Contraband

“ It is also essential to keep in mind that the question of contraband has nothing to do with a blockade, for, under this drastic method of making warfare, everything is contraband. Contraband is a term applied to cargoes, such as rifles, machine guns, and the like, which are needed in the prosecution of war.
That a belligerent nation has the right to intercept such munitions on the way to its enemy has been admitted for centuries. ”

“ In the interest of the generally recognised principle of freedom of commerce between belligerents and subjects of neutrals, International Law does not require neutrals to prevent their subjects from carrying contraband; on the other hand, International Law empowers either belligerent to prohibit and punish carriage of contraband just as it—see above, § 383—empowers either belligerent to prohibit and punish breach of blockade. ”

“ So we get to this result: that when there is a cordon of cruisers the belligerent may seize anything, but when there are only isolated ships he may only seize contraband of war.
This test ceases to be rudimentary when we introduce another factor common to the two subjects—effectiveness. That the belligerent’s naval dispositions must be capable of doing what he proposes to do—in other words, must be effective to that end—is no less a feature of the law of contraband than it is of blockade. ”

“ And in the same case, of one of the contracting parties being engaged in war with any other power, to prevent all the difficulties and misunderstandings, that usually arise respecting the merchandise heretofore called contraband, such as arms, ammunition, and military stores of every kind, no such articles, carried in the vessels, or by the subjects or citizens of one of the parties, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals. ”

“ I am especially desirous of emphasising the proposition that carriage of contraband is no offence, either against international law or against the law of England.
1. The rule of international law upon the subject may, I think, be expressed as follows: "A belligerent is entitled to capture a neutral ship engaged in carrying contraband of war to his enemy, to confiscate the contraband cargo, and, in some cases, to confiscate the ship also, without thereby giving to, the Power to whose subjects the property in question belongs any ground for complaint." ”

“ These documents concerning contraband are important, furthermore, for the German point of view, which became known under the slogan of “Hunger Blockade” and which played an important part in all German deliberations about the conduct and the intensification of naval warfare. The documents contain in detail the German contraband regulations, the British regulations, and two German statements concerning these contraband regulations. ”

“ In the public treaties down to the present time, do we in fact see any prohibition than that of transportation of contraband goods to an enemy? No nation, not even the most powerful, or those who could, with impunity, exercise the right of the strongest, have ventured, in their declarations of war, dictated by the most violent animosity, to prohibit neutrals from the impartial sale of any goods in their own territory. ”

“ Granting that an article like French sugar might be carried in a neutral vessel, there were still other articles, called contraband, which ought not to be made objects of neutral commerce; and England was obliged to define the nature of contraband. She was also forced to make free use of the right of blockade. These delicate questions were embittered by another and more serious quarrel. The European belligerents claimed the right to the military service of their subjects, and there was no doubt that their right was perfect. ”

“ There was nothing in the other facts to make the seizure legal, in consequence of having previously carried contraband. 3. The seizure was not lawful, because no contraband articles were on board at the time of the seizure. This point of course depends on another: that to justify a seizure for contraband, the contraband goods must be seized.
The character of contraband trade, jure belli, is in one respect peculiar. It is a trade which a neutral has a right to carry on; and which a belligerent has a right to intercept and to confiscate. ”

“ You can only blockade the ports of your enemy, and the South African Republics have no port of their own. The three other inconveniences must, however, all be endured—viz. prohibition to carry "contraband," prohibition to engage in "enemy service," and liability to be "visited and searched" anywhere except within three miles of a neutral coast, in order that it may be ascertained whether they are disregarding either of these prohibitions, as to the meaning of which some explanation may not be superfluous.
1. "Carriage of contraband" implies (1) that the goods carried are fit for hostile use ”

“ There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent—see below, § 395—that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles. ”

“ Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive assistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. ”

“ Articles which a neutral nation is not allowed to carry to an enemy, are called contraband goods. What these are, it is impossible to say with precision, as some articles may in certain cases be lawfully carried, which would be justly prohibited under other circumstances. ”

“ Gibson Bowles in your issue of this morning rightly announce that every person engaging in breach of blockade or carriage of contraband "will be justly liable to hostile capture and to the penalties denounced by the law of nations in that behalf, and will in no wise obtain protection from us against such capture or such penalties." ”

“ While the Spanish Decree of April 23 set out only one list of contraband goods, the United States Instructions of June 20 recognised two lists—viz. of "absolute" and of "conditional" contraband, including under the latter head "coal when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined for an enemy's forces, provisions, when destined for an enemy's ship or ships, for a place besieged." ”

