REQUISITION OF GUIDES

135

The treaty of peace required Germany to pay an indemnity on account of damages caused to civilians by being forced to labor "without remuneration" but nothing was said in regard to damages on account of being forced to do work forbidden by the Hague Convention.

$401. Requisition of Guides. Frequent charges were also made against the Germans for having forced enemy civilians to serve them as guides. This practice in former times was common,1 but it appears to have been condemned by the first Hague conference, and the condemnation was renewed by the Conference of 1907. Article 44 of the convention of 1907 respecting the laws and customs of war on land is as follows:

"A belligerent is forbidden to force the inhabitants to furnish information about the army of the other belligerent or about its means of defence."

Professors Holland and Oppenheim are among the few authorities of repute who entertain doubt that this article forbids the employment of forced guides, and their explanation is that a proposal to insert an express provision forbidding the impressing of guides was opposed by Germany, Austria-Hungary, Russia, and Japan. But most of the other authorities hold the contrary view, and it seems quite certain that the committee which approved the article at The Hague in 1907 intended that it should forbid the compulsory employment of guides. Japan, Germany, Austria-Hungary, Montenegro, and

made in the press despatches. Young Belgians, Frenchmen, and Russians were said to have been dragooned and forced to perform military labor, such as digging trenches, working in munitions factories, sometimes immediately behind the lines, where they were exposed to the fire of their own troops. In some instances charges were made that Belgians of military age were even conscripted and forced to serve in the German army. In January, 1918, the Belgian legation at Washington made public an official communication of the Belgian government charging that Belgian women, many of them between the ages of seventeen and thirty-five, were being compelled to dig trenches, and that boys were being forced to work under fire. Text, New York Times, January 2. Cf. also Saint-Aymour, Autour de Noyon, pp. 272 ff., for the copy of an order of July 20, 1915, issued at Holnon, requiring women and children fifteen years of age and over to work in the fields from 4 o'clock in the morning until 8 o'clock in the evening.

1 Westlake, Int. Law, Pt. II, p. 101, and Pillet, op. cit., p. 99.

2 Holland, Laws of War on Land, p. 53; Oppenheim, Int. Law, Vol. II, p. 121. * Spaight, p. 369; Westlake, Vol. II, pp. 101–102; Hershey, p. 411; Lawrence, p. 418. The whole matter is discussed by Higgins, The Hague Peace Conferences, pp. 267-269, and by Ferrand Des Réquisitions, pp. 18 ff. and 70 ff. Ferrand

Russia, however, reserved their ratifications to article 44, and it was not, therefore, technically binding on any of the belligerents in the recent war. Nevertheless, they all accepted article 23, which forbids compulsory service in the "operations of war," an expression which would seem quite broad enough to exclude the taking of guides.

The German general staff in the Kriegsbrauch im Landkriege, however, refused to accept this view. "Whatever," it says, "may be the horror aroused by the sentiments of humanity in requiring a man to commit an injury to his own country and directly to fight against his own troops, no belligerent operating in an enemy country can entirely renounce this expedient." It even upholds the right of a belligerent to compel the inhabitants to furnish information about their own army, its strategy, its resources, and its military secrets. It admits that the majority of writers of all nations condemn the practice, but nevertheless it cannot be entirely dispensed with; "Kriegsraison will make it necessary.

It is difficult to see how the practice can be defended on any other theory than that a belligerent has a moral and lawful right to force the inhabitants to take part in the military operations of the enemy, for such it amounts to in effect. A competent guide, as Spaight very properly remarks, "may be of far more value to a general operating in a strange country than very many troops, and it is quite illogical to forbid him to impress soldiers if you permit him to impress a guide whose employment may be more militarily important and infinitely more damaging to the enemy than a thousand men in the ranks."2 It is a cruel measure, says Bonfils, for he who guides an army of invasion commits an act more injurious to his own country than if he fought in the ranks of his enemy. Pillet expresses substantially the same opinion.3 The French official manuel

reviews at length the arguments for and against the practice of taking guides. Like most writers, he thinks it was clearly the intention of the Conference to condemn the impressment of guides, although he admits that the language employed in art. 44 is unfortunately not clear, and that it should be revised by the next conference, so as to remove all doubt as to its meaning.

1 Morgan, The War Book of the German General Staff, p. 153, and Carpentier, p. 110. See the criticism of this doctrine by Merignhac, Les Lois de la Guerre Continentale suivant le Grand Etat-Major Allemand, p. 33.

2 War Rights on Land, p. 370.

• Lois Actuelles, p. 144.

VIEWS OF THE AUTHORITIES

137 for the use of army officers condemns it as irreconcilable with the rights of persons. "It is evident," says the French manuel, "that the person who is forced to guide or facilitate the expeditions of the enemy finds his patriotism cruelly undermined.' The British manual likewise pronounces it as contrary to Article 44 of the Hague convention. Even some German writers condemn it as illegitimate.3

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§ 402. Views of the Authorities. The Germans during the late war, of course, proceeded on their traditional theory as to the rights of a military occupant, and it must be admitted that the writers on international law recognize a fairly wide latitude to belligerents in respect to requisitions of labor and services of the inhabitants of occupied territory. Even Bonfils holds that "the inhabitants may be required by the enemy to transport by means of their own horses and vehicles necessary supplies for the army, the wounded, prisoners, and troops." Although of great use to the enemy who requires these services, he continues, they do not constitute direct and immediate participation in the operations of the war. And, he concludes, if a belligerent has a right to exact certain personal services, it must be admitted that he has a right to punish the inhabitants for refusing them.4

Lawrence likewise calls attention to the obvious fact that the line of demarcation between permissible and forbidden services is shadowy, "but," he adds, "the underlying principle is clear. To drive a herd of bullocks to a slaughter pen is a very different thing from driving an ammunition wagon into a field of conflict." Holland points out that the substitution of the phrase any operations of war in article 23h of the convention of 1907 in the place of military operations, the language employed in the convention of 1899, increases the immunity of the inhabitants against the right of a belligerent to exact services of them,

1 Art. 95.

2 Art. 382, n. d.

E.g., Loening, Strupp, Huber, Meurer, and Albert Zorn.

