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consider the levying of taxes by the occupying
Power,^ although public taxes, as being leviable
claims of the State, form part not of private but of
public property.

At this point a special warning must be given
against theoretical arguments which do not tally
with standards of international law recofjnisinp;
military necessity.^ Regrettable as it is that the
inviolability of private property is often infringed,
on the other hand, stress must be laid on the
fact that in cases where an army is in danger of
perishing from hunger, for want of the necessary
means of sustenance, any such infringement is
justified by the necessity. It would be foolish to
wish to carry the protection of private property so
far that the invading troops ran the risk of
starvation.^

Here again, generalisations are of little value,
because the situation may be exceptionally many-
sided. There must, for example, be a great differ-
ence according to whether the army stays only for
quite a short time or passes several days in the
same place. In the first instance speed is necessary ;

1 As the Code does.

2 Cp. Zorn, " Die Fortschritte des Seekriegsrechtes
durch die Haager Konferenz," p. 178. " If I mistake not,
at present the danger of international law is less in the
direction of misty phantoms than of pettifogging formaHsing
which is not in keeping with the reality of things, and there-
fore can only be a serious damage to the theory and practice
of International law.

" Cp., Laymann, " The Feeding of Armies Numbering
Millions in the Next War."



40 CAPTURE IN WAR.

therefore, formal procedure in all things will not
be possible. It is of no less vital consequence
whether the army needs the supplies at once or
only in a short time, and, further, whether provisions
are soon to be expected from the home base. For in
time of war when a great body of men has to
receive supplies, provision must be made many
days beforehand. Moreover, very much depends
on the attitude of the country people. How much
more leniently may one deal with them if they do
not hide their provisions, and do not commit
hostile acts. If, moreover, the troops possess a
great store of money, payment in cash, wholly or
in part, will be possible and there will be no occa-
sion for using the formality of vouchers or receipt.
On the other hand, we must adhere firmly to a
correct interpretation of the axiom, " War sustains
war." This only applies to the property of the
hostile State. Imposts or taxes of any sort to
cover the expenses of war or enrich oneself are not
allowed,^ but only to meet the urgent needs of
the army and the administration of the territory
occupied. In this matter a thoroughly strict
interpretation is necessary. Every avenue would
be thrown open to the violation of private property
if in any invaded territory taxes on any scale
whatever could be levied. In this respect the
invaded State stands to the invader in the relation
of a mere legal party, to be sharply distinguished
from the individual inhabitants and even the

^ So Meurer aptly states, ibid., p. 286.



PRIVATE PROPERTY. 41

individual corporations. From the State as such
the victor can demand his indemnity, and even
before peace is conckided, procure funds to meet
the expenses of the war as far as possible out of its
ready money, and so forth. From the individual
subject, on the contrary, he can only obtain
money or requisitions in kind in the instances above
mentioned.

Art. 43 lays down that the occupier is bound to
utilise the taxes in the first place for the adminis-
tration of the territory. Only with the surplus can
he deal as he chooses. In order to spare the inhabit-
ants, it is ruled that the raising of such State
imposts, tolls and dues shall be carried out as
far as possible according to the usual regulations
for their raising and distribution. This cannot
always be managed. For instance, when the
previous officials are no longer there, the enemy
is in total ignorance as to the previous method of
collecting the contributions, and will have to act
according to his own laws. Thus, in 1870-1871,
a new plan was introduced for the levying of
indirect taxes on the French territory occupied,
as, owing to the resigning of many French officials,
the carrying out of the complicated French system,
was impossible.^ For this reason it may well
prove that such taxes cannot be collected at all.
They are then replaced by contributions. These,
however, are by their nature really substituted
taxes, and are only incorrectly called contributions.

' Sichcl, p. 28.



42 CAPTURE IN WAR.

We may, with greater reason, speak of contributions
where the imposts are levied to cover the cost of
administration. This is the upshot of Art. 49,
where they stand under the heading of " other
levyings."

It should be mentioned that Art. 48, touching
the further levying of taxes, speaks in a conditional
mood. This was done chiefly at the instance of
Beernaert,^ who, in 1899, vehemently opposed the
recognising of the act as lawful.

