Hans Wehberg.

Capture in war on land and sea online

. (page 4 of 15)
Online LibraryHans WehbergCapture in war on land and sea → online text (page 4 of 15)
Font size
QR-code for this ebook


property at sea, but merely such seizure as of itself
only can cause injury to the enemy's commerce.
And, in any circumstances, there would then be an
obligation to restore private property so seized.
Brazil^ proposed, in 1907, that the rules of the law
of booty in land warfare should be extended to

1 Prot. III., pp. 756, 787, 796, 805. The right view was
maintained by Renault, v. Martens and NeUdow ; Prot. III.,
PP- 793. 834, 842.

^ Prot. III., pp. 787 ei se^.



HISTORICAL REVIEW. 21

the sea. In as far as the originators of the proposal
started from the principle that it differed from the
American proposal for the total abrogation of prize
at sea, they were mistaken. In its material aspects
the Brazilian proposal somewhat tallied with the
American, and only dwelt, as the latter had not
done, on the exceptions obtaining in land warfare
as to necessity of war ; these are closely bound up
with the essence of war, and hence must apply
to naval warfare as a matter of cou»-se. If,
therefore, the American proposal had been carried
through, the exceptions on grounds of military
necessity would have held good. True, Choate,^
in defending it, had laid down that the right of
blockade should be retained as a juste equivalent
for the damages to which property was subjected
in land warfare owing to the necessities of war.
This amounted to saying that Choate wanted to
put a stop to all damage to private property in
naval warfare, even such as necessity required.
But that should have been expressly stated in the
American proposal, and could not be accepted in
silence. Hence, it is open to question whether the
error at the bottom of the Brazilian proposal is not
to be ascribed to Choate's speech.

Travers Twiss, at a meeting of the Institute of
International Law in 1875, declared himself in
favour of an enemy's ships being floating territory,
and as such becoming the property of the aggres-
sive State.

» Prot. III., p. 756.



22 CAPTURE IN WAR.

Occupation in land warfare, however, constitutes
no title to the territory, and thus this final conclusion
is false.

Further, Hammann ^ opines that the aggressive
State on land can, by virtue of the power acquired,
prevent hostile use of private property as a matter
of course. But I ask him why in that case the
capital of individuals can very well be used in land
warfare for the support of the invaded State ?
There is no reason why several patriotic millionaires
should not lend their whole fortune to the State ;
and is not the ready money of individuals on land
much more useful than goods afloat at sea, which
must first be turned into money ? Nay, this reason
is just as meaningless as his second notion, that in
land warfare private property is bound to the soil,
and cannot be rescued from the invading foe, while,
in naval warfare, on the other hand, merchandise
may be exposed to the risks of war without natural
hindrance. If the great adventurers continue to
carry on their commerce during a war, are they,
according to him, to be made responsible for such
carelessness ? According to that, would not the
peaceful inhabitant also have to lose his property in
land warfare if, on the outbreak of war, he did not
quickly put his fortune out of reach, but kept it by
him ? How far is private property, e.g., great,
aggregations of capital, to be bound to the soil ?
Is it not open to any citizen on the outbreak of war

' P. 24.



HISTORICAL REVIEW. 23

to secure his money in the banks of a neutral
State ?

Just as little can I recognise a reason for differen-
tial treatment of private property on land and at
sea in the fact that in the former case it is on hostile
territory, and in the latter at sea, that is, no man's
land.i

The reason why in naval warfare, in spite of the
contrary being established in land warfare, a right
of prize still exists, is to be sought for, not least in
the fact that the law of booty in the latter has a
far longer development behind it than in the former.
A law of nations can notably only be evolved
where nations regard themselves as equally privi-
leged. Whereas on land this was arrived at only
at a very late period, primarily by means of
the Peace of Westphalia, in naval warfare, a
generally acknowledged international code could
only be evolved much later, because throughout
some one State held the predominance at sea. In the
fifteenth and sixteenth centuries the Spaniards, and
in the seventeenth the Dutch, could never consent to
any reform, because they, as the dominant maritime
Power, had no interest in doing so. Since the
decline of the power of the Netherlands, England
in particular has rejected every attempt to abolish
the law of prize. That Power regards international
law as in reality only a factor which can, in a
marked degree, conduce to the maintenance of its
safety, by helping to hamper the operations of its
• Cf. Choate's speech in 1907, Prot. III., pp. 763, 764-



24 CAPTURE IN WAR.

enemies.^ Notably at the first Hague Conference,
the military representative of England, General
Ardagh, declared that, for his country, questions of
international law were only such as concerned
the land. The hopes of a change in the attitude
of England ^ towards the question of prize at
sea that arose on the formation of the Camp-
bell-Bannerman Cabinet in 1906, have, unfortun-
ately, not been realised.

