"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]
CHAPTER XX[330]
CONDUCT OF HOSTILITIES
108. +Belligerent Occupation.+
109. +Forbidden Methods.+
110. +Privateers.+
111. +Volunteer and Auxiliary Navy.+
112. +Capture and Ransom.+
113. +Postliminium.+
114. +Prisoners and their Treatment.+ (_a_) Quarter and retaliation.
(_b_) Employment.
(_c_) Exchange.
(_d_) Parole.
(_e_) Sick and wounded.
115. +Non-hostile Relations of Belligerents.+ (_a_) Flag of truce.
(_b_) Cartels.
(_c_) Pa.s.sports, safe-conducts, safeguards.
(_d_) License to trade.
(_e_) Suspension of hostilities, truce, armistice.
(_f_) Capitulation.
-- 108. Belligerent Occupation
This is defined by the "Inst.i.tute 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 s.p.a.ce and time within which this state of things exists."[331]
The sovereignty of the occupied territory does not pa.s.s 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]
a.s.sa.s.sination 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]