inhabitants and between the inhabitants of one belligerent State CHAP. and those of the other.”1

XXVIII

stice of

11, 1918

The agreement which came into effect on November 11, 1918, The armibetween the Allied and Associated Powers and Germany, while November designated as an "armistice" and conforming in its technical character to the pattern of a general armistice, was in the substance of its terms a capitulation. On the one hand, it was an agreement entered upon for the cessation of hostilities during a specified period of thirty-six days, with option of extension; and provision was made for its denunciation in case of non-execution, giving the injured party the right to renew hostilities. Moreover, the correspondence preceding the agreement stipulated that the treaty of peace which was to follow the armistice should be concluded upon certain definite principles known as the "fourteen points," with the exception of one point to which the Allied Powers made exception. On the other hand, the agreement contained military conditions which made it practically impossible for Germany to renew hostilities, whatever might be the final terms of peace with which she might be presented. Germany was required, among other things, to evacuate occupied territory, to surrender specified war material, to repatriate, without reciprocity, prisoners of war, and to acknowledge the obligation of making reparation for damage done. On the side of the Allied and Associated Powers, the armistice permitted the occupation of designated German territory of strategic importance as a guarantee of the fulfilment of the terms of the armistice, as well as the continued blockade of Germany by land and sea. Similar in character were the provisions of the armistice between the Allied and Associated Powers and AustriaHungary, Nóvember 3, 1918. In both cases the agreements amounted in fact to a surrender upon terms.2

A survival in the laws of war of the complete lawlessness of earlier times is to be seen in the practice of reprisals or retaliation as a sanction to prevent the continuation or recurrence of viola

Art. 39. There is dispute as to the meaning of the French phrase, avec les populations et entre elles, other versions reading "with the populations and with each other," "with and between the populations. "" The latter, offered by Spaight (op. cit., 232), has met with favorable comment. The present writer suggests "between the army and the inhabitants and between the inhabitants themselves on both sides of the line."

"For the texts of the armistices, see Am. Journal, XIII (1919), Supp., 80, 97. For the question as to whether the terms of the Treaty of Versailles were consistent with the terms of the armistice of November 11, see L. Rogers, The Relation of the Armistice and the Treaty of Versailles," Proceedings, Am. Society of Int. Law, 1923, 90-96.

h. Reprisals tion against conduct

as a sanc

unlawful

CHAP.
XXVIII

Their legality

Reprisals directed against

non-combatants

tions of the law. A serious offense is committed by one of the belligerents. The other belligerent thereupon orders that corresponding measures in excess of the law be taken as a means of impressing upon the other party the necessity of observing the law. In its turn the other belligerent, considering that the measures taken by way of retaliation are more severe than is warranted by the circumstances, puts into effect still more drastic measures, until the original offense is lost in a vicious circle of charges and counter-charges.

All of the national war codes appear to recognize the necessity of resorting to reprisals.1 The complete failure of the efforts at the Brussels Conference of 1874 to regulate them made it seem inadvisable at the Hague Conferences of 1899 and 1907 to reopen the question. Such rules as exist, therefore, are based upon practices too variable to permit the inference of an established custom. In general it may be said that reprisals are not resorted to as a means of punishment or revenge, but only as a means of securing the observance of the laws of war for the future. Hence the method of retaliation need not be identical with that of the offense, although it generally assumes a form approximating the latter in order that the relation between the two acts may be made more apparent. Again, since it is not as a rule possible to reach the guilty parties, retaliation may be carried out against enemy prisoners or others who have been guilty of no offense themselves.2 Owing to the grave character of the measures, it is generally prescribed that reprisals may only be ordered by a commanding officer, following a careful investigation of the act complained of.

The extent to which reprisals may be put into effect against non-combatants has been much debated as a matter of abstract justice, but in point of law it seems clear that non-combatants may claim no exemption. The burning of towns and villages has been a common form of retaliation. So also has been the practice of carrying off hostages, which assumed large proportions during the occupation of Belgium in 1914. A special form of protection against possible unlawful conduct has been the practice of "pro

1See, for example, Instructions, Nos. 27, 28; Rules of Land Warfare, No. 381. The Oxford Manual of 1880 offered two brief articles regulating reprisals. See Resolutions of Institute of International Law, 42.

All prisoners of war are liable to the infliction of retaliatory measures. Instructions, No. 59. For practice during the World War, see Garner, op. cit., II, §§ 349, 355, 357.

For the reprisals put into effect by the United States and Great Britain in the war of 1812-14, see Moore, Digest, VII, 183 ff.

