The Casablanca Affair, 1908-9.
On September 25, 1908, six deserters, three of German nationality and three non-Germans, from the French Foreign Legion, then in occupation at Casablanca, Morocco, under a safe conduct issued by the German consul and under the personal protection of the chancellor of the consulate, aided by a Moroccan soldier attached to the consulate, attempted to take passage upon a German vessel. The deserters were seized by the French officials after considerable violence.
The arrest of the deserter gave rise to a controversy between the French and the German governments, in the course of which the following claims were advanced:
For France -- ( l ) Germany had no right to afford protection to persons in Morocco not of German nationality. (2) The territory within French military occupation in Morocco was subject to exclusive French jurisdiction, and therefore Germany had no authority to protect even the three deserters of German nationality.
For Germany -- (1) The deserters of German nationality were, by virtue of the extraterritorial jurisdiction which by treaty Germany exercised within Morocco, subject to the exclusive jurisdiction of the German consul at Casablanca. (2) The forcible arrest was a breach of the inviolability of consular agents. (3) The deserters of German nationality should be given up.
3. AGREEMENT FOR ARBITRATION.
On November 10, 1908, a protocol was signed at Berlin by which France and Germany agreed to submit all questions to arbitration and to express regrets following the decisions which the arbitrators should render. Each party was to choose two arbitrators from the members of the Permanent Court of Arbitration at The Hague, and these four should choose an umpire. Germany chose Guido Fusinato, of Italy, and Dr. Kriege, of Germany. France chose Sir Edward Fry, of England, and Louis Renault, of France. The four then selected H. L. Hammarskj÷ld, of Sweden, as the fifth member. By article 1 the tribunal was charged with the decision of all questions, both of law and fact, thus following the example set by Great Britain and Russia in the Dogger Bank case.
Meetings of the arbitrators were held from May 1 to May 19 and the award was given May 22.
4. ARGUMENTS BEFORE THE HAGUE TRIBUNAL.
For France -- The French argued that the German consul acted contrary to both the principles of international law and the regulations of the German consular establishment, which recognize that Germans employed without authorization in civil or military services of foreign states are not entitled to protection. Precedents of similar instances of desertion at Port Said in 1895 and Cairo in 1900, in which German consuls refused to grant protection to Germans, were cited. The consul also violated international rights belonging to a military occupant of foreign soil. Immunity from local jurisdiction attaching to the occupant implies not only that the troops are under military law, but that all offenses against the army come under the same jurisdiction.
For Germany -- Germany argued that German nationality was not lost by enlistment in the service of a foreign state; that Germany had by treaty complete jurisdiction over all Germans in Morocco; that, the French troops were not in military occupation, but were acting merely as police, and that pacific occupation did not have the same juridical and legal effects is military occupation; consequently the powers of the occupant were no greater than those of the occupied state; therefore the consular jurisdiction obtained from Morocco by treaty was unchanged.
5. THE AWARD.
The award showed evidence of an attempt at a political compromise rather than a clear-cut legal decision. Reasoning that there was a case of conflict between the two jurisdictions, and that the jurisdiction of the occupying army ought, in case of conflict, to have the preference when the persons belonging to this army have not left the territory placed under the immediate, actual, and effective control of the armed force it was held that a grave and manifest fault had been committed in attempting to have embarked on a German steamship deserters from the French-Foreign Legion who were not of German nationality, and that the German consulate had not, under circumstances of this kind, the right to grant its protection to deserters of German nationality. It was also held that the French military authorities ought to have respected as far as possible the actual protection exercised over these deserters by the German consulate, and that under the circumstances the force used by the French authorities was not warranted. The French military authorities, however, were not called upon to surrender the deserters.
Source: Anderson, Frank Maloy and Amos Shartle Hershey, Handbook for the Diplomatic History of Europe, Asia, and Africa 1870-1914. Prepared for the National Board for Historical Service. Government Printing Office, Washington, 1918.
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