Volume Ii Part 19 (2/2)

[Sidenote: Immoveable Private Property.]

-- 140. Immoveable private enemy property may under no circ.u.mstances or conditions be appropriated by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right[275] whatever to the property. Article 46 of the Hague Regulations expressly enacts that ”private property may not be confiscated.” But confiscation differs from the temporary use of private land and buildings for all kinds of purposes demanded by the necessities of war. What has been said above in -- 136 with regard to utilisation of public buildings finds equal application[276] to private buildings. If necessary they may be converted into hospitals, barracks, and stables without indemnification of the proprietors, and they may also be converted into fortifications. A humane belligerent will not drive the wretched inhabitants into the street if he can help it. But under the pressure of necessity he may be obliged to do this, and he is certainly not prohibited from doing it.

[Footnote 275: See below, -- 283.]

[Footnote 276: The Hague Regulations do not mention this; they simply enact in article 46 that private property must be ”respected,” and may not be confiscated.]

[Sidenote: Private War Material and Means of Transport.]

-- 141. All kinds of private moveable property which can serve as war material, such as arms, ammunition, cloth for uniforms, leather for boots, saddles, and also all appliances, whether on land or at sea or in the air, which are adapted for the transmission of news or for the transportation of persons and goods, such as railway rolling-stock,[277]

s.h.i.+ps, telegraphs, telephones, carts, and horses, may be seized and made use of for military purposes by an invading belligerent, but they must be restored at the conclusion of peace, and indemnities must be paid for them. This is expressly enacted by article 53 of the Hague Regulations.

It is evident that the seizure of such material must be duly acknowledged by receipt, although article 53 does not say so; for otherwise how could indemnities be paid after the conclusion of peace?

As regards the question who is to pay the indemnities, Holland (_War_, No. 113) correctly maintains that ”the Treaty of Peace must settle upon whom the burden of making compensation is ultimately to fall.”

[Footnote 277: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), -- 15.]

[Sidenote: Works of Art and Science, Historical Monuments.]

-- 142. On the other hand, works of art and science, and historical monuments may not under any circ.u.mstances or conditions be appropriated or made use of for military operations. Article 56 of the Hague Regulations enacts categorically that ”all seizure” of such works and monuments is prohibited. Therefore, although the metal of which a statue is cast may be of the greatest value for cannons, it must not be touched.

[Sidenote: Other Private Personal Property.]

-- 143. Private personal property which does not consist of war material or means of transport serviceable to military operations may not as a rule be seized.[278] Articles 46 and 47 of the Hague Regulations expressly stipulate that ”private property may not be confiscated,” and ”pillage is formally prohibited.” But it must be emphasised that these rules have in a sense exceptions, demanded and justified by the necessities of war. Men and horses must be fed, men must protect themselves against the weather. If there is no time for ordinary requisitions[279] to provide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions cannot be made, a belligerent must take these articles wherever he can get them, and he is justified[280] in so doing. And it must further be emphasised that quartering[281] of soldiers who, together with their horses, must be well fed by the inhabitants of the houses concerned, is likewise lawful, although it may be ruinous to the private individuals upon whom they are quartered.

[Footnote 278: See above, -- 133, note.]

[Footnote 279: See below, -- 147.]

[Footnote 280: The Hague Regulations do not mention this case.]

[Footnote 281: See below, -- 147.]

[Sidenote: Booty on the Battlefield.]

-- 144. Private enemy property on the battlefield is no longer in every case an object of booty.[282] Arms, horses, and military papers may indeed be appropriated,[283] even if they are private property, as may also private means of transport, such as carts and other vehicles which an enemy has made use of. But letters, cash, jewellery, and other articles of value found upon the dead, wounded, and prisoners must, according to article 14 of the Hague Regulations and article 4 of the Geneva Convention, be handed over to the Bureau of Information regarding prisoners of war, which must transmit them to those interested. Through article 14 of the Hague Regulations and article 4 of the Geneva Convention it becomes apparent that nowadays private enemy property, except military papers, arms, horses, and the like, is no longer booty, although, individual soldiers often take as much spoil as they can get.

It is impossible for the commanders to bring the offender to justice in every case.[284]

[Footnote 282: See above, -- 139.]

[Footnote 283: See above, -- 139, and article 4 of the Hague Regulations.

This article only mentions arms, horses, and military papers, but saddles, stirrups, and the like go with horses, as ammunition goes with arms, and these may for this reason likewise be appropriated; see _Land Warfare_, -- 69, note (_e_).]

[Footnote 284: It is of interest to state the fact that, during the Russo-j.a.panese War, j.a.pan carried out to the letter the stipulation of article 14 of the Hague Regulations. Through the intermediary of the French Emba.s.sies in Tokio and St. Petersburg, all valuables found on the Russian dead and seized by the j.a.panese were handed over to the Russian Government.]

[Sidenote: Private Enemy Property brought into a Belligerent's Territory.]

-- 145. The case of private property found by a belligerent on enemy territory differs from the case of such property brought during time of war into the territory of a belligerent. That private enemy property on a belligerent's territory at the time of the outbreak of war may not be confiscated has already been stated above in -- 102. Taking this fact into consideration, as well as the other fact that private property found on enemy territory is nowadays likewise as a rule exempt from confiscation, there can be no doubt that private enemy property brought into a belligerent's territory during time of war may not, as a rule, be confiscated.[285] On the other hand, a belligerent may prohibit the withdrawal of those articles of property which can be made use of by the enemy for military purposes, such as arms, ammunition, provisions, and the like. And in a.n.a.logy with article 53 of the Hague Regulations there can be no doubt that a belligerent may seize such articles and make use of them for military purposes, provided that he restores them at the conclusion of peace and pays indemnities for them.

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