PART IV. OBLIGATIONS AS A BELLIGERENT

TOWARD ENEMIES

CHAPTER XIII. INTRODUCTORY

In their dealings with neutral states, the rights of belligerent states are much in excess of the ordinary rights of states at peace. This is even more true in their dealings with enemies. The recognized rights of a belligerent against its enemy are so great that it sometimes seems impossible to define their limits at all. Yet the establishment of these limits is the purpose of the law of war. As soon as we recognize the existence of such limits to legal rights, we recognize the legal obligations not to exceed them. It is therefore possible to speak of the obligations of a belligerent to its enemy.

The obligations of states have been classified under the five heads, (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5), reparation.

(1) Obligations of abstention can be made effective, for the most part, only by act of the sovereign authority of the state. In so far as this is true, municipal law can have no effect in their enforcement. As in the case of obligations of belligerents toward neutrals, the practice of prize courts does furnish a check upon the infraction of some of these duties. By legally adjudicating enemy property captured at sea according to the rules of international law, prize courts interpose between their own government and the enemy owner of the prize, thus compelling observance of the belligerent duty to abstain from confiscation of enemy property declared immune by international law. In this case, therefore, municipal law may aid in the enforcement of the belligerent's obligations of abstention.

(2) Acquiescence seems to be contradictory to the very nature of war. Non-acquiescence, the effort to overcome, appears to be the very essence of the relationship between belligerents. This is true so far as the belligerent state itself is concerned, but the duty of acquiescence is recognized as obligatory upon the non-combatant inhabitants of occupied territory. This duty obviously can

not be enforced by the belligerent state claiming de jure sovereignty of the territory, but by the occupying belligerent who has de facto sovereignty. The law of the United States does, however, recognize the duty, in that it enforces ordinary commercial acts of individuals, not of direct aid to the enemy, which were performed in pursuance of this duty of acquiescence, even when contrary to the law of the United States.1 This duty, however, relates to the general subject of the succession of states and the rights of inhabitants of transferred territory which is considered in the chapters dealing with obligations in time of peace."

(3) The obligations of prevention require a state to prevent certain acts by its officers of government and the inhabitants of its territory which would amount to infractions of international law. It is by enforcing these duties that municipal law can be most effective in enforcing international obligations. The belligerent state comes in contact with its enemy largely through its army and navy. Through municipal regulations preventing infractions of international law by such agencies, this obligation of international law may be made effective.

(4) Vindication, however, is foreign to the law of war. International law does not put a belligerent under an obligation to vindicate illegal acts by its enemy. It does, however, give him a right to retaliate to a limited extent. Retaliation is a right to vindicate, not a duty. The belligerent is, however, under an obligation not to carry retaliation beyond a certain limit. The limit is not fixed or enforceable by any authority. The legitimacy of any particular measure of retaliation is left to the discretion of the sovereign. Municipal law can not control it."

(5) Reparation should also theoretically be a duty of belligerents. Individuals of either belligerent state ought to be able to recover compensation for injuries due to illegal acts of the enemy state. In practice such a condition is impossible. The victor will

'Thorington vs. Smith, 8 Wall. 1, (1868).

2Supra, pp. 62-63.

27, 28.

The right of retaliation is recognized in Lieber's Instructions, art.

It should be said, however, that there has been authority in British prize court decisions for the view that courts may refuse to recognize retaliatory measures of their own government so far as they injuriously affect neutrals. See The Recovery, 6 Rob. 348, (1807); The Minerva, (1807) Life of Sir J. Mackintosh, 1:317; Phillimore, Int. Law, 3; section 436; Holland, Studies in Int. Law, pp. 197-198.

gain full reparation in the treaty of peace, but there is no legal recourse for the loser. The treaty of peace definitively settles the matter, and its terms are fixed according to policy and the result of the conflict. There have, however, been treaties requiring each party to indemnify the other for the care of its prisoners of war, specifically stating that this indemnity shall be considered entirely apart from general indemnities demanded by the conqueror. The Hague conventions also require compensation for breaches of the law of war.5 So far as such treaties are enforceable by municipal law, and so far as enemy individuals are assisted by municipal law in obtaining indemnity for injuries, the general rules of the subject of reparation considered under the law of peace will apply.

We shall therefore consider the duties of belligerents toward their enemies under the two heads, (1) obligations of abstention, and (2) obligations of prevention. In the enforcement of the former class of duties, municipal law enforces international law directly. The rules of municipal law bearing on this point are therefore rules of international law at the same time. In the second case, the means employed for controlling the conduct of persons and officers are a matter left to the discretion of the governments. International law does not say how individuals shall be controlled, only what they must be prevented from doing. The municipal law in this class will therefore consist largely of rules supplementary to international law.

