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(4) When a river is given as the boundary between two States, each has jurisdiction to the center of the main navigable channel.8 But when a channel changes from one side of an island to the other, the island remains within the same jurisdiction as before. 82
(5) As between private parties, a sudden change in the course of a stream (avulsion) leaves the boundary where it was, but gradual changes by erosion and accretion also change the boundary by carrying it in the middle of the main navigable channel.83
(6) If the bank of a stream is specifically given as the boundary, it is the bank at the usual height of the stream without regard to sudden freshets or unusual droughts.
(7) When two States lie on different parts of a non-navigable stream, each is entitled to an equitable division of the water for purposes of irrigation. The common law principle of the right of owners on streams to the undisturbed flow of the water would of course prevent any extensive systems of irrigation. The principle of equitable division, as stated by the Supreme Court in the case of Kansas v. Colorado, 85 is an elastic principle, like the rule of reason,” capable of interpretation in accordance with changing public needs. It seems to mean that water may be taken in such a way as to do the greatest good to the greatest number. In similar cases the court would probably balance the benefit to the settlers upstream against losses down stream, though serious injury to vested interests down stream would probably be regarded as violations of equity.
The powers of the Supreme Court to settle disputes between States, taken up reluctantly and with extreme caution, have kept pace with the development of national power, have broadened in their scope and become more elastic with the years, and without the necessity to use force or even to hint at it except in the rarest cases, have become an example to the nations of the constructive possibilities of reason in a world of ever-recurring controversies and disputes. There are few more significant developments in the history of modern jurisprudence.
81 Iowa v. Illinois, 147 U. S. 1; Arkansas v. Tennessee, 246 U. S. 158. 82 Indiana v. Kentucky, 136 U. S. 479; Washington v. Oregon, 211 U. S. 127.
83 Arkansas v. Tennessee, 246 U. S. 158; Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23.
84 Alabama v. Georgia, 23 Howard 505. Although the boundary of Kentucky reaches "low" water mark on the north shore of the Ohio, and though Maryland reaches "low" water mark on the south shore of the Potomac, a careful reading of the cases involved shows that these are not really exceptions to the rule laid down in Alabama v. Georgia. The word "low" is used with reference to freshets rather than to more unusual droughts. Handley's Lessee v. Anthony, 5 Wheaton 374; Maryland v. West Virginia, 217 U. S. 1.
85 Kansas v. Colorado, 185 U, S. 125, 206 U. S. 46.
PUNISHMENT OF OFFENDERS AGAINST THE LAWS
AND CUSTOMS OF WAR
By JAMES W. GARNER
Professor of Political Science, University of Illinois THE treaty of peace between Germany and the Allied and Associated Powers, signed at Versailles on the 28th of June, 1919, formally sanctioned the principle that individuals belonging to the armed or naval forces of the adversary, as well as his civil functionaries, are responsible under military law for offenses against the laws and customs of war and may be tried and punished for such offences.
The treaty declares that Germany recognizes “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” It adds: “Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies."
The treaty further requires Germany to hand over to the Allied and Associated Powers, or to such of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities, and to furnish “all documents and information of every kind, the production of which may be considered necessary to the full knowledge of the incriminating facts, the discovery of offenders, and the just appreciation of responsibility.
This appears to be the first treaty of peace in which an attempt
1 Articles 228, 230. Identical provisions are contained in the treaty with Austria (Arts. 173, 175), but there appear to be no such stipulations in the treaty with Bulgaria.
has been made by the victorious belligerent to enforce against the defeated adversary the application of the principle of individual responsibility for criminal acts committed during war by members of his armed forces against the persons or property of the other party?
It is proposed in this paper to examine the general principle of the criminal responsibility of individual violators of the laws of war, and to consider some of the questions that have already risen and are likely to arise in connection with the attempt to apply it in practice against Germans charged with having committed such offences.
The principle that the individual soldier who commits acts in violation of the laws of war, when those acts are at the same time offences against the general criminal law, should be liable to trial and punishment by the courts of the injured adversary, in case he falls into the hands of the authorities thereof, has long been maintained by some writers, and in 1880 it was expressly affirmed by the Institute of International Law. Article 84 of its Manual of the Laws of War on Land, adopted at Oxford in that year, declared that if any of the rules thereof were violated, “the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are." It was further added that “offenders against the laws of war are liable to the punishments specified in the penal or criminal law,” whenever the person of the offender could be secured.
