CHAPTER III WARFARE ON LAND
I ON LAND WARFARE IN GENERAL
Vattel, III. §§ 136-138—Hall, §§ 184-185—Phillimore, III. § 94—Taylor, § 469—Wheaton, § 342—Bluntschli, §§ 534-535—Heffter, § 125—Lueder in Holtzendorff, IV. pp. 388-389—Gareis, § 84—Bonfils, Nos. 1066-1067—Pradier-Fodéré, VI. Nos. 2734-2741—Longuet, § 41—Mérignhac, p. 146—Pillet, pp. 85-89—Kriegsbrauch, p. 9—Land Warfare, § 39—Holland, War, Nos. 1-15.
Aims and Means of Land Warfare.
§ 103. The purpose of war, namely, the overpowering of the enemy, is served in land warfare through two aims[230]—firstly, defeat of the enemy armed forces on land, and, secondly, occupation and administration of the enemy territory. The chief means by which belligerents try to realise those aims, and which are always conclusively decisive, are the different sorts of force applied against enemy persons. But besides such violence against enemy persons there are other means which are not at all unimportant, although they play a secondary part only. Such means are: appropriation, utilisation, and destruction of enemy property; siege; bombardment; assault; espionage; utilisation of treason; ruses. All these means of warfare on land must be discussed in this chapter, as must also occupation of enemy territory.
[230] Aims of land warfare must not be confounded with ends of war; see above, § [66].
Lawful and Unlawful Practices of Land Warfare.
§ 104. But—to use the words of article 22 of the Hague Regulations—"the belligerents have not an unlimited right as to the means they adopt for injuring the enemy." For not all possible practices of injuring the enemy in offence and defence are lawful, certain practices being prohibited under all circumstances and conditions, and other practices being allowed only under certain circumstances and conditions, or only with certain restrictions. The principles of chivalry and of humanity have been at work[231] for many hundreds of years to create these restrictions, and their work is not yet at an end. However, apart from these restrictions, all kinds and degrees of force and many other practices may be made use of in war.
Objects of the Means of Warfare.
§ 105. In a sense all means of warfare are directed against one object only—namely, the enemy State, which is to be overpowered by all legitimate means. Apart from this, the means of land warfare are directed against several objects.[232] Such objects are chiefly the members of the armed forces of the enemy, but likewise, although in a lesser degree, other enemy persons; further, private and public property, fortresses, and roads. Indeed, apart from certain restrictions, everything may eventually be the object of a means of warfare, provided the means are legitimate in themselves and are capable of fostering the realisation of the purpose of war.
[232] See Oppenheim, Die Objekte des Verbrechens (1894), pp. 64-146, where the relation of human actions with their objects is fully discussed.
Land Warfare in contradistinction to Sea Warfare.
§ 106. Land warfare must be distinguished from sea warfare chiefly for two reasons. Firstly, their circumstances and conditions differ widely from each other, and, therefore, their means and practices also differ. Secondly, the law-making Conventions which deal with warfare rarely deal with land and sea warfare at the same time, but mostly treat them separately, for whereas some Conventions deal exclusively with warfare on sea, the Hague Regulations (Convention IV.) deal exclusively with warfare on land.
II VIOLENCE AGAINST ENEMY PERSONS
Grotius, III. c. 4—Vattel, III. §§ 139-159—Hall, §§ 128, 129, 185—Westlake, II. pp. 72-76—Lawrence, §§ 161, 163, 166-169—Maine, pp. 123-148—Manning, pp. 196-205—Phillimore, III. §§ 94-95—Halleck, II. pp. 14-18—Moore, VII. §§ 1111, 1119, 1122, 1124—Taylor, §§ 477-480—Walker, § 50—Wheaton, §§ 343-345—Bluntschli, §§ 557-563—Heffter, § 126—Lueder in Holtzendorff, IV. pp. 390-394—Gareis, § 85—Klüber, § 244—Liszt, § 40, III.—G. F. Martens, II. § 272—Ullmann, § 176—Bonfils, Nos. 1068-1071, 1099, 1141—Despagnet, Nos. 525-527—Pradier-Fodéré, VI. Nos. 2742-2758—Rivier, II. pp. 260-265—Nys, III. pp. 206-209—Calvo, IV. 2098-2105—Fiore, III. Nos. 1317-1320, 1342-1348, and Code, Nos. 1476-1483—Martens, II. § 110—Longuet, §§ 42-49—Mérignhac, pp. 146-165—Pillet, pp. 85-95—Holland, War, pp. 70-76—Zorn, pp. 127-161—Bordwell, pp. 278-283—Meurer, II. §§ 30-31—Spaight, pp. 73-156—Kriegsbrauch, pp. 9-11—Land Warfare, §§ 39-53.
On Violence in general against Enemy Persons.
§ 107. As war is a contention between States for the purpose of overpowering each other, violence consisting of different sorts of force applied against enemy persons is the chief and decisive means of warfare. These different sorts of force are used against combatants as well as non-combatants, but with discrimination and differentiation. The purpose of the application of violence against combatants is their disablement so that they can no longer take part in the fighting. And this purpose may be realised through either killing or wounding them, or making them prisoners. As regards non-combatant members of armed forces, private enemy persons showing no hostile conduct, and officials in important positions, only minor means of force may as a rule be applied, since they do not take part in the armed contention of the belligerents.
Killing and Wounding of Combatants.
§ 108. Every combatant may be killed or wounded, whether a private soldier or an officer, or even the monarch or a member of his family. Some publicists[233] assert that it is a usage of warfare not to aim at a sovereign or a member of his family. Be that as it may, there is in strict law[234] no rule preventing the killing and wounding of such illustrious persons. But combatants may only be killed or wounded if they are able and willing to fight or to resist capture. Therefore, such combatants as are disabled by sickness or wounds may not be killed. Further, such combatants as lay down arms and surrender or do not resist being made prisoners may neither be killed nor wounded, but must be given quarter. These rules are universally recognised, and are now expressly enacted by article 23 (c) of the Hague Regulations, although the fury of battle frequently makes individual fighters[235] forget and neglect them.
[233] See Klüber, § 245; G. F. Martens, II. § 278; Heffter, § 126.
[234] Says Vattel, III. § 159: "Mais ce n'est point une loi de la guerre d'épargner en toute rencontre la personne du roi ennemi; et on n'y est obligé que quand on a la facilité de le faire prisonnier." The example of Charles XII. of Sweden (quoted by Vattel), who was intentionally fired at by the defenders of the fortress of Thorn, besieged by him, and who said that the defenders were within their right, ought to settle the point.
[235] See Baty, International Law in South Africa (1900), pp. 84-85.
Refusal of Quarter.
§ 109. However, the rule that quarter must be given has its exceptions. Although it has of late been a customary rule of International Law, and although the Hague Regulations now expressly stipulate by article 23 (d) that belligerents are prohibited from declaring that no quarter will be given, quarter may nevertheless be refused[236] by way of reprisal for violations of the rules of warfare committed by the other side; and, further, in case of imperative necessity, when the granting of quarter would so encumber a force with prisoners that its own security would thereby be vitally imperilled.[237] But it must be emphasised that the mere fact that numerous prisoners cannot safely be guarded and fed by the captors[238] does not furnish an exceptional case to the rule, provided that no vital danger to the captors is therein involved. And it must likewise be emphasised that the former rule is now obsolete according to which quarter could be refused to the garrison of a fortress carried by assault, to the defenders of an unfortified place against an attack of artillery, and to the weak garrison who obstinately and uselessly persevered in defending a fortified place against overwhelming enemy forces.
[236] See Pradier-Fodéré, VII. Nos. 2800-2801, who opposes this principle but discusses the subject in a very detailed way.
[237] See Payrat, Le Prisonnier de Guerre (1910), pp. 191-220, and Land Warfare, § 80.
[238] Accordingly, the Boers frequently during the South African War set free British soldiers whom they had captured.
Lawful and Unlawful Means of killing and wounding Combatants.
§ 110. Apart from such means as are expressly prohibited by treaties or custom, all means of killing and wounding that exist or may be invented are lawful. And it matters not whether the means used are directed against single individuals, as swords and rifles, or against large bodies of individuals, as, for instance, shrapnel, Gatlings, and mines. On the other hand, all means are unlawful that render death inevitable or that needlessly aggravate the sufferings of wounded combatants. A customary rule of International Law, now expressly enacted by article 23 (e) of the Hague Regulations, prohibits, therefore, the employment of poison and of such arms, projectiles, and material as cause unnecessary injury. Accordingly: wells, pumps, rivers, and the like from which the enemy draws drinking water must not be poisoned; poisoned weapons must not be made use of; rifles must not be loaded with bits of glass, irregularly shaped iron, nails, and the like; cannons must not be loaded with chain shot, crossbar shot, red-hot balls, and the like. Another customary rule, now likewise enacted by article 23 (b) of the Hague Regulations, prohibits any treacherous way of killing and wounding combatants. Accordingly: no assassin must be hired and no assassination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.
Explosive Bullets.
§ 111. In 1868 a conference met at St. Petersburg for the examination of a proposition made by Russia with regard to the use of explosive projectiles in war. The representatives of seventeen Powers—namely, Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North German Confederation, Sweden-Norway, Switzerland, Turkey and Württemberg (Brazil acceded later) signed on December 11, 1868, the so-called Declaration of St. Petersburg,[239] which stipulates that the signatory Powers, and those who should accede later, renounce in case of war between themselves the employment, by their military and naval troops, of any projectile of a weight below 400 grammes (14 ounces) which is either explosive or charged with fulminating or inflammable substances. This engagement is obligatory only upon the contracting Powers, and it ceases to be obligatory in case a non-contracting Power takes part in a war between any of the contracting Powers.
[239] See above, [vol. I. § 562], and Martens, N.R.G. XVIII. p. 474.
Expanding (Dum-Dum) Bullets.
§ 112. As Great Britain had introduced bullets manufactured at the Indian arsenal of Dum-Dum, near Calcutta, the hard jacket of which did not quite cover the core and which therefore easily expanded and flattened in the human body, the First Hague Peace Conference adopted a declaration signed on July 29, 1899, by fifteen Powers—namely, Belgium, Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Roumania, Russia, Siam, Sweden-Norway, Turkey, and Bulgaria—stipulating that the contracting Powers should abstain, in case of war between two or more of them, from the use of bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions. Austria-Hungary, China, Germany, Italy, Nicaragua, Portugal, Japan, Luxemburg, Servia, Switzerland, and Great Britain acceded later.
Projectiles diffusing Asphyxiating or Deleterious Gases.
§ 113. The First Hague Peace Conference also adopted a Declaration, signed on July 29, 1899, by sixteen States—namely, Belgium, Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Portugal, Roumania, Russia, Siam, Sweden-Norway, Turkey and Bulgaria—stipulating that the signatory Powers should in a war between two or more of them abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases. Austria-Hungary, China, Germany, Italy, Japan, Luxemburg, Nicaragua, Servia, Switzerland, and Great Britain acceded later.
Violence directed from Air-Vessels.
§ 114. The First Hague Peace Conference adopted likewise a Declaration, signed on July 29, 1899, prohibiting for a term of five years the launching of projectiles or explosives from balloons or other kinds of aerial vessels. The Second Peace Conference, on October 18, 1907, renewed this Declaration up to the close of the Third Peace Conference, but out of twenty-seven States which signed the Declaration only seven—namely, Great Britain, the United States of America, China, Holland, Bolivia, Salvador, Haiti (Nicaragua acceded later)—ratified it, and Germany, France, Italy, Japan, Russia—not to mention smaller Powers—did not even sign it. There is, therefore, no doubt that the Third Peace Conference will not renew the Declaration. Although it is very much to be regretted, the fact must be taken into consideration that in future violence directed from air-vessels will play a great part in war. For this reason, the question as to the conditions under which such violence is admissible, is of importance,[240] but it is as yet impossible to give a satisfactory answer. The Institute of International Law, at its meeting at Madrid in 1911, adopted the principle[241] that aerial warfare must not comprise greater danger to the person and the property of the peaceful population than land or sea warfare. However this may be, there can be no doubt that the general principles laid down in the Declaration of St. Petersburg of 1868, in the two Declarations, adopted by the First Peace Conference, concerning expanding bullets and projectiles diffusing asphyxiating or deleterious gases, in the Hague rules concerning land warfare, and the like, must find application as regards violence directed from air vessels.
[240] See, besides the literature quoted above, [vol. I. p. 237, note 1,] Mérignhac, pp. 198-209; Bonfils, Nos. 14404-144021; Despagnet, No. 721 bis; Meyer, Die Luftschiffahrt in kriegsrechtlicher Beleuchtung (1909); Philet, La guerre aérienne (1910); Nys, Fauchille, and Bar in Annuaire, XIX. (1902), pp. 58-114, XXIV. (1911), pp. 23-126; Fauchille in R.G. VIII. (1901), pp. 414-485.
[241] See Annuaire, XXIV. (1911), p. 346.
Violence against non-combatant Members of Armed Forces.
§ 115. It will be remembered from above, § [79], that numerous individuals belong to armed forces without being combatants. Now, since and in so far as these non-combatant members of armed forces do not take part in the fighting, they may not directly be attacked and killed or wounded. However, they are exposed to all injuries indirectly resulting from the operations of warfare. And, with the exception of the personnel[242] engaged in the interest of the wounded, such as doctors, chaplains, persons employed in military hospitals, official ambulance men, who, according to articles 9 and 10 of the Geneva Convention, are specially privileged, such non-combatant members of armed forces may certainly be made prisoners, since the assistance they give to the fighting forces may be of great importance.
Violence against Private Enemy Persons.
§ 116. Whereas in former[243] times private enemy persons of either sex could be killed or otherwise badly treated according to discretion, and whereas in especial the inhabitants of fortified places taken by assault used to be abandoned to the mercy of the assailants, in the eighteenth century it became a universally recognised customary rule of the Law of Nations that private enemy individuals should not be killed or attacked. In so far as they do not take part in the fighting, they may not be directly attacked and killed or wounded. They are, however, like non-combatant members of the armed forces, exposed to all injuries indirectly resulting from the operations of warfare. Thus, for instance, when a town is bombarded and thousands of inhabitants are thereby killed, or when a train carrying private individuals as well as soldiers is wrecked by a mine, no violation of the rule prohibiting attack on private enemy persons has taken place.
[243] See Grotius, III. c. 4, §§ VI. and IX.
