DISCUSSION AT HAGUE CONFERENCE 265 absolutely, and that every neutral prize which could not be taken in for adjudication should be released.1 Sir Ernest Satow defended with much ability the British proposal. The destruction of neutral prizes, he said, was contrary to international law, and the proposal to admit it was a dangerous innovation. The American delegation submitted a proposal identical in substance with that of the British delegation, and it was ably sustained by General Davis upon grounds of both humanity and practice. The present construction of ships of war, he said, offers few accommodations for persons taken from captured ships, and, besides, they would be exposed to the danger of battle in a much greater degree than when fleets were constructed of wood and propelled by sail.3 The Russian delegation proposed that the right of destruction be admitted in exceptional cases, for example, where the safety of the captor would otherwise be compromised or the success of his operations would be impeded. But in all such cases the right of destruction should be exercised with the greatest reserve and only after all papers had been preserved and provision made for the safety of the passengers and crew. The Russian proposal was also defended by the German delegate, Herr Kriege, who asserted that the right of destruction in exceptional cases was recognized by the existing rules and practice, and that it was indispensable from the point of view of military necessity.* Count Tornielli of Italy sought to reconcile the conflicting views by a proposal allowing prizes to be taken into neutral ports pending sequestration by a prize court. This proposal, embodied in article 23 of the convention respecting the rights and duties of neutral powers in naval warfare, represents the only achievement of the Conference on the subject of prize destruction. Its purpose, as M. Renault pointed out, was "to render more rare or to prevent entirely the destruction of prizes." Sir Ernest Satow strongly opposed the adoption of this article, because it made no distinction between enemy and 1 Deuxième Conférence Internationale de la Paix, Actes et Documents, p. 1134. 2 Ibid., pp. 903–907. 3 Ibid., p. 1050. ▲ Ibid., p. 903. 5 The Proceedings of the Second Hague Conference in respect to the destruction of prizes are reviewed and analyzed by Dupuis in Le Droit de la Guerre Maritime d'après les Conférences de la Haye et de Londres, pp. 372-382, and by Lémonon in La Seconde Conférence de la Paix, pp. 685-694. The memoranda submitted to the Conference are analyzed in International Law Situations for 1911, pp. 61-68. neutral prizes and allowed belligerents the right to make use of neutral ports to their peculiar advantage. The delegates of a number of the great powers, including those of Great Britain, Japan, and the United States, either voted against the proposal or abstained from voting, and their governments later reserved their ratification of the article as adopted. Undoubtedly, if neutrals could be induced to allow belligerents this privilege, the excuse or necessity for destruction would in many cases be removed, but there is little disposition to grant it. § 482. Discussion at the International Naval Conference, 1908-1909. The discussion of the question of the right to destroy neutral prizes was renewed at the International Naval Conference at London in 1908-1909. Sir Edward Grey in a letter of December 1, 1908, to Lord Desart, president of the British delegation, dwelt upon the desirability of an agreement which would place greater restrictions upon the right of belligerents to destroy neutral prizes. The discussions at the Hague conference, however, had evidently convinced the British government of the necessity of making some concessions to those who defended the right of destruction in exceptional cases, and it did not therefore insist as in 1907 on absolute prohibition. Adverting to the fact that it was universally admitted that all prizes ought, if possible, to be taken into a prize court for adjudication, Sir Edward admitted that the right to destroy enemy prizes in cases where the captor finds himself unable without compromising his own safety or without having the success of his operations impeded, or where, owing to his distance from a home port, the prize could not be taken in, was generally recognized. As to neutral prizes, Great Britain, he said, had always contended that if they could not be taken in, they should be released, and that no military necessity could justify destruction. His Majesty's Government, he said, could not admit the proposition that inability to spare a prize crew was sufficient justification to destroy a neutral vessel, for such an admission would probably be held to authorize destruction in the majority of cases where the captor had no convenient port of his own. However, the British government might be prepared, he added, to admit the right to sink neutral prizes in case of imperative military necessity, but it was not prepared to admit that inability to spare a prize crew or the mere remote DISCUSSION AT THE NAVAL CONFERENCE 267 ness of a convenient home port constituted a military necessity which would justify the sinking of a neutral prize.1 Nevertheless, the memorandum submitted by the British delegation, and also that of Japan, proposed that the destruction of neutral vessels be prohibited in all cases whatsoever.2 The proposals submitted by the other delegations, while admitting the general principle that neutral ships ought to be taken in for adjudication, nevertheless affirmed the right of a belligerent to destroy them in exceptional cases. The German memorandum proposed to recognize the right in cases where the taking in would compromise the safety of the captor or the success of his operations. The memorandum of the American delegation proposed the rules of the naval code of 1900, article 50 of which permitted destruction where there were controlling reasons why vessels should not be sent in for adjudication, such as unseaworthiness, the existence of infectious diseases, or the lack of a prize crew, or where there was imminent danger of recapture. The French memorandum proposed to authorize destruction only when the taking of the prize in would compromise the safety of the captor or the success of his operations, as for example, where he could not spare a prize crew; but in every such case the right of destruction should be exercised with the greatest reserve. The memoranda submitted by the delegations of the other powers proposed to recognize the right of destruction under essentially similar conditions." 