be so watchful as to detect every single fugitive who enters his territory. It will always happen that such fugitives steal into neutral territory and leave it again later on to rejoin their forces without the neutral being responsible. Moreover, before he can incur responsibility for not doing so, a neutral must actually be in a position to detain such fugitives. Thus Luxemburg, during the Franco-German War, could not prevent hundreds of French soldiers, who fled into her territory after the capitulation of Metz, from rejoining the French forces, because it was a condition1 of her neutralisation that she should not keep an army, and therefore, in contradistinction to Switzerland, was unable to mobilise troops for the purpose of fulfilling her duty of impartiality. Different from the case of fugitive soldiers is the case of fugitive deserters. If they desert and cross the neutral territory for the purpose of joining the enemy, their case is hardly different from the case of men who pass through neutral territory, intending to enlist in the army of a belligerent. For this reason they need not be interned if they come individually; but they must be interned if they come in a body. On the other hand, if they desert without any such intention, they need not be interned, even though they come in a body. § 339. On occasions during war large bodies of troops, or even a whole army, are obliged to cross the neutral Fugitive frontier for the purpose of escaping captivity. A neutral need not permit this, and may repulse them on the spot; but he may also grant asylum. It is, however, obvious that the presence of such troops on neutral territory is a danger to the other party. The duty of impartiality incumbent upon a neutral obliges him, therefore, to disarm them at once, and to guard them so as to ensure that they do not again perform military acts 1 See above, vol. i. § 100. Neutral and Troops. * See above, § 331. against the enemy during the war. In this case Hague Convention v. enacts the following rules : Article 11: A neutral Power which receives in its territory troops belonging to the belligerent armies shall detain them, if possible, at some distance from the theatre of war. It may keep them in camps, and even confine them in fortresses or localities assigned for the purpose. It shall decide whether officers are to be left at liberty on giving their parole that they will not leave the neutral territory without authorisation.' Article 12 In the absence of a special convention, the neutral Power shall supply the interned with the food, clothing, and relief which the dictates of humanity prescribe. At the conclusion of peace, the expenses caused by internment shall be made good.' It is usual for troops who are not actually pursued by the enemy-if pursued they have no time to do itto enter through their commander into a convention with the representative of the neutral concerned, stipulating the conditions upon which they cross the frontier and give themselves into his custody. Such conventions are valid without ratification, provided that they contain only such stipulations as do not disagree with International Law, and concern only the requirements of the case. Although the detained troops are not prisoners of war captured by the neutral, they are nevertheless in his custody, and therefore under his disciplinary power, just as prisoners of war are under the disciplinary power of the State which keeps them in captivity. They do not enjoy the exterritoriality 1 due to armed forces abroad, because they are disarmed. As the neutral is required to prevent them from escaping, he must apply stern measures, and he may punish severely every member of the detained force who attempts to frus1 See above, vol. i. § 445. and trate such measures, or does not comply with the disciplinary rules regarding order, sanitation, and the like. The most remarkable instance known in history is the asylum granted by Switzerland during the FrancoGerman War to a French army of about 82,000 men with 10,000 horses, which crossed the frontier on February 1, 1871.1 France had, after the conclusion of the war, to pay about eleven million francs for the maintenance of this army in Switzerland during the rest of the war. Other instances occurred during the World War, when after the fall of Antwerp in 1914 Holland interned British troops which crossed into Holland, south of the River Scheldt, to escape the German Army,2 and when the local authorities in Spanish New Guinea interned 900 Germans and 14,000 natives who crossed the Spanish frontier from German Cameroon.3 Neutral § 340. The duty of impartiality incumbent upon a Territory neutral obliges him to detain in the same way as soldiers non-Com- non-combatant members of belligerent forces who Members cross his frontier. He may not, however, detain army surgeons and other non-combatants who are privileged according to Article 9 of the Geneva Convention.5 batant of Belli gerent Forces. Neutral Territory § 341. It can happen during war that war material wry belonging to one of the belligerents is brought into Material neutral territory for the purpose of saving it from gerents. capture by the enemy. It may be brought by troops of Belli crossing the neutral frontier to evade captivity, or it may be purposely sent there by order of a commander. Now, a neutral is by no means obliged to admit such material, just as he is not obliged to admit soldiers of 1 See the convention regarding this asylum between the Swiss General Herzog and the French General Clinchant in Martens, N.R.G., xix. p. 639. 