As regards captivity, the rule is that private enemy persons may not be made prisoners of war. But this rule has exceptions conditioned by the carrying out of certain military operations, the safety of the armed forces, and the order and tranquillity of occupied enemy territory. Thus, for instance, influential enemy citizens who try to incite their fellow-citizens to take up arms may be arrested and deported into captivity. And even the whole population of a province may be imprisoned in case a levy en masse is threatening.[244]
[244] Civilians who render assistance to the enemy as drivers, or as labourers to construct fortifications or siege works, or in a similar way, if captured while they are so engaged, may not be detained as prisoners of war, whether they render these services voluntarily or are requisitioned or hired. See Land Warfare, § 58 note (a).
Apart from captivity, restrictions of all sorts may be imposed upon, and means of force may be applied against, private enemy persons for many purposes. Such purposes are:—the keeping of order and tranquillity on occupied enemy territory; the prevention of any hostile conduct, especially conspiracies; the prevention of intercourse with and assistance to the enemy forces; the securing of the fulfilment of commands and requests of the military authorities, such as those for the provision of drivers, hostages, farriers; the securing of compliance with requisitions and contributions, of the execution of public works necessary for military operations, such as the building of fortifications, roads, bridges, soldiers' quarters, and the like. What kind of violent means may be applied for these purposes is in the discretion of the respective military authorities, who on their part will act according to expediency and the rules of martial law established by the belligerents. But there is no doubt that, if necessary, capital punishment and imprisonment[245] are lawful means for these purposes. The essence of the position of private individuals in modern warfare with regard to violence against them finds expression in article 46 of the Hague Regulations, which lays down the rule that "family honours and rights, individual lives and private property, as well as religious convictions and liberty, must be respected."
[245] That in case of general devastation the peaceful population may be detained in so-called concentration camps, there is no doubt; see below, § [154]. And there is likewise no doubt that hostages may be taken from the peaceful population; see below, § [170], p. 213, and § [259, p. 319, note 2].
Violence against the Head of the Enemy State and against Officials in Important Positions.
§ 117. The head of the enemy State and officials in important posts, in case they do not belong to the armed forces, occupy, so far as their liability to direct attack, death, or wounds is concerned, a position similar to that of private enemy persons. But they are so important to the enemy State, and they may be so useful to the enemy and so dangerous to the invading forces, that they may certainly be made prisoners of war. If a belligerent succeeds in obtaining possession of the head of the enemy State or its Cabinet Ministers, he will certainly remove them into captivity. And he may do the same with diplomatic agents and other officials of importance, because by weakening the enemy Government he may thereby influence the enemy to agree to terms of peace.
III TREATMENT OF WOUNDED, AND DEAD BODIES
Hall, § 130—Lawrence, § 165—Maine, pp. 156-159—Manning, p. 205—Phillimore, III. § 95—Halleck, II. pp. 36-39—Moore, VII. § 1134—Taylor, §§ 527-528—Bluntschli, §§ 586-592—Lueder in Holtzendorff, IV. pp. 289-319, 398-421—Liszt, § 40, V.—Ullmann, § 178 and in R.G. IV. (1897), pp. 437-447—Bonfils, Nos. 1108-11187—Despagnet, Nos. 551-553—Pradier-Fodéré, VI. No. 2794, VII. Nos. 2849-2881—Rivier, II. pp. 268-273—Nys, III. pp. 526-536—Calvo, IV. §§ 2161-2165—Fiore, III. Nos. 1363-1372, and Code, Nos. 1589-1604—Martens, II. § 114—Longuet, §§ 85-90—Mérignhac, pp. 114-142—Pillet, pp. 165-192—Kriegsbrauch, p. 26—Land Warfare, §§ 174-220—Zorn, p. 122—Bordwell, pp. 249-277—Spaight, pp. 419-460—Higgins, pp. 35-38—Holland, Studies, pp. 61-65—Holland, War, Nos. 41-69—Güret, Zur Geschichte der internationalen und freiwilligen Krankenpflege (1873)—Lueder, Die Genfer Convention (1876)—Moynier, La croix rouge, son passé et son avenir (1882); La revision de la Convention de Genève (1898); La fondation de la croix rouge (1903)—Buzzati, De l'emploi abusif ... de la croix rouge (1890)—Triepel, Die neuesten Fortschritte auf dem Gebiet des Kriegsrechts (1894), pp. 1-41—Müller, Entstehungsgeschichte des rothen Kreuzes und der Genfer Konvention (1897)—Münzel, Untersuchungen über die Genfer Konvention (1901)—Roszkoroski in R.I. 2nd Ser. IV. (1902), pp. 199, 299, 442—Gillot, La revision de la Convention de Genève, etc. (1902)—Meurer, Die Genfer Konvention und ihre Reform (1906)—Delpech in R.G. XIII. (1906), pp. 629-724—Macpherson in Z.V. V. (1911), pp. 253-277.
Origin of Geneva Convention.
§ 118. Although[246] since the seventeenth century several hundreds of special treaties have been concluded between different States regarding the tending of each other's wounded and the exemption of army surgeons from captivity, no general rule of the Law of Nations on these points was in existence until the second half of the nineteenth century other than one prohibiting the killing, mutilation, or ill-treatment of the wounded. A change for the better was initiated by Jean Henry Dunant, a Swiss citizen from Geneva, who was an eye-witness of the battle of Solferino in 1859, where many thousands of wounded died who could, under more favourable circumstances, have been saved. When he published, in 1861 and 1863, his pamphlet, Un Souvenir de Solférino, the Geneva Société d'utilité publique, under the presidency of Gustave Moynier, created an agitation in favour of better arrangements for the tending of the wounded on the battlefield, and convoked an international congress at Geneva in 1863, where thirty-six representatives of nearly all the European States met and discussed the matter. In 1864 the Bundesrath, the Government of the Federal State of Switzerland, took the matter in hand officially, and invited all European and several American States to send official representatives to a Congress at Geneva for the purpose of discussing and concluding an international treaty regarding the wounded. This Congress met in 1864, and sixteen States were represented. Its result was the international "Convention[247] for the Amelioration of the Condition of Soldiers wounded in Armies in the Field," commonly called "Geneva Convention," signed on August 22, 1864. By-and-by States other than the original signatories joined the Convention, and finally the whole body of the civilised States of the world, with the exception of Costa Rica, Monaco, and Lichtenstein, became parties. That the rules of the Convention were in no wise perfect, and needed to be supplemented regarding many points, soon became apparent. A second International Congress met at the invitation of Switzerland in 1868 at Geneva, where additional articles[248] to the original Convention were discussed and signed. These additional articles have, however, never been ratified. The First Hague Peace Conference in 1899 unanimously formulated the wish that Switzerland should shortly take steps for the assemblage of another international congress in order to revise the Geneva Convention. This Congress assembled in June 1906, thirty-five States having sent representatives, and on July 6, 1906, a new Geneva Convention[249] was signed by Great Britain, Germany, Argentina, Austria-Hungary, Belgium, Bulgaria, Chili, China, Congo Free State, Korea, Denmark, Spain, the United States of America, Brazil, Mexico, France, Greece, Guatemala, Honduras, Italy, Japan, Luxemburg, Montenegro, Norway, Holland, Peru, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland, and Uruguay. Most of these States have already ratified, and Colombia, Costa-Rica, Cuba, Nicaragua, Salvador, Turkey, and Venezuela, which were not represented at the Congress, acceded later. There is no doubt that in time all the civilised Powers will become parties.
[246] See Macpherson, loc. cit. p. 254.
[247] See Martens, N.R.G. XVIII. p. 607, and above, [vol. I. § 560].
[248] See Martens, N.R.G. XVIII. p. 61.
[249] See Martens, N.R.G. 3rd. Ser. II. (1910), p. 620, and Treaty Series, 1907, No. 15.
The new Convention consists of thirty-three articles instead of the ten articles of the old Convention, and provides rules for the treatment of the wounded and the dead; further rules concerning military hospitals and mobile medical units; the personnel engaged in the interest of the wounded including army chaplains; the material belonging to mobile medical units, military hospitals, and voluntary aid societies; the convoys of evacuation; the distinctive emblem; the carrying out of the Convention; and the prevention of abuses and infractions.
In the final protocol the Conference expresses the desire that, in order to arrive at a unanimous interpretation of the Convention, the parties should, so far as the cases and the circumstances permit, submit to Hague Court Arbitration any differences which in time of peace might arise between them concerning the interpretation of the Convention, but Great Britain and Japan refused to become parties to this.
The Wounded and the Sick.
§ 119. According to articles 1-5 of the Geneva Convention,[250] the sick and wounded persons belonging, or officially attached, to armies must be respected and taken care of, without distinction of nationality, by the belligerent in whose power they may be. Should, however, a belligerent necessarily be compelled to abandon such sick and wounded persons to the enemy, he must, so far as military exigencies permit, leave behind with them a portion of his medical personnel to take care of them, and the necessary material. The sick and wounded who have fallen into the hands of the enemy are prisoners of war, but belligerents may exchange or release them, or even hand them over to a neutral State which has to intern them until after the conclusion of peace. After each engagement the commander in possession of the field must have search made for the wounded and must take measures to protect them against pillage and maltreatment. A nominal roll of all wounded and sick who have been collected must be sent as early as possible to the authorities of the country or army to which they belong, and the belligerents must keep each other mutually informed of any internments and changes as well as of admissions into hospital. It is specially stipulated by article 5 that, if a military authority finds it necessary to appeal to the charitable zeal of the inhabitants to collect and take care of, under his direction, the wounded and sick of armies, he can grant to those who have responded to his appeal special protection and certain immunities.
[250] The stipulations of the Geneva Convention are for the most part of a technical military character, and it is, therefore, impossible in a general treatise of International Law to enter into any details. Readers who take a deeper interest in the matter must be referred to the most valuable article by Macpherson in Z.V. V. (1911), pp. 253-277.
Medical Units and Establishments, and Material.
§ 120. In order that the wounded and sick may receive proper treatment, mobile medical units as well as the fixed establishments of the medical service must be respected and protected by the belligerents, but this protection ceases if these units and establishments are made use of to commit acts harmful to the enemy, for instance, to shelter combatants, to carry on espionage, to conceal arms and ammunition (articles 6 and 7). But article 8 expressly enacts that the units and establishments do not forego protection:—(a) in case the personnel is armed and use their arms for their own defence or for the defence of the wounded and sick under their charge; (b) in case, in default of armed orderlies, units or establishments are guarded by pickets or by sentinels furnished with authority in due form; (c) in case weapons and cartridges, taken from the wounded and not yet handed over to the proper department, are found in units or establishments.
As regards the material, a distinction is drawn between the treatment of the material of mobile medical units, of fixed medical establishments, and of material belonging to Voluntary Aid Societies.
(a) Mobile medical units which fall into the hands of the enemy must not be deprived of their material, including their teams, whatever may be the means of transport and whoever may be the drivers employed (article 14). The competent military authority is, however, permitted to make use of the material in captured medical units for the treatment of the wounded and the sick at hand, provided it is restored under the same conditions, and so far as possible at the same time, as laid down for the release of the medical personnel by article 12.
(b) The buildings and material of fixed medical establishments which, because the locality where they are is militarily occupied, fall into the hands of the enemy, remain, according to article 15, "subject to the laws of war," that means they remain entirely in the power of the captor, but they may not be diverted from their medical purpose so long as they are necessary for the proper treatment of the wounded and the sick. Should, however, urgent military necessity demand it, a commander may dispose of them, provided he makes previous arrangements for the welfare of the wounded and sick found in the fixed establishments.
(c) The material of Voluntary Aid Societies, which are duly recognised, is, according to article 16, considered private property and must, therefore, be respected as such under all circumstances, although it may be requisitioned.
Personnel.
§ 121. The personnel engaged exclusively in the collection, transport, and treatment of the wounded and sick, as well as in the administration of mobile medical units and establishments, the chaplains attached to armies, and, lastly, pickets and sentinels guarding medical units and establishments, must, according to article 9, under all circumstances be respected and protected. If they fall into the hands of the enemy they must not be treated as prisoners of war. According to article 12, however, they are not free to act or move without let or hindrance, for, if their assistance is indispensable, they may be called upon by the captor to carry on their duties to the wounded and the sick. But when their assistance is no longer indispensable, they must be sent back to their army or to their country at such time and by such route as may be compatible with military exigencies, and they must be allowed to take with them such effects, instruments, arms, and horses as are their private property. So long as they are detained by the enemy he must, according to article 13, grant them the same allowances and the same pay as are due to the personnel holding the same rank in his own army.
The personnel of Voluntary Aid Societies employed in the medical units and establishments is, according to article 10, privileged to the same extent as the official personnel, provided that the Voluntary Aid Society concerned is duly recognised and authorised by its Government and that the personnel of the Society is subject to military law and regulations. Each State must notify to the other, either in time of peace or at the commencement, or during the course, of hostilities, but in every case before actually employing them, the names of societies which it has authorised to render assistance to the regular medical service of its armies. A recognised Voluntary Aid Society of a neutral country cannot, according to article 11, afford the assistance of its personnel and units to a belligerent unless it has previously received the consent of its own Government and of the belligerent concerned. And a belligerent who accepts such assistance from a Voluntary Aid Society of a neutral country is bound, before making any use of it, to notify the fact to the enemy.
Convoys of Evacuation.
§ 122. Convoys used for evacuating the wounded and sick must, as regards their personnel and material, be treated in the same way as mobile medical units, but subject to the following special provisions enacted by article 17:—
A belligerent intercepting a convoy may, if military exigencies demand, break it up, provided he takes charge of the sick and wounded who are in it. In this case, the obligation to send back the medical personnel, provided for in article 12, must be extended to the whole of the military personnel detailed for the transport or the protection of the convoy and furnished with an authority in due form to that effect.
The obligation to restore the medical material, provided for in article 14, must apply to railway trains and boats used in internal navigation, which are specially arranged for evacuation, as well as to the material belonging to the medical service for fitting up ordinary vehicles, trains, and boats. Military vehicles, other than those of the medical service, however, may be captured with their teams; and the civilian personnel and the various means of transport obtained by requisition, including railway material and boats used for convoys, are subject to the general rules of International Law concerning war.
Distinctive Emblem.
§ 123. According to article 18 the Swiss heraldic device of the red cross on a white ground, formed by reversing the federal colours, is adopted as the emblem and distinctive sign of the medical service of armies, but there is no objection to the adoption of another emblem on the part of such non-Christian States as object to the cross on religious grounds. Thus Turkey has substituted a red crescent, and Persia a red sun for the cross.[251] The following are the rules concerning the use of this emblem:—
(1) The emblem must be shown on the flags and the armlets (brassards) as well as on all the material belonging to the medical service, but the emblem cannot be recognised unless it is used with the permission of the competent military authority (article 19).
