International Law. A Treatise Volume Ii Part 19

[Footnote 270: It is impossible for a treatise to go into historical details, and to show the gradual disappearance of the old rule. But it is of importance to state the fact, that even during the nineteenth century--see, for instance, G. F. Martens, II. -- 280; Twiss, II. -- 64; Hall, -- 139--it was a.s.serted that in strict law all private enemy moveable property was as much booty as public property, although the growth of a usage was recognised which under certain conditions exempted it from appropriation. In the face of articles 46 and 47 of the Hague Regulations these a.s.sertions have no longer any basis, and all the text-books of the nineteenth century are now antiquated with regard to this matter.]

[Sidenote: Immoveable Public Property.]

-- 134. Appropriation of public immoveables is not lawful so long as the territory on which they are has not become State property of the occupant through annexation. During mere military occupation of the enemy territory, a belligerent may not sell or otherwise alienate public enemy land and buildings, but only appropriate the produce of them.

Article 55 of the Hague Regulations expressly enacts that a belligerent occupying enemy territory shall only be regarded as administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile State and situated on the occupied territory; that he must protect the stock and plant, and that he must administer them according to the rules of usufruct. He may, therefore, sell the crop from public land, cut timber in the public forests and sell it, may let public land and buildings for the time of his occupation, and the like. He is, however, only usufructuary, and he is, therefore, prohibited from exercising his right in a wasteful or negligent way that would decrease the value of the stock and plant.

Thus, for instance, he must not cut down a whole forest unless the necessities of war compel him.

[Sidenote: Immoveable Property of Munic.i.p.alities, and of Religious, Charitable, and the like Inst.i.tutions.]

-- 135. It must, however, be observed that the produce of such public immoveables only as belong to the State itself may be appropriated, but not the produce of those belonging to munic.i.p.alities or of those which, although they belong to the hostile State, are permanently set aside for religious purposes, for the maintenance of charitable and educational inst.i.tutions, and for the benefit of art and science. Article 56 of the Hague Regulations expressly enacts that such property is to be treated as private property.

[Sidenote: Utilisation of Public Buildings.]

-- 136. So far as the necessities of war demand, a belligerent may make use of public enemy buildings for all kinds of purposes. Troops must be housed, horses stabled, the sick and wounded nursed. Public buildings may in the first instance, therefore, be made use of for such purposes, although they may thereby be considerably damaged. And it matters not whether the buildings belong to the enemy State or to munic.i.p.alities, whether they are regularly destined for ordinary governmental and munic.i.p.al purposes, or for religious, educational, scientific, and the like purposes. Thus, churches may be converted into hospitals, schools into barracks, buildings used for scientific research into stables. But it must be observed that such utilisation of public buildings as damages them is justified only if it is necessary. A belligerent who turned a picture gallery into stables without being compelled thereto would certainly commit a violation of the Law of Nations.

[Sidenote: Moveable Public Property.]

-- 137. Moveable public enemy property may certainly be appropriated by a belligerent provided that it can directly or indirectly be useful for military operations. Article 53 of the Hague Regulations unmistakably enacts that a belligerent occupying hostile territory may take possession of the cash, funds, realisable securities, depots of arms, means of transport, stores, supplies, appliances on land or at sea or in the air adapted for the transmission of news or for the transport of persons or goods, and of all other moveable property of the hostile State which may be used for military operations. Thus, a belligerent is ent.i.tled to seize not only the money and funds of the hostile State on the one hand, and, on the other, munitions of war, depots of arms, stores and supplies, but also the rolling-stock of public railways[271]

and other means of transport and everything and anything he can directly or indirectly make use of for military operations. He may, for instance, seize a quant.i.ty of cloth for the purpose of clothing his soldiers.

[Footnote 271: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), ---- 15 and 19. Some writers--see, for instance, Bonfils, No. 1185, and Wehberg, _op. cit._ p. 22--maintain that such rolling stock may not be appropriated, but may only be made use of during war and must be restored after the conclusion of peace. The a.s.sertion that article 53, second paragraph, is to be interpreted in that sense, is unfounded, for restoration is there stipulated for such means of transport and the like as are _private_ property.]

[Sidenote: Moveable Property of Munic.i.p.alities, and of Religious, Charitable, and the like Inst.i.tutions.]

-- 138. But exceptions similar to those regarding the usufruct of public immoveables are valid in the case of the appropriation of public moveables. Article 56 of the Hague Regulations enumerates the property of munic.i.p.alities, of religious, charitable, educational inst.i.tutions, and of those of science and art. Thus the moveable property of churches, hospitals, schools, universities, museums, picture galleries, even when belonging to the hostile State, is exempt from appropriation by a belligerent. As regards archives, they are no doubt inst.i.tutions for science, but a belligerent may nevertheless seize such State papers deposited therein as are of importance to him in connection with the war. The last instances of the former practice are presented by Napoleon I., who seized works of art during his numerous wars and had them taken to the galleries of Paris. But they had to be restored to their former owners in 1815.