^ Cf. Ph. Zorn, Deutsche Jufisten-Zeitung, Oct. ist, 1906:
further A. Zorn, as above, p. 10.
^ Cf. Eyck, Deutsche Jurist eti-Zeitung, Oct. ist, 1906.



LAW OF PRIZE ON LAND.

CHAPTER II.
NATIONAL PROPERTY.

The destruction of immovables, generally, is of
no profit to an invader, nor is it calculated to
weaken the resources of the enemy he is driving
back. Over immovable private property he acquires
no right whatever, in as far as the necessity of
war does not demand the contrary. Over public
property of the same kind, he certainly never
acquires rights of ownership, but only those of
disposal and user. This amounts to saying that
the invader must keep within the bounds of legiti-
mate dealing, as far as military necessity may
allow. One might then say that he may,
cut down the forests so as to procure the
sinews of war by the sale of the timber. Such,
however, is not the case. Rather there comes in
as a modifying factor, as against the fundamental
principle above set forth, the consideration that the
cultivation of a country would have to suffer in too
ruinous a fashion under such a course. But the
timber may very well be used for the building of
bridges and similar purposes. The destruction of



26 CAPTURE IN WAR.

bridges is naturally permitted in cases of military-
necessity. The suggestion first put forward by
Fillet/ according to which the invader is to give
notice of his intention to break down a bridge,
and his adversary may not thereupon use the
said bridge must be shattered by the very nature
of war, seeing that in case of necessity one cannot
possibly adhere to arrangements of that kind.

The wording of Art. 55 of the Code is as
follows : — ** The invading State shall only regard
itself as the administrator and user of the official
buildings, demesnes, woods, and agricultural hold-
ings which belong to the hostile State and are
within the occupied district. It is bound to protect
the mesne product of these properties, and to
manage them according to the principles of
usufruct."

The view that by the mere invasion of the
enemy's country, immovable State property, i.e.,
the domain of the State becomes the invader's,
has, accordingly, long since been obsolete. A
final transfer of State lands can, as a rule, only
be effected by the conclusion of peace, i.e., by a
special compact. " The victor," declares Lueder,^
" has no power of acquisition or alienation, which
may be spoken of only after an effective conquest,
not before ; not even in the case of protracted occupa-
tion." Government establishments devoted to
public worship, charity, education, art, and science

* " Les lois actuelles de la guerre," 1901.
2 IV., p. 490-



NATIONAL PROPERTY. 27

are of as little value to the invader in recouping the
expenses of war as State land and soil, etc.
Doubtless the high destination of these establish-
ments here comes to the fore, and by Art. 56,
sec. I of the Code, they are thus treated
as private property. That according to the same
article, the property of municipalities is likewise
exempt from seizure, is due in the first instance to
the fact that their funds are not State funds, and,
therefore, are not subject to the rules concerning
the treatment of public property.^ Art. 56, sec. 2,
declares expressly that all intentional destruction,
removal, or damage of such institutions,'of historical
monuments, or works of art or science, is forbidden
and penalised. Sichel ^ argues quite correctly that
a combatant on his own soil may not utilise the
privileged position of such institutions to protect
himself against the attacks of the enemy, e.g., by
taking military observations from church towers.

As regards movable public property, Art. 53,
sec. I of the Code lays down " The army of
occupation can only lay hands on the ready money
and the valuables of the State, as also upon
outstanding contributions payable to it, stores of
ammunition, means of transport, depots of supplies,
and stores of provisions, and, further, upon all
movable property appertaining to the State which
seems calculated to further the enterprises of war."

At this point it is necessary to refer the reader

^ Cf. Meurer, Kriegsrecht, p. 233.
2 P. 38.



