International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 88. The general rule with regard to individuals is that subjects of
the belligerents bear enemy character, whereas subjects of neutral
States do not. In this sense article 16 of Convention V. stipulates:
"The nationals of a State which is not taking part in the war are
considered to be neutral." These neutral individuals can, however, lose
their neutral and acquire enemy character in several cases, just as
subjects of the belligerents can in other cases lose their enemy
character:--
(1) Since relations of peace obtain between either of the belligerents
and neutral States, the subjects of the latter can, by way of trade and
otherwise, render many kinds of service to either belligerent without
thereby losing their neutral character. On the other hand, if they enter
the armed forces of a belligerent, or if they commit other acts in his
favour, or commit hostile acts against a belligerent, they acquire
enemy character (article 17 of Convention V.). All measures that are
allowed during war against enemy subjects are likewise allowed against
such subjects of neutral Powers as have thus acquired enemy character.
For instance, during the late South African War hundreds of subjects of
neutral States, who were fighting in the ranks of the Boers, were
captured by Great Britain and retained as prisoners until the end of the
struggle. Such individuals must not, however, be more severely treated
than enemy subjects, and, in especial, no punitive measures are allowed
against them (article 17 of Convention V.). And article 18(_a_) of
Convention V. stipulates expressly that subjects of neutral States not
inhabiting the territory of the enemy or any territory militarily
occupied by him do not acquire enemy character by furnishing supplies or
making loans to the enemy, provided the supplies do not come from the
enemy territory or any territory occupied by him.[143]
[Footnote 143: Since Great Britain has entered a reservation against
articles 16, 17, and 18 of Convention V. she is not bound by them. It
is, however, of importance to state that articles 16, 17, and
18(_a_)--not 18(_b_)!--enact only such rules as were always customarily
recognised, _unless such an interpretation is to be put upon article 16
as prevents a belligerent from considering subjects of neutral States
inhabiting the enemy country as bearing enemy character_. The matter is
different with regard to article 18(_b_), which creates an entirely new
rule, for nobody has hitherto doubted that the members of the police
force and the administrative officials of the enemy bear enemy character
whether or no they are subjects of the enemy State.]
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