(2) Medical units and establishments must hoist the red cross flag accompanied by the national flag of the belligerent concerned (article 21), but medical units which have fallen into the hands of the enemy must not, so long as they are in that situation, fly any other flag than that of the red cross. The medical units belonging to neutral countries which have, in accordance with article 11, been admitted to afford their services, must fly, along with the red cross flag, the national flag of the belligerent to whose army they are attached (article 22).
(3) All the personnel must, according to article 20, wear, fixed to the left arm, an armlet (brassard) with a red cross on a white ground, delivered and stamped by the competent military authority and accompanied by a certificate of identity in the case of persons who are attached to the medical service and armies without wearing the military uniform.
(4) The employment of the red cross on a white ground and the words "Red Cross" or "Geneva Cross" must not, according to article 23, be used, either in time of peace or in time of war, except to indicate the protected medical units, establishments, personnel, and material.
Treatment of the Dead.
§ 124. According to a customary rule of the Law of Nations belligerents have the right to demand from one another that dead soldiers shall not be disgracefully treated, especially not mutilated, and shall be, so far as possible, collected and buried[252] or cremated on the battlefield by the victor. The Geneva Convention does not stipulate any rule concerning the collection and burial or cremation of the dead, but article 3 enacts that after each engagement the commander in possession of the field must take measures to ensure protection of the dead against pillage and maltreatment, and that a careful examination of the bodies, in order to see that life is really extinct, must be made before the dead are buried or cremated. Each belligerent must send as soon as possible to the authorities of the country or army to which they belong the military identification marks or tokens found on the dead (article 4). Pieces of equipment found upon the dead of the enemy are public enemy property and may, therefore, be appropriated as booty[253] by the victor. On the other hand, letters, money, jewellery, and such other articles of value found upon the dead on the battlefield, or on those who die in the medical units or fixed establishments, as are apparently private property, are not booty, but must, according to article 4 of the Geneva Convention and article 14 of the Hague rules concerning warfare on land, be collected and handed over to the Bureau of Information[254] concerning the prisoners of war, which has to transmit them to the persons interested through the channel of the authorities of their own country.
[252] See Grotius, II. c. 19, §§ 1 and 3. Regarding a valuable suggestion of Ullmann's concerning sanitary measures for the purpose of avoiding epidemics, see above, [vol. I. p. 621, note 1].
Application of the Geneva Convention, and Prevention of Abuses.
§ 124a. The provisions of the Geneva Convention are only binding in the case of war between two or more of the contracting parties, they cease to be binding from the moment when one of the belligerent Powers is not a party (article 24). The commanders-in-chief of the belligerent armies must, in accordance with the instructions of their Governments and in conformity with the general principles of the Geneva Convention, arrange the details for carrying out the articles of the Geneva Convention, as well as for cases not provided for in these articles (article 25). The contracting parties must take the necessary measures to instruct their troops, especially the personnel protected by the Geneva Convention, in the provisions of the Convention, and to bring these provisions to the notice of the civil population (article 26). In countries whose legislation is not at the time of the signing of the Convention adequate for the purpose, the contracting parties must adopt such measures as may be necessary to prevent, at all times, the employment of the emblem or the name of "Red Cross" or "Geneva Cross" by private individuals or by Societies other than those which are entitled to do so according to the Geneva Convention, and in particular for commercial purposes as a trade mark or trading mark (article 27). The contracting Governments must likewise adopt measures necessary for the repression in time of war of individual acts of pillage and maltreatment of the wounded and sick, as well as for the punishment of the improper use of the Red Cross flag and armlet (brassard) by officers and soldiers or private individuals not protected by the Geneva Convention. They must, at the latest within five years from the ratification of the Geneva Convention, communicate to one another through the Swiss Federal Council, the provisions concerning these measures of repression (article 28).[255]
[255] By reason of the uncertainties of parliamentary proceedings, Great Britain, in signing and ratifying the Geneva Convention, entered a reservation against articles 23, 27, and 28, but by the Geneva Convention Act, 1911 (1 & 2 Geo. V. ch. 20), Great Britain is now able to carry out the stipulations of these three articles.
General provisions of the Geneva Convention.
§ 124b. The Geneva Convention comes into force for each contracting Power six months after the date of the deposit of its ratification (article 30). The new Geneva Convention replaces the old of 1864, but the old Geneva Convention remains in force between such of its contracting parties as do not become parties to the new Convention of 1906 (article 31). Such of the Powers as signed the old Convention of 1864, but did not sign the new Convention of December 31, 1906, are free to accede to it at any time later by means of a written notification to the Swiss Federal Council. Other Powers may likewise notify their accession at any time to the Swiss Federal Council, but their accession only takes effect in case, within a period of one year from such notification, no objection to the accession reaches the Swiss Federal Council from any of the previous contracting Powers (article 32). Each of the contracting Powers is at liberty at any time to denounce the Geneva Convention by a written notification to the Swiss Federal Council, which must immediately indicate it to all the other contracting Powers (article 33). The denunciation, however, does not take effect until one year after it has come to the notice of the Swiss Federal Council, and a denunciation only affects such Power as has notified it.
IV CAPTIVITY
Grotius, III. c. 14—Bynkershoek, Quaest. jur. publ. I. c. 3—Vattel, III. §§ 148-154—Hall, §§ 131-134—Westlake, II. pp. 63-68—Lawrence, § 164—Maine, pp. 160-167—Manning, pp. 210-222—Phillimore, III. § 95—Twiss, II. § 177—Halleck, II. pp. 19-30—Taylor, §§ 519-524—Moore, VII. §§ 1127-1133—Wharton, III. §§ 348-348D—Wheaton, § 344—Bluntschli, §§ 593-626—Heffter, §§ 127-129—Lueder in Holtzendorff, IV. pp. 423-445—Ullmann, § 177—Bonfils, Nos. 1119-1140—Despagnet, Nos. 544-550—Pradier-Fodéré, VII. Nos. 2796-2842, and VIII. No. 3208—Rivier, II. pp. 273-279—Nys, III. pp. 537-553—Calvo, IV. §§ 2133-2157—Fiore, III. Nos. 1355-1362, and Code, Nos. 1567-1588—Martens, II. § 113—Longuet, §§ 77-83—Mérignhac, pp. 87-113—Pillet, pp. 145-164—Kriegsbrauch, pp. 11-18—Zorn, pp. 73-123—Bordwell, pp. 237-248—Land Warfare, §§ 54-116—Spaight, pp. 260-320—Holland, War, Nos. 24-40—Eichelmann, Über die Kriegsgefangenschaft (1878)—Romberg, Des belligérants et des prisonniers de guerre (1894)—Triepel, Die neuesten Fortschritte auf dem Gebiet des Kriegsrechts (1894), pp. 41-55—Holls, The Peace Conference at the Hague (1900), pp. 145-151—Cros, Condition et traitement des prisonniers de guerre (1900)—Beinhauer, Die Kriegsgefangenschaft (1910)—Payrat, Le prisonnier de guerre dans la guerre continentale (1910).
Development of International Law regarding Captivity.
§ 125. During antiquity, prisoners of war could be killed, and they were very often at once actually butchered or offered as sacrifices to the gods. If they were spared, they were as a rule made slaves and only exceptionally liberated. But belligerents also exchanged their prisoners or liberated them for ransom. During the first part of the Middle Ages prisoners of war could likewise be killed or made slaves. Under the influence of Christianity, however, their fate in time became mitigated. Although they were often most cruelly treated during the second part of the Middle Ages, they were not as a rule killed and, with the disappearance of slavery in Europe, they were no longer enslaved. By the time modern International Law gradually came into existence, killing and enslaving prisoners of war had disappeared, but they were still often treated as criminals and as objects of personal revenge. They were not considered in the power of the State by whose forces they were captured, but in the power of those very forces or of the individual soldiers that had made the capture. And it was considered lawful on the part of captors to make as much profit as possible out of their prisoners by way of ransom, provided no exchange of prisoners took place. So general was this practice that a more or less definite scale of ransom became usual. Thus, Grotius (III. c. 14, § 9) mentions that in his time the ransom of a private was the amount of his one month's pay. And since the pecuniary value of a prisoner as regards ransom rose in proportion with his fortune and his position in life and in the enemy army, it became usual for prisoners of rank and note not to belong to the capturing forces but to the Sovereign, who had, however, to recompense the captors. During the seventeenth century, the custom that prisoners were considered in the power of their captors died away. They were now considered to be in the power of the Sovereign by whose forces they were captured. But rules of the Law of Nations regarding their proper treatment were hardly in existence. The practice of liberating prisoners in exchange, or for ransom only, continued. Special cartels were often concluded at the outbreak of or during a war for the purpose of stipulating a scale of ransom according to which either belligerent could redeem his soldiers and officers from captivity. The last[256] instance of such cartels is that between England and France in 1780, stipulating the ransom for members of the naval and military forces of both belligerents.
[256] See Hall, § 134, p. 428, note 1.
It was not until the eighteenth century, with its general tendencies to mitigate the cruel practices of warfare, that matters changed for the better. The conviction in time became general that captivity should only be the means of preventing prisoners from returning to their corps and taking up arms again, and should, as a matter of principle, be distinguished from imprisonment as a punishment for crimes. The Treaty of Friendship[257] concluded in 1785 between Prussia and the United States of America was probably the first to stipulate (article 24) the proper treatment of prisoners of war, prohibiting confinement in convict prisons and the use of irons, and insisting upon their confinement in a healthy place, where they may have exercise, and where they may be kept and fed as troops. During the nineteenth century the principle that prisoners of war should be treated by their captor in a manner analogous to that meted out to his own troops became generally recognised, and the Hague Regulations have now, by articles 4 to 20, enacted exhaustive rules regarding captivity.
[257] See Martens, N.R. IV. p. 37.
Treatment of Prisoners of War.
§ 126. According to articles 4-7 and 16-19 of the Hague Regulations prisoners of war are not in the power of the individuals or corps who capture them, but in the power of the Government of the captor. They must be humanely treated. All their personal belongings remain their property, with the exception of arms, horses, and military papers, which are booty;[258] and in practice[259] personal belongings are understood to include military uniform, clothing, and kit required for personal use, although technically they are Government property. They may only be imprisoned as an unavoidable matter of safety, and only while the circumstances which necessitate the measure continue to exist. They may, therefore, be detained in a town, fortress, camp, or any other locality, and they may be bound not to go beyond a certain fixed boundary. But they may not be kept in convict prisons. Except in the case of officers, their labour may be utilised by the Government according to their rank and aptitude, but their tasks must not be excessive and must have nothing to do with military operations. Work done by them for the State must be paid for in accordance with tariffs in force for soldiers of the national army employed on similar tasks, or, in case there are no such tariffs in force, at rates proportional to the work executed. But prisoners of war may also be authorised to work for other branches of the public service or for private persons under conditions of employment to be settled by the military authorities, and they may likewise be authorised to work on their own account. All wages they receive go towards improving their position, and a balance must be paid to them at the time of their release, after deducting the cost of their maintenance. But whether they earn wages or not, the Government is bound under all circumstances to maintain them, and provide quarters, food, and clothing for them on the same footing as for its own troops. Officer prisoners must receive the same pay as officers of corresponding rank in the country where they are detained, the amount to be repaid by their Government after the conclusion of peace. All prisoners of war must enjoy every latitude in the exercise of their religion, including attendance at their own church service, provided only they comply with the regulations for order issued by the military authorities. If a prisoner wants to make a will, it must be received by the authorities or drawn up on the same conditions as for soldiers of the national army. And the same rules are valid regarding death certificates and the burial of prisoners of war, and due regard must be paid to their grade and rank. Letters, money orders, valuables, and postal parcels destined for or despatched by prisoners of war must enjoy free postage, and gifts and relief in kind for prisoners of war must be admitted free from all custom and other duties as well as payments for carriage by Government railways (article 16).
[259] See Land Warfare, § 69.
Who may claim to be Prisoners of War.
§ 127. Every individual who is deprived of his liberty not for a crime but for military reasons has a claim to be treated as a prisoner of war. Article 13 of the Hague Regulations expressly enacts that non-combatant[260] members of armed forces, such as newspaper correspondents, reporters, sutlers, contractors, who are captured and detained, may claim to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying. But although the Hague Regulations do not contain anything regarding the treatment of private enemy individuals and enemy officials whom a belligerent thinks it necessary[261] to make prisoners of war, it is evident that they may claim all privileges of such prisoners. Such individuals are not convicts; they are taken into captivity for military reasons, and they are therefore prisoners of war.
[261] See above, §§ [116] and [117].
Discipline.
§ 128. Articles 8 and 9 of the Hague Regulations lay down the discipline to be observed in the case of prisoners of war in the following way:—Every prisoner who, if questioned, does not declare his true name and rank is liable to a curtailment of the advantages accorded to prisoners of his class. All prisoners are subject to the laws, regulations, and orders in force in the army of the belligerent that keeps them in captivity. Any act of insubordination on the part of prisoners may be punished in accordance with these laws,[262] but apart from these laws, all kinds of severe measures are admissible to prevent a repetition of such acts. Escaped prisoners, who, after having rejoined their national army, are again taken prisoners, are not liable to any punishment for their flight. But if they are recaptured before they succeed in rejoining their army, or before they have quitted the territory occupied by the capturing forces, they are liable to disciplinary punishment.
[262] Concerning the question whether after conclusion of peace such prisoners as are undergoing a term of imprisonment for offences against discipline may be detained, see below, § [275].
Release on Parole.
§ 129. Articles 10 to 12 of the Hague Regulations deal with release on parole in the following manner:—No belligerent is obliged to assent to a prisoner's request to be released on parole, and no prisoner may be forced to accept such release. But if the laws of his country authorise him to do so, and if he acquiesces, any prisoner may be released on parole. In such case he is in honour bound scrupulously to fulfil the engagement he has contracted, both as regards his own Government and the Government that released him. And his own Government is formally bound neither to request, nor to accept, from him any service incompatible with the parole given. Any prisoner released on parole and recaptured bearing arms against the belligerent who released him, or against such belligerent's allies, forfeits the privilege to be treated as a prisoner of war, and may be tried by court-martial. The Hague Regulations do not lay down the punishment for such breach of parole, but according to a customary rule of International Law the punishment may be capital.
Bureau of Information.
§ 130. According to articles 14 and 16 of the Hague Regulations every belligerent[263] must institute on the commencement of war a Bureau of Information relative to his prisoners of war. This Bureau is intended to answer all inquiries about prisoners. It must be furnished by all the services concerned with all the necessary information to enable it to make out and keep up to date a separate return for each prisoner, and it must, therefore, be kept informed of internments and changes as well as of admissions into hospital, of deaths, releases on parole, exchanges, and escapes. It must state in its return for each prisoner the regimental number, surname and name, age, place of origin, rank, unit, wounds, date and place of capture, of internment, of the wounds received, date of death, and any observations of a special character. This separate return must, after conclusion of peace, be sent to the Government of the other belligerent.
