Hague Conventions

By 1939, the League of Nations was discredited. It was no longer functioning in terms of international law. The rules for war had far older antecedents. The 1856 Declaration of Paris was still a very effective step towards developing a legal structure for armed conflict at sea. It abolished privateering and set rules for when neutral goods and contraband could be seized. The United States did not sign up to the declaration as they felt it did not go far enough in protecting private property. The US was, however, active at the next large international conference on this subject, the First Hague Peace Conference in 1899. There had been an earlier attempt at Brussels in 1874, to regulate the rules of war, but it had never been ratified. Now, the major states were trying again.

This time it worked; to a point. The precursor for the League of Nations was created in a series of international forums for settling international disputes. The conduct of war on land was regulated; the Geneva Convention of 1864 was adapted for war at sea, dealing with sailors that were sick or wounded. In addition, they tried to limit the use of ‘projectiles and explosives from balloons’, the use of dum-dum bullets and of toxic gases.

When the Russians and the Americans called for a second Hague Conference in 1907 it was not difficult to persuade the original participants to return to the negotiating table. Now they had the experience from the first time around to draw on, and the results were far more wide ranging. The result was a set of rules which were still acknowledged as part of the relevant rules of land-based warfare at the time of the Nuremberg International Military Tribunal after World War II. The United States, Russia, Germany, Great Britain and Norway were all signatories to the 1907 Conventions.

The outcomes of the Hague Conference of 1907 were set out in a series of resolutions, known as Conventions[1]:

Hague I Pacific Settlement of International Disputes

Hague II Limitation of Employment of Force for Recovery of Contract Debts

Hague III Opening of Hostilities

Hague IV Laws and Customs of War on Land

Hague V Rights and Duties of Neutral Powers and persons in Case of War on Land

Hague VI Status of Enemy Merchant Ships at the Outbreak of Hostilities

Hague VII Conversion of merchant Ships into War Ships

Hague VIII Laying of Automatic Submarine Contact mines

Hague IX Bombardment by Naval Forces in Time of War

Hague X Adaptation to Maritime War of the Principles of the Geneva Convention

Hague XI Restrictions With regard to the Exercise of the Right of Capture in Naval War

Hague XIII Rights and Duties of Neutral Powers in Naval War

Never ratified:

Hague XII Relative to the Creation of an International Prize Court

In terms of relevance to the City of Flint in 1939, it was Hague XIII that was the relevant one. The large omission, however, was any way of dealing with the German intermediate status of a ship that belong to the state, but that was, according to Germany, not a warship, even if it was armed for defensive purposes. As a Prize was the result of an act of war, and the bringing home of a Prize was continuing that act of war, it was, by the Norwegians regarded as a warship. She was under the command of an officer from the Kriegsmarine, who, supported by a group of armed soldiers, was taking the ship to a port other than the ones originally intended.

Norway had, in her own neutrality legislation specified which parts of the territorial waters that could be entered and for how long. The maximum stay was 24 hours. In fact, the Norwegian legislation follows Hague Convention XIII quite closely, but provides a lot more detailed provisions.[2]

This Convention is quite categorical in its rule on a Prize brought into a neutral port: Article 22: “A neutral Power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article 21.” Article 21 allows for emergency reasons, unseaworthiness, and lack of fuel or provisions as reasons for calling at neutral ports. None of the conditions of Article 21 applied in Haugesund in early November 1939. The fact that Germany was a signatory to Hague Convention XIII, did not appear to stop them trying to work around it.

In April 1940, German Naval High Command published a 65-page booklet entitled “Laws of the War at Sea, a Collection”, the subtitle was “ Prize Regulations with instructions for the Commander”. The booklet describes the procedures in accordance with the laws as introduced the previous autumn. It sets out in great detail the procedures for seizure of a Prize etc. At the back, there is a series of appendices. Appendix 4 lists individual nations’ legal restrictions on other nations’ warships sailing through or visiting ports on their territory. It even has a column for Prizes. The table recognises that under Convention XIII, warships are allowed only 24 hours in neutral territorial waters. It also claims that Hague XIII allows for transit through territorial waters for Prizes without any time limit. In reality this is not specified on the Hague Convention.The booklet goes on to say that, according to Convention XIII a Prize may only call at a neutral port in cases of emergency. Each nation covered by the booklet is then listed in turn, below each other. In the case of Norway, it is quite clear, a Prize may not stop unless there is an emergency onboard.

The German booklet’s Appendix A is nearly even more revealing about the relationship between the German warship capturing the Prize and the Prize itself. In this section there is a series of template texts for various statements such as the overall report, the receipts for having taken goods or food from a ship and for commandeering a ship to transport the goods. There is also a ‘set of words’ to be used in the written authorisation issued by the occupying warship to the Officer in charge of the Prize Command:

“I... (name and rank), commander a German warship, order ......(name and rank) to charge of the Prize Command for the seized ship....(name) and order him to bring this Prize to a German port. The crew of the seized ship is ordered to obey him. The ship has the right to fly the flag of the German navy (the Kriegsmarine).”[3]

It is difficult to imagine a clearer link between Wenneker in the Deutschland and City of Flint Prize Crew Commander Pusback than a document like this. And we know that Pusback did fly the flag of the German navy when he did not want the Russian civilian customs authorities to interfere with the ship as he arrived in Murmansk.

[1] http://avalon.law.yale.edu/subject_menus/lawwar.as...

[2] Norsk Lovtidende 1938 pp 269-274 and pp 615 to 621

[3] Oberkommando der Kriegsmarine, Berlin 1940: Seekriegsrechtliches Sammelheft, Prisenordnung mit Kommandantenanweisungen. P.48