XXIX in writing not to serve on an enemy ship while the war lasted.1 CHAP. A similar exemption was accorded to nationals of the enemy state, provided the crew and officers alike made "a formal promise in writing, not to undertake, while hostilities last, any service connected with the operations of the war."2 The names of prisoners of war released under such conditions were to be communicated to the other belligerent, who was forbidden knowingly to employ the persons designated. These provisions were held, however, not to apply to "ships taking part in hostilities," a vague term including, doubtless, ships resisting capture, and, perhaps, ships acting as auxiliaries to men-of-war. ments of warfare: contact Until the beginning of the twentieth century no special prob- c. Instru lems were presented by the instruments of maritime warfare. The maritime restrictions in force for war on land applied in principle to war automatic at sea, but few definite issues were raised. During the Russso- mines Japanese War of 1904-05 the use by both parties of floating mines raised the question of a restriction upon such instruments, owing to the injury which they were capable of inflicting upon neutral and non-combatant ships. At the Hague Conference of 1907 the Convention relative to the Laying of Automatic Submarine Contact Mines was adopted, in which the contracting parties, recognizing that "the existing position of affairs" made it impossible to forbid the employment of such mines, sought to restrict and regulate their use both to mitigate the severity of war and to protect, as far as possible, peaceful navigation. A distinction was made by the convention between anchored and unanchored mines. The latter might not be laid "except when they are so constructed as to become harmless one hour at the most after the person who laid them ceases to control them." With this prohibition was included one against using torpedoes "which do not become harmless when they have missed their mark." In the case of the anchored mines an absolute prohibition was laid against such as do not "become harmless as soon as they have broken loose from their moorings. 1 78 Art. 5. For the text of the convention, see Malloy, Treaties, II, 2341; Hague Conventions, 182. Art. 8. For the case of the American prisoners of war taken to Germany on the prize-ship Yarrowdale, see Am. White Book, No. 4, Part XXII. The Chinese delegate to the Hague Peace Conference of 1907 complained that "from five to six hundred of our countrymen engaged in their peaceful occupations have there met a cruel death in consequence of these dangerous engines of war." Higgins, The Hague Peace Conferences, 329. • Preamble. 7 Art. I. 8 Art. I. CHAP. Practice during the World War Moreover, it was forbidden to lay anchored mines off the coast or ports of the enemy "with the sole object of intercepting commercial shipping." Further provisions stipulated that when anchored mines are used "every possible precaution must be taken for the security of peaceful shipping," and that at the close of the war belligerents must do their utmost to remove the mines which they have laid. The convention was frankly referred to at the conference as an unsatisfactory compromise, and as likely to be of little effect in view of the obvious loopholes in the law which conflicting views made it necessary to leave. Since the convention contained no provision forbidding the laying of mines on the high seas, Great Britain, believing such practice to be illegal, signed with the reservation that the absence of a particular prohibition in the convention must not be held to debar the British Government from contesting the legitimacy of the act in question.5 It should be observed that no reference was made in the convention to mines controlled by electrical apparatus on the shore, since these presented no dangers to peaceful shipping. On account of the failure of Russia to sign the convention, the belligerents in the World War were thrown back upon the uncertain customary law. Great Britain early announced that in view of the alleged indiscriminate laying of mines by Germany she might have to adopt similar measures in self-defense. On October 2, 1914, these threatened measures made their appearance, taking the form of a system of mine-fields in the southern portion of the North Sea, which was later extended over the whole of the North Sea. Germany replied, February 4, 1915, by proclaiming the waters surrounding the United Kingdom a "war-zone" in which enemy merchant ships would be destroyed without warning. A further extension by Great Britain of the North Sea area led to protests from the United States; but upon the entrance of the latter into the war an even more elaborate "North Sea barrage" was established, 1 Art. 2. 7 2 Art. 3. In signing the convention France and Germany made reservation of this article. 3 Art. 5. See, in particular, the statement of the British delegate, Sir Ernest Satow, to the effect that, having voted for the convention, the British delegation desired to declare that it cannot regard this arrangement as furnishing a final solution of the question,'' adequate account not having been taken of the right of neutral navigation to protection. Higgins, op. cit., 340 ff. Ibid., 342. See Phillipson, International Law and the Great War, Chap. XX. Am. White Book, I, 52 ff.; IV, 21 ff. Under date of February 19, 1917. Am. White Book, IV, 48. XXIX imposing severe restrictions upon neutral shipping. As a result of CHAP. the measures taken by the several belligerents, numerous neutral and enemy merchant ships were destroyed.1 of maritime The methods laid down by international law for the conduct of d. Methods maritime warfare parallel in a general way those prescribed for warfare war on land. As in the case of other rules of maritime warfare, they rest largely upon a basis of customary law. Several general conventions were, however, adopted at the Hague Conference of 1907 dealing with particular methods of 'maritime warfare, leaving other methods to be governed by existing rules. These conventions relate to the treatment of prisoners in naval warfare, the bombardment of coast towns, and the exercise of the right of capture in respect to enemy property of particular kinds. The rules prescribed reproduce on the whole the corresponding provisions of the Hague Convention respecting the Laws and Customs of War on Land. attacks By customary law it is forbidden, on sea as on land, to announce Surprise that no quarter will be given, to kill those who have laid down their arms, to refuse possible aid to those who are defenseless and at the mercy of the sea. The special circumstances of naval warfare appear, however, to justify the attack upon armed vessels by