[263] And likewise such neutral States as receive and detain members of the armed forces of the belligerents; see article 14.
The Bureau must likewise receive and collect all objects of personal use, valuables, letters, and the like, found on battlefields[264] or left by prisoners who have been released on parole, or exchanged, or who have escaped, or died in hospital or ambulances, and must transmit these articles to those interested. The Bureau must enjoy the privilege of free postage.
Relief Societies.
§ 131. A new and valuable rule, taken from the Brussels Declaration, is that of article 15 of the Hague Regulations making it a duty of every belligerent to grant facilities to Relief Societies to serve as intermediaries for charity to prisoners of war. The condition of the admission of such societies and their agents is that the former are regularly constituted in accordance with the law of their country. Delegates of such societies may be admitted to the places of internment for the distribution of relief, as also to the halting-places of repatriated prisoners, through a personal permit of the military authorities, provided they give an engagement in writing that they will comply with all regulations by the authorities for order and police.
End of Captivity.
§ 132. Captivity can come to an end through different modes. Apart from release on parole, which has already been mentioned, captivity comes to an end—(1) through simple release without parole; (2) through successful flight; (3) through liberation by the invading enemy to whose army the respective prisoners belong; (4) through exchange for prisoners taken by the enemy; (5) through prisoners[265] being brought into neutral territory by captors who take refuge there; and, lastly (6), through the war coming to an end. Release of prisoners for ransom is no longer practised, except in the case of the crew of a captured merchantman released on a ransom bill.[266] It ought, however, to be observed that the practice of ransoming prisoners might be revived if convenient, provided the ransom is to be paid not to the individual captor but to the belligerent whose forces made the capture.
As regards the end of captivity through the war coming to an end, a distinction must be made according to the different modes of ending war. If the war ends by peace being concluded, captivity comes to an end at once[267] with the conclusion of peace, and, as article 20 of the Hague Regulations expressly enacts, the repatriation of prisoners must be effected as speedily as possible. If, however, the war ends through conquest and annexation of the vanquished State, captivity comes to an end as soon as peace is established. It ought to end with annexation, and it will in most cases do so. But as guerilla war may well go on after conquest and annexation, and thus prevent a condition of peace from being established, although real warfare is over, it is necessary not to confound annexation with peace.[268] The point is of interest regarding such prisoners only as are subjects of neutral States. For other prisoners become through annexation subjects of the State that keeps them in captivity, and such State is, therefore, as far as International Law is concerned, unrestricted in taking any measure it likes with regard to them. It can repatriate them, and it will in most cases do so. But if it thinks that they might endanger its hold over the conquered territory, it might likewise prevent their repatriation for any definite or indefinite period.[269]
[267] That, nevertheless, the prisoners remain under the discipline of the captor until they have been handed over to the authorities of their home State, will be shown below, § [275].
[269] Thus, after the South African War, Great Britain refused to repatriate those prisoners of war who were not prepared to take the oath of allegiance.
V APPROPRIATION AND UTILISATION OF PUBLIC ENEMY PROPERTY
Grotius, III. c. 5—Vattel, III. §§ 73, 160-164—Hall, §§ 136-138—Westlake, II. pp. 102-107—Lawrence, § 171—Maine, pp. 192-206—Manning, pp. 179-183—Twiss, II. §§ 62-71—Halleck, II. pp. 58-68—Moore, VII. § 1148—Taylor, §§ 529-536—Wharton, III. § 340—Wheaton, §§ 346, 352-354—Bluntschli, §§ 644-651A—Heffter, §§ 130-136—Lueder in Holtzendorff, IV. pp. 488-500—G. F. Martens, II. §§ 279-280—Ullmann, § 183—Bonfils, Nos. 1176-1193—Despagnet, Nos. 592-596—Pradier-Fodéré, VII. Nos. 2989-3018—Rivier, II. pp. 306-314—Nys, III. pp. 296-308—Calvo, IV. §§ 2199-2214—Fiore, III. Nos. 1389, 1392, 1393, 1470, and Code, Nos. 1557-1560—Martens, II. § 120—Longuet, § 96—Mérignhac, pp. 299-316—Pillet, pp. 319-340—Kriegsbrauch, pp. 57-60—Holland, War, No. 113—Land Warfare, §§ 426-432—Meurer, II. §§ 65-69—Spaight, pp. 410-418—Zorn, pp. 243-270—Rouard de Card, La guerre continentale et la propriété (1877)—Bluntschli, Das Beuterecht im Krieg, und das Seebeuterecht insbesondere (1878)—Depambour, Des effets de l'occupation en temps de guerre sur la propriété et la jouissance des biens publics et particuliers (1900)—Wehberg, Das Beuterecht im Land und Seekrieg (1909; an English translation appeared in 1911 under the title Capture in War on Land and Sea)—Latifi, Effects of War on Property (1909).
Appropriation of all the Enemy Property no longer admissible.
§ 133. Under a former rule of International Law belligerents could appropriate all public and private[270] enemy property they found on enemy territory. This rule is now obsolete. Its place is taken by several rules, since distinctions are to be made between moveable and immoveable property, public and private property, and, further, between different kinds of private and public property. These rules must be discussed seriatim.
[270] It is impossible for a treatise to go into historical details, and to show the gradual disappearance of the old rule. But it is of importance to state the fact, that even during the nineteenth century—see, for instance, G. F. Martens, II. § 280; Twiss, II. § 64; Hall, § 139—it was asserted that in strict law all private enemy moveable property was as much booty as public property, although the growth of a usage was recognised which under certain conditions exempted it from appropriation. In the face of articles 46 and 47 of the Hague Regulations these assertions have no longer any basis, and all the text-books of the nineteenth century are now antiquated with regard to this matter.
Immoveable Public Property.
§ 134. Appropriation of public immoveables is not lawful so long as the territory on which they are has not become State property of the occupant through annexation. During mere military occupation of the enemy territory, a belligerent may not sell or otherwise alienate public enemy land and buildings, but only appropriate the produce of them. Article 55 of the Hague Regulations expressly enacts that a belligerent occupying enemy territory shall only be regarded as administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile State and situated on the occupied territory; that he must protect the stock and plant, and that he must administer them according to the rules of usufruct. He may, therefore, sell the crop from public land, cut timber in the public forests and sell it, may let public land and buildings for the time of his occupation, and the like. He is, however, only usufructuary, and he is, therefore, prohibited from exercising his right in a wasteful or negligent way that would decrease the value of the stock and plant. Thus, for instance, he must not cut down a whole forest unless the necessities of war compel him.
Immoveable Property of Municipalities, and of Religious, Charitable, and the like Institutions.
§ 135. It must, however, be observed that the produce of such public immoveables only as belong to the State itself may be appropriated, but not the produce of those belonging to municipalities or of those which, although they belong to the hostile State, are permanently set aside for religious purposes, for the maintenance of charitable and educational institutions, and for the benefit of art and science. Article 56 of the Hague Regulations expressly enacts that such property is to be treated as private property.
Utilisation of Public Buildings.
§ 136. So far as the necessities of war demand, a belligerent may make use of public enemy buildings for all kinds of purposes. Troops must be housed, horses stabled, the sick and wounded nursed. Public buildings may in the first instance, therefore, be made use of for such purposes, although they may thereby be considerably damaged. And it matters not whether the buildings belong to the enemy State or to municipalities, whether they are regularly destined for ordinary governmental and municipal purposes, or for religious, educational, scientific, and the like purposes. Thus, churches may be converted into hospitals, schools into barracks, buildings used for scientific research into stables. But it must be observed that such utilisation of public buildings as damages them is justified only if it is necessary. A belligerent who turned a picture gallery into stables without being compelled thereto would certainly commit a violation of the Law of Nations.
Moveable Public Property.
§ 137. Moveable public enemy property may certainly be appropriated by a belligerent provided that it can directly or indirectly be useful for military operations. Article 53 of the Hague Regulations unmistakably enacts that a belligerent occupying hostile territory may take possession of the cash, funds, realisable securities, depôts of arms, means of transport, stores, supplies, appliances on land or at sea or in the air adapted for the transmission of news or for the transport of persons or goods, and of all other moveable property of the hostile State which may be used for military operations. Thus, a belligerent is entitled to seize not only the money and funds of the hostile State on the one hand, and, on the other, munitions of war, depôts of arms, stores and supplies, but also the rolling-stock of public railways[271] and other means of transport and everything and anything he can directly or indirectly make use of for military operations. He may, for instance, seize a quantity of cloth for the purpose of clothing his soldiers.
[271] See Nowacki, Die Eisenbahnen im Kriege (1906), §§ 15 and 19. Some writers—see, for instance, Bonfils, No. 1185, and Wehberg, op. cit. p. 22—maintain that such rolling stock may not be appropriated, but may only be made use of during war and must be restored after the conclusion of peace. The assertion that article 53, second paragraph, is to be interpreted in that sense, is unfounded, for restoration is there stipulated for such means of transport and the like as are private property.
Moveable Property of Municipalities, and of Religious, Charitable, and the like Institutions.
§ 138. But exceptions similar to those regarding the usufruct of public immoveables are valid in the case of the appropriation of public moveables. Article 56 of the Hague Regulations enumerates the property of municipalities, of religious, charitable, educational institutions, and of those of science and art. Thus the moveable property of churches, hospitals, schools, universities, museums, picture galleries, even when belonging to the hostile State, is exempt from appropriation by a belligerent. As regards archives, they are no doubt institutions for science, but a belligerent may nevertheless seize such State papers deposited therein as are of importance to him in connection with the war. The last instances of the former practice are presented by Napoleon I., who seized works of art during his numerous wars and had them taken to the galleries of Paris. But they had to be restored to their former owners in 1815.
Booty on the Battlefield.
§ 139. The case of moveable enemy property found by an invading belligerent on enemy territory is different from the case of moveable enemy property on the battlefield. According to a former rule of the Law of Nations all enemy property, public or private, which a belligerent could get hold of on the battlefield was booty and could be appropriated. Although some modern publicists[272] who wrote before the Hague Peace Conference of 1899 teach the validity of this rule, it is obvious from articles 4 and 14 of the Hague Regulations that it is now obsolete as regards private[273] enemy property except military papers, arms, horses, and the like. But as regards public enemy property this customary rule is still valid. Thus weapons, munition, and valuable pieces of equipment which are found upon the dead, the wounded, and the prisoners, whether they are public or private property, may be seized, as may also the war-chest and State papers in possession of a captured commander, enemy horses, batteries, carts, and everything else that is of value. To whom the booty ultimately belongs is not for International but for Municipal Law[274] to determine, since International Law simply states that public enemy property on the battlefield can be appropriated by belligerents. And it must be specially observed that the restriction of article 53 of the Hague Regulations according to which only such moveable property may be appropriated as can be used for the operations of war, does not find application in the case of moveable property found on the battlefield, for article 53 speaks of "an army of occupation" only. Such property may be appropriated, whether it can be used for military operations or not; the mere fact that it was seized on the battlefield entitles a belligerent to appropriate it.
[272] See, for instance, Halleck, II. p. 73, and Heffter, § 135.
[273] See above, § [124], and below, § [144].
[274] According to British law all booty belongs to the Crown. See Twiss, II. §§ 64 and 71.
VI APPROPRIATION AND UTILISATION OF PRIVATE ENEMY PROPERTY
Grotius, III. c. 5—Vattel, III. §§ 73, 160-164—Hall, §§ 139, 141-144—Lawrence, §§ 172-175—Maine, pp. 192-206—Manning, pp. 179-183—Twiss, II. §§ 62-71—Halleck, II. pp. 73-75—Moore, VII. §§ 1121, 1151, 1152, 1155—Taylor, §§ 529, 532, 537—Wharton, III. § 338—Wheaton, § 355—Bluntschli, §§ 652, 656-659—Heffter, §§ 130-136—Lueder in Holtzendorff, IV. pp. 488-500—G.F. Martens, II. §§ 279-280—Ullmann, § 183—Bonfils, Nos. 1194-1206—Despagnet, Nos. 597-604—Pradier-Fodéré, VII. Nos. 3032-3047—Rivier, II. pp. 318-329—Nys, III. pp. 296-308—Calvo, IV. §§ 2220-2229—Fiore, III. Nos. 1391, 1392, 1472, and Code, Nos. 1530-1531—Martens, II. § 120—Longuet, §§ 97-98—Mérignhac, pp. 263-268—Pillet, pp. 319-340—Kriegsbrauch, pp. 53-56—Zorn, pp. 270-283—Meurer, II. § 64—Spaight, pp. 188-196—Holland, War, Nos. 106-107—Land Warfare, §§ 407-415—Bentwich, The Law of Private Property in War (1907)—See also the monographs of Rouard de Card, Bluntschli, Depambour, Wehberg, and Latifi, quoted above at the commencement of § [133].
Immoveable Private Property.
§ 140. Immoveable private enemy property may under no circumstances or conditions be appropriated by an invading belligerent. Should he confiscate and sell private land or buildings, the buyer would acquire no right[275] whatever to the property. Article 46 of the Hague Regulations expressly enacts that "private property may not be confiscated." But confiscation differs from the temporary use of private land and buildings for all kinds of purposes demanded by the necessities of war. What has been said above in § 136 with regard to utilisation of public buildings finds equal application[276] to private buildings. If necessary they may be converted into hospitals, barracks, and stables without indemnification of the proprietors, and they may also be converted into fortifications. A humane belligerent will not drive the wretched inhabitants into the street if he can help it. But under the pressure of necessity he may be obliged to do this, and he is certainly not prohibited from doing it.
[276] The Hague Regulations do not mention this; they simply enact in article 46 that private property must be "respected," and may not be confiscated.
Private War Material and Means of Transport.
§ 141. All kinds of private moveable property which can serve as war material, such as arms, ammunition, cloth for uniforms, leather for boots, saddles, and also all appliances, whether on land or at sea or in the air, which are adapted for the transmission of news or for the transportation of persons and goods, such as railway rolling-stock,[277] ships, telegraphs, telephones, carts, and horses, may be seized and made use of for military purposes by an invading belligerent, but they must be restored at the conclusion of peace, and indemnities must be paid for them. This is expressly enacted by article 53 of the Hague Regulations. It is evident that the seizure of such material must be duly acknowledged by receipt, although article 53 does not say so; for otherwise how could indemnities be paid after the conclusion of peace? As regards the question who is to pay the indemnities, Holland (War, No. 113) correctly maintains that "the Treaty of Peace must settle upon whom the burden of making compensation is ultimately to fall."
[277] See Nowacki, Die Eisenbahnen im Kriege (1906), § 15.
