RÉSUMÉ AND CONCLUSION.

159 apply, for instance, in case the vessel maintained the same line of sailing before and after the transfer. It was, however, objected that the absolute presumption would sometimes be too severe, as certain vessels, for example, tank ships, could, on account of their build, engage only in a definite trade. To recognize this objection the word "route" was added, so that it would have been necessary that the vessel should be retained in the same trade and on the same route; it was thought that in this way there would be given to the contention sufficient consideration. However, in consideration of the insistence on the suppression of this case from the list, its suppression has been conceded. Consequently the transfer now comes within the provision of the general rule; it is certainly presumed to be void, but proof to the contrary is admitted.

Résumé. The discussions in International Law Situations, 1910, pages 108 to 128, showed that while the rules of the Declaration of London differed somewhat from the form proposed by the plenipotentiaries of the United States, yet the effect of the rules in operation might not differ in any marked degree.

Under the provisions of the Declaration of London the presumption in case of a transfer made before the war is wholly in favor of the one to whom transfer has been made unless the transfer has been made within 60 days and the bill of sale is not on board. The burden of proof is in the main upon the captor when the transfer is made before the opening of hostilities. In case of transfer from a belligerent to a neutral flag after the outbreak of hostilities the burden of proof is shifted to the one to whom the transfer is made to establish its validity. The rules of the Declaration of London in regard to transfer of flag have been favorably received and while their form may be somewhat involved it would seem that they should be generally approved.

Conclusion. The articles 55 and 56 of the Declaration of London, 1909, in regard to transfer of private vessels from a belligerent to a neutral flag are in accord with modern ideas and safeguard rights of neutrals and the rights of belligerents.

ART. 55. The transfer of an enemy vessel to a neutral flag, effected before the opening of hostilities, is valid, unless it is proved that such transfer was made in order

to evade the consequences which the enemy character of the vessel would involve. There is, however, a presumption that the transfer is void if the bill of sale is not on board in case the vessel has lost her belligerent nationality less than 60 days before the opening of hostilities. Proof to the contrary is admitted.

There is absolute presumption of the validity of a transfer effected more than 30 days before the opening of hostilities if it is absoltue, complete, conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits of her employment do not remain in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than 60 days before the opening of hostilities, and if the bill of sale is not on board the capture of the vessel would not give a right to compensation.

ART. 56. The transfer of an enemy vessel to a neutral flag, effected after the opening of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences which the enemy character of the vessel would involve.

There is, however, absolute presumption that a transfer is void

(1) If the transfer has been made during a voyage or in a blockaded port.

(2) If there is a right of redemption or of reversion. (3) If the requirements upon which the right to fly the flag depends according to the laws of the country of the flag hoisted have not been observed.

TOPIC IX.

METHODS OF INJURING THE ENEMY.

What regulations should be made in regard to deceiving and injuring the enemy?

CONCLUSIONS.

The following are in general prohibited:

1. Deceit, involving perfidy.

2. To declare that no quarter will be given.

3. To declare that no flag of truce will be received. 4. To kill or wound an enemy who has surrendered and has no longer the means of defense.

5. To destroy a vessel which has surrendered before attempting to rescue those on board.

NOTES.

Treachery.-Ruses of war have always been common and are regarded as legitimate and often praiseworthy. Ruses and stratagems must not be confused with deceit involving treachery or perfidy. Treachery or perfidy in the sense used in war implies a betrayal of legitimate confidence or breaking of faith. The use of the white flag or of the Red Cross flag for purpose of attack upon an enemy would be a breach of faith. There may be a conventional or tacit agreement in regard to a course of conduct between enemies in time of war, and action contrary to such agreement would involve a breach of faith. Deceit is often resorted to and is not criticized. False reports may be circulated in regard to the position or movements of forces, but deceit not involving perfidy is usually admitted as legitimate practice.

Denial of quarter or of flag of truce.-The Hague convention respecting the laws and customs of war on land of 1907 says it is especially forbidden. “Article 23 (d). To declare that no quarter will be given."