28 CAPTURE IN WAR.

to the arguments given in Chapter I. The follow-
ing consideration must be mentioned at this junc-
ture. It cannot be denied that the decision as to
■whether private or public funds are in question
may frequently lead to difficulties. Yet these are
not so great as Bonfils thinks.^ In any case of
doubt the impounding Power can first issue a
voucher of receipt which — as will later have to be
shown — is meant for nothing but a proof of obtain-
ing possession. Also, Bonfils' contention that
many banks only serve certain strata of the people,
and that, therefore, not the whole State, but only
certain portions of the nation are injured by the
seizure of their funds is applicable, I take it, only
in rare instances. It is a matter of course, for
instance, that the deposits of individuals in
Government banks may not be seized.^

Art. 53, sec. i, of the Code lays down that the
invader may lay hands on outstanding contribu-
tions due to the enemy. " Outstanding " indicates
that it can here only be a question of monetary
contributions. Therefore this declaration can
scarcely be called unjust. The debtor must merely
pay the invader instead of his original creditor.
To be sure, in so far as debtor and creditor,
especially when one of the two is the State, stand
in protracted business relations to one another,
each is concerned that the other does not fall
into difficulties. This decision often implies a

1 Ibid., No. 1 1 88.

^ Cf. Schiemann's work on Public Banks.



NATIONAL PROPERTY. 29

serious infringement of the rights of a third party.
Thus the matter may be very unpleasant for the
debtor if he has not received the consideration for
which he is debited, for the Power impounding
the debt will not be able to trouble about it. A
number of outstanding writers, such as Calvo,
Fiore, Kliiber, Heffter, Pradier-Fodere and Ronard
de Card declare that the transfer of the demand
from the old to the new creditor is in no way to be
justified. Neither a cession, nor an assignment, nor
any other legal process is here present. But they
must be answered that this is not a case of civil
law, and that the principles of that law cannot be
applied to it. By the occupation of a district the
legal authority passes to the invader, and he
acquires the power and the right to adopt all the
measures which seem to him necessary to his
purposes. Only, of course, he must keep within
the limits permitted by the laws of war. It must
at least be regarded as quite a matter of course
that the occupying belligerent has the right of
forbidding payments to his opponent while the
war lasts.



CHAPTER III.
RAILWAYS, ETC.



'>



Quite a special consideration must be devoted
to railways, telegraph and telephone lines, and
other means of communication. Railways in
particular are of quite exceptional value in war.
The constant extension of the system in all
countries has lent the tracks an outstanding
importance for the dispatch of troops. Even in
constructing them in time of peace regard is paid
to the interests of national defence. They are
thus an absolute weapon of war, and not merely
a relative one which, on the outbreak of hostilities,
enters a definite relation to the same. Precisely
because of their pre-eminent importance, special
principles apply to them, seeing that their seizure
is always lawful.

In this no differentiation in treatment can be
made as between public and private lines. Nay,
even railway rolling stock from neutral States may
be impounded should military necessity demand
it. The articles of the Code that deal with the
matter are the following: — Art. 53, sec. 2, says:
" All means whether on land or in the water or
the air which contribute to the spreading of news



RAILWAYS, ETC. 31

or the forwarding of persons or goods, with the
exception of cases subject to maritime law, as also
magazines of arms and all kinds of munitions of
war in general may, even when they belong to
private persons, be laid hands on. But on the
conclusion of peace they must be restored and the
compensation determined." Further, an article
which in 1907 was removed from the Code and
now figures as No. 19 of the new " Convention con-
cerning the rights and duties of neutral Powers
and individuals in case of war on land," lays down
as regards railways running from neutral States :
"Railway rolling stock coming from a neutral
Power and belonging either to it or companies or
individuals in it, and which is recognisable as such,
may be claimed and used by a belligerent only in
a case and to such a degree as imperative necessity
may demand. It must as soon as possible be sent
back to the country of its origin. Similarly a
neutral Power may in case of necessity detain and
utilise to a corresponding extent the stock coming
from the territory of the belligerent Power. On
the one hand and on the other compensation shall
be paid according to the material used and the
time during which it is used." Luxemburg in
1907 made the proposal,^ which Beernaert had tried
to put through as early as 1899, to forbid the use
of neutral railways in any circumstances. Those
who wished to allow belligerents the use of neutral
railways disagreed at first as to whether they
' Prot. I., p. 157 ; III., pp. 214 ei seg.



