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CONTRABAND OF WAR.
By John Bassett Moore.
(Read February 2, 1912.)
The word contraband (Italian, contrabbando; Spanish, contrabando) signifies something prohibited—a trade carried on, or an article imported or dealt in, in violation of some inhibition. Thus, smuggled goods are often spoken of as contraband.
The term contraband of war denotes commodities which it is unlawful to carry to the country, or to the military or naval forces, of a belligerent. By a “belligerent” is meant one of the parties to a war. Often the word “enemy” is used instead of “belligerent." Writers constantly speak of an “enemy” or “enemy's” country, an “enemy” ship, or “enemy” goods, meaning thereby merely that the country, or the ship, or the merchandise, is that of a party to a war, that is to say, of a belligerent government or of one of its citizens. Sometimes the word "hostile” is used instead of “enemy."
When war breaks out between two countries, the carrying on of trade by the citizens of the one country with those of the other becomes unlawful; but the same general interruption does not extend to the commercial intercourse between the parties to the war and third parties, called neutrals. The intercourse between the belligerents and neutrals continues. This continuance is regarded not as a favor granted to the belligerents but as a right belonging to neutrals. As between the belligerents, neither is required to grant to the other any privilege in respect of trade. On the contrary, they endeavor to subdue each other by attacks upon persons and upon property. This is their acknowledged right. But the rest of the world, composed of neutral powers, having no part in the quarrel and perhaps little concern in the issue, also has its rights. Its interests and convenience are not to be wholly subordinated and sacrificed to the exigencies of the one or the other of the belligerents,
each of whom, while desirous to preserve its own trade, would of course be glad to cut off altogether that of its enemy; and it is therefore acknowledged to be the right of neutrals to continue their commerce with the belligerents, subject only to the restrictions imposed by the law of contraband and of blockade.
In proceeding to the discussion of the particular subject of contraband, it is proper to advert to the confusion which seems so widely to prevail as to the legal position of the prohibited trade. The statement is frequently made that the trade in contraband of war is lawful, even though this broad affirmation be immediately followed by the admission that the trade is carried on subject to the risk of capture and confiscation of the goods, and of the detention, loss of freight and perhaps even the confiscation of the ship. This admission should alone suffice to put us on our guard. Merchandise is not confiscated, voyages are not broken up, ships are not condemned, for acts that are innocent; these severe and destructive inflictions are penalties imposed for acts that are unlawful. The confusion so often exhibited on this subject is due to the neglect of certain simple but fundamental truths, namely, that, in the international sphere, and particularly in matters of neutrality, the criterion of lawfulness is primarily furnished by international law and not by municipal law, lawfulness according to the latter by no means implying lawfulness according to the former; that, between the acts which neutral governments and their citizens are forbidden to commit and the acts which neutral governments are obliged to prevent, there is a wide distinction; that, by international law, acts that are unneutral in the sense of being unlawful are, from the point of view of their prevention and punishment, divided into two classes, (1) those which neutral governments are bound to prevent and punish, and (2) those which neutral governments are not bound to prevent and punish; that municipal law is supposed to prohibit, not all the unneutral acts which international law forbids, but only that part of them which neutral governments are bound to repress, the prevention and punishment of the rest being left to the belligerents as the parties primarily interested. Obviously, the determination of the question whether an act is lawful or unlawful depends not upon
the circumstance that the right or duty to punish it is committed to one agency or another, but upon the fact that it is or is not punishable. The proof that it is unlawful is found in the fact that its commission is penalized. All acts for the commission of which international law prescribes a penalty are in the sense of that law unlawful. That there are various acts of this kind, such as the supplying of contraband of war to a belligerent, which neutrals are not obliged to prohibit and punish by their municipal law, merely signifies that the interests of neutrals have not been regarded as negligible, and that there are limits to the burdens which they have been required to assume and to the exertions which they are required to make. Should a neutral government itself supply contraband of war to a belligerent it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this risk his government can not assure him protection without making itself a party to his unneutral act.
These propositions are abundantly established by authority..
Maritime states, says Heffter, have adopted, in a common and reciprocal interest, the rule that belligerents have the right to restrict the freedom of neutral commerce so far as concerns contraband of war, and to punish violations of the law in that regard. . . . This right has never been seriously denied to belligerents.”
The principal restriction which the law of nations imposes on the trade of neutrals is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes.
If the neutral (government) should send powder or balls, cannon or rifles, this would be a direct encouragement of the war, and so a departure from the neutral position. ... Now, the same wrong is committed when a private trader, without the privity of his government, furnishes the means of war to either of the warring parties. It may be made a question whether such conduct on the part of the private citizen ought not to be prevented by his government, even as enlistments for foreign armies on neutral soil are made penal. But it is difficult for a government to watch narrowly the operations of trade, and it is annoying for the innocent trader. Moreover,
* Heffter, “ Droit Int.,” Bergson's ed., by Geffcken, 1883, p. 384.
the neutral ought not to be subjected by the quarrels of others to additional care and expense. Hence by the practice of nations he is passive in regard to violations of the rules concerning contraband, blockade, and the like, and leaves the police of the sea and the punishing or reprisal power in the hands of those who are most interested, the limits being fixed for the punishment by common usage or law. ... It is admitted that the act of carrying to the enemy articles directly useful in war is a wrong, for which the injured party may punish the neutral taken in the act.
The right of belligerents to prevent neutrals from carrying to an enemy articles that may serve him in the direct prosecution of his hostile purposes has been acknowledged by all authorities, and is obvious to plain reason. ... The nonrecognition of this right ... would place it in the power of neutrals to interfere directly in the issue of wars—those who, by definition, are not parties in the contest thus receiving a power to injure a belligerent, which even if direct enemies they would not possess."
A belligerent has by international law a right to seize at sea, and appropriate or destroy, articles, to whomsoever they may belong, which are calculated to aid the belligerent's enemy in the war, and which are being conveyed by sea to that enemy's territory.
The neutral power is under no obligation to prevent its subjects from engaging in the running of blockades, in shipping or carrying contraband, or in carrying troops or dispatches from one of the belligerents; but, on the other hand, neutral subjects so engaged can expect no protection from their own government against such customary penalties as may be imposed upon their conduct by the belligerent who is aggrieved by it."
The fact that the supplying of contraband of war is considered as a participation in the hostilities is shown not only by the authority of writers, but also by numerous state papers.
Washington, in his famous neutrality proclamation of April 22, 1793, countersigned by Jefferson, as Secretary of State, announced that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing. aiding, or abetting hostilities against any of the said powers, or by carrying
* Woolsey, “Int. Law," $$ 178, 179.
© Holland, Studies in Int. Law," 124-125. See, also, Moore, Digest of Int. Law, VII., 972-973.
to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture.'
Jefferson, in his subsequent note to the British minister, May 15, 1793, observes that in the case of contraband the law of nations is satisfied with the “external penalty” pronouncecd in the President's proclamation.S
President Grant, in the proclamation issued by him August 22, 1870, during the Franco-German war, declares, in the most precise terms:
While all persons may lawfully, and without restriction, by reason of the aforesaid state of war, manufacture and sell within the United States arms and munitions of war, and other articles ordinarily known as “contraband of war,” yet they can not carry such articles upon the high seas for the use or service of either belligerent, ... without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf. And I do hereby give notice that all citizens of the United States, and others who may claim the protection of this Government who may misconduct themselves in the premises, will do so at their peril, and that they can in no wise obtain any protection from the Government of the United States against the consequences of their misconduct.
In the neutrality proclamations, issued during the war between the United States and Spain, the following provisions are found, in which the furnishing of arms and munitions of war to either party to the conflict is expressly treated as an act of unneutrality.
The Brazilian government, by a circular of April 29, 1898, declared to be “absolutely prohibited” the “exportation of material of war from the ports of Brazil to those of either of the belligerent powers, under the Brazilian flag or that of any other nation.”10
The King of Denmark issued April 29, 1898, a proclamation prohibiting Danish subjects “to transport contraband of war for any of the belligerent powers."11
Great Britain's proclamation of April 23, 1898, warned British subjects against doing any act“ in derogation of their duty as sub
'Am. State Papers, For. Rel., I., 140.
Moore, “ Digest of Int. Law," VII., 751.