neutrality. Thus the German attack on Belgium in 1914, to enable German troops to march through Belgian territory and attack France, created war1 between Germany and Belgium. If, however, forces of one belligerent attack forces of the other belligerent, which have taken refuge on neutral territory, or which are there for other purposes, such attacks do not constitute hostilities against the neutral, but are mere violations of neutrality; and they must be repulsed or reparation must be made for them, as the case may be. Quite a peculiar condition arose at the outbreak of, and during, the Russo-Japanese War. The ends for which Japan went to war were the expulsion of the Russian forces from the Chinese Province of Manchuria and the liberation of Korea, which was at the time an independent State, from the influence of Russia. Manchuria and Korea became therefore part of the region of war, although both were neutral territories, and neither China nor Korea became parties to the war. The hostilities which occurred on these neutral territories were in no wise directed against the neutrals concerned. This anomalous situation arose out of the inability of both China and Korea to free themselves from Russian occupation and influence, Japan considering her action, which must be classified as an intervention, to be justified on account of her vital interests. The Powers recognised this situation by influencing China not to take part in the war, and by influencing the belligerents not to extend military operations beyond the borders of Manchuria. Manchuria and Korea having become part of the region of war,2 the hostilities committed there by the belligerents against one another cannot be classified as violations of neutrality. The cases of The Variag and The Korietz, 1 See above, § 71. 2 See above, § 71; Lawrence, War, pp. 268-294; Ariga, §§ 16-22, and the case of The Reshitelni, may illustrate the peculiar condition of affairs : (1) On February 8, 1904, a Japanese squadron under Admiral Uriu entered the Korean harbour of Chemulpo and disembarked Japanese troops. The next morning Admiral Uriu requested the commanders of two Russian ships in that harbour, the Variag and the Korietz, to leave the harbour and engage him in battle outside, threatening to attack them inside the harbour in case they refused. But they did not refuse, and the battle took place outside the harbour, but within Korean territorial waters.1 The complaint made by Russia that in this case the Japanese violated Korean neutrality, would seem to be unjustified, since Korea fell within the region of war.2 (2) The Russian destroyer Reshitelni, one of the vessels that escaped from Port Arthur on August 10, 1904, took refuge in the Chinese harbour of Chifu. On August 12, two Japanese destroyers entered the harbour, captured her, and towed her away. There ought to be no doubt that this was a violation of neutrality, since Chifu does not belong to the part of China which fell within the region of war. Anomalous also was the situation during the World War, when, while Greece was still neutral,5 the Allies occupied Salonika and also Corfu and certain other Greek islands. The forces which had landed at Salonika were attacked by Bulgaria and the other Central Powers.6 1 See Lawrence, War, pp. 279-289, and Takahashi, pp. 462-466. It was for this reason that the Japanese Prize Courts in 1904, during the Russo-Japanese War, condemned the Russian vessels Ekaterinoslav (Hurst and Bray, ii. p. 1) and Mukden (ibid., ii. p. 12), although they were captured, not on the open sea, but in the territorial waters of Korea. See The Tinos, above, § 71 n. See Lawrence, War, pp. 291294, and Takahashi, pp. 437-444. See below, §§ 360 and 361, where the cases of The Dresden and The General Armstrong are discussed. See above, § 306. See below, § 323, and Garner, ii, §§ 464-473, ing of-War to ents. Furnish- § 321. If a State remains neutral, it violates its Troops impartiality by furnishing a belligerent with troops and Men- or men-of-war; and it matters not whether it renders Belliger- such assistance to one of the belligerents, or to both alike. Whereas Convention v. does not mention the furnishing of troops, Article 6 of Convention XIII. enacts that the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of warships, ammunition, or war material of any kind whatever, is forbidden.' 1 However, it is controversial whether a neutral State, which in time of peace had concluded a treaty with one of the belligerents to furnish him in case of war with a limited number of troops, would violate its neutrality by fulfilling its treaty obligation. Several writers 1 have answered the question in the negative, and there is no doubt that during the eighteenth century such cases happened. But no case happened during the nineteenth century, and there ought to be no doubt that nowadays the answer must be in the affirmative, since a qualified neutrality 2 is no longer admissible. As regards furnishing men-of-war to belligerents, the question arose during the Russo-Japanese War whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia of the Augusta Victoria and the Kaiserin Maria Theresia by the North German Lloyd, and the Fürst Bismarck and the Columbia by the Hamburg-American Line; for these vessels were at once enrolled in the Russian Navy as second-class 1 See, for instance, Bluntschli, § 759, and Heffter, § 144. See above, § 306 (2), where the case is quoted of Denmark furnishing troops to Russia in 1788 during a Russo-Swedish war. See above, § 305. cruisers, re-named Kuban, Ural, Don, and Terek. Had these vessels by an arrangement with the German Government really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that they had not been auxiliary cruisers, and Japan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.1 3 of among gerent § 322. Although several States, as, for instance, Subjects Great Britain 2 and the United States of America, by Neutrals their Municipal Law prohibit their subjects from enlist- fighting ing in the military or naval service of belligerents, the Belliduty of impartiality incumbent upon neutrals does not Forces. at present include any necessity for such prohibition, provided that the individuals concerned cross the frontier singly and not in a body. But a neutral must recall his military and naval officers who may have been serving in the army or navy of either belligerent before the outbreak of war; and must retain military and naval officers who want to resign their commissions for the obvious purpose of enlisting in the service of either belligerent. Therefore, when in 1877, during war between Turkey and Serbia, Russian officers left the Russian Army and entered the Serbian Army as volunteers with permission of the Russian Government, there was a violation of the duty of impartiality on the part of neutral Russia. On the other hand, there is no violation of neutrality in a neutral allowing surgeons and other non-combatant members of his army vested with a character 1 See below, § 397. See § 4 of the Foreign EnlistVOL. II. 2 E ment Act, 1870. 3 See Article 6 of Convention v. Passage of Troops Material through of inviolability according to the Geneva Convention to enlist, or to remain, in the service of either belligerent. § 323. In contradistinction to the practice of the and War eighteenth century,1 it is now generally recognised that a violation of the duty of impartiality is involved when Neutral a neutral allows a belligerent the passage of troops or Territory the transport of war material or supplies over his territory. And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. (a) The Passage of Troops The practice of the eighteenth century was unavoidable at that time, since many German States consisted of parts distant one from another, so that their troops had to pass through other sovereigns' territories for the purpose of reaching outlying parts. At the beginning of the nineteenth century, the passing of belligerent troops through neutral territory still occurred. Prussia, although she at first repeatedly refused, at last in 1805 entered into a secret convention with Russia granting Russian troops passage through Silesia during war with France. On the other hand, even before Russia had made use of this permission, Napoleon ordered Bernadotte to march French troops through the then Prussian territory of Anspach without even asking the consent of Prussia. In spite of the protest of the Swiss Government, Austrian troops passed through the Swiss territory in 1813, and when in 1815 war broke out again through the escape of Napoleon from the island of Elba and his return to France, Switzerland granted to the allied troops passage through her territory.3 But since that time it has become universally recognised that all passage of belligerent troops through neutral territory must be prohibited, and the Powers declared expressis verbis in the 1 See Vattel, iii. §§ 119-132. pp. 289-316. See Wheaton, §§ 418-420. |