THE CASABLANCA CASE between FRANCE and GERMANY Decided May 22, 1909 Syllabus This arbitration arose from a conflict of jurisdiction between the French military authorities in occupation of Casablanca, Morocco, and the German consul, acting under the extraterritorial jurisdiction of his Government in Morocco. In the fall of 1908 six soldiers belonging to the French Foreign Legion stationed at Casablanca, three of whom subsequently turned out to be of German nationality, deserted and applied to the German consul for protection and were granted by him safe conduct to their homes. Before they could be embarked, however, they were forcibly arrested by French soldiers and taken from the protection of the consul. France protested that Germany had no right to afford protection to persons in Morocco not of German nationality; that the territory in her military occupancy in Morocco was subject to her exclusive jurisdiction, and, therefore, that Germany had no right to attempt to protect the three deserters of German nationality. Germany claimed that the deserters of German nationality were, by virtue, of the extraterritorial jurisdiction of Germany in Morocco, subject exclusively to the jurisdiction and protection of the German consul at Casablanca, that the forcible arrest of the deserters was a breach of the inviolability of her consular agents, and she demanded that the three Germans be delivered up. Failing a diplomatic settlement, the case was referred by a compromis signed November 24, 1908,1 to a tribunal selected from the Permanent Court as follows: K. Hj. L. Hammarskjöld of Sweden, Sir Edward Fry of England, Louis Renault of France, Guido Fusinato of Italy, and J. Kriege of Germany. The sessions began May 1, 1909, and ended May 17, 1909, the decision being rendered on May 22, 1909: The tribunal decided that the conflict between the two jurisdictions could not be determined by any absolute and general rule, but that, under the circumstances of this case, the deserters of German nationality who belonged to the French military forces stationed at and in control of the fortified city of Casablanca were subject to the exclusive military jurisdiction of France while they remained within the territory occupied and controlled by her forces. Owing to the complexity of the question of the conflict of jurisdiction, however, the 1Post, p. 117. tribunal held that no blame attached to the German consul for granting protection to such deserters, but the secretary of the consulate was held guilty of a grave violation of his duties for obtaining the protection of the consul for the deserters not of German nationality. The tribunal further held that the French military authorities should have respected the authority of the German consul by leaving the deserters in his possession until the question of jurisdiction could be decided, taking only such steps as were necessary to prevent their escape. The use of force by the French soldiers was declared to be unwarranted, but, in view of the tribunal's previous holding that the military jurisdiction of France took precedence over the extraterritorial jurisdiction of Germany, it declined to direct the surrender of the deserters. AWARD OF THE TRIBUNAL Award of the arbitration tribunal in the Casblanca case.-The Hague, May 22, 1909.1 3 Whereas, by a protocol of November 10, 1908,2 and an agreement to arbitrate of the 24th of the same month, the Government of the French Republic and the Imperial German Government agreed to refer to a tribunal of arbitration composed of five members the settlement of the questions of fact and law arising from the events which occurred at Casablanca on September 25, 1908, between agents of the two countries; and Whereas, in accordance with said agreement to arbitrate, the two Governments have respectively appointed as arbitrators the following persons, namely: The Government of the French Republic, the Right Honorable Sir Edward Fry, Doctor of Laws, former judge of the Court of Appeals, member of the Privy Council of the King, member of the Permanent Court of Arbitration, and Mr. Louis Renault, member of the Institute of France, Minister Plenipotentiary, professor in the Faculty of Law of Paris, Solicitor of the Ministry of Foreign Affairs, member of the Permanent Court of Arbitration; and The Imperial German Government, Mr. Guido Fusinato, Doctor of Laws, former Minister of Public Instruction, former professor of international law at the University of Turin, deputy to the Italian 1 American Journal of International Law, vol. 3, p. 755. For the original French text, see Appendix, p. 479. 3Post, p. 117. 2Post, p. 119. Parliament, Counselor of State, member of the Permanent Court of Arbitration, and Mr. Kriege, Doctor of Laws, present Privy Counselor of Legation, reporting Counselor and Solicitor of the Department of Foreign Affairs, member of the Permanent Court of Arbitration; and Whereas, the arbitrators thus appointed being instructed to name an umpire, chose as such Mr. K. Hj. L. Hammarskjöld, Doctor of Laws, former Minister of Justice, former Minister of Worship and Public Instruction, former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen, former president of the Court of Appeals of Jönköping, former professor in the Faculty of Law of Upsal, Governor of the Province of Upsal, member of the Permanent Court of Arbitration; and Whereas, in accordance with the provisions of the agreement to arbitrate of November 24, 1908, the cases and counter-cases were duly exchanged between the parties and communicated to the arbitrators; and Whereas, the tribunal, constituted as above stated, convened at The