Chapter 11

THE COMMENCEMENT OF WAR

SECTION 1

_Declaration of War_

The following letter bears upon the question, much discussed in recent years, of the lawfulness of hostilities commenced without anything amounting to a declaration of war. Although several modern wars, e.g. the Franco-Prussian of 1870, and the Russo-Turkish of 1877, were preceded by declaration, it was hardly possible, in view of the practice of the last two centuries, to maintain, that this was required by international law, and it has never been alleged that any definite interval need intervene between a declaration and the first act of hostilities. On the destruction of the _Kowshing_, the present writer may further refer to his _Studies in International Law_, 1898, p. 126, and to Professor Takahashi's _International Law during the Chino-Japanese War_, 1899, pp. 24, 192. But see now the note at the end of the "Letter" which follows.

THE SINKING OF THE _KOWSHING_

Sir,--The words of soberness and truth were spoken with reference to the sinking of the _Kowshing_ in the letter from Professor Westlake which you printed on Friday last. Ignorance dies hard, or, after the appearance of that letter and of your remarks upon it, one might have expected that leading articles would be less lavishly garnished with such phrases as "act of piracy," "war without declaration," "insult to the British flag," "condign punishment of the Japanese commander." But these flowers of speech continue to blossom; and, now that the facts of the case seem to be established beyond reasonable doubt by the telegrams of this morning, I should be glad to be allowed to state shortly what I believe will be the verdict of international law upon what has occurred.

If the visiting, and eventual sinking, of the _Kowshing_ occurred in time of peace, or in time of war before she had notice that war had broken out, a gross outrage has taken place. But the facts are otherwise.

In the first place, a state of war existed. It is trite knowledge, and has been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, not preceded by declaration. How frequently this has occurred in practice may be seen from a glance at an historical statement prepared for the War Office by Colonel Maurice _à propos_ of the objections to a Channel tunnel. Whether or no hostilities had previously occurred upon the mainland, I hold that the acts of the Japanese commander in boarding the _Kowshing_ and threatening her with violence in case of disobedience to his orders were acts of war.

In the second place, the _Kowshing_ had notice of the existence of a war, at any rate from the moment when she received the orders of the Japanese commander.

The _Kowshing_, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a _ruse de guerre_ or otherwise, is wholly immaterial.) Her liabilities, as such ship, were twofold:--

1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese Prize Court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.

2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the _Kowshing_ was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination.

The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the _Kowshing_, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents _inter se_; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity.

Your obedient servant, T. E. HOLLAND. Athenæum Club, August 6 (1894)

The controversy caused by the sinking of the _Kowshing_ in 1894 was revived by the manner of the Japanese attack upon Port Arthur, in 1904 (see Professor Takahashi's _International Law applied to the Russo-Japanese War_, 1908, p. 1), and led to a careful study of the subject by a committee of the Institut de Droit International, resulting in the adoption by the Institut, at its Ghent Meeting in 1906, of the following resolutions:--

(1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning.

(2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war.

(3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded." See the _Annuaire de l'Institut_, t, xxi. p. 292.

In accordance with the principles underlying the first and second of these resolutions, The Hague Convention, No. iii. of 1907 (ratified generally by Great Britain on November 27, 1909), has now laid down as a principle of International Law, binding upon the contracting Powers, that--

(1) "Hostilities between them ought not to commence without a warning previously given and unequivocal, in the form either of a reasoned declaration of war, or of an ultimatum, with a conditional declaration of war."

And the Convention goes on to provide that--

(2) "The state of war ought to be notified without delay to neutral Powers, and shall be of no effect with reference to them, until after a notification, which may be made even telegraphically. Nevertheless, neutral Powers may not plead absence of notification, if it has been shown beyond question that they were in fact cognisant of the state of war." Any reference to the need of an interval between declaration and the first act of hostility (such as is contained in the third of the resolutions of the Institut) was deliberately omitted from the Convention, although a declaration immediately followed by an attack would obviously be of little service to the party attacked. (See the present writer's _Laws of War on Land (written and unwritten)_, 1908, P. 18.)

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SECTION 2

_The Immediate Effects of the Outbreak of War_

_Enemy Residents_

Before any actual hostilities have taken place, each belligerent acquires, _ipso facto_, certain new rights over persons and property belonging to the other, which happen to be at the time within its power, e.g. the right, much softened in modern practice, and specifically dealt with in The Hague Convention, No. vi. of 1907, of capturing enemy merchant vessels so situated.

The following letter deals with the permissible treatment of enemy persons so situated; and was suggested by a question asked in the House of Commons on February 25, 1909, by Mr. Arnold-Forster: viz. "What would be the _status_ of officers and men of the regular Army of a hostile belligerent Power, found within the limits of the United Kingdom after an act or declaration of war; and would such persons be liable to be treated as prisoners of war, or would they be despatched under the protection of the Government to join the forces of the enemy?" The general effect of the Attorney-General's reply may be gathered from the quotations from it made in the letter.

