Chapter III: Warfare on Land (1)

I

ON LAND WARFARE IN GENERAL

Vattel, III. §§ 136-138--Hall, §§ 184-185--Phillimore, III. §
94--Taylor, § 469--Wheaton, § 342--Bluntschli, §§
534-535--Heffter, § 125--Lueder in Holtzendorff, IV. pp.
388-389--Gareis, § 84--Bonfils, Nos. 1066-1067--Pradier-Fodéré,
VI. Nos. 2734-2741--Longuet, § 41--Mérignhac, p. 146--Pillet, pp.
85-89--_Kriegsbrauch_, p. 9--_Land Warfare_, § 39--Holland, _War_,
Nos. 1-15.

[Sidenote: Aims and Means of Land Warfare.]

§ 103. The purpose of war, namely, the overpowering of the enemy, is served in land warfare through two aims[230]--firstly, defeat of the enemy armed forces on land, and, secondly, occupation and administration of the enemy territory. The chief means by which belligerents try to realise those aims, and which are always conclusively decisive, are the different sorts of force applied against enemy persons. But besides such violence against enemy persons there are other means which are not at all unimportant, although they play a secondary part only. Such means are: appropriation, utilisation, and destruction of enemy property; siege; bombardment; assault; espionage; utilisation of treason; ruses. All these means of warfare on land must be discussed in this chapter, as must also occupation of enemy territory.

[Footnote 230: Aims of land warfare must not be confounded with ends of war; see above, § 66.]

[Sidenote: Lawful and Unlawful Practices of Land Warfare.]

§ 104. But--to use the words of article 22 of the Hague Regulations--"the belligerents have not an unlimited right as to the means they adopt for injuring the enemy." For not all possible practices of injuring the enemy in offence and defence are lawful, certain practices being prohibited under all circumstances and conditions, and other practices being allowed only under certain circumstances and conditions, or only with certain restrictions. The principles of chivalry and of humanity have been at work[231] for many hundreds of years to create these restrictions, and their work is not yet at an end. However, apart from these restrictions, all kinds and degrees of force and many other practices may be made use of in war.

[Footnote 231: See above, § 67.]

[Sidenote: Objects of the Means of Warfare.]

§ 105. In a sense all means of warfare are directed against one object only--namely, the enemy State, which is to be overpowered by all legitimate means. Apart from this, the means of land warfare are directed against several objects.[232] Such objects are chiefly the members of the armed forces of the enemy, but likewise, although in a lesser degree, other enemy persons; further, private and public property, fortresses, and roads. Indeed, apart from certain restrictions, everything may eventually be the object of a means of warfare, provided the means are legitimate in themselves and are capable of fostering the realisation of the purpose of war.

[Footnote 232: See Oppenheim, _Die Objekte des Verbrechens_ (1894), pp. 64-146, where the relation of human actions with their objects is fully discussed.]

[Sidenote: Land Warfare in contradistinction to Sea Warfare.]

§ 106. Land warfare must be distinguished from sea warfare chiefly for two reasons. Firstly, their circumstances and conditions differ widely from each other, and, therefore, their means and practices also differ. Secondly, the law-making Conventions which deal with warfare rarely deal with land and sea warfare at the same time, but mostly treat them separately, for whereas some Conventions deal exclusively with warfare on sea, the Hague Regulations (Convention IV.) deal exclusively with warfare on land.

II

VIOLENCE AGAINST ENEMY PERSONS

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.

[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] 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.

[Footnote 233: See Klüber, § 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'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.]

[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 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.

[Footnote 236: See Pradier-Fodéré, 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 glass, irregularly shaped iron, nails, and the like; cannons must not be loaded with chain shot, crossbar shot, red-hot balls, 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 assassin must be hired and no assassination 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 Württemberg (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 arsenal 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, Japan, 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, Japan, 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, Japan, 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 Institute 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, Mérignhac, pp. 198-209; Bonfils, Nos. 1440'4-1440'21; Despagnet, No. 721 _bis_; Meyer, _Die Luftschiffahrt in kriegsrechtlicher Beleuchtung_ (1909); Philet, _La guerre aérienne_ (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 assistance 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 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.

