In an armed conflict between even great empires, there are always countries which desire to be genuinely neutral in order to pursue their peaceful endeavors undisturbed. One aim of international law has been to facilitate relationships between such neutrals without interference from belligerents.
At the beginning of the present European conflict, Great Britain established a system of cargo inspection which was conducted either at the port of loading or at certain designated contraband control stations in order to facilitate the inspection of neutral shipping. To be sure, such inspections are aimed to prevent contraband from reaching British enemies, but once an inspection certificate, or “navicert,” is issued it is assumed the ship will not be stopped and searched on the high seas by men-of-war of Britain or her allies. While such a “navicert” does not guarantee immunity from visit and search, it does permit considerably more freedom for oceangoing ships of neutrals.
Transporting enemy persons in neutral ships has presented a problem in almost every conflict between large belligerent states. As an attempt to solve the problem, would it not be possible to issue certificates in a neutral port guaranteeing careful inspection of belligerent as well as neutral passengers? Would not such certificates, to be called “pericerts” (a term coined from the related “navicert”) smooth the relationships between neutrals and belligerents by eliminating one source of probable friction?
A neutral merchant ship may perform a distinctly unfriendly service by transporting persons attached to the military or naval services of a warring state. The carriage of such persons, as differentiated from contraband, has been termed unneutral service and has been dealt with as a separate problem by an aggrieved belligerent. Enemy persons thus carried, although not actually contraband, are, under many circumstances, of far more value to the enemy and the furtherance of his plans than material contraband goods. In order to prevent the enemy from benefiting by such indirect unneutral service, the opposing belligerent is faced with the double task of intercepting such persons en route and penalizing the neutral carrier. Consequently, specific treaties between governments, the law of nations, and various national instructions governing warfare, recognize the right of a belligerent to intercept and exercise control over certain enemy persons on a neutral ship encountered on the high seas where there is a definite connection between the individual and the armed services of his country.
According to the common practice of most maritime powers before the first World War, neutral merchant vessels carrying persons actually in the services of the enemy were liable to be condemned whether this transportation was done knowingly or in bona fide ignorance. The carrier was committing an offense analogous to the carriage of contraband and an analogous treatment was accorded. This situation was accepted in the unratified Declaration of London and was summarized earlier in the resolutions of the 1896 Institute of International Law at Venice as follows:
The transportation of troops, military men, or military agents of an enemy is forbidden . . . . The prohibition does not extend to the transportation of individuals who are not yet in the military service of a belligerent, even though their intention is to enter it or who make the voyage as simple passengers without manifest connection with the military service.
In 1807 the American ships, the Orozembo and the Friendship, were captured by Great Britain and condemned for attempted carriage of belligerent armed forces, even though the captain of the Orozembo was ignorant of the delinquency. At that time Sir William Scott went so far as to state what might be present opinion, when he wrote, “If the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done or at least from being repeated.”
During the Russo-Japanese War, the neutral Nigretia was condemned for attempting to carry an escaped captain and lieutenant of a Russian destroyer into Vladivostok. The well-known case of the Trent (1861) showed that neutral vessels may carry unhindered on the high seas bona fide diplomatic agents sent by the enemy to a neutral country although this is doubtful in the case of quasi-diplomatic characters or political agents. The extensive correspondence between Mr. Seward, Secretary of State, and Earl Russell, British Foreign Secretary, betrays confusion of thought as to what individuals were legally subject to belligerent interception whenever the exigencies of the situation made seizure desirable.
According to the unratified Declaration of London (1909) neutral merchantmen rendered unneutral service only when they carried enemy persons who were already actual members of the armed forces of the enemy, and it also made clear that reservists who were returning to enemy country for the purpose of joining the armed forces were not among the classes of enemy persons which a neutral might carry without risking punishment for rendering unneutral service.
The rules formulated by the Declaration of London have never been ratified by the Great Powers and thus they are open to the interpretation or the disregard of individual states, in which case the former customary rules apply. Moreover, in 1915, in the case of the neutral Spanish Fredrico, carrying home a number of German and Austrian reservists to join their respective regiments, the French Prize Court of Appeal decided, in opposition to the Declaration of London, that such reservists on their way home from abroad were to be considered “incorporated” or “embodied” in the army of their respective governments. As such, they were subject to detention and the ship subject to condemnation as a good prize for performing unneutral service. Following this decision, Great Britain and France, basing their actions at first upon their own interpretation of Article 47 of the Declaration of London and later as acts of reprisal against Germany, continued to take persons of enemy nationality from neutral merchant vessels who were not actually incorporated in the enemy armed forces.
