[475] See Wharton, III. § 348B.
[476] That Bismarck's standpoint was wrong has been pointed out above in § [201]. Some German writers, however, take his part; see, for instance, Lueder in Holtzendorff, IV. p. 479, note 6. As regards the present law on the subject, see above, §§ [85] and [201].
[477] The case is one of reprisals, and has nothing to do with the taking of hostages; see below, § [258].
Proposed Restriction of Reprisals.
§ 250. The Hague Regulations do not mention reprisals at all because the Brussels Conference of 1874, which accepted the unratified Brussels Declaration, had struck out several sections of the Russian draft code regarding reprisals. These original sections[478] (69-71) stipulated—(1) that reprisals should be admitted only in extreme cases of absolutely certain violations of the rules of legitimate warfare; (2) that the acts performed by way of reprisal must not be excessive, but in proportion to the respective violation; (3) that reprisals should be ordered by commanders-in-chief only. Articles 85 and 86 of the Manual of the Laws of War, adopted by the Institute of International Law,[479] propose the following rules:—(1) Reprisals are to be prohibited in case reparation is given for the damage done by an illegal act; (2) in grave cases, in which reprisals are an imperative necessity, they must never exceed the degree of the violation committed by the enemy; (3) they may only be resorted to with the authorisation of the commander-in-chief; (4) they must in every case respect the laws of humanity and of morality. In face of the arbitrariness with which, according to the present state of International Law, reprisals may be exercised, it cannot be denied that an agreement upon some precise rules regarding reprisals is an imperative necessity.
[478] See Martens, N.R.G. 2nd Ser. IV. pp. 14, 139, 207.
[479] See Annuaire, V. p. 174.
IV PUNISHMENT OF WAR CRIMES
Hall, § 135—Bluntschli, §§ 627-643A—Spaight, p. 462—Holland, War, Nos. 117-118—Ariga, §§ 96-99—Takahashi, pp. 166-184—Landa in R.I. X. (1878), pp. 182-184—Land Warfare, §§ 441-451.
Conception of War Crimes.