[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 masse_ is threatening.[244]

[Footnote 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."

[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-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.

[Sidenote: Origin of Geneva Convention.]

§ 118. Although[246] since the seventeenth century several hundreds of special treaties have been concluded between different States regarding the tending of each other's wounded and the exemption of army surgeons from captivity, no general rule of the Law of Nations on these points was in existence until the second half of the nineteenth century other than one prohibiting the killing, mutilation, or ill-treatment of the wounded. A change for the better was initiated by Jean Henry Dunant, a Swiss citizen from Geneva, who was an eye-witness of the battle of Solferino in 1859, where many thousands of wounded died who could, under more favourable circumstances, have been saved. When he published, in 1861 and 1863, his pamphlet, _Un Souvenir de Solférino_, the Geneva _Société d'utilité publique_, under the presidency of Gustave Moynier, created an agitation in favour of better arrangements for the tending of the wounded on the battlefield, and convoked an international congress at Geneva in 1863, where thirty-six representatives of nearly all the European States met and discussed the matter. In 1864 the Bundesrath, the Government of the Federal State of Switzerland, took the matter in hand officially, and invited all European and several American States to send official representatives to a Congress at Geneva for the purpose of discussing and concluding an international treaty regarding the wounded. This Congress met in 1864, and sixteen States were represented. Its result was the international "Convention[247] for the Amelioration of the Condition of Soldiers wounded in Armies in the Field," commonly called "Geneva Convention," signed on August 22, 1864. By-and-by States other than the original signatories joined the Convention, and finally the whole body of the civilised States of the world, with the exception of Costa Rica, Monaco, and Lichtenstein, became parties. That the rules of the Convention were in no wise perfect, and needed to be supplemented regarding many points, soon became apparent. A second International Congress met at the invitation of Switzerland in 1868 at Geneva, where additional articles[248] to the original Convention were discussed and signed. These additional articles have, however, never been ratified. The First Hague Peace Conference in 1899 unanimously formulated the wish that Switzerland should shortly take steps for the assemblage of another international congress in order to revise the Geneva Convention. This Congress assembled in June 1906, thirty-five States having sent representatives, and on July 6, 1906, a new Geneva Convention[249] was signed by Great Britain, Germany, Argentina, Austria-Hungary, Belgium, Bulgaria, Chili, China, Congo Free State, Korea, Denmark, Spain, the United States of America, Brazil, Mexico, France, Greece, Guatemala, Honduras, Italy, Japan, Luxemburg, Montenegro, Norway, Holland, Peru, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland, and Uruguay. Most of these States have already ratified, and Colombia, Costa-Rica, Cuba, Nicaragua, Salvador, Turkey, and Venezuela, which were not represented at the Congress, acceded later. There is no doubt that in time all the civilised Powers will become parties.

[Footnote 246: See Macpherson, _loc. cit._ p. 254.]

[Footnote 247: See Martens, _N.R.G._ XVIII. p. 607, and above, vol. I. § 560.]

[Footnote 248: See Martens, _N.R.G._ XVIII. p. 61.]

[Footnote 249: See Martens, _N.R.G._ 3rd. Ser. II. (1910), p. 620, and _Treaty Series_, 1907, No. 15.]

The new Convention consists of thirty-three articles instead of the ten articles of the old Convention, and provides rules for the treatment of the wounded and the dead; further rules concerning military hospitals and mobile medical units; the personnel engaged in the interest of the wounded including army chaplains; the material belonging to mobile medical units, military hospitals, and voluntary aid societies; the convoys of evacuation; the distinctive emblem; the carrying out of the Convention; and the prevention of abuses and infractions.

