Compromise.

TREATY OF VERSAILLES, ANNEX: TO ARTICLES 2 9 7 - 2 9 8, PARAGRAPH 4.

ARBITRATION BETWEEN PORTUGAL AND GERMANY
Arbitral award of July 31, 1928 concerning liability of Germany due to the damage caused
in the colonies Portuguese from Southern Africa.

On August 24, 1914, the German detachment of the German post of Sasabara1 attacked by
surprise the neighboring Portuguese post of Maziua - the commander of the German post
having mistakenly believed that Portugal was at war with Germany.

On the other hand, on October 19, 1915, under conditions which will be specified in the
remainder of this award, one German official and two German officers from the South West
African colony were killed in the Portuguese post of Naulilaa 2.

In retaliation for this incident and on order of the governor of the German colony of South West
Africa, forces Germans attacked and destroyed, in the region of Bas-Cubango, the fort de
Cuangar, on October 31, 1915, the posts of Bunga, Sambio, Dirico and Mucusso on November
4, 8, 12 and 15. 

In addition, the governor of the Southwest African Colony sent, in the direction of Naulilaa, a
military expedition commanded by Major Franck. This expedition collided, the December 18,
1914, on Portuguese territory in front of the fort of Naulilaa, Portuguese troops in charge, under
the command of Colonel Roçadas, to ensure the protection of the border S. of Angola, and,
possibly, to subdue the Cuanhamas tribe who had not yet recognized the Portuguese authority. 

After a violent fight, the German troops are seized of the fort of Naulilaa. They then remained on
their positions, without crossing the Cunene, then, the day after the fight, they returned to the
German colony. As for the Portuguese troops, they beat retreating and their commander
ordered the evacuation of the forts from the shore left of Cunene; the defensive line was carried
north, at the height from Gambos. 

The whole region to the south-east of the new front was thus abandoned. and it was plundered
by the natives who rose up on the steps of the retreating Portuguese army. A large shipment
had to be sent from Portugal in the spring of 1915 to suppress the revolt of the negroes,
reoccupy the abandoned territory and subjugate the Cuanhamas.

6. By ordinance of July 19, 1926, considering, with regard to damage caused in the Portuguese
colonies, that, "before examining the "Quota of the indemnities claimed, it is necessary to fix
the principle and the limits "Of the responsibility of Germany, by elucidating in particular the
incident of "Naulilaa and deciding whether this incident was such as to justify the measures
"Subsequent decisions taken by Germany and if Germany is responsible for all "Damage which
has occurred as a result of the execution of these measures or "If its liability is reduced by the
fact that concomitant causes, "But independent of his will, would have contributed to increase
these "Damages", the arbitrator decided to limit the first debates to these questions of principle
and to postpone the questions relating, on the one hand, to the proportion of damage caused in
the colonies.

Portuguese, on the other hand, to the principle and extent of the responsibility Germany for the
other two categories of damage. The debates thus limited took place in Lausanne from
September 20 to 24, 1926.

7. Allying themselves with a suggestion of the sole arbitrator, the Portuguese Governments and
German agreed, on February 9, 1928, to add to it two other arbitrators, in the person of
MM. Robert Guex, professor at the University of Lausanne, and Robert Fazy, member of the
Federal Tribunal Switzerland, it being specified that the mission of the Arbitral Tribunal thus
constituted 1 S. German East African border, 200 km. approximately E. Lake Nyassa.
2 At the southern border of the colony of Angola, to the southwest. by Humbe.

"Will be exactly the same as that with which M. de Meuron had been entrusted "As sole
arbitrator and that the effects of his award will be the same as "If it had been rendered by the
sole arbitrator provided for in paragraph 4 of "The annex to article 297 of the Treaty of
Versailles", the arbitrators remaining free to rule on the questions which were the subject of the
first debates without "Ntend the parties again. 

The arbitrators make use of this option.

Consideration in law: Portugal's claims relating to damages • caused in its African colonies are
geographically divided into two different groups:

Those relating to the violation of the border of Mozambique: attack on the Maziua post:
Portugal claims compensation for the lives lost, bodily injuries, destruction and
kidnappings, the decrease in the revenues of the Compagnie du Nyassa as a result of
the passive resistance of the natives, finally the costs of military expeditions sent to
Mozambique.

To which Germany accepts in principle responsibility for the incident of Maziua, but
disputes any causal relationship between the acts that are attributable, on the one hand,
to the decrease in the revenue of the Nyassa and the dispatch of Portuguese troops, on
the other hand.
Those relating to violations of the border of Angola: destruction of the forts and posts of
Cuangar, Bunga, Sambio, Dirico, Mucusso and Naulilaa.

Portugal claims:
a) Repair of the immediate damage caused by the German aggressions.
b) Reparations for damage suffered either by the settlers or by the State, following the revolt of
the negroes which occurred after these attacks.
c) Reimbursement of expenses occasioned by military expeditions sent for the defense of the
colony and the repression of the revolt of the black.

Germany disclaims all liability on the grounds that it has not made than to use legitimate
reprisals following the Naulilaa incident. Subsidiarily, it concludes that the complaints
under b) and c) should be rejected , by maintaining that it is not a question of direct damage of
which the repair can be him imposed.

Issues:
The questions to be decided are therefore as follows:
A) What is the applicable law?
B) What is the extent of the responsibility for the Maziua incident, accepted in principle by
Germany?
C) How are the responsibilities for the Naulilaa incident established?
D) Did Germany have the right to retaliate and did it acted in accordance with the rules of
applicable law?
E) If they do not constitute lawful reprisals, the acts committed by German troops take
responsibility for Germany within the meaning of § 4 of the appendix to articles 297 and 298
TV?
F) If so, what is the extent of this liability?

ad A. Applicable law. arts. 297 and 298 of the Treaty of Versailles determines the court
responsible for hearing claims for compensation from nationals allies against Germany, for acts
committed, before the entry at war of the power concerned, by the German Government or by
any subordinate authority.

It is thus a question of actions directed against a State, at the rate of measures taken by the
authorities whose acts engage its responsibility. In common law, these actions are governed by
the rules of the law of nations. 

Without this expressive refer verbis to this right, the Treaty of Versailles in no way excludes its
application.

