationality exclusively, or domicile also, should determine the neutral or enemy character of individuals and their goods, and further, whether or not neutral vessels acquire enemy character by embarking in time of war, with permission of the enemy, upon such trade with the latter as was closed to them in time of peace (Rule of 1756). According to article 7 of Convention XII. of the Second Hague Peace Conference, concerning the establishment of an International Prize Court, likewise not yet ratified, this Court would in time have to evolve a uniform practice of all the maritime States on these two points.
For the consideration of enemy character in detail, it is convenient to distinguish between individuals, vessels, goods, the transfer of enemy vessels, and the transfer of enemy goods on enemy vessels.
[Sidenote: Enemy Character of Individuals.]
-- 88. The general rule with regard to individuals is that subjects of the belligerents bear enemy character, whereas subjects of neutral States do not. In this sense article 16 of Convention V. stipulates: "The nationals of a State which is not taking part in the war are considered to be neutral." These neutral individuals can, however, lose their neutral and acquire enemy character in several cases, just as subjects of the belligerents can in other cases lose their enemy character:--
(1) Since relations of peace obtain between either of the belligerents and neutral States, the subjects of the latter can, by way of trade and otherwise, render many kinds of service to either belligerent without thereby losing their neutral character. On the other hand, if they enter the armed forces of a belligerent, or if they commit other acts in his favour, or commit hostile acts against a belligerent, they acquire enemy character (article 17 of Convention V.). All measures that are allowed during war against enemy subjects are likewise allowed against such subjects of neutral Powers as have thus acquired enemy character.
For instance, during the late South African War hundreds of subjects of neutral States, who were fighting in the ranks of the Boers, were captured by Great Britain and retained as prisoners until the end of the struggle. Such individuals must not, however, be more severely treated than enemy subjects, and, in especial, no punitive measures are allowed against them (article 17 of Convention V.). And article 18(_a_) of Convention V. stipulates expressly that subjects of neutral States not inhabiting the territory of the enemy or any territory militarily occupied by him do not acquire enemy character by furnis.h.i.+ng supplies or making loans to the enemy, provided the supplies do not come from the enemy territory or any territory occupied by him.[143]
[Footnote 143: Since Great Britain has entered a reservation against articles 16, 17, and 18 of Convention V. she is not bound by them. It is, however, of importance to state that articles 16, 17, and 18(_a_)--not 18(_b_)!--enact only such rules as were always customarily recognised, _unless such an interpretation is to be put upon article 16 as prevents a belligerent from considering subjects of neutral States inhabiting the enemy country as bearing enemy character_. The matter is different with regard to article 18(_b_), which creates an entirely new rule, for n.o.body has..h.i.therto doubted that the members of the police force and the administrative officials of the enemy bear enemy character whether or no they are subjects of the enemy State.]
Article 18(_b_) of Convention V. stipulates that such subjects of neutral
However that may be, it must be specially observed, that the acts by which subjects of neutral States lose their neutral and acquire enemy character need not necessarily be committed after the outbreak of war.
Such individuals can, even before the outbreak of war, identify themselves to such a degree with a foreign State that, with the outbreak of war against that State, enemy character devolves upon them _ipso facto_ unless they at once sever their connection with such State. This, for instance, is the case when a foreign subject in time of peace enlists in the armed forces of a State and continues to serve after the outbreak of war.
(2) From the time when International Law made its appearance down to our own no difference has been made by a belligerent in the treatment accorded to subjects of the enemy and subjects of neutral States inhabiting the enemy country. Thus Grotius (III. c. 4, ---- 6 and 7) teaches that foreigners must share the fate of the population living on enemy territory, and Bynkershoek[144] distinctly teaches that foreigners residing in enemy country bear enemy character. English[145] and American practice a.s.sert, therefore, that foreigners, whether subjects of the belligerents or of neutral States, acquire enemy character by being domiciled (_i.e._ resident) in enemy country, because they have thereby identified themselves with the enemy population and contribute, by paying taxes and the like, to the support of the enemy Government.
For this reason, all measures which may legitimately be taken against the civil population of the enemy territory, may likewise be taken against them, unless they withdraw from the country or are expelled therefrom. It must, however, be remembered that they acquire enemy character _in a sense_ and _to a certain degree_ only, for their enemy character is not as intensive as that of enemy subjects resident on enemy territory. Such of them as are subjects of neutral States do not, therefore, lose the protection of their home State against arbitrary treatment inconsistent with the laws of war; and such of them as are subjects of the other belligerent are handed over to the protection of the Emba.s.sy of a neutral Power. However that may be, they are not exempt from requisitions and contributions; from the restrictions which an occupant imposes upon the population in the interest of the safety of his troops and his military operations; from punishments for hostile acts committed against the occupant; or from being taken into captivity, if exceptionally necessary.
