existing exemptions. The considerations which have led mankind to systematize the practice of war in regard to private property on land do not arise in the same form in connexion with private property at sea. Here there is no question of seizing the live stock, or the bedding, or the food, or the utensils of the private citizen. If ship and cargo are captured, it may be hard upon the merchant, but such captures do not directly deprive him of the necessaries of life. Yet, as in the case of war on land, its hardships have been attenuated, and progress has been made by developing a more systematic procedure of capture of private property at sea. Thus exemption from capture is now allowed by belligerents to enemy merchant ships which, at the outbreak of war, are on the way to one of their ports, and they also allow enemy merchantmen in their ports at its outbreak a certain time to leave them. This is confirmed by the Hague Convention of 1907 on the status of enemy ships on the outbreak of hostilities. A somewhat, similar practice exists as regards pursuit of merchant ships which happen to be in a neutral port at the same time with an enemy cruiser. Under the Hague Convention of 1907 respecting the rights and duties of neutral powers in naval war (Art. 16), this, too, is confirmed. Lastly, there has grown up, on grounds similar to those which have led to the indulgence shown to private property on land, a now generally recognized immunity from capture of small vessels engaged in the coast fisheries, provided they are in no wise made to serve the purposes of war, which also has been duly confirmed in the Hague Conventions of 1907 by Art. 3 of the convention relative to certain restrictions on the exercise of the right of capture in maritime war. This has all been done with the object of making the operations of war systematic, and enabling the private citizen to estimate his risks and take the necessary precautions to avoid capture, and of restricting acts of war to the purpose of bringing it to a speedy conclusion.
We have seen that the only immunity of private property yet known to the laws of war is a limited one at sea. War, by its very nature, seems to prevent the growth of any such immunity. The tendency in war on land has been to spread its effects over the whole community, to keep a faithful record on both sides of all confiscations, appropriations and services enforced against private citizens; beyond this, protection has not yet been extended. There is good reason for this. The object of each belligerent being to break the enemy's power and force him to sue for peace, it may not be enough to defeat him in the open field; it may be necessary to prevent him from repairing his loss both in men and in the munitions of war. This may imply crippling his material resources, trade and manufactures. It has been contended that “to capture at sea raw materials used in the manufacturing industry of a belligerent state, or products on the sale of which its prosperity, and therefore its taxable sources depend, is necessarily one of the objects, and one of the least cruel, which the belligerents pursue. To capture the merchant vessels which carry these goods, and even to keep the seamen navigating them prisoners, is to prevent the employment of the ships by the enemy as transports or cruisers, and the repairing from among the seamen of the mercantile marine of losses of men in the official navy.”[1]
The question of reform of the existing practice would naturally be viewed in different countries according to their respective interests. The United States has obviously an interest in the exemption of its merchant vessels and cargoes from capture, a small official navy being sufficient for the assertion of its ascendancy on the American continent. It may also be presumed to be in the interest of Italy, who, in a treaty with the United States in 1871, provided for mutual recognition of the exemption.
In the Austro-Prussian war of 1866 the principle of inviolability was adhered to by both parties. Germany proclaimed the same principle in 1870, but afterwards abandoned it.
There is a strong movement in Great Britain in favour of the general adoption of i nun unity. Whether it may now be expedient for her to agree to such immunity is an open question. It is quite conceivable, however, that different considerations would weigh with her in a war with the United States from those which would arise in a war with France or Germany. In the case of the United States it might be in the interest of both parties to localize the operations of war, and to interfere as little as possible, perhaps for the joint exclusion of neutral vessels, with the traffic across the Atlantic. In the case of a war with France or Germany, Great Britain might consider that the closing of the high sea to all traffic by the merchantmen of the enemy would be very much in her own interest.
The converse subject of the treatment of subjects of the one belligerent who remain in the country of the other belligerent also Enemy subjects—their property on hostile territory. was not dealt with at the Hague. British practice in this matter has always been indulgent, the protection to the persons and property of non-combatant enemies on British soil dating back to Magna Carta (s. 48), and this is still the law of England. The practice on the continent of Europe varies according to circumstances, to which no doubt, in the event of the invasion of Great Britain. British practice would also have to adapt itself.
The Hague War-Regulations deal fully with the treatment of Prisoners of war. prisoners, and though they add nothing to existing practice, such treatment is no longer in the discretion of the signatory Powers, but is binding on them. They provide as follows:—
Prisoners of war are in the power of the hostile government, but not in that of the individuals or corps who captured them. They must be humanely treated. All their personal belongings, except arms, horses and military papers, remain their property (Article 4). Prisoners of war may be interned in a town, fortress, camp or any other locality, and bound not to go beyond certain fixed limits; but they can only be confined as an indispensable measure of safety, and only so long as circumstances necessitating this measure shall endure (Article 5). The state may utilize the labour of prisoners of war according to their rank and aptitude, with the exception of officers. Their tasks shall not be excessive, and shall have nothing to do with the military operations. Prisoners may be authorized to work for the public service, for private persons, or on their own account. Work done for the state shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks, or if there are none in force, then according to a tariff suitable to the work executed. When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military authorities. The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance (Article 6). The government into whose hands prisoners of war have fallen is bound to maintain them. Failing a special agreement between the belligerents, prisoners of war shall be treated, as regards food, quarters and clothing, on the same footing as the troops of the government which has captured them (Article 7). Prisoners of war shall be subject to the laws, regulations and orders in force in the army of the state into whose hands they have fallen. Any act of insubordination warrants the adoption, as regards them, of such measures of severity as may be necessary. Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment. Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment for the previous flight (Article 8). Every prisoner of war, if questioned, is bound to declare his true name and rank, and if he disregards this rule, he is liable to a curtailment of the advantages accorded to the prisoners of war of his class (Article 9). Prisoners of war may be set at liberty on parole if the laws of their country authorize it, and, in such a case, they are bound, on their personal honour, scrupulously to fulfil, both as regards their own government and the government by whom they were made prisoners, the engagements they have contracted. In such cases, their own government shall not require of nor accept from them any service incompatible with the parole given (Article 10). A prisoner of war cannot be forced to accept his liberty on parole; similarly the hostile government is not obliged to assent to the prisoner's request to be set at liberty on parole (Article 11). Any prisoner of war who is liberated on parole and recaptured, bearing arms against the government to whom he had pledged his honour or against the allies of that government, forfeits his right to be treated as a prisoner of war, and can be brought before the courts (Article 12).
An interesting provision in the Regulations assimilates individuals who, following an army without directly Journalists. belonging to it, such as newspaper correspondents and reporters, sutlers, contractors, fall into the enemy's hands, to prisoners of war, provided they can produce a
- ↑ Barclay, “Proposed Immunity of Private Property at Sea from Capture by Enemy,” Law Quarterly Review (January 1900).
