Hans Wehberg.

Capture in war on land and sea online

. (page 7 of 15)
Online LibraryHans WehbergCapture in war on land and sea → online text (page 7 of 15)
Font size
QR-code for this ebook

2 Prot. III., pp. 970 el seg., 982 <?/ seq.


motors for auxiliary purposes. Accordingly, it was
not desired to exclude steamboats on principle.
Even a determination of the extent of territorial
waters was evaded, in view of the fact that the
fishermen of Japan and England, for instance, often
go very far from the coast.^ Fromageot's report
insisted particularly that fishers on the enemy's
coasts were not exclusively meant, but also those
who practised their calling outside their own
country. The Portuguese delegate, Iwens Ferraz,
instanced in particular the Moroccan coastal fishery.^
On the proposal of Austria the small local traffic
was excluded from prize as well as fishing vessels :
that is to say, " boats and vessels of small size
carrying agricultural produce, and devoting them-
selves to modest local traffic between the coasts and
neighbouring islands or islets." ^

Den Beer Portugael ^ would also have liked to see
the "vessels engaged in deep-sea fishing" exempted.
But it was as little desired to exempt these vessels
as those which, while devoting themselves mainly to
coast fishing, engage also in deep-sea fishing.^ This
ruling is particularly distasteful to Japan, because
fishing vessels there can also frequently be employed
as transports. In the exception, to be mentioned
below, in favour of vessels devoted to scientific or

1 Prot. III., p. 971.

^ Prot. III., p. 971. Similarly Van den Heuvel and Van
Karnebeek, p. 970.

* Prot. I., p. 271.

* Prot. III., p. 896.

» Prot. III., pp. 982,983.


missionary purposes, there is no mention of such an
exclusive decision.

With all these vessels protection ceases in
any case as soon as they take any part in
hostilities. Ferraz ^ expressed the opinion, in 1907,
that the mere fear that fishing vessels might take
part in hoslilities would suffice to suspend the
guarantee of protection, but Renault ^ declared
that such a fear was by no means sufficient. The
Committee decided in favour of making the solution
of the question depend on the circumstances.^ On
the proposal of Japan it was expressly agreed that
no Power should utilise the harmless nature of the
said vessels to employ them for warlike purposes
while retaining their peaceful exterior. This is
not to mean that the vessels may not be used for
warlike purposes at all, but a pledge is to be
exacted of the Powers not to use them covertly,
but to show by a recognisable external mark
when the vessels are in the service of the
enemy's naval forces. The nature of this badge is
to be left to the choice of the various Powers.

Let me point out the following peculiar fact : —
Since fishermen's coasting vessels are not liable
to seizure, the crews naturally do not need,
as is usual with merchant ships, to give an
undertaking to perform no military duties. Yet
those who man the fishing vessels are constantly in

* Prot. III., pp. 968, 972.
2 Prot. III., p. 969.
« Prot. III., p. 983.


the vicinity of their native country, and can quickly
be called upon, while ordinary merchant ships and
their crews are, for the most part, far away from
their country, and cannot easily enter its Navy.
Nevertheless, ordinary sailors must take an oath
before being released. This shows how easily
illogicalities may result from humane exemptions.
That the number of fishermen is by no means
small, is proved by the fact that in Germany, in
1900, over 3,500 were to be found on board such

In 1907, Satow and Milowanovich^ proposed that
the use of coasting vessels by an enemy for military
purposes be prohibited, even in case of urgent
necessity. The majority, however, took another
view and that rightly. Military necessity dominates
all laws of war, and to exclude fishing vessels from
its scope, even in these instances, would have been
going too far. Various proposals on the part of
Portugal, Austria, and Norway, were intended to
settle the question of compensation in case of the
using of such vessels. Hagerup^ asked for the fixing
of compensation, not only in case of continued
employment, but even of mere retention, and was
for compensating the fishermen, not only with the
actual value of the vessel seized, but also with an
equivalent for the possible gains they had missed
up to a 10 per cent, addition to the value of the

1 Prot. III., pp. 972-973.
» Prot. III., p. 987.


vessel. As no proper agreement could be reached
on all these points, it was considered best to pass
them over in silence in the Agreement. Neverthe-
less, to my mind, the fishermen must, by the
principles of the laws of war, seeing that their
vessels are made an exception, be compensated
under all circumstances in the case of their employ-
ment owing to military necessity. True, the
compensation cannot be expected to be given on
the scale of the Norwegian proposal. Even the
German proposal as to compensation in war on
land, which tended to fix the compensation accord-
ing to the actual loss, and which was quoted during
the debates as to fishing vessels, did not pass in
that shape.

