International Law. A Treatise
Chapter 114 : (15) Use of enemy uniforms and the like during battle, use of the enemy flag during at

(15) Use of enemy uniforms and the like during battle, use of the enemy flag during attack by a belligerent vessel.

(16) Violation of enemy individuals furnished with pa.s.sports or safe-conducts, violation of safeguards.

(17) Violation of bearers of flags of truce.

(18) Abuse of the protection granted to flags of truce.

(19) Violation of cartels, capitulations, and armistices.

(20) Breach of parole.

[Footnote 481: Unjustified destruction of neutral prizes--see below, -- 431--is not a war crime, but is nevertheless an international delinquency, if ordered by the belligerent government.]

[Sidenote: Hostilities in Arms by Private Individuals.]

-- 254. Since International Law is a law between States only and exclusively, no rules of International Law can exist which prohibit private individuals from taking up arms and committing hostilities against the enemy. But private individuals committing such acts do not enjoy the privileges of members of armed forces, and the enemy has according to a customary rule of International Law the right to consider and punish such individuals as war criminals. Hostilities in arms committed by private individuals are not war crimes because they really are violations of recognised rules regarding warfare, but because the enemy has the right to consider and punish them as acts of illegitimate warfare. The conflict between praiseworthy patriotism on the part of such individuals and the safety of the enemy troops does not allow of any solution. It would be unreasonable for International Law to impose upon belligerents the duty to forbid the taking up of arms by their private subjects, because such action may occasionally be of the greatest value to a belligerent, especially for the purpose of freeing a country from the enemy who has militarily occupied it. Nevertheless the safety of his troops compels the enemy to consider and punish such hostilities as acts of illegitimate warfare, and International Law gives him a right to do so.

It is usual to make a distinction between hostilities in arms on the part of private individuals against an invading or retiring enemy on the one hand, and, on the other, hostilities in arms committed on the part of the inhabitants against an enemy occupying a conquered territory. In the latter case one speaks of war rebellion, whether inhabitants take up arms singly or rise in a so-called levy _en ma.s.se_. Articles 1 and 2 of the Hague Regulations make the greatest possible concessions regarding hostilities committed by irregulars.[482] Beyond the limits of these concessions belligerents will never be able to go without the greatest danger to their troops.

[Footnote 482: See above, ---- 80 and 81.]

It must be particularly noted that merchantmen of belligerents, which attack enemy vessels without previously having been attacked by them, commit a war crime,[483] and that the captains, officers, and members of the crews may, therefore, be punished as war criminals to the same extent as private individuals who commit hostilities in land warfare.

[Footnote 483: See above, ---- 85 and 181.]

[Sidenote: Espionage and War Treason.]

-- 255. Article 24 of the Hague Regulations now enacts the old customary rule that a belligerent has a right to employ all methods necessary to obtain information, and these methods include espionage and treason. But this right stands face to face with the right to consider and punish as war criminals enemy individuals, whether soldiers or not, committing acts of espionage or treason. There is an irreconcilable conflict between the necessity of obtaining information on the one hand, and self-preservation on the other; and accordingly espionage and treason, as has been explained above in -- 159, bear a twofold character. On the one hand, International Law gives a right to belligerents to make use of espionage and treason. On the other hand, the same law gives a right to belligerents to consider espionage and treason, committed by enemy soldiers or enemy private individuals within their lines, as acts of illegitimate warfare, and consequently punishable.

Espionage has already been treated above in ---- 159-161. War treason may be committed in different ways. The following are the chief cases of war treason that may occur:--

(1) Information of any kind given to the enemy.

(2) Voluntary supply of money, provisions, ammunition, horses, clothing, and the like, to the enemy.

(3) Any voluntary a.s.sistance to military operations of the enemy, be it by serving as guide in the country, by opening the door of a defended habitation, by repairing a destroyed bridge, or otherwise.

