to appropriate enemy private property whenever it is "imperatively demanded by the necessities of war." This plea of necessity, however, can hardly be defended.1 What was intended, and this alone, was to authorize the seizure or destruction of private property only in exceptional cases when it was an imperative necessity for the conduct of his military operations in the locality where it was situated or for the execution of measures of occupation.2 This interpretation is further strengthened by Article 46 of the convention which requires belligerents to respect enemy private property and which forbids confiscation, and by Article 47 which formally prohibits pillage. The Kriegsbrauch im Landkriege itself declares that the carrying away of enemy private property from occupied territory must be regarded as criminal robbery and be punished accordingly." 3

It would seem therefore that the acts complained of were not lawful acts of war but that they constituted the crime of theft which is punishable by the criminal law of all countries and the crime having been committed within French territory, though under hostile occupation, all persons participating directly or indirectly in the seizure and transportation to Germany of the said machinery were liable to trial and punishment by the French criminal courts. But among those arrested were a number of German manufacturers who had purchased the French machinery of others but who had not participated themselves directly or indirectly in its removal from France. Could they also be tried by the French courts on the charge of having received stolen property (recel)? The answer is no, since the act of receiving the property in question took place not in France but in Germany, and under Article 7 of the French code of criminal instruction the French courts are not competent to take jurisdiction of offences committed outside French territory except where they constitute attacks upon the safety of the State.5

1 See Supra, § 396.

2 Compare an article by Professor Nast of the University of Nancy entitled Les Sanctions Pénales de l'Enlèvement par les Allemands du Matériel Industriel, etc., 26 Rev. Gén. de Droit Int. Pub. (1919), pp. 111 ff.

• Morgan, War Book of the German General Staff, p. 170.

♦ M. Nast thinks, however, that those persons who were forced by the German authorities to assist in the removal of the machinery could not be held responsible. Art. cited p. 123.

This is the conclusion of M. Nast in the article cited p. 123.

TRIAL OF OFFENDERS IN ABSENTIA

481

§ 586. Jurisdiction of Crimes on the High Seas. Another question which arises in connection with the application of the criminal law to individual acts committed in violation of the laws of war is whether the criminal courts of a belligerent may take jurisdiction of offenders charged with the unlawful destruction of their merchant vessels on the high seas and the drowning of their crews and passengers or with attacks upon hospital ships, of which there were many cases during the late war. The names of many German submarine commanders guilty of such acts were known to the British and French authorities, and there is a general agreement that these acts were not lawful belligerent acts, but crimes under the common law of nations. The coroner's jury at Kinsale which held an inquest upon the death of the victims of the Lusitania, and the United States district court at New York both came to the conclusion that the sinking of the Lusitania was such a crime. The act having been committed without the territorial jurisdiction of Great Britain, would a British court be competent to try the commander of the submarine which torpedoed the vessel in case he should fall into the hands of the British authorities? It would seem that on the legal fiction that a merchant vessel is assimilable to floating territory of the country whose flag it flies, an unlawful attack upon it, on the high seas or elsewhere, which resulted in the death of the nationals of the State whose nationality it bears would fall within the jurisdiction of such State.1

8587. Trial of Offenders in their Absence. Still another question has arisen in connection with the attempt to apply the criminal law in the case of individual violators of the laws of

1 Compare the opinions of Coleridge, C. J., and Denman, J., in the case of Queen v. Keyn, 2 H. of L. Cases, 1; also the Report of Larnaude and Lapradelle, in 46 Clunet, p. 139. In May, 1919, the captain of the German submarine which sank the British hospital ship Glenart Castle was arrested by the British authorities, placed in the tower of London and held for trial. The legal department of the government is said to have ruled that the authorities had no right to detain him during the life of the Armistice, article 6 of which provided that in territories evacuated by the enemy no persons should be prosecuted for offences or participation in war measures prior to the signing of the Armistice, but the admiralty took the position that they had the right to arrest such offenders at any time and hold them for trial after peace was declared. The prisoner was released, however, on the ground that he was not liable to arrest until peace had been officially declared, but there was considerable criticism of the action of the government, especially by admiralty officials who had done much to trace the perpetrators of German submarine atrocities. N. Y. Times, May 10, and November 30, 1919.

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war, namely, whether an offender may be tried and condemned in his absence (condemnation par contumace, as French law terms it). As stated above, the names of many of the most flagrant offenders on the German side, especially among the higher commanders (e.g., Generals Stenger, Manteuffel, Von Bülow, Klauss and Mackensen, Prince Eitel Friederich, Crown Prince Rupprecht of Bavaria, the Duke of Brunswick and the Duke of Gronau) were well known to the British, Belgian and French authorities. The proclamations which they issued (e.g., General Stenger's order directing his soldiers to take no prisoners) or the towns which were destroyed by their orders constitute unimpeachable evidence of their guilt and their acts were so obviously contrary to the laws and customs of war that no legitimate defence could be pleaded if they were to appear in person at the trial. Some French jurists during the late war advocated this procedure and in several instances German offenders were indicted, though it does not appear that any of them were actually tried and condemned par contumace. In favor of this procedure it was argued that the evidence of guilt in many instances was so abundant in quantity and conclusive in character that there would be no injustice in pronouncing condemnation against the guilty parties in their absence; that the putting en lumière by means of a trial and condemnation, of the facts concerning atrocities committed would have a certain moral effect in that the condemned would henceforth stand before the world as convicted criminals; and that in the event of their conviction if they should subsequently come within the jurisdiction of the country they could be arrested and compelled to undergo the punishment imposed by the court.1 It is hardly likely that an American or English court could be induced to take jurisdiction of a case in which the accused was not present, even if it had the constitutional power, and in any case it may be seriously doubted whether anything would

