§ 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.