Imágenes de páginas
PDF
EPUB

custody he was held. It is not admitted that the right to prosecute him for violating American laws in 1915 was dependent upon the procedure adopted by Great Britain in effecting his arrest. The general right to subject Rintelen to criminal prosecution before an American tribunal could be fairly challenged by Germany only on the ground that the United States had itself unlawfully removed or secured him from German custody. Such was not the case.

It may be suggested that as an enemy person attached to a military service, Rintelen was entitled to special immunities. It is not understood, however, that by virtue of international law a person normally entitled to the benefits of treatment commonly accorded a prisoner of war, is exempt from prosecution for criminal acts committed prior to his captivity and in time of peace. Thus, according to Section 71 of the Rules of Land Warfare issued by the Office of the Chief of Staff of the United States Army, under date of April 15, 1917, “A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own army."

The acts laid at the door of Rintelen deserve brief attention. In May, 1917, he was convicted of having violated, prior to his departure from the United States, the Sherman antitrust law through the attempt to prevent the shipment of munitions abroad. In November, 1917, he pleaded guilty to a charge of conspiring to defraud the United States by fraudulently obtaining a passport in 1915. In February, 1918, he was convicted of having attempted to blow up the British transport Kirk Oswald in 1915. As the commission of this offense was prior to the enactment of the Espionage Act, Rintelen was subject to the relatively light penalty (eighteen months' imprisonment and a fine of $2000) prescribed by an earlier section of the Federal Criminal Code. In imposing sentence, the District Judge expressed regret that it did not lie within his power “to deal out adequate punishment."

Germany could not undertake to ratify these activities within the territory and against the sovereignty of a state with which it was then at peace, without subjecting itself to lasting censure. Nor would imperial ratification have deprived the United States of its normal right of jurisdiction. The case of Rintelen bears no resemblance to the extraordinary situation when, after a Canadian force had, in 1837 on grounds of self-defense, entered American territory and destroyed the steamer Caroline, causing the death of certain of its occupants,

the British Government saw fit to ratify the acts of the participants and thereby to endeavor to exempt one of them from prosecution.

As to the propriety of the threat to make reprisals, the response of Secretary Lansing, dated June 4th, set forth definitely the position of his country. He said:

The threat of the German Government to retaliate by making Americans in Germany suffer clearly implies that the Government proposes to adopt the principle that reprisals occasioning physical suffering are legitimate and necessary in order to enforce demands from one belligerent to another. The Government of the United States acknowledges no such principle and would suggest that it would be wise for the German Government to consider that if it acts upon that principle, it will inevitably be understood to invite similar reciprocal action on the part of the United States with respect to the great numbers of German subjects in this country.

These words admit rather than deny that a belligerent can not dispense with retaliation. They emphasize and suggest, however, vitally important conditions which must exist before resort can be lawfully had to measures of so-called reprisal, and before a threat to have recourse thereto can be justly made. If, for example, the enemies of Germany had at the outset of the war in the course of offensive operations undertaken to bombard undefended places, single out hospitals as objectives for attack, poison wells, deny quarter, torture prisoners, make perfidious use of flags of truce, and employ the Red Cross as a shield for guns, the shocked and outraged Teutons might well have engaged in sternest measures of protective retribution. Justification would have been due to the acknowledged lawlessness of the conduct sought to be checked. On the other hand, neither Germany nor any other state taking part in war has the right under the law of nations to inflict or threaten to inflict injury upon innocent enemy persons within its control as a means of preventing its adversary from exercising its lawful rights as a belligerent or its normal rights of jurisdiction as a sovereign. To embark upon measures of reprisal in order to compel a state not to do what it has a right to do, is as lawless on principle as the act of a highway robber or a blackmailer. If, on account of war, a belligerent attempts to excuse such conduct towards its adversary on the ground of military exigency, it squarely takes the position that there are no laws of war which it is bound to heed with respect to the enemy when a strategic or other advantage to itself is thereby forfeited. This is doubtless the basis of the German theory of Notrecht. But it is not one which has prevailed among civilized states generally;

nor is it likely to, unless Teutonic philosophy pervades and overcomes the world.

The German Foreign Office is believed to be too conversant with the principles of jurisdiction to maintain seriously that the United States has violated international law in establishing Rintelen's guilt and in dealing with him as a criminal. The suggestion that the treatment of him as such constitutes internationally illegal conduct must be taken to be merely a pretext for a threat to resort to illegal measures which, even as so disguised, is none the less perceived in its true aspect. The nature of the effort to bring about the release of this particular individual betrays the fact that German authority in Imperial hands is still obsessed with an amazingly distorted notion of American character and institutions. No proposal accompanied by such a threat could have won acceptance here. Nor is any pro

Nor is any proposal concerning the action of the United States, likely to fare better if acceptance necessitates the perversion of criminal justice.

CHARLES CHENEY HYDE.

