International Law. A Treatise Volume Ii Part 47

Article 13 of Convention V. settles the controversy by enacting that a neutral who receives prisoners of war who have escaped or who are brought there by troops of the enemy taking refuge on neutral territory, shall leave them at liberty, but that, if he allows them to remain on his territory, he _may_--he need not!--a.s.sign them a place of residence so as to prevent them from rejoining their forces. Since, therefore, everything is left to the discretion of the neutral, he will have to take into account the merits and needs of every case and to take such steps as he thinks adequate. But so much is certain that a belligerent may not in every case categorically demand from a neutral who receives escaped prisoners, or such as have been brought there by troops who take refuge, that he should detain them.

The case of prisoners who, with the consent of the neutral, are transported through neutral territory is different. Such prisoners do not become free on entering the neutral territory, but there is no doubt that a neutral, by consenting to the transport, violates his duty of impartiality, because such transport is equal to pa.s.sage of troops through neutral territory (article 2 of Convention V.).

Attention must, lastly, be drawn to the case where enemy soldiers are amongst the wounded whom a belligerent is allowed by a neutral to transport through neutral territory. Such wounded prisoners become free, but they must, according to article 14 of Convention V., be guarded by the neutral so as to insure their not again taking part in military operations.[657]

[Footnote 657: See also article 15 of Convention X. and below, -- 348_a_.]

[Sidenote: Fugitive Soldiers on Neutral Territory.]

-- 338. A neutral may grant asylum to single soldiers of belligerents who take refuge on his territory, although he need not do so, and may at once send them back to the place they came from. If he grants such asylum, his duty of impartiality obliges him to disarm the fugitives and to take such measures as are necessary to prevent them from rejoining their forces. But it must be emphasised that it is practically impossible for a neutral to be so watchful as to detect every single fugitive who enters his territory. It will always happen that such fugitives steal into neutral territory and leave it again later on to rejoin their forces without the neutral being responsible. And, before he can incur responsibility for not doing so, a neutral must actually be in a position to detain such fugitives. Thus Luxemburg, during the Franco-German War, could not prevent hundreds of French soldiers, who, after the capitulation of Metz, fled into her territory, from rejoining the French forces; because, according to the condition[658] of her neutralisation, she is not allowed to keep an army, and therefore, in contradistinction to Switzerland and Belgium, was unable to mobilise troops for the purpose of fulfilling her duty of impartiality.

[Footnote 658: See above, vol. I. -- 100.]

[Sidenote: Neutral Territory and Fugitive Troops.]

-- 339. On occasions during war large bodies of troops, or even a whole army, are obliged to cross the neutral frontier for the purpose of escaping captivity. A neutral need not permit this, and may repulse them on the spot, but he may also grant asylum. It is, however, obvious that the presence of such troops on neutral territory is a danger for the other party. The duty of impartiality inc.u.mbent upon a neutral obliges him, therefore, to disarm such troops at once, and to guard them so as to insure their not again performing military acts against the enemy during the war. Convention V. enacts the following rules:--

Article 11: "A neutral Power which receives in its territory troops belonging to the belligerent armies shall detain them, if possible, at some distance from the theatre of war. It may keep them in camps, and even confine them in fortresses or localities a.s.signed for the purpose.

It shall decide whether officers are to be left at liberty on giving their parole that they will not leave the neutral territory without authorisation."

Article 12: "In the absence of a special Convention, the neutral Power shall supply the interned with the food, clothing, and relief which the dictates of humanity prescribe. At the conclusion of peace, the expenses caused by internment shall be made good."

It is usual for troops who are not actually pursued by the enemy--for if pursued they have no time for it--to enter through their commander into a convention with the representative of the neutral concerned, stipulating the conditions upon which they cross the frontier and give themselves into the custody of the neutral. Such conventions are valid without needing ratification, provided they contain only such stipulations as do not disagree with International Law and as concern only the requirements of the case.

Stress must be laid on the fact that, although the detained troops are not prisoners of war captured by the neutral, they are nevertheless in his custody, and therefore under his disciplinary power, just as prisoners of war are under the disciplinary power of the State which keeps them in captivity. They do not enjoy the exterritoriality--see above, Vol. I. -- 445--due to armed forces abroad because they are disarmed. As the neutral is required to prevent them from escaping, he must apply stern measures, and he may punish severely every member of the detained force who attempts to frustrate such measures or does not comply with the disciplinary rules regarding order, sanitation, and the like.