In the final protocol the Conference expresses the desire that, in order to arrive at a unanimous interpretation of the Convention, the parties should, so far as the cases and the circumstances permit, submit to Hague Court Arbitration any differences which _in time of peace_ might arise between them concerning the interpretation of the Convention, but Great Britain and Japan refused to become parties to this.

[Sidenote: The Wounded and the Sick.]

§ 119. According to articles 1-5 of the Geneva Convention,[250] the sick and wounded persons belonging, or officially attached, to armies must be respected and taken care of, without distinction of nationality, by the belligerent in whose power they may be. Should, however, a belligerent necessarily be compelled to abandon such sick and wounded persons to the enemy, he must, so far as military exigencies permit, leave behind with them a portion of his medical personnel to take care of them, and the necessary material. The sick and wounded who have fallen into the hands of the enemy are prisoners of war, but belligerents may exchange or release them, or even hand them over to a neutral State which has to intern them until after the conclusion of peace. After each engagement the commander in possession of the field must have search made for the wounded and must take measures to protect them against pillage and maltreatment. A nominal roll of all wounded and sick who have been collected must be sent as early as possible to the authorities of the country or army to which they belong, and the belligerents must keep each other mutually informed of any internments and changes as well as of admissions into hospital. It is specially stipulated by article 5 that, if a military authority finds it necessary to appeal to the charitable zeal of the inhabitants to collect and take care of, under his direction, the wounded and sick of armies, he can grant to those who have responded to his appeal special protection and certain immunities.

[Footnote 250: The stipulations of the Geneva Convention are for the most part of a technical military character, and it is, therefore, impossible in a general treatise of International Law to enter into any details. Readers who take a deeper interest in the matter must be referred to the most valuable article by Macpherson in _Z.V._ V. (1911), pp. 253-277.]

[Sidenote: Medical Units and Establishments, and Material.]

§ 120. In order that the wounded and sick may receive proper treatment, mobile medical units as well as the fixed establishments of the medical service must be respected and protected by the belligerents, but this protection ceases if these units and establishments are made use of to commit acts harmful to the enemy, for instance, to shelter combatants, to carry on espionage, to conceal arms and ammunition (articles 6 and 7). But article 8 expressly enacts that the units and establishments do not forego protection:--(_a_) in case the personnel is armed and use their arms for their own defence or for the defence of the wounded and sick under their charge; (_b_) in case, in default of armed orderlies, units or establishments are guarded by pickets or by sentinels furnished with authority in due form; (_c_) in case weapons and cartridges, taken from the wounded and not yet handed over to the proper department, are found in units or establishments.

As regards the _material_, a distinction is drawn between the treatment of the material of mobile medical units, of fixed medical establishments, and of material belonging to Voluntary Aid Societies.

(_a_) Mobile medical units which fall into the hands of the enemy must not be deprived of their material, including their teams, whatever may be the means of transport and whoever may be the drivers employed (article 14). The competent military authority is, however, permitted to make use of the material in captured medical units for the treatment of the wounded and the sick at hand, provided it is restored under the same conditions, and so far as possible at the same time, as laid down for the release of the medical personnel by article 12.

(_b_) The buildings and material of fixed medical establishments which, because the locality where they are is militarily occupied, fall into the hands of the enemy, remain, according to article 15, "subject to the laws of war," that means they remain entirely in the power of the captor, but they may not be diverted from their medical purpose so long as they are necessary for the proper treatment of the wounded and the sick. Should, however, urgent military necessity demand it, a commander may dispose of them, provided he makes previous arrangements for the welfare of the wounded and sick found in the fixed establishments.

(_c_) The material of Voluntary Aid Societies, which are duly recognised, is, according to article 16, considered private property and must, therefore, be respected as such under all circumstances, although it may be requisitioned.

[Sidenote: Personnel.]