2 The Times, October 11, 1914. 3 The Times, February 7, 1916. 4 See Heilborn, Rechte, pp. 43-46. Convention v. does not mention this. See above, § 121, belligerents. But if he does, his duty of impartiality obliges him to seize and retain it till after the conclusion of peace. War material includes arms, ammunition, provisions, horses, means of military transport (such as carts and the like), and everything else that belongs to the equipment of troops. But means of military transport are war material only so far as they are the property of a belligerent. If they are hired, or requisitioned, from private individuals, they may not be detained by the neutral. It can likewise happen during war that war material which was originally the property of one of the belligerents but later had been seized and appropriated by the enemy, is brought by the latter into neutral territory. Does such material, through coming into neutral territory, become free, and must it be restored to its original owner? Or must it be retained by the neutral, and after the war be restored to the belligerent who brought it into the neutral territory? In analogy with prisoners of war who become free through being brought into neutral territory, it is maintained 1 that such war material becomes free, and must be restored to its original owner. To this, however, I cannot agree. Since war material through seizure by the enemy becomes his property, and remains his property unless the other party re-seizes and thereby re-appropriates it, there is no reason for it to revert to its original owner upon being brought into neutral territory.3 § 341a. No customary or conventional rules as yet 1 See Hall, § 226. * See Heilborn, Rechte, p. 60, and Land Warfare, § 492. The Dutch Government at the Second Hague Conference proposed a rule according to which captured war material brought by the captor into neutral territory should be restored, after the war, to its original owner, butsee Deuxième Conférence, Actes, vol, i, p. 145-this proposal was not accepted. See Heilborn, Rechte, pp. 61-65, where the question is discussed as to whether a neutral may claim a lien on war material brought into his territory for expenses incurred for the maintenance of detained troops belonging to the owner of the war material, Neutral exist for the case in which a belligerent air-vessel Territory crosses into neutral air space, be it inadvertently or and Belligerent intentionally, and is compelled to land. During the Airmen. World War the general practice of neutrals seems to have been always to detain the air-vessel and the airmen. Moreover, when belligerent aircraft passed over neutral territory without intending to land, they were fired at for the purpose of compelling them to do so.1 But in case they came down, not on neutral territory, but on the open sea, and their crews were there rescued by neutral merchantmen and so brought into neutral territory, they were treated as shipwrecked soldiers, and were not detained.2 Asylum to Naval contra V NEUTRAL ASYLUM TO NAVAL FORCES AND SHIP WRECKED WAR MATERIAL Vattel, iii. § 132—Hall, § 231-Westlake, ii. pp. 234-242-Twiss, ii. § 222Taylor, §§ 635,,636, 640-Wharton, iii. § 394-Wheaton, § 434-Moore, vii. §§ 1314-1317-Bluntschli, §§ 775-7766-Heffter, § 149-Geffcken in Holtzendorff, iv. pp. 665-667, 674-Ullmann, § 191-Bonfils, No. 1463— Despagnet, No. 692 ter-Rivier, ii. p. 405-Calvo, iv. §§ 2669-2684-Fiore, iii. Nos. 1576-1581, 1584, and Code, Nos. 1811-1815-Martens, ii. § 133 -Kleen, ii. § 155–Pillet, pp. 305-307—Perels, § 39, p. 213-Testa, pp. 173-187-Dupuis, Nos. 308-314, and Guerre, Nos. 304-328-Ortolan, ii. pp. 247-291-Hautefeuille, i. pp. 344-405-Takahashi, pp. 418-484Garner, ii. §§ 561-564-Trainé, Das Gastrecht im Seekrieg (1912), §§ 1420-Einicke, Rechte und Pflichten der neutralen Mächte im Seekrieg (1912), pp. 153-325-Pepy, Les Problèmes soulevés par l'Asile maritime en Temps de Guerre (1913), and in R. G., xx. (1913), pp. 574-599-Wehberg, § 11 -Bajer in R.I., 2nd Ser. ii. (1900), pp. 242-247-Lapradelle in R.G., xi. (1904), pp. 531-564. § 342. Whereas it is a condition of the granting of Forces in asylum by a neutral to land forces, and single members of them, that he should disarm them and detain them for the purpose of preventing them from joining in Asylum further military operations, a neutral may grant tem distinc tion to to Land Forces. 1 See the details given by Garner, i. §§ 301-303. |