The topic was again touched upon on March 3, in a question put by Captain Faber, to which Mr. Haldane replied.

FOREIGN SOLDIERS IN ENGLAND

Sir,--The question raised last night by Mr. Arnold-Forster is one which calls for more careful consideration than it appears yet to have received. International law has in modern times spoken with no very certain voice as to the permissible treatment of alien enemies found within the territory of a belligerent at the outbreak of war.

There is, however, little doubt that such persons, although now more usually allowed to remain, during good behaviour, may be expelled, and, if necessary, wholesale, as were Germans from France in 1870. But may such persons be, for good reasons, arrested, or otherwise prevented from leaving the country, as Germans were prevented from leaving France in the earlier days of the Franco-Prussian War? Grotius speaks with approval of such a step being taken, "ad minuendas hostium vires." Bynkershoek, more than a century later, recognises the right of thus acting, "though it is rarely exercised." So the Supreme Court of the United States in _Brown v. United States_ (1814). So Chancellor Kent (1826), and Mr. Manning (1889) is explicit that the arrest in question is lawful, and that "the individuals are prisoners of war."

Vattel, is it true (1758), ventures to lay down that--

"Le Souverain qui déclare la guerre ne peut retenir les sujets de ennemi qui se trouvent dans ses états au moment de la déclaration ... en leur permettant d'entrer dans ses terres et d'y séjourner, il leur a promis tacitement toute liberté et toute sûreté pour le retour."

And he has been followed by some recent writers. There is, however, I venture to hold, no ground for asserting that this indulgent system is imposed by international law. I am glad, therefore, to find the Attorney-General laying down that--

"for strictly military reasons, any nation is entitled to detain and to intern soldiers found upon the territory at the outbreak of war."

And I should be surprised if, under all circumstances, as the learned Attorney-General seems to think probable--

"England would follow, whatever the strict law may be, the humane and chivalrous practice of modern times, and would give to any subjects of a hostile Power who might be found here engaging in civilian pursuits a reasonable time within which to leave for their own country, even although they were under the obligation of entering for service under the enemy's flag."

The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.

There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.

I am only concerned to maintain that, as far as international law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 25 (1909).

_Civil Disabilities of Alien Enemies_

THE NAVAL PRIZE BILL

CIVIL DISABILITIES OF ENEMY SUBJECTS

Sir,--The Naval Prize Bill has sins enough of its own to answer for. The question dealt with under that heading in Mr. Arthur Cohen's letter of this morning has, however, nothing to do with naval matters, but arises under The Hague Convention of 1907 as to warfare on land, which was ratified by our Government two years ago; unfortunately without any reserve as to the extraordinary provision contained in Art. 28 (_h_) of that Convention.

I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (_h_). (1) Continental writers, e.g., MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, asserts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my _Laws of War on Land_, 1909, he will find that I carry this sceptical attitude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Règlement," in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("réclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the substitution of "droits et actions" for "réclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.

Art. 23 (_h_) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 6 (1911).

I may perhaps refer here to my _Laws of War on Land_ (1908), p. 44, where I describe as "apocryphal" Art. 23 (_h_) of the Hague Convention No. iv. of 1907; and to my paper upon that article in the _Law Quarterly Review_ for 1912, pp. 94-98, reproduced in the _Revue de Droit International_, the _Revue Générale de Droit International Public_, and the _Zeitschrift für Völkerrecht und Bundesstaatsrecht_, for the same year.

The view there maintained was affirmed by the Court of Appeal in _Porter_ v. _Freudenberg_, [1915] 1 K.B. 857, _at_ p. 874.

_Enemy Ships in Port_

ENEMY SHIPS IN PORT

Sir,--The action taken by the United States in seizing German merchant ships lying in their ports will raise several questions of interest. It is, however, important at once to realise that, apart from anything which may be contained in old treaties with Prussia, their hands are entirely free in the matter. The indulgences so often granted: to such ships during the last 60 years, notably by themselves in the Spanish War of 1898, under endlessly varying conditions, have been admittedly acts of grace, required by no established rule of international law.

The United States are also unaffected by The Hague Convention No. vi, to which they are not a party. It is therefore superfluous to inquire what construction they would have been bound to put upon the ambiguous language of Section 1 of the Convention, which proclaims that "when a merchant ship of one of the belligerent Powers is, at the commencement of hostilities, in an enemy port, _it is desirable_ that it should be allowed to depart freely," &c. It might perhaps be argued that our own Prize Court might well have refrained from treating this section as if it were obligatory, and have founded its decisions rather upon international law, as supplemented by a non-obligatory custom. Be this as it may, it would seem that the policy of the United States has to some extent felt the influence of Convention vi. in announcing that seizure will, provisionally, only amount to requisitioning.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 7 (1917).