methods, such as the use of torpedoes and mines, which may make impossible the rescue of the crew of an armed vessel after it has ceased to offer resistance. Moreover, it is permissible to attack without warning unarmed public vessels, such as colliers, supplyships, repair-ships, and the like. The unarmed, but combatant, officers and crew of such vessels need not be given an opportunity to surrender. The use of deceit is as permissible between the belligerent forces in naval warfare as in land warfare. Ruses of any kind not involving perfidy may be resorted to. Usage more or less general sanctions the employment of false flags, whether enemy or neutral, as a stratagem to lead the enemy into action or to escape from him; but customary law definitely requires that the national flag must be shown before actual attack. The vague rule of the Hague Regulations forbidding a belligerent to make "improper use" of the national flag of the enemy left the customary law where it stood. The disguise of a merchant ship has been used by men-of-war to 2 For a general review of the situation, see Garner, op. cit., I, Chap. XIV. 'Art. 23f. Compare the more restricted use of false flags in warfare on land. Above, p. 467. For the question as to the use by a belligerent of a neutral flag as a means of deceiving the enemy, see Am. White Book, I, 55. The use of deceit : false flags CHAP. Treatment of prisoners take the enemy by surprise. During the World War, for example, both British and German ships resorted to such practices, either by erecting false funnels or by masking their batteries behind camouflaged fronts. Attack in secret, whether under cover of darkness or by submersed submarine, is permissible. Signs of distress, as a means of luring the enemy into a position where he may be taken unawares, are, however, generally condemned, since they involve a degree of perfidy in their urgent appeal for help.1 The treatment of prisoners in naval warfare has presented no special difficulties and has been impliedly covered by the regulations governing the treatment of prisoners in war on land. With respect to the treatment of the sick and wounded, however, the circumstances of maritime war differed sufficiently from those of land warfare to make it seem desirable at the Hague Conference of 1899 to draw up a separate Convention for the adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864. This convention was revised by the conference of 1907, so as to bring it more into accord with the revised Geneva Convention of 1906 and with the recent developments of naval warfare. The convention provided that military hospital ships, the names of which had been communicated to the belligerent powers, "shall be respected, and can not be captured while hostilities last." 5 The same provisions applied to hospital-ships equipped by private individuals or relief societies when holding an official commission from their government; or in the case of ships fitted out by neutrals, when under the control of the belligerent and when authorized by their own and by the belligerent government. All three classes of ships must afford relief to the sick and wounded of both belligerents alike, and none might be used by their governments for any military purpose. Provision was made for distinguishing marks by which the ships should be known. The inviolability of the hospital-ships themselves was extended in part to the sick wards of war-vessels, and to neutral ships which responded to an appeal to take on board the sick and wounded.10 The religious, 8 Vattel cites as a "detestable breach of good faith" the reported case of a British frigate which came within sight of the coast of France and made signals of distress in order to decoy a vessel to come to the rescue and thereupon seized the boat and made prisoners of the sailors who generously went to its aid." Droit des Gens (Eng. trans.), Bk. III, § 178. 2 See above, pp. 470 ff. 3 For the text of the convention, see Malloy, Treaties, II, 2035. Hague Conventions, 163. Art. 2, 3. 10 Art. 7, 9. XXIX medical, and hospital staff of a captured ship, as distinct from CHAP. combatant officers, were not made prisoners of war. Further provisions related to the care of disabled prisoners, the right of a belligerent warship to demand that the sick, wounded, or shipwrecked prisoners on board hospital-ships be handed over to it,2 the disposition of the sick and the wounded, their care in neutral ports, protection against pillage, and the burial and identification of the dead. during the During the World War hospital-ships of the Allied Powers Practice were in a number of cases attacked and sunk by German subma- World War rines. On the part of Germany it was urged, in a memorandum of January 28, 1917, that the vessels were in certain cases indistinguishable, and that they were being used not only for the purpose of giving aid to the sick and wounded but for military purposes as well. In view of alleged conclusive evidence of the latter charge, the German Government gave warning that thereafter all hospital-ships within a defined zone would be "considered as belligerents and would be attacked without further consideration." The charges were contested by the British Government, and warning was given of reprisals if the German threat was carried out; at the same time the use of distinctive marks of hospital-ships was discontinued. The attacks went on, and reprisals followed on both sides, but without effect upon the continued sinking of the ships.3 bardment towns The rules of both customary and conventional law with respect Bom to bombardment by naval forces parallel, in a general way, the of coast rules of war on land. Certain exceptional conditions of maritime warfare, however, led to the adoption by the Second Hague Conference of the Convention concerning Bombardment by Naval Forces in Time of War. The convention distinguished between defended and undefended towns and provided that, subject to certain exceptions, the latter might not be bombarded. The vagueness of the term "undefended" left the scope of the prohibition 1 Art. 10. 'Great Britain refused to agree to this provision, which had been urged by the United States delegate to prevent a repetition of the situation occurring in 1864 when a British vessel, the Deerhound, rescued, and gave the protection of a neutral flag to officers and sailors of the Confederate cruiser Alabama when defeated by the Kearsarge. See Proceedings of the Hague Peace Conferences, 1899, I, 391-392; 1907, III, 310. For a review of the controversy and of the facts alleged on both sides, see Garner, op. cit., I, §§ 319-327. For the text of the convention, see Malloy, Treaties, II, 2314. 'Including ports, villages, dwellings, or buildings. 0 Art. I. |