§ 121. The personnel engaged exclusively in the collection, transport, and treatment of the wounded and sick, as well as in the administration of mobile medical units and establishments, the chaplains attached to armies, and, lastly, pickets and sentinels guarding medical units and establishments, must, according to article 9, under all circumstances be respected and protected. If they fall into the hands of the enemy they must not be treated as prisoners of war. According to article 12, however, they are not free to act or move without let or hindrance, for, if their assistance is indispensable, they may be called upon by the captor to carry on their duties to the wounded and the sick. But when their assistance is no longer indispensable, they must be sent back to their army or to their country at such time and by such route as may be compatible with military exigencies, and they must be allowed to take with them such effects, instruments, arms, and horses as are their private property. So long as they are detained by the enemy he must, according to article 13, grant them the same allowances and the same pay as are due to the personnel holding the same rank in his own army.

The personnel of Voluntary Aid Societies employed in the medical units and establishments is, according to article 10, privileged to the same extent as the official personnel, provided that the Voluntary Aid Society concerned is duly recognised and authorised by its Government and that the personnel of the Society is subject to military law and regulations. Each State must notify to the other, either in time of peace or at the commencement, or during the course, of hostilities, but in every case before actually employing them, the names of societies which it has authorised to render assistance to the regular medical service of its armies. A recognised Voluntary Aid Society of a _neutral_ country cannot, according to article 11, afford the assistance of its personnel and units to a belligerent unless it has previously received the consent of its own Government and of the belligerent concerned. And a belligerent who accepts such assistance from a Voluntary Aid Society of a neutral country is bound, before making any use of it, to notify the fact to the enemy.

[Sidenote: Convoys of Evacuation.]

§ 122. Convoys used for evacuating the wounded and sick must, as regards their personnel and material, be treated in the same way as mobile medical units, but subject to the following special provisions enacted by article 17:--

A belligerent intercepting a convoy may, if military exigencies demand, break it up, provided he takes charge of the sick and wounded who are in it. In this case, the obligation to send back the medical personnel, provided for in article 12, must be extended to the whole of the military personnel detailed for the transport or the protection of the convoy and furnished with an authority in due form to that effect.

The obligation to restore the medical material, provided for in article 14, must apply to railway trains and boats used in internal navigation, which are specially arranged for evacuation, as well as to the material belonging to the medical service for fitting up ordinary vehicles, trains, and boats. Military vehicles, other than those of the medical service, however, may be captured with their teams; and the civilian personnel and the various means of transport obtained by requisition, including railway material and boats used for convoys, are subject to the general rules of International Law concerning war.

[Sidenote: Distinctive Emblem.]

§ 123. According to article 18 the Swiss heraldic device of the red cross on a white ground, formed by reversing the federal colours, is adopted as the emblem and distinctive sign of the medical service of armies, but there is no objection to the adoption of another emblem on the part of such non-Christian States as object to the cross on religious grounds. Thus Turkey has substituted a red crescent, and Persia a red sun for the cross.[251] The following are the rules concerning the use of this emblem:--

(1) The emblem must be shown on the flags and the armlets (_brassards_) as well as on all the material belonging to the medical service, but the emblem cannot be recognised unless it is used with the permission of the competent military authority (article 19).

(2) Medical units and establishments must hoist the red cross flag accompanied by the national flag of the belligerent concerned (article 21), but medical units which have fallen into the hands of the enemy must not, so long as they are in that situation, fly any other flag than that of the red cross. The medical units belonging to neutral countries which have, in accordance with article 11, been admitted to afford their services, must fly, along with the red cross flag, the national flag of the belligerent to whose army they are attached (article 22).

(3) All the personnel must, according to article 20, wear, fixed to the left arm, an armlet (_brassard_) with a red cross on a white ground, delivered and stamped by the competent military authority and accompanied by a certificate of identity in the case of persons who are attached to the medical service and armies without wearing the military uniform.

(4) The employment of the red cross on a white ground and the words "Red Cross" or "Geneva Cross" must not, according to article 23, be used, either in time of peace or in time of war, except to indicate the protected medical units, establishments, personnel, and material.

