Part IV. character imposed upon it by the authority of the Government from which all the documents issue, and the goods, whose character has no such dependence upon the authority of the State. In time of war a more strict principle may be necessary; but where the transaction takes place in peace, and without any expectation of war, the cargo ought not to be involved in the condemnation of the vessel, which, under these circumstances, is considered as incorporated into the navigation of that country whose flag and pass she bears (s). § 340a. The flag as evidence of ship's nationality. § 340b. Ownership of British ships. An exceptional case was decided by the French Conseil des Prises in 1872, in which a vessel was held not to be concluded as to her national character by the flag she carried. The Palme was, in 1871, captured by a French cruiser, on a voyage from Accra to Bremen. She carried the German flag, and was therefore prima facie lawful prize. Evidence was produced which showed that The Palme was a German-built vessel; that in 1866 she was sold to the Société du Commerce des Missions Protestantes, a Swiss corporation; and that she still belonged to the Société at the time of capture, though she then carried the German flag. It also appeared that the Swiss Federal Council did not permit Swiss subjects to fly the Federal flag, and that France had, in 1854, refused to acknowledge any Swiss maritime flag. Thus, the Société being compelled to sail its ship under some flag, that of Germany had been retained. In order to do this, the ship was nominally assigned to an agent of the Société at Bremen, while the real owners were the Société itself. Under these circumstances, the vessel being in reality owned by Swiss, and consequently neutral subjects, the Conseil des Prises held that she was not a German vessel, and therefore restored her to the owners, reversing the decree of the Court below (t). By the law of England, no ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description:1. Natural born British subjects. 2. Persons made denizens or naturalized, by letters of denization, or by Act of Parliament, or the proper authority in any British possession. 3. Bodies corporate established under, and subject to the laws of, and having their principal place of business in the United Kingdom or some British possession (u). If any person uses the British flag and assumes the British national character on board any ship owned in whole or in part by any persons not entitled by law to own British ships, for the purpose of making such ship appear to be a British ship, such ship shall be for (*) The Vigilantia, 1 C. Rob. 1; The Trow Anna Catharina, 5 C. Rob. 161; The Success, 1 Dods. Ad. 131. (t) Dalloz, Jurisprudence Générale, Pt. III. p. 94 (14 espèce). (u) 57 & 58 Vict. c. 60, s. 1; and see Scrutton, Merchant Shipping Act, 1891, p. 8. feited to His Majesty, unless such assumption has been made for the Chap. I. purpose of escaping capture by an enemy, or by a foreign ship of war in exercise of some belligerent right; and in any proceeding for enforcing any such forfeiture, the burden of proving a title to use the British flag and assume the British national character shall lie upon the person using and assuming the same (x). When a ship has become forfeited for such an offence, she may be seized by the Crown whenever she returns within British jurisdiction, and even if transferred to a bona fide purchaser (y). § 341. We have already seen that no commercial intercourse Sailing under the enemy's can be lawfully carried on between the subjects of States licence. at war with each other, except by the special permission of their respective governments. As such intercourse can only be legalized in the subjects of one belligerent State by a licence from their own government, it is evident that the use of such a licence from the enemy must be illegal unless authorized by their own government; for it is the sovereign power of the State alone which is competent to act on the considerations of policy by which such an exception from the ordinary consequences of war must be controlled. And this principle is applicable not only to a licence protecting a direct commercial intercourse with the enemy, but to a voyage to a country in alliance with the enemy, or even to a neutral port; for the very act of purchasing or procuring the licence from the enemy is an intercourse with him prohibited by the laws of war; and even supposing it to be gratuitously issued, it must be for the special purpose of furthering the enemy's interests, by securing supplies necessary to prosecute the war, to which the subjects of the belligerent State have no right to lend their aid by sailing under these documents of protection (≈). (x) 57 & 58 Vict. c. 60, s. 69; and see Scrutton, p. 55; R. v. Seberg, L. R. 1 C. C. R. 264. (y) The Annandale, 2 P. D. 218. Part IV. CHAPTER II. § 342. Rights of war against an enemy. § 343. Limits to the rights of war against the person of an enemy. RIGHTS OF WAR AS BETWEEN ENEMIES. In general it may be stated that the rights of war, in respect to the enemy, are to be measured by the object of the war. Until that object is attained, the belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms. We have already seen that the practice of the ancient world, and even the opinion of some modern writers on public law, made no distinction as to the means to be employed for this purpose. Even such institutional writers as Bynkershoek and Wolf, who lived in the most