THE CASE OF GARDE 365 neutral ports. Such persons have usually been treated as analogues of contraband and therefore liable to seizure, even when the vessel was proceeding to neutral ports. § 539. The Cases of Garde and Others. At various times in December, 1914, the American steamships San Juan, Coamo, Carolina, and Barinquen were stopped by the French cruiser Descartes on the high seas, and a number of Germans and Austrians were removed and sent to Martinique, where they were detained as prisoners of war. Among the passengers removed from the Barinquen was a civilian named Garde, the purser of the steamship, who, it appears, was a German by birth, but had formally declared his intention of becoming an American citizen. His case was therefore identical with that of Piepenbrink referred to above, and upon the demand of the American government he was released. The release of the other Germans and Austrians was also demanded by the American government on the ground that the removal from a neutral vessel plying between neutral ports, of any person, whether of enemy nationality or not, was a violation of international law. As in the Piepenbrink case, it was asserted that the men removed were not "embodied" in the armed forces of the enemy in the sense of the Declaration of London, and again it was asserted that even if they could have been properly regarded as military persons, their removal from a neutral vessel bound for a neutral port was unjustifiable. In consequence of the American representations the French government in January, 1915, released the persons removed from the American vessels and delivered them over to the American consul at Fort de France, Martinique, where they had been detained. Inasmuch as the vessels from which they had been taken were plying between ports of the United States, it is doubtful whether under the circumstances the French government would have been justified in treating them as analogues of contraband, even had they been "embodied" in the military forces of the enemy. But had they been taken from a vessel bound to an enemy port or to the port of a neutral country geographically adjacent to Germany, and had they been of military age, whether "embodied" in the armed forces of the enemy or not, a different question would have been presented, for under such circumstances the doctrine of ultimate destination could have been applied with much more reason than would have been possible in the case of a voyage between two American ports. § 540. Seizures on the China. On February 18, 1915, the British cruiser Laurentic stopped the China, an American steamship bound from Shanghai to San Francisco, and took off some thirty-eight Germans, Austrians, and Turkish subjects and conveyed them to Hongkong where they were placed in military barracks. The American government protested against the seizure and again reaffirmed the view that the removal of enemy subjects, even if they could be regarded as military persons, from a neutral vessel on the high seas proceeding to a neutral port was an invasion of the sovereignty of American vessels on the high seas and therefore contrary to the rules of international law. In a reply of April, 1916, to the American protest the British government alleged that the persons in question were an “integral part of a plot" organized in Shanghai for the purpose of making Manila a base for the perpetration of unneutral acts against the Entente allies. It had been definitely established from "actual occurrences and reliable information," the British note stated, that Germens resident in Shanghai had been enбaged for some time in the collection of arms and ammunition both for clandestine transmission to India and if possible for the arming of a ship to play the part of a Far Eastern Möwe. Persons of this description, it was asserted, belonged to the class of individuals who may without any infraction of the sovereignty of a neutral State be removed from a neutral vessel on the high seas.1 At the beginning of the war, Sir Edward Grey added, the British government adhered to the interpretation of article 47 of the Declaration of London that it was not to be considered as permitting the arrest of passengers on neutral vessels who were not yet attached to their military units, but when the German government began to remove able-bodied persons of 1 It is evident, however, said the British note, from the foregoing observations that the principle (often contended for in the past by certain continental nations) that there are certain classes of persons who are not protected by a neutral flag on the high seas and may therefore, without any invasion of the sovereign rights of the neutral, be removed from a neutral ship, is now generally admitted. The carriage of such persons may in some cases amount to unneutral service rendering the ship liable to condemnation; but even when this is not so, the removal of such persons from a neutral ship by a belligerent does not justify any complaint by the neutral state concerned. PERSONS LIABLE TO SEIZURE 367 military age from the occupied portions of Belgium and France, the British government then notified neutral powers that it could no longer accept the restrictive interpretation placed for practical reasons on article 47, and that it would in the future arrest all enemy reservists found on board neutral ships on the high seas, no matter where they might be met.' It was of the greatest importance, he added, for a belligerent power to intercept not only mobilized members of the opposing army who might be found travelling on neutral ships, but also agents sent by the enemy to injure his opponents abroad. It appears that subsequently the British government released such of the persons taken from the China as were found to be over military age or who were not in any sense reservists, but all others were detained as prisoners of war. $541. What Persons are Liable to Seizure on Neutral Vessels? The right of a belligerent to remove from neutral vessels military persons (militaires) has long been recognized and in practice exercised, and it was finally sanctioned by the Declaration of London, although article 47 limits the right to persons who are "embodied" in the armed forces of the enemy, that is, those who actually constitute a part of the military forces. This limitation would therefore seem to prohibit the seizure of so-called "noxious persons," other than those actually incorporated in the army.2 Military persons were assimilated by the older writers to the character of contraband and were often referred to as "analogues of contraband." Some writers, however, held that the conveyance of contraband is a different thing and is governed by different rules.3 But the great majority of writers treat the 1 This note was dated November 1, 