(4) Attempt to induce soldiers to desert, to surrender, to serve as spies, and the like, and negotiating desertion, surrender, and espionage offered by soldiers.

(5) Attempt to bribe soldiers or officials in the interest of the enemy, and negotiating such bribe.

(6) Liberation of enemy prisoners of war.

(7) Conspiracy against the armed forces or against individual officers and members of them.

(8) Wrecking of military trains, destruction of the lines of communication or of the telegraphs or telephones in the interest of the enemy, and the destruction of any war material for the same purpose.

(9) Circulation of enemy proclamations dangerous to the interests of the belligerent concerned.

(10) Intentional false guidance of troops by a hired guide or by one who offered his services voluntarily.

(11) Rendering courier or similar services to the enemy.

It must be specially observed that enemy soldiers--in contradistinction to private enemy individuals--may only be punished for war treason when they have committed the act of treason during their stay within a belligerent's lines under disguise. If, for instance, two soldiers in uniform are sent into the rear of the enemy for the purpose of destroying a bridge, they may not, when caught by the enemy, be punished for war treason, because their act was one of legitimate warfare. But if they exchange their uniforms for plain clothes and thereby appear as members of the peaceful private population, they may be punished for war treason. A remarkable case of this kind occurred in the summer of 1904, during the Russo-j.a.panese War. Two j.a.panese disguised in Chinese clothes were caught in the attempt to destroy, with the aid of dynamite, a railway bridge in Manchuria, in the rear of the Russian forces. Brought before a court-martial, they confessed themselves to be Shozo Jakoga, forty-three years of age, a Major on the j.a.panese General Staff, and Teisuki Oki, thirty-one years of age, a Captain on the j.a.panese General Staff. They were convicted, and condemned to be hanged, but the mode of punishment was changed and they were shot. All the newspapers which mentioned this case reported it as a case of espionage, but it is in fact one of war treason. Although the two officers were in disguise, their conviction for espionage was impossible according to article 29 of the Hague Regulations, provided, of course, they were court-martialed for no other act than the attempt to destroy a bridge.

It must be particularly noted that there are many acts of inhabitants which a belligerent may forbid and punish in the interests of order and the safety of his army, although these acts do not fall under the category of war treason, and are not therefore punished as war crimes.

To this cla.s.s belong all acts which violate the orders legitimately decreed by an occupant of enemy territory.[484]

[Footnote 484: See _Land Warfare_, -- 446.]

[Sidenote: Marauding.]

-- 256. Marauders are individuals roving either singly or collectively in bands over battlefields, or following advancing or retreating forces in quest of booty. They have nothing to do with warfare in the strict sense of the term, but they are an unavoidable accessory to warfare and frequently consist of soldiers who have left their corps. Their acts are considered acts of illegitimate warfare, and their punishment takes place in the interest of the safety of either belligerent.

[Sidenote: Mode of Punishment of War Crimes.]

-- 257. All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take the place of capital punishment, the question arises whether such convicts must be released at the end of the war, although their term of imprisonment has not yet expired. Some publicists[485] answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But I believe that the question has to be answered in the negative. If a belligerent has a right to p.r.o.nounce a sentence of capital punishment, it is obvious that he may select a more lenient penalty and carry the latter out even beyond the duration of the war. And it would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would have always to p.r.o.nounce and carry out sentence of capital punishment in the interest of self-preservation.

[Footnote 485: See, for instance, Hall, -- 135, p. 432.]

V

TAKING OF HOSTAGES

Hall, ---- 135 and 156--Taylor, -- 525--Bluntschli, -- 600--Lueder in Holtzendorff, IV. pp. 475-477--Kluber, ---- 156 and 247--G. F.

Martens, II. 277--Ullmann, -- 183--Bonfils, Nos. 1145 and 1151--Pradier-Fodere, VII. Nos. 2843-2848--Rivier, II. p.