[Footnote 251: See below, § 207.]

[Sidenote: Treatment of the Dead.]

§ 124. According to a customary rule of the Law of Nations belligerents have the right to demand from one another that dead soldiers shall not be disgracefully treated, especially not mutilated, and shall be, so far as possible, collected and buried[252] or cremated on the battlefield by the victor. The Geneva Convention does not stipulate any rule concerning the collection and burial or cremation of the dead, but article 3 enacts that after each engagement the commander in possession of the field must take measures to ensure protection of the dead against pillage and maltreatment, and that a careful examination of the bodies, in order to see that life is really extinct, must be made before the dead are buried or cremated. Each belligerent must send as soon as possible to the authorities of the country or army to which they belong the military identification marks or tokens found on the dead (article 4). Pieces of equipment found upon the dead of the enemy are public enemy property and may, therefore, be appropriated as booty[253] by the victor. On the other hand, letters, money, jewellery, and such other articles of value found upon the dead on the battlefield, or on those who die in the medical units or fixed establishments, as are apparently private property, are not booty, but must, according to article 4 of the Geneva Convention and article 14 of the Hague rules concerning warfare on land, be collected and handed over to the Bureau of Information[254] concerning the prisoners of war, which has to transmit them to the persons interested through the channel of the authorities of their own country.

[Footnote 252: See Grotius, II. c. 19, §§ 1 and 3. Regarding a valuable suggestion of Ullmann's concerning sanitary measures for the purpose of avoiding epidemics, see above, vol. I. p. 621, note 1.]

[Footnote 253: See below, § 139.]

[Footnote 254: See below, § 130.]

[Sidenote: Application of the Geneva Convention, and Prevention of Abuses.]

§ 124_a_. The provisions of the Geneva Convention are only binding in the case of war between two or more of the contracting parties, they cease to be binding from the moment when one of the belligerent Powers is not a party (article 24). The commanders-in-chief of the belligerent armies must, in accordance with the instructions of their Governments and in conformity with the general principles of the Geneva Convention, arrange the details for carrying out the articles of the Geneva Convention, as well as for cases not provided for in these articles (article 25). The contracting parties must take the necessary measures to instruct their troops, especially the personnel protected by the Geneva Convention, in the provisions of the Convention, and to bring these provisions to the notice of the civil population (article 26). In countries whose legislation is not at the time of the signing of the Convention adequate for the purpose, the contracting parties must adopt such measures as may be necessary to prevent, at all times, the employment of the emblem or the name of "Red Cross" or "Geneva Cross" by private individuals or by Societies other than those which are entitled to do so according to the Geneva Convention, and in particular for commercial purposes as a trade mark or trading mark (article 27). The contracting Governments must likewise adopt measures necessary for the repression in time of war of individual acts of pillage and maltreatment of the wounded and sick, as well as for the punishment of the improper use of the Red Cross flag and armlet (_brassard_) by officers and soldiers or private individuals not protected by the Geneva Convention. They must, at the latest within five years from the ratification of the Geneva Convention, communicate to one another through the Swiss Federal Council, the provisions concerning these measures of repression (article 28).[255]

[Footnote 255: By reason of the uncertainties of parliamentary proceedings, Great Britain, in signing and ratifying the Geneva Convention, entered a reservation against articles 23, 27, and 28, but by the Geneva Convention Act, 1911 (1 & 2 Geo. V. ch. 20), Great Britain is now able to carry out the stipulations of these three articles.]

[Sidenote: General provisions of the Geneva Convention.]

