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15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 235.
(GENERAL.)
FOREIGN OFFICE to LAW OFFICERS.
[Russian War Vessel “ Burní.”—How to Deal with the Officers and Crew Interned at Hong Kong.]
GENTLEMEN,
24
Foreign Office, September 17, 1904.
I HAVE the honour, by direction of the Marquess of Lansdowne, to bring to your notice the circumstances in which the officers and crew of the Russian torpedo- boat destroyer "Burni" are at present interned at Hong Kong. It appears though the exact date of the event is not quite clear that, subsequent to the sortie of the Russian fleet from Port Arthur and the naval engagement on the 10th August, the 'Burni" ran on a rock on the promontory of Shantung. Lieutenant Tirkow, who was in command, thereupon destroyed the vessel, and he and the crew, having lost all their possessions, marched to Weihaiwei and placed themselves under British pro- tection. They were at once interned on board one of His Majesty's ships by the Commander-in-Chief, and were shortly afterwards removed to Hong Kong as being a more convenient place for internment, pending a decision as to their ultimate disposal.
The Japanese Government have made an earnest appeal to His Majesty's Government that the officers and crew may be interned until the end of the war. They state that they do not make this request as a matter of right, but they suggest for the consideration of His Majesty's Government, that such treatment would be justified by the declaration made to the Russian and Japanese Governments in July last, that Weihaiwei would be closed to the ships of either belligerent attempting to take refuge at that port. They point out that the crew of the "Burni driven ashore as the result of battle, and not of the elements, the weather being fine and the sea perfectly calm.
were
You will observe that this statement is not in accordance with the account given by the Commander of the vessel on his arrival at Weihaiwei, who states that the ship ran aground in a fog at night.
The Russian Government have demanded, as a matter of principle, that the prisoners should be repatriated; they contend that the "Burni" was not seeking refuge at Wei-hai-Wei from hostile pursuit, and therefore does not come within the scope of the declaration of July; and that the precedents for interning belligerent troops forced over the frontier into neutral territory cannot be held to apply to the crew of the destroyer, who were merely seeking safety after shipwreck.
Lord Lansdowne is not aware of any previous occasion when this question has arisen, nor does the case appear to be covered by Conventions or Arrangements which are binding upon His Majesty's Government.
Article 57 of the Règlement attached to the Convention of The Hague concerning the laws and customs of war by land does not apply, because the crew of the " Burni were not part of the Russian "land forces" or of the “belligerent armies."
The corresponding Convention of the same date, applying to maritime warfare the principles of the Geneva Convention, contains no provisions with regard to the disposal of the sailors of one belligerent in neutral territories, because Article X was excluded by all the Powers when the Convention was ratified; even if the Article had remained in the Convention, however, it seems to refer to sailors landed at a neutral port by one of the belligerents under Article IX after they had theoretically become prisoners of war.
When sailors have become permanently separated from their ship, as in this case, there does not appear to be any reason why they should not be treated upon the same footing as land forces, as the greater laxity of the rules with regard to naval forces are ascribed by writers on international law (e.g., see Hall, p. 626, 5th edition) to the practice of allowing belligerent vessels to visit neutral waters. Lord Lansdowne is not aware whether the case has even occurred of a body of belligerent troops losing their way, and crossing the border into neutral territory by mistake, but under circumstances that rendered it impossible for them to return, but such an occurrence would appear to raise șimilar considerations to those presented by the present case.
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