XXVIII

phylactic reprisals," by which enemy prisoners or non-combatants CHAP. have been made to search for hidden mines or bombs, or to ride on the tender of railway trains, or to stand in the middle of a suspected bridge.1

During the World War the resort to reprisals confused at almost every turn the discussion of the legality of the conduct which gave rise to them. On both sides measures were taken which could only be defended by charging that the enemy had been guilty of other acts equally in excess of the law. The rules of blockade were extended, the submarine made war upon merchant shipping, airships bombed cities, and poisonous gases were resorted to, the ground of justification being the necessity of coercing the other belligerent to desist from other unlawful practices. A distinct question was presented in the position taken by the United States that measures of reprisal put into effect by belligerents must not affect injuriously the rights of neutrals.2

For instances, see Spaight, War Rights on Land, 462 ff.

'See the correspondence between the United States and Great Britain concerning the blockade decree of March 1, 1915. Am. White Book, I, 61 ff.; III, 25. See also Sir E. Richards, British Prize Courts and the War," British Year Book, 1920-21, 29 ff.; Stowell and Munro, Cases, II, 559, 608.

a. General aspects of

the laws of maritime

warfare

CHAPTER XXIX

THE LAWS OF MARITIME WARFARE

The laws of maritime warfare follow the general lines of the laws of war on land. Custom and convention have found it convenient to place them in a class by themselves, owing to the fact that they present special problems of their own and contain, in a few striking instances, principles not applied in land warfare. The sources from which the laws of maritime warfare are drawn are primarily the established customs of maritime powers, and secondarily the several international conventions adopted at the Second Hague Conference. While it was not found possible at either of the two Hague Conferences to adopt a general convention covering the rules of maritime warfare in the same comprehensive way in which the laws of warfare on land were covered, several special conventions were adopted which attempted to regulate limited portions of the field of maritime warfare. Having failed to reach an agreement upon a general convention, the Hague Conference of 1907, in the final act in which the results of the meeting were summed up, expressed the wish, among others, that "the preparation of regulations relative to the laws and customs of naval warfare should figure in the program of the next Conference, and that in any case the Powers may apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land." 1 While the "wishes" of the Hague Conference had no strictly legal validity, the wish above cited created at least a presumptive ground of justice for claims based upon inferences from the laws of land warfare where the existing usage of maritime warfare was not clear. During the World War the special conventions adopted at the Hague 2 were, like others

1

Malloy, Treaties, II, 2369; Hague Conventions, 29.

"These included the Convention relating to the Conversion of Merchant Ships into Warships (No. VII), the Convention relative to the Laying of Automatic Submarine Contact Mines (No. VIII), the Convention concerning Bombardment by Naval Forces in Time of War (No. IX), the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (No. X), and the Convention relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War (No. XI).

XXIX

adopted at the same conference, not technically binding, owing to CHAP. the failure of some of the belligerents to ratify them; but in so far as they embodied customary rules of warfare their individual provisions were binding upon that ground; and in cases where there was no clear rule of custom the provisions of the several conventions remained as evidence of what was regarded by the international community as the substantially just rule by inference from general principles.1

combatants:

The question of who may lawfully engage in hostilities at sea b. Lawful has been no less a subject of controversy than the question of who privateers may be lawful combatants in war on land.2 Down to 1856 there was no doubt that a belligerent might supplement its public armed vessels by accepting the volunteer services of privately owned and privately manned ships. These vessels, when properly commissioned by the state by the issuance of a letter of marque,3 were known as privateers, and they might include vessels owned and manned by citizens of either the belligerent state or neutral states. The prevailing rule of national law which rewarded the privateer by granting it a property right in the prizes taken by it provided the inducement needed. Following the Crimean War, in which the Allied powers refrained from issuing letters of marque, the conference at Paris put forth the Declaration of Paris of April 16, 1856, in which, in consideration of the fact that "maritime law, in time of war, has long been the subject of deplorable disputes," the contracting parties agreed, among other things, that "privateering is and remains abolished." The United States, although represented at the conference, was unwilling to sign the agreement in view of the failure of the conference to accept the Marcy Amend

5

4

It is important to observe that the chief practical difficulty that has arisen in connection with the rights of belligerents in maritime warfare has been the question as to what extent rules sanctioned by custom have been invalidated by a change of circumstances. In maritime warfare, more, doubtless, than in any other field, the change of circumstances within the past fifty years has been so fundamental as to call into question numerous rules with respect to which custom had established a relatively clear rule. See below, pp. 497, 512, 514. See above, p. 460.

The term as applied to commissions issued in time of war is to be distinguished from the letter of marque and reprisal issued in time of peace, and occasionally in time of war, to private vessels empowering them to make reprisals upon the merchant ships of a state from which they had suffered wrong. See above, p. 421, n. 4.

The motive for this action on the part of Great Britain and France was apparently the fear lest the subjects of neutral states, the United States in particular, might place their vessels at the disposal of Russia. See Moore, Digest, VII, 538 ff.

Art. I. For the text of the declaration, see Higgins, op. cit., 1.