§ 124_b_. The Geneva Convention comes into force for each contracting Power six months after the date of the deposit of its ratification (article 30). The new Geneva Convention replaces the old of 1864, but the old Geneva Convention remains in force between such of its contracting parties as do not become parties to the new Convention of 1906 (article 31). Such of the Powers as signed the old Convention of 1864, but did not sign the new Convention of December 31, 1906, are free to accede to it at any time later by means of a written notification to the Swiss Federal Council. Other Powers may likewise notify their accession at any time to the Swiss Federal Council, but their accession only takes effect in case, within a period of one year from such notification, no objection to the accession reaches the Swiss Federal Council from any of the previous contracting Powers (article 32). Each of the contracting Powers is at liberty at any time to denounce the Geneva Convention by a written notification to the Swiss Federal Council, which must immediately indicate it to all the other contracting Powers (article 33). The denunciation, however, does not take effect until one year after it has come to the notice of the Swiss Federal Council, and a denunciation only affects such Power as has notified it.

IV

CAPTIVITY

Grotius, III. c. 14--Bynkershoek, _Quaest. jur. publ._ I. c.
3--Vattel, III. §§ 148-154--Hall, §§ 131-134--Westlake, II. pp.
63-68--Lawrence, § 164--Maine, pp. 160-167--Manning, pp.
210-222--Phillimore, III. § 95--Twiss, II. § 177--Halleck, II. pp.
19-30--Taylor, §§ 519-524--Moore, VII. §§ 1127-1133--Wharton, III.
§§ 348-348D--Wheaton, § 344--Bluntschli, §§ 593-626--Heffter, §§
127-129--Lueder in Holtzendorff, IV. pp. 423-445--Ullmann, §
177--Bonfils, Nos. 1119-1140--Despagnet, Nos.
544-550--Pradier-Fodéré, VII. Nos. 2796-2842, and VIII. No.
3208--Rivier, II. pp. 273-279--Nys, III. pp. 537-553--Calvo, IV.
§§ 2133-2157--Fiore, III. Nos. 1355-1362, and Code, Nos.
1567-1588--Martens, II. § 113--Longuet, §§ 77-83--Mérignhac, pp.
87-113--Pillet, pp. 145-164--_Kriegsbrauch_, pp. 11-18--Zorn, pp.
73-123--Bordwell, pp. 237-248--_Land Warfare_, §§ 54-116--Spaight,
pp. 260-320--Holland, _War_, Nos. 24-40--Eichelmann, _Über die
Kriegsgefangenschaft_ (1878)--Romberg, _Des belligérants et des
prisonniers de guerre_ (1894)--Triepel, _Die neuesten Fortschritte
auf dem Gebiet des Kriegsrechts_ (1894), pp. 41-55--Holls, _The
Peace Conference at the Hague_ (1900), pp. 145-151--Cros,
_Condition et traitement des prisonniers de guerre_
(1900)--Beinhauer, _Die Kriegsgefangenschaft_ (1910)--Payrat, _Le
prisonnier de guerre dans la guerre continentale_ (1910).

[Sidenote: Development of International Law regarding Captivity.]

§ 125. During antiquity, prisoners of war could be killed, and they were very often at once actually butchered or offered as sacrifices to the gods. If they were spared, they were as a rule made slaves and only exceptionally liberated. But belligerents also exchanged their prisoners or liberated them for ransom. During the first part of the Middle Ages prisoners of war could likewise be killed or made slaves. Under the influence of Christianity, however, their fate in time became mitigated. Although they were often most cruelly treated during the second part of the Middle Ages, they were not as a rule killed and, with the disappearance of slavery in Europe, they were no longer enslaved. By the time modern International Law gradually came into existence, killing and enslaving prisoners of war had disappeared, but they were still often treated as criminals and as objects of personal revenge. They were not considered in the power of the State by whose forces they were captured, but in the power of those very forces or of the individual soldiers that had made the capture. And it was considered lawful on the part of captors to make as much profit as possible out of their prisoners by way of ransom, provided no exchange of prisoners took place. So general was this practice that a more or less definite scale of ransom became usual. Thus, Grotius (III. c. 14, § 9) mentions that in his time the ransom of a private was the amount of his one month's pay. And since the pecuniary value of a prisoner as regards ransom rose in proportion with his fortune and his position in life and in the enemy army, it became usual for prisoners of rank and note not to belong to the capturing forces but to the Sovereign, who had, however, to recompense the captors. During the seventeenth century, the custom that prisoners were considered in the power of their captors died away. They were now considered to be in the power of the Sovereign by whose forces they were captured. But rules of the Law of Nations regarding their proper treatment were hardly in existence. The practice of liberating prisoners in exchange, or for ransom only, continued. Special cartels were often concluded at the outbreak of or during a war for the purpose of stipulating a scale of ransom according to which either belligerent could redeem his soldiers and officers from captivity. The last[256] instance of such cartels is that between England and France in 1780, stipulating the ransom for members of the naval and military forces of both belligerents.

