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.