Whereas, at the period in question the fortified city of Casablanca was occupied and guarded by French military forces which constituted the garrison of that city and were stationed either in the city itself or in the surrounding camps; and Whereas, under these circumstances the deserters of German nationality who belonged to the military forces of one of these camps and were within the inclosure of the city, remained subject to the exclusive military jurisdiction; and Whereas, on the other hand, in a country granting extraterritorial jurisdiction the question of the respective competency of the consular and the military jurisdiction is very complicated and has never been settled in an express, distinct, and universally recognized manner, so that the German consular authority could not incur any blame for having granted his protection to the afore-mentioned deserters who had solicited it; and Whereas, the German consul at Casablanca did not grant the protection of the consulate to the deserters of non-German nationality and the dragoman of the consulate also did not exceed the limits of his authority in this regard; and Whereas, the fact that the consul, without reading it, signed the safe-conduct for six persons instead of three and omitted to state that they were of German nationality, as he had prescribed himself, can not be imputed against him except as an unintentional error; and Whereas, the Moroccan soldier at the consulate, in aiding the deserters to embark, acted only in accordance with orders from his superiors and, by reason of his inferior position, could not have incurred any personal responsibility; and Whereas, the secretary of the consulate intentionally sought to embark the deserters of non-German nationality as enjoying the protection of the consulate; and Whereas, for this purpose he deliberately induced the consul to sign the above-mentioned safe-conduct and with the same intention took measures both to conduct the deserters to the port and to have them embarked; and Whereas, in acting thus he exceeded the limits of his authority and committed a grave and manifest violation of his duties; and Whereas, the deserters of German nationality were found at the port under the actual protection of the German consular authority and this protection was not manifestly illegal; and Whereas, this actual situation should have been respected by the French military authority as far as possible; and Whereas, the deserters of German nationality were arrested by said authority despite the protests made in the name of the consulate; and Whereas, the military authority might and therefore ought to have confined itself to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to offering to leave them in sequestration at the German consulate until the question of the competent jurisdiction had been decided; and Whereas, this mode of procedure would also have tended to maintain the prestige of the consular authority, in conformity with the common interests of all Europeans living in Morocco; and Whereas, even if we admit the legality of the arrest the circumstances did not warrant, on the part of the French soldiers, either the threats made with a revolver or the prolongation of the shots fired at the Moroccan soldier of the consulate even after his resistance had been overcome; and Whereas, as regards the other outrages or acts of violence alleged on both sides, the order and the exact nature of the events can not be determined; and Whereas, in accordance with what was said above, the deserters of German nationality should have been returned to the consulate in order to restore the actual situation which was disturbed by their arrest; and Whereas, such restitution would also have been desirable with a view to maintaining the consular prestige; however, inasmuch as, in the present state of things, this tribunal being called upon to determine the final status of the deserters, there is no occasion for ordering their provisional and temporary surrender which should have taken place; Therefore: The tribunal of arbitration declares and decides as follows: It was wrong and a grave and manifest error for the secretary of the Imperial German consulate at Casablanca to attempt to have em barked, on a German steamship, deserters from the French Foreign Legion who were not of German nationality. The German consul and the other officers of the consulate are not responsible in this regard; however, in signing the safe-conduct which was presented to him, the consul committed an unintentional error. The German consulate did not, under the circumstances of the case, have a right to grant its protection to the deserters of German nationality; however, the error of law committed on this point by the officers of the consulate can not be imputed against them either as an intentional or unintentional error. It was wrong for the French military authorities not to respect, as far as possible, the actual protection being granted to these deserters in the name of the German consulate. Even leaving out of consideration the duty to respect consular protection, the circumstances did not warrant, on the part of the French soldiers, either the threat made with a revolver or the prolongation of the shots fired at the Moroccan soldier of the consulate. There is no occasion for passing on the other charges contained in the conclusions of the two parties. Done at The Hague in the building of the Permanent Court of Arbitration, May 22, 1909. HJ. L. HAMMARSKJÖLD, President MICHIELS VAN VERDUYNEN, Secretary General AGREEMENT FOR ARBITRATION Compromis of arbitration relative to the questions raised by the events which occurred at Casablanca, September 25, 1908.-Signed at Berlin, November 24, 1908.1 The Imperial German Government and the Government of the French Republic, having agreed, November 10, 1908,2 to submit to arbitration all the questions raised by the events which occurred at Casablanca September 25, last, the undersigned, duly authorized for that purpose, have agreed upon the following compromis. ARTICLE 1 An arbitral tribunal, composed as hereinafter stipulated, is charged 1Translation. For the original French text, see Appendix, p. 484. 2Post, p. 119. with the settlement of questions of fact and of law which brought about the events which occurred at Casablanca September 25, last, between the agents of the two countries. ARTICLE 2 The arbitral tribunal shall be composed of five arbitrators, to be chosen from among the members of the Permanent Court of Arbitration at The Hague. Each Government, as soon as possible and within a period not to exceed fifteen days from the date of the present compromis, shall choose two arbitrators, of which only one may be its national. The four arbitrators thus designated shall choose an umpire within a fortnight from the day on which they are notified of their own designation. ARTICLE 3 On February 1, 1909, each party shall transmit to the Bureau of the Permanent Court eighteen copies of its memorial, with the certified copies of all papers and documents which it intends to present in the case. The Bureau shall guarantee their transmission without delay to the arbitrators and parties, to wit: two copies for each arbitrator, three copies for each party. Two copies shall remain in the archives of the Bureau. On April 1, 1909, the parties shall in like manner deposit their counter-memorials, with the papers appertaining thereto, and their final conclusions. ARTICLE 4 Each party shall deposit with the International Bureau, not later than the 15th of April, the advance sum of 3,000 Netherland florins for the expenses of the litigation. ARTICLE 5 The tribunal shall meet at The Hague on May 1, 1909, and shall proceed immediately to the investigation of the dispute. It shall have authority to move itself temporarily or to delegate one or more of its members to move to whatever place seems necessary in order to proceed with the securing of information under the conditions of Article 20 of the Convention for the pacific settlement of international disputes, of October 18, 1907. ARTICLE 6 The parties may make use of either the German or the French language. The members of the tribunal may, according to choice, use either the German or the French language. The decisions of the tribunal shall be rendered in both languages. ARTICLE 7 Each party shall be represented by a special agent whose duty it shall be to serve as intermediary between it and the tribunal. These agents shall give the expositions demanded of them by the tribunal and may present any pleas which they may deem useful in the defense of their cause. ARTICLE 8 On all points not set forth in the present compromis, the stipulations of the above-mentioned Convention of October 18, 1907, of which ratifications have not yet been exchanged but which has been signed alike by Germany and France, shall be applicable to the present arbitration. ARTICLE 9 After the arbitral tribunal shall have solved the questions of fact and of law which have been submitted to it, it shall decide, in consequence, the case of the individuals arrested September 25, last, on which subject the present dispute rests. Done, in duplicate, at Berlin, November 24, 1908. [SEAL] KIDERLEN ADDITIONAL DOCUMENTS Protocol between France and Germany containing a formula of regrets for events which occurred at Casablanca on the 25th September, 1908.-Signed at Berlin, November 10, 1908.1 The two Governments, regretting the events which occurred at Casablanca on September 25, last, and which led the sub-agents into violence and grievous assault, are resolved to submit all the questions raised on this subject to arbitration. By mutual consent, each of the two Governments agrees to express its regrets for the acts of these agents, following the decisions which 1Translation. For the original French text, see Appendix, p. 485. |