§ 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters not whether armed forces are at home or abroad, for they are organs of their home State even when on foreign territory, provided only they are there in the service of their State and not for their own purposes. For if a body of armed soldiers enters foreign territory without orders from, or without being otherwise in the service of, its State, but on its own account, be it for pleasure or for the purpose of committing acts of violence, it is no longer an organ of its State.
Occasions for Armed Forces abroad.
§ 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops through foreign territory. Thus, further, a State which has been victorious in war with another may, after the conclusion of peace, occupy a part of the territory of its former opponent as a guarantee for the execution of the Treaty of Peace. After the Franco-German war, for example, the Germans in 1871 occupied a part of the territory of France until the final instalments of the indemnity for the war costs of five milliards of francs were paid. It may also be a case of necessity for the armed forces of a State to enter foreign territory and commit acts of violence there, such as the British did in the case of the Caroline.[785]
[785] See above, § [133], and below, § [446].
Position of Armed Forces abroad.
§ 445. Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign territory by a member of the force cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of its home State.[786] This is, however, valid only in case the crime is committed either within the place where the force is stationed, or anywhere else where the criminal was on duty. If, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the latter, not on duty but for recreation and pleasure, and then and there commit a crime, the local authorities are competent to punish them.
[786] This is nowadays the opinion of the vast majority of writers on International Law. There are, however, still a few dissenting authorities, such as Bar ("Lehrbuch des internationalen Privat- und Strafrecht" (1892), p. 351), and Rivier (I. p. 333).
Case of McLeod.
§ 446. An excellent example of the position of armed forces abroad is furnished by the case of McLeod,[787] which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the Caroline, a boat equipped for crossing into Canadian territory and taking help to the Canadian insurgents, came in 1841 on business to the State of New York, and was arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the Caroline. The English Ambassador at Washington demanded the release of McLeod, on the ground that he was at the time of the alleged crime a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. McLeod was not released, but had to take his trial; he was, however, acquitted on proof of an alibi. It is of importance to quote a passage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the United States, to a note of the British Ambassador concerning this affair. The passage runs thus:—"The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not ... to be holden personally responsible in the ordinary tribunals for their participation in it."
[787] See Wharton, I. § 21, and Moore, II. § 179.