2 (1) By the Hague conventions, a belligerent is forbidden to violate neutral territory by moving troops or convoys of military material across it, erecting wireless stations or other means of communication, or by recruiting corps of combatants thereon. It would therefore appear to be incumbent upon the United States to prevent its land forces performing any of these acts on neutral territory in time of war. There appear to have been no cases of prosecution of army officers for violating neutral territory in time of war, but in an opinion of the judge advocate general in 19083 it was stated that the armed forces of the United States should not be permitted to penetrate neutral territory in the process of enforcing the neutrality laws. In the army regulations relating to garrison inspection the inspectors are required to see that the commanding officer is properly executing the laws relating to neutrality and the regulations concerning international courtesy, so far as applicable to his post.* 5 (2) The United States has recognized its duty to prevent the injury of neutral persons through seizure of property on land, in the Hague Conventions. The general prohibitions relating to seizure of enemy property on land apply to neutrals in enemy territory, and special provisions are included requiring compensation in case railway material is requisitioned. By the principles of Anglo-American law the status of property depends upon its territorial location rather than the nationality of the owner; consequently neutral property on enemy territory is subject to the same consideration as enemy property in that situation. This question will be more fully considered in deal 2 Hague Conventions, 1907, Malloy, p. 2297, v, Art. 1-3. 3Digest of Opinions of the Judge Advocates General of the Army, 1912, C. R. Howland, ed., p. 106. Army Regulations, 1913, sec. 889, p. 171-172. "The Hague Conventions, v, Art. 19, Malloy, p. 2297. "On the enemy character of the produce of enemy soil see, Thirty Hogshead of Sugar vs. Boyle, 9 Cranch 191, The Prize Cases, 2 Black 635, 671. On the enemy character of property of citizens or neutrals domiciled in enemy territory, see, Chester vs. The Experiment, Fed. Court of Appeals, 2 Dall. 41, (1787); U. S. vs. Gillies, Pet. C. C. 159; The Venus, 8 Cranch 253, (1814); The Frances, 8 Cranch, 335, 363, (1814); The Mary and Susan, I Wheat. 46; Rogers vs. Amado, 1 Newb. Adm. 400; The William Bagley, 5 Wall. 377; Gates vs. Goodloe, 101 U. S. 612; Mrs. Alexander's Cotton, 2 Wall. 404, 419. On the general subject see Moore's Digest, 7;424-434. ing with the law of war. Suffice it to say here that the Instructions for the government of the armies state, and the courts have reiterated that private property cannot be seized on land except by requisition in case of necessity, unless an act of congress especially permits. In a number of treaties the United States has agreed not to draft resident subjects of the other contracting power for military service in case of war. With the exception of treaties relating to claims for injuries in specific cases, 10 these treaties appear to contain the only formal provisions imposing duties upon the United States in reference to the injury of persons of neutral states in land warfare. Whether or not a belligerent state is responsible for injuries received by aliens resident in its territory, due to the exercise of martial law, or the conduct of actual hostilities, is not altogether clear in international law.11 Undoubtedly a state is bound to prevent its armed forces unnecessarily and wantonly injuring neutral residents, 12 but it seems clear that it is under no such duty when the actual prosecution of military movements creates a necessity.13 The neutral alien assumes the risk of his residence. No statutes, regulations or official opinions of the military law of the United States appear to bear on this point, if we except the provisions relating to the usual exemption of enemy private property contained in 11 "Instructions for the government of the armies of the United States in the Feld, Art. 38; Printed in The Military Laws of the United States, 1911, p. 1079; Naval War College, International Law Discussions 1903, p. 122. 8 Brown vs. U. S., 8 Cranch 110, (1814). Treaties with Argentine Republic, 1843, art. 10, Malloy, p. 23; Congo, 1891, art. 3, p. 329; Costa Rica, 1851, art. 9, p. 344; Dominican Republic, 1867-1868, art. 2, p. 404; France, 1788-1798, art. 14, p. 495; Hayti, 18641905, art. 8, p. 923; Honduras, 1864, art. 9, p. 955; Italy, 1871, art. 3, p. 970; Japan, 1894, art. 1, p. 1029; Mexico, 1831-1881, art. 9, p. 1088; Paraguay, 1859, art. II, p. 1367; Servia, 1881, art. 4, p. 1703; Tonga, art. 9, p. 783; Two Sicilies, 1855-1861, art. 5, p. 1816; Venezuela, 1860-1870, art. 2, p. 1846. 10 Treaty of Washington, with Great Britain, 1871, art. 12, Malloy, p. 705. The commission provided allowed Great Britain $1,929,819 for injuries to British subjects during the Civil war. See note Malloy, p. 705. Treaty with France, 1880, Malloy, p. 535. France was awarded $625,566.35 for injuries to her subjects during the Civil war. Malloy, p. 539. 11 Moore's Digest, 6;883-926 12 Moore's Digest, 6;918-922. 13 Moore's Digest, 6;883-894. Lieber's instructions.14 Military commissions undoubtedly have a jurisdiction to punish acts forbidden by the treaties mentioned, but the protection of resident neutrals during war is largely left within the discretion of the president as commander in chief of the army, and subordinate military authorities with delegated powers. (3) As the actual enforcement of the state's duties of prevention in relation to the army depends upon the method of control exercised, some attention may be given to this point. The discipline of the army is to a large extent governed by formal rules, but these rules are to a considerable extent enforced by the discretionary authority of high military officers. In the field covered by constitutionally enacted congressional statutes, the army is bound beyond the authority of any executive or military officer to transcend, but in matters relating purely to the conduct of war it is doubtful whether congress has the power to control the army by statute.16 This does not, however, mean that the army is unregulated by law. It has a system of law of its own, known as military law, administered by its own officers and courts. The president as commander in chief has complete discretion as to the movements of the army except so far as limited by the constitution and acts of congress within the competence of that body.17 While the president's authority is discretionary and may be altered at will, as a matter of fact it is exercised by means of more or less permanent regulations and instructions issued as general orders. These regulations have the force of law while operative, 18 and, together with statutes and constitutional provisions, their interpretations found in judicial decisions and 14 Lieber's Instructions, art. 38, Military Laws, 1911, p. 1079. 