1914, and reads as follows: "In view of the action taken by the German forces in Belgium and France of removing, as prisoners of war, all persons who are liable to military service, His Majesty's Government have given instructions that all enemy reservists on board neutral vessels should be made prisoners of war." 2 Dana (ed. of Wheaton, 656, note) doubted whether the right to take "noxious persons" from neutral vessels existed apart from treaty right. But even in the absence of treaty stipulations a strong argument can be made in favor of the right to take off such persons (cf. Atherley-Jones, Commerce in War, p. 310), and this right was affirmed by the Declaration of London. • The analogy between the transportation of military persons and the carriage of contraband goods is pronounced false by Dupuis (Le Droit de la Guerre Maritime, sec. 172) and by Kleen (Lois et Usages de la Neutralité, p. 455). The transportation of contraband goods, says Dupuis, is different in purpose and in effect from the transportation of persons in the military service of the enemy either as the carriage of contraband or as analogous thereto. Whether there is any real analogy between the two acts would seem to be of little practical consequence, for the effect is largely the same. Indeed, says Phillimore, the consequences of the transportation of military persons and despatches may extend far beyond those resulting from the exportation of any contraband that can be conveyed to the enemy, since manifestly by the carriage of despatches the most important operations of a belligerent may be promoted or obstructed. Whereas in the case of the transportation of contraband goods the quantity of the articles carried may be a material circumstance, still the smaller despatch may suffice to turn the fortune of war in favor of a particular belligerent.' If therefore it is permissible for a belligerent to intercept contraband goods going to the enemy, it is all the more important that he should be allowed to intercept military persons and despatches. § 542. Views of the Authorities. The Declaration of London, as stated above, expressly recognizes the right to take off persons "embodied in the armed forces" of the enemy, but there is a difference of opinion as to the meaning of this phrase. Referring to the doubt concerning its meaning, the general report of the drafting committee of the International Naval Conference expressed the opinion that reservists, i.e., individuals who are returning home in response to a summons to fulfil their military obligations, are not to be considered as being embodied in the sense of articles 45 and 47 in the armed forces. Apart from provisions of municipal law to the contrary, this opinion, it was added, was "more in accordance with practical necessity and transportation of persons, the purpose of the former being commercial gain, whereas the effect if not the purpose of the latter is direct assistance to one of the belligerents. Secretary Seward in his defence of the seizure of Mason and Slidell stated that all writers and judges considered “naval and military persons in the service of the enemy as contraband of war." Hall, criticizing Seward's statement, remarks that he produced no proof in support of his assertion. It is to be regretted, says Hall, that Lord Russell did not address himself to the refutation of the doctrine that persons can be contraband of war. Int. Law, 3d ed., p. 684. Montague Bernard was of the same opinion. "It is incorrect," he said, "to speak of the conveyance of persons in the military or civil employment of a belligerent as if it were the same thing as the conveyance of contraband of war, or as if the same rule were applicable to it. It is a different thing and the rules applicable to it are different." Neutrality of Great Britain during the American Civil War, p. 224. Int. Law, Vol. III, sec. 271. VIEWS OF THE AUTHORITIES has been accepted by all in a spirit of conciliation." 2 8 4 5 10 6 369 Bent wich, Higgins,3 Dupuis Bluntschli, Perels, Marquardsen,' Lawrence, Kleen,' Montague Bernard, and many others take the same view, namely, that the subjects of an enemy State at the outbreak of the war who have been summoned to join the colors, but who have not yet actually done so, and who are travelling as ordinary passengers without uniform or organization, cannot lawfully be taken from a neutral vessel, and such carriage does not incriminate the vessel, unless the voyage is undertaken especially for their transport. The Institute of International Law at its session of 1896 adopted a resolution denying the right of neutral vessels to transport troops for the benefit of a belligerent, but expressly excepted from the operation of the rule those "who were not yet in the military service of a belligerent even though their intention is to enter it, or who make the voyage as simple passengers without manifest connection with military service." This rule was ultimately embodied in the Manuel des Lois de la Guerre Maritime adopted by the Institute in 1913.12 According to this view, therefore, 1 House of Commons Sessional Papers, Vol. 54, No. 4 (1909), p. 53. The Declaration of London, p. 89. 3 The Hague Peace Conferences, p. 594. • Le Droit de la Guerre Maritime d'après les Conférences de la Haye et Londres, P. 339. Le Droit Int. Cod., sec. 815. • Droit Maritime Int. (French trans. by Arendt), sec. 47. Perels holds that all individuals who are returning home with the intention of engaging in military or naval operations are not liable to seizure, but only those who are already in the strict sense of the word a part of the army. 7 Der Trent Fall, ch. 10. 8 Principles of Int. Law, 4th ed., p. 728. This interpretation, says Lawrence, is important in view of the large number of emigrant reservists who will be returning to the colors in the event of the outbreak of war. • Lois et Usages de la Neutralité, Vol. I, p. 463. Kleen emphasizes the fact that intention to enlist does not confer the military character. The individual must be an actual part of the military forces in order to justify his seizure as a prisoner of war. Moreover, the number of such persons is irrelevant, and it would be impracticable to prescribe a maximum. 10 Neutrality of Great Britain During the American Civil War, p. 223. " Annuaire, Vol. XV, pp. 231–232. 12 M. Fauchille, however, wished to have the rule applied to reservists, but upon the request of certain members of the Institute who pointed out that such an extension would not be in harmony with the Declaration of London, he withdrew his proposal. See ibid., pp. 104 and 297; also Vol. XXI, pp. 116, 304. The question of what persons were liable to seizure as miltaires on neutral vessels was discussed at the Second Hague Conference in connection with the subject of conVOL. II-24 |