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Non-Belligerent’s Right to Compensation for Internment of Foreign Military Personnel

Published online by Cambridge University Press:  16 May 2017

Alwyn V. Freeman
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Editorial Comment
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American Journal of International Law , Volume 53 , Issue 3 , July 1959 , pp. 638 - 647
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Copyright © American Society of International Law 1959

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References

1 Cf.New York Times, June 27, 1958, for the text of the U. S. Aide-Momoire to the Soviet Government in this case.

2 Ibid.,Dec. 6, 1958, p. 1. An earlier example is furnished by the detention in Czechoslovakia in June-July, 1951, of two U. S. airmen who, after landing, were arrested and held incommunicado for four weeks. Cf.24 Dept. of State Bulletin 1019 (1951); 25 ibid.93 (1951); and 30 ibid.319-320 (1954). An American civilian, Mr. Emory Vaughan, who had been arrested under similar circumstances, was released on May 9, 1959, after a detention of 47 days. New York Times, May 10, 1959.

3 New York Herald Tribune, Dec. 6, 1958, p. 1; cf.also New York Times, July 12, 1958, p. 1.

4 The crew of the helicopter was released on July 19, 1959. Cf.New York Times, July 20, 1958, p. 1. Lt. Macklin and four enlisted men were returned on Feb. 5, 1959. Ibid.,Feb. 6, 1959, p. 1. In a statement issued at the time of the signing of the first agreement in East Berlin, Premier Otto Grotewohl's office declared the arrangement “took into account the existence of the German Democratic Republic as a sovereign S t a t e , “ and “emphasized that agreements reached under the occupation regime are no longer effective for the German Democratic Republic. These privileges can no longer be claimed in the territory of the German Democratic Republic.” (As cited.) Was the helicopter incident the initial phase of the latest Berlin crisis.

5 2 Oppenheim, International Law 582 (6th ed.); 3 Eolin, Le droit moderne de la guerre 123 ff.; 2 Halleck, International Law 152 (3rd ed.); Holland, The Law of War on Land 65; Despagnet, Cours de droit international public 821 (3rd ed.) ; Pillet, Lea lois actuelles de la guerre 162 (2nd ed.); 2 FauehiUe, Droit international public 677; 4 Calvo, Le droit international § 2632; 3 Aecioly, Tratado de Direito Internacionul Público § 2054 (2e ed., 1957); 4 Bustamante y Sirvén, Derecho Internacional Público § 1.124; Hague Convention No. V of 1907, Art. X I ; The War Department Field Manual, Rules of Land Warfare, 1940, FM 27-10 $ 383.

6 Oppenheim, op. oit.583.

7 1dem,582; Rolin, op. cit.134; Sauser-Hall, Des belligérants internés chez les neutrcs 102 ff.

8 Op. cit.583.

9 2 Malloy 's Treaties, etc… . of the United States 2298; War Department Training Manual, TM 27-251, p. 41; 2 A.J.I.L. Supp. 120 (1908).

10 The international character of the duty to intern was recognized early in World War II by domestic legislation enacted in several states. Thus the Brazilian Decree- Law 2983 of Jan. 25, 1941, declared: “Internment is a rule of international law, being founded upon the obligation of every neutral State to forestall or prevent hostile acts within its territory by any belligerent, but … it is at the same time a rule of municipal law with respect to the means, form and organs for making it effective… . “ The Brazilian decree expressly regards internment as constituting “ a measure of international security taken by the neutral'’ for the purpose of maintaining its own rights and obligations. 7 Hackworth, Digest of International Law 564. To the same effect: Cuban Presidential Decree 859, of March 29, 1940, as cited; Ecuadorean Decree 15 of March 31, 1940, ibid.565. And see also the Argentine Decree of Dec. 19, 1939, interning officers and crew of the German battleship Graf Spee;Hackworth, op. cit.561.

11 Harvard Law School, Eesearch in International Law, Draft Convention on Eights and Duties of Neutral States in Naval and Aerial War, 33 A.J.I.L. Supp. 484 ff. (1939); Oppenheim, op. cit.584; Foreign Eelations of the United States, 1915 Supp., pp. 821 ff.

12 Fauchille, op. cit.678; Despagnet, Cours,p. 821; Sauser-Hall, op. cit.90 ff.

13 Italics supplied. Cf.also par. 537 of the U. S. Army Field Manual on the Law of Land Warfare, FM 27-10, July, 1956, which merely reproduces Art. 12 of Hague Convention V.

14 34 A.J.I.L. Supp. 78 (1940). Italics supplied.

15 Cf.the action of Belgium during the Franco-Prussian War, mentioned in 4 Calvo, Le droit international § 2635; 2 Kleen, Lois et usages de la neutrality 34, and authorities cited.

16 Arts. 1 and 2. The text of this military convention is found in Rules of Land Warfare, 1914, Ch. XI, App. A, p . 146.

17 Calvo, op. cit. §2634; Rolin, op. cit.125, 142; Sauser-Hall, op. cit.187-188.

18 See above, p. 640.

19 7 Hackworth, Digest 559; Rolin, op. cit.131; Oppenheim, op. cit.586; Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, Art. 95, 33 A.J.I.L. Supp. 766-767 (1939) and authorities cited.

