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THE GREEN BAG

his fleet in anticipation of attack. By tel egraphic communication he had been notified that a fleet of torpedo-boats was actually in pursuit, engaged with a ship under his command and he expected they would over take him about midnight. At midnight he sighted the fishing-boats. The situation argues eloquently for the British contention that the Russian officers were mistaken in the belief that they saw torpedo-boats. The action of the supposed torpedo-boats in making no demonstration beyond approaching the ships and in dis appearing without being seen by any one but those concerned for the safety of the Russian ships would seem to confirm this view. The reason is therefore obvious why Russia concentrates her attention upon the effort to establish the obligation on the part of her officers to act as they did. The opinion of the Commission on this question is as follows: "The majority of the Commissioners ob serve that they have not sufficiently precise details to determine what was the object fired on by the vessels; but the Commission ers recognize unanimously that the vessels of the fishing fleet did not commit any hostile act, and the majority of the Com missioners being of the opinion that there were no torpedo-boats either among the trawlers or anywhere near, the opening of fire by Admiral Rojdestvensky was not justi fiable."1 This statement obviously answers the first and fifth questions before the Com mission.2 In answer to the second, the Com mission say: "The time during which the firing lasted on the starboard side, even taking the point of view of the Russian version, seems to the majority of the Commissioners to have been longer than was necessary." * Concerning the third point, the Commis sion say that the fishing vessels "carried 1 See Report, Art. 13, Sec. 4. 2 See this Article page 362. 1 See Report, Art. 15.

their proper lights" and "did not commit any hostile act." * As to the failure to give assistance to the fishermen : "On this point the Commissioners recog nize unanimously that after the circum stances which preceded the incident and those which produced it there was, at the cessation of fire, sufficient uncertainty with regard to the danger to which the division of vessels was exposed to induce the Admiral to proceed on his way." Although this report has been described as a "Scotch verdict," it is indisputable that the British contentions are, in the main, clearly sustained. It is to be re gretted, however, that the Commission did not express itself more clearly as to the duty of Admiral Rojdestvensky towards the wounded fishermen. Admiral Rojdestvensky committed two acts for which he and his Government were put upon their defense, namely, (i) firing on the fishermen, and (2) failing to give them aid. The one act has been con demned; the other, growing out of the same circumstances and answered by the same plea, has been, by the same Commission, condoned. The "uncertainty " was as predicable of the firing as of the abandonment; and the question of the duty of a naval commander towards non-combatants in jured by his wrongful act and in need, per haps, of his assistance, appears to be squarely within the issue. Was the uncertainty which "induced" Admiral Rojdestvensky to proceed sufficient to justify him in doing so? If so, was his action in doing so intrinsically wrong, by the law of war and justifiable only as a matter of expediency, by reason of circum stances which are held not to excuse the primary offense? The act of abandonment was more deliberate than the act of assault. Was it less flagrant? Or does the language of the Commission tend to shift a portion 1 Report, Art. 9, Sec. 3, Art. 13, Sec. 4.