II. In the same way, vessels fitted out for
scientific, philanthropic, or missionary purposes, are
exempt from seizure (Art. 4 of the last-named
Agreement.) This decision was arrived at as early
as 1869 in the Russian, in 1894 in the Japanese,
and in 1900 in the American Prize Regulations.
The movement in favour of an international com-
pact on the point, emanated from Italy in 1907. In
view of the fact that such vessels subserve the
interests of the whole of mankind, and can bring
no advantage to the enemy, this measure seems
fully justified. It does not matter whether these
vessels belong to the State or to private owners. Of
course they may not, as was expressly insisted on
at the Hague Conferences in 1907, take part in any
warlike enterprises. The Conferences refrained


from including this decision in the Convention

In contradistinction to the decisions as to fishing
vessels, no difference is made if these scientific,
philanthropic, or missionary vessels also incident-
ally subserve mercantile purposes. In 1907,
Lammasch^ drew attention to the fact that vessels
entrusted with scientific missions were often also
engaged in the service of commerce, and that this
was the case in 1859 with the Austrian frigate
Novara, though France and Sardinia had both
given her a letter of safe-conduct. In consequence,
the word "purely" was struck out of the Italian
proposal, which ran " Charged with a purely
scientific, religious, or philanthropic mission."

An Italian proposal in 1907^ laid down that the
Power to which these ships belonged should send
information to its opponent at the outbreak of war.
The latter would then transmit a safe-conduct for
them, in which it would specify the conditions of
its protection. Van den Heuvel pointed out that
as vessels which were in distant waters could
scarcely receive such a pass, the requirement should
be omitted. The slight danger of abuse, especially
since there were so (q\v ships of the sort in ques-
tion, was further urged against the Italian proposal.
Satow, for one,^ observed that England had only
two ships for missionary purposes. The Committee

» Prot. III., p. 981.
2 Prot. III., p. 981.
" Prot. III., p. 1002.


endeavoured to meet the objections to the safe-
conduct by making it legally incumbent upon
the hostile Power to issue the safe-conduct, and
at the same time to give corresponding instructions
to its warships. These were to spare the said ships,
even where it had happened to be impossible to
deliver the safe-conduct to them. Fusinato^ also
chiefly dwelt on the argument that the hostile Power
could, by means of the letter, best communicate to
the vessels in question its conditions as to the
guarantee granted. In spite of this, Satow'^ in
particular would not hear of the safe-conduct.
He quoted an instance from the eighteenth
century when such a ship had been spared,
although it was without any safe-conduct, and
stated that the requirement was therefore a retro-
gression. Thereupon the Italian proposal was

Satow further proposed, in 1907,^ to allow these
vessels in case of need to make for one of the
enemy's harbours. But Fusinato considered the
suggestion too Quixotic, and the Committee passed
to the order of the day.

Let me also mention in this connection Art. 14,
sec. 2 of the " Agreement concerning the rights
and duties of neutrals in case of war at sea," by
which the rules limiting the stay of ships of war
in neutral ports, roadsteads, and waters do not

1 Prot. III., p. looi.
^ Prot. III., p. 1002.
^ Prot. III., p. 1003.


apply to such ships of war as are exclusively
employed in religious, scientific, or philanthropic

III. The Hague Conference having declared
hospital ships immune as early as 1899, this humane
precept was further developed in 1907 in the
" Agreement concerning the application of the
principles of the Geneva Convention to naval war-
fare." In the year before (1906), the Convention
of 1864 had been subjected to reforms, and for that
very reason articles had now (1907) to be revised.
By hospital ships {batiinents-Jiopitaiix) are under-
stood such vessels as are simply and solely built or
arranged to carry succour to the wounded, the sick,
and the shipwrecked. On a par with them are
placed lifeboats {einbarcatiotis), while on the other
hand no corresponding immunity for transports
that merely serve to convey the sick and wounded
has yet been established. Hospital ships are divided
into {a) Qiov^xx\TCi^x\\.{batinients hopitaux militaires).
Under this head, by Art. i of that Convention, are
to be understood all such ships as are fitted out by
the hostile Powers themselves. The Power in
question has to communicate their names to the
belligerent States, This announcement is generally
to take place before the outbreak of hostilities, but
is also permissible before putting such ships into
use. For otherwise, in the case, for instance,
of the regrettable loss of any such ships, no
substitution would be possible, and the sick
would be deprived of the requisite succour.