5 The discussion of the question was very full, especially by the delegates having technical knowledge of the methods of naval warfare. The British delegation reaffirmed the views of the British government in 1907, but, realizing that if any agreement was reached, the right to destroy in exceptional cases would have to be admitted, directed their efforts toward obtaining adequate safeguards against the abuse of the right and toward securing provision for due reparation to injured neutrals.7 1 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc., No. 4, Vol. 54 (1909), p. 28. 2 Ibid., No. 5, p. 38. 4 Ibid., pp. 8-16. 3 Ibid., p. 6. • The memoranda of the several delegations are analyzed by Dupuis, op. cit., pp. 383 ff. Cf. also Int. Law Situations, 1911, pp. 73-77. Cf. the letter of the British delegates to Lord Desart, March 1, 1909, House of Commons Sessional Papers, Misc., No. 4 (1909), p. 98. § 483. Rules of the Declaration of London. The rule finally adopted by the Conference affirmed the general principle that a neutral vessel cannot be destroyed, but must be taken in for adjudication by a prize court. Nevertheless, by way of exception the right of destruction was admitted in cases where conveyance of the prize ship into a home port would involve danger to the captor or to the success of the military operations in which he was at the time engaged (article 49). The effort of the British delegation to obtain express recognition of the rule that mere inability to spare a prize crew did not constitute a danger to the captor failed to receive the approval of the Conference, it being regarded as unwise to undertake to specify the particular contingencies which should constitute danger. Article 50 of the Declaration took care to provide, however, that before destruction in any case all persons on board must be placed in safety, and all the ship's papers likely to be of value to the prize court in determining the validity of the capture must be preserved. While the rules adopted by the Conference represented a compromise between two conflicting views, they undoubtedly provided some safeguards against arbitrary destruction, and if they were strictly observed by belligerents, the cases in which neutrals would be exposed to wrong would probably be few. It is, of course, true that the Declaration has never been ratified in accordance with its own provisions and was not therefore legally binding upon the belligerents during the recent war. Nevertheless, it was put into effect with certain modifications and additions, none of which affected substantially its rules in respect to prize destruction, except that, as already stated, the German prize regulations expressly enumerate the contingencies which shall constitute danger to the captor, or which might impede his operations, among which are inability to spare a prize crew, shortage of coal, proximity to the enemy's coasts, etc. It may also be remarked that the Declaration affirmed at the outset that the rules contained in its various chapters correspond in substance to the generally recognized law." To that extent, therefore, they were binding upon the several belligerents, even though the declaration was never ratified. 1 Cf. the analysis and comment in Bentwich, The Declaration of London, pp. 94-95. GERMAN PRACTICE 269 § 484. Practice during the Recent War. The right of a belligerent to destroy neutral prizes in the exceptional cases and subject to the conditions mentioned above being generally recognized, we may now inquire whether the practice during the recent war was in conformity with these rules. In most of the cases in which neutral ships were destroyed, the destruction was wrought by German submarines, although in a very few cases there were doubts as to whether it was done by submarines or mines, and if by mines whether they were laid by Great Britain or by Germany. In a very few cases also, like that of the Frye, the destruction was wrought by a battle ship or cruiser. Regarding the procedure of destruction, the rule in respect to making provision for the safety of crews and passengers was rarely observed by the commanders of German submarines, and in most cases innocent persons on board lost their lives in consequence of the failure to give warning or, in case warning was given, to allow sufficient time for the passengers and crew to save themselves. In the great majority of cases in which neutral merchantmen were destroyed, the reason alleged was the presence of contraband on board; but in a number of cases the destruction was alleged to have been due to the inability of the submarine commanders to distinguish the marking of the ships. It being impossible, it was claimed, for the commander to bring the vessel to, send a searching party aboard, or otherwise verify its nationality, the ship was destroyed upon suspicion. Thus in the case of the American steamer Gulflight, torpedoed on May 7, 1915, without warning and with the loss of three lives, all Americans, it was alleged that the ship was convoyed by an English merchant vessel, which it was assumed was armed, and being unable to distinguish the neutral markings of the Gulflight and considering it dangerous to approach the vessel for the purpose of verifying its nationality, in view of the presence of the convoying ship of the enemy, the submarine torpedoed it. The destruction of the ship was, therefore, an "unfortunate accident" for which the German government expressed regret and declared itself ready to make full compensation. 1 See the note of the German minister of foreign affairs to the American ambassador at Berlin, of June 1, 1915. The chief officer of the Gulflight in a sworn statement filed with the department of state declared that the ship at the time it was torpedoed was flying a large American ensign six by ten feet in size which was clearly visible. |