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Two principles of the law of war of pre-eminent
consequence must here be defined and kept
separate.

The principle of military necessity or reasons of
war is now generally accepted. It signifies,
according to Meurer,* " that a violation of the laws
of war must be regarded as not having taken place
if the military operation is necessary for the pre-
servation of the troops or the averting of a danger
that threatens them and cannot be averted in any
other way, or even is advantageous either for the
effectual carrying out of a military enterprise not
inadmissible in itself, or the securing of its success."

^ "Das Beuterecht," pp. 5, 60, 73.
2 H. H. IV., p. 489.
^ " D. Kriegsrecht zu Lande," p. 244.
* Ii>td., p. 14.



HISTORICAL REVIEW. 5

To military necessity every other rule of war must
give way, as for instance, even the principle of the
inviolability of private property. Granted that
the premisses of the necessites militaires obtain, all,
even the most extreme, measures are allowed.

In considering the legal status of private and
public property, a second maxim is of particular
importance, which, although practically ignored by
writers on the subject, must be unconditionally
invoked in establishing the great difference in the
treatment of private and public property. I mean
the maxim " War sustains war." Each State
naturally tries as far as possible to throw upon its
adversary the heavy expenses which every war
entails, and therefore either party takes possession
of the war funds and other belongings of its enemy,
even although the captor has at his own disposal,
derived from his own country, all the requisite means.

Taking into account the tremendous sums which
in these days a war swallows up, it stands to reason
that the appropriation of the ready money of a
hostile State can be normally justified thereby.
That the maxim, " War must sustain war," still
holds good to-day, the Hague negociations in
particular decisively proved. The German Colonel v.
Schwarzhoff ^ declared at the time that the principle
was recognised by all the great armies of Europe,
and there was no hope of wholly eliminating it.

> Prot. p. 281. He applied the maxim wrongly, for
requisitions and contributions are not based upon it, but
on military necessity.



6 CAPTURE IN WAR.

In vain did the smaller States, notably Belgium,
Holland and Siam, endeavour to contest this.
(To quote Beernaert's words, " It would be a sorry
progress.") The result of the debates left no doubt
remaining as to the retention of that rule of warfare.
The application of the maxim, it is true, finds its
special justification also in the fact that by it the
resistance of the enemy is simultaneously weakened,
seeing that you take from him the sinews of war.
Yet one must dwell on this point, that the said
reason alone could never justify the total transfer of
property. With the conclusion of the war every
object of the deprivation would in that case be
removed and restoration must logically ensue. But
since this does not take place we must adhere to
the declaration that the State means, first and
foremost, to cover its expenses in war with the
means of its opponent. If we were to regard as
the decisive ground of the seizure of movable public
property the intention of making impossible for the
enemy the use of the objects conducive to war, the
absence of obligation to restore them would be a
state of things falling under the old conception of
booty. Nothing else would justify the retention
of those objects after peace was made. But as we
no longer recognise the idea of booty, in spite of the
contrary view of Bonfils,^ Geffcken,^ and Meurer,^
this conception must be rejected.

* Ibid., p. 625.

2 Heffter, " Das Europ. Volkerrecht," revised by Geffcken,
p. 282.

8 Ibid., p. 315.



HISTORICAL REVIEW. 7

If the fundamental idea of modern warfare just
insisted upon is so little emphasised in literature,
this is due to the fact that authors are of opinion
that the circumstance that States desire to
carry on their wars as far as may be with
the means of their opponents is explained
sufficiently by military necessity. This point of
view is false because it misinterprets the meaning
of the law of necessity in war. As regards military
necessity it can only be a question of exceptional
cases of necessity and unwontedness. This view is
shared not only by two distinguished writers,
Lueder ^ and Meurer,^ but by men of such unusual
practical intelligence as the compilers of the German
General Staff's pamphlet on " The Usage of War
on Land." ^ If requisitions and contributions are
imposed, one may, doubtless, cite urgent necessity,
but by no means so where the property of the
hostile State is merely seized in order to cover
one's own expenses. For in how many cases has
the belligerent State more than enough warlike
resources of its own .'' Hence, the two maxims,
" Military necessity " and " War sustains war,"
have a wholly different and independent subject,
and the one by no means includes the other. It
must, however, be conceded that in many cases both
principles apply together, e.g. when the invading
foe is bereft of his own resources and he only takes

1 H. H. IV., p. 255.

2 Ibid.^ p. 14.

* Berlin, 1902, p. 16.