[Sidenote: Booty on the Battlefield.]

-- 139. The case of moveable enemy property found by an invading belligerent on enemy territory is different from the case of moveable enemy property on the battlefield. According to a former rule of the Law of Nations all enemy property, public or private, which a belligerent could get hold of on the battlefield was booty and could be appropriated. Although some modern publicists[272] who wrote before the Hague Peace Conference of 1899 teach the validity of this rule, it is obvious from articles 4 and 14 of the Hague Regulations that it is now obsolete as regards _private_[273] enemy property except military papers, arms, horses, and the like. But as regards _public_ enemy property this customary rule is still valid. Thus weapons, munition, and valuable pieces of equipment which are found upon the dead, the wounded, and the prisoners, whether they are public or private property, may be seized, as may also the war-chest and State papers in possession of a captured commander, enemy horses, batteries, carts, and everything else that is of value. To whom the booty ultimately belongs is not for International but for Munic.i.p.al Law[274] to determine, since International Law simply states that public enemy property on the battlefield can be appropriated by belligerents. And it must be specially observed that the restriction of article 53 of the Hague Regulations according to which only such moveable property may be appropriated as can be used for the operations of war, does not find application in the case of moveable property found on the battlefield, for article 53 speaks of "an army of occupation" only. Such property may be appropriated, whether it can be used for military operations or not; the mere fact that it was seized on the battlefield ent.i.tles a belligerent to appropriate it.

[Footnote 272: See, for instance, Halleck, II. p. 73, and Heffter, -- 135.]

[Footnote 273: See above, -- 124, and below, -- 144.]

[Footnote 274: According to British law all booty belongs to the Crown.

See Twiss, II. ---- 64 and 71.]

VI

APPROPRIATION AND UTILISATION OF PRIVATE ENEMY PROPERTY

Grotius, III. c. 5--Vattel, III. ---- 73, 160-164--Hall, ---- 139, 141-144--Lawrence, ---- 172-175--Maine, pp. 192-206--Manning, pp.

179-183--Twiss, II. ---- 62-71--Halleck, II. pp. 73-75--Moore, VII.

---- 1121, 1151, 1152, 1155--Taylor, ---- 529, 532, 537--Wharton, III.

-- 338--Wheaton, -- 355--Bluntschli, ---- 652, 656-659--Heffter, ---- 130-136--Lueder in Holtzendorff, IV. pp. 488-500--G.F. Martens, II. ---- 279-280--Ullmann, -- 183--Bonfils, Nos.

1194-1206--Despagnet, Nos. 597-604--Pradier-Fodere, VII. Nos.

3032-3047--Rivier, II. pp. 318-329--Nys, III. pp. 296-308--Calvo, IV. ---- 2220-2229--Fiore, III. Nos. 1391, 1392, 1472, and Code, Nos. 1530-1531--Martens, II. -- 120--Longuet, ---- 97-98--Merignhac, pp. 263-268--Pillet, pp. 319-340--_Kriegsbrauch_, pp. 53-56--Zorn, pp. 270-283--Meurer, II. -- 64--Spaight, pp. 188-196--Holland, _War_, Nos. 106-107--_Land Warfare_, ---- 407-415--Bentwich, _The Law of Private Property in War_ (1907)--See also the monographs of Rouard de Card, Bluntschli, Depambour, Wehberg, and Latifi, quoted above at the commencement of -- 133.

[Sidenote: Immoveable Private Property.]

-- 140. Immoveable private enemy property may under no circ.u.mstances or conditions be appropriated by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right[275] whatever to the property. Article 46 of the Hague Regulations expressly enacts that "private property may not be confiscated." But confiscation differs from the temporary use of private land and buildings for all kinds of purposes demanded by the necessities of war. What has been said above in -- 136 with regard to utilisation of public buildings finds equal application[276] to private buildings. If necessary they may be converted into hospitals, barracks, and stables without indemnification of the proprietors, and they may also be converted into fortifications. A humane belligerent will not drive the wretched inhabitants into the street if he can help it. But under the pressure of necessity he may be obliged to do this, and he is certainly not prohibited from doing it.

[Footnote 275: See below, -- 283.]

[Footnote 276: The Hague Regulations do not mention this; they simply enact in article 46 that private property must be "respected," and may not be confiscated.]

[Sidenote: Private War Material and Means of Transport.]