The announcement need not be made to neutral
Powers. For, as Captain Siegel ^ rightly said in
1899, such ships can readily prove their nature to
neutrals, {b) Private hospital ships of the enemy,
i.e., such as are wholly or in part fitted out by
private individuals, or officially recognised societies
(Art. 2). Their immunity is, however, only guaran-
teed on condition that the belligerent Power to
which they belong has in the first place issued an
official authorisation to them. It is also the business
of international law to decide whether such vessels
shall be allowed. Japan, e.g., lays down that
private vessels have only the right to help in so far
as they belong to a Red Cross Society. All private
vessels of the enemy must constantly have a
certificate from the proper authority to the effect
that during their fitting out, and on leaving port, they
were under its supervision. Further, the names of
these ships also are to be communicated to the
hostile Power as are those of the Government
vessels, (c) Neutral hospital ships, i.e., such as are
fitted out wholly, or in part, at the expense of private
citizens, or officially recognised benevolent societies
in neutral states (Art. 3). Since 1907 it has been
necessary that these ships shall, with the previous
permission of their own Government and with the
authorisation of the belligerent, have submitted
themselves to the guidance of one of the hostile
powers. Naturally these ships remain neutral
thereafter, and may not be included among the
^ Meurer, ibid., p. 368.


enemy's vessels of that nature.^ In 1899 the
proposal passed that such vessels need not attach
themselves to any Government. The alteration of
the Article in 1907 was based on a German pro-
posal ^ which even required " that the hospital
ships place themselves at the disposal of a
belligerent." Yet it was only decided on the
motion of van den Heuvel,^ " that it shall place itself
under his (the neutral's) direction." In the Com-
mittee there were two conflicting points of view.*
The opponents of innovation asked : " What flag
should the vessels in question fly ? Would there
not be something in conflict with the idea of
neutrality in the fact of these ships having an official
warrant for their enrolment in the fleet of one of
the belligerents ? . . . A neutral hospital ship
cannot propose to assist one belligerent rather
than the other, but should betake itself to the
neighbourhood of the naval operations to be ready
to assist both parties."

The comparison with land war they declared to
be inadmissible : " The situation seems different
for a neutral hospital ship, which operates on the
high sea, and is autonomous to a degree that is
impossible for an ambulance." The adherents of
the German project cited, with great justice,

» Prot. III., p. 562.
2 Prot. I., p. 72.
8 Prot. III., p. 296.

* Cp. especially the speeches of Renault and Siegel,
Prot. III., pp. 2(^^etseq.

C.W. G


military necessities, and convinced the majority
of the members. In war, they said, the battle
came first, and care for the wounded second.
Should the neutral hospital ships not subor-
dinate themselves to a war authority, abuses
would be possible, especially where such ships
were present in considerable numbers. Moreover,
they were, supposing they had placed them-
selves under the guidance of one of the belli-
gerents, free from all suspicion of hostile action,
and hence, particularly as they were allowed to
arm their crews and set up a wireless telegraphy
station, such a decision could not be avoided. The
protection of Art. 4, of which we shall still have to
speak, was not regarded as adequate. There is
no doubt that the new decision will not hinder
hospital ships from placing themselves at the
service of humanity in as great numbers as hereto-

The belligerent power to which neutral hospital
ships have attached themselves must make their
names known to its opponent in the same manner
as those of the other hospital ships.

All these kinds of hospital ships are to be
respected, and may not be seized during the
continuance of hostilities. As to the Government
ships, the further special decision has been made
that they must not be treated as ships of war
during their stay in neutral ports.

