CO885-(15-16) — Page 479

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PUBLIC RECORD OFFICE

C.O.885

Reference :-

No. 63.

(CAPE. GERMAN SOUTH-WEST AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

[Questions of international law which have arisen in connection with the rebellion in the German South-West Africa Protectorate.]

MY LORD,

Royal Courts of Justice,

February 14, 1907. WE were honoured by your Lordship's commands signified to us by Mr. Just in his letter of the 15th January last, stating that he was directed by your Lordship to request us to be good enough to favour you with our opinion upon certain questions of international law which have arisen in connection with the rebellion of the Hottentot and other native inhabitants of the Protectorate of German South-West Africa.

That it would be seen from the paper marked A that considerable expense had been caused to the Government of Cape Colony by the numbers of rebels who had been driven over the British-German frontier between the Cape Colony and the German South-West Africa Protectorate by the German forces, and who, at 31 at a the instance of the German Government, had been disarmed and "interned distance from the frontier sufficiently remote to prevent them again troubling the Protectorate from which they had fled.

That the Cape Government had repeatedly pressed the German Government to defray the expenditure thus incurred, but that they had hitherto been unable to obtain any refund of the expenses to which they had been put, the German Government confining themselves to remarking that they would be ready to look after the refugees if these latter were sent back.

That the Cape Government, finding all their applications fruitless, were now anxious to obtain satisfaction for their claims by threatening the Germans that if their claims were not met by a certain date they would:

(1) Release the refugees from the camps in which they were at present "interned"; and

(2) Forbid the passage of stores, &c., across the British-German frontier. That with regard to No. (1) he was to observe that it appeared more than doubtful whether the Cape Government had not throughout been acting ultra vires in interning the refugees at all.

That the process of interning was one which would appear to be appropriate, and to be recognised by international law and usage, only when regular hostilities were going on and military forces of one of the belligerents were obliged to take refuge from those of the other in the territories of a neighbouring neutral who then

interned" them until the termination of hostilities.

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That the process was one, therefore, to which it would seem difficult properly in the present instance to have recourse since there was no question but that the natives to whom it had been applied were not invested with any belligerent character; that, indeed, they partook rather of the character of political refugees who had sought asylum on British soil. That if this view were correct, the question seemed to be not so much whether the Cape Government were justified in now releasing the refugees as whether in continuing to keep them "interned" they would not be merely prolonging an illegal situation which ought never to have been created.

That with regard to the second step with which the Cape Government proposed to threaten the German Government in the hope of thereby compelling these latter to meet their claims, he was to remark that throughout the course of the military operations which had now been going on for some years in German South-West Africa the Cape Government had consistently refused to open to traffic more than one "drift" in the whole length of the frontier, which was of many hundred miles. on account of the difficulty and expense of controlling traffic at these distant points, and have always declined to permit the passage of any warlike stores even by that one drift; that their reason had been that they were not prepared to allow British

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