On the contrary, the institution of an arbitral jurisdiction, exclusively neutral - as opposed

to mixed courts, created to adjudicate on disputes of another nature - and the choice of the
expression “acts committed”, expression borrowed from the terminology of the law of nations,
already make one presume that the Treaty did not intend to substitute a jus traclatus for the law
of nations, generally applied in such matters by arbitration courts.

This presumption is confirmed by the fact that the Treaty does not indicate any part according to
which rules the sole arbitrator must determine the sanction of acts submitted to it. The natural
explanation for this silence is that the Treaty admits, without, other, that the sole arbitrator will
adhere to the generally applicable law to the category of disputes referred to him, that is to say
to the law of nations.

This has been admitted so far by the sole arbitrators and by the Court of The Hague 
1. The arbitrators see no reason to decide otherwise and admit, consequently, that the present
dispute is governed by the rules of the law of nations.
2. Adhering, on the other hand, to the definition contained in article 38 of the Statute of the
Permanent Court of International Justice, the arbitrators consider have to apply:
a) international conventions, where they would establish rules expressly recognized by the two
States in dispute;
b) international custom, as evidence of general practice, accepted as the right;
c) the general principles of law recognized by civilized nations;
d) judicial decisions and doctrine, as auxiliary means of determination of the rules of law.

Finally, in the absence of rules of international law applicable to the disputed facts, the
arbitrators believe they must fill the gap, ruling according to the principles equity, while
remaining in the sense of the law of nations, applied by analogy, and taking into account its
evolution

ad B. Maziua incident.
1. The dispute relating only to the extent of liability accepted in principle, the arbitrators may
limit their analysis of the evidence and summarize very briefly, as follows, what they retain as
established:

a) On August 18, 1914, the Portuguese Council of Ministers decreed that reinforcements in the
two colonies. Shipping to Mozambique left Lisbon on September 11, 1914, under the orders of
Lieutenant-Colonel Massano d'Amorim.
b) At E. Lake Nyassa, the border of East German Africa and Mozambique is formed by the Rio
Rovenna. On either side of the river were, at a short distance one of the other, the German and
Portuguese posts of Sasabara and Maziua, the first ordered by Doctor Week, the second by the
nurse sergeant Rodriguez da Cosla.
c) During the month of August, after the arrival of the SS President at Lindi, rumors spread
about Portugal's declaration of war in German East Africa. The governor, Dr Schnee, asked for
details to the Mozambican authorities. While waiting for their response, he ordered the German
border posts to refrain from provisionally for any act of hostility. This order, transmitted by TSF,
could not reach the post of Sasabara, not equipped with the required. A regular telegram,
addressed to Dr Week via Lindi, arrived too late.
d) Believing himself threatened with a Portuguese attack, Dr Week wanted prevent. On August
24, 1914, at 5 a.m., the German detachment de Sasabara surprised Maziua's post. The native
garrison fled: the head of the post, coming out of his room with a revolver in his hand, was
killed.
Two native women were also hit by bullets, one fatally. The German detachment seized the
arms, ammunition and cash, set fire to the post and huts and withdrew.
e) Informed that the state of war did not exist between the two countries, the governor of East
Africa immediately expressed its regrets to the authorities Portuguese, ordered the return of
weapons and mimitions and opened information against Dr Week. The latter benefited from a
dismissal.An offer to return weapons and ammunition, made on September 6in Maziua, was
declined.
j) Maziua's post was reoccupied on September 6: at the end of the month, he was restored to a
good state of defense.
g) In July 1915, the Portuguese authorities arrested a native Muslim returning from German
East Africa. This man was found provided with:
1.of a proclamation by the Sultan of Constantinople ending by a call to Jihad (holy war);
2. letters containing incitement to revolt, addressed to Muslim subjects of the Portuguese
colony, in particular of a letter from Captain von Falkenstein;
3.a green banner with the crescent and the star and 120 bombs of dynamite.The incident did
not follow. There was in any case no disturbance among the Muslims of Mozambique.
h) The district of Maziua is part of the concession of the Company Nyassa. This very vast
concession extends, to the north of Mozambique, from the Indian Ocean to English
Nyasaland. From August 1914, the Company encountered some resistance from the
natives. The work and tax payments ceased in places, which resulted in a significant decrease
in revenue.

2. The extent of the responsibility of the German state must be determined. as following:
a) There is an obvious cause and effect relationship between the German aggression, on the
one hand, the losses of the Maziua garrison and the damage caused owned by the Portuguese
State or the Nyassa Company, other go. 

Germany must therefore fully compensate: the beneficiaries of Sergeant Rodriguez da Costa
and the woman killed, the injured woman, the Portuguese State and the Nyassa Company, for
all damages caused to their property, during or after the attack on the post.

There is no need to give the German Government a record of reservations made with regard to
the payment of indemnities due to the beneficiaries of those killed. 

The Portuguese Government is the sole judge of the way in which he will distribute the sums
that will be his allocated.

b) The excess claims must be set aside for the following reasons: a) The Massano d'Amorim
expedition was decided several days before the attack on Maziua 1 post . There is no causal
relationship between the sending of this expedition and the act committed by Dr Week.
ji) The Moura Mendes expedition, in September 1915, was initially goal the regulatory relief of
the detachment Massano d'Amorin. He there is no relation between the Maziua incident and this
relief, provided for by Portuguese colonial legislation. 

As far as it is would be acted, not only of relief, but of sending of reinforcements, it is impossible
to admit an effect report because between the latter measure and acts imputed to Germany. In
September 1915, he There was no German military threat in the Maziua region, nor internal
disturbances. 

The cause for sending reinforcements must be sought, much more simply, for the sake of the
Government Portuguese to ensure respect for the neutrality of the colony, in case the German
troops from East Africa - already grappling with the Anglo-Belgian forces - would be pushed
back and seek refuge on Portuguese territory.

Y) The proclamation of holy war emanated from the Government Ottoman. Germany cannot be
held responsible that if the authorities in East Africa had spread the appeal of sultan in the
Portuguese colony.