Further, the view — propounded by Lammasch at
the Hague in 1899, and afterwards shared by others
— that one should exhaust the enemy's strength by
contributions and requisitions, and so put an end to
the war, must be opposed. This idea is at variance
with modern principles of the laws of war. As all
destruction of the enemy's private property con-
tributes to weaken one's opponent, the utmost
possible devastation of his country would be the
best means of quickly achieving victory. Such a
course, however, can to-day no longer be regarded
as permissible.^ For Art. 47 lays down that
" Plundering is expressly forbidden." Lammasch
is here on the wrong tack, and, as will be shown
further on, this pernicious conception of the nature
of war also tends toward the justification of the
right of prize at sea. But even the report of the
French representative, Fromageot, in the debates

1 Cp., Meurer, ibid.^ pp. 207 et seq.

2 Certainly England adopted a different course in the
Boer War and destroyed numberless farms.



PRIVATE PROPERTY. 43

of 1907, in favour of abolishing that right, speaks
of the " impossibiHty of admitting that one ought
to prevent war, or hasten the end of it, by making
it as terrible as possible." ^

There must in practice be no fundamental differ-
ence between the treatment of contributions and
that of requisitions.'^ The crucial point of the
questions which are here mooted was fixed by
Col. V. Schwarzhoff in 1899. Natural products are
procured either through the medium of the munici-
palities, or directly from the individual inhabitants.
But in this way injustices in the incidence generally
occur. For, by the nature of things, cattle and
other means of sustenance cannot be so equally
divided among the inhabitants as money payments.
Besides which, with the latter, a more equitable
distribution is possible just because they are levied
according to the already existent systems of
taxation, as Art. 51, sec. 2, expressly says. For
this reason another method of procuring provisions
must be maintained, namely, that of first obtaining
money payments, and with them procuring the
provisions in open market by cash purchase. This
also has the effect of making the inhabitants much
more readily produce and sell the provisions they
are hiding.

At the first Hague Conference there was a partial
opposition to putting contributions on a level with
requisitions, and a wish that the former should be

1 Prot. I., p. 246.

'^ Cp. A. Zorn, ibid.^ p. 308.



44 CAPTURE IN WAR.

sanctioned only as quite rare exceptions. Beernaert,^
notably, saw in such equalising, a breach of the
principle of the inviolability of private property, and
a reminiscence of the old devastations. Yet it is
not clear how far this should be the case as regards
contributions in particular any more than as
regards requisitions. One must surely see that the
ultimate aim is to get provisions only by means of
money payments, that is, that the object of money
payment is the same as that of requisitions.
Which right shall be exercised in any case can
only be decided in the particular instance. Let us
suppose that some soldiers are quartered in a
village : here requisitions will be most suitable.
For where the requirement is small, it is more
convenient to get the provisions from a few people
than to buy them out of contributions. Lueder^
cites a very good instance. He says money pay-
ments are simpler for both parties where the
necessary products are lacking in the locality to
be levied upon, but are forthcoming in abundance
in the neighbourhood.

The principle of putting contributions and
requisitions on an equal footing was recognised
in 1899 by all the powers, with the exception
of Switzerland.

Against the arguments heretofore adduced, the
objection cannot be made that contributions in
kind on the strength of Art. 52, sec. 2, should as

* Cf. Meurer, pp. 279 et seq.
2 H. H., § 117.



PRIVATE PROPERTY. 45

far as possible be paid for in cash. In reality,
for want of the needful money, that is but seldom
or, as Bonfils thinks, never possible.

A regulation which is practically not less devoid
of meaning is the requirement of Art. 52, sec. i,
by which contributions in kind must be in propor-
tion to the resources of the country.-^ No heed can
in reality be paid to this, because the welfare of
the soldiers comes first. The principle is already
established that such contributions may only be
levied to cover the needs of the army, i.e., only in
a case of military necessity. The needs are not to
be altered at pleasure, but only determined on the
basis of the numbers of the army, and can thus as
little be graded to suit the resources of the country.

