MARTIAL LAW. MILITARY NECESSITY. RETALIATION.
§ 1. A place, district, or country, invested or occupied by an enemy, stands, in consequence of the occupation, under the Martial Law of the investing or invading army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest.
The presence of a hostile army proclaims its Martial Law.
§ 2. Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or by special mention in the treaty of peace, concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace, as one of the conditions of the same.
§ 3. Martial Law in a hostile country, consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force, for the same; as well as in the dictation of general laws—as far as military necessity requires this suspension, substitution, and dictation.
It is not unusual to proclaim that the administration of all civil and penal law shall continue, as in times of peace, unless specially interfered with by the military authority.
§ 4. Martial Law, although called law, does not consist in a body of rules of action. There is not even a distinct term for it in other languages.
Martial Law in a conquered or invaded country, or place, is temporary Military Absolutism, in the hands of commanders, who, therefore, must take care that it does not degenerate into arbitrary despotism. Martial Law is not the reckless use of military power by the highest or lowest in arms. Military oppression is not Martial Law.
§ 5. Military Necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for the obtaining of the ends of the war, and are lawful according to the modern law and usages of war.
§ 6. Modern times are distinguished from earlier ages, by the existence, at one and the same time, of many nations and great governments, related to one another in close intercourse. They draw abreast like chariot horses.
Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.
Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, War has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defence against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.
§ 7. Military Necessity admits of all direct destruction of life or limb of the armed enemies, and of those whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction and obstruction of property, of the ways and channels of traffic, travel, or communion, and of all withholding of sustenance or means of life from the enemy; of all appropriation necessary for the subsistence and safety of the army, and of all deception which does not involve the breaking of good faith either positively pledged regarding agreements entered into during the war, or supposed by the modern law of war to exist, even in the fiercest struggle, as a basis of intercourse between honorable belligerents. Men who take up arms against one another in public war, do not cease on this account to be moral beings, responsible to one another, and to God.
Military Necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge;—nor of maiming or wounding except in fight, nor of torture to extort confessions; it does not admit of the use of poison in any way, nor of the devastation of districts for the sake of creating depopulated districts, since it is the will of our Maker that in the normal state the land shall be tilled and peopled; and, in general, Military Necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.
§ 8. In modern wars all civil and penal law continues to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provincial, or local character, cease under Martial Law, or continue only with the assistance or special approbation of the occupier or invader.
§ 9. Martial Law extends to property and persons, whether they are subjects of the enemy, or aliens to that government.
Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only.
Soldiers are rarely billeted in their houses; but their property and business, if they are engaged in any, are not exempted.
Any delinquency they commit against the established military rule, may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.
The functions of ambassadors, ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease in the invaded, occupied, or conquered places or territories.
§ 10. Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety and the safety of its operations.
It allows of no individual violence; and since it consists in the substitution of military rule for the established law and its administration, and because it is founded on military force, it is incumbent upon all military authorities acting by Martial Law, to be strictly guided by the principles of justice, honor, and humanity—virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
§ 11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war (§ 7), but also the breaking of stipulations solemnly contracted by the belligerents, in time of peace, and avowedly intended to remain in force in case of war between the contracting powers.
It disclaims all extortions and other transactions for individual gain; all acts of private revenge or connivance at such acts.
Offences to the contrary shall be severely punished in the American army, and especially so if committed by officers.
§ 12. Whenever feasible, Martial Law is carried out, in cases of individual offences, by courts-martial, and sentences of death shall be executed only by the approval of the commander of the army corps, provided the urgency of the case does not require a speedier execution. In no case shall a sentence of death by court-martial be executed without the approval of a general officer.
The finding of a court-martial, judging an enemy, may be set aside, in urgent cases, by the authority which has called together the court-martial, when a new court-martial is to be ordered; but it is against the plain demands of justice and fairness, if the authority, which has ordered a court-martial, not only sets aside the finding, but inflicts a severer punishment than that in the finding. Instances to the contrary of this rule, in the history of war, although in the case of great captains, are not to be imitated.
§ 13. The law of war can no more wholly dispense with Retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge Retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.
The American people demand of their generals that Retaliation be never resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously, justly, and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry, not blinded by passion, into the real occurrence, and the character of the misdeeds that may demand retribution, after an unsuccessful summons of the enemy to punish the evil-doers, and without transgressing the bounds of strict retaliation.
Doubtful Retaliation removes the belligerents farther and farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages.