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Recent Developments in the Treatment of Civilian Alien Enemies

Published online by Cambridge University Press:  25 April 2017

Robert R. Wilson
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Extract

The treatment of civilian alien enemies, either in the national jurisdiction of a belligerent or in occupied territory, presents questions of public international law as well as of municipal law and administration. It appears that in some of the United Nations in the present war the problem of internment of such persons has become less acute as the tide of battle has turned against the Axis. In Great Britain, for example, the number of aliens of enemy nationality interned under the Royal Prerogative, and whose release had not been authorized, was only 6,123 at the beginning of 1944 as compared with 17,940 at the beginning of 1941.

Type
Research Article
Information
American Journal of International Law , Volume 38 , Issue 3 , July 1944 , pp. 397 - 406
Copyright
Copyright © by the American Society of International Law 1944

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References

1 Wilson, R. R., “Treatment of Civilian Alien Enemies,” this Journal , Vol. 37 (1943), pp. 30–45 Google Scholar. On the desirability of discontinuing the use of “enemy alien” as a designation of all persons from the territory of the enemy, see Charles Gordon, “Status of Enemy Nationals in the United States,” Lawyers Guild Review, Vol. II (1942), pp. 9–20.

2 Statement of the Home Secretary in the House of Commons, Feb. 11, 1943, Parliamentary Debates, 5th ser., Vol. 386, p. 1436. In March, 1942, it had been stated that there were approximately 1,200 Japanese interned in the British Dominions. Same, Vol. 378, p. 1678.

3 The number, including those interned and those not interned, was given as approximately 10,000 after the exchange of 1942 and 1943, in a statement of Assistant Secretary of State Long on November 24,1943 (Hearings cited in note 31, below, Pt. 4, p. 240). The Assistant Secretary said that the American civilians in custody were generally in the hands of Japanese civilians.

Another estimate has put the number of American civilians still in the Far East at 8,300. Approximately 1,000 are said to be in hospitals or interned in their own homes. About 6,000 are said to be in internment camps, most of them located in the Philippines (four camps), in Shanghai (two camps), or in Weihsien in North China (one camp). John Cotton, “Civilian Internment Camps in the Far East,” Prisoners of War Bulletin, Vol. 2, No. 2 (Feb., 1944), pp. 2–4.

4 Department of State Bulletin, Jan. 15, 1944, p. 79.

5 Same, p. 78.

6 47 Statutes at Large, 2021, this Journal, Vol. 27 (1933), Supplement, pp. 59–86.

7 A condition inserted in the agreement was that there should be no involuntary labor on the part of civilians (i.e., labor other than that connected with administration, maintenance, and management of internment camps). Department of State Bulletin, May 23, 1942, p. 446.

8 New York Times, May 9, 1944, p. 10.

9 Prisoners of War Bulletin, Vol. 2, No. 5 (May, 1944), p. 1.

10 Department of State Bulletin, Jan. 15, 1944, pp. 81–84.

11 New York Times, May 24, 1944, p. 7.

12 As of March, 1944, for example, the Japanese had refused assent to the appointment of Delegates of the International Committee of the Red Cross to the Philippines, Thailand, Singapore, and the Netherlands Indies. (Statement of Maurice Pate, Director, Prisoners of War Relief, American Red Cross, in Prisonersof War Bulletin, Vol. 2, No. 3 (Mar., 1944), p. 2.)

13 John Cotton, as cited (note 3, above), p. 3.

14 Hearings cited in note 31, below, Pt. 4, p. 240. See also the statement by the same official as reported in New York Times, Feb. 17, 1944, p. 6.

15 New York Times, Feb. 17, 1944, p. 6.

16 Department of State Bulletin, Feb. 12, 1944, pp. 168–175.

Among the charges were: that Swiss representatives had not been permitted to go to every place of internment, to interview without witnesses, or to have access to all places occupied by the prisoners; that representatives of the International Red Cross had been refused permission to visit most of the places where American nationals are held; that Americans have not been permitted to forward complaints to Japanese holding authorities or representatives of the protecting Power; that the Japanese have confiscated personal effects of internees and have subjected them to insults and public curiosity; that the Japanese have refused to provide health-sustaining food or to permit the United States to make provision for shipping supplemental food and medical supplies; that the Japanese had, contrary to specific agreement, compelled civilians to perform labor other than that connected with administration, maintenance and management of internment camps; that adequate medical care had in many instances been denied; that complete lists of internees had not been furnished; that internees had not been permitted freely to exercise their religion; that the Japanese had not posted the 1929 Convention in camps in English translation, thus depriving internees of knowledge of their rights thereunder; that, through failure to provide adequate equipment and accommodations the Japanese had forced internees to subsist in inhumane conditions.