The theorists have puzzled their heads how it
can be a duty to furnish resources to an enemy.
" Such a law^ is inconceivable," opines Funck-
Brentano, and Bonfils is particularly severe in his
ruling as to contributions. The justification of
these arrangements is to be sought in the fact that
the invader by occupying, becomes possessed of
the power to compel the subjects to provide the
necessary maintenance. But this does not suffice,
as Dahn wrongly opines^; it is only through
military necessity that this power becomes a
ris^ht.^ Therefore it stands to reason that the
people are quite unable to refuse the payment of

^ So, too, Zorn, p. 315.
"^ " Bausteine," V., p. 175.

^ Ropcke's opinion that the right of prize at sea is based
on the right of the enemy is untenable (p. 9).



46 CAPTURE IN WAR.

contributions in such a case, as in 1897 the Greeks
did in the war against Turkey. Under such
circumstances the invader is justified in taking
extreme measures of compulsion.

To the extent that Art. 51 requires a written
order and the responsibihty of a general with an
independent command in compulsory buyings,
whereas Art. 52 with regard to exactions in kind
does not mention a written order, and considers
the authorisation of the commander of the locality
occupied sufficient, the equalisation of contributions
and requisitions was not adopted in the formal
regulation of the law at the Hague in 1899. This
difference in formal treatment is by no means
to be approved. It has not been admitted
thereby that levyings in kind are to be regarded
as the usual method. Money payments are the
exception. Rather, in the numerous instances
where there is urgent need for means of susten-
ance, the provision of such supplies is not to be
delayed.

In the case of naval warfare, a breach of the
principle cited is not to be seen in the fact that by
Art. 3 of the " Agreement concerning the bombard-
ment by naval forces in time of war," open towns,
etc., may be bombarded for refusing requisitions,
while, on the contrary, by Art. 4 of the said agree-
ment they may not be bombarded for refusing
contributions. The point here is that the
bombardment of such towns is such a terrible
punishment to the inhabitants that the infliction



PRIVATE PROPERTY. 47

thereof must be limited to the utmost Contribu-
tions were excluded for the reason that they
subserve no such urgent need as requisitions. This
practically amounts to saying that naval com-
manders will be always demanding requisitions.

For every contribution and requisition, if cash
payment is impossible, a receipt is to be given. It
is only slowly that this decision has been able to
establish itself in international law since 1785.
Even in 1889 Lueder ^ declared "the right of
requisition without payment still obtains." But in
1 870- 1, the principle of vouching for the receipt,
and, consequently, that of repaym.ent, were already
recognised by the German troops. If Art. 52,
sec. 3 says " The payment of the sums owing
shall be made as soon as possible " this clause,
which was added in 1907, is of no weight. In
actual fact, the Power would never have the means
of making payment until the conclusion of peace.

As already mentioned, it is determined in the
treaty of peace by whom the various vouchers for
requisitions or contributions are to be redeemed. As
a rule, the vanquished State will have to discharge
this duty towards its own subjects, when it is a
matter of internal polity as to how it may cope with
this obligation.^ Otherwise, the victorious Power
has these sums paid to it for its own citizens in the
war indemnity. In this case it is under obligation
towards its own subjects to apply the money to

» H. H., IV., p. 502.

2 Cp. A. Zorn, ibid., p. 314.



48 CAPTURE IN WAR.

stipulated purposes. In reality, therefore, the
restitution always takes place through the State as
intermediary, and never to the injured citizens
directly. As Meurer^ justly remarks, the voucher
is only to insure the proof of payment. In these
decisions nothing has been altered, as regards the
Code, by Art. 3 of the Convention already
mentioned.

As for so-called *' penalty demands," Art. 50 of
the Code lays down that no penalty in money, or
of another kind, can be imposed on a whole popula-
tion because of the doings of individuals, unless it
be that the inhabitants must be regarded as sharing
the responsibility, even if only passively.^ It is
here, legally speaking, a question of reprisals. For
one thing, compulsion is to be indirectly exercised
by threatening inhabitants, and, moreover, by
the carrying out of the punishment, a warning
against further acts of hostility is to be given. This
right can be fully justified. Having regard to the
seriousness of every state of war, special severity
cannot be adduced, especially where the punish-
ment consists only in imposing a fine.