learned and not least civilized countries of Europe, at the commencement of the eighteenth century, assert the broad principle, that everything done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, and even poison, may be employed against him; and that an unlimited right is acquired by the victor to his person and property. Such, however, was not the sentiment and practice of enlightened Europe at the period when they wrote, since Grotius had long before inculcated milder and more humane principles, which Vattel subsequently enforced and illustrated, and which are adopted by the unanimous concurrence of all the public jurists of the present age (a). The law of nature has not precisely determined how far an individual is allowed to make use of force, either to (a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. Wolfius, Jus. Gent. § 878. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 4, §§ 5-7. Vattel, Droit des Gens, liv. iii. ch. 8. be defend himself against an attempted injury, or to obtain Chap. II. reparation when refused by the aggressor, or to bring an offender to punishment. We can only collect, from this law, the general rule, that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign States existing in a state of natural independence with respect to each other. No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may lawfully killed; but the inhabitants of the enemy's country who are not in arms, or who, being in arms, submit and surrender themselves, may not be slain, because their destruction is not necessary for obtaining the just ends of war. Those ends may be accomplished by making prisoners of those who are taken in arms, or compelling them to give security that they will not bear arms against the victor for a limited period, or during the continuance of the war. The killing of prisoners can only be justifiable in those extreme cases where resistance on their part, or on the part of others who come to their rescue, renders it impossible to keep them. Both reason and general opinion concur in showing that nothing but the strongest necessity will justify such an act (b). § 343a. warfare. From the immense armies at present maintained by most European Tendency in States, there seems to be little prospect of their resorting to anything modern but hostilities for the settlement of their differences. But there is a very widespread desire to alleviate the horrors of war as much as possible, and to confine its operation to disabling the enemy without inflicting unnecessary suffering upon him. Civilization has a double effect upon war. It tends to make men more humane, but it also enables them to devise more terrible engines of destruction. The result is that while civilized nations are continually adopting more and more terrible weapons for defending themselves or attacking others, they are at the same time endeavouring to establish rules of international law which shall make the use of their weapons as consistent with (b) Rutherforth's Inst., b. ii. ch. 9, § 15. See post, § 41le. Part IV. $ 343b. The Geneva Convention. humanity as the nature of things will permit. This is illustrated by two well-known conventions of recent times. In 1864 Switzerland, Belgium, Denmark, Spain, France, Italy, the Netherlands, Portugal, Prussia, and most of the German States, entered into an agreement, known as the Geneva Convention, for ameliorating the condition of the wounded in war. Austria, England, Greece, Persia, Russia, Sweden and Norway, Turkey, the United States of America, Japan, the Balkan States, and the majority of the South American Republics subsequently acceded to it. By the 21st Article of the Hague Convention, for regulating the laws and customs of land warfare, the Geneva Convention was re-enacted and rendered obligatory on all the powers which ratified the former agreement, thus bringing both Portugal and Mexico, which had hitherto failed to accede to the Geneva Convention, within its terms, which are as follows: I. Ambulances and military hospitals shall be acknowledged to be neuter, and, as such, shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or hospitals should be held by a military force. II. Persons employed in hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality while so employed, and so long as there remain any wounded to bring in or succour. III. The persons designated in the preceding article may, even after occupation by the enemy, continue to fulfil their duties in the hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Under such circumstances, when those persons shall cease from their functions, they shall be delivered by the occupying army to the outposts of the enemy. IV. As the equipment of military hospitals remains subject to the laws of war, persons attached to such hospitals cannot, in withdrawing, carry away any articles but such as are their private property. Under the same circumstances an ambulance shall, on the contrary, retain its equipment. V. Inhabitants of the country who may bring help to the wounded shall be respected and shall remain free. The generals of the belligerent powers shall make it their care to inform the inhabitants of the appeal addressed to their humanity, and of the neutrality which will be the consequence of it. Any wounded men entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who shall have entertained a wounded man in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. VI. Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders-in-chief shall |