[Footnote 144: _Quaestiones juris publici_, I. c. 3 _in fine_.]
[Footnote 145: See the _Harmony_ (1800), 2 C. Rob. 322; the _Johanna Emilie_, otherwise _Emilia_ (1854), Spinks, 12; the _Baltica_ (1857), 11 Moore, P.C. 141.]
This treatment of foreigners resident on occupied enemy territory is generally recognised as legitimate by theory[146] and practice. The proposal of Germany, made at the Second Peace Conference, to agree upon rules which would have stipulated a more favourable treatment of subjects of neutral States resident on occupied enemy territory was, therefore, rejected. Not even France supported the German proposals, although according to the French conception foreigners residing in enemy country do not acquire enemy character, and therefore the German proposals were only a logical consequence of the French conception. This French conception of enemy character dates from the judgment of the _Conseil des Prises_ in the case of _Le Hardy contre La Voltigeante_[147] (1802), which laid down the rule that neutral subjects residing in enemy country do not lose their neutral character, and enemy subjects residing in neutral countries do not lose their enemy character. But it must be emphasised that this French conception of enemy character has been developed, not with regard to the treatment of foreigners whom an occupant finds resident on occupied enemy territory, but with regard to the exercise of the right of capture of enemy vessels and goods in warfare at sea. France did not make an attempt to draw the logical consequences from this conception and, therefore, to mete out to foreigners resident on occupied enemy territory a treatment different from that of enemy subjects resident there.
[Footnote 146: See Albrecht, _Requisitionen von neutralem Privateigenthum_, &c. (1912), pp. 13-15.]
[Footnote 147: 1 Pistoye et Duverdy (1859), 321.]
(3) Since enemy subjects who reside in neutral countries, or are allowed to remain resident on the territory of the other belligerent, have to a great extent identified themselves with the local population and are not under the territorial supremacy of the enemy, they lose their enemy character according to English and American practice,[148] but according to French practice they do not, a difference of practice which bears upon many points, especially upon the character of goods.[149]
[Footnote 148: See the _Postilion_ (1779), Hay & Marriot, 245; the _Danous_ (1802), 4 C. Rob. 255, note; the _Venus_ (1814), 8 Cranch, 253.]
[Footnote 149: See below, -- 90.]
[Sidenote: Enemy Character of Vessels.]
-- 89. The general rule with regard to vessels is that their character is determined by their flag. Whatever may be the nationality of the owner of a vessel--whether he be a subject of a neutral State, or of either belligerent--she bears enemy character, if she be sailing under the enemy flag. For this reason, the vessel of an enemy owner which sails under a neutral flag does as little bear enemy character as the vessel of the subject of a neutral State sailing under the flag of another neutral State. But the flag is the deciding factor only when the vessel is legitimately sailing under it. Should it be found that a vessel sailing under the flag of a certain neutral State has, according to the Munic.i.p.al Law of such State, no right to fly the flag she shows, the real character of the vessel must be determined in order to decide whether or no she bears enemy character. On the other hand, it makes no difference that the owner be the subject of a neutral non-littoral State without a maritime flag and that the vessel is, therefore, compelled to fly the flag of a maritime State: if the flag the vessel flies be the enemy flag, she bears enemy character.
The general rule that the flag is the deciding factor has exceptions, and it is convenient to expound the matter according to the rules of the Declaration of London, although it is not yet ratified. The general rule is laid down by article 57 of the Declaration which enacts that, subject to the provisions respecting transfer to another flag, the character of a vessel is determined by the flag she is ent.i.tled to fly. Nevertheless, there are two exceptions to this rule:--
(1) According to article 46 of the Declaration[150] a neutral merchantman acquires enemy character by taking a direct part in the hostilities, by being in the exclusive employment of the enemy government, and by being at the time exclusively intended either for the transport of troops or for the transmission of intelligence for the enemy. And it must be emphasised that the act by which a neutral merchantman acquires enemy character need not necessarily be committed _after_ the outbreak of war, for she can, even _before_ the outbreak of war, to such a degree identify herself with a foreign State that, with the outbreak of war against such State, enemy character devolves upon her _ipso facto_, unless she severs her connexion with the State concerned. This is, for instance, the case of a foreign merchantman which in time of peace has been hired by a State for the transport of troops or of war material, and is carrying out her contract in spite of the outbreak of war.[151]
(2) According to article 63 of the Declaration a neutral merchantman acquires enemy character _ipso facto_ by forcibly resisting the legitimate exercise of the right of visitation and capture on the part of a belligerent cruiser (see details below, -- 422).