Hague on May 1, 1909; and Whereas, the two Governments respectively designated as their agents the following persons, namely: The Government of the French Republic, Mr. André Weiss, professor in the Faculty of Law in Paris, assistant solicitor of the Ministry of Foreign Affairs; and The Imperial German Government, Mr. Albrecht Lentze, Doctor of Laws, Privy Counselor of Legation, reporting Counselor of the Department of Foreign Affairs; and Whereas, the agents of the parties have presented to the tribunal the following conclusions, namely: The agent of the Government of the French Republic: To say and decide that it was wrong for the consul and the officers of the Imperial German consulate at Casablanca to attempt to embark on a German ship deserters from the French Foreign Legion who were not German subjects; To say and decide that it was wrong for said consul and consular officers, under the same circumstances, to grant, on the territory occupied by the French landing corps at Casablanca, their protec tion and material assistance to three other members of the Legion whom they thought or might have thought to be Germans, thus disregarding the exclusive right of jurisdiction belonging to the occupying nation in foreign territory, even in a country granting extraterritorial jurisdiction, with respect to the soldiers of the army of occupation and to acts likely to endanger its safety, whatever they be or wherever they may originate; To say and decide that, in the persons of Mr. Just, chancellor of the Imperial consulate, Casablanca, and of the Moroccan soldier Abd-el-Kerim ben Mansour, no breach of the rules regarding consular inviolability was committed by the French officers, soldiers, and sailors, who arrested the deserters, and that in repelling the attacks and acts of violence directed against them the said officers, soldiers, and sailors, merely availed themselves of the right of selfdefense. The agent of the Imperial German Government: May it please the tribunal 1. As regards the points of fact, to declare that three individuals who had previously served in the French Foreign Legion, namely, Walter Bens, Heinrich Heinnemann, and Julius Meyer, all three Germans, were, on September 25, 1908, at the port of Casablanca, while accompanied by agents of Germany, violently wrested from the latter and arrested by agents of France, and that on this occasion agents of Germany were attacked, maltreated, outraged, and threatened by the agents of France; 2. As regards the points of law, to declare that the three individuals mentioned under No. 1 above were, on September 25, 1908, subject exclusively to the jurisdiction and protection of the Imperial German consulate at Casablanca, and that agents of France had no authority at that time to interfere with agents of Germany in granting German protection to these three individuals and to claim for themselves a right of jurisdiction over said individuals; 3. As regards the status of the individuals arrested on September 25, 1908, and concerning whom there is a dispute, to decide that the Government of the French Republic shall release the three Germans mentioned under No. 1 above as soon as possible and place them at the disposal of the German Government. And whereas, the agent of the French Republic, in the hearing of May 17, 1909, declared that in his conclusions the only measures referred to, either with respect to the deserters of German nationality, or the others, are those taken by the German agents after the desertion and with a view to embarking the deserters; and Whereas, after the tribunal had heard the oral statements of the agents of the parties and the explanations which they furnished it at its request, the debates were declared closed at the hearing of May 17, 1909; and Whereas, under the extraterritorial jurisdiction in force in Morocco the German consular authority as a rule exercises exclusive jurisdiction over all German subjects in that country; and Whereas, on the other hand, a corps of occupation as a rule also cxercises exclusive jurisdiction over all persons belonging to it; and Whereas, this right of jurisdiction should be recognized as a rule even in countries granting extraterritorial jurisdiction; and Whereas, in case the subjects of a Power enjoying the rights of territorial jurisdiction in Morocco belong to a corps of occupation sent to that country by another Power, there necessarily arises a conflict between the two jurisdictions mentioned; and Whereas, the French Government did not make known the composition of the expeditionary corps and did not declare that the fact of the military occupation modified the exclusive consular jurisdiction arising from the extraterritorial rights, and that, on the other hand, the German Government made no protest regarding the employment in Morocco of the Foreign Legion, which is known to be composed in part of German subjects; and Whereas, it is not within the province of this tribunal to express an opinion regarding the organization of the Foreign Legion or its employment in Morocco; and Whereas, the conflict of jurisdictions mentioned above can not be decided by an absolute rule which would in a general manner accord the preference to either of the two concurrent jurisdictions; and Whereas, in each particular case account must be taken of the actual circumstances which tend to determine the preference; and Whereas, the jurisdiction of the corps of occupation should have the preference in case of a conflict when the persons belonging to this corps have not left the territory which is under the immediate, lasting, and effective control of the armed force; and |