In February, 1916, the British removed 38 enemy subjects from the neutral U. S. steamship China, which brought the following sharp protest from Secretary of State Lansing:
. . . Even assuming that all persons taken from the S.S. China were of “military character” the Government of the United States does not admit that they may be arrested and seized on the high seas from an American vessel flying the American flag, for, as has hitherto been reiterated by the Government of the United States, such seizures are without justification in international law.
However, the British continued to follow the practice of capturing and removing belligerent subjects from neutral vessels without capturing the vessels or sending them in for adjudication, but, in so doing, risked a break with powerful neutrals. It has been estimated that during the World War allied cruisers stopped and boarded 64 neutral vessels and took off more than 3,500 subjects of the Central Powers without finding it necessary to take the various vessels into port to make such seizures lawful. They based the validity of their actions upon the fact that the obligation of compulsory military service was imposed upon these men by German law, and that they were all potential if not actual members of the armed forces.
It was argued, and the facts seemed to prove the point, that German civilian airmen en route to their country, whether pilots, navigators, engineers, mechanics, or meteorologists, are such valuable personnel that to permit them to reach their destination would be to augment the enemy’s armed forces.
Furthermore, in the recent past, enemy subjects, often lacking any military character, have been frequently sent to neutral territory in order to participate in measures which aid in the successes of the military forces of their own country. For this reason it has been argued that the right of interception of enemy persons should not be limited solely to those specifically destined for military service or to those en route to a hostile port.
This same policy of removing belligerent subjects from neutral vessels has continued in the present European war, with the incident of the Asama Maru as an outstanding example. On January 21, 1940, a British man-of-war forcibly removed 21 of 50 Germans from this Japanese merchant vessel when only 30 miles off the Japanese coast. The Japanese Government, in spite of the fact that it had stopped and searched over 190 British ships in Far Eastern waters since 1937, protested on the grounds that the Germans were not in the armed forces of their country and therefore not subject to seizure while on a neutral merchant vessel.
The British claimed the right of visit, search, and removal on the ground that although the Germans “were not in the peace-time strength of their country’s armed forces, they are under a legal liability to serve and are actually on their way to take their place in the ranks. . . . This obligation of military service is imposed upon them by law. . . .” Thus the practice of capturing these reservists was in retaliation to the German code.
The outcome of this incident was a compromise. Nine of the Germans were released to the Japanese with the British “reserving all their legal rights,’’ while the Japanese government instructed its shipping companies to refuse passage in the future to any individual of a belligerent country “who is embodied in the armed forces or who is suspected of being so embodied.”
In pursuit of this policy, the Japanese steamship line, Nippon Yushen Kaisha, recently refused transport across the Pacific from San Francisco to four German citizens of military age formerly employed by a commercial air service in Colombia. These German aviators finally obtained passage on the SS. President Garfield of the American President Lines. At 1422 on April 29, 1941, the Canadian auxiliary cruiser Prince Robert signaled the President Garfield to lie to on the high seas, whereupon she was boarded first by a Canadian naval commander and later by two other officers and men all with side arms. They arrested and removed the four German nationals. Safe passage across the Pacific had been accorded previously to “German invalids and men of non-military age” by Great Britain but the four German aviators involved in this most recent incident would not have fallen in either of these categories had they applied for a safe-crossing permission.
These international incidents indicate that the recent belligerent practice of removing enemy subjects from neutral vessels on the high seas is completely at variance with established and hitherto respected principles of international law which even permitted reservists and other enemy persons not connected with the armed forces safe passage. The fact that the military codes of certain countries make all citizens, both men and women, liable for active or supplementary military service in time of war changes the situation and seems to indicate a need for modifying the old and possibly outmoded law.
The British argument as to the potential value of all able-bodied men of military age is valid. Since it would be long, costly, and likely to antagonize a powerful neutral to send in for adjudication neutral ships carrying such persons, some sort of legal and official compromise, as was effected in the Asama Maru case, seems logical.