8 CAPTURE IN WAR.

his adversary's property in order that he himself
may be able to carry on the war at all.

If we wish, to start with, to deduce from these
maxims the position of private property, the rule
" War supports war " can have no application as
regards such private property, because war, accord-
ing to the present view, only creates legal relations
between the States to the exclusion of the peaceful
population. Only by seizure of the property of
the hostile State, not of the property of its peaceful
citizens, can the invading enemy procure his sinews
of war, and even the private belongings of the
enemy's soldiers are inviolable. Where, from
reasons of military necessity, a breach of this
principle occurs, the necessity of compensation
invariably arises. Art. 46, Sect. 2, of the Code,*
lays down " Private property may not be con-
fiscated." 2 In the logical carrying out of this
principle the article, introduced in 1907 at Ger-
man suggestion (23 in the Code), declares " The
abrogation or temporary invalidation of the rights
and claims of adherents of the opposite party
or the exclusion of their right of complaint is
forbidden." ^

The treatment of public property on the other
hand is wholly governed by the two maxims above
recited. As a matter of fact, it seldom happens

* Throughout this book in referring to " Compacts Con-
cerning the Laws and Usages of War on Land," 1907, I use
the abbreviation " Mihtary Code."

^ Sect. I of this article is to the same effect.

^ Cf. Prot. III., pp. Ill, 112, 131, 141.



HISTORICAL REVIEW. 9

that public property, whether in consequence of
military necessity or the desire to cover the expenses
of war, is confiscated and yet remains untouched.
Some exceptions, however, occur even here. By
Art. 56 of the Code institutions devoted to
instruction, art and science, pubHc worship and
charity, are exempt from all embargo, because
their usefulness in the conduct of war is far
too slight compared with the damage done to
the service of mankind. As, moreover, railways
and other means of transport are of extreme
importance to international commerce and inter-
course, the obligation has been set up that they
must be restored even when they are public property.
But in that case no compensation takes place on
the conclusion of peace, in contradistinction to
private lines and the like.^

This systematising forms a contradistinction to
the course of ideas prescribed by A. Zorn.^ His
opinion is as follows : he starts quite simply
from the principle of military necessity and subjects
to that rule private and public property alike. The
other maxim he leaves quite out of account. His
words are : " The treatment of private and public
property belonging to the enemy is governed, as are
all the other modern laws of war, primarily by the
principle that every course of conduct of whatsoever
kind must find its justification as an act of military
necessity." With this maxim Zorn takes issue with

' As to immovables, see Chap. II.

2 P. 243. V. Ullmann, " Law of Nations," p. 496, is also
wrong.



lo CAPTURE IN WAR.

the conclusions of the Code of 1907, or rather 1899.
The seizure of pubHc property need by no means
be the outcome of miHtary necessity. Let us take,
for instance, the following case : The capital of
an enemy's country, as well as all its environs, are
occupied by an invader, who is vastly superior and
has command of exceptionally large resources in
ready money, in such a manner as to offer no pros-
pect of their recapture. Here, according to Zorn's
conception, the ready money forthcoming in the
enemy's capital may not be taken, for military
necessity does not demand such seizure. The
invader can carry on the war without the money
and his opponent has simply no prospect of
obtaining possession of such moneys and utilising
them for war purposes before peace is concluded.
Were people at the Hague really of opinion that in
such a case a seizure should be prohibited ? I
believe this all the less because Art. 53, sect, i, of the
Code by no means presupposes a military necessity
for the seizure, but lays down that all public
property may be seized " which is of a nature to
subserve the enterprises of war."