The most remarkable instance known in history is the asylum granted by Switzerland during the Franco-German War to a French army of 85,000 men with 10,000 horses which crossed the frontier on February 1, 1871.[659]

France had, after the conclusion of the war, to pay about eleven million francs for the maintenance of this army in Switzerland during the rest of the war.

[Footnote 659: See the Convention regarding this asylum between the Swiss General Herzog and the French General Clinchant in Martens, _N.R.G._ XIX. p. 639.]

[Sidenote: Neutral Territory and Non-combatant Members of Belligerent Forces.]

-- 340. The duty of impartiality inc.u.mbent upon a neutral obliges him to detain in the same way as soldiers such non-combatant[660] members of belligerent forces as cross his frontier. He may not, however, detain army surgeons and other non-combatants who are privileged according to article 2 of the Geneva Convention.

[Footnote 660: See Heilborn, _Rechte_, pp. 43-46. Convention V. does not mention any rule concerning this matter.]

[Sidenote: Neutral Territory and War Material of Belligerents.]

-- 341. It can happen during war that war material belonging to one of the belligerents is brought into neutral territory for the purpose of saving it from capture by the enemy. Such war material can be brought by troops crossing the neutral frontier for the purpose of evading captivity, or it can be purposely sent there by order of a commander.

Now, a neutral is by no means obliged to admit such material, just as he is not obliged to admit soldiers of belligerents. But if he admits it, his duty of impartiality obliges him to seize and retain it till after the conclusion of peace. War material includes, besides arms, ammunition, provisions, horses, means of military transport such as carts and the like, and everything else that belongs to the equipment of troops. But means of military transport belong to war material only so far as they are the property of a belligerent. If they are hired or requisitioned from private individuals, they may not be detained by the neutral.

It can likewise happen during war that war material, originally the property of one of the belligerents but seized and appropriated by the enemy, is brought by the latter into neutral territory. Does such material, through coming into neutral territory, become free, and must it be restored to its original owner, or must it be retained by the neutral and after the war be restored to the belligerent who brought it into the neutral territory? In a.n.a.logy with prisoners of war who become free through being brought into neutral territory, it is maintained[661]

that such war material becomes free and must be restored to its original owner. To this however, I cannot agree.[662] Since war material becomes through seizure by the enemy his property and remains his property unless the other party re-seizes and thereby re-appropriates it, there is no reason for its reverting to its original owner upon transportation into neutral territory.[663]

[Footnote 661: See Hall, -- 226.]

[Footnote 662: See Heilborn, _Rechte_, p. 60, and _Land Warfare_, -- 492.

The Dutch Government at the Second Peace Conference proposed a rule according to which captured war material brought by the captor into neutral territory should be restored, after the war, to its original owner, but--see _Deuxieme Conference, Actes_, vol. i. p. 145--this proposal was not accepted.]

[Footnote 663: See Heilborn, _Rechte_, pp. 61-65, where the question is discussed as to whether a neutral may claim a lien on war material brought into his territory for expenses incurred for the maintenance of detained troops belonging to the owner of the war material.]

V

NEUTRAL ASYLUM TO NAVAL FORCES

Vattel, III. -- 132--Hall, -- 231--Twiss, II. -- 222--Halleck, II. p.

151--Taylor, ---- 635, 636, 640--Wharton, III. -- 394--Wheaton, -- 434--Moore, VII. ---- 1314-1318--Bluntschli, ---- 775-776B--Heffter, -- 149--Geffcken in Holtzendorff, IV. pp. 665-667, 674--Ullmann, -- 191--Bonfils, No. 1463--Despagnet, No. 692 _ter_--Rivier, II. p.

405--Calvo, IV. ---- 2669-2684--Fiore, III. Nos. 1576-1581, 1584, and Code, Nos. 1788-1792--Martens, II. -- 133--Kleen, II. -- 155--Pillet, pp. 305-307--Perels, -- 39, p. 231--Testa, pp.

173-187--Dupuis, Nos. 308-314, and _Guerre_, Nos.

304-328--Ortolan, II. pp. 247-291--Hautefeuille, I. pp.

344-405--Takahas.h.i.+, pp. 418-484--Bajer in _R.I._ 2nd Ser. II.

