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 sover

" eignty 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.

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 agencies 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. II, 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.

ment of this duty is provided for by the rule recognized in the United States whereby all prizes, enemy as well as neutral, are submitted to prize courts before final appropriation. The general principles of prize court jurisdiction and procedure have been discussed under the law of neutrality and it should again be emphasized that the whole institution of prize courts is primarily intended for the benefit of neutrals. Enemies benefit from them only incidentally. The rules applied in distinguishing enemy and neutral property and vessels has also been discussed as has the attitude of the United States on the question of total immunity of enemy private property from seizure during war.?

In the case of neutral vessels and goods, immunity from capture is the general rule. Capture can only be justified in certain exceptional cases, as breach of blockade, carriage of contraband, unneutral service, constructive enemy character, or necessity. With enemy property and vessels the case is reversed. Here the rule is liability to capture. Cases of immunity are exceptional. Under the two treaties which the United States has concluded, insuring the total immunity of enemy private property during war, this would not be true, and if this principle were adopted as a general rule, a condition which the United States has advocated since the foundation of the Republic and notably at the second Hague conference, enemy private property and merchant vessels at sea would be in practically the same condition as neutral vessels and property are today. This condition, however, does not exist, and by international law cases in which enemy property at sea is immune, are exceptions to the general rule of liability.

The cases in which enemy property at sea is immune from capture are defined in the Declaration of Paris and the Hague conventions and may be classified as (1) vessels in port on the outbreak of war, (2) vessels leaving their last port before the outbreak of war, (3) postal correspondence, (4) coast fishing vessels, (5) enemy property under the neutral fiag, (6) “vessels charged with a religious, scientific or philanthropic mission," (7) hospital ships bearing the red cross flag when they are commissioned and authorized by the belligerent government. In the

,

Supra p. 187 et seq. 7Supra, pp. 158, 166.

8Treaties with Prussia, 1785-1799, art. 23, Malloy, p. 1484; Italy, 1871, art. 12, p. 973.

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last two cases public as well as private owned vessels are immune from capture."

The immunities granted in these cases were provided for in Stockton's Naval War code of 1900 to 1904.10 In the proclamation and instructions' on the outbreak of the Spanish war, days of grace on departure with immunity until they reached a home port were granted to enemy vessels, and the immunity of vessels bound for the United States which left their last port before the outbreak of war was also prescribed, the rule being applied in several cases.12 In the case of the Paquete Habana, 13 arising during the Spanish war, the court held that coast fishing vessels of the enemy were not liable to capture, before the enunciation of this doctrine by any international convention.

The immunity of enemy property under the neutral flag is a doctrine which has been supported by the political department of the government since its foundation, but not given legal recognition until the war of 1898, when the president's proclamation required adhesion to the rules of the Declaration of Paris in this respect. In many of the early treaties the doctrine of "free ships, free goods” had been specified as binding between the contracting parties.

Although there have not been a great many cases before the prize courts in which these immunities have been applied, in the few cases that have come up the court has followed the rules laid down in treaties and executive orders. The general principle requiring the adjudication of all prizes operates as a guarantee to the enforcement of this duty of abstention.

Were the international prize court established as provided by the Hague conventions of 1907, cases involving these immunities would all be subject to its jurisdiction.18 By its signature of this convention and its consent to its ratification, the United States signified its willingness to add this further sanction to the enforcement of these duties.

ENEMY PRIVATE PROPERTY ON LAND

According to international law, enemy private property on land is exempt from capture.17 Consequently, the government is under an obligation to abstain from such captures. Exceptions to this rule are recognized in the case of necessity, which justifies military requisitions. The expense of adminstering territory under military government may also be reimbursed by money contributions of the inhabitants, which thus resemble taxes. In both of these cases the enforcement of the rule is in the hands of military authorities, and is discussed in considering the obligations of prevention in relation to the land forces.18

Ordinarily the sanction of military law, controlling the armed forces, alone guarantees this obligation of abstention. There is no possibility of recourse to judicial authority as is provided in the case of naval captures. Prize courts have repeatedly asserted that their jurisdiction does not extend to land captures.19 The reason for this difference is to be found in the fact that in naval war, questions of neutral rights are apt to be involved; whereas this is not so true in land captures. Property on enemy territory is prima facie enemy property. The enemy's privilege of a judicial adjudication of his property captured at sea arises from the probabliity of its association with neutral property.

It is not, however, impossible that all property seized on

18 The international prize court is given jurisdiction over enemy property when the case involves enemy cargo in' a neutral ship, and when a claim is based on an allegation that the seizure has been effected in violation of the provisions of a convention or of an enactment of the belligerent captor. Hague conventions, 1907, xii, art. 3. See Charles, Treaties, 1913, p. 250.

17 United States courts have stated this principle, see Brown vs. U. S., 8 Cranch 110, (1814); U. S. vs. 1756 shares of capital stock, 5 Blatch. 231; U. S. vs. Klein, 13 Wall, 128, 137 ; Lamar vs. Brown, 92 U. S. 194, Moore's Digest, 7;288-289.

18 Infra. p. 210.

19Brown. vs. U. S., 8 Cranch. 110, (1814); Kirk vs. Lynde, 106 U. S. 315, 317; Oakes vs. U. S., 174 U. S. 778, 786, (1899).