The logical carrying out of Zorn's principle shows
that this difference of opinion is not merely a dispute
as to terms. If public property were inviolable,
wherever military necessity allows it to be so, the
radical difference between it and private property
would exist only on paper. We should then
have to start with the principle of the inviola-
bility of private property, and, in addition, a series



HISTORICAL REVIEW. ii

of exceptions in case of military necessity, and,
after that, the principle of the violability of public
property and the sacro-sanctity of the same in cases
where military necessity does not enforce it. One
would start in the one proposition with the viola-
bility, in the other with the sacro-sanctity, and yet
would arrive, by formulating exceptions, at the
same conclusion in both cases. Only the burden
of proof would be reversed. If the enemy violated
private property, he would have to show that the
seizure had taken place on considerations of military
necessity. If, on the other hand, he violated the
property of the hostile State, then the said State
would have to show that no such necessity was
present. In contrast to this, we must point to the
fact that in practice the treatment of private and
public property is quite different. For instance,
the ready money of the hostile State can be laid
hands on by the invader, but not that of private
individuals. But if we accept the premisses, private
property is inviolable (exception: military neces-
sity); public property is violable (exception: where
military necessity does not demand seizure), we
should have, in order to get, on the strength of
the theory, a conclusion consonant with practice,
to take a stricter view of necessity in the case of
private than in the case of public property. As to
the former one would have to say " Tlie seizure of
ready money does not fall under the conception of
military necessity " ; in the case of public property,
on the contrary, " That necessity allows the seizure



12 CAPTURE IN WAR.

of ready money." Yet no one will deny that this
view is untenable. Thus, if Art. 23 says : " It is
forbidden to destroy or seize an enemy's property,
except in cases where either is demanded by the
necessities of war," the wording of that article
must be declared incorrect, particularly in regard
to the contradiction which otherwise exists with
Art, 53, sect, i, of the Code.

The incorrect formulation of the fundamental
conceptions by A. Zorn has not prevented his fully
adhering in particular points to the resolutions
adopted at the Hague. He also agrees with me ^ in
rejecting the theory of Stein, which would subject
to confiscation all that is material of war, and in so
doing draws no distinction between private and
public property — an untenable view, which Ropcke
has recently tried to bring into currency. Doubt-
less Ropcke's idea is very humane in wishing to have
public property as well guarded as private, but
here we must be guided by the Code alone.
Perhaps the further development of the laws of
war will result in people's contenting themselves
with crippling the enemy and taking possession of
his property, and afterwards restoring what they have
acquired. We should then arrive at Zorn's notion
that all public property must be inviolate, except
on grounds of military necessity. But until
that theory has found acceptance none but the
above train of thought supplies a satisfactory

» P. 262.

2 Cf. p. 1 1 ; also Nowacki, p. 64.



HISTORICAL REVIEW. 13

solution, or one in accordance with the Hague
Convention.

The recent development of the laws of war has
led to this improvement, that an individual is justi-
fied in any measures against property, no matter
whether that of the State or private persons, only
on the strength of the order of an authorised
person. If he seizes an enemy's chattels without
being covered by orders from his superiors, he is
punished according to the laws of his country.
Sect. 128 of the German Military Penal Code, in
which, by-the-bye, the conception of booty is upheld,
imposes a penalty of imprisonment not exceeding
three years, and subsequent degradation to the
second class of military status, on " Who-
ever in the field detaches himself from his corps
without orders, in order to plunder, or of his own
motion makes prize of things that in themselves
are subject to the law of prize." The second clause
of this paragraph punishes whoever keeps to himself
booty made according to law. Thus the old rule
of Bynkershoek has become valid, Bello parta
cedunt rei public(2.

The establishment of the legality of appropriating
the property alike of the State and of private
persons needs no special legal procedure in war on
land.^ Thus, for instance, as regards English war-
fare, Wildman ^ testifies that no single instance of

* Cf. Ph. Zorn, " D. Fortschritte d. Seekriegsrechtes durch
die 2 Haager Friedenskonferenze," p. 181.

* Von Holtzendorff ; " Rechtslexikon,'' p. 349.