According to the memorial of the requesting State, the proclamation seized in July 1915 would
have been countersigned by Dr Schnee. This fact has not expressly challenged in the written or
oral proceedings. A analogous fact - concerning, it is true, the English protectorate of
Nyasaland - is mentioned in The Times History of the War, tome X, p. 130. This work also
reproduces the letter of Captain von Falkenstein. 

There are serious presumptions there. However, neither the signature of Dr Schnee, nor the
original letter from Captain von Falkenstein, have not been produced. To fully elucidate the
matter, further instruction should be ordered, but this measure appears unnecessary. It is
common ground, in fact, that the attempt failed.

Had it been shown that the authorities of East Africa had taken an active part, their action could
have justified a protest by way of diplomatic, but it could not justify a complaint based on § 4 of
the appendix to articles 297 and 298, this provision not providingpenalties only in the event of
damage. However, in the present case, no damage is not claimed or, in any case, proven.

4) The decrease in the revenues of the Nyassa Company could not be

an indirect consequence of the aggression of August 24, 1914. The question of liability for
indirect damage, in the law of people, will be examined in detail about the damage caused by
the revolt of the natives in Angola. 

Here, it suffices to note that no cause and effect relationship, even indirect, has not been
proven, between the incident of Maziua and the passive resistance of the natives.
Portuguese memoirs confine themselves to alleging that the incident itself and the fact that the
post had been without garrison for a long time would have "Produced a strong impression on
the natives" 
However, Maziua was only an unimportant point of a very concession. vast. The post was
reoccupied after a few days, rebuilt and soon to be restored to a state of defense. 
This finding - which is based on the precise mentions of the Ferreira and Fernandez reports –
made fall the main argument of the Nyassa Company. Else share, in the presence of the
attitude taken by the German authorities, regrets expressed and refunds offered, there can be
no question an attack on the prestige of Portuguese arms, including the attitude of natives
would have been the repercussion. 

It is much more likely that what "produced a strong impression" on the natives was the made of
a general war between whites in the German colonies, English and Belgian neighbors of
Mozambique.

It is therefore not possible to relate the decrease in revenue from the Nyassa Company to the
isolated and purely local act of Dr Week, act which alone could justify an action against
Germany, by virtue of of § 4 of the appendix.

3. The arbitrators therefore admit, in short, that Germany is liable for the consequences
immediate attack on Maziua posts - loss of life, bodily injuries and material damage - but cannot
be held responsible the decrease in the revenues of the Nyassa Company and the cost of
expeditions Massano d'Amorim and Moura Mendes. ad C Responsibility for the Naulilaa
incident.

1. The Naulilaa incident has been the subject of considerable investigation. The investigation
reports fill several hundred pages and the briefs or the pleadings were, in large part, devoted to
him. While elucidating many of the issues discussed, the investigation could not lead to a
certain reconstitution. 

On various points, in fact, the witnesses disagree, and the deaths of the four main actors made
the investigation particularly difficult.

To share responsibilities, the referees, after having appreciated the testimonies following the
usual rules concerning the distribution of the burden evidence, must fill in the gaps based on the
presumptions most plausible.

In their assessment of the testimony, the arbitrators admitted that all the witnesses had testified
without bias, doing their best to collect their memories of ancient events, and that their words
deserved debt. 

They must however make a reservation, if not on the sincerity, of the less on the probative value
of the testimony of the interpreter Jensen, when he is the meaning of words made in
Portuguese, or the text of writings written in that language. 
It is, in fact, established by numerous testimonies - German as well as Portuguese - that
Jensen, although engaged as "Interpreter" of the German mission, knew very little Portuguese
and
barely understood.
2. The arbitrators take as established the following essential facts:
a) At the beginning of the war, purchases of food, for account German, had been made in
Angola. Depots of 50 to 60 tonnes had been formed in the district of Benguela. These supplies -
out of proportion to the needs of a study mission Luso-German then operating in the Caculovar
valley - were, at least in part, intended for supplying Damaraland.

In September 1914, the governor of the district of Huila, Colonel Roçadas, had published an
export ban on foodstuffs food. By virtue of this prohibition, a Portuguese detachment,
commanded by the lieutenant of cavalry Sereno, had seized at the border a convoy of 11
wagons, destined for the German colony. The October 14, the commander of the Naulilaa fort
had a member of the study mission, Dr Vageler, when he smuggled a food wagon into the
territory German. Dr Vageler was sent as a prisoner to Humbe.

During October, the Governor of South West Africa, the Privy Councilor Seitz, learned that a
convoy of 24 food wagons was on Portuguese territory on his way to Damaraland. He charged
the governor of Outjo, Dr Schultze-Jena, to go to the border and to talk to the Portuguese
authorities, to obtain the authorization to import this food and to try to establish by Angola postal
relations with Germany.

b) Dr Schultze-Jena left Outjo 1 at the head of a detachment about twenty men, including the
first lieutenant Loesch and Lieutenant Roeder, interpreter-guide Jensen and the soldier1st class
Kimmel.

On October 16, he was camping on the S. bank of the Cunene, in Eriksondrift, at 12 km. about
the Naulilaa fort. South of the camp site, extended a so-called neutral zone, the ownership of
which remained to be discussed between the two governments. Eriksondrift, located to the N. of
the limit extreme of this zone, was on Portuguese territory. Dr Schultze-Jena seconded
Lieutenant Roeder on 17 October and interpreter Jensen at Dongoena Fort 2 with a letter
intended 1,400 km. S. de Humbe.

Halfway between Eriksondrift and Humbe. to the Humbe administrator. This letter was brought
to Humbe by a civilian rider, trader Sobial, lieutenant Roeder and Jensen rallying the Schultze-
Jena detachment in Eriksondrift.

c) Upon receipt of the letter from Dr Schultze-Jena, Humbe's administrator telephoned Colonel
Roçadas. He reported that a German mission, commanded by the "governor of the colony" - an
error due to the insufficiency of the interpreter Jensen - had come to camp at the Rio Cunene,
near Dongoena, in order to have an interview with the Portuguese authorities. 
He added: "These Germans introduce themselves peacefully: I ask for instructions. " Colonel
Roçadas replied to act with courtesy, to clarify to the Germans their intentions and to demand
the surrender of arms and ammunition, if the detachment wanted to enter Portuguese territory.