The inviolability of hospital ships is, of course,
only to be explained by their humane pur-


pose.'^ Thus it is a matter of course that they are to
afford help to all parties without regard to nationality
(Art. 4, sect, i), and that, they must not be
used for any sort of military purposes, as Art. 4,
sect. 2, lays down. The protection therefore ceases
as soon as it is employed to injure the enemy (Art.
8, sect. i). The fact that the personnel of these
ships is armed for the preservation of order and the
protection of the wounded may not be regarded as
calculated of itself to warrant the forfeiture of the
protection (Art. 8, sect. 2). A German proposal in
1907 foresaw an occasion " in which the hospital
ship is armed with light guns, in view of the
dangers of navigation, and particularly in order
that she may defend herself against any act
of piracy." ^ However, the Conference did not
go so far as to acknowledge this, for it was pointed
out " merchant ships are not armed, and hospital
ships do not run any more risk," Only one gun
for signalling purposes was conceded to such ships,
by Renault's report. As for other weapons, they
are only allowed for the protection of the wounded
and the maintenance of order. At any moment
an agent of the belligerent parties can inspect a
hospital ship and convince himself that the arms

* From the military point of view hospital ships help the
warships by removing the wounded and thus giving them
freedom of action. Yet they also hinder their operations,
because the latter, in their movements, must always to some
extent consider the hospital ships. Cf. Niemeyer, " Deutsche
Jur. Zeitung," 1905, p. 41.

« Prot. I., p. 74.

G 2


are not applied to other uses. Should such an
agent fall into the power of a cruiser of the State
to which the hospital ship belongs, he must not be
made a prisoner ^ : " His presence is accounted for
like that of a picket guarding an infirmary, by the
necessity for allowing the vessel to fulfil its
charitable function. This motive in both cases
justifies the exemption from capture." As little
does a hospital ship forfeit its protection by the
fact that a wireless telegraph installation is on
board (Art. 8, sect. 2). At the instance of Holland
this decision was expressly included in the Con-
vention. It must by no means be taken to mean
that a vessel may not be seized, should it really
serve as a telegraph station of the enemy, and
ostensibly be used as a hospital ship. Nay,
rather it is now acknowledged that " a hospital
ship may need to communicate with her own
squadron, or with the shore in order to fulfil her
mission." ^ Should the enemy regard it as necessary,
he has the right to destroy the wireless installation
on board hospital ships.^

In order to be able to test more precisely the func-
tion of the vessel, the right of supervision and search
must be conceded to the warships of the belligerent
Powers : nay, the hostile Powers can even reject the
assistance of the hospital ships, give them orders to
take themselves off, mark out a definite course for

^ This decision was not included in the Agreement itself.

2 Prot. ibid.

^ Prot. III., pp. 300, 301.


them, place, as already mentioned, an agent on
board, and under special circumstances, e.g., the
keeping of intended operations secret, even detain
them. In all these cases, which Art. 4, sect. 5,
provides for, the orders must be entered in the log
of the vessel, unless special difficulties prevent it
(Art. 4, sect. 6.)

In addition to this, the protection of such vessels
is limited by military necessity. To begin with,
they must in no wise hamper the movements of the
warships, as Art. 4, sect. 3, prescribes. Also, it
cannot be expected of the enemy's warships, that
they should specially respect these ships when firing,
etc.^ Therefore, by Art. 4, sect. 4, they act during
an engagement and after it at their own risk.

To enable them to be distinguished from other
ships, special regulations are in force as to the way
they are painted and the flag they may fly.

By Art. 5, sects. 1-3, Government hospital ships
are to be marked out as such by being painted
white, with a horizontal green stripe, about five feet
wide, and the others by the same, with a horizontal
red stripe of the same dimension. Their boats and
the tenders employed in hospital service are required
to be painted green.

