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Treatment of Civilian Alien Enemies

Published online by Cambridge University Press:  12 April 2017

Robert R. Wilson
Robert R. Wilson*
Affiliation:
Duke University
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Extract

A large-scale problem for the principal belligerents in the present war is that of the treatment of civilians of enemy nationality in their respective jurisdictions. Measured in terms of the number of human beings involved, national safety considerations, and the possibly unfortunate effect at home of mishandling it, the problem assumes far-reaching importance. There is need for clear law as well as positive action. There is need for perspective. In relation to international law, the distinctiveness of the classification of “civilian alien enemy,” past effort looking to the construction of internationally binding rules prescribing treatment, and practice in the current war, merit attention.

Type
Research Article
Information
American Journal of International Law , Volume 37 , Issue 1 , January 1943 , pp. 30 - 45
Copyright
Copyright, 1943, by the American Society of International Law

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References

1 Cf. Biddle, Francis, “The Problem of Alien Enemies,” Free World, Vol. 3, pp. 201, 203 (Aug., 1942)Google Scholar.

2 See, for example, Oppenheim, International Law (6th ed.), II (1940), p. 172.

3 On the use of the term “prisoners of war” to designate persons other than military prisoners, see Flory, W. E. S., Prisoners of War (1942), pp. 24–27 Google Scholar.

4 42 Stat. (Pt. 2), 1939; this Journal, Vol. 16 (1922), p. 10.

5 Decisions and Opinions, p. 243, Docket No. 4259; this Journal, Vol. 19 (1925), p. 815.

6 Robert D. Trudgett claim, Dec. and Ops., pp. 806, 818, Docket No. 4890.

7 See note, “Who Is An Alien Enemy?”, The Solicitor, Vol. 9, No. 1, p. 4 (Jan., 1942); Harrison, Earl G., “Alien Enemies,” Penn. Bar Ass’n Quarterly, Vol. XIII, pp. 196–201 (Apr., 1942)Google Scholar; Otto C. Sommerich, this Journal, infra, p. 58.

8 On the treatment of property, see Gathings, James A., International Law and American Treatment of Alien Enemy Property (1940)Google Scholar.

9 Wilson, R. R., “Standards of Humanitarianism in War,” this Journal, Vol. 34 (1940), pp. 320–324 Google Scholar. On the development of law on the general subject, see Wm. E. S. Flory, op. cit. The recently reported death by starvation of thousands of Russians held as prisoners of war in Finland is a reminder that this part of the problem is not completely solved by the elaboration of rules.

10 See the list in Hall, International Law, 4th ed., p. 407n. At the outbreak of war between France and England in 1803, Napoleon held some ten thousand English civilians, but apparently without making any claim that he could rightfully make them prisoners of war. Rather, his act was one of reprisal against the British for their initiation of hostilities by capture of French merchantmen without a declaration of war. See Fauchille, , Droit international public (1921), II, Sec. 1052Google Scholar.

A useful short summary of action taken in the World War of 1914–1918 is in the sixth edition of Oppenheim, op. cit., at pp. 248–251.

11 II Miller, Treaties, 162, 178. There was a similar provision in Art. XII of the treaty of commerce and navigation with Italy, Feb. 26, 1871 (17 Stat. 845, 855). Such provisions are not in the 1884 and 1911 commercial treaties between the United States and Japan (29 Stat. 848, 37 Stat. (Pt. 2), 1504), nor in the 1923 treaty of friendship, commerce and consular rights with Germany (44 Stat. 2132).

The United States statute to give effect to such treaties provided: “When an alien who becomes liable as an enemy in the manner prescribed in Section 21 of this title is not chargeable with actual hostility, or with crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality. “R. S. Sec. 4068, as derived from Act of July 6, 1798, c. 66, Sec. 1, 1 Stat. 577, Act of July 6, 1812, c. 130, 2 Stat. 781, 50 U.S.C.A., Sec. 22.

12 36 Stat. 2277, Annex, Sec. III.

13 11 Nouveau Recueil Générai (3rd ser.), 37, 68, 86. A text of the German-American rules is in U.S. Foreign Relations, 1918, Supp., II, pp. 103–157.

