in her view these rules were not recognised rules of International Law at the time when the case of The Alabama occurred, but the treaty contained a stipulation that the parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them.' The arbitrators 1 met at Geneva in 1871, held thirtytwo conferences there, and gave their decision 2 on September 14, 1872, according to which England had to pay 15,500,000 dollars damages to the United States. 4 The arbitrators put a construction upon the term 'due diligence' and asserted other opinions in their decision which are very much contested, and to which Great Britain never consented. Though Great Britain and the United States agreed upon the three rules, they did not at all agree upon their interpretation, and could not agree upon the contents of the communication to other maritime States stipulated by the Treaty of Washington. It ought not, therefore, to be said that the Three Rules of Washington have literally become universal rules of International Law. Nevertheless, they were the starting-point of the movement for the universal recognition of the fact that the duty of impartiality obliges neutrals to prevent their subjects from building and fitting out, to order of belligerents, vessels intended for warlike purposes, and to prevent the departure from their jurisdiction of any vessel, which, by order of a belligerent, has been adapted to warlike use. Article 8 of Hague Convention XIII. copies almost verbally the first of the Three Rules of Washington, but with the important difference that it re 1 See Moore, Arbitrations, i. pp. 495-682. The award is printed in full in Moore, Arbitrations, i. pp. 653-659, and in Phillimore, iii. § 151a. See below, § 363. As regards the seven rules adopted by the Institute of International Law, at its meeting at the Hague in 1875, as emanating from the Three Rules of Washington, see Annuaire, i. (1877), p. 139. places the words ' to use due diligence' by ' to employ the means at its disposal.' For this reason the construction put by the Geneva arbitrators upon the term due diligence is not applicable to Article 8, the question whether a neutral employed the means at his disposal being a mere question of fact. On IV NEUTRAL ASYLUM TO LAND FORCES, WAR MATERIAL Vattel, iii. §§ 132-133-Hall, §§ 226, 230-Halleck, ii. p. 150-Taylor, § 621 -Wharton, iii. § 394-Moore, vii. §§ 1314-1318-Bluntschli, §§ 774, 776-776a, 785-Heffter, § 149-Geffcken in Holtzendorff, iv. pp. 662665-Ullmann, § 191-Bonfils, Nos. 1461-1462-Rivier, ii. pp. 395-398Calvo, iv. §§ 2668-2669-Fiore, iii. Nos. 1576, 1582, 1583-Martens, ii. § 133-Mérignhac, iii". pp. 577-586-Pillet, pp. 286-287-Kleen, ii. §§ 151-157-Holland, War, Nos. 131-133-Zorn, pp. 316-352-Heilborn, Rechte, pp. 12-83-Garner, i. §§ 301-307-Land Warfare, §§ 485-501— Rolin-Jaequemyns in R.I., iii. (1871), pp. 352-366. § 336. Neutral territory, being outside the region of war,1 offers an asylum to members of belligerent forces, Asylum in general. to the subjects of the belligerents and their property, and to war material belonging to the belligerents. Since, according to the present rules of International Law, the duty of either belligerent to treat neutrals according to their impartiality must-the case of extreme necessity in self-defence excepted-prevent them from violating the territorial supremacy of neutrals, enemy persons and goods are perfectly safe on neutral territory. It is true that neither belligerent has a right to demand from a neutral 2 such asylum for his subjects, their property, and his State property. But neither has he any right to demand that a neutral should refuse 1 See above, §$$ 70, 71. The generally recognised usage by which a neutral grants temporary hospitality in his ports to vessels of either belligerent in distress is an exception discussed below in § 344. it to the enemy. The territorial supremacy of the neutral enables him to use his discretion in granting or refusing asylum. However, his duty of impartiality must compel him, if he grants it, to take all such measures as are necessary to prevent his territory from being used as a base of hostile operations. Now, neutral territory may be an asylum (1) for private property, (2) for public enemy property, especially war material, cash, and provisions, (3) for private subjects of the enemy, (4) for enemy land forces, (5) for enemy airmen, and (6) for enemy naval forces. Details, however, need only be given with regard to asylum to land forces, war material1 and airmen, and to naval forces.2 For with regard to private property and private subjects it need only be mentioned that private war material brought into neutral territory stands on the same footing as public war material of a belligerent brought there, and, further, that private enemy subjects are safe on neutral territory even if they are claimed by a belligerent as having committed war crimes. As regards asylum to land forces, a distinction must be made between (1) prisoners of war, (2) single fugitive soldiers, and (3) troops, or whole armies, pursued by the enemy, and thereby induced to take refuge on neutral territory. § 337. Neutral territory is an asylum to prisoners Neutral of war of either belligerent; they become free 3 ipso Territory facto by coming into neutral territory, whether they Prisoners have escaped from a place of detention and taken refuge on neutral territory, or whether they are brought as 1 §§ 337-341. 2 §§ 342-348. 3 Thus when, in November 1917, a Russian prisoner who had escaped from a German prison camp in Schleswig was shot before reaching the Danish frontier but succeeded in crossing it, and two German soldiers went over and dragged him back to of War. prisoners into neutral territory by enemy troops who themselves take refuge there.1 This principle has been generally recognised for centuries. An illustration occurred in 1588, when several Turkish and Barbary captives escaped from one of the galleys of the Spanish Armada which was wrecked near Calais; although the Spanish ambassador claimed them, France considered them to be freed by coming on her territory, and sent them to Constantinople.2 But has the neutral on whose territory a prisoner has taken refuge the duty to retain him and thereby prevent him from rejoining his own army? Formerly this question was not settled. In 1870, during the Franco-German War, Belgium believed that it had such a duty, and detained a French noncommissioned officer who had been a prisoner in Germany and had escaped into Belgian territory with the intention of rejoining the French forces at once. Doubts were expressed upon this case; 3 but all writers agreed that it was different if escaped prisoners wanted to remain on the neutral territory; as they might at any subsequent time wish to rejoin their own forces, the neutral was considered to be obliged by his duty of impartiality to take adequate measures to prevent their so doing. There was likewise no unanimity as to whether prisoners brought into neutral territory by enemy forces taking refuge there, could be detained in case they intended at once to leave the neutral territory. Some writers maintained that they could not; others asserted that they might always be detained, and had to comply with such measures as the neutral considered necessary to prevent them from rejoining their forces.5 Article 13 of Hague Convention v. settled 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!assign 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 has to take into account the merits and needs of every case and to take such steps as he thinks adequate; a belligerent certainly cannot, as of right, call upon the neutral to detain them. The case of unwounded 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 it is equivalent to passage of troops through neutral territory (Article 2 of Convention v.). Different again is 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 ensure that they do not again take part in military operations.1 and De Neutral § 338. A neutral may grant asylum to single soldiers Fugitive of belligerents who take refuge on his territory, although Soldiers he need not do so, but may at once send them back. serters on If he grants such asylum, his duty of impartiality Territory. obliges him to disarm them, and to take such measures as are necessary to prevent them from rejoining their forces. But it is in practice impossible for a neutral to 1 See also Article 15 of Convention x. and below, § 348a. |