The many shocking acts committed by German soldiers in Belgium and France during the late war in violation of the laws and customs of wart revived interest in the subject, and already there is an extensive literature dealing with it. All writers who have discussed the subject are in agreement that certain acts committed by soldiers are none the less criminal because they are committed during war. Such are acts of pillage, theft, incendiarism, violence, rape, robbery, assassination, maltreatment of prisoners and the like. The late Pro
2 The late Professor Renault, speaking before the French General Prison Society in 1915, referred to a suggestion that he had received, to the effect that in the treaty of peace a clause should be inserted requiring the delivery up of the principal offenders against the laws of war. Regarding the suggestion, M. Renault said: "I do not see how a government, even if conquered, could consent to such a clause; it would be the abdication of all its dignity; moreover, almost always, it is upon superior order that infractions of the law of nations have been committed. I have found the proposal excessive, though I understand the sentiment that inspired it. I cite it because it shows well to what point men, animated by justice and shocked by what has taken place, desire that the monstrosities of which French and Belgians have been victims should not go unpunished.” 25 Rev. Gén. de Droit Int. Pub., p. 25; also 39 Rev. Pénitentiaire,
3 Annuaire de l'Institut, 1881-1882, p. 174.
4 The report of the Peace Conference Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties contains a catalogue of the breaches of the laws and customs of war committed by the armed and naval forces of the German Empire and their allies during the late war. The list embraces 32 categories of acts, many of which were crimes under the common law. The report is printed in English by the Carnegie Endowment for International Peace and is reprinted herein, infra, p. 95.
5 See, especially, Renault, “de l’Application du Droit Pénal aux faits de Guerre,” 25 Rev. Gén. de Droit Int. Pub. (1918), pp. 5 ff., also his address before the Société Générale des Prisons, 39 Rev. Pénitentiaire, pp. 406 ff. (1915); Pic, “Violations des Lois de la Guerre, Les Sanctions Nécessaires,” 23 Rev. Gén., pp. 261 ff. (1916); Feraud-Giraud, Recours en Raison des Dommages causés par la Guerre; Dumas, Les Sanctions Pénales des Crimes Allemands (1916); Meringhac, “Sanctions des Infractions au Droit des Gens Commissés au cours de la Guerre Européenne,” 24 Rev. Gén. (1917), pp. 10 ff.; Bellot, "War Crimes, Their Prevention and Punishment,” Grotius Society, Pubs. II, 46; Fauchille, L'Evacuation des Ters, occupés par l'Allemagne dans le Nord de la France; Tchernoff, Revue Politique et Parlementaire, July, 1915; Nast, "Les Sanctions Pénales de l'Enlèvement par les Allemands du Matériel Industrielle en Territoires français et belges occupés par leur troupes," 26 Rev. Gén. (1919), pp. 111 ff.; L. D., "Des Sanctions à établir pour la répression des Crimes commis par les Allemands en violation du Droit des Gens et des Traités Internationaux," 44 Clunet, pp. 125 ff.; and the report of MM. Larnaude and Lapradelle entitled Examen de la Responsabilité pénale de l'Empereur Guillaume II d'Allemagne, 46 Clunet, pp. 131 ff., and the report of the Peace Conference Commission on the Responsibility of the Authors of the War. The subject was discussed at length by a group of distinguished French jurists at several sessions of the Société Générale des Prisons in 1915 and 1916. See, especially, the addresses of Garraud, Larnaude, Garcon, Renault, Clunet, Pillet and Weiss. English and American authorities, of course, are not lacking who have supported the doctrine of indi. vidual criminal responsibility. Both Prime Ministers Asquith and Lloyd-George publicly declared that Germans guilty of committing criminal acts against British soldiers would, in case they fell into the hands of the authorities, be tried and punished. Sir Frederick Smith, while Attorney-General of England, also advocated the trial and punishment of such persons. See, also, the remarks of Mr. E. P. Wheeler, an American lawyer, in the Proceedings of the American Society of International Law, 1917, p. 36, and of Professor T. S. Woolsey, ibid., 1915, pp. 62 ff.