17 See, for example, the statement of President Roosevelt, as reproduced in Department of State Bulletin, Oct. 10, 1942, p. 797, and Prime Minister Churchill’s statement before the House of Commons on Sept. 8, 1942, in Parliamentary Debates, 5th Ser., Vol. 383, p. 97. See generally, on mistreatment of civilians of various United Nations, Punishment of War Criminals, a recent undated publication of the United Nations Information Office.

18 New York Times, May 8, 1944, p. 5 (reproducing estimate of the Russian publication, War and the Working Class), and May 13,1944, p. 4 (reproducing a statement of the Soviet Embassy Information Bulletin). The Soviet Extraordinary Commission for Investigation of German Atrocities charged that Germans in the Rovno region of Poland had murdered more than 102,000 civilians and prisoners of war.

19 For a comment on the subject of guerrilla status, see Wilson, G. G., “The Guerrilla and the Lawful Combatant,” this Journal , Vol. 37 (1943), pp. 494–5 Google Scholar.

20 That such acts have not been local to the Eastern front is suggested by the Badoglio Government’s charge that Germans had killed thirty Italian civilians (women, children, and old men) at the village of Sant’ Agata, in reprisal for the operation of Italian patriot troops behind German lines. New York Times, Feb. 24, 1944, p. 4.

21 Taylor Henry’s dispatch from Portugal, New York Times, Feb. 28, 1944, p. 5.

22 New York Times, May 8, 1944, p. 8. It was also reported that 12,000 Dutch patriots were held by the Germans as political prisoners.

23 See Garner, J. W., International Law and the World War (1920), Vol. II, pp. 183–4 Google Scholar.

One review of the situation with respect to the use of prisoners of war as laborers in the captor state offers a conclusion which might apply also to the use of civilian laborers: “Apart from isolated instances of exasperation due to the bitterness of the struggle, there would seem to be less evidence today of hatred and a desire for reprisals than of the determination to extract the greatest advantage from prisoners by fitting them as efficiently as possible into the economic machine of the belligerent countries.” “The Condition of Employment of Prisoners of War,” International Labor Review, Vol. XLVII (1943), pp. 169–196, at p. 193.

24 New York Times, Jan. 5, 1943, p. 5.

25 On its East-bound voyage the Gripsholm carried “ 18 members of the former French diplomatic and consular establishments in the United States, 26 German consular officers with their wives and families who came into custody of the United States during military operations in North Africa, a German consular officer and wife taken in Italy, and several hundred German nationals who entered the United States in 1942 from certain of the other American republics en route to Germany but who were unable to continue their voyage at that time.” Also on board were about 375 German nationals to be repatriated on humanitarian grounds (involving illness or other circumstances). On the return trip the vessel brought to the United States the staff of the former American Embassy at Vichy and of consular offices in France, together with certain newspaper correspondents and relief workers, and some persons repatriated on humanitarian grounds. Department of State Bulletin, Feb. 19,1944, p. 189. The final list included more than one hundred nationals of other American republics. Same, March 11, 1944, p. 238. For later exchange see same, pp. 511, 535.

26 New York Times, Feb. 26, 1944, p. 3.

27 “Studies and Sports in German Prison Camps,” Prisoners of War Bulletin, Vol. 1, No. 4 (1943), p. 1; Singleton, Russell C., “Civilian Internment Camps in Germany,” same, Vol. 2, No. 1 (1944), pp. 2 Google Scholar, 10.

28 “The Red Cross Fleet,” Prisoners of War Bulletin, Vol. 2, No. 4 (Apr., 1944), p. 1. In addition to the ships in the trans-Atlantic service, there are also certain “shuttle ships” which operate between Lisbon and Marseilles, for the purpose of carrying mail and supplies.

29 A Department of Justice press release of August 1, 1943, revealed that of the persons who had been before Alien Enemy Hearing Boards, 4,120 (including 1,891 Germans and 2,020 Japanese) had been interned. In a statement on Nov. 14, 1943, Assistant Secretary of State Long mentioned 3,174 as the number of aliens then interned. (Hearings cited in note 31, below Pt. 4, p. 228.)

In April, 1944, Admiral Nimitz was reported as saying that since the war began, 1,396 Japanese had been interned in Hawaii, and that 41 were interned in March of this year. New York Times, Apr. 12, 1944, p. 9.

30 First article referred to in note 1, above, at p. 43.

31 Relocation of Japanese Americans (publication of the War Relocation Authority, 1943), p. 2. See also War Relocation Centers, Hearings before the Subcommittee of the Senate Committee on Military Affairs, 78th Cong., 1st Sess., on S. 444, especially Pt. 1 (hearings of Jan. 20, 27, and 28, 1943), pp. 45, 59–60 (statement of Mr. Gufler of the Department of State), Pt. 2 (hearings of Feb. 11, 1943), p. 146 (statement of Mr. Myer), Pt. 4 (hearings of Nov. 24, 1943), pp. 247, 254 (statements of General Hayes). The records referred to are hereafter cited as Hearings.