Works of Art and Science, Historical Monuments.
§ 142. On the other hand, works of art and science, and historical monuments may not under any circumstances or conditions be appropriated or made use of for military operations. Article 56 of the Hague Regulations enacts categorically that "all seizure" of such works and monuments is prohibited. Therefore, although the metal of which a statue is cast may be of the greatest value for cannons, it must not be touched.
Other Private Personal Property.
§ 143. Private personal property which does not consist of war material or means of transport serviceable to military operations may not as a rule be seized.[278] Articles 46 and 47 of the Hague Regulations expressly stipulate that "private property may not be confiscated," and "pillage is formally prohibited." But it must be emphasised that these rules have in a sense exceptions, demanded and justified by the necessities of war. Men and horses must be fed, men must protect themselves against the weather. If there is no time for ordinary requisitions[279] to provide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions cannot be made, a belligerent must take these articles wherever he can get them, and he is justified[280] in so doing. And it must further be emphasised that quartering[281] of soldiers who, together with their horses, must be well fed by the inhabitants of the houses concerned, is likewise lawful, although it may be ruinous to the private individuals upon whom they are quartered.
[278] See above, [§ 133, note].
[280] The Hague Regulations do not mention this case.
Booty on the Battlefield.
§ 144. Private enemy property on the battlefield is no longer in every case an object of booty.[282] Arms, horses, and military papers may indeed be appropriated,[283] even if they are private property, as may also private means of transport, such as carts and other vehicles which an enemy has made use of. But letters, cash, jewellery, and other articles of value found upon the dead, wounded, and prisoners must, according to article 14 of the Hague Regulations and article 4 of the Geneva Convention, be handed over to the Bureau of Information regarding prisoners of war, which must transmit them to those interested. Through article 14 of the Hague Regulations and article 4 of the Geneva Convention it becomes apparent that nowadays private enemy property, except military papers, arms, horses, and the like, is no longer booty, although, individual soldiers often take as much spoil as they can get. It is impossible for the commanders to bring the offender to justice in every case.[284]
[283] See above, § [139], and article 4 of the Hague Regulations. This article only mentions arms, horses, and military papers, but saddles, stirrups, and the like go with horses, as ammunition goes with arms, and these may for this reason likewise be appropriated; see Land Warfare, § 69, note (e).
[284] It is of interest to state the fact that, during the Russo-Japanese War, Japan carried out to the letter the stipulation of article 14 of the Hague Regulations. Through the intermediary of the French Embassies in Tokio and St. Petersburg, all valuables found on the Russian dead and seized by the Japanese were handed over to the Russian Government.
Private Enemy Property brought into a Belligerent's Territory.
§ 145. The case of private property found by a belligerent on enemy territory differs from the case of such property brought during time of war into the territory of a belligerent. That private enemy property on a belligerent's territory at the time of the outbreak of war may not be confiscated has already been stated above in § [102]. Taking this fact into consideration, as well as the other fact that private property found on enemy territory is nowadays likewise as a rule exempt from confiscation, there can be no doubt that private enemy property brought into a belligerent's territory during time of war may not, as a rule, be confiscated.[285] On the other hand, a belligerent may prohibit the withdrawal of those articles of property which can be made use of by the enemy for military purposes, such as arms, ammunition, provisions, and the like. And in analogy with article 53 of the Hague Regulations there can be no doubt that a belligerent may seize such articles and make use of them for military purposes, provided that he restores them at the conclusion of peace and pays indemnities for them.
[285] The case of enemy merchantmen seized in a belligerent's territorial waters is, of course, an exception.
VII REQUISITIONS AND CONTRIBUTIONS
Vattel, III. § 165—Hall, § 140-140*—Lawrence, § 180—Westlake, II. pp. 96-102—Maine, p. 200—Twiss, II. § 64—Halleck, II. pp. 68-69—Taylor, §§ 538-539—Moore, VII. § 1146—Bluntschli, §§ 653-655—Heffter, § 131—Lueder in Holtzendorff, IV. pp. 500-510—Ullmann, § 183—Bonfils, Nos. 1207-1226—Despagnet, Nos. 587-590—Pradier-Fodéré, VII. Nos. 3048-3064—Rivier, II. pp. 323-327—Nys, III. pp. 368-432—Calvo, IV. §§ 2231-2284—Fiore, III. Nos. 1394, 1473-1476—Martens, II. § 120—Longuet, §§ 110-114—Mérignhac, pp. 272-298—Pillet, pp. 215-235—Zorn, pp. 283-315—Kriegsbrauch, pp. 61-63—Holland, War, Nos. 111-112—Bordwell, pp. 314-324—Meurer, II. §§ 56-60—Spaight, pp. 381-408—Ariga, §§ 116-122—Land Warfare, §§ 416-425—Thomas, Des réquisitions militaires (1884)—Keller, Requisition und Kontribution (1898)—Pont, Les réquisitions militaires du temps de guerre (1905)—Albrecht, Requisitionen von neutralem Privateigentum, etc. (1912), pp. 1-24:—Risley in the Journal of the Society of Comparative Legislation, new series, vol. II. (1900), pp. 214-223.
War must support War.
§ 146. Requisitions and contributions in war are the outcome of the eternal principle that war must support war.[286] This means that every belligerent may make his enemy pay as far as possible for the continuation of the war. But this principle, though it is as old as war and will only die with war itself, has not the same effect in modern times on the actions of belligerents as it formerly had. For thousands of years belligerents used to appropriate all private and public enemy property they could obtain, and, when modern International Law grew up, this practice found legal sanction. But after the end of the seventeenth century this practice grew milder under the influence of the experience that the provisioning of armies in enemy territory became more or less impossible when the inhabitants were treated according to the old principle. Although belligerents retained in strict law the right to appropriate all private besides all public property, it became usual to abstain from enforcing such right, and in lieu thereof to impose contributions of cash and requisitions in kind upon the inhabitants of the invaded country.[287] And when this usage developed, no belligerent ever thought of paying in cash for requisitions, or giving a receipt for them. But in the nineteenth century another practice became usual. Commanders then often gave a receipt for contributions and requisitions, in order to avoid abuse and to prevent further demands for fresh contributions and requisitions by succeeding commanders without knowledge of the former impositions. And there are instances of cases during the nineteenth century on record in which belligerents actually paid in cash for all requisitions they made. The usual practice at the end of the nineteenth century was that commanders always gave a receipt for contributions, and that they either paid in cash for requisitions or acknowledged them by receipt, so that the respective inhabitants could be indemnified by their own Government after conclusion of peace. However, no restriction whatever was imposed upon commanders with regard to the amount of contributions and requisitions, and with regard to the proportion between the resources of a country and the burden imposed. The Hague Regulations have now settled the matter of contributions and requisitions in a progressive way by enacting rules which put the whole matter on a new basis. That war must support war remains a principle under these regulations also. But they are widely influenced by the demand that the enemy State as such, and not the private enemy individuals, should be made to support the war, and that only so far as the necessities of war demand it should contributions and requisitions be imposed. Although certain public moveable property and the produce of public immoveables may be appropriated as heretofore, requisitions must be paid for in cash or, if this is impossible, acknowledged by receipt.
[286] Concerning the controversy as to the justification of Requisitions and Contributions, see Albrecht, op. cit. pp. 18-21.
[287] An excellent sketch of the historical development of the practice of requisitions and contributions is given by Keller, Requisition und Kontribution (1898), pp. 5-26.
Requisitions in Kind, and Quartering.
§ 147. Requisition is the name for the demand for the supply of all kinds of articles necessary for an army, such as provisions for men and horses, clothing, or means of transport. Requisition of certain services may also be made, but they will be treated below in § [170] together with occupation, requisitions in kind only being within the scope of this section. Now, what articles may be demanded by an army cannot once for all be laid down, as they depend upon the actual need of an army. According to article 52 of the Hague Regulations, requisitions may be made from municipalities as well as from inhabitants, but they may be made so far only as they are really necessary for the army. They may not be made by individual soldiers or officers, but only by the commander in the locality. All requisitions must be paid for in cash, and if this is impossible, they must be acknowledged by receipt, and the payment of the amount must be made as soon as possible. The principle that requisitions must be paid for by the enemy is thereby absolutely recognised, but, of course, commanders-in-chief may levy contributions—see below, § [148]—in case they do not possess cash for the payment of requisitions. However this may be, by the rule that requisitions must always be paid for, it again becomes apparent and beyond all doubt that henceforth private enemy property is as a rule exempt from appropriation by an invading army.
A special kind of requisition is the quartering[288] of soldiers in the houses of private inhabitants of enemy territory, by which each inhabitant is required to supply lodging and food for a certain number of soldiers, and sometimes also stabling and forage for horses. Although the Hague Regulations do not specially mention quartering, article 52 is nevertheless to be applied to it, since quartering is nothing else than a special kind of requisition. If cash cannot be paid at once for quartering, every inhabitant concerned must get a receipt for it, stating the number of soldiers quartered and the number of days they were catered for, and the payment of the amount must be made as soon as possible.
But it must be specially observed, that neither in the case of ordinary requisitions nor in the case of quartering of troops is a commander compelled to pay the prices asked by the inhabitants concerned. On the contrary, he may fix the prices himself, although it is expected that the prices paid shall be fair.
Contributions.
§ 148. Contribution is a payment in ready money demanded either from municipalities or from inhabitants, whether enemy subjects or foreign residents. Whereas formerly no general rules concerning contributions existed, articles 49 and 51 of the Hague Regulations now enact that contributions may not be demanded extortionately, but exclusively[289] for the needs of the army, in order, for instance, to pay for requisitions or for the administration of the locality in question. They may be imposed by a written order of a commander-in-chief only, in contradistinction to requisitions which may be imposed by a mere commander in a locality. They may not be imposed indiscriminately on the inhabitants, but must so far as possible be assessed upon such inhabitants in compliance with the rules in force of the respective enemy Government regarding the assessment of taxes. And, finally, for every individual contribution a receipt must be given. It is apparent that these rules of the Hague Regulations try to exclude all arbitrariness and despotism on the part of an invading enemy with regard to contributions, and that they try to secure to the individual contributors as well as to contributing municipalities the possibility of being indemnified afterwards by their own Government, thus shifting, so far as possible, the burden of supporting the war from private individuals and municipalities to the State proper.[290]
[289] As regards contributions as a penalty, see article 50 of the Hague Regulations. See also Keller, op. cit. pp. 60-62.
[290] It is strange to observe that Kriegsbrauch, pp. 61-63, does not mention the Hague Regulations at all.
VIII DESTRUCTION OF ENEMY PROPERTY
Grotius, III. c. 5, §§ 1-3; c. 12—Vattel, III. §§ 166-168—Hall, § 186—Lawrence, § 206—Manning, p. 186—Twiss, II. §§ 65-69—Halleck, II. pp. 63, 64, 71, 74—Taylor, §§ 481-482—Wharton, III. § 349—Moore, VII. § 1113—Wheaton, §§ 347-351—Bluntschli, §§ 649, 651, 662, 663—Heffter, § 125—Lueder in Holtzendorff, IV. pp. 482-485—Klüber, § 262—G. F. Martens, II. § 280—Ullmann, § 176—Bonfils, Nos. 1078, 1178-1180—Pradier-Fodéré, VI. Nos. 2770-2774—Rivier, II. pp. 265-268—Nys, III. pp. 220-223—Calvo, IV. §§ 2215-2222—Fiore, III. Nos. 1383-1388, and Code, Nos. 1525-1529—Martens, II. § 110—Longuet, §§ 99, 100—Mérignhac, pp. 266-268—Kriegsbrauch, pp. 52-56—Holland, War, Nos. 3 and 76 (g)—Bordwell, p. 84—Spaight, pp. 129-140—Land Warfare, §§ 414, 422, 426, 427, 434.
Wanton destruction prohibited.
§ 149. In former times invading armies frequently used to fire and destroy all enemy property they could not make use of or carry away. Afterwards, when the practice of warfare grew milder, belligerents in strict law retained the right to destroy enemy property according to discretion, although they did not, as a rule, any longer make use of such right. Nowadays, however, this right is obsolete. For in the nineteenth century it became a universally recognised rule of International Law that all useless and wanton destruction of enemy property, be it public or private, is absolutely prohibited. And this rule has now been expressly enacted by article 23 (g) of the Hague Regulations, where it is categorically enacted that "to destroy ... enemy's property, unless such destruction ... be imperatively demanded by the necessities of war, is prohibited."
Destruction for the purpose of Offence and Defence.
§ 150. All destruction of and damage to enemy property for the purpose of offence and defence is necessary destruction and damage, and therefore lawful. It is not only permissible to destroy and damage all kinds of enemy property on the battlefield during battle, but also in preparation for battle or siege. To strengthen a defensive position a house may be destroyed or damaged. To cover the retreat of an army a village on the battlefield may be fired. The district around an enemy fortress held by a belligerent may be razed, and, therefore, all private and public buildings, all vegetation may be destroyed, and all bridges blown up within a certain area. If a farm, a village, or even a town is not to be abandoned but prepared for defence, it may be necessary to damage in many ways or entirely destroy private and public property. Further, if and where a bombardment is lawful, all destruction of property involved in it becomes likewise lawful. When a belligerent force obtains possession of an enemy factory for ammunition or provisions for the enemy troops, if it is not certain that they can hold it against an attack, they may at least destroy the plant, if not the buildings. Or if a force occupies an enemy fortress, they may raze the fortifications. Even a force intrenching themselves on a battlefield may be obliged to resort to the destruction of many kinds of property.
Destruction in marching, reconnoitring, and conducting Transport.
§ 151. Destruction of enemy property in marching troops, conducting military transport, and in reconnoitring, is likewise lawful if unavoidable. A reconnoitring party need not keep on the road if they can better serve their purpose by riding across the tilled fields. And troops may be marched and transport may be conducted over crops when necessary. A humane commander will not unnecessarily allow his troops and transport to march and ride over tilled fields and crops. But if the purpose of war necessitates it he is justified in so doing.
Destruction of Arms, Ammunition, and Provisions.
§ 152. Whatever enemy property a belligerent may appropriate he may likewise destroy. To prevent the enemy from making use of them a retreating force may destroy arms, ammunition, provisions, and the like, which they have taken from the enemy or requisitioned and cannot carry away. But it must be specially observed that they may not destroy provisions in the possession of private enemy inhabitants in order to prevent the enemy from making use of them in the future.[291]
[291] Nor is a commander allowed to requisition such provisions in order to have them destroyed, for article 52 of the Hague Regulations expressly enacts that requisitions are only admissible for the necessities of the army.
Destruction of Historical Monuments, Works of Art, and the like.