(1900), pp. 242-244--Lapradelle in _R.G._ XI. (1904), p. 531.

[Sidenote: Asylum to Naval Forces in contradistinction to Asylum to Land Forces.]

-- 342. Whereas asylum granted by a neutral to land forces and single members of them is conditioned by the obligation of the neutral to disarm such forces and to detain them for the purpose of preventing them from joining in further military operations, a neutral may grant temporary asylum to men-of-war of belligerents without being obliged to disarm and detain them.[664] The reason is that the sea is considered an international highway, that the ports of all nations serve more or less the interests of international traffic on the sea, and that the conditions of navigation make a certain hospitality of ports to vessels of all nations a necessity. Thus the rules of International Law regarding asylum of neutral ports to men-of-war of belligerents have developed on somewhat different lines from the rules regarding asylum to land forces. But the rule, that the duty of impartiality inc.u.mbent upon a neutral must prevent him from allowing belligerents to use his territory as a base of operations of war, is nevertheless valid regarding asylum granted to their men-of-war.

[Footnote 664: See, however, below, -- 347, concerning the abuse of asylum, which must be prohibited.]

[Sidenote: Neutral Asylum to Naval Forces optional.]

-- 343. Although a neutral may grant asylum to belligerent men-of-war in his ports, he has no duty to do so. He may prohibit all belligerent men-of-war from entering any of his ports, whether these vessels are pursued by the enemy or desire to enter for other reasons. However, his duty of impartiality must prevent him from denying to the one party what he grants to the other, and he may not, therefore, allow entry to men-of-war of one belligerent without giving the same permission to men-of-war of the other belligerent (article 9 of Convention XIII.).

Neutrals as a rule admit men-of-war of both parties, but they frequently exclude all men-of-war of both parties from entering certain ports. Thus Austria prohibited during the Crimean War all belligerent men-of-war from entering the port of Cattaro. Thus, further, Great Britain prohibited during the American Civil War the access of all belligerent men-of-war to the ports of the Bahama Islands, the case of stress of weather excepted.

Be that as it may, since a neutral must prevent belligerents from making his territory the base of military operations, he must not allow an unlimited number of men-of-war belonging to one of the belligerents to stay simultaneously in one of his ports. Article 15 of Convention XIII.

limits the number of such men-of-war to three, unless there are special provisions to the contrary in the Munic.i.p.al Law of the neutral concerned.

[Sidenote: Asylum to Naval Forces in Distress.]

-- 344. To the rule that a neutral need not admit men-of-war of the belligerents to neutral ports there is no exception in strict law.

However, there is an international usage that belligerent men-of-war in distress should never be prevented from making for the nearest port. In accordance with this usage vessels in distress have always been allowed entry even to such neutral ports as were totally closed to belligerent men-of-war. There are even instances known of belligerent men-of-war in distress having asked for and been granted asylum by the enemy in an enemy port.[665]

[Footnote 665: See above, -- 189.]

[Sidenote: Exterritoriality of Men-of-War during Asylum.]

-- 345. The exterritoriality, which according to a universally recognised rule of International Law men-of-war must enjoy[666] in foreign ports, obtains even in time of war during their stay in neutral ports.

Therefore, prisoners of war on board do not become free by coming into the neutral port[667] so long as they are not brought on sh.o.r.e, nor do prizes[668] brought into neutral ports by belligerents. On the other hand, belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war, as, for instance, with the order not to leave the ports at the same time as vessels of the other belligerent. And, if they do not comply voluntarily, they may be made to do so through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted.

[Footnote 666: See above, vol. I. -- 450.]

[Footnote 667: See above, -- 337.]

[Footnote 668: See articles 21-23 of Convention XIII.]

Special provision is made by article 24 of Convention XIII. for the case of a belligerent man-of-war which refuses to leave a neutral port. This article enacts:--"If, notwithstanding the notification of the neutral Power, a belligerent s.h.i.+p of war does not leave a port where it is not ent.i.tled to remain, the neutral Power is ent.i.tled to take such measures as it considers necessary to render the s.h.i.+p incapable of putting to sea so long as the war lasts, and the commanding officer of the s.h.i.+p must facilitate the execution of such measures. When a belligerent s.h.i.+p is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew so detained may be left in the s.h.i.+p or kept either on another vessel or on land, and may be subjected to such measures of restriction as it may appear necessary to impose upon them.