On seeing this answer, Humbe's administrator left immediately for the Cunene, bringing in Dr.
Vageler as an interpreter. Arriving at Eriksondrift on the morning of the 19th, he learned that the
Dr Schultze-Jena and the German officers had left an hour later early for Naulilaa. Dr Vageler,
worried, detached in search of them Private Kimmel, provided with a safe-conduct from the
administrator of Humbe.

d) During these events, the commander of the Naulilaa fort, sergeant Gentil, had learned of the
arrival of the Schultze-Jena detachment in Eriksondrift. He detached a patrol to invite the
German commander to report to the fort. Dr Schultze-Jena handed over to the head of patrolling
a letter for Sergeant Gentil, to whom he offered a interview, at the time and place that suit him.

e) Naulilaa came under the "mor captaincy" of Cuamato l. The sergeant Gentil sent Dr
Schultze-Jena's letter to Cuamato, where captain mor. The latter, Captain Varao, gave the
lieutenant of Sereno cavalry, stationed in Otokero, the written order to win Naulilaa, to have the
necessary defensive measures taken there, then, to go and recognize the Germans, to disarm
them in order to have them interned at Fort Roçadas, and, if that was not possible, to adroitly
inform of their intentions. 

The order added that these instructions left Lieutenant Sereno free to act on his own initiative,
following the circumstances.

Lieutenant Sereno left on the 18th at 1 a.m. with 15 horsemen. Europeans, for Naulilaa, where
he arrived in the morning. Without that it appears to have ordered nothing to put the fort in a
state of defense, he returned to the German camp and reached it around noon. Lieutenant
Sereno began by informing Dr. Schultze-Jena the order to evacuate Portuguese territory. Dr
Schultze-Jena wanted first obey this injunction and had the horses saddled. 

Unfortunately, he changed his mind and a courteous discussion ensued at the subject of the
camp site. During this discussion, the Dr Schultze-Jena explained that he had written to the
administrator of Humbe and wanted to wait for his response. Lieutenant Sereno informed him
while he was in the jurisdiction of the captaincy of Cuamato and Dr Schultze-Jena consented to
go the next day to Captain Mor. Both detach 1 50 km. about Naulilaa. 1 10 km. is Humbe.

They camped peacefully next to each other. The lieutenant Sereno accepted the invitation of
the German officers and the relations became, at least in appearance, perfectly cordial,
although
Kimmel retained certain concerns, without however being able to share with its leaders.
g) Speaking only their own language, Dr Schultze-Jena and his officers and Lieutenant Sereno
could only talk to each other through by interpreter Jensen. The latter barely knew Portuguese.
The insufficiency of this interpreter - already because of a first confusion to Humbe - was to
cause a more serious misunderstanding between the Lieutenant Sereno and Dr. Schultze-
Jena. When Lieutenant Sereno

Mentioned Captain Mor de Cuamato, Jensen understood that this officer was in Naulilaa. He
translated in this sense, so that the Dr Schultze-Jena and his companions, agreeing to
surrender on the next day in Naulilaa, were convinced that they would meet the Captain Varao.

Lieutenant Sereno, on the contrary, wanted to explain that the captain mor was in Cuamato,
where the German chief was to go find it.

h) On the 19th, around 8 a.m. morning, Dr Schultze-Jena, accompanied by Lieutenants Loesch

and Roeder, Interpreter Jensen and Orders natives, left for Naulilaa, with the detachment of the
lieutenant Sereno.

The latter had insisted that the Germans take their weapons and their bedding items: in fact,
thinking of returning to their camp on same day, they took with them only their weapons.

Approaching the fort, the Portuguese officer detached a horseman with order to have lunch
prepared. i) Dr Schultze-Jena and his companions arrived at Naulilaa fort around 9. Their
horses were unsaddled and tied to the fence. Lieutenant Sereno ordered orders to hasten
preparations lunch and returned unarmed to the German group.

A discussion soon began. Dr Schultze-Jena was surprised at the absence of Captain Mor, while
Lieutenant Sereno tried to explain that his boss was in Cuamato. Producing Captain Mor's
order, order he had been given by the sergeant Nice, Lieutenant Sereno handed him over to
Interpreter Jensen, instructing him explain to Dr Schultze-Jena that he had to go to Cuamato
and that he was expressly ordered not to let him return to his camp.

Jensen translated in this sense, but understanding that the order produced by Lieutenant
Sereno was an alleged letter, which came to arrive from captain mor. Once again, Jensen's
inability and manifest ignorance of Portuguese created a serious misunderstanding: Dr
Schultze-Jena, welcoming the alleged letter with scepticism understandable, protested, refusing
to go to Cuamato, and insisted to return to his camp.

j) During the discussion, Corporal Gonsalves noted that the Dr Schultze-Jena's black orders
saddled the horses. It warned Lieutenant Sereno, and, on his order, ordered the natives
to unsaddle. But he could not make himself obeyed. Dr Schultze-Jena and his companions got
in the saddle. The lieutenantSereno then seizes the bridle of the German chef. At the moment,
according to all witnesses except interpreter Jensen, Dr Schultze-Jena aimed his rifle at
Lieutenant Sereno, while Lieutenant Roeder drew his pistol.
Lieutenant Sereno gave his men the order to fire. Dr Schultze-Jena and Lieutenant Roeder
were fatally injured in the fort itself; First Lieutenant Loesch managed to escape, but fell so as
not to get up at 3 or 400 meters from the fence. Jensen, slightly injured, was taken prisoner. It
was the same with Private Kimmel, who arrived shortly after, coming in search of the Dr
Schultze-Jena. They were both interned until the end of the war.

Dr Schultze-Jena was killed instantly. The first lieutenant Loesch was found dead where he had
fallen. Lieutenant Roeder was transported inside the fort, seriously injured, and received
treatment. He died before the medical aid that Lieutenant Sereno had asked Cuamato had
arrived.

Colonel Roçadas advised the governor of the colony on October 21. The latter seized his
government and ordered Colonel Roçadas to conduct a rigorous investigation. This
investigation took place and the Portuguese authorities came to the conclusion that the
lieutenant Sereno had only done his duty. 