14 Art. 169. Art. 170 would have put limitations upon the labor which captors could require of civil prisoners. The work of camp maintenance and sanitation could be required. Prisoners might be given other work upon their own request.

15 47 Stat. 2021; this Journal, Supp., Vol. 27 (1933), p. 59.

16 French text in Quinzième Conférence Internationale de la Croix-Rouge (1934), pp. 262–268. Quotations in this comment are from an English translation of this text.

17 The plan contemplated the organization of civilians’ departure, taking into account “all the exigencies of humanity,” and permitted special agreements among belligerents on repatriation.

18 In the case of either category, recourse to the protecting Power was to be permitted. The protecting Power could demand that an inquest be instituted and the result communicated to it within three months after demand.

19 Delegates designated by a protecting Power from its own nationals or from those of other neutral States, when approved by the belligerent in whose territory they were to exercise their missions, were to be authorized to go into any locality where civilians were interned, and to be allowed to converse with them either personally or through interpreters and, as a general rule, without witnesses; military authorities were to be informed of their visit. The plan further contemplated agreements between belligerents permitting persons of the same nationality as the interned civilians to participate in tours of inspection.

20 In this connection, each protecting Power was to be allowed to propose a meeting of belligerents’ representatives in properly selected neutral territory. The International Committee of the Red Cross was to be invited to assist at the meeting. Furthermore, these dispositions were “not to be construed as an obstacle to the humanitarian activity that the International Red Cross Committee may be able to inaugurate for the protection of enemy civilians, the consent of the interested belligerents having been obtained.”

21 Document cited in note 16, supra, p. 203 (report of Mme. Frick-Cramer).

22 Koessler, Maximilian, “Enemy Alien Internment: With Special Reference to Great Britain and France,” Political Science Quarterly, Vol. 57, pp. 98, 111 (March, 1942)CrossRefGoogle Scholar. Cf. comment, “Alien Enemies and Japanese-Americans: A Problem of Wartime Controls,” Yale Law Journal, Vol. 51, No. 8, pp. 1316, 1317 (June, 1942).

23 Kempner, Robert M. W., “The Enemy Alien Problem in the Present War,” this Journal, Vol. 34 (1940), pp. 443–458 Google Scholar; Rosenberg, Warner, “Aliens—Friends and Enemies,” Contemporary Jewish Record, Vol. 5, pp. 282–290 (June, 1942)Google Scholar. See, in regard to municipal law aspects of internment in Great Britain, Cohn, E. J., “Legal Aspects of Internment,” Modern Law Review, Vol. 4, pp. 200–209 (Jan., 1941)CrossRefGoogle Scholar.

24 Parliamentary Debates, 5th ser., Vol. 362, p. 1234 (statement in the House of Commons, July 10,1940, by Mr. Peake, Under Secretary of State for the Home Department); section on “Alien Enemy Control in Great Britain,” in Tolan Committee report, cited in note 44, infra, p.42.

25 Parl. Deb., 5th ser., Vol. CXIV, p. 1482. On British internment, see especially Cmd. 6217, Cmd. 6223, Cmd. 6233.

26 League of Nations Doc. C. 75. M. 30.1938. Refugees coming from Germany were “persons who are proved not to enjoy in law and in fact the protection of the Gierman Government.” By Art. 8, par. 1, “refugees shall have, in the territories to which the present convention applies, free and ready access to the courts of law.” One writer has pointed out that the exclusion of certain refugees from the enemy country from the classification of “alien enemies” dates back, in England, to the Anglo-French War after the revocation of the Edict of Nantes. The English King did not include the French Huguenots in the category of his enemies. Warner Rosenberg, loc. cit. See also, Feist, H. J., “The Status of Refugees,” Modern Law Review, Vol. 5, pp. 51–53 (July, 1941).CrossRefGoogle Scholar

27 Parl. Deb., 5th ser., Vol. 362, p. 1238 (July 10, 1940). The debate brought out that six to seven thousand of the most dangerous internees had been sent to Canada, including some Nazi seamen who were classified as civilian internees. (Ibid., p. 1245.) When the British Government proposed to release some of the internees who had been sent overseas, the Dominion Government apparently objected, on the ground that the persons had been sent for safekeeping, and not for immigration. See “Position of Aliens in Great Britain in War Time,” The Social Service Review, Vol. 16, pp. 327–332 (June, 1942).

