Legal Status

Public war is a state of armed hostility between sovereign nations or governments (GO 100, Art 20).

So that the first effect of war between two states is to cause every subject of the one to become an enemy of every subject of the other, since it is impossible to sever the subjects from their state (GO 100, Art 21).

• “The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.” The foregoing is both the American and English view. (Vide Land Warfare, Opp., p.15).

Right of Control

Every belligerent state possesses the inherent right to take such steps as it may deem necessary for the control of all persons whose conduct or presence appears dangerous to its safety (Int Law Dig, Moore, Sec 1116). In strict law enemy subjects located or resident in hostile territory may be detained, interned, in designated localities, or expelled from the country (Act 06 July 1798, 1 Stat., 577, R.S. Sect. 4067).

• Int. Law Dig. Moore sec. 1116: “Various measures have been adopted by governments in relation to alien enemies residing within their territory. Such persons may, says Rivier, be detained, especially those subject to military service; or they may be interned in determinate places or yet may be expelled, a brief delay being allowed them to settle up their affairs. But such measures, although justified by the right of self-preservation, are less and less practiced, and are often criticized as not being in harmony with the spirit of modern war.”
• Act July 6, 1798 ; 1 Stat 577 ‘ R. S see. 4067: “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President makes public proclamation of the event. all male natives, citizens, denizens or subjects of the hostile nation or government, who are 14 years old and upward, and who are not actually naturalized, may be liable for removal as alien enemies; and the President is authorized to direct the conduct to be observed, on the part of the United States toward aliens who are liable to removal, the manner and degree of restraint to which they may be subjected, and the security upon which their residence may be permitted.” Sec. 4069: The courts of the United States having criminal jurisdiction are authorised to enforce such proclamations.
• The President need not call in the judiciary to enforce these provision. (Lockington v Smith, Pet. C. C., 406.).
• “The Government may prescribe the conditions under which its executive officers are to deal with its alien enemies” (C. & O.R.R. v U.S. 20, C. CIs., 49).

Modern Practice as to Status

It is now universally recognised that hostilities are restricted to the armed forces of belligerents and that the unarmed citizens who refrain from acts of hostility and pursue their ordinary avocations must be distinguished from the armed forces of the belligerent, must be treated leniently, must hot be injured in their lives or liberty, except for cause or after due trial, and must not, as a rule, be deprived of their private property.

• G.O. 100, 1863, Art. 22. “Nevertheless as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property and honor as much as the exigencies of war will admit.” As to what is meant by “armed forces,” see infra, Ch. 111, pp.21-24.

Practice as to Detention and Internment

Enemy subjects are not made prisoners, en masse on the breaking out of hostilities. Persons known to be active or reserve officers, or reservists, of the hostile army, as well as persons suspected of communicating with the enemy, will be detained and, if deemed advisable, interned on the ground of self-preservation, in the exercise of the right of control.

• Napoleon based his action in making prisoners of war of all British subjects between 18 and 60 years of age in 1803 (the last case of the kind) on the ground of retaliation or reprisal.
• Hague Convention, 1907, Actes, Vol. 111, p.109, discussed the following proposition: “Subjects of a belligerent residing in the territory of the adverse party will not be placed in confinement unless the exigencies of war render it necessary.” It was suggested that the words “nor expelled,” be Inserted after the word “confined,” but no action was taken. (Vide also pp.9, 10, and 110).
• Vide notes 1 and 2, par. 25, supra; also Land Warfare, Opp., pp.15-16.

Practice as to Expulsion

In modern practice the expulsion of the citizens or subjects of the enemy is generally decreed from seaports, fortresses, defended areas, and the actual or contemplated theatres of operation. From other territory the practice is not uniform, expulsion being resorted to usually for grave reasons of state only. When decreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable them to arrange for the collection, disposal, and removal of their goods and property.

• During the Crimean War British subjects were expelled from the Russian seaports of Cronstadt, Odessa, and Sevastopol.
• Japanese subjects mere expelled from Siberia, Vladivostok, and Port Arthur in 1904. (Ariga, pp.363-4.).
• In 1905 the Japanese expelled all foreigners from Port Arthur, except about 20, as soon as the defences were completed.
• In 1870 every German in Paris and Department of The Seine was ordered to leave.
• In the Crimean War Russian subjects were allowed to reside with-out molestation in Great Britain and France.
• In 1870 Frenchmen were permitted to remain in Germany. On the contrary, German citizens were at first permitted to remain in France, but afterwards were required to leave, on the ground of personal safety and public defence.
• In 1877 Turkish subjects in Russia were permitted to remain and continue their business subject to the laws.
• In the Spanish-American War the subjects of both belligerents were permitted to remain or withdraw.
• In the Russo-Japanese War Russian Subjects were authorised to remain in Japan and were assured of the protection of their lives, honour, and property, although a reservation was made as to surveillance or other measures taken by military or naval authorities for military purposes, and limitations were placed as to change of domicile or journeys in case the Government saw fit. (Ariga, p.43).
• Japanese subjects were allowed to continue, under the protection of the Russian laws, their sojourn and the exercise of peaceful occupations in the Russian Empire, except in territories which are under the control of the Imperial viceroy in the Far East.
• In 1879 Chileans were expelled from Bolivia and their goods confiscated.
• U.S.R. Stat. sec. 4068: “When an alien who becomes liable to removal as an enemy is not chargeable with actual hostility or other crimes against public safety, he must be allowed for the recovery, disposal, and removal of his goods and effects and for his departure, the full time which may be stipulated in any treaty; and where no such treaty exists the President may fix such reasonable time as may be consistent with public safety and according to the dictates of humanity and national hospitality.”

References

GO (General Order) 100, 1863 Articles 20-22.

US Army. (1914) Rules of Land Warfare. Available from World Wide Web: http://www.loc.gov/rr/frd/Military_Law/pdf/rules_warfare-1914.pdf. [Accessed: 28 September, 2015].