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Unquestionably, if this is to be read literally, it would meet general approval, because a literal reading would imply that the declaration that no quarter will be given is what is prohibited. Declaration that no quarter would be given was sometimes resorted to in early wars in order to deter or coerce an enemy. Several threats that no quarter would be granted were made during the American Civil War. The Brussels rules of 1874 contained the prohibition against "The declaration that no quarter will be given." The idea in these rules was to prevent threats of "extermination towards a garrison which obstinately defends a fortress." It is clear that there will be times when quarter can not be granted, as when in an attack a small part of the opposing forces offers to surrender while the remaining forces continue to fight. At such time the officer in command of the attacking force must be free to judge whether he will grant quarter to a small part of the forces or shall continue his attack on all. To accept the surrender of a few might burden the commander with prisoners to such a degree as would defeat his movement and would perhaps prolong the war and make the sacrifice greater in the end.

While a commander of forces on land or sea is forbidden "to declare that no quarter will be given," it is not thereby implied that he will in every case give quarter in time of actual operations.

The right to deny a flag of truce is granted in article 33 of The Hague convention respecting the laws and customs of war on land.

The commander to whom a flag of truce is sent is not obliged to receive it in all circumstances.

In general the obligation, both on land and sea, would be to receive the flag of truce, but this obligation may be overridden by the military obligation to bring the operation in which the forces are engaged to a successful issue with the least sacrifice of life and property.

Prof. Oppenheim, who assisted in preparation of the British Manual of Land Warfare, says:

As soon as an attacked or counter-attacked vessel hauls down her flag, and therefore signals that she is ready to surrender, she

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must be given quarter and seized without further firing. To con tinue an attack, though she is ready to surrender, and to sink her and her crew would constitute a violation of customary international law and would only, as an exception, be admissible in case of imperative necessity or of reprisals. (International Law, 2d ed., Vol. II, p. 231.)

Institute of International Law, 1913.-After considering the means of injuring an enemy, the committee of the Institute of International Law in 1913 proposed a regulation as follows:

ART. 20. Il est interdit:

1° De tuer ou de blesser un ennemi qui, ayant mis bas les armes ou n'ayant plus les moyens de se défendre, s'est rendu à discrétion. 2o De couler un navire qui s'est rendu, avant d'avoir recueilli l'équipage.

3o De déclarer qu'il ne sera pas fait de quartier.

The provisions contained in this article had been the subject of much discussion before 1913. The committee, however, reports upon the article, showing some of the opinions:

Cet article, qui prévoyait pour les défendre quatre sortes de moyens de nuire, a motivé certaines remarques de la part des membres de la Commission.

En ce qui concerne le 1° de l'article, M. Holland a déclaré n'avoir aucune objection à présenter contre l'interdiction des projectiles ayant pour but unique de répandre des gaz asphyxiants ou délétères, lorsque la Déclaration de La Haye du 29 juillet 1899, qui y est relative, sera universellement acceptée par les États.

Sur le 2°, M. Kaulmann a formulé une observation qu'avait faite déjà M. de Bar. Il a demandé que, contrairement à la Déclaration de Saint-Pétersbourg du 11 décembre 1868, on autorisât les projectiles explosibles ou chargés de matières fulminantes ou inflammables d'un poids inférieur à 400 grammes "en tant qu'ils sont employés contre des aéronefs et des hydro-aéroplanes," car ces projectiles peuvent dans certains cas être les seuls qui constituent un moyen d'action efficace contre les navires de l'air. La motion de M. Kaufmann a été rejetée par trois voix contre trois abstentions. Il a paru à la Commission que son adoption aurait nécessairement comme conséquence l'abolition complète de la Déclaration de Saint-Pétersbourg, attendu qu'en fait il sera toujours impossible de savoir si les projectiles auront été dans la réalité lancés ou non sur des machines aériennes; or une pareille abolition constituerait sans conteste un retour en arrière.