28 Parl. Deb., 5th ser., Vol. 361, pp. 1124, 1126. The Under-Secretary said that persons could, of course, communicate with their friends, so that there was no question of anybody’s being detained without other persons being aware of the circumstances.

29 See, for example, Lafitte, Francois, The Internment of Aliens (1940), p. 76 et seq., and p. 178Google Scholar. This author particularly criticized the proposals to “intern the lot” and to keep all but “useful” enemy aliens locked up. A reference to statistical information was made in the House of Commons on July 31, 1940, by Mr. Peake, : “The staff of the Home Office are devoting all their attention at the present time to going through the categories of persons who have been interned by mistake, and I do not want to divert them from that job in order to procure statistical information of an elaborate character.” (Pari. Deb., 5th ser., Vol. 363, p. 1230.Google Scholar)

30 Parl. Deb. (Commons), 5th ser., Vol. 378, p. 1645 (March 19, 1942). It was stated that the policy had been to effect internment on a selective basis rather than to have general internment.

31 See Kuhn, Arthur K., “The Execution of Hostages,” this Journal, Vol. 36 (1942), pp. 271–274 Google Scholar. In a statement of Aug. 21, 1942, concerning crimes against civilian populations in occupied countries, President Roosevelt repeated what he had stated on Oct. 25, 1941, which was, in part, as follows: “The Nazis might have learned from the last war the impossibility of breaking men’s spirit by terrorism. Instead they develop their ‘lebensraum’ and ‘new order’ by depths of frightfulness which even they have never approached before. These are the acts of desperate men who know in their hearts that they cannot win. Frightfulness can never bring peace to Europe. It only sows the seeds of hatred which will one day bring fearful retribution.” U. S. Dept. of State Bulletin, Vol. VII, No. 165 (Aug. 22,1942), p. 709.

To this the President added, on Oct. 7, 1942, the following statement: “On August 21 I said that this Government was constantly receiving information concerning the barbaric crimes being committed by the enemy against civilian populations in occupied countries, particularly on the continent of Europe. I said it was the purpose of this Government, as I knew it to be the purpose of the other United Nations, to see that when victory is won the perpetrators of these crimes shall answer for them before courts of law.

“The commission of these crimes continues.

“I now declare it to be the intention of this Government that the successful close of the war shall include provision for the surrender to the United Nations of war criminals.

“With a view to establishing responsibility of the guilty individuals through the collection and assessment of all available evidence, this Government is prepared to cooperate with the British and other Governments in establishing a United Nations Commission for the Investigation of War Crimes.

“The number of persons eventually found guilty will undoubtedly be extremely small compared to the total enemy populations. It is not the intention of this Government or of the Governments associated with us to resort to mass reprisals. It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons and the commission of atrocities which have violated every tenet of the Christian faith.” U.S. Dept. of State Bulletin, Vol. VII, No. 172 (Oct. 10,1942), p. 797.

32 New York Times, Aug. 9, 1942, E5. Early in October, in a speech in the Berlin Sportspalast, Marshal Goering said there were more than 6,000,000 foreign workers and 5,000,000 prisoners under German charge. New York Times, Oct. 5, 1942, p. 2.

33 Parl. Deb. (Commons), Vol. 376, pp. 354–355 (Nov. 19, 1941).

34 For a description of the places in which these Americans were kept, see Revue int. de la Croix-Rouge, No. 280 (Apr., 1942), p. 261. Certain other civilian internees in German hands have apparently been allowed to visit their families. Ibid., No. 275 (Nov., 1941), p. 866. See, however, the press report of the suffering of certain American civilians reported to have been found by the Germans in occupied territory and interned in Germany. New York Times, Dec. 8, 1942, p. 5. For a report as to the treatment of Americans arrested by Germans in occupied France, see Red Cross Courier, Nov., 1942, p. 26.

In April, 1942, it was reported that a dozen Americans in Italy had been ordered to change their place of residence; they were to be internés libres, but four of them, finding themselves indigent, had requested internment. Before that time, there were reported to have been but two United States nationals in concentration camps in Italy. Revue int. de la Croix-Rouge, No. 280, p. 224 (Apr., 1942).