1 Cf., e.g., Pic, 23 Rev. Gen. de Droit Int. Pub. (1916), p. 261. Renault (25 ibid., p. 24) and Merignhac (24 ibid., p. 47) think condemnation par contumace is rather a question of expediency than of law and Merignhac doubts whether it would ever be expedient. Trial under such circumstances would be difficult, witnesses would hesitate through fear to tell what they know, etc. See also the remarks of Commandant Jullien before the General Prison Society (40 Rev. Pénitentiaire, p. 110), who says the French law of contumacy never contemplated the trial in absentia of enemy soldiers charged with committing acts in violation of the laws of war. It is therefore inapplicable to such cases.

PLEA OF SUPERIOR COMMAND

483

be gained, since if the accused were convicted he would avoid the consequences by remaining outside the jurisdiction of the

court.

§ 588. The Plea of Superior Command. The most perplexing question, perhaps, of all those likely to arise in connection with the attempt to punish individual violators of the laws of war is whether the plea of command by a superior officer shall be admitted as a defence against the prosecution of a soldier charged with a crime committed by him while under arms. During the late war German soldiers again and again asserted in the presence of their victims that they had been ordered by their commanders to commit the acts against which the inhabitants protested, and which they themselves committed with reluctance. Some of the men who took part in the deportation of the civilian population of Belgium and France are said to have broken down under the strain of the scenes which they were compelled to witness and were arrested and punished by the higher military authorities for refusing to execute the orders which they had received.1 After the devastation of the Somme region in France certain diaries of German soldiers were found in which the writers recorded that they carried out the work of destruction with reluctance, knowing that it was not lawful warfare, and that they did it only because they had been ordered to do so.2 In July, 1915, a French council of war sitting at Rennes sentenced to death a Saxon soldier for pillage, incendiarism and assassination of wounded enemy soldiers on the field of battle. When arraigned before the council he pleaded the formal orders of his commander and he named the general from whom the order emanated and the lieutenant who compelled him to execute it. The court, having every reason to believe that the facts alleged by him were true; made a report of the same to the minister of war in order that he might recommend clemency in case he desired to do so.3 Another German soldier having been traduced before a council of war at Toulouse and condemned to twenty years of forced labor on the charge of having, in September, 1914, burned a house in the Oise and

1 Cf. Cyril Brown in the N. Y. Times of August 19, 1916.

2 Les Nouvelles (a Dutch Journal) of April 13, 1917, published a diary of this kind. See also Wythe Williams in the N. Y. Times of March 28, 1917.

3 24 Rev. Gen., p. 53.

wounded one of the inmates, who died the following evening, alleged that he acted under the orders of his captain.1 M. Renault related before the General Prison Society the case of a German officer who, when reproached for having committed certain acts in a Belgian village, replied: "Yes, I know it was contrary to the law of nations for I am a doctor of law; I did not wish to do it, but I did it in obedience to the formal order of the governor-general of Brussels."2 Who should be punished in such cases? The soldier who commits the crime or the officer who gives the order and directs its execution, or the commander from whom it emanates in the first instance, or all of them and any others to whom any share of the responsibility, immediate or ultimate, may be attributed? It is argued by some that it would be manifestly unjust to punish the soldier, who is compelled by his superior officer to commit the act and who does it only because he would himself be severely punished for disobedience of orders in case he refused. Obedience to orders is the first duty of a soldier, and it is absolutely necessary to military discipline. He cannot discuss or question the commands that are given him; he is not the judge of their legality or illegality; and if he were, his ignorance of the laws of war would in many cases make him an incompetent judge. A French officer speaking before the Société d'Economie Sociale of Paris in February, 1915, related that an intelligent young German soldier, when placed on trial before a council of war at Paris on the charge of pillage, alleged that the general in command had given the order to shoot civilians and to pillage the town, and the prisoner added gravely: "With us it is not good when the chief gives an order to refuse to execute it." Had he refused he probably would have been shot by his own commander. In such cases therefore justice, it is said, requires the punishment of the officer who is responsible for the order rather than the simple soldier who acts by constraint and who has no power of judgment or discretion. But there are practical procedural difficulties in the application of this principle, since it is not easy to determine the motives which animate a soldier in committing such an act. The mere allegation that he committed it because he was ordered to do so is not evidence. In fact 1 Ibid., p. 36. 2 39 Revue Pénitentiaire (1915), p. 427. Réforme Sociale, 1915, p. 202.