IN MEMORIAM

LOUIS RENAULT

International law has lost its most distinguished exponent in the death of Monsieur Louis Renault on February 7, 1918, unexpectedly, without a suggestion of warning, after meeting his class on that day, and for the last time. A Frenchman by birth and the trusted adviser and representative of the French Government on numerous occasions, he was yet a citizen of the world, revered by his former students, holding honorable and responsible positions in well-nigh every country, respected by foreign governments, and treated with deference by their delegates in international conferences, where power and political considerations too often outweigh merit and the regard for justice. Well advanced in years — he was born on May 21, 1843 — he might reasonably have hoped to render still further services to international law and to his country in its defense of that law, in the conference at the close of the war, of which he would undoubtedly have been a member. And if he had thus rounded out the labors of a lifetime, he would have made humanity still further his debtor.

Monsieur Renault was a teacher by profession; an international lawyer by practice; a writer on occasion. He entered the Paris Law School as a student in 1861, and, after a course of exceptional distinction, graduated with highest honors. From 1868 to 1873 he was professor of Roman and of commercial law in the University of Dijon, and from 1873 until the very day of his death, he was professor in the Faculty of Law of the University of Paris. For the first three months after his transfer to Paris he taught criminal law, substituting for the professor of that subject. During 1874–1875 he substituted for the professor of international law, and continued, after the death of the titular professor in that year, in charge of the course until 1881, when he himself was appointed to the chair of international law, occupied by Royer-Collard from 1830 to 1864 (for whom it was originally created), and by Charles Giraud from 1865 to 1875. In addition, he was professor of international law in the School of Political Sciences, and in both of these positions he came into contact with students from all countries, whom he largely attracted by his presence in the Faculty of Law and in the School of Political Sciences, where he taught the law of nations as a branch of general jurisprudence and of positive law, bringing to its exposition and its application the conceptions of the philosopher, the experience of the historian, and the training of the jurist. His success in the classroom was phenomenal and would alone have placed him among the glories of each of the institutions with which he was connected. He was, as he himself modestly said, a professor at heart.

His career as a practitioner of international law began in 1890, when he was appointed jurisconsult of the Ministry for Foreign Affairs by M. Ribot, then Minister for Foreign Affairs, who had the post specially created for him. From his entrance upon the performance of its duties until his death he was the one authority in international law upon whom the Republic relied. Under his eye the foreign policy of France passed in so far as it depended upon the law of nations; through his hands the projects of the Foreign Office passed, putting into effect the principles of international justice, directed and controlled in each instance by a generous, enlightened, seasoned, and passionately honest intellect. In appreciation of his services in the Ministry for Foreign Affairs he was accorded the titular rank of Minister Plenipotentiary and Envoy Extraordinary.

It would be wearisome to enumerate the international gatherings in which he represented his government and where, respected as a

the United States could not hope to triumph. M. Renault entered 608 THE AMERICAN JOURNAL OF INTERNATIONAL LAW plenipotentiary of France, he gradually became recognized as the counselor of the conference and of its members as well.

In the different and yet not unrelated field of international arbitration he enjoyed a preëminence which was not contested by his contemporaries, and as arbiter he both won and merited the approbation of the nations in dispute.

Of the many international congresses in which he participated the two Hague Peace Conferences and the London Naval Conference of 1908–1909 may be mentioned. In the first of these M. Renault was reporter of the Second Commission, which adapted the principles of the Geneva Convention to maritime warfare, and he was also reporter as well as member of the most important committee of the conference, appointed to draft the Final Act of its labors.

In the second of the Hague Peace Conferences M. Léon Bourgeois appropriately referred to him as exercising "a sort of magistracy”; and it may be said — indeed, it is not too much to say — without disrespect to any of his colleagues, that that august body consisted of two groups of members: M. Renault and the other delegates. He was both chairman and reporter of the committee to draft the Final Act, and he made its oral report to the Conference; he was reporter for the convention relating to the opening of hostilities, for the revised convention adapting the principles of the Geneva Convention to maritime warfare, for the convention creating an international prize court, and for the convention on the rights and duties of neutral Powers in naval war.

He ably seconded M. Léon Bourgeois, first delegate of France at both the Hague Conferences, to whom is justly due the credit for the peaceful settlement convention of the first and

the success of the second, in so far as it succeeded, in the matter of arbitration and peaceful settlement.

But, in addition to his duties as a plenipotentiary of France, he was in a very real sense the friend and adviser of the delegates at large, working in harmony with the German delegation, on the one hand, and the British delegation, on the other, and placing himself unreservedly, in and out of the conference, at the disposal of the American delegates. One instance among many may be cited. A Belgian delegate was anxious to present a project guaranteeing in a very large measure the immunity of private property, foreseeing that the plan presented by

the conference chamber while the Belgian delegate was at work on a

« AnteriorContinuar »