INTERNMENT

8671

The report to the Hague Conference of 1907 from its Third Commission, on the rights and duties of neutral powers in naval war, stated:

We may suppose the case of a belligerent war-ship in a neutral port where it is not entitled to remain, either because it has entered in defiance of a prohibition, or, if regularly entered, because it stays longer than permitted. It is incumbent upon the neutral Power to take the necessary measures to disarm the ship; that is, to render it incapable of taking the sea during the war. It is the duty of the commanding officer of the ship to facilitate the execution of such measures.

When a ship is thus detained, what is the position of its officers and crew? We say that they are likewise detained, which is a rather vague expression. It has been substituted for interned, which seemed to indicate too strictly that the officers and crew should be placed within the neutral country. Their real position is regulated by a special provision to which we shall return. In law their position is analogous to that of troops of a belligerent who seek refuge in neutral territory, and it has been agreed that the two cases should be controlled by one and the same rule.

Scott, Reports to the Hague Conferences of 1899 and 1907 (1917) 838, 865.

If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must facilitate the execution of such measures.

When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained.

The officers and crew thus detained may be left in the ship or kept either on another vessel or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must, however, be always left on board.

The officers may be left at liberty on giving their word not to quit the neutral territory without permission.

Hague Convention XIII, art. XXIV, 2 Treaties, etc. (Malloy, 1910) 2352, 2362; 36 Stat. 2415, 2432.

See also par. 11 of Instructions for the Navy of the United States Governing Maritime Warfare (June 1917). With respect to internment of vessels, see Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 167, 485-487; II Garner, International Law and the World War (1920) 422 et seq.

Paroles

"ARTICLE 6. The ship which does not conform to the foregoing rules may be interned by order of the neutral government.

"A ship shall be considered as interned from the moment it receives notice to that effect from the local neutral authority, even though a petition for reconsideration of the order has been interposed by the transgressing vessel, which shall remain under custody from the moment it reIceives the order.

"ARTICLE 19. When a ship transporting merchandise is to be interned in a neutral state, cargo intended for said country shall be unloaded and that destined for others shall be transhipped."

Convention on maritime neutrality signed at Habana, Feb. 20, 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4746, 4747; 47 Stat. 1989, 1991, 1993.

In August 1914 the British sloop-of-war Shearwater wished to be interned at San Diego, California, dismantle her guns and take out her small arms and ammunition. A few men were to be left on board as caretakers, and the vessel turned over to the custody of the United States marshal. The Department of State was of the opinion that the ship should be "dismantled of guns, arms and ammunition".

The Counselor for the Department of State (Lansing) to the Secretary of the Navy (Daniels), Aug. 9, 1914, MS. Department of State, file 763.72111/8.

On October 20, 1916 the Navy Department issued the following regulations to its officers:

The policy of the United States regarding the internment of belligerent vessels of war is hereby defined:

If the government to which the vessel belongs shall give its assurance that neither such vessel nor any member of her crew will attempt to leave the territory of the United States, or violate the neutrality thereof during the war in progress; and if that government shall authorize the officers to give their parole to that effect, and the commanding officer to give his parole for the enlisted men under his command; and, further, if the government to which the vessel belongs shall agree to cooperate with the United States in using all practicable means to apprehend, punish, and return to the custody of the United States any officer or member of the crew thus paroled who escapes:

Then the Government of the United States will accept such assurances and paroles and will, after the officers and men have been paroled and after the vessel has been rendered incapable of again taking the sea, extend to such vessel, its officers, and crew, the treatment which is usual in time of peace, reserving only such supervision as may be necessary to safeguard the neutrality of the United States:

Provided that the right to revoke the above privileges at any time without notice and without assigning a cause, and to place in operation the rigorous methods of internment recognized by

international law as legitimate, is reserved, such revocation to be considered in no sense an unfriendly act.

U.S. Navy Department, Regulations for the Information of Officers on Neutrality Duty in Connection With the Visits of Belligerent Vessels of War to Waters Under the Jurisdiction of the United States, With Special Reference to the Treatment of Such Vessels and Their Crews After Internment (Nov. 1916) 5.

The same regulations stated that

"the United States, as a neutral, is bound, under its previous practice and under the treaty stipulations of The Hague Conference, 1907, to which the United States is a party, to prevent the commission of any unneutral acts within its territorial waters, and, in case of internment, to prevent the interned vessel and her personnel from again participating either directly or indirectly in the hostilities.

"The extent and rigor of the surveillance employed in accomplishing the above result is a matter within the discretion of the United States alone.

"While the use of rigorous methods of restriction on the interns can not be considered by their Government as unfriendly, neither can the other belligerent regard as unneutral the granting of the widest degree of freedom to them, provided always that we fulfill our solemn obligation to prevent the vessel or the interned individuals from again participating either directly or indirectly in the hostilities.

"The interned individuals are the subjects of a friendly nation, and are entitled to be treated as such; humanity and friendship alike require that their stay in this country shall be as agreeable as the peculiar circumstances of their visit permit.