The file disappeared in the fire of the fort of Naulilaa, after the combat of December 18, 1914,
combat during which Lieutenant Sereno was killed.

l) The authorities of the two colonies did not communicate with each other of the incident. The
German posts transmitted the news by unencrypted radiotelegrams . This fact remained
unknown to the governor of Angola.

3. The Portuguese thesis attributes to the mission of Dr Schultze-Jena the aim hidden, if not to

start the invasion of Angola on his own, at least to prepare the way.

The German thesis, for its part, implies, addressed to Captain Mor and of Lieutenant Sereno,
the reproach of having attracted the Schultze-Jena mission in an ambush.

In the presence of the established facts, the arbitrators cannot retain either neither of these
charges:

a) It has indeed been proved that the German mission was to ensure the supplies and postal
communications of South West Africa.

This goal was in itself too important to be a simple one. pretext. The German colony had the
greatest interest in success mission and this success could only be achieved by observing
strictly the consideration due to the Portuguese authorities.

This was how Dr Schultze-Jena had done when he had announced, not only to the
administrator of Humbe, but to the commander of the Naulilaa fort, as soon as he learned of the
existence of this fort. Neither the force nor the armament of the expedition made it possible
assume a real offensive goal.
The composition of the detachment, the choice of its leader and its attitude exclude, on the
other hand, the hypothesis of a disguised recognition, in other words, espionage. A similar task
would have been entrusted to isolated emissaries, speaking Portuguese, able to go unnoticed
and disavowable if necessary. There could be no serious question of entrust a clandestine
reconnaissance service to a detachment encumbered with impedimenta, composed of officers
and soldiers reduced to services of an interpreter, secondment ordered in addition by a senior
official, in charge of a mission which required him to report to any Portuguese authority.

It is even unlikely that Dr Schultze-Jena, or the officers who accompanied him, had the ancillary
mission of taking advantage of the access that would be granted to them on Portuguese
territory, to collect military intelligence. 

If this had been the case, far from refusing to move away from the border, they would have
eagerly accepted the opportunity to penetrate as far as possible into the area where they could
make useful observations.

b) On the other hand, the German argument wrongly opposes the attitude of the captain mor de
Cuamato to that of the administrator of Humbe. This last, simple civil servant partially informed,
moreover, on the purpose of the German mission by the letter of Dr Schultze-Jena, had to
report to the governor of the province and to follow his instructions.

Captain Mor of Cuamato, on the other hand, was a military leader, responsible for the security
of his sector. A detachment of belligerents entering with arms into neutral territory must, in
principle, be or disarmed and interned or turned back, if necessary by force. The order of
Captain Mor was all the less excessive than Maziua's precedent could justify some fears and
that Captain Varao had taken care to leave his subordinate free to act according to the
circumstances.

The hypothesis of an ambush set out by Lieutenant Sereno, hypothesis already very difficult to
reconcile with the information collected on this officer, highly esteemed by his leaders and
courageously death to the enemy, rests entirely on two affirmations of Jensen:

Lieutenant Sereno allegedly made Dr Schultze-Jena believe that the Captain Mor was in
Naulilaa. Then - when his deception was going to uncover himself - he would have been
handed over and communicated to his hosts a fictitious letter from Captain Varao.

The first assumption comes up against the fact that the lieutenant Sereno had insisted that the
German officers take their bedding items, which would have made no sense if he had them
invited to go only to Naulilaa, barely an hour away of Eriksondrift.

As to the alleged falsehood, the arbitrators, referring to their reservation on the probative value
of Jensen's testimony, when it comes to texts written in Portuguese or statements made in that
language, cannot to admit the explanation, in itself already implausible, of the interpreter.
They stick to the plausible version of Sergeant Gentil, confirmed by Captain Varao's report,
according to which the document that Lieutenant Sereno referred to Naulilaa, was all simply the
order of captain mor.

We have to admit that the lieutenant Sereno wanted, as it was his duty, to carry out the order
from his superior, bringing him the head of the German detachment.
4. The root cause of the deplorable incident at Fort Naulilaa must be sought, first in an initial
misunderstanding, due to the fact that the actors did not understand each other and their
performer was incapable; then, in an error, followed by imprudence, committed by the Dr
Schultze-Jena.

The latter had, undoubtedly without knowing it, because he was obviously looking for to put any
correction on his side, entered in arms on Portuguese territory and thus found himself in a false
situation. As soon as he was notified, the prudence ordered him to re-read on German territory,
as the Lieutenant Sereno summoned him to it and like himself at first wanted to do it.

Having remained there, and having agreed to go and explain himself to the captain mor, Dr
Schultze-Jena, then indisputably on Portuguese territory, had to comply with the instructions of
the representative of the military authority Portuguese, except in protest, to this authority. 

Sereno producing the order of Captain Mor, there was, on the part of Dr.Schultze-Jena,
imprudence to refuse to comply with the injunctions of a subordinate, required to execute the
instructions of his superior. 

By wanting to leave Naulilaa, despite the representations of Lieutenant Sereno, Dr Schultze-

Jena was exposed to to be forcibly held there. The final cause was an unfortunate move - and
possibly misinterpreted - Dr Schultze-Jena and probably also Lieutenant Roeder.

On this point, the arbitrators stick to the unanimous testimony of the witnesses. Portuguese
eyepieces, rather than the isolated testimony of Jensen. The hypothesis, according to which
Lieutenant Sereno had deliberately killed Dr Schultze-Jena and his companions, would suppose
that, already ruled out, ambush. 

This hypothesis is, moreover, irreconcilable with the attitude observed by the Portuguese officer
and with the feelings that may be reasonably loaned. If Lieutenant Sereno had wanted to
destroy or capture the German mission, he would not have sought first to make him cross the
border again. 

