Convention XI. of the Second Peace Conference enacted the following rules 1: (1) Such members of the crew as are subjects of neutral States may not be made prisoners of war. (2) The captain and officers who are subjects of neutral States may only be made prisoners if they refuse to give a promise in writing not to serve on an enemy ship while the war lasts. (3) The captain, officers, and such members of the crew as are enemy subjects may only be made prisoners if they refuse to give a written promise not to engage, while hostilities last, in any service connected with the operations of war. (4) The names of all the individuals retaining their liberty under parole must be notified by the captor to the enemy, who is forbidden knowingly to employ them in any service prohibited by the parole. However, the provision that members of the crew who were enemy subjects might only be made prisoners if they refused to give parole was ipso facto modified by the practice followed during the World War, according to which all enemy civilians of military age could be prevented from returning home, and could be interned. Accordingly, all the belligerents interned the enemy crews of captured enemy merchant vessels. Traitors. § 86. The privileges of members of armed forces Deserters cannot be claimed by members of the armed forces of and a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. And the same is valid with regard to treasonable subjects of a belligerent who, without having been members of his armed forces, fight in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.2 1 See below, § 201. 2 See below, § 222; Hall, § 190; Land Warfare, § 36. On VII ENEMY CHARACTER Grotius, iii. c. 4, §§ 6, 7-Bynkershoek, Quaestiones Juris publici, i. c. 3 § 87. Since the belligerents, for the realisation of Enemy the Character purpose of war, are entitled to take many kinds of in general. measures against enemy persons and enemy property, it must be determined what persons and what property are vested with enemy character. Now it is, generally speaking, correct to say that, whereas the subjects of a belligerent and their property bear enemy character, the subjects of a neutral State and their property do not bear enemy character. This rule has, however, important exceptions. For under certain circumstances and conditions enemy persons and the property of enemy subjects may not bear, and, on the other hand, subjects of a neutral State and their property may bear, enemy character. And it is even possible for a subject of a belligerent to bear for certain purposes enemy character as between himself and his home State. The question of enemy character is, however, to a great extent unsettled, since on many points connected with it no universally recognised rules of International Law are in existence. Before the World War, British and American courts had worked out a body of precise and clear rules, but the practice of other countries, and especially of France, had followed different lines. The Second Hague Conference of 1907 produced three articles of minor importance on the matter (Articles 16, 17, and 18 of Convention v.), which were accepted by all the signatory Powers, except Great Britain, which, upon signing the convention, entered a reservation against them. The Declaration of London comprised a number of rules which, apart from two important points, offered a common basis for the practice of all maritime States.1 But neither the Hague Conference nor the Naval Conference of London reached a compromise upon the old controversies as to whether nationality exclusively, or domicile also, should determine the neutral or enemy character of individuals and their goods, and whether or not neutral vessels acquire enemy character by embarking in time of war, with the permission of the enemy, upon such trade with the latter as was closed to them in time of peace (rule of 1756). When the World War broke out, these questions were still open; moreover, Great Britain and certain other belligerents had not ratified Hague Convention v., and no Power had ratified the Declaration of London. States had opportunity to fall back upon their divergent practices, and even these underwent far-reaching changes under the stress of new circumstances. For the consideration of enemy character in detail, it is convenient to distinguish between individuals, 1 At the first glance it would seem that only the four articles-57 to 60 -of Chapter VI. headed Enemy Character' dealt with the subject, but a closer examination shows that Article 46, relating to a certain kind of unneutral service, Articles 55 and 56, dealing with transfer to a neutral flag, and, lastly, Article 63, relating to forcible resistance to the right of visitation, were also concerned with enemy character. Enemy Character of In corporations, vessels, goods, the transfer of enemy vessels, and the transfer of enemy goods on enemy vessels. § 88. The general rule with regard to individuals is that subjects of the belligerents bear enemy character, dividuals. whereas subjects of neutral States do not. In this sense Article 16 of Convention v. stipulated: 'The nationals of a State which is not taking part in the war are considered to be neutral.' These neutral individuals can, however, lose their neutral character and acquire enemy character in several cases, and subjects of the belligerents can in other cases lose their enemy character: - (1) Since relations of peace obtain between either of the belligerents and neutral States, the subjects of the latter can, by way of trade and otherwise, render many kinds of services to either belligerent without thereby losing their neutral character. On the other hand, if they enter the armed forces of a belligerent, or do certain other things in his favour, or commit hostile acts against a belligerent, they acquire enemy character.1 All measures that are allowed during war against enemy subjects are likewise allowed against such subjects of neutral Powers as have thus acquired enemy character. For instance, during the World War hundreds of subjects of neutral States, who were fighting in the ranks of the belligerents, were captured and retained as prisoners until the end of the struggle. But such individuals must not be more severely treated than enemy subjects, and, in especial, no punitive measures are allowed against them.1 Subjects of neutral States not inhabiting the territory of the enemy, or any territory militarily occupied by him, do not, however, acquire enemy character by furnishing supplies or making loans to the enemy, Article 17 of Convention v. provided the supplies do not come from the enemy territory, or any territory occupied by him.1 Article 18(b) of Convention v. laid down a new rule 2 that subjects of neutral States who render services to the enemy in matters of police and administration, likewise do not acquire enemy character. This stipulation must, however, be read with caution. It can only mean that such individuals do not lose their neutral character to a greater degree than other subjects of neutral States resident on enemy territory; it cannot mean that they are in every way to be considered and treated like subjects of neutral States not residing on enemy territory. The acts by which subjects of neutral States lose their neutral, and acquire enemy, character need not necessarily be committed after the outbreak of war. They can, even before the outbreak of war, identify themselves to such a degree with a foreign State that, with the outbreak of war against that State, enemy character devolves upon them ipso facto, unless they at once sever their connection with such State. This, for instance, is the case when a foreign subject, in time of peace, enlists in the armed forces of a State and continues to serve after the outbreak of war. (2) From the time when International Law made its appearance down to our own, no difference has been made by a belligerent between the treatment accorded to subjects of the enemy and subjects of neutral States inhabiting the enemy country. Thus Grotius 3 teaches 1 Article 18(a) of Convention v. 2 Since Great Britain entered a reservation against Articles 16, 17, and 18 of Convention v. she is not bound by them. But Articles 16, 17, and 18(a)—not 18(b)!-enacted only such rules as were always customarily recognised, unless Article 16 be interpreted so as to prevent a belligerent from considering subjects of neutral States inhabiting the enemy country as bearing enemy character. Different, however, is Article 18(b), which created an entirely new rule, for nobody had previously doubted that the members of the police force and the administrative officials of the enemy bore enemy character whether or no they were subjects of the enemy State. 3 iii. c. 4, §§ 6, 7. |