Up to Dec. 9, 1942, Germany had reported 1,491 United States civilians interned, including 788 men and 703 women. Italy had reported 21, of whom 13 were men and 8 were women. New York Times, Jan. 5, 1943, p. 9.

35 Interpreter Releases, May 20, 1942, p. 200 (c).

36 Official figures showed 934,100 German, Italian and Japanese aliens. Dept. of Justice press release, Dec. 6, 1942. See also, Perry, Donald R., “Aliens in the United States,” Annals Amer. Acad., Vol. 223, pp. 1–9 (Sept., 1942).CrossRefGoogle Scholar

37 N. Y. Times, Feb. 22, 1942, p. 3.

38 U. S. Dept. of State Bulletin, Vol. VI, No. 152 (May 23, 1942), p. 446 (Italics inserted).

39 The statutory authorization of executive action, which was in effect at the outbreak of the war, is as follows: “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 natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom, and to establish any other regulations which are found necessary in the premises and for the public safety.” R. S. Sec. 4067; April 16, 1918, c. 55, 40 Stat. 531; 50 U.S.C.A., Sec. 21.

Among other things, presidential proclamations provided that alien enemies considered dangerous to the public peace or safety of the United States by the Attorney General or Secretary of War, as the case might be, were to be subject to summary apprehension. If so arrested, they were to be subject to confinement until they should have received such permits as should be prescribed. The Attorney General was given authority to exclude alien enemies from designated areas in continental United States, Alaska, Puerto Rico, and the Virgin Islands. The Secretary of War received similar authority as to the Panama Canal Zone, the Hawaiian Islands, and the Philippines. Proc. No. 2525, 6 Federal Register, p. 6321. See also Proc. Nos. 2526, 2527, 6 Fed. Reg., pp. 6323, 6324. These proclamations are printed in this Journal, Supp., Vol. 36 (1942), pp. 236–243.

The President’s proclamation of Jan. 14, 1942, prescribed rules and regulations for the conduct of resident alien enemies fourteen years of age or older. Such persons were required to apply for and acquire certificates of identification, the Attorney General being directed to provide for receiving such applications, for issuing the certificates, and for making the necessary rules and regulations. After the date fixed by the Attorney General for the completion of such registration, enemy aliens are required to carry the identification cards at all times. Proc. No. 2537, Fed. Reg., Jan. 17, 1942, p. 329; this Journal, Supp., p. 54.

An Alien Enemy Control Unit was created in the Department of Justice on Dec. 15, 1941. Many of the detailed provisions in the regulations are summarized in the Department’s publication entitled Questions and Answers on Regulations Concerning Aliens of Enemy Nationalities, dated May 15, 1942.

40 88 Congressional Record, A733 (Feb. 20, 1942), reprint of speech of James Rowe, Jr., Assistant to the Attorney General.

An official of the Federal Bureau of Investigation said in November that the aim of that organization and of grand juries was to be as zealous in protecting the innocent as in apprehending the guilty. New York Times, Nov. 13, 1942, p. 16.

41 Fed. Reg., Vol. 7, No. 28 (Feb. 10, 1942), p. 844, No. 38 (Feb. 25, 1942), pp. 1477–78.

42 “Fed. Reg., Vol. 7, p. 8247 (Oct. 14, 1942). Also excepted were: “Former German or Japanese citizens or subjects who before December 7, 1941, in the case of former Japanese citizens or subjects, and before December 8, 1941, in the case of former German citizens or subjects became and are citizens or subjects of any nation other than Germany or Japan.

“Aliens of enemy nationalities during their term of military service in the armed forces of the United States.” Ibid.

43 The Department of Justice in its instructions indicated that the aliens were not entitled to these informal hearings before boards as a matter of right. An alien may not be represented by a lawyer at a hearing. A United States Attorney presents the Government’s case.