32 CAPTURE IN WAR.

should grant compensation to the neutral Powers
or a right of recovery from the railways belonging
to the belligerent States, or both at once. In the
end both were accorded to them. The recovery
was not to bear the character of a reprisal ^ : "A
neutral State will have recourse to it because
being deprived of the stock impounded by the
belligerent, he must in his turn requisition the
stock which he finds in his own borders to ensure
the service of the railways, both in the interior of
the country and as regards international communi-
cations." What was considered in the decision as
to the Luxemburg proposal, which was supported
by Eyschen in a very subtle way, was, firstly,
military necessity, and then the fact that it is often
very difficult to separate the lines of the neutral
and belligerent Powers, and therefore a joint use of
neutral lines is not to be avoided,^

This last article, certainly, is most in favour of
the view that in war everything must yield to con-
siderations of military necessity. That alone can
explain how it is possible for people to regard as
justifiable any tampering with the chattels of
neutral States or persons. Speaking generally,
neutrals — we shall speak of this more in detail later
— can expect no fundamentally different treatment
as to the protection of property from that accorded

^ So it stands literally in the protocol ; HUber interprets
it very rightly as " a sort of right to redeem a pledge "
(" Jahrbuch des oftentl. Rechts," 11., p. 6io).

2 Cf., especially, the speech of the German delegate,
V. Giindell, Prot. III., pp. 221 et seq.



RAILWAYS, ETC. 33

to the subjects of the hostile State. It is par-
ticularly in the matter of railways that such action
is most especially justified owing to their great
importance.

In the Articles of the Hague Conventions just
mentioned, it is clearly and plainly declared that
these appurtenances must afterwards be restored.
We are thus compelled fully to uphold Bonfils^
when he says that railways and the like must be
subject to restitution, even when they are State
property. Yet his contention that this is so
because one cannot possibly put locomotives, etc.,
on a par with munitions of war, seems to me
incorrect. He quotes the dictum of the publicist
v. Stein, which he fully endorses. " Even if rail-
ways belong to the State, yet they are in the first
instance intended to promote commerce and com-
munication in times of peace. It is only incidentally
that they subserve warlike purposes as well." As
we have previously explained, they had already
been ear-marked as positive material of war. If
you do not accept this, you might argue with equal
justice that the ready money of the hostile Power
did not originally subserve warlike purposes, and
must therefore be restored. But this Bonfils, in
concurrence with the Code, adjudges to the enemy.
Railways are often of notably greater value in the
provisioning and transport of troops than the
corresponding money. Just recall how the defective
railway communication between Russia and the
' Ibid., No. 1,185.

C.W. D



34 CAPTURE IN WAR.

Far East hindered the rapid transmission of Russian
troops to the theatre of war in the Russo-Japanese
conflict. The reason for the return of public rail-
ways is to be sought in their exceptional indis-
pensability to international intercourse. Until 1899
the idea of restoring all railways was not recognised.
Before that only private lines were restored.

The legal effect of the seizure of railway material,
i.e., the acquirement of its possession,^ is thus
identical as to movable and immovable property.
The contrary view is opposed to the decisions of
the Hague Conferences.^

The question whether rolling and fixed railway
material form one inseparable legal whole has no
particular practical interest. None the less it may
be mentioned that Zorn^ is hardly right in wholly
rejecting a differentiated treatment of the two
kinds. In some countries, France,^ for instance,
the one and the other belong to different owners,
and, moreover, though the use of the lines is
impossible, one without the other, yet different
legal treatment of the two is at least conceivable.^
But as in practice both are treated alike, we will
not further discuss the question here.

It will be more difficult to decide whether in
case the invader continues the use of the railways,



' A. Zorn, ibid., p. 265 ; Meurer, ibid., p. 316.
2 Hence Nowacki is wrong on p. 96.
^ Ibid., pp. 263 et seg.

* Nowacki shows (p. 56) how extremely the railway
systems differ in the various countries.

* So Nowacki very rightly, p. 61.



