International Law. A Treatise Volume Ii Part 16

-- 110--Longuet, ---- 42-49--Merignhac, 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.

[Sidenote: 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.

[Sidenote: 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] a.s.sert 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 ill.u.s.trious 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.

[Footnote 233: See Kluber, -- 245; G. F. Martens, II. -- 278; Heffter, -- 126.]

[Footnote 234: Says Vattel, III. -- 159: "Mais ce n'est point une loi de la guerre d'epargner en toute rencontre la personne du roi ennemi; et on n'y est oblige que quand on a la facilite 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.]

[Footnote 235: See Baty, _International Law in South Africa_ (1900), pp.

84-85.]

[Sidenote: 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 enc.u.mber 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 a.s.sault, 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.

[Footnote 236: See Pradier-Fodere, VII. Nos. 2800-2801, who opposes this principle but discusses the subject in a very detailed way.]

[Footnote 237: See Payrat, _Le Prisonnier de Guerre_ (1910), pp.

191-220, and _Land Warfare_, -- 80.]

[Footnote 238: Accordingly, the Boers frequently during the South African War set free British soldiers whom they had captured.]

[Sidenote: Lawful and Unlawful Means of killing and wounding Combatants.]

-- 110. Apart from such means as are expressly prohibited by treaties or custom, all means of killing and wounding that exist or may be invented are lawful. And it matters not whether the means used are directed against single individuals, as swords and rifles, or against large bodies of individuals, as, for instance, shrapnel, Gatlings, and mines.

On the other hand, all means are unlawful that render death inevitable or that needlessly aggravate the sufferings of wounded combatants. A customary rule of International Law, now expressly enacted by article 23 (_e_) of the Hague Regulations, prohibits, therefore, the employment of poison and of such arms, projectiles, and material as cause unnecessary injury. Accordingly: wells, pumps, rivers, and the like from which the enemy draws drinking water must not be poisoned; poisoned weapons must not be made use of; rifles must not be loaded with bits of gla.s.s, irregularly shaped iron, nails, and the like; cannons must not be loaded with chain shot, crossbar shot, red-hot b.a.l.l.s, and the like. Another customary rule, now likewise enacted by article 23 (_b_) of the Hague Regulations, prohibits any treacherous way of killing and wounding combatants. Accordingly: no a.s.sa.s.sin must be hired and no a.s.sa.s.sination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.

[Sidenote: Explosive Bullets.]

-- 111. In 1868 a conference met at St. Petersburg for the examination of a proposition made by Russia with regard to the use of explosive projectiles in war. The representatives of seventeen Powers--namely, Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North German Confederation, Sweden-Norway, Switzerland, Turkey and Wurttemberg (Brazil acceded later) signed on December 11, 1868, the so-called Declaration of St. Petersburg,[239] which stipulates that the signatory Powers, and those who should accede later, renounce in case of war between themselves the employment, by their military and naval troops, of any projectile of a weight below 400 grammes (14 ounces) which is either explosive or charged with fulminating or inflammable substances.

This engagement is obligatory only upon the contracting Powers, and it ceases to be obligatory in case a non-contracting Power takes part in a war between any of the contracting Powers.

[Footnote 239: See above, vol. I. -- 562, and Martens, _N.R.G._ XVIII. p.

474.]

[Sidenote: Expanding (Dum-Dum) Bullets.]

-- 112. As Great Britain had introduced bullets manufactured at the Indian a.r.s.enal of Dum-Dum, near Calcutta, the hard jacket of which did not quite cover the core and which therefore easily expanded and flattened in the human body, the First Hague Peace Conference adopted a declaration signed on July 29, 1899, by fifteen Powers--namely, Belgium, Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Roumania, Russia, Siam, Sweden-Norway, Turkey, and Bulgaria--stipulating that the contracting Powers should abstain, in case of war between two or more of them, from the use of bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions. Austria-Hungary, China, Germany, Italy, Nicaragua, Portugal, j.a.pan, Luxemburg, Servia, Switzerland, and Great Britain acceded later.

[Sidenote: Projectiles diffusing Asphyxiating or Deleterious Gases.]