At a meeting in Brooklyn in April, 1944, Mr. Harold S. Fistere, Supervisor of the War Relocation Authority in the Middle Atlantic district, referred to his agency’s problem of caring for 75,000 loyal Japanese in nine relocation centers. He said that the Government did not intend to keep behind barbed wire persons not charged with any crime, but sought to let them have normal lives. He mentioned 20,000 as the number resettled in the Middle West and in the East in the preceding fifteen months. New York Times, Apr. 27, 1944, pp. 1,4.

32 Statement of Director Myer, in Hearings, Pt. 4, p. 256.

For a suggestion, from a member of the Senate subcommittee, that Japan desired to receive, through exchange, those individuals who had been listed as loyal to the United States, perhaps in order to punish them, see Hearings, Pt. 3 (March 6, 1943), p. 166.

33 A recent report of the Special Committee on Un-American Activities, 78th Cong., 1st Sess., on H. Rep. 282, suggests that the practice of Shintoism in relocation centers “is treason per se” (App., Pt. VIII, sec. 2, p. 210). Ambassador Grew, however, in a statement before the Senate subcommittee, said that Shintoism was “not necessarily a cult which would interfere with our Government or country. … A perfectly loyal American-Japanese might have his little Shinto shrine in the house, might bow before it and burn incense before it every day, which is as much as to say he wants to keep in touch with the members of his family who have gone before.” (Hearings, Pt. 1, p. 113.) For the purpose of passing upon the point of whether Americanism and the practice of Shintoism are reconcilable, it seems necessary to distinguish between State Shinto and Sectarian Shinto. On this distinction, see Holtom, D. C., Modem Japan and Shinto Nationalism (1943), pp. 34 Google Scholar and following.

34 Hearings, Pt. 2, p. 155 (statement of Mr. Barrows, Executive Officer of the War Relocation Authority).

36 Quarterly Report, War Relocation Authority, October 1 to December 31,1942, pp. 49–50.

36 These include “(1) those persons who requested repatriation or expatriation to Japan, (2) citizens who refused during registration to state unqualified allegiance to the United States and aliens who refused to agree to abide by the laws of the United States, (3) those with intelligence records or other records indicating that they might endanger the national security or interfere with the war effort, (4) close relatives of persons in the above three groups who expressed a preference to remain with the segregants rather than disrupt family ties.” (Statement of Director Myer, as of November 14, 1943. Hearings, Pt. 4, p. 214.)

The question which is submitted to American citizens who are “relocated” is as follows: “Will you swear unqualified allegiance to the United States of America and faithfully defend the United States from any and all attacks from foreign or domestic sources and foreswear any form of allegiance or obedience to the Japanese Empire or any other foreign government, power, or organization?” (Hearings, Pt. 4, p. 226.)

37 Hearings, Pt. 4, p. 207.

38 Same, p. 281. When broadcasting that the Japanese were sending to the United States an indication of willingness to have a Japanese ship go to Vladivostok to pick up supplies for American prisoners of war and internees in the Far East, the Tokyo radio announced that the Japanese were protesting against certain treatment which the United States had accorded to Japanese nationals. New York Times, May 9, 1944, p. 10.

39 Department of State Bulletin, Feb. 12, 1944, p. 171.

40 Same, p. 170.

41 Note 31, above.

42 New York Times, April 27, 1944, pp. 2, 4. Following the reported protest of Mayor LaGuardia there was a move, on the part of an unofficial, inter-racial committee to provide a hostel for Japanese-Americans in the Brooklyn Heights section.

43 New York Times, May 9, 1944, p. 17.

44 320 U. S. 81, 97. The Court referred to the statement in Mears, E. G., Resident Orientals on the American Pacific Coast (1927), pp. 107–8 Google Scholar, 429, and to an estimate by the Japanese Consul General in San Francisco in 1927 that 51,000 out of approximately 63,000 Nisei in the Western United States at that time held Japanese citizenship.

45 Hearings, Pt. 1, p. 116.

46 The problem of relocation in general is complicated by reason of the great difficulty which there would be in separating Nisei from Japanese nationals, since this would mean dividing some families. Sensitiveness of the United States Supreme Court to the importance and delicacy of the issues involved is suggested in the tribunal’s holding that “…in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry,” while in the same opinion observing that “… distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” 320 U. S. at p. 100. Mr. Justice Douglas, concurring, said, as President Roosevelt had said in a letter to Mr. Secretary Stimson under date of February 1, 1943 (Hearings, Pt. 2, p. 158), that Americanism is a matter of the mind and heart, and not of race.

47 8 U.S.C.A., sec. 800.

48 Petition of Peterson, 33 F. Supp. 615 (1940). This case came up before the Nationality Act of 1940 went into effect, and while the statutory bar to expatriation, at times when the United States was at war, was still in effect.