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PRISONERS OF WAR.

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vessels charged with religious, scientific, or philanthropic missions would be exempt from capture and treatment as prisoners of war.

Neutral persons who actually engage in the hostilities. lose their exemption as neutrals and are liable to the same treatment as belligerents under similar conditions.

Prisoners of war. The right to capture a vessel implies a right to restrain those on board the vessel to such an extent as may make the capture effective. The degree of restraint will depend upon the character of the vessel and the relation of the persons on board to the vessel. The crew of a captured war ship would naturally be liable to restrain as prisoners of war, while a shipwrecked sailor which the warship had rescued from a foreign private vessel might be released at the earliest moment compatible with military necessity.

The early practice would make prisoners of war of the officers and crew of an enemy vessel liable to capture. The argument was that the detention as prisoners of war reduced the power of the enemy and hastened the end of the war. This practice was sanctioned by the rules of many states. A limitation was later imposed which gave neutral members of the crew exemption under certain conditions which would not affect the issue of the war. It was held, however, that as on land the men who might be capable of military service might be detained in an area occupied by military forces, so crews of captured vessels might be detained.

From this idea developed the later doctrine that was generally adopted early in the twentieth century that those who by training or otherwise were immediately available for enemy naval service might be detained as prisoners of war. As a sailor had had special training in order to become a sailor he would be of special 'value to the enemy and the detention of a number of these specially prepared men would weaken the enemy's resources, This argument had in the eighteenth century sometimes been applied to the crews of fishing vessels, but had gradually become obsolete.

In the Franco-Prussian War of 1870, captains and crews of captured vessels were detained as prisoners of

war.

In the Spanish-American War in 1898 the passengers of captured private vessels were released, the crews and officers were given very liberal treatment when detained. though both were usually soon released unless needed as witnesses.

During the Russo-Japanese War in 1904-5 Russia generally followed the early policy of holding as prisoners of war the officers and crew of captured Japanese vessels.

Japan seems to have granted liberty to those of the offi cers and crew not needed as witnesses, unless they had been previously enrolled in the naval service.

Résumé.-Without going into detailed discussion of the reasons for exemption it is evident that certain classes of vessels are granted exemption from capture when they are innocently employed. The general grounds of humanity and expediency are behind these exemptions. There are also exemptions granted in treaties and conventions for special reasons as well as for general reasons. These exemptions may be applicable to all states or only to a small number of states, according to the treaty provisions. The convention in regard to treatment of fishing vessels is generally accepted, while the treaties as to mail vessels are limited to a comparatively small number. of states.

The treatment of public vessels of the enemy may by general assent be more drastic than the treatment of private vessels. A ship of war may be destroyed, while a merchant ship should in general be taken to port.

The principles governing the treatment of vessels in a broad way apply to the treatment of the persons on board. The persons on board a public vessel of an enemy are supposedly in the service of the enemy vessel, and are liable to be treated accordingly, as the vessel and its personnel can not always be disassociated.

The personnel of private vessels of an enemy may usually be considered on the principles which are based on its relation to the war. These persons may be of any

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nationality, and as engaged service of a private person may have no relation to the war. Similarly passengers on a vessel flying the flag of the enemy may not be and ordinarily are not involved in the war. These persons who are only remotely or not at all connected with the hostilities should not be unduly inconvenienced by the war.

At The Hague in 1907 these principles were recognized and conventions embodying some of these principles were drawn up by the conference. Some states have by decision and practice defined the rights of vessels and personnel. The treatment of certain vessels and their personnel is so well fixed that there is no need for explanation under a consideration of general rules, as in the case of cartel and hospital ships.

Considering all sources and regulations certain conclusions seem to be fairly established.

CONCLUSIONS.

(a) Public vessels.-Public vessels of the enemy may be captured or destroyed except the following when innocently employed:

1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in scientific work.

3. Properly designated hospital ships.

4. Vessels exempt by treaty or special proclamation. (b) Days of grace for private vessels of the enemy.A reasonable period of grace, to be determined by each belligerent, shall be allowed for vessels of the other belligerent bound for or within the opponent's ports at the outbreak of war.

(c) Private vessels.-Private vessels of the enemy may be captured, except the following, when innocently employed:

1. Cartel ships designated for and engaged in exchange of prisoners.

2. Vessels engaged in religious, philanthropic, and scientific work.

3. Properly designated hospital ships.

4. Small coast fishing vessels.

5. Small boats employed in local trade, e. g., transporting agricultural products.

6. Vessels exempt by treaty or special proclamation. (d) Personnel of public vessels of the enemy.-1. The personnel of public vessels which are liable to capture are liable to be made prisoners of war.

2. The personnel of enemy public vessels which are exempt from capture share in the exemption so long as innocently employed.

(e) Personnel of private vessels of the enemy (Arts. V-VIII, Hague Convention XI).

ART. V. When an enemy merchant ship is captured by a belligerent, such of its crew as are nationals of a neutral state are not made prisoners of war.

The same rule applies in the case of the captain and officers likewise nationals of a neutral state, if they promise formally in writing not to serve on an enemy ship while the war lasts.

ART. VI. The captain, officers, and members of the crew when nationals of the enemy state are not made prisoners of war on condition that they make a formal promise in writing not to undertake, while hostilities last, any service connected with the operations of the war.

ART. VII. The names of the persons retaining their liberty under the conditions laid down in Article V, paragraph 2, and in Article VI, are notified by the belligerent captor to the other belligerent. The latter is forbidden knowingly to employ the said

persons.

ART. VIII. The provisions of the three preceding articles do not apply to ships taking part in the hostilities.

(f) Passengers on private vessels of the enemy.-Innocent passengers on a private vessel of the enemy are to be accorded the utmost freedom consistent with the necessities of war.

TOPIC V.

IMMUNITY OF PRIVATE PROPERTY AT SEA.

Should private property at sea be exempt from capture?

CONCLUSION.

The United States may with propriety abandon the contention for the general exemption of enemy private property at sea and seek agreement upon a certain list of exemptions which meet the approval of the states of the world and which may from time to time be expanded as the sentiment for exemption becomes more general.

NOTES.

Introduction. A decision as to the treatment of private property at sea in time of war is in certain respects. fundamental. A code of rules for the conduct of maritime warfare based on the right to capture private property would be materially modified by the prohibition of this right. The strategy of war would also probably be modified. The attempts to make private property immune from capture have not yet met with success, therefore, any rules drawn up may properly concede the right of capture at sea of enemy private property. The considerations advanced in regard to the exemption of private property at sea should, however, receive attention.

United States proposition at The Hague, 1899.-Under date of June 20, 1899, the American commission at the First Hague Conference presented a communication to the conference stating that they were instructed to place before the conference the following proposition:

The private property of all citizens or subjects of the signatory powers, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the 19148-14-8

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