[Footnote 256: See Hall, § 134, p. 428, note 1.]

It was not until the eighteenth century, with its general tendencies to mitigate the cruel practices of warfare, that matters changed for the better. The conviction in time became general that captivity should only be the means of preventing prisoners from returning to their corps and taking up arms again, and should, as a matter of principle, be distinguished from imprisonment as a punishment for crimes. The Treaty of Friendship[257] concluded in 1785 between Prussia and the United States of America was probably the first to stipulate (article 24) the proper treatment of prisoners of war, prohibiting confinement in convict prisons and the use of irons, and insisting upon their confinement in a healthy place, where they may have exercise, and where they may be kept and fed as troops. During the nineteenth century the principle that prisoners of war should be treated by their captor in a manner analogous to that meted out to his own troops became generally recognised, and the Hague Regulations have now, by articles 4 to 20, enacted exhaustive rules regarding captivity.

[Footnote 257: See Martens, _N.R._ IV. p. 37.]

[Sidenote: Treatment of Prisoners of War.]

§ 126. According to articles 4-7 and 16-19 of the Hague Regulations prisoners of war are not in the power of the individuals or corps who capture them, but in the power of the Government of the captor. They must be humanely treated. All their personal belongings remain their property, with the exception of arms, horses, and military papers, which are booty;[258] and in practice[259] personal belongings are understood to include military uniform, clothing, and kit required for personal use, although technically they are Government property. They may only be imprisoned as an unavoidable matter of safety, and only while the circumstances which necessitate the measure continue to exist. They may, therefore, be detained in a town, fortress, camp, or any other locality, and they may be bound not to go beyond a certain fixed boundary. But they may not be kept in convict prisons. Except in the case of officers, their labour may be utilised by the Government according to their rank and aptitude, but their tasks must not be excessive and must have nothing to do with military operations. Work done by them for the State must be paid for in accordance with tariffs in force for soldiers of the national army employed on similar tasks, or, in case there are no such tariffs in force, at rates proportional to the work executed. But prisoners of war may also be authorised to work for other branches of the public service or for private persons under conditions of employment to be settled by the military authorities, and they may likewise be authorised to work on their own account. All wages they receive go towards improving their position, and a balance must be paid to them at the time of their release, after deducting the cost of their maintenance. But whether they earn wages or not, the Government is bound under all circumstances to maintain them, and provide quarters, food, and clothing for them on the same footing as for its own troops. Officer prisoners must receive the same pay as officers of corresponding rank in the country where they are detained, the amount to be repaid by their Government after the conclusion of peace. All prisoners of war must enjoy every latitude in the exercise of their religion, including attendance at their own church service, provided only they comply with the regulations for order issued by the military authorities. If a prisoner wants to make a will, it must be received by the authorities or drawn up on the same conditions as for soldiers of the national army. And the same rules are valid regarding death certificates and the burial of prisoners of war, and due regard must be paid to their grade and rank. Letters, money orders, valuables, and postal parcels destined for or despatched by prisoners of war must enjoy free postage, and gifts and relief in kind for prisoners of war must be admitted free from all custom and other duties as well as payments for carriage by Government railways (article 16).