"Therefore, unless the conduct of such interned individuals should indicate that an abuse of our confidence has rendered further privileges unwarranted, such requests from the commanding officer of the interned vessel as are not inconsistent with the best interests of the United States and which do not do violence to our paramount duty to detain the vessel and her personnel, should, if practicable, receive favorable consideration." Ibid. 8. See also ibid. 14 et seq. for detailed regulations with respect to internment.

The Government of the United States was unwilling to authorize the transmission from Guam of cable messages in code originating with interned officers or crew of the interned German auxiliary cruiser Cormoran. The Counselor for the Department of State (Lansing) to the Counselor of the German Embassy (Haniel), Feb. 6, 1915, MS. Department of State, file 763.72111C81/9.

In correspondence concerning the disposition of officers and crews of interned German cruisers, the Navy Department stated that, under article XXIV of Hague Convention XIII, when officers and crews of detained ships were interned, it was necessary that there be left on board a sufficient number of men to care for the vessel. The Department of State replied that

"in view of the general opinion which appears to prevail among the belligerents that the Hague Conventions of 1907, containing a conditional clause like that in Article 28 of Convention XIII [see ante, p. 346], are not legally binding on the contracting parties, and in view of the repeated instances

Escape from interned

ships

of dishonorable conduct on the part of the officers and men of German warships interned in the United States, this Department is of the opinion that the German Government have no valid ground upon which to claim, in the circumstances, a strict observance of the letter or spirit of the rule expressed in the last sentence of Article 24, of the Hague Convention XIII of 1907."

The Department concluded that it was not necessary to leave men on board to care for the vessel. The Secretary of the Navy (Daniels) to the Secretary of State (Lansing) and Mr. Lansing to Mr. Daniels, Mar. 26, 1917, MS. Department of State, file 763.72111K92/68.

Regarding the escape of officers and men from two German cruisers interned in American ports, Secretary Lansing instructed the Ambassador to Germany:

Navy Department takes the position that the Prinz Eitel Friedrich and the Kronprinz Wilhelm sought refuge in a port of the United States and agreed to be interned. The obligation of remaining with their ships rested, therefore, wholly with the officers of those ships. It can not be assumed that these officers are not cognizant of the principles of international law. The captains of the two ships gave their promises in writing for themselves, the officers, and the crew of the ships, that they would in no way violate the neutrality of the United States during their internment.

The answer of the German naval administration seems to indicate that it does not fully appreciate the seriousness of the obligation thus assumed by their naval representatives on these two vessels to remain within the limits assigned with the least amount of trouble to the Government of the country in which they are interned. They were not considered as prisoners of war but as guests of this Government, and as such were given permission to leave the navy yard and to go to any part of the United States on leave. Doctor Krüger-Kroneck and Leutnant zur See Koch availed themselves of this permission to leave the limits of their internment and failed to return, as they were undoubtedly bound to do. In addition Doctor Kroneck supplied money with which six officers of the Kronprinz Wilhelm purchased the yacht Eclipse and escaped from the jurisdiction of this Government. Should Doctor Kroneck be returned, this Government should not consent to his removal under the application of the rules of the Geneva convention to naval officers, as his presence on board is necessary on account of considerable sickness on the interned ships.

The Secretary of State (Lansing) to the Ambassador to Germany (Gerard), telegram 2792, Mar. 9, 1916, MS. Department of State, file 763.72111K92/88; 1916 For. Rel. Supp. 715, 716.

SUBMARINES

§672

On July 3, 1916 the British Embassy notified the Department of State that it had heard rumors that a German submarine was on its way to a port of the United States and that in view of this circumstance the British Government wished to submit to the Government of the United States its views on the issues raised by the visit of a submarine to a neutral port. It stated:

The practice of admitting belligerent vessels of war into neutral ports and allowing them supplies arises, as you are aware, out of the exigencies of life at sea and from the hospitality which it is customary to extend to vessels of friendly Powers. But the principle does not extend to enabling such vessels to utilise neutral ports and obtain supplies for the purpose of facilitating their belligerent operations.

The difficulty of knowing the movements or controlling the subsequent action of the submarines renders it impossible for the neutral to guard against any breaches of neutrality after the submarine has left port and justifies the neutral in drawing a distinction between surface ships and submarines. The latter, it is thought, should be treated on the same footing as seaplanes or other air craft and should not be allowed to enter neutral ports at all.

The British Embassy to the Secretary of State (Lansing), no. 194, July 3, 1916, MS. Department of State, file 763.72111/3847; 1916 For. Rel. Supp. 765-766.

1916

On July 9, 1916 the German submarine Deutschland arrived in Balti- The Deutschland, more with a cargo principally of dyestuffs. The Department of State took the position that the submarine should be regarded as a merchant vessel rather than a war vessel.

The Acting Secretary of State (Polk) to the Ambassador to Germany (Gerard), telegram 3195, July 17, 1916, MS. Department of State, file 763.72111D48/14b; 1916 For. Rel. Supp. 768.

On July 19, 1916 the British Ambassador gave the Department of State, not as a protest at the decision regarding the Deutschland but to point out the danger occasioned thereby, a telegram, of July 18, 1916, from the British Foreign Office, reading as follows:

The first point to be established is that international law ought not to transfer without modification to submarines, rules and regulations which work fairly well as regards surface vessels. If this be once conceded we may hope to have an international code drawn up which might meet conditions of naval warfare.