[881] See above, § [408, p. 519, note 3].
[882] Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat Volturno, after having overhauled, in the Red Sea, the British steamer Africa going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the Manouba ought likewise to be mentioned here. This French steamer, which plies between Marseilles and Tunis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish passengers, who were supposed to be Turkish officers on their way to the theatre of war, were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy asserting that she had only acted in accordance with article 47 of the Declaration of London.
The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, § [409], that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question—see above, § [412]—as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in analogy with article 47 of the Declaration of London, to be answered in the affirmative.
Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Ambassador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.
[883] See Hall, § 253; Rivier, II. p. 390.
[884] See above, [vol. I. § 129].
[885] See above, [vol. I. § 130].