-- 113. The First Hague Peace Conference also adopted a Declaration, signed on July 29, 1899, by sixteen States--namely, Belgium, Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Portugal, Roumania, Russia, Siam, Sweden-Norway, Turkey and Bulgaria--stipulating that the signatory Powers should in a war between two or more of them abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases. Austria-Hungary, China, Germany, Italy, j.a.pan, Luxemburg, Nicaragua, Servia, Switzerland, and Great Britain acceded later.

[Sidenote: Violence directed from Air-Vessels.]

-- 114. The First Hague Peace Conference adopted likewise a Declaration, signed on July 29, 1899, prohibiting _for a term of five years_ the launching of projectiles or explosives from balloons or other kinds of aerial vessels. The Second Peace Conference, on October 18, 1907, renewed this Declaration _up to the close of the Third Peace Conference_, but out of twenty-seven States which signed the Declaration only seven--namely, Great Britain, the United States of America, China, Holland, Bolivia, Salvador, Haiti (Nicaragua acceded later)--ratified it, and Germany, France, Italy, j.a.pan, Russia--not to mention smaller Powers--did not even sign it. There is, therefore, no doubt that the Third Peace Conference will not renew the Declaration. Although it is very much to be regretted, the fact must be taken into consideration that in future violence directed from air-vessels will play a great part in war. For this reason, the question as to the conditions under which such violence is admissible, is of importance,[240] but it is as yet impossible to give a satisfactory answer. The Inst.i.tute of International Law, at its meeting at Madrid in 1911, adopted the principle[241] that _aerial warfare must not comprise greater danger to the person and the property of the peaceful population than land or sea warfare_. However this may be, there can be no doubt that the general principles laid down in the Declaration of St. Petersburg of 1868, in the two Declarations, adopted by the First Peace Conference, concerning expanding bullets and projectiles diffusing asphyxiating or deleterious gases, in the Hague rules concerning land warfare, and the like, must find application as regards violence directed from air vessels.

[Footnote 240: See, besides the literature quoted above, vol. I. p. 237, note 1, Merignhac, pp. 198-209; Bonfils, Nos. 1440'4-1440'21; Despagnet, No. 721 _bis_; Meyer, _Die Luftschiffahrt in kriegsrechtlicher Beleuchtung_ (1909); Philet, _La guerre aerienne_ (1910); Nys, Fauchille, and Bar in _Annuaire_, XIX. (1902), pp. 58-114, XXIV. (1911), pp. 23-126; Fauchille in _R.G._ VIII. (1901), pp. 414-485.]

[Footnote 241: See _Annuaire_, XXIV. (1911), p. 346.]

[Sidenote: Violence against non-combatant Members of Armed Forces.]

-- 115. It will be remembered from above, -- 79, that numerous individuals belong to armed forces without being combatants. Now, since and in so far as these non-combatant members of armed forces do not take part in the fighting, they may not directly be attacked and killed or wounded.

However, they are exposed to all injuries indirectly resulting from the operations of warfare. And, with the exception of the personnel[242]

engaged in the interest of the wounded, such as doctors, chaplains, persons employed in military hospitals, official ambulance men, who, according to articles 9 and 10 of the Geneva Convention, are specially privileged, such non-combatant members of armed forces may certainly be made prisoners, since the a.s.sistance they give to the fighting forces may be of great importance.

[Footnote 242: See below, -- 121.]

[Sidenote: Violence against Private Enemy Persons.]

-- 116. Whereas in former[243] times private enemy persons of either s.e.x could be killed or otherwise badly treated according to discretion, and whereas in especial the inhabitants of fortified places taken by a.s.sault used to be abandoned to the mercy of the a.s.sailants, 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.

[Footnote 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 ma.s.se_ is threatening.[244]

[Footnote 244: Civilians who render a.s.sistance 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 a.s.sistance 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."

[Footnote 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.]

[Sidenote: 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.

1108-1118'7--Despagnet, Nos. 551-553--Pradier-Fodere, VI. No.

2794, VII. Nos. 2849-2881--Rivier, II. pp. 268-273--Nys, III. pp.