By unnecessarily killing Dr Schultze-Jena and his companions, while he was to lead them to
Captain Mor, he would have incurred his responsibility heavily and would have exposed himself
to being disowned and brought before a council of war. It is evident that, interpreting as a threat
the gesture of Dr Schultze-Jena and that of the lieutenant Roeder, Lieutenant Sereno, himself
unarmed, believed he was in a position to self-defense.
5. The arbitrators therefore reach the following conclusions:
a) The Naulilaa incident is not the consequence of contrary acts to the law of nations
attributable to German civil or military bodies or Portuguese. 
In particular, it is necessary to exclude, on the part of the mission Schultze-Jena, any calculated
penetration on Portuguese territory, with the clandestine aim of starting or preparing the
invasion, and of from the Portuguese regional military authorities, any intention premeditated to
attract the German detachment to Naulilaa, for the destroy or capture it.

b) The deplorable event, which occurred at the fort itself, has a distinctly fortuitous. It was the
result, first of a series of misunderstandings due to the inadequacy of the interpreter Jensen,
then a certain imprudence from Dr Schultze-Jena, finally, with an unfortunate gesture, maybe
misinterpreted, but who could make the lieutenant believe Sereno that he was threatened and
was in self-defense.

D. Question of reprisals.
1. The most recent doctrine, in particular the German doctrine, defines retaliation in these
terms:
The retaliation is an act of self-righteousness
State injured party, act responding - after unsuccessful summons - to a contrary act to the law
of the people of the offending State. It has the effect of temporarily suspending, in the reports of
the two States, the observation of such and such rule of the law of nations. It is limited by the
experiences of humanity and the rules of good faith, applicable in state-to-state relations. 

It would be illegal if a prior act, contrary to the law of nations, had not provided the pattern. It
tends to impose, on the offending State, reparation for the offense or the return to legality,
avoiding new offenses.

This definition does not require that retaliation be proportionate to the offense. On this point, the
authors, unanimous until a few years ago, begin to be divided in opinion. Most see, to a certain
extent between offense and reprisal, a necessary condition for the legitimacy of second

1. Other authors, among the most modern, no longer require this condition. As for international
law, currently in formation as a result of the experiences of the last war, it certainly tends to
restrict the concept of legitimate reprisals and prohibit excess

2. The German thesis can be summarized as follows:

a) The destruction or capture of the Schultze-Jena mission, in Naulilaa, constituted an act
contrary to the law of nations, act giving the Government of South West Africa have just cause
to exercise reprisals.
b) As soon as he was informed of the Naulilaa incident, Governor Seitz, during several nights,
transmit - in clear - to all radiotelegraph stations Germans, the news of the "assassination" of
Dr. Schultze-Jena and his companions. This communication, which was also addressed to
Government of Angola, was worth a summons to the Portuguese authorities to provide
explanations and return the two prisoners, Jensen and Kimmel. No answer having been given,
"we were reduced, on the German side, to doing justice to oneself 4 ”.

c) Had there been excess in the reprisals, this excess, certainly excusable, would not engage
the responsibility of Germany. In fact, there was not excess. The death of Dr Schultze-Jena and
his companions justified the attack on the fort of Cuangar. Despite this warning, not only the
Portuguese authorities did not release the two prisoners illegally interned, but they had the vice-
consul expelled from Lubango German Schoess.

d) Consequently, the acts committed by German troops on different points of the Angolan
border do not engage the responsibility of Germany.

3. The arbitrators cannot accept this thesis, for the following reasons:

a) Following the policy decision taken above regarding the incident of Naulilaa, the death of Dr
Schultze-Jena and the two officers who accompanied him, was not the consequence of an act
contrary to the international law of the Portuguese authorities.

b) A neutral State has the right to disarm and intern belligerents which enter its territory in arms
1. Internment of the interpreter Jensen and Private Kimmel was therefore, in principle,
authorized by the positive people's right. 

The legitimacy of this internment could have been discussed, if it had been proved that the two
internees were still on German territory during the intervention of Lieutenant Sereno. Yes such
had been the case, Jensen would have entered Portuguese territory on the invitation of a
Portuguese officer. 

As for Kimmel, he would have entered Courtesy of the Humbe Administrator and the question of
a illicit internment would have arisen. But the fact that the mission of which Jensen and Kimmel
were part of, were in the Eriksondrift camp, still on German territory, has never been
established, nor before the reprisals, or even before the referees. German authorities could
have invoked doubt and insisted on a courteous settlement of the question of internment. They
could not, however, see in this internment or in its maintenance, an act contrary to the
international law, giving them a just cause to retaliate at gunpoint.

c) Vice-consul Schoess was still in office in Lubango on November 28, 1914. The attack on Fort
Cuangar on October 31, destruction of the lower Cubango posts, from November 4 to 15, and
the Franck expedition, decided on October 28, could not have been motivated by his
expulsion. In addition, the expulsion of a consular agent, which a State considers it has to
complain about, may constitute an act "little friendly ", giving rise to representations through
diplomatic channels 2, but there cannot be, in such an exercise of the right of sovereignty of the
neutral State, an act contrary to the law of nations, justifying, retaliation, an attack accompanied
by all the rigors of the war.
d) The first condition - sine qua non - of the right to retaliate is a reason provided by a prior act,
contrary to the law of people. This condition - for which the German thesis recognizes the
necessity 3- lack, which would be enough to rule out the pleaby the German Government.

e) Even if the arbitrators had accepted, at the expense of the Portuguese authorities, an act
contrary to the law of nations which could, in principle, motivate reprisals, the German thesis
should nevertheless be rejectedfor two other reasons, both decisive:
1. Reprisal is only lawful when it has been preceded by a summons remained
unsuccessful. The use of force is in fact justified only by its character of necessity. However, it is
impossible to consider as a state-to-state summons, done by the authorities of the offended
state to communicate to each other the news of the alleged insulted. 

In fact, the messages sent from Windhoek to the German posts, appear to have been ignored
by the Portuguese authorities. Same received, moreover, these messages would not have
implied any summons. According to Governor Seitz, the German authorities had to refrain from
sending parliamentarians, fearing that the latterwere not killed or taken prisoner. 

Arbitrators cannot, however,admit this explanation. The person of a parliamentarian, introducing

himself as such, is, in principle, inviolable. In addition, the events de Cuangar, to name but a
few, show that he would have been easy, at German border posts, to be escorted and if
necessary respect a parliamentarian, responsible for simply delivering a letter to one of the
Portuguese posts. 

There was therefore, on the part of the authorities of South West Africa, use of force, without
previous attempt to obtain satisfaction through legal channels, which again excludes legitimacy
retaliation.