§ 153. All destruction of and damage to historical monuments, works of art and science, buildings for charitable, educational, and religious[292] purposes are specially prohibited by article 56 of the Hague Regulations which enacts that the perpetrators of such acts must be prosecuted (poursuivie), that is court-martialed. But it must be emphasised that these objects enjoy this protection only during military occupation of enemy territory. Should a battle be waged around an historical monument on open ground, should a church, a school, or a museum be defended and attacked during military operations, these otherwise protected objects may be damaged or destroyed under the same conditions as other enemy property.
[292] It is of importance to state the fact that, according to Grotius (III. c. 5, §§ 2 and 3), destruction of graves, tombstones, churches, and the like is not prohibited by the Law of Nations, although he strongly (III. c. 12, §§ 5-7) advises that they should be spared unless their preservation is dangerous to the interests of the invader.
General Devastation.
§ 154. The question must also be taken into consideration whether and under what conditions general devastation of a locality, be it a town or a larger part of enemy territory, is permitted. There cannot be the slightest doubt that such devastation is as a rule absolutely prohibited and only in exceptional cases permitted when, to use the words of article 23 (g) of the Hague Regulations, it is "imperatively demanded by the necessities of war." It is, however, impossible to define once for all the circumstances which make a general devastation necessary, since everything depends upon the merits of the special case. But the fact that a general devastation can be lawful must be admitted. And it is, for instance, lawful in case of a levy en masse on already occupied territory, when self-preservation obliges a belligerent to resort to the most severe measures. It is also lawful when, after the defeat of his main forces and occupation of his territory, an enemy disperses his remaining forces into small bands which carry on guerilla tactics and receive food and information, so that there is no hope of ending the war except by a general devastation which cuts off supplies of every kind from the guerilla bands. But it must be specially observed that general devastation is only justified by imperative necessity and by the fact that there is no better and less severe way open to a belligerent.[293]
[293] See Hall, § 186, who gives in nuce a good survey of the doctrine and practice of general devastation from Grotius down to the beginning of the nineteenth century. See also Spaight, pp. 125-139.
Be that as it may, whenever a belligerent resorts to general devastation he ought, if possible, to make some provision for the unfortunate peaceful population of the devastated tract of territory. It would be more humane to take them away into captivity rather than let them perish on the spot. The practice, resorted to during the South African war, to house the victims of devastation in concentration camps, must be approved. The purpose of war may even oblige a belligerent to confine a population forcibly[294] in concentration camps.
[294] See above, [p. 153, note 1]. As regards the devastation resorted to during the South African War, and as regards the concentration camps instituted in consequence of devastation during this war, see Beak, The Aftermath of War (1906), pp. 1-30, and The Times' History of the War in South Africa, vol. V. pp. 250-252.
IX ASSAULT, SIEGE, AND BOMBARDMENT
Vattel, III. §§ 168-170—Hall, § 186—Lawrence, § 204—Westlake, II. pp. 76-79—Moore, VII. § 1112—Halleck, II. pp. 59, 67, 185—Taylor, §§ 483-485—Bluntschli, §§ 552-554B—Heffter, § 125—Lueder in Holtzendorff, IV. pp. 448-457—G. F. Martens, II. § 286—Ullmann, § 181—Bonfils, Nos. 1079-1087—Despagnet, Nos. 528-535—Pradier-Fodéré, VI. Nos. 2779-2786—Rivier, II. pp. 284-288—Nys, III. pp. 210-219—Calvo, IV. §§ 2067-2095—Fiore, III. Nos. 1322-1330, and Code, Nos. 1519-1524—Longuet, §§ 58-59—Mérignhac, pp. 171-182—Pillet, pp. 101-112—Zorn, pp. 161-174—Holland, War, Nos. 80-83—Rolin-Jaequemyns in R.I. II. (1870), pp. 659 and 674, III. (1871), pp. 297-307—Bordwell, pp. 286-288—Meurer, §§ 32-34—Spaight, pp. 157-201—Kriegsbrauch, pp. 18-22—Land Warfare, §§ 117-138.
Assault, Siege, and Bombardment, when lawful.
§ 155. Assault is the rush of an armed force upon enemy forces in the battlefield, or upon intrenchments, fortifications, habitations, villages, or towns, such rushing force committing every violence against opposing persons and destroying all impediments. Siege is the surrounding and investing of an enemy locality by an armed force, cutting off those inside from all communication for the purpose of starving them into surrender or for the purpose of attacking the invested locality and taking it by assault. Bombardment is the throwing by artillery of shot and shell upon persons and things. Siege can be accompanied by bombardment and assault, but this is not necessary, since a siege can be carried out by mere investment and starvation caused thereby. Assault, siege, and bombardment are severally and jointly perfectly legitimate means of warfare.[295] Neither bombardment nor assault, if they take place on the battlefield, needs special discussion, as they are allowed under the same circumstances and conditions as force in general is allowed. The only question here is under what circumstances assault and bombardment are allowed outside the battlefield. The answer is indirectly given by article 25 of the Hague Regulations, where it is categorically enacted that "the attack or bombardment, by any means[296] whatever, of towns, villages, habitations, or buildings, which are not defended, is prohibited." Siege is not specially mentioned, because no belligerent would dream of besieging an undefended locality, and because siege of an undefended town would involve unjustifiable violence against enemy persons and would, therefore, be unlawful. Be this as it may, the fact that defended localities only may now be bombarded, involves a decided advance in the view taken by International Law. For it was formerly asserted by many writers[297] and military experts that, for certain reasons and purposes, undefended localities also might in exceptional cases be bombarded. But it must be specially observed that it matters not whether the defended locality be fortified or not, since an unfortified place can be defended.[298] And it must be mentioned that nothing prevents a belligerent who has taken possession of an undefended fortified place from destroying the fortifications by bombardment as well as by other means.
[295] The assertion of some writers—see, for instance, Pillet, pp. 104-107, and Mérignhac, p. 173—that bombardment is lawful only after an unsuccessful attempt of the besiegers to starve the besieged into surrender is not based upon a recognised rule of the Law of Nations.
[296] The words by any means whatever were inserted by the Second Peace Conference in order to make it quite clear that the article is likewise to refer to bombardment from air-vessels.
[297] See, for instance, Lueder in Holtzendorff, IV. p. 451.
[298] See Holls, The Peace Conference at the Hague (1900), p. 152.
Assault, how carried out.
§ 156. No special rules of International Law exist with regard to the mode of carrying out an assault. Therefore, only the general rules respecting offence and defence find application. It is in especial not[299] necessary to give notice of an impending assault to the authorities of the respective locality, or to request them to surrender before an assault is made. That an assault may or may not be preceded or accompanied by a bombardment, need hardly be mentioned, nor that by article 28 of the Hague Regulations pillage of towns taken by assault is now expressly prohibited.
[299] This becomes indirectly apparent from article 26 of the Hague Regulations.
Siege, how carried out.
§ 157. With regard to the mode of carrying out siege without bombardment no special rules of International Law exist, and here too only the general rules respecting offence and defence find application. Therefore, an armed force besieging a town may, for instance, cut off the river which supplies drinking water to the besieged, but must not poison[300] such river. And it must be specially observed that no rule of law exists which obliges a besieging force to allow all non-combatants, or only women, children, the aged, the sick and wounded, or subjects of neutral Powers, to leave the besieged locality unmolested. Although such permission[301] is sometimes granted, it is in most cases refused, because the fact that non-combatants are besieged together with the combatants, and that they have to endure the same hardships, may, and very often does, exercise pressure upon the authorities to surrender. Further, should the commander of a besieged place expel the non-combatants in order to lessen the number of those who consume his store of provisions, the besieging force need not allow them to pass through its lines, but may drive them back.[302]
[301] Thus in 1870, during the Franco-German War, the German besiegers of Strassburg as well as of Belfort allowed the women, the children, and the sick to leave the besieged fortresses.
[302] See Land Warfare, § 129.
That diplomatic envoys of neutral Powers may not be prevented from leaving a besieged town is a consequence of their exterritoriality. However, if they voluntarily remain, may they claim uncontrolled[303] communication with their home State by correspondence and couriers? When Mr. Washburne, the American diplomatic envoy at Paris during the siege of that city in 1870 by the Germans, claimed the right of sending a messenger with despatches to London in a sealed bag through the German lines, Bismarck declared that he was ready to allow foreign diplomatists in Paris to send a courier to their home States once a week, but only under the condition that their despatches were open and did not contain any remarks concerning the war. Although the United States and other Powers protested, Bismarck did not alter his decision. The whole question must be treated as open.[304]
[303] The matter is discussed by Rolin-Jaequemyns in R.I. III. (1871), pp. 371-377.
[304] See above, [vol. I. § 399], and Wharton, I. § 97.
Bombardment, how carried out.
§ 158. Regarding bombardment, article 26 of the Hague Regulations enacts that the commander of the attacking forces shall do all he can to notify his intention to resort to bombardment. But it must be emphasised that a strict duty of notification for all cases of bombardment is not thereby imposed, since it is only enacted that a commander shall do all he can to send notification. He cannot do it when the circumstances of the case prevent him, or when the necessities of war demand an immediate bombardment. Be that as it may, the purpose of notification is to enable private individuals within the locality to be bombarded to seek shelter for their persons and for their valuable personal property.
Article 27 of the Hague Regulations enacts the hitherto customary rule that all necessary steps must be taken to spare as far as possible all buildings devoted to religion, art, science, and charity; further, historic monuments, hospitals, and all other places where the sick and wounded are collected, provided these buildings, places, and monuments are not used at the same time for military purposes. To enable the attacking forces to spare these buildings and places, the latter must be indicated by some particular signs, which must be previously notified to the attacking forces and must be visible from the far distance from which the besieging artillery carries out the bombardment.[305]
[305] No siege takes place without the besieged accusing the besiegers of neglecting the rule that buildings devoted to religion, art, charity, the tending of the sick, and the like, must be spared during bombardments. The fact is that in case of a bombardment the destruction of such buildings cannot always be avoided, although the artillery of the besiegers do not intentionally aim at them. That the forces of civilised States intentionally destroy such buildings, I cannot believe.
It must be specially observed that no legal duty exists for the attacking forces to restrict bombardment to fortifications only. On the contrary, destruction of private and public buildings through bombardment has always been and is still considered lawful, as it is one of the means to impress upon the authorities the advisability of surrender. Some writers[306] assert either that bombardment of the town, in contradistinction to the fortifications, is never lawful, or that it is only lawful when bombardment of the fortifications has not resulted in inducing surrender. But this opinion does not represent the actual practice of belligerents, and the Hague Regulations do not adopt it.
[306] See, for instance, Pillet, pp. 104-107; Bluntschli § 554A; Mérignhac, p. 180. Vattel (III. § 169) does not deny the right to bombard the town, although he does not recommend such bombardment.
X ESPIONAGE AND TREASON
Vattel, III. §§ 179-182—Hall, § 188—Westlake, II. pp. 79 and 90—Lawrence, § 199—Phillimore, III. § 96—Halleck, I. pp. 571-575, and in A.J. V.(1911), pp. 590-603—Taylor, §§ 490 and 492—Wharton, III. § 347—Moore, VII. § 1132—Bluntschli, §§ 563-564, 628-640—Heffter, § 125—Lueder in Holtzendorff, IV. pp. 461-467—Ullmann, § 176—Bonfils, Nos. 1100-1104—Despagnet, Nos. 537-542—Pradier-Fodéré, VI. Nos. 2762-2768—Rivier, II. pp. 282-284—Nys, III. pp. 256-263—Calvo, IV. §§ 2111-2122—Fiore, III. Nos. 1341, 1374-1376, and Code, Nos. 1487-1490—Martens, II. § 116—Longuet, §§ 63-75—Mérignhac, pp. 183-209—Pillet, pp. 97-100—Zorn, pp. 174-195—Holland, War, Nos. 84-87—Bordwell, pp. 291-292—Meurer, §§ 35-38—Spaight, pp. 202-215, 333-335—Ariga, §§ 98-100—Takahashi, pp. 185-194—Friedemann, Die Lage der Kriegskundschafter und Spione (1892)—Violle, L'espionage militaire en temps de guerre (1904)—Adler, Die Spionage (1906)—Kriegsbrauch, pp. 30-31—Land Warfare, §§ 155-173—Bentwich in The Journal of the Society of Comparative Legislation, New Series, X. (1909), pp. 243-299.
Twofold Character of Espionage and Treason.
§ 159. War cannot be waged without all kinds of information about the forces and the intentions of the enemy and about the character of the country within the zone of military operations. To obtain the necessary information, it has always been considered lawful, on the one hand, to employ spies, and, on the other, to make use of the treason of enemy soldiers or private enemy subjects, whether they were bribed[307] or offered the information voluntarily and gratuitously. Article 24 of the Hague Regulations enacts the old customary rule that the employment of methods necessary to obtain information about the enemy and the country is considered allowable. The fact, however, that these methods are lawful on the part of the belligerent who employs them does not prevent the punishment of such individuals as are engaged in procuring information. Although a belligerent acts lawfully in employing spies and traitors, the other belligerent, who punishes spies and traitors, likewise acts lawfully. Indeed, espionage and treason bear a twofold character. For persons committing acts of espionage or treason are—as will be shown below in § [255]—considered war criminals and may be punished, but the employment of spies and traitors is considered lawful on the part of the belligerents.
[307] Some writers maintain, however, that it is not lawful to bribe enemy soldiers into espionage; see below, § [162].
Espionage in contradistinction to Scouting and Despatch-bearing.
§ 160. Espionage must not be confounded, firstly, with scouting, or secondly, with despatch-bearing. According to article 29 of the Hague Regulations, espionage is the act of a soldier or other individual who clandestinely, or under false pretences, seeks to obtain information concerning one belligerent in the zone of belligerent operations with the intention of communicating it to the other belligerent.[308] Therefore, soldiers not in disguise, who penetrate into the zone of operations of the enemy, are not spies. They are scouts who enjoy all privileges of the members of armed forces, and they must, if captured, be treated as prisoners of war. Likewise, soldiers or civilians charged with the delivery of despatches for their own army or for that of the enemy and carrying out their mission openly are not spies. And it matters not whether despatch-bearers make use of balloons or of other means of communication. Thus, a soldier or civilian trying to carry despatches from a force besieged in a fortress to other forces of the same belligerent, whether making use of a balloon or riding or walking at night, may not be treated as a spy. On the other hand, spying can well be carried out by despatch-bearers or by persons in a balloon, whether they make use of the balloon of a despatch-bearer or rise in a balloon for the special purpose of spying.[309] The mere fact that a balloon is visible does not protect the persons using it from being treated as spies; since spying can be carried out under false pretences quite as well as clandestinely. But special care must be taken really to prove the fact of espionage in such cases, for an individual carrying despatches is prima facie not a spy and must not be treated as a spy until proved to be such.