[Footnote 258: See below, § 144.]

[Footnote 259: See _Land Warfare_, § 69.]

[Sidenote: Who may claim to be Prisoners of War.]

§ 127. Every individual who is deprived of his liberty not for a crime but for military reasons has a claim to be treated as a prisoner of war. Article 13 of the Hague Regulations expressly enacts that non-combatant[260] members of armed forces, such as newspaper correspondents, reporters, sutlers, contractors, who are captured and detained, may claim to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying. But although the Hague Regulations do not contain anything regarding the treatment of private enemy individuals and enemy officials whom a belligerent thinks it necessary[261] to make prisoners of war, it is evident that they may claim all privileges of such prisoners. Such individuals are not convicts; they are taken into captivity for military reasons, and they are therefore prisoners of war.

[Footnote 260: See above, § 79.]

[Footnote 261: See above, §§ 116 and 117.]

[Sidenote: Discipline.]

§ 128. Articles 8 and 9 of the Hague Regulations lay down the discipline to be observed in the case of prisoners of war in the following way:--Every prisoner who, if questioned, does not declare his true name and rank is liable to a curtailment of the advantages accorded to prisoners of his class. All prisoners are subject to the laws, regulations, and orders in force in the army of the belligerent that keeps them in captivity. Any act of insubordination on the part of prisoners may be punished in accordance with these laws,[262] but apart from these laws, all kinds of severe measures are admissible to prevent a repetition of such acts. Escaped prisoners, who, after having rejoined their national army, are again taken prisoners, are not liable to any punishment for their flight. But if they are recaptured before they succeed in rejoining their army, or before they have quitted the territory occupied by the capturing forces, they are liable to disciplinary punishment.

[Footnote 262: Concerning the question whether after conclusion of peace such prisoners as are undergoing a term of imprisonment for offences against discipline may be detained, see below, § 275.]

[Sidenote: Release on Parole.]

§ 129. Articles 10 to 12 of the Hague Regulations deal with release on parole in the following manner:--No belligerent is obliged to assent to a prisoner's request to be released on parole, and no prisoner may be forced to accept such release. But if the laws of his country authorise him to do so, and if he acquiesces, any prisoner may be released on parole. In such case he is in honour bound scrupulously to fulfil the engagement he has contracted, both as regards his own Government and the Government that released him. And his own Government is formally bound neither to request, nor to accept, from him any service incompatible with the parole given. Any prisoner released on parole and recaptured bearing arms against the belligerent who released him, or against such belligerent's allies, forfeits the privilege to be treated as a prisoner of war, and may be tried by court-martial. The Hague Regulations do not lay down the punishment for such breach of parole, but according to a customary rule of International Law the punishment may be capital.

[Sidenote: Bureau of Information.]

§ 130. According to articles 14 and 16 of the Hague Regulations every belligerent[263] must institute on the commencement of war a Bureau of Information relative to his prisoners of war. This Bureau is intended to answer all inquiries about prisoners. It must be furnished by all the services concerned with all the necessary information to enable it to make out and keep up to date a separate return for each prisoner, and it must, therefore, be kept informed of internments and changes as well as of admissions into hospital, of deaths, releases on parole, exchanges, and escapes. It must state in its return for each prisoner the regimental number, surname and name, age, place of origin, rank, unit, wounds, date and place of capture, of internment, of the wounds received, date of death, and any observations of a special character. This separate return must, after conclusion of peace, be sent to the Government of the other belligerent.

[Footnote 263: And likewise such neutral States as receive and detain members of the armed forces of the belligerents; see article 14.]

The Bureau must likewise receive and collect all objects of personal use, valuables, letters, and the like, found on battlefields[264] or left by prisoners who have been released on parole, or exchanged, or who have escaped, or died in hospital or ambulances, and must transmit these articles to those interested. The Bureau must enjoy the privilege of free postage.

[Footnote 264: See above, § 124.]

[Sidenote: Relief Societies.]