To conclude, the question must be raised whether
the subjects of neutral Powers who happen to be in
the occupied territory are to be treated precisely
as its hostile inhabitants. A German proposal at
the second Hague Conference^ tried to bring it about

^ Ibid.^ p. 299.

2 Cp. Meurer, ibid.^ p. 287 ; A. Zorn, ibid., pp. 240 d seq.

3 The report of this proposal was made by the Swiss Col.
Borel.



PRIVATE PROPERTY. 49

that neutrals in the territory of belHgerents should,
as far as possible, be untouched by the war in
progress. It was wished to create " a special
position " for them.^

The uncertainty hitherto existing with regard to
the treatment of neutrals, and with it the source of
many disputes between neutrals and belligerents,
has to be removed. In the Committee, however,
an opposition made itself felt on the part of England,
France, Holland, and Russia, in favour of treating
neutrals exactly like the hostile Power's subjects.
The German proposal had contained three heads,
of which only the first, containing a definition of
the conception of neutrals, was submitted unaltered
by the Committee to the full House. On the
subject of the second, " In regard to services
rendered by neutrals," no agreement was arrived
at. The German scheme had clung firmly to the
thesis that neutrals could in no circumstances be
employed in military duties in the armies of
belligerents. In opposition to this, the Committee
had allowed the engaging of neutrals in military
duties "in accordance with the laws of the
belligerent Power," at the instance of Great Britain
and Belgium. The third clause of the scheme,
" Concerning the property of neutrals," was meant
to exempt neutrals from paying contributions
which are not simply intended for purposes of
administration, and to regulate certain questions of

^ Cp., Prot. I., p. 126 ; also Huber, ibid.y pp. 606 et scq.
C.W. E



50 CAPTURE IN WAR.

compensation where the property of neutrals is
violated.'-

This clause was so curtailed by the Committee,
that it only dealt with railways and ships.- At the
fifth Plenary Sitting, therefore, Frhr. v. Marschall
was right in remarking on the alteration of the
German scheme. " They have kept the head, I see.
But there is scarcely anything left of the body."^
Of the German scheme there remained intact only
the definition as to neutrals, and the decisions as to
neutral railway plant, which were afterwards
included as Arts. i6 — 19 in the "Agreement
regarding the rights and duties of neutral Powers
and individuals in war on land."

Even though in this way the debate on the
position of the property of neutral individuals led
to no result, yet much light was thrown on the
question by the proceedings.

The opponents of the German scheme had in
Committee^ pointed to the fact that neutrals were,
apart from military service, subject to all the
burdens of a foreign country. The taxes had to
be paid by all, without regard to nationality. The
same principle, they said, must be applied in time
of war. Even the Code of 1899 had made no
difference between neutrals and the subjects of the
belligerent Powers. The foreigner who settled in



^ Huber, p. 608.

2 As to the ships there was no agreement later on.

^ Prot. I., p. 126.

* Prot. I., p. 154.



PRIVATE PROPERTY. 51

another country knew that from the start he
exposed himself by so doing to the great burdens
to which the subjects of that country were Hable.
He need not, therefore, complain if in time of war
he were treated in just the same way as they were.
This point of view I regard as perfectly correct.
Even Feraud-Giraud and Bonfils upheld the
principle that neutral aliens must share the lot of
the country to which they entrust themselves and
their fortune. Englishmen experienced this in the
Franco-German War. Contributions and requisi-
tions are in no way to be regarded as acts of
hostility, and fall even upon the subjects of the
occupying hostile State. It is only the myrmidons
of armed Power that are to be regarded as enemies.
In contrast thereto stand the peaceful inhabitants,
no matter to which nation they belong. It must
also be remembered that a common v/ay of life
with the denizens of the enemy's country makes
neutrals for the most part friends of the country in
which they live. The representative of England
contended with justice in 1907, that " Every English
colony contains a very considerable population of
foreigners who have been there for a long time, most
of whom were born there, and regard it as their new
home, although they have not formally renounced
their original nationality, and who by no means
wish to benefit by such exemptions as it is proposed
to grant them. It must not be forgotten also that
it is often difficult to determine the nationality of
the peaceful inhabitants at all. Japan's delegate,

E 2



52 CAPTURE IN WAR.

in 1907, rightly pointed out that " in the Far East,
many countries have no laws concerning nationality,
and one might find whole populations whose native
land was wholly undetermined, or might be modified
from one moment to another by decisions far too
interested to be acceptable."