(3) According to British practice--adopted by America and j.a.pan[152]--neutral merchantmen likewise acquire enemy character by violating the so-called rule of 1756,[153] in case they engage in time of war in a trade which the enemy prior to the war reserved exclusively for merchantmen sailing under his own flag. The Declaration of London has neither rejected nor accepted this rule of 1756, for article 57 stipulates expressly that the case where a neutral vessel is engaged in a trade which is closed in time of peace, remains unsettled. It would, therefore, according to article 7 of Convention XII. of the Second Peace Conference, be the task of the proposed International Prize Court to settle this point.
Of whatever kind may be the case of the acquisition of enemy character on the part of a neutral vessel, the following four rules apply to all cases of such neutral vessels as have acquired enemy character:--(_a_) all enemy goods on board may now be confiscated, although when they were first s.h.i.+pped the vessels concerned were neutral; (_b_) all goods on board will now be presumed to be enemy goods, and the owners of neutral goods will have to prove the neutral character of the latter; (_c_) the stipulations of articles 48 and 49 of the Declaration of London concerning the sinking of neutral prizes do not apply, because these vessels are now enemy vessels; (_d_) no appeal may be brought from the national prize courts to the International Prize Court, except with regard to the one question only, whether the vessel concerned has been justly considered to have acquired enemy character (see article 4 of Convention XII. of the Second Hague Peace Conference, concerning the establishment of an International Prize Court).
[Footnote 150: See below, -- 410.]
[Footnote 151: The case of the _Kow-s.h.i.+ng_ ought here to be mentioned, although it has now lost its former importance:--
On July 14, 1894, the _Kow-s.h.i.+ng_, a British s.h.i.+p, was hired at Shanghai by the Chinese Government to serve as a transport for eleven hundred Chinese soldiers and also for arms and ammunition from Tien-tsin to Korea. She was met on July 25 near the island of Phung-do, in Korean waters, by the j.a.panese fleet; she was signalled to stop, was visited by some prize officers, and, as it was apparent that she was a transport for Chinese soldiers, she was ordered to follow the j.a.panese cruiser, _Naniwa_. But although the British captain of the vessel was ready to comply with these orders, the Chinese on board would not allow it.
Thereupon the j.a.panese opened fire and sank the vessel. As formerly hostilities could be commenced without a previous declaration of war the action of the j.a.panese was in accordance with the rules of International Law existing at the time. But in consequence of Convention III. of the Second Peace Conference which requires a declaration of war before the opening of hostilities, such action nowadays would not be justifiable.
See Hall, -- 168*; Takahas.h.i.+, pp. 27-51; Holland, _Studies_, pp.
126-128.]
[Footnote 152: See the case of the _Montara_ in Takahas.h.i.+, p. 633.]
[Footnote 153: See below, -- 289, and Higgins, _War and the Private Citizen_ (1912), pp. 169-192.]
[Sidenote: Enemy Character of Goods.]
-- 90. It is an old customary rule that all goods found on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by the neutral owners concerned. It is, further, generally recognised that the enemy character of goods depends upon the enemy character of their owners. As, however, no universally recognised rules exist as to the enemy character of individuals, there are likewise no universally recognised rules in existence as to the enemy character of goods.
(1) Since, according to British and American practice, domicile in enemy country makes an individual bear enemy character, all goods belonging to individuals domiciled in enemy country are enemy goods, and all goods belonging to individuals not resident in enemy country are not, as a rule, enemy goods. For this reason, goods belonging to enemy subjects residing in neutral countries[154] do not, but goods belonging to subjects of neutral States residing in enemy country[155] do bear enemy character, although they may be the goods of a foreign consul appointed and residing in enemy country.[156] Further, the goods of such subjects of the belligerents as are domiciled on each other's territory and are allowed to remain there after the outbreak of war, acquire enemy character in the eyes of the belligerent whose subjects they are, but lose their enemy character in the eyes of the belligerent on whose territory they are allowed to remain.[157] Again, the produce of an estate on enemy territory belonging to a subject of a neutral State who resides abroad, does bear enemy character, for "_Nothing[158] can be more decided and fixed than the principle... that the possession of the soil does impress upon the owner the character of the country, as far as the produce of that plantation is concerned... whatever the local residence of the owner may be_." Lastly, all such property of a subject of a neutral State residing abroad but having a house of trade within the enemy country as is concerned in the commercial transactions of such house of trade,[159] likewise bears enemy character, because the owner of these goods has a "commercial domicile" in enemy country.
(2) On the other hand, according to French practice, the nationality of the owner of the goods is exclusively the deciding factor, and it does not matter where he resides. Hence only such goods on enemy merchantmen bear enemy character as belong to subjects of the enemy, whether those subjects are residing on enemy or neutral territory; and all such goods on enemy merchantmen as belong to subjects of neutral States do not bear enemy character, whether those subjects reside on neutral or enemy country.[160]