14 CAPTURE IN WAR.

legal contention as to the legality of such appro-
priation is known. Even before that Holtzendorff ^
demonstrated that without doubt theillegal seizure of
movables, would, on the conclusion of peace, afford
sufficient ground for an action to show cause.
Recently, Art. 3 of the Convention confirmed the
dictum of the Code that the belligerent who violates
the rulings of that Code should, under certain
circumstances, be bound to make good the damage,
and be responsible for all acts committed by persons
forming part of the armed force of the party .^
This proposition, put forward by Germany, was
justified by the report of the Austrian Baron Giesl
de Gieslingen, as follows^: — " The enactments of
the Code of Laws and Customs of War being
meant to be observed, not only by the commanders
of contending armies, but in a general way by all
officers, non-commissioned officers and soldiers, the
German delegates have thought fit to propose that
the Convention should extend to the Law of
Nations, in all cases of breaches of the Code, the
maxim of Civil Law by which the master is
responsible for his managers, or agents."

Hitherto, the contracting powers had, according
to Art. I of the said Convention, merely been
bound to give their field armies instructions
corresponding with the Code. If the soldiers or
officers transgressed these instructions, they made

> " Rechtslexikon."

2 Cf. Ph. Zorn in "Zeitschrift fur Politik " for 1909,

P- 334.

^ Prot. I., p. 103.



HISTORICAL REVIEW. 15

themselves liable to punishment by the military
laws of their country. On the other hand, there
was no obligation on the part of the State. In the
commission, a discussion had arisen whether this
proposal included not only neutrals, but enemies.
For the German proposal had been wrongly under-
stood to mean that only in case of a breach of
the agreement as against neutrals would compen-
sation be given. So when the military representative
of Germany, General von Giindell,^ had corrected
this erroneous impression, the unanimous acceptance
of the above decision at once ensued. They had
however, shortened the German scheme by striking
out more particular regulations as to the nature of
the compensation, in which a difference was made
between neutrals and adversaries.^

The German scheme demanded that neutrals
should be compensated at once, provided that
military necessity permitted ; on the other hand,
the question of the time for the compensation of
enemies was to be left to the special stipulations
of the treaty of peace. England and France, in
particular, would not hear of a privileged position
being accorded to neutrals by the treaty.

With regard to the amount of the compensation
nothing was said in 1907, nor at the debates on the
time of grace and on fishing vessels. But as no
agreement was reached with regard to the extent

1 Prot. III., p. 147, 148.

^ Cf. further Huber in " Jahrbuch des Oeffenth. Rechts,"
II., p. 574 ei %eq.



i6 CAPTURE IN WAR.

of the indemnity in these instances of the law of
naval warfare, the compensation even for infringe-
ments of the Code must be estimated by proceed-
ings in equity.

It should also be remarked that in the application
of this rule difficulties of many kinds may arise.
The necessities of war will often not admit of
observing all the regulations. For instance, if in
besieging a town a scientific institution be de-
stroyed which, according to the Code, ought to be
spared, there can of course be no question of
responsibility. What will happen, then, supposing
the injured parties, as has been increasingly the
case since the Spanish-American war, have insured
their property against war-risks even on land ?

The above-cited difference between private and
public property applies to war not only on land,
but at sea. Here public property may be
violated, but not private property. But as
regards naval warfare there is a very impor-
tant exception, the so-called right of prize.
This, however, does not include all the goods
of individuals, but only such as may be included
in the enemy's commerce. There is a supposi-
tion extant that all goods being conveyed by
sea appertain to the enemy's commerce. Yet
the proprietor may prove the contrary if he can.
The French Instructions of July 25th, 1870, lay
down : " You will have to seize all the
enemy's merchant ships without distinction."
Thus, as a matter of principle, not all private



HISTORICAL REVIEW. 17

property of the hostile Power's subjects is violable
in naval warfare, but only such as may be held to
form part of the commerce of that power's subjects.
Thus far the right of prize still holds in naval war-
fare. True, people justify the seizure of such
objects as belong to the enemy's commerce in all
cases by the necessity of war, i.e.^ by a hint that
they wish to destroy the enemy's commerce and
thus render victory possible or easier. But even
granting that by the seizure of hostile merchantmen
victory is facilitated, that by no means justifies the
transfer of property, seeing that military necessity
would only demand a temporary, not a permanent
retention of the said merchant ships. Therefore it
cannot be denied that in naval warfare belligerents
do actually enrich themselves with the private
property of their enemies, and thus a right of
prize is here again exercised. This is particu-
larly shown by the fact that the prize regulations
of all Powers except Germany and North America
assign the prize-money to the crews, or at least a
reward for the seizure of the vessels. Renault's^
reason for proposing the " abolition of prize-money "
at the Hague in 1907 was to prevent a combatant
from enriching himself by the seizure of an
enemy's ships. But he could not carry it through.
Opponents insisted above all that it was a question
of esoteric international law.^