RAILWAYS, ETC. 35

and obtains profit therefrom,^ compensation is
to be given. On this point the Code contains
no express decision. But beyond all doubt, as
regards private lines, compensation is to be given
on account of profits, the more exact determin-
ing of which is a matter for the treaty of peace ;
as to public railways, on the other hand, it is
not.^ In 1880 this was determined by Arts. 51
and 55 of the Manual, and the Code has only failed
to declare it clearly enough. Moreover, in the war
of 1 870- 1 the Germans acted on these principles.
The theories above propounded specially justify
this conclusion. State railways are not protected
qua public property, but because of their great
importance to communication. The maintenance
of this demands restoration after the war, but by
no means with compensation both for the profits
derived from them and for other use made of them,
Quite otherwise is it with private property. This
is in principle inviolable, and where military
necessity forces one to act in contravention of that
principle, compensation must be made.

The invader can, of course, raise the charges of
the railways in so far as the exceptionally high
prices of management force him to do so. He will
only be allowed to go beyond that in cases of
urgent necessity. Such will, however, seldom

^ Having regard to this, differential treatment of movable
and immovable railway plant is to be rejected.

'■* So also A. Zorn, ibid., pp. 265 et seg. ; Uonfils, ibid.,
Nos. 1,185, 1.186; Sichel, p. 31 ; and Meurer, ibid., pp. 315
ei seq.

D 2



36 CAPTURE IN WAR.

occur, because the use of the line by private persons,
as was seen in particular in the war of '70-71^
is very limited. The German military railway
regulations forbid all private transit at the theatre
of war and in its neighbourhood.^

Let it be remarked further, that at the Hague in
1889, the view was expressed that on the requi-
sitioning of private railway plant the owner shall
receive some sort of a voucher upon which he may
later base his claim for compensation. Unfortu-
nately, although there was no visible reason for its
omission, this decision was not embodied in the
Code.

Postal, telegraph, and telephone arrangements,
steam and other vessels, are treated precisely like
railways.^ Art. 53, sec. 2, speaks quite generally
of " all means of communication and of transport
on land, and sea, and in the air." They expressly
refrained from giving a detailed list of the matters
appertaining hereto in the article, " any communi-
cation being risky, and never complete."* The
Japanese proposal to strike out "on the sea," which
was based on the ground that the regulation
of questions belonging to maritime law was the
work of the fourth committee, was not carried.
It was taken into account " that the right of capture

^ See also for railways in time of war, " Sarah Bernhardt's
Memoirs," vol. I., 1908.

^ Cp., Nowacki, p. 93.

^ Cp., the special treatment of railway ferry boats in
Nowacki, pp. 138-156 ; also Prot. I., p. 159.

* Prot. 1., p. 102.



RAILWAYS, ETC. 37

at sea may be applied in a continental war to the
case of vessels taken in a harbour by a body of
troops, especially as regards vessels designed for
river work."

All objects named in Art. 53, sec. 2, of the Code
are to be spared as far as possible, and may only
be impounded in case the adversary has urgent use
for them. By Art. 54 underground cables which
connect invaded territory with neutral are also
placed on an equality with those objects. They
must be restored on the conclusion of peace, and
supposing they are on the property of private
individuals, compensation must ensue. Hereby
the proposal made even in 1874 and 1889 by
Denmark, for placing " connecting cables within
the boundary of the foreshore" [cables d'atter-
rissage] on an equality with telegraphs on land,
was at length carried on the renewed proposition
of Denmark in 1907.



;iB.t)3.5r>



CHAPTER IV.
PRIVATE PROPERTY.

We must now consider the exceptions to the
inviolability of private property.

According to Art. 53, sec. 2, stores of arms and
all munitions of war may be taken from private
persons, as one must of necessity deprive the enemy
of the use of such. Also against prisoners of war
a similar procedure is desirable to remove the
possibility of their making use of these weapons.
Otherwise, as regards them also, private property
is inviolable in accordance with Art. 4, sec. 3, of
the Code. Of course the invader's own need often
drives him to the seizure of munitions and the like.
In all cases, without exception, restitution, if not
compensation, takes place on the conclusion of
peace.

By far the most important exceptions to the
inviolability of private property are as to what are
called objects of requisition — natural products,
contributions, i.e., forced payments and fines or
penalties exacted.

Natural products include not only provisions but
clothes and shoes. In this connection we may best



PRIVATE PROPERTY. 39


1 2 4 6 7 8 9 10 11 12 13 14 15

Online LibraryHans WehbergCapture in war on land and sea → online text (page 4 of 15)