-- 141. All kinds of private moveable property which can serve as war material, such as arms, ammunition, cloth for uniforms, leather for boots, saddles, and also all appliances, whether on land or at sea or in the air, which are adapted for the transmission of news or for the transportation of persons and goods, such as railway rolling-stock,[277]

s.h.i.+ps, telegraphs, telephones, carts, and horses, may be seized and made use of for military purposes by an invading belligerent, but they must be restored at the conclusion of peace, and indemnities must be paid for them. This is expressly enacted by article 53 of the Hague Regulations.

It is evident that the seizure of such material must be duly acknowledged by receipt, although article 53 does not say so; for otherwise how could indemnities be paid after the conclusion of peace?

As regards the question who is to pay the indemnities, Holland (_War_, No. 113) correctly maintains that "the Treaty of Peace must settle upon whom the burden of making compensation is ultimately to fall."

[Footnote 277: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), -- 15.]

[Sidenote: Works of Art and Science, Historical Monuments.]

-- 142. On the other hand, works of art and science, and historical monuments may not under any circ.u.mstances or conditions be appropriated or made use of for military operations. Article 56 of the Hague Regulations enacts categorically that "all seizure" of such works and monuments is prohibited. Therefore, although the metal of which a statue is cast may be of the greatest value for cannons, it must not be touched.

[Sidenote: Other Private Personal Property.]

-- 143. Private personal property which does not consist of war material or means of transport serviceable to military operations may not as a rule be seized.[278] Articles 46 and 47 of the Hague Regulations expressly stipulate that "private property may not be confiscated," and "pillage is formally prohibited." But it must be emphasised that these rules have in a sense exceptions, demanded and justified by the necessities of war. Men and horses must be fed, men must protect themselves against the weather. If there is no time for ordinary requisitions[279] to provide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions cannot be made, a belligerent must take these articles wherever he can get them, and he is justified[280] in so doing. And it must further be emphasised that quartering[281] of soldiers who, together with their horses, must be well fed by the inhabitants of the houses concerned, is likewise lawful, although it may be ruinous to the private individuals upon whom they are quartered.

[Footnote 278: See above, -- 133, note.]

[Footnote 279: See below, -- 147.]

[Footnote 280: The Hague Regulations do not mention this case.]

[Footnote 281: See below, -- 147.]

[Sidenote: Booty on the Battlefield.]

-- 144. Private enemy property on the battlefield is no longer in every case an object of booty.[282] Arms, horses, and military papers may indeed be appropriated,[283] even if they are private property, as may also private means of transport, such as carts and other vehicles which an enemy has made use of. But letters, cash, jewellery, and other articles of value found upon the dead, wounded, and prisoners must, according to article 14 of the Hague Regulations and article 4 of the Geneva Convention, be handed over to the Bureau of Information regarding prisoners of war, which must transmit them to those interested. Through article 14 of the Hague Regulations and article 4 of the Geneva Convention it becomes apparent that nowadays private enemy property, except military papers, arms, horses, and the like, is no longer booty, although, individual soldiers often take as much spoil as they can get.

It is impossible for the commanders to bring the offender to justice in every case.[284]

[Footnote 282: See above, -- 139.]

[Footnote 283: See above, -- 139, and article 4 of the Hague Regulations.

This article only mentions arms, horses, and military papers, but saddles, stirrups, and the like go with horses, as ammunition goes with arms, and these may for this reason likewise be appropriated; see _Land Warfare_, -- 69, note (_e_).]

[Footnote 284: It is of interest to state the fact that, during the Russo-j.a.panese War, j.a.pan carried out to the letter the stipulation of article 14 of the Hague Regulations. Through the intermediary of the French Emba.s.sies in Tokio and St. Petersburg, all valuables found on the Russian dead and seized by the j.a.panese were handed over to the Russian Government.]

[Sidenote: Private Enemy Property brought into a Belligerent's Territory.]

-- 145. The case of private property found by a belligerent on enemy territory differs from the case of such property brought during time of war into the territory of a belligerent. That private enemy property on a belligerent's territory at the time of the outbreak of war may not be confiscated has already been stated above in -- 102. Taking this fact into consideration, as well as the other fact that private property found on enemy territory is nowadays likewise as a rule exempt from confiscation, there can be no doubt that private enemy property brought into a belligerent's territory during time of war may not, as a rule, be confiscated.[285] On the other hand, a belligerent may prohibit the withdrawal of those articles of property which can be made use of by the enemy for military purposes, such as arms, ammunition, provisions, and the like. And in a.n.a.logy with article 53 of the Hague Regulations there can be no doubt that a belligerent may seize such articles and make use of them for military purposes, provided that he restores them at the conclusion of peace and pays indemnities for them.