Volume Ii Part 29 (1/2)

ESPIONAGE, TREASON, RUSES

See, besides the literature quoted above at the commencement of ---- 159 and 163, Pradier-Fodere, VIII. No. 3157, and Bentwich in _The Journal of the Society of Comparative Legislation_, New Series, X.

(1909), pp. 243-249.

[Sidenote: Espionage and Treason.]

-- 210. Espionage[419] and treason do not play as large a part in sea warfare as in land warfare;[420] still they may be made use of by belligerents. But it must be specially observed that, since the Hague Regulations deal only with land warfare, the legal necessity of trying a spy by court-martial according to article 30 of these Regulations does not exist for sea warfare, although such trial by court-martial is advisable.

[Footnote 419: As regards the case of the _Haimun_, see below, -- 356.]

[Footnote 420: See above, ---- 159-162.]

[Sidenote: Ruses.]

-- 211. Ruses are customarily allowed in sea warfare within the same limits as in land warfare, perfidy being excluded. As regards the use of a false flag, it is by most publicists considered perfectly lawful for a man-of-war to use a neutral's or the enemy's flag (1) when chasing an enemy vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action.[421] On the other hand, it is universally agreed that immediately before an attack a vessel must fly her national flag. Halleck (I. p. 568) relates the following instance: In 1783 the _Sybille_, a French frigate of thirty-eight guns, enticed the British man-of-war _Hussar_ by displaying the British flag and intimating herself to be a distressed prize of a British captor. The _Hussar_ approached to succour her, but the latter at once attacked the _Hussar_ without showing the French flag. She was, however, overpowered and captured, and the commander of the _Hussar_ publicly broke the sword of the commander of the _Sybille_, whom he justly accused of perfidy, although the French commander was acquitted when subsequently brought to trial by the French Government. Again, Halleck (I. p. 568) relates: In 1813 two merchants of New York carried out a plan for destroying the British man-of-war _Ramillies_ in the following way. A schooner with some casks of flour on deck was expressly laden with several casks of gunpowder having trains leading from a species of gunlock, which, by the action of clockwork, went off at a given time after it had been set. To entice the _Ramillies_ to seize her, the schooner came up, and the _Ramillies_ then sent a boat with thirteen men and a lieutenant to cut her off. Subsequently the crew of the schooner abandoned her and she blew up with the lieutenant and his men on board.

[Footnote 421: The use of a false flag on the part of a belligerent man-of-war is a.n.a.logous to the use of the enemy flag and the like in land warfare; see above, -- 164. British practice--see Holland, _Prize Law_, -- 200--permits the use of false colours. U.S. Naval War Code, article 7, forbids it altogether, whereas as late as 1898, during the war with Spain in consequence of the Cuban insurrection, two American men-of-war made use of the Spanish flag (see Perels, p. 183). And during the war between Turkey and Russia, in 1877, Russian men-of-war in the Black Sea made use of the Italian flag (see Martens, II. -- 103, p. 566).

The question of the permissibility of the use of a neutral or enemy flag is answered in the affirmative, among others, by Ortolan, II. p. 29; Fiore, III. No. 1340; Perels, -- 35, p. 183; Pillet, p. 116; Bonfils, No.

1274; Calvo, IV. 2106; Hall, -- 187. See also Pillet in _R.G._ V. (1898), pp. 444-451. But see the arguments against the use of a false flag in Pradier-Fodere, VI. No. 2760.]

Vattel (III. -- 178) relates the following case of perfidy: In 1755, during war between Great Britain and France, a British man-of-war appeared off Calais, made signals of distress for the purpose of soliciting French vessels to approach to her succour, and seized a sloop and some sailors who came to bring her help. Vattel is himself not certain whether this case is a fact or fiction. But be that as it may, there is no doubt that, if the case be true, it is an example of perfidy, which is not allowed.

VII

REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT

Hall, -- 140*--Lawrence, -- 204--Westlake, II. pp. 315-318--Moore, VII. ---- 1166-1174--Taylor, -- 499--Bonfils, Nos.