“ The destination of articles of absolute contraband is, according to article 30, to be considered hostile if it be shown that they are being sent either to enemy territory, or to territory occupied by the enemy, or, further, to the armed forces of the enemy. ”

“ The latter is liable to capture only when a violation of blockade is intended; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. ”

“ Great Britain now proceeded to apply it to that nebulous class of commodities known as "conditional contraband," the chief of which was foodstuffs. If the United States, while a war was pending, could evolve the idea of "ultimate destination" and apply [pg II-62] it to absolute contraband, could not Great Britain, while another war was pending, carry it one degree further and make it include conditional contraband? Thus reasoned the British Foreign Office. ”

“ What constitutes contraband is not precisely settled; the limits are not absolutely the same for all Powers, and variations occur in particular treaties; but, speaking generally, belligerents have a right to treat as contraband, and to capture, all munitions of war and other articles directly auxiliary to warlike purposes. The neutral carrier engages in a contraband trade when he conveys official despatches from a person in the service of the enemy to the enemy’s possessions ”

“ In our treaty with Prussia, indeed, we have gone ahead of other nations, in doing away restraints on the commerce of peaceful nations, by declaring that nothing shall be contraband. For in truth, in the present improved state of the arts, when every country has such ample means of procuring arms within and without itself, the regulations of contraband answer no other end than to draw other nations into the war. ”

“ Voices of the Contraband. Solvuntur risu tabulæ. An epigram abolished slavery in the United States. Large wisdom, stated in fine wit, was the decision, “Negroes are contraband of war.” “They are property,” claim the owners. Very well! As General Butler takes contraband horses used in transport of munitions of war, so he takes contraband black creatures who tote the powder to the carts and flagellate the steeds. As he takes a spade used in hostile earth-works, so he goes a little farther off and takes the black muscle that wields the spade. ”

“ It is the practice of a century, either in time of peace or after the outbreak of war, to declare the articles which it will consider as absolute or conditional contraband. It is true that a neutral Government is seriously affected by this declaration, as the rights of its subjects or citizens may be impaired. But the rights and interests of belligerents and neutrals are opposed in respect to contraband articles and trade and there is no tribunal to which questions of difference may be readily submitted. ”

“ Second, The neutral flag covers enemies' goods, with the exception of contraband of war. Third, Neutral goods, except of contraband of war, are not liable to capture under an enemy's flag. Fourth, Blockades, to be binding, must be effective--that is to say, maintained by a force really sufficient to prevent access to the coast of the enemy.' The adherence of other powers was requested to these principles," and all joined in signing it except the United States, Spain, and Mexico. ”

“ The tendency in modern times, however, is to treat horses as only conditional contraband. The only reason that they were not expressly declared contraband in the Anglo-Boer contest was the character of the war. Had the Transvaal been able to issue an authoritative declaration and insure respect for it by a command of the sea, horses and mules would have been considered technical contraband as in fact they were actual contraband, being nothing if they were not "warlike instruments." ”

“ I deny that a belligerent nation has been conceded ‘the right of visit and search, and the right of capture and condemnation’ of neutral ships engaged in unneutral service or carrying contraband for the enemy. ”

“ Just as a neutral is not obliged to prevent his merchantmen from carrying contraband, so he is not obliged to prevent them from rendering services to belligerents by carrying in the way of trade enemy troops, and the like, and enemy despatches. ”

“ For, on the one hand, certain articles with a hostile destination are considered contraband although the carrying vessel is destined for a neutral port, and, on the other hand, certain articles, although they are without a hostile destination, are considered contraband because the carrying vessel is to touch at an intermediate enemy port and is, therefore, destined for such port, although her ultimate destination is a neutral port. ”

“ This list represents a compromise, just as does the list of absolute contraband of article 22. Those opponents of the Declaration of London who object to foodstuffs being on the list of conditional contraband forget that several times in the past—see above, p. 486 (1) —belligerents have declared foodstuffs absolute contraband. [Pg 490]
Hostile Destination essential to Contraband. ”

“ That breach of blockade is as little punishable as carriage of contraband, seeing that it is but a commercial act of peaceable individuals, it being immaterial whether they are subjects of a neutral power or of the enemy. ”

“ The prize courts of all countries have held at different times that foodstuffs under certain circumstances are contraband, as, for instance, where they are intended for the supply of a belligerent garrison as well as in less obvious cases, but any decision which considered foodstuffs generally as contraband would be disquieting to all neutral interests. ”

“ There seems little certainty as to the exact circumstances under which a belligerent may treat foodstuffs as contraband, although it is generally admitted that under certain conditions such goods may be so considered. On the other hand doubt is expressed by many writers upon international law as to whether it is ever possible to treat as contraband of war such articles as are necessary for the sustenance of a people. ”