20 Air Power and War Rights 424-425 (1st ed.). The obligation to intern the personnel of belligerent military aircraft entering neutral jurisdiction was recognized in Art. 42 of the Rules of Aerial Warfare prepared by the Commission of Jurists in 1923. Cf.32 A.J.I.L. Supp. 36 (1938); and see 3 Hyde, International Law 2287-2288, § 804.

21 Cf.Spaight, Air Power and War Rights 429-431 (3rd ed., 1947), for comments on the policy followed in Eire.

22 Thus the Turkish announcement of April 30, 1943. Op. cit.430.

23 Conventions internationales concernant la Guerre sur terre 53, note 26 (1910).

24 This situation should not be confused with the rule applicable to a prisoner of war who escapes into neutral territory. Such an escapee is free to repatriate himself. See, on this point, the discussion of the Bennett case in Spaight, op. tit.451-452.

25 Harvard Research in International Law, as cited.

26 P . 84. Translation and italics supplied. Accord,3 Bolin, Le droit moderne de la guerre 123-248, passim;Oppenheim, op. cit.583; Pauchille, as cited; Pillet, Les lois actuelles de la guerre 162-163. And compare the comments of M. Renault at the Hague Conference of 1899, Proceedings 469 (Carnegie Endowment ed.).

27 As he puts it, “ t h e neutral's obligations of protection, disarming and internment … possess the character of a condition sine qua nonfor the maintenance of neutrality; the neutral, in a word mustaccomplish them to remain neutral. The expenses which their execution provokes fall then into the general expenses which every war entails for peaceful States desirous of protecting their situation, occupying border positions, stationing guards, etc. The care of the refugees, on the other hand, does not have this character of a condition sine qua nonof the observance of neutrality… . “ Op. cit.93. Art. 1, par. 2, of the Havana Convention of 1928 on Eights and Duties of States in the Event of Civil Strife provided for the “expenses of internment to be borne by the state whose public order may have been disturbed.” 46 Stat. 2749; 4 Treaties … etc. of the United States 4725 (Trenwith, 1938) ; 22 A.J.I.L. Supp. 160 (1928).

28 In the words of Kleen: “ I t is already a great deal, that a peaceful State whose borders are threatened by disturbances taking place in other countries … should be exposed to considerable sacrifices in order to guard its borders against invasions. And the entry of fugitives has occurred, it must bear the burdens and expenses which their surveillance occasions. It will hardly have any chance to be indemnified for the losses and damages so caused.” 2 Lois et usages de la neutralité 33-34 (translation supplied). As indicated in the text, both Sauser-Hall and Kleen view the “expenses of internment” as signifying the cost to the neutral of furnishing the necessities of life, e.g.,subsistence, clothing and lodging. This construction finds some support in the circumstance that the phrase “expenses caused by internment” in the second paragraph of Article 12 immediately follows a description of those things which the neutral is obligated to supply to internees under that article, that is, the “food, clothing and relief required by humanity.” Compare 2 Hyde, International Law 746 (2nd ed.). The celebrated German General Staff book, Kriegsbrauch im Landkriege, after positing the neutral's duty to intern, recognizes its right to compensation only for the “maintenance and c a r e “ of the troops which have crossed the border. Morgan ed., 1915, p. 145. Fauchille apparently places a similar interpretation upon Art. 12 in upholding the neutral's right to reimbursement for “food and clothing, e t c . , “ and to retention of belligerent material as a pledge against the settlement of “expenses incurred for the benefit of the refugees.” Op. cit.678. Calvo (as cited) and Despagnet (as cited) allow reimbursement for the expenses of entretien.

29 Rolin cites Kleen to support his contention that a neutral may dispose of belligerent military equipment held as a guaranty, to obtain reimbursement of “ t h e expenses of maintenance,” without recognizing the distinction Kleen erects between the expenses of care and those of guarding (op. cit.142). His careless use of the term prisonersto describe internees reveals some confusion of thought in view of his attempt to differentiate between them in a later passage.

30 Fcuille fédérale Suisse, Vol. I , pp. 207-211 (1873).

31 Memorandum for the Judge Advocate General, SPJGW 1944/8317, June 26, 1944.

32 Letter to the writer from Colonel Howard S. Levie, Office of the Judge Advocate General of the Army, JAGW 1956/8570, Nov. 23, 1956.

33 The Commission was composed of Baron van Asbeck, as president, Messrs. de Zulueta, Corbin and Panchaud, and Lord McNair. The Swiss thesis was presented by Professor Sauser-Hall, and the French thesis by Professor André Gros.

34 Cf.a communiqué of the Swiss Federal Political Department of Nov. 24, 1955, and for background and agreement of settlement, the Journal de Genève of Nov. 25, 1955. The Swiss claim was computed on the basis of some 2,000 Swiss francs per man per year, for the 8,000 Polish troops. These rates were considerably less than charges billed to the United States Government, which insisted that American internees be kept in hotels instead of in barracks. For an exhaustive review of modern Swiss practice in the treatment of refugees and internees in general, see the report to the Swiss Federal Council by Professor Carl Ludwig on “La politique pratiquée par la Suisse a l'ggard des rfefugifis … 1933 à 1955” (Bâle, 1957).

35 Compare the action of the Czechoslovak authorities in the case of John P. Kennedy and Cole Youngert, American soldiers who were convicted and sentenced to prison for 14 and 10 months, respectively, after a secret trial on charges of “Frontier Violation.” New York Times, Nov. 2, 1958, p. 9.