Property and of Chari Institutions. railways1 and other means of transport, and everything and anything that he can directly or indirectly make use of for military operations. He may, for instance, seize a quantity of cloth for the purpose of clothing his soldiers. Moveable § 138. But just as the produce of certain public of Munici immoveables may not be appropriated, so certain palities, public moveables may not be appropriated. For Article Religious, 56 of the Hague Regulations exempts the property of table, and municipalities, of religious, charitable, educational instithe like tutions, and of institutions of science and art. Thus the moveable property of churches, hospitals, schools, universities, museums, and picture galleries, even when belonging to the hostile State, cannot lawfully be appropriated by a belligerent. As regards archives, they are no doubt institutions for science, but a belligerent may nevertheless seize such State papers deposited therein as are of importance to him in connection with the war. Moveable § 138a. Such are the rules regarding moveable public Property property found in enemy territory; but they were the World during the World War systematically violated by the War. Central Powers, which carried off public moveable pro Public during perty of all kinds, even though of no military value, following the example of Napoleon I., who seized works of art during his numerous wars and had them taken to the galleries of Paris. But just as the property seized by Napoleon had to be restored to its former owners in 1815, the property taken away by the Central Powers had to be restored under the Armistices and the Treaties of Peace.2 1 See Nowacki, Die Eisenbahnen im Kriege (1906), §§ 15, 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 assertion 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. Thus Article 245 of the Treaty of Peace with Germany provides for on the § 139. The case of moveable enemy property found Booty by an invading belligerent on enemy territory is different Battlefrom that of moveable enemy property on the battle- field. field. 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 1 who wrote before the Hague 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 2 enemy property, except military papers, arms, horses, and the like. But as regards public enemy property, this customary rule is still valid. Thus not only weapons, munitions, and valuable pieces of equipment which are found upon the dead, wounded, and prisoners, may be seized, but also the war-chest and State papers in possession of a captured commander, enemy horses, batteries, carts, and all other public property found on the field of battle that is of value. To whom the booty ultimately belongs is not for International but for Municipal Law 3 to determine, since International Law simply states that public enemy property on the battlefield can be appropriated by belligerents. The restriction in Article 53 of the Hague Regulations that only such moveable property may be appropriated as can be used for the operations of war, does not apply to 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 entitles a belligerent to appropriate it. the restoration of the trophies, archives, historical souvenirs, or works of art carried away from France by the German authorities. See also Articles 238, 244, Annex. 1 See, for instance, Halleck, ii. p. 73, and Heffter, § 135. 2 See above, § 124, and below, § 144. 3 According to British law, all booty belongs to the Crown. See Twiss, ii. §§ 64, 71. Immoveable Private VI APPROPRIATION AND UTILISATION OF PRIVATE ENEMY PROPERTY Grotius, iii. c. 5-Vattel, iii. §§ 73, 160-164-Hall, §§ 139, 141-144-Westlake, ii. pp. 103-104-Lawrence, §§ 172-175, 179-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, 656-659Heffter, §§ 130-136-Lueder in Holtzendorff, iv. pp. 488-500-G. F. Martens, ii. §§ 279-280-Ullmann, § 183-Bonfils, Nos. 1194-1206Despagnet, Nos. 579-590-Pradier-Fodéré, vii. Nos. 3032-3047Rivier, ii. pp. 318-323-Nys, iii. pp. 252-266-Calvo, iv. §§ 2220-2229— Fiore, iii. Nos. 1391, 1392, 1472, and Code, Nos. 1535-1536, 16221623-Martens, ii. § 120-Longuet, §§ 97-98-Mérignhac, iiia. pp. 418427-Pillet, pp. 333-342-Kriegsbrauch, pp. 53-56-Zorn, pp. 270-283Meurer, ii. § 54-Spaight, pp. 188-201-Garner, ii. §§ 395-397, 399— Holland, War, Nos. 106-107-Land Warfare, §§ 407-415-Bentwich, The Law of Private Property in War (1907)—Borchard, § 104-See also the monographs of Rouard de Card, Bluntschli, Depambour, Wehberg, and Latifi, quoted above at the commencement of § 133. 1 § 140. Immoveable private enemy property may under no circumstances or conditions be appropriated Property. by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right 1 whatever to the property. Article 46 of the Hague Regulations expressly enacts that 'private property may not be confiscated.' 2 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 3 with regard to utilisation of public buildings applies equally to private buildings. If necessary, they may be con 1 See below, § 283. 2 Although the Hague Regulations cannot literally be applied in occupied enemy colonies populated by natives and having only a few white settlers, their real estate must not be sold, as was done in German East Africa, Togoland, Samoa, and the Cameroons, during the World War. 3 § 136. The Hague Regulations do not mention this; they simply enact in Article 46 that private property must be 'respected,' and may not be confiscated. verted into hospitals, barracks, and stables without compensation for 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. War Means of § 141. All kinds of private moveable property which Private can serve as war material, such as arms, ammunition, Material cloth for uniforms, leather for boots, saddles, and also and all appliances (whether on land or at sea or in the air) Transwhich are adapted for the transmission of news or for port. the transport of persons and goods, such as railway rolling stock,1 ships, telegraphs, telephones, carts, and horses, may be seized and made use of for military purposes by an inyading belligerent; but they must be restored at the conclusion of peace, and compensation 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 compensation be paid after the conclusion of peace? As regards the question who is to pay the compensation, Holland 2 correctly maintains that the Treaty of Peace must settle upon whom the burden of making compensation is ultimately to fall.' Art and Monu § 142. On the other hand, works of art and science, Works of and historical monuments, may not under any circum- Science, stances or conditions be appropriated or made use of Historical for military operations. Article 56 of the Hague ments. Regulations enacts categorically that all seizure' of such works and monuments is prohibited. Therefore, 1 See Nowacki, Die Eisenbahnen im Kriege (1906), § 15. Different, of course, is the seizure of the railway tracks, and their removal to other countries, as to which see 2 War, No. 113. although the metal of which a statue is cast may be of the greatest value for cannons, it must not be touched. Other § 143. Private personal property which does not Personal consist of war material or means of transport serviceProperty. able for military operations may not as a rule be seized.1 Private Private in the World 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 2 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 in so doing. Moreover, quartering 4 of soldiers (who, together with their horses, must be well fed by the inhabitants of the houses where they are quartered) is likewise lawful, although it may be ruinous to the private individuals upon whom they are quartered.4 Moveable § 143a. Such are the rules regarding moveable private Property property found in enemy territory; but they were systematically violated by the Central Powers during the World War. Live stock, particularly cattle and horses, were seized in Belgium and the occupied parts of France and carried off to Germany.5 Factories and workshops were dismantled, and their machinery and materials carried away. Cash was taken from private 1 See above, § 133 n. 2 See below, § 147. The Hague Regulations do not mention this case. 4 See below, § 147. 5 See Garner, ii. § 395, who quotes Lord R. Cecil as stating on March 19, 1918, Belgium had 1,500,000 cattle; we know that practically half of these have gone to Germany.' • See Garner, ii. § 396. |