44 H. R. 2124, 77th Cong., 2d Sess., p. 27.

45 W. E. S. Flory, op. cit., 51, citing War Department, Annual Report, 1918, I, 190–191.

46 New York Times, Jan. 18, 1942, 1, p. 16 (reported statement by the Attorney General).

47 New York Times, Sept. 23, 1942, p. 27. Reported remarks of Edward J. Ennis, Director of the Alien Enemy Control Unit, to International Association of Chiefs of Police. The speaker stated that 50 per cent of those apprehended had been interned, 35 per cent paroled and 15 per cent released.

48 Attorney General Biddle’s summary, Dept. of Justice press release, Dec. 6,1942.

49 Facts concerning this national defense migration are in the report of the Select Congressional Committee headed by Representative Tolan of California (cited in note 44, supra). Of the approximately 120,000 persons of Japanese ancestry who were evacuated, only a minority were Japanese nationals. An analysis of the measures which the United States took” with respect to these removals is beyond the scope of this paper. Criticism of the policy, in so far as there has been criticism, appears to have arisen much more because the measures affected American citizens of Japanese ancestry than because they applied to Japanese aliens. For illustrative critical comments on the policy, see “Concentration Camps —U. S. Style,” New Republic, Vol. 106, p. 822 (June 15,1942); “Justice for the Evacuees,” Christian Century, Vol. 59, p. 750 (June 10, 1942); Iglehart, Charles, “Citizens Behind Barbed Wire,” The Nation, Vol. 154, p. 649 (June 6, 1942)Google Scholar.

50 Speech before the Tennessee Bar Association. Dept. of Justice press release, June 6, 1942.

51 This summary is based upon the material in Interpreter Releases, Vol. XIX, No. 27, May 13, 1942, pp. 195–198.

52 Interpreter Releases, May 19, 1942, p. 198. Evidence of the scrupulous respect for rules is reported from Missoula, Montana, where hundreds of Japanese and Italians have been interned. There may be spent each day for subsistence of an internee an amount of money equal to that which is used in feeding an American soldier. That the point of agreement concerning prohibition of involuntary work on the part of the civilian internees is being observed under some difficulties is emphasized by the fact that there has been a shortage of agriculturai labor in the region of the camp. New York Times, Aug. 4, 1942, p. 10.

53 Parl. Deb., 5th ser., Vol. 378, pp. 930–932 (March 10, 1942). The charges received corroboration from the first woman to escape from Hong Kong (Phyllis Harrop), according to a Chungking report appearing in the New York Times for March 12, 1942, at p. 5.

54 New York Times, March 16, 1942, p. 7. The list included 219 names; 90 were persons presumably in Japan when the war started, and the remainder had been taken on the island of Guam. By Dec. 9, 1942, Japan had reported 1,883 United States internees, including 1,596 men and 287 women. New York Times, Jan. 5, 1943, p. 9.

55 According to a London dispatch printed in the New York Times of July 19, 1942, at p. 12, an International Red Cross delegate who visited two Japanese civilian internment camps at Shiroka Siroyama and Miyoshi Hiroshima in June described food and health conditions of internees at each camp as excellent. It had been announced some three months earlier that the Japanese Government had agreed to let representatives of the World Y. M. C. A. committee investigate the needs of Americans interned. New York Times, April 9, 1942, p. 3.

56 See, especially, New York Times of July 25, 1942, at pp. 6, 7; ibid., July 26,1942, pp. 5, 7; ibid., July 27, 1942, p. 1.

In a dispatch from Lourenço Marques, Joseph Dynan, Associated Press staff writer, referred to reports of continual saluting demanded of civilian internees by Japanese internment officials, also to an effort at Yokohama to include civilian internees as exhibits in street parades. Dallas Morning News, July 29, 1942, Sec. I, p. 2:3.

57 U. S. Dept. of State Bulletin, Vol. VII, p. 719 (Aug. 29, 1942).

58 Preamble of Hague Convention IV of 1907, 36 Stat. (Pt. 2), 2277.

59 A recent suggestion of that creed occurs in certain remarks of Propaganda Minister Joseph Goebbels, broadcast in German and recorded by the New York Times. As translated, they included the following: “The bourgeois era of false ideals about humanity is past, and a hard century has come into being. It is not mastered by squeamishness, but only by manliness and strength.” New York Times, Sept. 3, 1942, p. 4.