2. The need for a proportion between retaliation and offense, appears be recognized in the
German response *. 

Even if we admitted that international law does not require that retaliation be approximately
measured to offense, one should certainly consider, as excessive and therefore unlawful,
retaliation out of any proportion with the act that motivated them. 

Now, in this case, - even without pulling argument of Maziua's precedent, due to which a certain
moderation was called for, - there was an obvious disproportion between the Naulilaa incident
and the 6 acts of retaliation that followed.

The arbitrators therefore come to the conclusion that the German attacks October, November
and December 1914, at the Angolan border, cannot be considered as lawful retaliation for the
incident of Naulilaa or subsequent acts of the Portuguese authorities, this fault of sufficient
reason, prior summons and an admissible proportion between the alleged offense and the
reprisals.
E. Responsibility in principle of the German Government to because of the attacks on the
Angolan border.

The facts invoked are contested only on questions of detail. These questions may be important
when it comes to determining the amount of compensation due: their solution cannot influence
the principle of the responsibility. 

It is therefore superfluous to analyze the testimonies here. He suffices to note that, from
October 31 to December 18, 1914, the German forces assaulted and destroyed several
Portuguese forts or border posts.

Besides material damage, heavy losses, in killed, wounded or prisoners, were inflicted on
Portuguese garrisons. Finally, the retreat of the garrisons resulted in the willful destruction of
other military installations and it was followed by a revolt of the natives. This revolt caused
damage in the province of Huila, and could not be suppressed than as a result of a murderous
and costly expedition.

The attacks took place long before the declaration of war, which occurred on March 9, 1916.
These are therefore deliberate violations of the frontier of a neutral state. The neutral territory
being inviolable 1, the action of the forces German law was, in principle, contrary to the law of
nations. 

This action does not which can be justified as retaliation, it must be admitted that the authorities
of South West Africa have contravened one of the express rules of positive people. They are
therefore, indisputably, acts covered by the § 4 of the appendix to articles 297 and 298, even if
one interprets the terms “Acts committed” in the most restrictive sense. Germany responding,
according to the Treaty, acts of "any German authority", its responsibility is, in principle,
engaged; by the measures taken by the authorities soldiers and civilians of South West Africa.

F. Extent of Germany's responsibility. Some of the damages for which Portugal is seeking
redress are immediate consequence of the unjustified acts of aggression committed by
Germany: soldiers or civilians killed or wounded in fighting with troops Germans, destruction by
enemy fire of forts or posts and all which they contained, supplies, war material, etc. 

It is evident that - in accordance with what was decided about the incident of Maziua - Germany
is answerable for all these damages, but it will be Portugal to give a precise and detailed list.
For the rest, the Portuguese claims relate to damages of which the German aggressions are not
in all cases the sole cause.

Portuguese troops who retreated after the Naulilaa fight and the forts and posts of the Cunene
line having been evacuated, the natives rose up. This revolt has almost a very great extension,
it was complicated by struggles between different tribes, a whole huge very fertile region was
plundered, the most indigenous populations peace were massacred, famine due to an
exceptional drought compounded the disaster. 
To reduce the rebellion, to reoccupy the land abandoned, to subdue the Cuanhamas tribe who
had never recognized Portuguese rule, an important military expedition was necessary and she
had to engage in heavy fighting before reaching her goal. All in all, a devastated country, a
decimated indigenous population, a costly and murderous campaign, these are the elements of
the damage which, according to Portugal, must be distributed; by Germany.

The Respondent State declines all responsibility in observing that this damage was caused, not
by the acts he committed, but by the revolt negroes to whom he remained a stranger. 

Portugal, on the contrary, has attached to demonstrating that the revolt was the result of anti-
Portuguese propaganda exercised among the natives by German agents and that this are also
the Germans who pushed the Cuanhamas to the resistance and armed and instructed them.

Regarding the alleged propaganda, the arbitrators cannot considering that sufficient evidence
has been provided. From the beginning of the war, the rumor circulated in the colony of Angola
that
German agents engaged in espionage, preparing the invasion of the colony and excited the
natives against Portuguese domination. 

These rumors found credence all the more easily as a great effervescence reigned in the
colony, that the position that Portugal would take in the global conflict was not yet defined and
that finally, for a long time, there was talk of German sights on the Portuguese colonial empire.

The authorities have not been inactive. They investigated, they vowed special attention to the
conduct of the German vice-consul in Lubango, Schoess, who passed for the organizer of the
propaganda, they did supervise the German members of a Study Group which was deemed to
pursue political ends under the guise of a purely economic1, they carried out the arrest of one of
the members of this commission, Engineer Schubert. 

Armies of all the powers that their conferred a state of siege, they could not establish anything
precise: the instruction opened against Schubert ended in a dismissal and we limited ourselves
to expel, as undesirable, the Germans from the colony, without worrying them other. If, already
at the time, we did not succeed in bringing together sufficient charges against these alleged
German propaganda agents, it is natural that, ten years later, the instruction of the present trial
should not have gave more positive results. 

Only one thing is certain, is that, contrary to the orders issued, Vice-Consul Schoess
endeavoured to pass food through the German colony, the supply of which was uncertain, that
he corresponded for this purpose with the authorities of that colony, in particular through a Du
Plessis boer, and that the members of the Study Group lent him their assistance. 

But that this smuggling was accompanied by a work of agitation among the Boers and the
natives, it is not possible to affirm it and it seems very little likely that the German authorities
conceived the plan to provoke a revolt intended to allow them to invade the Portuguese colony,
whereas we can see that, having arrived on the ground, after the fight of Naulilaa, the German
commander refrained from profiting from the uprising blacks and that he sought, on the
contrary, to put himself in communication with the Portuguese commander to prevent or
suppress the beginning revolt.
As for the Cuanhamas, a bellicose tribe subject to whims of a bloodthirsty boss, evidence of the
involvement of German agents its resistance to Portuguese authority is completely lacking. 

The serious accusations leveled in this regard against the German missionaries of the Rhine
Evangelical Mission are based only on assumptions without consistency. The alleged visit that
Major Franck would have them returned shortly before the Naulilaa expedition, in order to
prepare the fight against Portugal, actually dates back to the year 1908 and has no character
suspect. 