1 Prot. I., p. 248; III., pp. 794, 809. Cf. Austria-
Hungary's Amendments on the point, III., p. il49-
" Prot. III., p. 843.

C.W. C



i8 CAPTURE IN WAR.

A further contradistinction between sea and land
warfare lies in the fact that the lawfulness of
appropriating private property must be formally
established by legal procedure.^ The seizing of
public property is effected here first, as in land
warfare, without any formality.

The duty of compensation for laying embargo
on private property of course only exists in naval
warfare where the enemy's conduct is contrary to
law. Two circumstances are here conceivable :
first and foremost, either the seizure is not ratified
by the Prize Court, or the release of ship and cargo
is brought about by diplomatic means. Then those
concerned have, according to Art. 64 of the London
Naval Convention, the right to compensation for
damage, unless, indeed, adequate reasons for laying
embargo on vessel or cargo are forthcoming.
Renault's^ report cites as such, in the first place,
" notably the throwing overboard, suppression, or
deliberate destruction of all or part of the ship's
papers, resulting from the act of the captain, one
of the crew, or one of the passengers. A similar
case would be where duplicate, false, or falsified
papers were found on board, supposing that such
an irregularity were connected with circumstances
of a kind to affect the seizure of the vessel." In
some countries the Prize Courts are not in a
position to grant compensation in a case where the
release of a ship has resulted from diplomatic

^ I have not gone further into this in the present work,
a Actes, p. 374.



HISTORICAL REVIEW. 19

action. Then the question of compensation is also
settled in a diplomatic way. Where the National
Courts are competent, the question of compensa-
tion can only be laid before the International
Court for decision, when, in accordance with Art. i
of the " Agreement, touching the setting up of an
International Prize Court," it is a question of
deciding the legality of the seizure of a merchant
ship or its cargo, that is to say when the legal
contention is not solely confined to the question of
compensation. The decision of the point as to
how far the indirect loss must also be considered
in determining the damage, is left to the Prize
Courts.

Bluntschli^ declares that there is no primary reason
to justify the difference between land and naval
warfare as regards the treatment of private property.
If the army is forbidden to make spoil of private
belongings on land, plunder of a similar kind must
not be granted to the navy. Doubtless he is right
in so far as in naval warfare private property
must likewise be inviolable, and hence the demand
must be raised that in cases where necessity of war
calls for the seizure of private property, the obliga-
tion to restore the same arises, as the Belgian van
den HeuveP very rightly insisted in 1907. But the
question is, whether in naval warfare, in all cases,
the necessity of war entirely excludes the possibility
of sparing goods that belong to the opponent's
commerce.

' P. 147- ^ Prot. III., p. 839.

C 2



20 CAPTURE IN WAR.

Since reasons of war must form the guiding
principles at sea as well as on land, it may very
easily be that sea warfare requires quite different
measures. Although the permanent retention of
private property at sea can in no way be justified,
a reference to the regulations for land warfare by
no means refutes the right of temporary seizure at
sea, as was erroneously declared in 1907^ by Choate,
Barbosa, Rose and Hammarskjold. Rather the
question arises whether military necessity at sea
does not demand at least a temporary embargo on
the enemy's private property. It will, however, be
shown later that prize at sea can by no means be
justified by necessities of war, and thus all defence
of that right is proved to be unfounded.

For that matter the seizure of an enemy's pro-
perty at best would in no wise come under the
conception of the right of prize, if it only arises from
the necessity of war, e.g: to obtain urgently needed
requisitions in kind.

The abrogation of the right of prize, therefore,
would not forbid all seizure of an enemy's private


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