1277-1277'1--Despagnet, Nos. 618-618 _bis_--Fiore, Code, Nos.

1633-1642--Pradier-Fodere, VIII. Nos. 3153-3154--Nys, III. pp.

430-432--Pillet, p. 117--Perels, -- 35, p. 181--Holland, _Studies_, pp. 96-111--Dupuis, Nos. 67-73, and _Guerre_, Nos. 42-47--Barclay, _Problems_, p. 51--Higgins, pp. 352-357--Lemonon, pp.

503-525--Bernsten, -- 7, III.--Boidin, pp. 201-215--Nippold, II. -- 28--Scott, _Conferences_, pp. 587-598, and in _A.J._ II. (1908), pp. 285-294.

[Sidenote: Requisitions and Contributions upon Coast Towns.]

-- 212. No case has to my knowledge occurred in Europe[422] of requisitions or contributions imposed by naval forces upon enemy coast towns. The question whether or not such requisitions and contributions would be lawful became of interest through an article on naval warfare of the future, published in 1882 by the French Admiral Aube in the _Revue des Deux Mondes_ (vol. 50, p. 331). Aube pointed out that one of the tasks of the fleet in sea warfare of the future would be to attack and destroy by bombardment fortified and unfortified military and commercial enemy coast towns, or at least to compel them mercilessly to requisitions and contributions. As during the British naval manoeuvres of 1888 and 1889 imaginary contributions were imposed upon several coast towns, Hall (-- 140*) took into consideration the question under what conditions requisitions and contributions would be lawful in sea warfare. He concluded, after careful consideration and starting from the principles regarding requisitions and contributions in land warfare, that such requisitions and contributions may be levied, provided a force is landed which actually takes possession of the respective coast town and establishes itself there, although only temporarily, until the imposed requisitions and contributions have been complied with; that, however, no requisitions or contributions could be demanded by a single message sent on sh.o.r.e under threatened penalty of bombardment in case of refusal. There is no doubt that Hall's arguments are, logically, correct; but it was not at all certain that the naval Powers would adopt them, since neither the Inst.i.tute of International Law nor the U.S.

Naval War Code had done so.[423] The Second Hague Peace Conference has now settled the matter through the Convention (IX.) concerning bombardment by naval forces in time of war which amongst its thirteen articles includes two--3 and 4--dealing with requisitions and contributions. This Convention has been signed, although with some reservations, by all the Powers represented at the Conference except Spain, China, and Nicaragua, but China and Nicaragua acceded later. Many States have already ratified.

[Footnote 422: Holland, _Studies_, p. 101, mentions a case which occurred in South America in 1871.]

[Footnote 423: The Inst.i.tute of International Law has touched upon the question of requisitions and contributions in sea warfare in article 4, No. 1, of its rules regarding the bombardment of open towns by naval forces; see below, -- 213, p. 267. U.S. Naval War Code, article 4, allows ”reasonable” requisitions, but no contributions since ”ransom” is not allowed.]

According to article 3 undefended ports, towns, villages, dwellings, or other buildings may be bombarded by a naval force, if the local authorities, on a formal summons being made to them, decline to comply with requisitions for provisions or supplies _necessary_ for the _immediate_ use of the naval force concerned. These requisitions must be proportional to the resources of the place; they can only be demanded by the commander of the naval force concerned; they must be paid for in cash, and, if this is not possible for want of sufficient ready money, their receipt must be acknowledged.

As regards contributions, Convention IX. does not directly forbid the demand for them, but article 4 expressly forbids bombardment of undefended places by a naval force on account of non-payment of money contributions; in practice, therefore, the demand for contributions will not occur in naval warfare.

[Sidenote: Bombardment of the Enemy Coast.]

-- 213. There is no doubt whatever that enemy coast towns which are defended may be bombarded by naval forces, acting either independently or in co-operation with a besieging army. But before the Second Peace Conference of 1907 the question was not settled as to whether or not _open and undefended_ coast places might be bombarded by naval forces.