Volume Ii Part 30 (2/2)

[Sidenote: _Fides etiam hosti servanda._]

-- 215. Although the outbreak of war between States as a rule brings non-hostile intercourse to an end, necessity of circ.u.mstances, convenience, humanity, and other factors call, or may call, some kinds of non-hostile relations of belligerents into existence. And it is a universally recognised principle of International Law that, where such relations arise, belligerents must carry them out in good faith. _Fides etiam hosti servanda_ is a rule which was adhered to in antiquity, when no International Law in the modern sense of the term existed. But it had then a religious and moral sanction only. Since in modern times war is not a condition of anarchy and lawlessness between belligerents, but a contention in many respects regulated, restricted, and modified by law, it is obvious that, where non-hostile relations between belligerents occur, they are protected by law. _Fides etiam hosti servanda_ is, therefore, a principle which nowadays enjoys as well a legal as a religious and moral sanction.

[Sidenote: Different kinds of Non-hostile Relations.]

-- 216. As through the outbreak of war all diplomatic intercourse and other non-hostile relations come to an end, it is obvious that non-hostile relations between belligerents must originate either from special rules of International Law or from special agreements between the belligerents.

No special rules of International Law which demanded non-hostile relations between belligerents existed in former times, but of late a few rules of this kind have arisen. Thus, for instance, release on parole[429] of prisoners of war creates an obligation on the part of the enemy not to re-admit the individuals concerned into the forces while the war lasts. And, to give another example, by article 4 of the Geneva Convention of 1906, and article 14 of the Hague Regulations--see also article 17 of Convention X. of the Second Peace Conference--it is the duty of either belligerent to return to the enemy, by his prisoner-of-war bureau, all objects of personal use, letters, jewellery, and the like found on the battlefield or left by those who died in hospital.[430] Non-hostile relations of this kind, however, need not be considered in this chapter, since they have already been discussed on several previous pages.

[Footnote 429: See above, -- 129.]

[Footnote 430: See above, -- 144.]

Non-hostile relations originating from special agreements of belligerents, so-called _commercia belli_, may either be concluded in time of peace for the purpose of creating certain non-hostile relations between the parties in case war breaks out, or they may be concluded during the actual time of war. Such non-hostile relations are created through pa.s.sports, safe-conducts, safeguards, flags of truce, cartels, capitulations, and armistices. Non-hostile relations can also be created by peace negotiations.[431] Each of these non-hostile relations must be discussed separately.

[Footnote 431: See below, -- 267.]

[Sidenote: Licences to Trade.]

-- 217. Several writers[432] speak of non-hostile relations between belligerents created by licences to trade granted by a belligerent to enemy subjects either within certain limits or generally. It has been explained above, in -- 101, that it is for Munic.i.p.al Law to determine whether or not through the outbreak of war all trade and the like is prohibited between the subjects of belligerents. If the Munic.i.p.al Law of one or both belligerents does contain such a prohibition, it is of course within the discretion of one or both of them to grant exceptional licences to trade to their own or the other belligerent's subjects, and such licences naturally include certain privileges. Thus, for instance, if a belligerent allows enemy subjects to trade with his own subjects, enemy merchantmen engaged in such trade are exempt from capture and appropriation by the grantor. Yet it is not International Law which creates this exemption, but the very licence to trade granted by the belligerent and revocable at any moment; and no non-hostile international relations between the belligerents themselves originate from such licences. The matter would be different if, either in time of peace for the time of war, or, during war, the belligerents agreed to allow certain trade between their subjects; but non-hostile relations originating from such an agreement would not be relations arising from a licence to trade, but from a cartel.[433]

[Footnote 432: See, for instance, Hall, -- 196; Halleck, II. pp. 343-363; Lawrence, -- 214; Manning, p. 168; Taylor, -- 512; Wheaton, ---- 409-410; Fiore, III. No. 1500; Pradier-Fodere, VII. No. 2938.]

[Footnote 433: See below, -- 224.]

II

Pa.s.sPORTS, SAFE-CONDUCTS, SAFEGUARDS

Grotius, III. c. 21, ---- 14-22--Vattel, III. ---- 265-277--Hall, ---- 191 and 195--Lawrence, -- 213--Phillimore, III. ---- 98-102--Halleck, II. pp. 323-328--Taylor, -- 511--Wheaton, -- 408--Moore, VII. ---- 1158-1159--Bluntschli, ---- 675-678--Heffter, -- 142--Lueder in Holtzendorff, IV. pp. 525-527--Ullmann, -- 185--Bonfils, Nos.

1246-1247--Despagnet, Nos. 558-561--Pradier-Fodere, VII. Nos.

2884, 2932-2938--Nys, III. pp. 504-505--Calvo, IV. ---- 2413-2418--Fiore, III. No. 1499, and Code, Nos.

1742-1749--Longuet, ---- 142-143--Merignhac, pp. 239-240--Pillet, pp. 359-360--_Kriegsbrauch_, p. 41--Holland, _War_, No. 101--_Land Warfare_, ---- 326-337.

[Sidenote: Pa.s.sports and Safe-conducts.]

-- 218. Belligerents on occasions arrange between themselves that pa.s.sports and safe-conducts shall be given to certain of each other's subjects. Pa.s.sports are written permissions given by a belligerent to enemy subjects, or others, allowing them to travel within that belligerent's territory or enemy territory occupied by him.

Safe-conducts are written permissions given by a belligerent to enemy subjects, or others, allowing them to proceed to a particular place for a defined object, for instance, to a besieged town for conducting certain negotiations; but safe-conducts may also be given for goods, and they then comprise permission to carry such goods without molestation to a certain place. Pa.s.sports as well as safe-conducts make the grantee inviolable so long and in so far as he complies with the conditions specially imposed upon him or made necessary by the circ.u.mstances of the special case. Pa.s.sports and safe-conducts are not transferable, and they may be granted to enemy subjects for a limited or an unlimited period; in the former case their validity ceases with the expiration of the period. Both may be withdrawn, not only when the grantee abuses the protection, but also for military expediency. It must, however, be specially observed that pa.s.sports and safe-conducts are only a matter of International Law when the granting of them has been arranged between the belligerents or their responsible commanders, or between belligerents and neutral Powers. If they are granted without such an arrangement, unilaterally on the part of one of the belligerents, they fall outside the scope of International Law.[434]

[Footnote 434: The distinction between pa.s.sports and the like arranged between the belligerents to be granted, on the one hand, and, on the other, such as are granted unilaterally, would seem to be necessary, although it is not generally made.]

[Sidenote: Safeguards.]

-- 219. Belligerents on occasions arrange between themselves that they shall grant protection to certain of each other's subjects or property against their own forces in the form of safeguards, of which there are two kinds. One consists in a written order given to an enemy subject or left with enemy property and addressed to the commander of armed forces of the grantor, in which the former is charged with the protection of the respective individual or property, and by which both become inviolable. The other kind of safeguard is given by detailing one or more soldiers to accompany enemy subjects or to guard the spot where certain enemy property is, for the purpose of protection. Soldiers on this duty are inviolable on the part of the other belligerent; they must neither be attacked nor made prisoners, and they must, on falling into the hands of the enemy, be fed, well kept, and eventually safely sent back to their corps. As in the case of pa.s.sports and safe-conducts, it must be specially observed that safeguards are only a matter of International Law when the granting of them has been arranged by the belligerents, and not otherwise; except in the case of the safeguards mentioned by article 8, No. 2, of the Geneva Convention of 1906, who, according to articles 9 and 12 of that Convention, are inviolable.

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