Dogger Bank Case, Scott
Hague Court Reports 403; 1916
FACTS:
In the early 1900s, Russia was in conflict with Japan. Russian fleets were directed to beware of torpedo boats disguised as fishing boats. One dark night in the North Sea, the Russian fleet saw a green rocket shot into the sky. The rocket was fired by a group of British fishing boats and was a directional indication from the leader of the fishing expedition to others in the expedition. Russian lookout men saw the fishing boats but thought they looked suspicious, and were potentially torpedo boats. The Russian fleet opened fire, killing two fishermen and causing severe damage to the fishing fleet. Great Britain wanted to bring the Russian admiral to trial. Russia did not want to submit its admiral to a British trial, but eventually agreed to submit the question of liability and punishment to the Permanent Court of Arbitration. The commissioners hearing the inquiry were five admirals, from Great Britain, Russia, the United States, France, and Austria.
ISSUE:
Is Admiral Kojdestvensky liable for the damage caused to the trawlers?
RULING:
YES. The majority of the commissioners express the opinion, on this subject, that the responsibility for this action and the results of the fire to which the fishing fleet was exposed are to be attributed to Admiral Kojdestvensky.
Fire was immediately opened on this second object, and was, therefore, being kept up on both sides of the ship, the line of ships having resumed their original course by a correcting movement without changing speed. The fire, which lasted from ten to twelve minutes, caused great loss to the trawlers. Two men were killed and six others wounded; the Crane sank; the Snipe, the Mino, the Moulmein, the Gull, and the Majestic were more or less damaged. On the other hand, the cruiser Aurora was hit by several shots.
The majority of the commissioners observe that they have not sufficiently precise details to determine what was the object fired on by the vessels; but the commissioners recognize unanimously that the vessels of the fishing fleet did not commit any hostile act, and the majority of the commissioners being of opinion that there were no torpedo boats either among the trawlers nor anywhere near, the opening of fire by Admiral Rojdestvensky was not justifiable.
The Russian commissioner, not considering himself justified in sharing this opinion, expresses the conviction that it was precisely the suspicious-looking vessels approaching the squadron with hostile intent which provoked the fire.
This mistake might have been caused by the fact that this vessel, seen from astern, was apparently showing no light, and by a nocturnal optical illusion which deceived the lookout on the flagship.
The majority consider that, as has already been said, they have not before them sufficient data as to why the fire on the port side was continued.
In any case, the commissioners take pleasure in recognizing, unanimously, that Admiral Rojdestvensky personally did everything he could, from beginning to end of the incident, to prevent trawlers, recognized as such, from being fired upon by the squadron.
Finally, Dmitri Donskoi, having signaled her number, the Admiral decided to give the general signal for "cease firing." The line of his ships then continued on their way, and disappeared to the southwest without having stopped.
On this point the commissioners recognize, unanimously, that after the circumstances which preceded the incident and those which produced it, there was, at the cessation of fire, sufficient uncertainty with regard to the danger to which the division of vessels was exposed to induce the Admiral to proceed on his way.
Nevertheless, the majority of the commissioners regret that Admiral Rojdestvensky, in passing the Straits of Dover, did not take care to inform the authorities of the neighboring maritime powers that, as he had been led to open fire near a group of trawlers, these boats, of unknown nationality, stood in need of assistance.
In conclusion, the commissioners declare that their findings, which are therein formulated, are not, in their opinion, of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky, or of the personnel of his squadron.
Naulilaa Incident Arbitration Case
Portugese-German Arbitral Tribunal; 1928
FACTS:
During World War I, a party of German officials and officers entered the neutral Portuguese colony of Angola to negotiate the purchase and transportation of food supplies from the Portuguese. An altercation arose and three Germans were mistakenly shot and killed in Naulila on the border of Angola. The incident did not violate any international laws. However, due to the incident, Germany carried out a military raid, causing several casualties and severe property damage. Though German military action did not rise to the level of war, it was directed at no less than five distinct posts. The German action was not preceded by any demand satisfaction for the killings of the three men prior to the attacks nor by any attempt to negotiate a peaceful resolution of the impending conflict. The German government characterized its military action as a reprisal, apparently for crimes perpetrated against its officials and citizens on Portuguese territory. Portugal, on the other hand, established a special arbitral tribunal based on the Treaty of Versailles, seeking to hold Germany responsible for the attacks.
ISSUE/S: Was a reprisal legally undertaken by the German government?
RULING: NO. Before reprisals could be legally undertaken, a number of conditions had to be satisfied: 1. there had to be a previous act by the other party that violated international law; 2. reprisals had to be preceded by an unsatisfied demand for reparation or compliance with the violated international law; and 3. there must be proportionality between the offence and reprisal.
Thus, in this case, the conduct of the Germans was illegal. The killing of the three German nationals was the result of a miscommunication and was not the result of any violation of international law. Accordingly, Germany was not justified in taking its reprisal on Portugal. Further, even if Portugal’s killings were in violation of international law, Germany’s attacks would still not be justified because (1) Germany did not demand satisfaction from Portugal prior to the attacks, and (2) the reprisal was not proportional to but much more excessive than the original killings. Because Germany’s reprisal was not legal, Portugal is entitled to reparations.
No comments:
Post a Comment