It is impossible for a single belligerent state, or even two such states, to modify or nullify, by any domestic law or practice, the obligations which it owes a neutral state under the rules of international law. Hence the general situation at present is far from satisfactory, with Great Britain apparently attempting to accomplish this very thing.
As the situation now rests, British and Japanese naval officers search for and remove all able-bodied enemy subjects of military age who may be found on neutral vessels, and their respective governments sanction and defend such a policy and practice.
A United States naval officer, however, is bound to observe the rules of international law to which this Government has given unequivocal adherence, and which are reiterated in the 1917 Instructions for the Navy of the United Slates Governing Maritime Warfare. These instructions, like the German Prize Code of 1915, exempt reservists or other enemy citizens in neutral vessels from seizure on the high seas by belligerent forces unless they are actually incorporated in the military force of the enemy. These instructions would make it impossible for officers of a United States ship to remove enemy citizens, men or women, reservists or those eligible, willing, or even eager for military service, trained aviators or others in professions highly valuable to a belligerent nation, from a neutral merchant ship while such persons were en route to their homeland to enter military service, and in a matter of days, to become part of the armed forces of their country, and thus, actual enemies.
With modern wars conducted on a scale and with an intensity hitherto unknown, the serious question arises concerning the expediency of extending the protection of a neutral flag to persons or classes of persons known to be of potential service to the enemy and of potential danger to ourselves. The wisdom of these sections of Instructions for the Navy of the United States Governing Maritime Warfare is now open to question, and even the principles of international law upon which these instructions are based are open to conjecture. A distinct departure from the old conventional point of view was introduced in Article 37 of the 1923 Proposed Rules for Aerial Warfare which states that “Passengers are entitled to be released unless they are in the service of the enemy or are enemy nationals fit for military service, in which case they may be made prisoners of war.” This is the point of view held by the majority of world powers possessing the sea strength to enforce their will, and it is probable that modifications will be made eventually in the international law itself. But until all nations may meet again in peace to revise this ruling some workable interim compromise is desirable which will not offend neutral states by interfering with their commerce and which will insure belligerent states that streams of man power are not supplementing enemy forces by way of neutral shipping.
Two methods by which this problem of enemy persons on neutral ships may be solved are by prohibiting neutral ships from entering war zones, as the United States has done since the outbreak of the present European conflict, or by instructing masters of merchant vessels to refuse passage to all citizens of a belligerent country who are liable for military service, as Japan has recently done.
A third method would be to establish some working arrangement whereby certain classes of belligerents could complete their voyages on a neutral ship without interception. This could be accomplished by the issuance of a certified document verifying the status of a ship’s passengers and personnel by authorities in the neutral port. Such authorities could be the duly recognized diplomatic or consular officials of the belligerents in the neutral states. Certification agreed upon, the document could be placed in the hands of the master of the neutral ship and exhibited to any boarding officer of a belligerent man- of-war.
This document, or “pericert,” would permit and facilitate the passage of persons considered questionable much as the navigation-inspection certificate, or “navicert,” now functions in regard to shipments of cargo. Once the goods on board have been certified by a belligerent as not contraband, the ship is permitted to proceed to its neutral or unblockaded destination, showing its “navicert” to other allied belligerent searchers as need arises. In the same way, a “pericert” would prevent detention of the ship or removal of the passengers while the latter are under the protection of the neutral’s flag. In addition, and unlike the “navicert,” if all the belligerents approved a “pericert” for a passenger, it would assure his safe passage and would at the same time insure the belligerents that the enemy was not receiving reinforcements by way of neutral ships. On the other hand, if belligerent passengers embarked or were permitted to embark by a shipping company without a “pericert,” both they and the ship could expect harsh treatment if apprehended.
Such a plan would call for co-operation between belligerent authorities. But if the “pericerts” facilitated neutral intercourse and increased respect for the neutral flag, it certainly should be worth the effort of the neutral to obtain them.
The less the change that has to be made between the last day of peace and the first of war, the readier and the stronger is a military organism for battle. If, then, certain factors of victory can be thoroughly absorbed in advance, we ought thoroughly to absorb them in advance—viz., in peace time; and amongst these is the organic and moral factor of victory—discipline. —Baudry, Naval Battle.