Treaties with Prussia, 1785-1796, art. 24, Malloy, p. 1484; 1799-1810, revived 1828, art. 24, p. 1494; Mexico, 1848, art. 22, p. 1118; Hague Conventions, 1907, iv, art. 3.

CHAPTER XIV. OBLIGATONS OF ABSTENTION

INTRODUCTORY

A belligerent state is bound to abstain from certain acts toward its enemy. Thus it must abstain from committing hostilities until formal warning of war, from the confiscation of public or private debts, from committing acts of hostility against enemy persons domiciled in its territory, from resorting to forbidden methods of warfare, from the inhuman treatment of prisoners of war, from the unnecessary injury of non-combatants, from injuring the sick and wounded and those caring for them, and from injuring scientific, religious and artistic institutions. These duties, however, are obligatory upon the sovereignty of the state. They are beyond the province of municipal law to control, so far as they are duties of abstention. Thus courts have held that the commencement of war is a political act and they can not question the legitimacy of belligerent measures when the political department of government has recognized the existence of the status. Thus the Hague convention relating to the opening of hostilities must be regarded as directory solely upon the political department of government.

1

The courts also have held that the sovereign may confiscate debts and if it does so unequivocally the courts can offer no recourse to the mulcted enemy person. This statement, however, is subject to limitation. Unequivocal confiscations of the sovereign are undoubtedly valid in municipal law. Confiscations by particular agencies of government may not be. Thus during the Revolutionary war the confiscations by the individual commonwealths were declared void where they conflicted with treaty provisions. The enforcement of the duty as against inferior agen1Hague Conventions, 1907, iii, iv, vi, Malloy Treaties, pp. 2259, 2269,

2304.

2The Prize Cases, 2 Black 635.

3 Brown vs. U. S., 8 Cranch 110, (1814); Ware vs. Hylton, 3 Dall. 199, (1796).

Ware vs. Hylton, 3 Dall. 199, (1796). See treaty with Great Britain, 1783, art. 4-6, Malloy, p. 588. The United States has concluded twenty treaties with fifteen countries, six of which are now in force (1915) forbidding confiscation of public or private debts due enemy persons during war.

cies of government, however, should be classified under duties of prevention rather than of abstention.

By a large number of treaties the United States has recognized its duty to protect enemy persons domiciled in its territory and to permit them a certain time to wind up their affairs and leave. These treaties also are addressed primarily to the political department of the government. A sovereign act imprisoning domiciled enemies could not be controlled by municipal law. As in the case of confiscation, however, municipal law can enforce such treaties by preventing their infraction by inferior agencies of government.

By its adhesion to the Hague and Geneva conventions the United States has recognized its duty to abstain from forbidden methods of warfare, from the inhuman treatment of prisoners of war, from unnecessary injury to non-combatants and from injury to red cross agencies and to the sick and wounded in their care. So far as they are duties of abstention, these matters are addressed to the political department of government, but they may be indirectly enforced by the control, through municipal law, of the armed forces of the government, and will be considered under obligations of prevention.

In the enforcement of prize law, however, the obligation of the belligerent state to observe certain restraints in the capture of enemy property at sea is enforced through municipal law directly against the government. The principle observed by the United States prize courts and other rules of municipal law bearing on this point will therefore concern us at this point. In at least one case, also, judicial methods have been provided for the protection of enemy private property on land. This case merits brief consideration.

ENEMY PRIVATE PROPERTY AT SEA

The general right of capturing enemy property at sea is recognized by international law but there are specified cases in which the belligerent must abstain from such captures. The enforce

5 Protection to resident enemy persons has been guaranteed in twentyseven treaties with twenty-three countries, of which the following are now (1915) in force: Argentine Republic, 1853, art. 12, Malloy, p. 24; Bolivia, 1858, art. II, p. 122; Columbia, 1846, art. 27, p. 310; Costa Rica, 1851, art. 11, p. 345; Honduras, 1846, art. 11, p. 956; Italy, 1871, art. 21, p. 975; Mexico, 1848, art. 22, p. 1117; Paraguay, 1859, art. 13, p. 368; Prussia, 1799-1810, revived 1828, art. 23, p. 1494; Sweden, 1783-1798, revived 1816, 1827, art. 22, p. 1732.