Droit Int. Pub., secs. 1147-1148 and 1150. Bonfils, however, strongly condemns the act of Count Renard, German prefect at Nancy, who in 1871 threatened to shoot a number of laborers in case his demand for 500 workmen to reconstruct a bridge was not complied with. But the Kriegsbrauch im Landkriege attempts to justify the threat on the ground that it accomplished the purpose desired without it being necessary to carry it out. Morgan, pp. 144-145. It is also defended by Strupp, op. cit., p. 113.

'Principles of Int. Law, p. 419 (4th ed.).

since the former term includes many acts not amounting to what would be described as military operations. He adds, however, that the language is still ambiguous, and he raises, without answering, the query whether it would be lawful for a belligerent to compel hostile nationals to aid in the construction of urgent public works, such as the repair of roads and bridges. The great majority of jurists and writers deny the right of a belligerent to compel persons of hostile nationality to work on the fortifications of the enemy. For the same reason the compulsory digging of trenches must be condemned; so must the driving of ammunition wagons, the cutting of stone for trench supports, and the production of barbed wire for the erection of military defences. For still stronger reasons forced work in arsenals for the production of arms and munitions to be used against their own countrymen is forbidden. It may also be doubted whether forced labor in railway shops and in the operation of railway trains which are used by the enemy for the transportation of troops and military supplies is permissible. The line of demarcation between such services and work on fortifications is at best very shadowy, and there is no principle of logic or reason why a belligerent should be allowed to require the one and forbidden to exact the other. Indeed, under the conditions of modern warfare, work in wire and munition factories, in stone quarries, and in the railway service may be of infinitely greater value to a belligerent than the services which are expressly forbidden by the Hague con

1 Ferrand, p. 60. As is well known, charges were made against the Germans in 1870-1871 for compelling the French to work on fortifications and the care which Loening, the authors of the Kriegsbrauch, and others have taken to deny the charge shows that they did not recognize such acts as legitimate. Oppenheim holds that a belligerent may not only requisition drivers, guides, farriers, etc., but he may require "the execution of public works necessary for military operations, such as the building of fortifications, roads, bridges, soldiers' quarters, and the like." International Law, Vol. II, pp. 121-122. The British Manual (secs. 388 and 391), it may be remarked, recognizes a rather large right of requisition in respect to personal services, much larger in fact than that recognized by the French Manuel. Professional men and tradesmen, it says, such as surgeons, pharmacists, electricians, carpenters, butchers, bakers, etc., may be requisitioned for the needs of the army. Railway, telegraph, steamship employés, and the like, whether employed by the State or by private companies, it says, may be similarly requisitioned, provided the services required do not directly concern the operations of war against their own country. Likewise they may be requisitioned to repair roads, bridges, and railways in the interest of the general safety of the country, but not with the object of facilitating military operations.

GERMAN POLICY CRITICISED

139 vention. The services of the Belgian railway employés in particular were of great military value to the Germans, not only because they released an equivalent number of Germans and left them available for service in the army, but because, owing to the different construction of Belgian railway locomotives and railway machinery as compared with those in use in Germany, the operation of the Belgian lines by Germans was carried on with difficulty and resulted in numerous accidents. The service of Belgian engineers, machinists, and trainmen was, therefore, as necessary to the Germans as soldiers in the field. If this be true, on what principle could the Germans be allowed to requisition the services of the former and yet forbidden to impress the inhabitants to act as guides or to serve in their ranks? 1

1 The question of the right of a military occupant to compel railway employés to continue their work has been the subject of some discussion by writers on international law, but it appears to be still unsettled. Stein, an Austrian professor, submitted to the Institute of International Law in 1885 a proposed réglement dealing with railroads in time of war (Annuaire, Vol. VIII), Art. 9 of the proposed réglement affirmed that an occupant may force the officials and employés of state railroads to serve him and may punish them for disobeying. At the session of the Institute in 1888, M. Moynier presented a report on the matter which was adverse to Stein's conclusions. A new committee was appointed to consider the matter, but apparently nothing has come of it. M. Buzzati in a critical study of this report rejects the distinction between the employés of state railways and of private railways, but he is in accord with Stein in holding that they may be forced to obey the military occupant, though only in case of emergency (Rev. de Droit Int. et de Lég. Comp., 1888, pp. 402-403). Ferrand, Des Réquisitions, p. 66, however, takes a contrary view. In consequence of the extensive use which is made by military occupants of railways to facilitate their operations, the exercise of compulsion upon the employés to assist in the movement of trains cannot, M. Ferrand thinks, be regarded as a simple measure of local administration. Pillet (Les Lois Actuelles de la Guerre, sec. 181) holds that an occupant is not bound to retain employés whom he finds in the railway service, but on the other hand, they ought to be allowed to abandon their employment whenever it is repugnant to their sentiments of patriotism to continue to serve an administration directed by the enemy.