Volume Ii Part 23 (2/2)

[Sidenote: Position of Courts of Justice during Occupation.]

-- 172. The particular position which Courts of Justice have nowadays in civilised countries, makes it necessary to discuss their position during occupation.[341] There is no doubt that an occupant may suspend the judges as well as other officials. However, if he does suspend them, he must temporarily appoint others in their place. If they are willing to serve under him, he must respect their independence according to the laws of the country. Where it is necessary, he may set up military Courts instead of the ordinary Courts. In case and in so far as he admits the administration of justice by the ordinary Courts, he may nevertheless, so far as it is necessary for military purposes or for the maintenance of public order and safety, temporarily alter the laws, especially the Criminal Law, on the basis of which justice is administered, as well as the laws regarding procedure. He has, however, no right to constrain the Courts to p.r.o.nounce their verdicts in his name, although he need not allow them to p.r.o.nounce verdicts in the name of the legitimate Government. A case that happened during the Franco-German War may serve as an ill.u.s.tration. In September 1870, after the fall of the Emperor Napoleon and the proclamation of the French Republic, the Court of Appeal at Nancy p.r.o.nounced its verdicts under the formula ”In the name of the French Government and People.” Since Germany had not yet recognised the French Republic, the Germans ordered the Court to use the formula ”In the name of the High German Powers occupying Alsace and Lorraine,” but gave the Court to understand that, if the Court objected to this formula, they were disposed to admit another, and were even ready to admit the formula ”In the name of the Emperor of the French,” as the Emperor had not abdicated. The Court, however, refused to p.r.o.nounce its verdict otherwise than ”In the name of the French Government and People,” and, consequently, suspended its sittings. There can be no doubt that the Germans had no right to order the formula, ”In the name of the High German Powers, &c.,” to be used, but they were certainly not obliged to admit the formula preferred by the Court; and the fact that they were disposed to admit another formula than that at first ordered ought to have made the Court accept a compromise. Bluntschli (-- 547) correctly maintains that the most natural solution of the difficulty would have been to use the neutral formula ”In the name of the Law.”

[Footnote 341: See Pet.i.t, _L'Administration de la justice en territoire occupe_ (1900).]

CHAPTER IV

WARFARE ON SEA

I

ON SEA WARFARE IN GENERAL

Hall, -- 147--Lawrence, ---- 193-194--Westlake, II. pp.

120-132--Maine, pp. 117-122--Manning, pp. 183-184--Phillimore, III. -- 347--Twiss, II. -- 73--Halleck, II. pp. 80-82--Taylor, -- 547--Wharton, III. ---- 342-345--Wheaton, -- 355--Bluntschli, ---- 665-667--Heffter, -- 139--Geffcken in Holtzendorff, IV. pp.

547-548, 571-581--Ullmann, ---- 187-188--Bonfils, Nos. 1268, 1294-1338--Despagnet, Nos. 647-649--Pradier-Fodere, VIII. Nos.

3066-3090, 3107-3108--Nys, III. pp. 433-466--Rivier, II. pp.

329-335--Calvo, IV. ---- 2123, 2379-2410--Fiore, III. Nos.

1399-1413--Pillet, pp. 118-120--Perels, -- 36--Testa, pp.

147-157--Boeck, Nos. 3-153--Lawrence, _Essays_, pp.

278-306--Westlake, _Chapters_, pp. 245-253--Ortolan, I. pp.

35-50--Hautefeuille, I. pp. 161-167--Gessner, Westlake, Lorimer, Rolin-Jaequemyns, Laveleye, Alberic Rolin, and Pierantoni in _R.I._ VII. (1875), pp. 256-272 and 558-656--Twiss, in _R.I._ XVI.

(1884), pp. 113-137--See also the authors quoted below, -- 178, p.

223, note 1.

[Sidenote: Aims and Means of Sea Warfare.]

-- 173. The purpose of war is the same in the case of warfare on land or on sea--namely, the overpowering of the enemy. But sea warfare serves this purpose by attempting the accomplishment of aims different from those of land warfare. Whereas the aims of land warfare are defeat of the enemy army and occupation of the enemy territory, the aims[342] of sea warfare are: defeat of the enemy navy; annihilation of the enemy merchant fleet; destruction of enemy coast fortifications, and of maritime as well as military establishments on the enemy coast; cutting off intercourse with the enemy coast; prevention of carriage of contraband and of rendering unneutral service to the enemy; all kinds of support to military operations on land, such as protection of a landing of troops on the enemy coast; and lastly, defence of the home coast and protection to the home merchant fleet.[343] The means by which belligerents in sea warfare endeavour to realise these aims are: attack on and seizure of enemy vessels, violence against enemy individuals, appropriation and destruction of enemy vessels and goods carried by them, requisitions and contributions, bombardment of the enemy coast, cutting of submarine cables, blockade, espionage, treason, ruses, capture of neutral vessels carrying contraband or rendering unneutral service.

[Footnote 342: Aims of sea warfare must not be confounded with ends of war; see above, -- 66.]

[Footnote 343: Article 1 of the U.S. Naval War Code enumerates the following as aims of sea warfare:--The capture or destruction of the military and naval forces of the enemy, of his fortifications, a.r.s.enals, dry docks, and dockyards, of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and a.s.sist military operations on land; to protect and defend the national territory, property, and sea-borne commerce.]

[Sidenote: Lawful and Unlawful Practices of Sea Warfare.]

-- 174. As regards means of sea warfare, just as regards means of land warfare, it must be emphasised that not every practice capable of injuring the enemy in offence and defence is lawful. Although no regulations regarding the laws of war on sea have as yet been enacted by a general law-making treaty as a pendant to the Hague Regulations, there are treaties concerning special points--such as submarine mines, bombardment by naval forces, and others--and customary rules of International Law in existence which regulate the matter. Be that as it may, the rules concerning sea warfare are in many points identical with, but in many respects differ from, the rules in force regarding warfare on land. Therefore, the means of sea warfare must be discussed separately in the following sections. But blockade and capture of vessels carrying contraband and rendering unneutral service to the enemy, although they are means of warfare against an enemy, are of such importance as regards neutral trade that they will be discussed below in Part III. ---- 368-413.

[Sidenote: Objects of the Means of Sea Warfare.]

-- 175. Whereas the objects against which means of land warfare may be directed are innumerable, the number of the objects against which means of sea warfare are directed is very limited, comprising six objects only. The chief object is enemy vessels, whether public or private; the next, enemy individuals, with distinction between those taking part in fighting and others; the third, enemy goods on enemy vessels; the fourth, the enemy coast; the fifth and sixth, neutral vessels attempting to break blockade, carrying contraband, or rendering unneutral service to the enemy.

[Sidenote: Development of International Law regarding Private Property on Sea.]

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