302--Calvo, IV. ---- 2158-2160--Fiore, III. Nos. 1363-1364--Martens, II. -- 119--Longuet, -- 84--Bordwell, p. 305--Spaight, pp.

465-470--_Kriegsbrauch_, pp. 49, 50--_Land Warfare_, ---- 461-464.

[Sidenote: Former Practice of taking Hostages.]

-- 258. The practice of taking hostages as a means of securing legitimate warfare prevailed in former times much more than nowadays. It was frequently resorted to in cases in which belligerent forces depended more or less upon each other's good faith, such as capitulations and armistices for instance. To make sure that no perfidy was intended, officers or prominent private individuals were taken as hostages and could be held responsible with their lives for any perfidy committed by the enemy. This practice has totally disappeared, and is hardly likely to be revived. But this former practice must not be confounded with the still existing practice of seizing enemy individuals for the purpose of making them the object of reprisals. Thus, when in 1870, during the Franco-German War, Count Bismarck ordered forty French notables to be seized and to be taken away into captivity as a retaliation upon the French for refusing to liberate the crews of forty captured merchantmen, these forty French notables were not taken as hostages, but were made the object of reprisals.[486]

[Footnote 486: The case has been discussed above in -- 249. All the French writers who comment upon this case make the mistake of referring to it as an instance of the taking of hostages.]

[Sidenote: Modern Practice of taking Hostages.]

-- 259. A new practice of taking hostages was resorted to by the Germans in 1870 during the Franco-German War for the purpose of securing the safety of forces against possible hostile acts on the part of private inhabitants of occupied enemy territory. Well-known men were seized and detained in the expectation that the population would refrain from hostile acts out of regard for the fate of the hostages. Thus, when unknown people frequently wrecked the trains transporting troops, the Germans seized prominent enemy citizens and put them on the engines of trains to prevent the latter from being wrecked, a means which always proved effective and soon put a stop to further train-wrecking. The same practice was resorted to, although for a short time only, by Lord Roberts[487] in 1900 during the South African War. This practice has been condemned by the majority of publicists. But, with all due deference to the authority of so many prominent men who oppose the practice, I cannot agree with their opinion. Matters would be different if hostages were seized and exposed to dangers for the purpose of preventing legitimate hostilities on the part of members of the armed forces of the enemy.[488] But no one can deny that train-wrecking on occupied enemy territory by private enemy individuals is an act which a belligerent is justified in considering and punis.h.i.+ng as war treason.[489] It is for the purpose of guarding against an act of illegitimate warfare that these hostages are put on the engines. The danger they are exposed to comes from their fellow-citizens, who are informed of the fact that hostages are on the engines and who ought therefore to refrain from wrecking the trains. It cannot, and will not, be denied that the measure is a harsh one, and that it makes individuals liable to suffer for acts for which they are not responsible. But the safety of his troops and lines of communication is at stake for the belligerent concerned, and I doubt, therefore, whether even the most humane commanders will be able to dispense with this measure, since it alone has proved effective. And it must further be taken into consideration that the amount of cruelty connected with it is no greater than in reprisals where also innocent individuals must suffer for illegitimate acts for which they are not responsible. And is it not more reasonable to prevent train-wrecking by putting hostages on the engines than to resort to reprisals for wreckage of trains? For there is no doubt that a belligerent is justified in resorting to reprisals[490] in each case of train-wrecking by private enemy individuals.[491]

[Footnote 487: See section 3 of the Proclamation of Lord Roberts, dated Pretoria, June 19, 1900, but this section was repealed by the Proclamation of July 29, 1900. See Martens, _N.R.G._ 2nd Ser. x.x.xII.

(1905), pp. 147 and 149.]

[Footnote 488: _Land Warfare_, -- 463, does not consider the practice commendable, because innocent citizens are thereby exposed to legitimate acts of train-wrecking on the part of raiding parties of armed forces of the enemy.]

[Footnote 489: See above, -- 255, No. 8.]

[Footnote 490: See above, -- 248.]