A “harsh and cruel” measure.
A new application of “hostage-right” was practised by the German Staff in the war of 1870, when it compelled leading citizens from French towns and villages to accompany trains and locomotives in order to protect the railways communications which were threatened by the people. Since the lives of peaceable inhabitants were without any fault on their part thereby exposed to grave danger, every writer outside Germany has stigmatized this measure as contrary to the law of nations and as unjustified towards the inhabitants of the country. As against this unfavorable criticism it must be pointed out that this measure, which was also recognized on the German side as harsh and cruel, was only resorted to after declarations and instructions of the occupying[88] authorities had proved ineffective, and that in the particular circumstance it was the only method which promised to be effective against the doubtless unauthorized, indeed the criminal, behavior of a fanatical population.
But it was “successful.”
Herein lies its justification under the laws of war, but still more in the fact that it proved completely successful, and that wherever citizens were thus carried on the trains (whether result was due to the increased watchfulness of the communes or to the immediate influence on the population), the security of traffic was restored.[89]
To protect oneself against attack and injuries from the inhabitants and to employ ruthlessly the necessary means of defense and intimidation is obviously not only a right but indeed a duty of the staff of the army. The ordinary law will in this matter generally not suffice, it must be supplemented by the law of the enemy’s might. Martial law and courts-martial must take the place of the ordinary jurisdiction.[90]
To Martial law are subject in particular:
1. All attacks, violations, homicides, and robberies, by soldiers belonging to the army of occupation.
2. All attacks on the equipment of this army, its supplies, ammunition, and the like.
3. Every destruction of communication, such as bridges, canals, roads, railways and telegraphs.
4. War rebellion and war treason.
Only the fourth point requires explanation.
War Rebellion.
By war rebellion is to be understood the taking up of arms by the inhabitants against the occupation; by war treason on the other hand the injury or imperiling of the enemy’s authority through deceit or through communication of news to one’s own army as to the disposition, movement, and intention, etc., of the army in occupation, whether the person concerned has come into possession of his information by lawful or unlawful means (i.e., by espionage).