15The statutory laws relating to the control of the army, annotated with references to court decisions and opinions of attorneys general and judge advocates general, may be found in The Military Laws of the United States, 1901, ed. by G. B. Davis, with a supplement to 1911, ed. by J. B. Porter. The Digest of Opinions of the Judge Advocates General of the Army, published in 1912, also contains references to statutes, cases and opinions of attorneys general bearing on the various points. 16On the independence of the president see Military Laws, 1911, p. 5 and notes. See Kendall vs. U. S. 12 Pet. 524, 610; Marbury vs. Madison, 1 Cranch 137, 166. 17 Military Laws, 1911, p. 5, note 2. 18U. S. vs. Barrows, Fed. Cas. 14,529; Dig. of Op. of Judge Ad. Gen., 1912, p. 681. opinions of attorneys general and judge advocates general form the body of military law. Military law is enforced by executive action, 19 as in the power of promotion, demotion and discharge exercisable by superior military officers; by courts martial,20 whose jurisdiction is defined by statute and extends only over statutory military offences, most of which are included in the Articles of War;21 and by military commissions.22 Military commissions administer military law by a procedure similar to courts martial, but they are not limited to the punishment of statutory offenses. They may take cognizance of acts contrary to the unwritten law of war or to military regulations. The jurisdiction of both courts martial and military commissions is of an exclusively criminal character.23 They decree punishments but do not award damages or reparation of any kind. Their jurisdiction, however, is not territorial.24 It extends over offenses committed in foreign countries. The statutory provisions, known as the Articles of War,25 largely prescribe duties of enlisted men and officers26 in relation. to their military superiors and the performance of their military duties. Their aim is to enforce discipline in the army and they contain little matter referring to the law of war. Courts martial, being limited in jurisdiction to these offenses, cannot take cognizance of breaches of the unwritten law of war, including breaches of the army's obligations to neutral states and persons. The enforcement of these matters is in the hands of military commissions and their jurisdiction in time of war extends to 19 Military Laws, 1911, p. 5, note 2. 20 Digest of Op. of Judge Ad. Gen., 1912, pp. 510-513. 21 Rev. Stat., sec. 1342-1343; Military Laws, 1911, pp. 962-1026. For historical account of development of articles of war; Military laws, 1911, p. 962. 22 For history of development of military commissions see Dig. of Op. of Judge Ad. Gen. 1912, p. 1067. Use during Civil War, Ibid. p. 1071. Authority of, see Rev. Stat. 1343. Military Laws, 1911, p. 744, note I, p. 745; Lieber's Instructions, art. 13, Military Laws, 1911, p. 1076; Dig. Op. Judge Ad. Gen., 1912, pp. 1067-1072. 23 Dig. Op. Judge Ad. Gen., 1912, pp. 510, 1072. 24 Dig. Op. Judge Ad. Gen., 1912, pp. 511, 1071. 25 Rev. stat. sec. 1342-1343, Military Laws, 1911, pp. 962-1026. 26 An exception may be noted in the jurisdiction given to courts martial over enemy spies, Rev. Stat. sec. 1343, Military Laws, 1911, p. 1026. offenses committed by enlisted men or officers, civilians or enemies, contrary to military law or the law of war.27 It is therefore by executive action and the adjudication of military commissions that the duties of the army toward neutrals are enforced. The provisions of the treaties mentioned, and the general requirements of international law, as well as the rules specified in army regulations and instructions may be enforced by these authorities. ACTS BY NAVAL FORCES The naval forces of a belligerent are much more likely to infringe the rights of neutral states than land forces. With them therefore the duty of preventing such infractions has received more attention in the municipal law of the United States. (1) By the Hague conventions28 the United States has recognized the obligation to prevent its naval forces violating neutral territory by committing hostilities or setting up prize courts in neutral waters, using neutral territory as a base of operations or violating the usual rules of asylum. As in the case of the army the action of naval commanders is largely regulated by executive control. There are, however, statutes dealing with the navy. The "Articles for the Government of the Navy of the United States'29 specify certain acts as crimes and subject to the jurisdiction of courts martial. The only authority capable of inflicting punishment in the navy is commanders, 30 for minor offenses, and for more serious offenses, summary and general courts martial.31 There are no courts in the navy similar to military commissions. 27 On the distinction between the jurisdiction of military commissions and courts martial, see Lieber's Instructions, art. 13, Military Laws, 1911, p. 1076. 28 Hague Conventions, 1907, xiii, art. 1, 4, 5, 12, 15-23. In thirtytwo treaties with twenty-five countries the United States has been given the right of asylum for its war vessels in neutral ports, when necessary through "stress of weather, pursuit of pirates or enemies." The following are now in force: Bolivia, 1858, art. 9, Malloy, p. 117; Prussia, 17991810, revived 1828, art. 18, 19, p. 1492; Sweden, 1783-1798, revived 1816, 1827, art. 21, p. 1732. Such action does not constitute a violation of neutral territory even in the absence of treaty. Moore's Digest, 7:982-985. 1913, p. 15. 29 Rev. Stat. sec. 1624; Navy Regulations |