[308] Assisting or favouring espionage or knowingly concealing a spy are, according to a customary rule of International Law, punishable as though they were themselves acts of espionage; see Land Warfare, § 172.
[309] See below, § [356] (4), concerning wireless telegraphy.
A remarkable case of espionage is that of Major André,[310] which occurred in 1780 during the American War of Independence. The American General Arnold, who was commandant of West Point, on the North River, intended to desert the Americans and join the British forces. He opened negotiations with Sir Henry Clinton for the purpose of surrendering West Point, and Major André was commissioned by Sir Henry Clinton to make the final arrangements with Arnold. On the night of September 21, Arnold and André met outside the American and British lines, but André, after having changed his uniform for plain clothes, undertook to pass the American lines on his return, furnished with a passport under the name of John Anderson by General Arnold. He was caught, convicted as a spy, and hanged. As he was not seeking information,[311] and therefore was not a spy according to article 29 of the Hague Regulations, a conviction for espionage would not, if such a case occurred to-day, be justified. But it would be possible to convict for war treason, for André was no doubt negotiating treason. Be that as it may, George III. considered André a martyr, and honoured his memory by granting a pension to his mother and a baronetcy to his brother.[312]
[310] See Halleck in A.J. V. (1911), p. 594.
[311] Halleck, loc. cit., p. 598, asserts the contrary.
[312] See Phillimore, III. § 106; Halleck, I. p. 575; Rivier, II. p. 284.
Punishment of Espionage.
§ 161. The usual punishment for spying is hanging or shooting, but less severe punishments are, of course, admissible and sometimes inflicted. However this may be, according to article 30 of the Hague Regulations a spy may not be punished without a trial before a court-martial. And according to article 31 of the Hague Regulations a spy who is not captured in the act but rejoins the army to which he belongs, and is subsequently captured by the enemy, may not be punished for his previous espionage and must be treated as a prisoner of war. But it must be specially observed that article 31 concerns only such spies as belong to the armed forces of the enemy; civilians who act as spies and are captured later may be punished. Be that as it may, no regard is paid to the status, rank, position, or motive of a spy. He may be a soldier or a civilian, an officer or a private. He may be following instructions of superiors or acting on his own initiative from patriotic motives. A case of espionage, remarkable on account of the position of the spy, is that of the American Captain Nathan Hale, which occurred in 1776. After the American forces had withdrawn from Long Island, Captain Hale recrossed under disguise and obtained valuable information about the English forces that had occupied the island. But he was caught before he could rejoin his army, and he was executed as a spy.[313]
[313] The case of Major Jakoga and Captain Oki, which, though reported as a case of espionage, is really a case of treason, will be discussed below in § [255].
Treason.
§ 162. Treason can be committed by a soldier or an ordinary subject of a belligerent, but it can also be committed by an inhabitant of an occupied enemy territory or even by the subject of a neutral State temporarily staying there, and it can take place after an arrangement with the favoured belligerent or without such an arrangement. In any case a belligerent making use of treason acts lawfully, although the Hague Regulations do not mention the matter at all. But many acts of different sorts can be treasonable; the possible cases of treason and the punishment of treason will be discussed below in § [255].
Although it is generally recognised that a belligerent acts lawfully who makes use of the offer of a traitor, the question is controversial[314] whether a belligerent acts lawfully who bribes a commander of an enemy fortress into surrender, incites enemy soldiers to desertion, bribes enemy officers for the purpose of getting important information, incites enemy subjects to rise against the legitimate Government, and the like. If the rules of the Law of Nations are formulated, not from doctrines of book-writers, but from what is done by the belligerents in practice,[315] it must be asserted that such acts, detestable and immoral as they are, are not considered illegal according to the Law of Nations.
[314] See Vattel, III. § 180; Heffter, § 125; Taylor, § 490; Martens, II. § 110 (8); Longuet, § 52; Mérignhac, p. 188, and others. See also below, § [164].
[315] See Land Warfare, § 158.
XI RUSES
Grotius, III. c. 1, §§ 6-18—Bynkershoek, Quaest. jur. publ. I. c. 1—Vattel, III. §§ 177-178—Hall, § 187—Lawrence, § 207—Westlake, II. p. 73—Phillimore, III. § 94—Halleck, I. pp. 566-571—Taylor, § 488—Moore, VII. § 1115—Bluntschli, §§ 565-566—Heffter, § 125—Lueder in Holtzendorff, IV. pp. 457-461—Ullmann, § 176—Bonfils, Nos. 1073-1075—Despagnet, Nos. 526-527—Pradier-Fodéré, VI. Nos. 2759-2761—Rivier, II. p. 261—Nys, III. pp. 252-255—Calvo, IV. §§ 2106-2110—Fiore, III. Nos. 1334-1339—Longuet, §§ 53-56—Mérignhac, pp. 165-168—Pillet, pp. 93-97—Kriegsbrauch, pp. 23-24—Holland, War, Nos. 78-79—Bordwell, pp. 283-286—Meurer, II pp. 151-152—Spaight, pp. 152-156—Land Warfare, §§ 139-154—Brocher in R.I. V. (1873), pp. 325-329.
Character of Ruses of War.
§ 163. Ruses of war or stratagems are deceit employed during military operations for the purpose of misleading the enemy. Such deceit is of great importance in war, and, just as belligerents are allowed to employ all methods of obtaining information, so they are, on the other hand, and article 24 of the Hague Regulations confirms this, allowed to employ all sorts of ruses for the purpose of deceiving the enemy. Very important objects can be attained through ruses of war, as, for instance, the surrender of a force or of a fortress, the evacuation of territory held by the enemy, the withdrawal from a siege, the abandonment of an intended attack, and the like. But ruses of war are also employed, and are very often the decisive factor, during battles.
Different kinds of Stratagems.
§ 164. Of ruses there are so many kinds that it is impossible to enumerate[316] and classify them. But in order to illustrate acts carried out as ruses some instances may be given. It is hardly necessary to mention the laying of ambushes and traps, the masking of military operations such as marches or the erection of batteries and the like, the feigning of attacks or flights or withdrawals, the carrying out of a surprise, and other stratagems employed every day in war. But it is important to know that, when useful, feigned signals and bugle-calls may be ordered, the watchword of the enemy may be used, deceitful intelligence may be disseminated,[317] the signals and the bugle-calls of the enemy may be mimicked[318] to mislead his forces. And even such detestable acts[319] as bribery of enemy commanders and officials in high position, and secret seduction of enemy soldiers to desertion, and of enemy subjects to insurrection, are frequently committed, although many writers protest. As regards the use of the national flag, the military ensigns, and the uniforms of the enemy, theory and practice are unanimous in rejecting it during actual attack and defence, since the principle is considered inviolable that during actual fighting belligerent forces ought to be certain who is friend and who is foe. But many[320] publicists maintain that until the actual fighting begins belligerent forces may by way of stratagem make use of the national flag, military ensigns, and uniforms of the enemy. Article 23 (f) of the Hague Regulations does not prohibit any and every use of these symbols, but only their improper use, thus leaving the question open,[321] what uses are proper and what are not. Those who have hitherto taught the admissibility of the use of these symbols outside actual fighting can correctly maintain that the quoted article 23 (f) does not prohibit it.[322]
[316] See Land Warfare, § 144, where a great number of legitimate ruses are enumerated.
[317] See the examples quoted by Pradier-Fodéré, VI. No. 2761.
[318] See Pradier-Fodéré, VI. No. 2760.
[319] The point has been discussed above in § [162].
[320] See, for instance, Hall, § 187; Bluntschli, § 565; Taylor, § 488; Calvo, IV. No. 2106; Pillet, p. 95; Longuet, § 54. But, on the other hand, the number of publicists who consider it illegal to make use of the enemy flag, ensigns, and uniforms, even before an actual attack, is daily becoming larger; see, for instance, Lueder in Holtzendorff, IV. p. 458; Mérignhac, p. 166; Pradier-Fodéré, VI. No. 2760; Bonfils, No. 1074; Kriegsbrauch, p. 24. As regards the use of the enemy flag on the part of men-of-war, see below, in § [211].
[321] Some writers maintain that article 23 (f) of the Hague Regulations has settled the controversy, but they forget that this article speaks only of the improper use of the enemy ensigns and uniform. See Land Warfare, § 152.
[322] The use of the enemy uniform for the purpose of deceit is different from the case when members of armed forces who are deficient in clothes wear the uniforms of prisoners or of the enemy dead. If this is done—and it always will be done if necessary—such distinct alterations in the uniform ought to be made as will make it apparent to which side the soldiers concerned belong (see Land Warfare, § 154). Different again is the case where soldiers are, through lack of clothing, obliged to wear the apparel of civilians, such as greatcoats, hats, and the like. Care must then be taken that the soldiers concerned do nevertheless wear a fixed distinctive emblem which marks them as soldiers, since otherwise they lose the privileges of members of the armed forces of the belligerents (see article 1, No. 2, of the Hague Regulations). During the Russo-Japanese War both belligerents repeatedly accused each other of using Chinese clothing for members of their armed forces; the soldiers concerned apparently were obliged through lack of proper clothing temporarily to make use of Chinese garments. See, however, Takahashi, pp. 174-178.
Stratagems in contradistinction to Perfidy.
§ 165. Stratagems must be carefully distinguished from perfidy, since the former are allowed, whereas the latter is prohibited. Halleck (I. p. 566) correctly formulates the distinction by laying down the principle that, whenever a belligerent has expressly or tacitly engaged and is therefore bound by a moral obligation to speak the truth to an enemy, it is perfidy to betray the latter's confidence, because it contains a breach of good faith.[323] Thus a flag of truce or the cross of the Geneva Convention must never be made use of for a stratagem, capitulations must be carried out to the letter, the feigning of surrender for the purpose of luring the enemy into a trap is a treacherous act, as is the assassination of enemy commanders or soldiers or heads of States. On the other hand, stratagem may be met by stratagem, and a belligerent cannot complain of the enemy who so deceives him. If, for instance, a spy of the enemy is bribed to give deceitful intelligence to his employer, or if an officer, who is approached by the enemy and offered a bribe, accepts it feigningly but deceives the briber and leads him to disaster, no perfidy is committed.
[323] See Land Warfare, §§ 139-142, 146-150.
XII OCCUPATION OF ENEMY TERRITORY
Grotius, III. c. 6, § 4—Vattel, III. §§ 197-200—Hall, §§ 153-161—Westlake, II. pp. 83-106—Lawrence, §§ 176-179—Maine, pp. 176-183—Halleck, II. pp. 432-466—Taylor, §§ 568-579—Wharton, III. §§ 354-355—Moore, VII. §§ 1143-1155—Bluntschli, §§ 539-551—Heffter, §§ 131-132—Lueder in Holtzendorff, IV. pp. 510-524—Klüber, §§ 255-256—G. F. Martens, II. § 280—Ullmann, § 183—Bonfils, Nos. 1156-1175—Despagnet, Nos. 567-578—Pradier-Fodéré, VII. Nos. 2939-2988, 3019-3028—Nys, III. pp. 309-351—Rivier, II. pp. 299-306—Calvo, IV. §§ 2166-2198—Fiore, III. Nos. 1454-1481, and Code, Nos. 1535-1563—Martens, II. §§ 117-119—Longuet, §§ 115-133—Mérignhac, pp. 241-262—Pillet, pp. 237-259—Zorn, pp. 213-243—Kriegsbrauch, pp. 45-50—Holland, War, Nos. 102-106—Bordwell, pp. 312-330—Meurer, II. §§ 45-55—Spaight, pp. 320-380—Land Warfare, §§ 340-405—Waxel, L'armée d'invasion el la population (1874)—Litta, L'occupazione militare (1874)—Löning, Die Verwaltung des General-Gouvernements im Elsass (1874), and in R.I. IV. (1872), p. 622, V. (1873), p. 69—Bernier, De l'occupation militaire en temps de guerre (1884)—Corsi, L'occupazione militare in tempo di guerra e le relazione internazionale che ne derivano (2nd edit. 1886)—Bray, De l'occupation militaire en temps de guerre, etc. (1891)—Magoon, Law of Civil Government under Military Occupation (2nd edit. 1900)—Lorriot, De la nature de l'occupation de guerre (1903)—Deherpe, Essai sur le developpement de l'occupation en droit international (1903)—Sichel, Die kriegerische Besetzung feindlichen Staatsgebietes (1905)—Nowacki, Die Eisenbahnen im Kriege (1906), pp. 78-90—Rolin-Jaequemyns in R.I. II. (1870), p. 666, and III. (1871), p. 311.
Occupation as an Aim of Warfare.
§ 166. If a belligerent succeeds in occupying a part or even the whole of the enemy territory, he has realised a very important aim of warfare. He can now not only make use of the resources of the enemy country for military purposes, but can also keep it for the time being as a pledge of his military success, and thereby impress upon the enemy the necessity of submitting to terms of peace. And in regard to occupation, International Law respecting warfare has progressed more than in any other department. In former times enemy territory that was occupied by a belligerent was in every point considered his State property, with which and with the inhabitants therein he could do what he liked. He could devastate the country with fire and sword, appropriate all public and private property therein, kill the inhabitants, or take them away into captivity, or make them take an oath of allegiance. He could, even before the war was decided and his occupation was definitive, dispose of the territory by ceding it to a third State, and an instance of this happened during the Northern War (1700-1718), when in 1715 Denmark sold the occupied Swedish territories of Bremen and Verden to Hanover. That an occupant could force the inhabitants of the occupied territory to serve in his own army and to fight against their legitimate sovereign, was indubitable. Thus, during the Seven Years' War, Frederick II. of Prussia repeatedly made forcible levies of thousands of recruits in Saxony, which he had occupied. But during the second half of the eighteenth century things gradually began to undergo a change. That the distinction between mere temporary military occupation of territory, on the one hand, and, on the other, real acquisition of territory through conquest and subjugation, became more and more apparent, is shown by the fact that Vattel (III. § 197) drew attention to it. However, it was not till long after the Napoleonic wars in the nineteenth century that the consequences of this distinction were carried to their full extent by the theory and practice of International Law. So late as 1808, after the Russian troops had militarily occupied Finland, which was at that time a part of Sweden, Alexander I. of Russia made the inhabitants take an oath of allegiance,[324] although it was only by article 4 of the Peace Treaty of Frederikshamm[325] of September 17, 1809, that Sweden ceded Finland to Russia. The first writer who drew all the consequences of the distinction between mere military occupation and real acquisition of territory was Heffter in his treatise Das Europaeische Völkerrecht der Gegenwart (§ 131), which made its appearance in 1844. And it is certain that it took the whole of the nineteenth century to develop such rules regarding occupation as are now universally recognised and in many respects enacted by articles 42-56 of the Hague Regulations.
