made arrangements with certain steamship companies according to which their mail-boats have to be constructed on plans approved by the Government, have to be commanded by officers of the French navy, and have to be incorporated in the French navy at the outbreak of war. Great Britain has entered from 1887 onwards into agreements with several powerful British steamship companies for the purpose of securing their vessels at the outbreak of hostilities, and the United States of America in 1892 made similar arrangements with the American Line.1 But it must be specially observed that a proper commission must be given to each vessel belonging to a volunteer fleet and the like, and that such vessels cannot alternately claim the character of belligerent men-of-war and of merchantmen. A remarkable case of this kind is that of the "Peterburg" and the "Smolensk," which occurred during the Russo-Japanese war.2 On July 4 and 6, 1904, these vessels, which belonged to the Russian volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and the Dardanelles, which are closed 3 to men-of-war of all nations, because they were flying the Russian commercial flag. They likewise passed the Suez Canal under their commercial flag, but after leaving Suez they converted themselves into men-ofwar by hoisting the Russian war flag, and began to exercise over neutral merchantmen all rights of supervision which belligerents can claim for their cruisers in time of war. On July 13 the "Peterburg captured the British P. & O. steamer "Malacca for alleged carriage of contraband, and put a prize 1 See Lawrence, § 224, and these vessels in Lawrence, War, Dupuis, Nos. 87-88. pp. 205 seq. See above, Vol. I. § 197. See the details of the career of The Crews of Mer crew on board for the purpose of navigating her to Libau. But the British Government protested; the "Malacca" was released at Algiers on her way to Libau on July 27, and Russia agreed that the "Peterburg" and the "Smolensk" should no longer act as cruisers, and that all neutral vessels captured by them should be released. § 85. In a sense the crews of merchantmen chantmen. Owned by subjects of the belligerents belong to the latter's armed forces. For those vessels are liable to be seized by enemy men-of-war, and if attacked for that purpose they can defend themselves, can return the attack, and eventually seize the attacking men-ofwar. The crews of merchantmen become in such cases combatants, and enjoy all the privileges of the members of armed forces. But unless attacked they must not commit hostilities, and if they do so they are liable to be treated as criminals just like private individuals committing hostilities in land warfare.1 Deserters and Traitors. § 86. The privileges of members of armed forces cannot be claimed for members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They can be, and always are, treated as criminals. And the like is valid with regard to such treasonable subjects of a belligerent as, without having been members of his armed forces, are fighting in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.2 1 See Hall, § 183. 2 See below, § 222, and Hall, § 190. VII ENEMY CHARACTER Hall, §§ 167-175-Lawrence, $$ 169-183-Phillimore, III. §§ 82-86- Character § 87. Since the belligerents, for the realisation of On the purpose of war, are entitled to many kinds of Enemy measures against enemy persons and enemy property, in general. the question must be settled as to what persons and what property are vested with enemy character. Now it is, generally speaking, correct to say that, whereas all the subjects of the belligerents and all the property of such subjects bear enemy character, the subjects of neutral States and the property of such subjects do not bear enemy character. This rule has, however, important exceptions. For under certain circumstances and conditions enemy persons and property of enemy subjects may not bear, and, on the other hand, subjects of neutral States and their property may bear, enemy character. And it is even possible that a subject of a belligerent may for some parts bear enemy character as between himself and his home State.1 1 It is impossible to reproduce in a treatise all the details concerning enemy character as worked out by the verdicts of British and American Courts. The following §§ 88-92 attempt to map out the subject under precisely defined and broad principles only, leaving the details to the study of the following leading cases: The Vigilantia, I Rob. I; the Harmony, 2 Rob. 322; the Indian Chief, 3 Rob. 12; the Portland, VOL. II. 3 Rob. 44; the Anna Catherina, H Subjects § 88. When after the outbreak of war the subject of Neutral of a neutral State enters into or remains in the armed States services to Belligerents. rendering forces or in the civil service of a belligerent, he acquires thereby enemy character to the same extent as an enemy subject. All measures that are allowed during war against enemy subjects are likewise allowed against such subjects of neutrals who have acquired enemy character. Thus, during the late South African War hundreds of subjects of neutral States who were fighting in the ranks of the Boers were captured by Great Britain and retained as prisoners of war till the end of the struggle. On the other hand, when a subject of a neutral State does not enter the armed forces of a belligerent, but only renders certain specific services to a belligerent, he acquires enemy character to the extent only of such specific services, and every case of such kind must be judged on its own merits. Thus, carriage of contraband and of analogous of contraband are instances of such services.1 A subject of a neutral State can even before the outbreak of war to such a degree identify himself or his property with an intending belligerent, that war can be commenced by an attack2 property. upon his person or his A remarkable case of that kind occurred at the outbreak of the Chino-Japanese War in 1894. generally recognised on all points, 1 There is no doubt that neutral belligerent fleet en route, as happened during the Russo-Japanese war when the Baltic Fleet went out to the Far East, bear enemy character. See also below, § 289, concerning the "Rule of 1756." 2 See Hall, § 168*; Takahashi, Cases on International Law during the Chino-Japanese War (1899), pp. 27-51; Holland, Studies, pp. 126-128 On July 14, the "Kow-shing," a British ship, was hired at Shanghai by the Chinese Government to serve as a transport for eleven hundred Chinese soldiers and also for arms and ammunition from Tien-tsin to Korea. She was met on July 25 near the island of Phung-do, in Korean waters, by the Japanese fleet; she was signalled to stop, was visited by some prize officers, and, as it was apparent that she was a transport for Chinese soldiers, she was ordered to follow the Japanese cruiser "Naniwa." But although the British captain of the vessel was ready to follow these orders, the Chinese on board would not allow him to do so. Thereupon, after some further negotiation in vain, the Japanese opened fire and sank the vessel. subjects abroad. § 89. Enemy subjects having their permanent Enemy residence abroad on the territory of a neutral State domiciled for the purpose of commerce or pleasure do not bear enemy character, nor does their property abroad. For although they are enemy subjects, and might return to their home State and take up arms, they are for the time being under the control of a neutral State, and are thereby prevented from carrying on hostilities of any kind. They are, therefore, for all practical purposes, considered neutrals, and the neutral on whose territory they reside can claim that their property, although found on captured enemy ships, is not to be appropriated. of Neutral domiciled on Belli § 90. On the other hand, subjects of neutral Subjects States domiciled on the territories of the belligerents States acquire in a sense enemy character, for they contribute by their payment of taxes to the support of gerents' the belligerents. And although they cannot be required to take up arms, they belong to the territory. |