If it is common ground that in 1915, the Portuguese troops had to deliver hard fights before
breaking the resistance of the Cuanhamas, we cannot of course not to imply that they must
have been armed and instructed by the Germans. We know, on the contrary, that the German
authorities prohibited strictly access to the country they occupied and which was in partly on
German territory, partly on Portuguese territory. 

They feared the occurrence of disturbances which would have deprived the colony of labor
supplied to the mines of Damaraland by the Cuanhamas and they would have refrained from
providing weapons that could be turned as easily against the Germans as against the
Portuguese. 

Smuggling weapons, so widespread in Africa, are perfectly sufficient to explain that the
Cuanhamas nevertheless possessed quite a number of rifles. It is therefore not as the instigator
of the black revolt that Germany could be required to repair the damage caused by this revolt.
But we still have to wonder if she answers maybe because, without the assaults of which it was
guilty, the uprising would not would not be produced. 

From this point of view, the case of the Cuanhamas is quite special: even before the war, this
tribe was in a state of rebellion, the expense of Portuguese expeditions destined to submit it *
therefore naturally cannot be put at the expense of Germany. 

On the other hand, it is most probable that the uprising of the other natives, which immediately
followed the fight of, Naulilaa, is related to this fight, the blacks having took advantage of the
Portuguese defeat to revolt. 

The question that arises is that of knowing whether, in the calculation of the compensation due
as a result of the assault Germany, we can take into account the damage that this aggression
caused indirectly by providing independent authors - blacks - the opportunity to commit the acts
that directly caused them.

The problem of liability for consequential damages has often been addressed in jurisprudence
and the doctrine of the law of nations 2. In the famous case of Alabama, the arbitrators declared
to disregard of that kind of damage. This decision has been criticized 3 and, in subsequent
cases, arbitrators quite frequently have compensated for damage that was not direct *. And,
indeed, it wouldn't be fair to leave the damage that the perpetrator of the act initial illicit intended
and perhaps even intended, under the sole pretext that, in the chain which links them to his act,
there are intermediate rings. 

But on the other hand, everyone agrees that, even if we abandon the principle strict that only
direct damage gives right to compensation, one must nevertheless necessarily exclude, under
penalty of leading to a inadmissible extension of liability, damages which do not to the initial act
only by an unforeseen sequence of exceptional circumstances and which could only happen
thanks to the combination of causes foreign to the author and escaping all anticipation on his
part. 

This is how that, despite the text of the treaty of August 25, 1921, between the United States of
America and Germany, which obliges Germany to repair the damage caused to US citizens
"directly or indirectly” the arbitrators responsible for applying this treaty did not hesitate to refuse
any compensation for damages which, although in relation to causality with the acts committed
by Germany, derived at the same time other more closely related causes6. 

As well, Portugal itself ' he expressly declared that he waived compensation for indirect damage
that he suffered. If, however, he claims compensation for damages caused by the revolt of the
negroes, it is by supporting, on the one hand, that this revolt was prepared by Germany and, on
the other hand, that it was the natural and necessary consequence of the attacks committed. 

The arbitrators considered the first of these grounds above and rejected it lack of proof. And as
for the second, it is necessary to observe the following:
The Franck expedition had for sole purpose to exercise - without rights, as as we have said -
reprisals by destroying the very fort where three Germans had lost their lives. This objective
was not accompanied by any idea of invasion. or conquest of the Portuguese colony. 

Immediately after the fight and the burning of the fort, the German column withdrew, without
sketching the less pursuit of Portuguese forces. But, misunderstanding both on the strength and
on the intentions of his adversary, the command Portuguese considered it advisable to withdraw
to the NW by evacuating the forts on the left bank of the Cunene. 

This decline continued well beyond the line originally envisaged and what has, more than
anything, contributed to to accentuate it, it was the sound of the explosion of Fort Roçadas that
made people believe that the Germans threatened Portuguese communications, while it was
the fort's own garrison which, in accordance with the instructions received, had blown it up *. 

Instead of stopping at Humbe, the Portuguese army moved withdrawn to Cahama-Gambos,

abandoning the rich country which stretches in the S.-E. of these localities, which allowed the
revolt of the negroes to take an extension which otherwise would not have been possible. The
referees do not hear neither criticize nor judge, from a military point of view, the dispositions
thus taken by the Portuguese command, nor do they have to appreciate its refusal to
communicate with the German command which, after the fight, tried to get in touch with him to
prevent the threatening uprising of the blacks. 
But they must find that if he believed it had to push back these openings and sacrifice the vast
region that was set ablaze immediately the native revolt, he did so in the fullness of his
responsibility, that he did not act under pressure from the German army and that consequently
Germany cannot be held responsible for the consequences damaging of the determination
freely taken by the command Portuguese.

However, it is certain that in itself the German aggression was of nature to bring disturbances,
in the native population that it was in the natural order of things that blacks, submissive for very
few years, took the opportunity to revolt. 

No doubt the Germans could not predict the extent that this revolt has taken due to the
circumstances that have just been recalled, but they had to count that their military action, in a
country which had just recently been pacified, would entail formidable consequences for the
Portuguese authority. 

So it would not be not fair to limit Germany's liability strictly to damage that German troops
caused themselves and themselves, and Portugal should be granted, in addition to
compensation for such damage, compensation, the figure of which will be fairly determined by
the arbitrators, taking into account account of all the circumstances, but without the need to
enter in the details of the complaints.

In summary, two categories of damage must be distinguished: damage caused by the German

aggressions that the Respondent State is required to repair entirely, but which Portugal will
have to completely establish and quantify - and the other damages which the parts already
produced allow, without further instruction, to assess the importance and whose will take into
account, to a very limited extent, by setting an indemnity additional fairness, taking into account
the preponderance concomitant causes foreign to Germany.

For these reasons,

Say that Germany must repair the damage caused by the attacks on Maziua, Cuangar, Bunga,
Sambio, Dirico, Mucusso and Naulilaa.
Reserve the amount of damages which will be fixed later in accordance with of the preceding
recitals, and after additional instruction, following order notified to the parties at the same time
as this award.
Lausanne, July 31, 1928.
Aloïs de Meuron,
Robert Fazy, Robert Guex.