[324] See Martens, N.R. I. p. 9.
[325] See Martens, N.R. I. p. 19.
In so far as these rules touch upon the special treatment of persons and property of the inhabitants of, and public property situated within, occupied territory, they have already been taken into consideration above in §§ [107]-154. What concerns us here are the rights and duties of the occupying belligerent in relation to his political administration of the territory and to his political authority over its inhabitants.[326] The principle underlying these modern rules is that, although the occupant does in no wise acquire sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being a military authority over it. As he thereby prevents the legitimate Sovereign from exercising his authority and claims obedience for himself from the inhabitants, he has to administer the country not only in the interest of his own military advantage, but also, so far as possible at any rate, for the public benefit of the inhabitants. Thus the present International Law not only gives certain rights to an occupant, but also imposes certain duties upon him.
[326] The Hague Regulations (Section III. articles 42-56), and all the French writers, but also many others, treat under the heading "occupation" not only of the rights and duties of an occupant concerning the political administration of the country and the political authority over the inhabitants, but also of other matters, such as appropriation of public and private property, requisitions and contributions, and destruction of public and private property, violence against private enemy subjects and enemy officials. These matters have, however, nothing to do with occupation, but are better discussed in connection with the means of land warfare; see above, §§ [107]-154.
Occupation, when effected.
§ 167. Since an occupant, although his power is merely military, has certain rights and duties, the first question to deal with is, when and under what circumstances a territory must be considered occupied.
Now it is certain that mere invasion is not occupation. Invasion is the marching or riding of troops—or the flying of a military air vessel—into enemy country. Occupation is invasion plus taking possession of enemy country for the purpose of holding it, at any rate temporarily. The difference between mere invasion and occupation becomes apparent by the fact that an occupant sets up some kind of administration, whereas the mere invader does not. A small belligerent force can raid enemy territory without establishing any administration, but quickly rush on to some place in the interior for the purpose of reconnoitring, of destroying a bridge or depôt of munitions and provisions, and the like, and quickly withdraw after having realised its purpose.[327] Although it may correctly be asserted that, so long and in so far as such raiding force is in possession of a locality and sets up a temporary administration therein, it occupies this locality, yet it certainly does not occupy the whole territory, and even the occupation of such locality ceases the moment the force withdraws.
[327] See Land Warfare, § 343.
However this may be, as a rule occupation will be coincident with invasion. The troops march into a district, and the moment they get into a village or town—unless they are actually fighting their way—they take possession of the Municipal Offices, the Post Office, the Police Stations, and the like, and assert their authority there. From the military point of view such villages and towns are now "occupied." Article 42 of the Hague Regulations enacts that territory is considered occupied when it is actually placed under the authority of the hostile army, and that such occupation applies only to the territory where that authority is established and in a position to assert itself. This definition of occupation is not at all precise, but it is as precise as a legal definition of such kind of fact as occupation can be. If, as some publicists[328] maintain, only such territory were actually occupied, in which every part is held by a sufficient number of soldiers to enforce immediately and on the very spot the authority of an occupant, an effective occupation of a large territory would be impossible, since then not only in every town, village, and railway station, but also in every isolated habitation and hut the presence of a sufficient number of soldiers would be necessary. Reasonably no other conditions ought to be laid down as necessary to constitute effective occupation in war than those under which in time of peace a Sovereign is able to assert his authority over a territory. What these conditions are is a question of fact which is to be answered according to the merits of the special case. When the legitimate Sovereign is prevented from exercising his powers and the occupant, being able to assert his authority, actually establishes an administration over a territory, it matters not with what means and in what ways his authority is exercised. For instance, when in the centre of a territory a large force is established from which flying columns are constantly sent round the territory, such territory is indeed effectively occupied, provided there are no enemy forces present, and, further, provided these columns can really keep the territory concerned under control.[329] Again, when an army is marching on through enemy territory, taking possession of the lines of communication and the open towns, surrounding the fortresses with besieging forces, and disarming the inhabitants in open places of habitation, the whole territory left behind the army is effectively occupied, provided some kind of administration is established, and further provided that, as soon as it becomes necessary to assert the authority of the occupant, a sufficient force can within reasonable time be sent to the locality affected. The conditions vary with those of the country concerned. When a vast country is thinly populated, a smaller force is necessary to occupy it, and a smaller number of centres need be garrisoned than in the case of a thickly populated country. Thus, the occupation of the former Orange Free State and the former South African Republic became effective in 1901 some time after their annexation by Great Britain and the degeneration of ordinary war into guerilla war, although only about 250,000 British soldiers had to keep up the occupation of a territory of about 500,000 square miles. The fact that all the towns and all the lines of communication were in the hands and under the administration of the British army, that the inhabitants of smaller places were taken away into concentration camps, that the enemy forces were either in captivity or dispersed into comparatively small guerilla bands, and finally, that wherever such bands tried to make an attack, a sufficient British force could within reasonable time make its appearance, was quite sufficient to assert British authority[330] over that vast territory, although it was more than a year before peace was finally established.
[328] See, for instance, Hall, § 161. This was also the standpoint of the delegates of the smaller States at the Brussels Conference of 1874 when the Declaration of Brussels was drafted.
[329] This is not identical with so-called constructive occupation, but is really effective occupation. An occupation is constructive only if an invader declares districts as occupied over which he actually does not exercise control—for instance, when he actually occupies only the capital of a large province, and proclaims that he has thereby occupied the whole of the province, although he does not take any steps to exercise control over it.
[330] The annexation of the Orange Free State dates from May 24, 1900, and that of the South African Republic from September 1, 1900. It may well be doubted whether at these dates the occupation of the territories concerned was already so complete as to be called effective. The British Government ought not, therefore, to have proclaimed the annexation at such early dates. But there ought to be no doubt that the occupation became effective some time afterwards, in 1901. See, however, Sir Thomas Barclay in The Law Quarterly Review, XXI. (1905), p. 307, who asserts the contrary; see also, below, § [264, p. 326, note 2], and § [265, p. 327, note 1]. The Times' History of the War in South Africa (vol. V. p. 251) estimates the number of Boer fighters in May 1901 to be about 13,000. These armed men were dispersed into a very large number of guerilla bands, and they were in a great many cases men who seemingly had submitted to the British authorities, but afterwards had taken up arms.
It must be emphasised that the rules regarding effective occupation must be formulated on the basis of actual practice quite as much as rules regarding other matters of International Law. Those rules are not authoritative which are laid down by theorists, but only those which are abstracted from the actual practice of warfare and are unopposed by the Powers.[331]
[331] The question is so much controverted that it is impossible to enumerate the different opinions. Readers who want to study the question must be referred to the literature quoted above at the commencement of § 166.
Occupation, when ended.
§ 168. Occupation comes to an end when an occupant withdraws from a territory or is driven out of it. Thus, occupation remains only over a limited area of a territory if the forces in occupation are drawn into a fortress on that territory and are there besieged by the re-advancing enemy, or if the occupant concentrates his forces in a certain place of the territory, withdrawing before the re-advancing enemy. But occupation does not cease because the occupant, after having disarmed the inhabitants and having made arrangements for the administration of the country, is marching on to overtake the retreating enemy, leaving only comparatively few soldiers behind.
Rights and Duties in General of the Occupant.
§ 169. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the respective territory and its inhabitants. And all steps he takes in the exercise of this right must be recognised by the legitimate Government after occupation has ceased. This administration is in no wise to be compared with ordinary administration, for it is distinctly and precisely military administration. In carrying it out the occupant is, on the one hand, totally independent of the Constitution and the laws of the respective territory, since occupation is an aim of warfare, and since the maintenance and safety of his forces and the purpose of war stand in the foreground of his interest and must be promoted under all circumstances and conditions. But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is not the Sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war. On the contrary, he has the duty of administrating the country according to the existing laws and the existing rules of administration; he must insure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. Article 43 of the Hague Regulations enacts the following rule which is of fundamental importance: "The authority of the legitimate Power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
Rights of the Occupant regarding the Inhabitants.
§ 170. An occupant having authority over the territory, the inhabitants are under his sway and have to render obedience to his commands. However, the power of the occupant over the inhabitants is not unrestricted, for articles 23, 44, and 45 of the Hague Regulations expressly enact, that he is prohibited from compelling the inhabitants to take part in military operations against the legitimate Government, to give information concerning the army of the other belligerent or concerning the latter's means of defence, or to take an oath of allegiance. On the other hand, he may compel them to take an oath—sometimes called an "oath of neutrality"—to abstain from taking up a hostile attitude against the occupant and willingly to submit to his legitimate commands; and he may punish them severely for breaking this oath. He may make requisitions and demand contributions[332] from them, may compel them to render services as drivers, farriers, and the like.[333] He may compel them to render services for the repair or the erection of such roads, buildings, or other works as are necessary for military operations.[334] He may also collect the ordinary taxes, dues, and tolls imposed for the benefit of the State by the legitimate Government. But in such case he is, according to article 48 of the Hague Regulations, obliged to make the collection, as far as possible, in accordance with the rules in existence and the assessment in force, and he is, on the other hand, bound to defray the expenses of the administration of the occupied territory on the same scale as that by which the legitimate Government was bound.
[332] See above, §§ [147] and [148].
[333] Formerly he could likewise compel them to render services as guides, but this is now prohibited by the wording which article 44 received from the Second Peace Conference. It should, however, be mentioned that Germany, Austria-Hungary, Japan, Montenegro, and Russia have signed Convention IV. with a reservation against article 44, and that in a war with these Powers the old rule is valid that inhabitants may be compelled to serve as guides.
[334] See article 52 of the Hague regulations, and Land Warfare, §§ 388-392.
Whoever does not comply with his commands, or commits a prohibited act, may be punished by him; but article 50 of the Hague Regulations expressly enacts the rule that no general penalty, pecuniary or otherwise, may be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible. It must, however, be specially observed that this rule does not at all prevent[335] reprisals on the part of belligerents occupying enemy territory. In case acts of illegitimate warfare are committed by enemy individuals not belonging to the armed forces, reprisals may be resorted to, although practically innocent individuals are thereby punished for illegal acts for which they are neither legally nor morally responsible—for instance, when a village is burned by way of reprisal for a treacherous attack committed there on enemy soldiers by some unknown individuals.[336] Nor does this new rule prevent an occupant from taking hostages[337] in the interest of the safety of the line of communication threatened by guerillas not belonging to the armed forces, or for other purposes,[338] although the hostage must suffer for acts or omissions of others for which he is neither legally nor morally responsible.
[335] See Holland, War, No. 110, and Land Warfare, §§ 385-386. See also Zorn, pp. 239-243, where an important interpretation of article 50 is discussed.
[337] But this is a moot point; see below, § [259].
[338] Belligerents sometimes take hostages for the purpose of securing compliance with demands for contributions, requisitions, and the like. As long as such hostages obtain the same treatment as prisoners of war, the practice does not seem to be illegal, although the Hague Regulations do not mention and many publicists condemn it; see above, § [116, p. 153, note 1], and below, § [259, p. 319, note 2].
It must be particularly noted that in the treatment of the inhabitants of enemy territory the occupant need not make any difference between such as are subjects of the enemy and such as are subjects of neutral States.[339]
[339] See above,§ [88], and Frankenbach, Die Rechtsstellung von neutralen Staatsangehörigen in kriegführenden Staaten (1910), pp. 46-50.
And it must be further observed that, according to British and American views—see above, § [100a]—article 23 (h) of the Hague Regulations prohibits an occupant of enemy territory from declaring extinguished, suspended, or unenforceable in a Court of Law the rights and the rights of action of the inhabitants.
Position of Government Officials and Municipal Functionaries during Occupation.
§ 171. As through occupation authority over the territory actually passes into the hands of the occupant, he may for the time of his occupation depose all Government officials and municipal functionaries that have not withdrawn with the retreating enemy. On the other hand, he must not compel them by force to carry on their functions during occupation, if they refuse to do so, except where a military necessity for the carrying on of a certain function arises. If they are willing to serve under him, he may make them take an oath of obedience, but not of allegiance, and he may not compel them to carry on their functions in his name, but he may prevent them from doing so in the name of the legitimate Government.[340] Since, according to article 43 of the Hague Regulations, he has to secure public order and safety, he must temporarily appoint other functionaries in case those of the legitimate Government refuse to serve under him, or in case he deposes them for the time of the occupation.
[340] Many publicists assert that in case an occupant leaves officials of the legitimate Government in office, he "must" pay them their ordinary salaries. But I cannot see that there is a customary or conventional rule in existence concerning this point. But it is in an occupant's own interest to pay such salaries. and he will as a rule do this. Only in the case of article 48 of the Hague Regulations is he compelled to do it.
Position of Courts of Justice during Occupation.
§ 172. The particular position which Courts of Justice have nowadays in civilised countries, makes it necessary to discuss their position during occupation.[341] There is no doubt that an occupant may suspend the judges as well as other officials. However, if he does suspend them, he must temporarily appoint others in their place. If they are willing to serve under him, he must respect their independence according to the laws of the country. Where it is necessary, he may set up military Courts instead of the ordinary Courts. In case and in so far as he admits the administration of justice by the ordinary Courts, he may nevertheless, so far as it is necessary for military purposes or for the maintenance of public order and safety, temporarily alter the laws, especially the Criminal Law, on the basis of which justice is administered, as well as the laws regarding procedure. He has, however, no right to constrain the Courts to pronounce their verdicts in his name, although he need not allow them to pronounce verdicts in the name of the legitimate Government. A case that happened during the Franco-German War may serve as an illustration. In September 1870, after the fall of the Emperor Napoleon and the proclamation of the French Republic, the Court of Appeal at Nancy pronounced its verdicts under the formula "In the name of the French Government and People." Since Germany had not yet recognised the French Republic, the Germans ordered the Court to use the formula "In the name of the High German Powers occupying Alsace and Lorraine," but gave the Court to understand that, if the Court objected to this formula, they were disposed to admit another, and were even ready to admit the formula "In the name of the Emperor of the French," as the Emperor had not abdicated. The Court, however, refused to pronounce its verdict otherwise than "In the name of the French Government and People," and, consequently, suspended its sittings. There can be no doubt that the Germans had no right to order the formula, "In the name of the High German Powers, &c.," to be used, but they were certainly not obliged to admit the formula preferred by the Court; and the fact that they were disposed to admit another formula than that at first ordered ought to have made the Court accept a compromise. Bluntschli (§ 547) correctly maintains that the most natural solution of the difficulty would have been to use the neutral formula "In the name of the Law."
[341] See Petit, L'Administration de la justice en territoire occupé (1900).