Beside the national flag, all of them are to carry
a white flag with a red cross. Those that belong
to a neutral Power are in addition to hoist at the
main the national flag of the belligerent to whom

* Not legally. None the less, as a matter of fact a certain
respect is shown, as far as necessity of war allows of it.


they have attached themselves. By the decisions
of 1899, neutral craft had only to fly their own flag
and that of the Geneva Convention. Renault/ in
his report to the Conference in 1907, dwelt on the
fact that neutral craft for the future would fly three
flags, and there was no uniformity with the land
hospitals, which flew only two, that of the belliger-
ent to whom they had attached themselves and
the Red Cross. " We know no precedent to this
effect." He comments on the simultaneous hoisting
of the three flags. There are exceptions in force
concerning Turkey, Persia and Siam. Turkey^
substitutes for the Cross the red Crescent, Persia,
the Lion and the Red Sun. Siam carries the Cross
in its hospital flag indeed, but with it also the so-
called red " flame." These three cognisances are
also all on a white ground. At the third plenary
sitting of the second Hague Peace Conference the
Turkish and Persian representatives expressly gave
it to be understood that they would adhere to their

Turkey, at that time, wanted at first a new
article inserted in the Convention for the recogni-
tion of her cognisance. But this was not agreed to.

Art. 5, sect. 5, lays down that hospital ships
detained by the enemy must haul down the national
flag of the belligerent to whom they are subordi-

^ Prot. I., p. 72.

2 Cp. Prot. III., p. 556 et seq.

^ Meurer has demonstrated how desirable it is that the
Red Cross should be adopted by those three Powers as well.
(" Die Genfer Convention und ihre Reform," p. 33.)


nated. A similar conclusion had been come to in
1906, in the New Geneva Convention, Art. 21,
sect. 2, as to war on land. It is true, however,^
that it was recognised at that time that the
analogy between sea and land does not hold as a
matter of course. " The situation does not appear
identical, for the hospital ship ought not to fall
into the enemy's hands, by the same right as
an ambulance, which, being actually within the
enemy's lines, is more or less involved in the
enemy's arrangements."

For all that, they wished to provide for a case
where Art. 4, sect. 5, should be applied. By
Art. 5, sect. 5, it is only the enemy's flag that is to
be hauled down, not the neutral ensign of a neutral
hospital ship. According to this, the enemy's vessel
retains only the Red Cross, while the neutral still
displays its own flag as well.

By Art. 21, sect, i, the signatory Powers have
undertaken, in case of the inadequacy of their penal
laws, to adopt or propose to their legislative bodies
the requisite measures for punishing, as usurpation
of military insignia, the unwarranted use of the
cognisance proposed in Art. 5, by vessels not pro-
tected by this compact.

If hospital ships and their boats desire to be pro-
tected during the night they must, with the assent
of the belligerent whom they attend, take the
necessary measures (Art. 5, sect. 6) to insure that
the painting which makes them distinguishable

1 Prot. I., p. 7^,.


shall be sufficiently visible. The German proposal
in 1907, was, that hospital ships should carry three
distinguishing lights at night, green, white and
green. It was contended during the discussion^
that such a vessel would betray not only its own
presence, but that of the warships to which it was
attached. It would be better to leave it open to them
whether they would make themselves recognisable
by night as well as by day. Moreover, it was feared
that such lights might be wrongfully used by ships
of war. In consideration of these arguments finally,
the carrying of lights by such vessels at night was
made optional, and not obligatory, and further, it
was ruled that instead of three lights being carried
the distinctive painting of hospital ships should be

Art. 6 lays down that in time of peace, as in war,
all these distinctive marks may only be used for the
protection and differentiation of the ships specified.

Art. 9 secures special protection and definite
privileges to neutral merchant ships and other
vessels which, on demand ^ or without it, are em-
ployed in taking on board or caring for wounded or
sick. Such may only be seized where they have
previously been guilty of breach of neutrality. If,
however, a warship which summons to its aid a
neutral vessel, guarantees immunity to the same, it
must keep that promise. It was specially desired

1 Prot. I., p. yi.

2 There is, of course, no legal obligation to accede to the
demand, Cf. Prot. III., p. 561,


that no more definite regulations should be framed,
as everything depends upon the attendant circum-
stances. Yet there was no misapprehension as to
the " vague character " of the clause, " Will enjoy
special protection and certain immunities."

The regulations of this compact are by Art. 18
only applicable as between the Powers that are
parties to it, and then only when all the belligerents
are such parties. Art. 19 lays down that the naval
commanders-in-chief of the belligerents are to see
to the carrying out in detail of articles applying to
the case, and where cases are not provided for, to

1 2 3 4 5 7 9 10 11 12 13 14 15

Online LibraryHans WehbergCapture in war on land and sea → online text (page 7 of 15)