Added to this, as Bourgeois set forth, are the
practical difficulties that contributions and requisi-
tions are imposed, by reason of place, and not by
reason of person.

How burdensome it would be to have first to
decide each time what persons were exempt from
the payment ! How simple, comparatively, is the
formality now, when only the number of the
inhabitants is taken as the basis of the calculation !

As against this the representatives of Germany,
Switzerland, and North America urged the claims
of humane considerations. The German proposal
was evoked by the endeavour to limit the miseries
of war to as small a number of victims as possible.
The subjects of the hostile country could not be
exempted, but neutrals might. The former being
connected with the combatants by ties of blood
were bound to uphold their country in the struggle,
and hence to pay contributions to the enemy.
But with neutrals it was otherwise. " There are
foreigners in the territory of a belligerent State
only by reason of the one material fact of domicile,
who have no connection with that State, and who
are neutral because their own country is neutral in
the conflict," These arguments rest on the false



PRIVATE PROPERTY. 53

assumption that contributions and requisitions are
hostile acts.

The German proposal was, it is true, so far
contradictorily, or at any rate incorrectly, worded
that at first no contribution was to be imposed on
neutrals, and in a later clause the violation of
neutral property was to be allowable in cases of
military necessity. But is not the levying of con-
tributions such a case? In this respect the Swiss
proposal was legally more subtle, for it made no
special mention of contributions at all.

Let me mention that many Powers made com-
pacts with one another by which their respective
subjects, should they in time of war belong to a
neutral Power, were to occupy a privileged position
corresponding to the German proposal.^

It might be a matter of doubt whether neutrals
are to be subject to penalty contributions in the
same way as the denizens of the invaded country.
This question is to be answered in the affirmative.
The legal ground for such lies, as was shown
above, in an active or passive responsibility of the
community. If, therefore, neutrals must help to
pay contributions and requisitions, the applying of
which does not imply any culpability on their part,
they will quite certainly have to participate in the
amounts exacted as penalties when they have
committed or connived at hostile action against
the belligerent Power.

» Cp. Prot. III., p. 85.



LAW OF PRIZE ON SEA.

CHAPTER V.
TIME AND PLACE OF SEIZURE.

Before the question is decided whether the
right of prize at sea appears to be justified by mili-
tary necessity, the regulation by international law
of the various rulings attaching thereto must be
considered.

At the outset of a naval war a so-called period
of grace is generally allowed to the enemy's ships
within which they may place themselves in safety.
This usage was first put into practice by France and
England in the Crimean War in 1854 and has
since been followed in almost all wars.^ In the
year 1898 the United States fixed a respite of
thirty days for all ships lying in their waters. All
these concessions were based on the endeavour
" to reconcile the interests of commerce with the
necessities of war, and even after the outbreak of
hostilities to continue to protect, as amply as
possible, enterprises entered on in good faith and
in progress before the war." ^

» Cp. Prot. III., pp. 825 et seq.
2 Prot. I., p. 250.



TIME AND PLACE OF SEIZURE. 55

Recently the Hague Conference of 1907, in a
" Convention concerning the treatment of an
enemy's merchant-ships on the outbreak of hostih-
ties," has come to more exact conclusions on the
point. According to that, it is "desirable" that
in the following two cases the ships be allowed to
clear at once, or within a "sufficient " time,^ and
with a safe-conduct make at once for their port of
destination or some other port specified to them ^ :
— (i) Where merchant ships of one of the belliger-
ent Powers are in an enemy's harbour at the
outbreak of hostilities (Art. i, sec. i), or (2) have
left their last port of sailing before the beginning
of the war and have put into a hostile port without
knowing of hostilities (Art. i, sec. 2).

As Fromageot's report makes prominent,^ it has
not been specially determined whether the respite
may be used to load or discharge in, " in order
that its scope may not be limited to those particular
commercial operations." In the same way the
duration of the respite was, quite rightly, not deter-
mined, nor was even a minimum fixed.* For the
speed with which loading or unloading is carried


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