position from which it would be costly for the larger force to CHAP. dislodge them.1 The rule forbidding the killing of those who have surrendered has been more difficult of application. The practical conditions of a frontal attack have frequently made it impossible for the attacking troops to "take prisoners." The necessity of pushing deeper into the enemy's lines, the difficulty of disposing of those who have surrendered without endangering the rear of the attacking troops, and the practical impossibility for officers to restrain themselves or their men when in the heat of action, have led to numerous exceptions to the general principle. The American Instructions of 1863 recognized the right of a commander to refuse quarter in cases of imperative necessity, when the presence of prisoners would endanger the safety of the army; 2 and the exception is doubtless consistent with international practice. On the other hand, the contrast between the average practice of modern times and the indiscriminate slaughter of the wars of the seventeenth century shows that, admitting the exceptions, the general principle has had an appreciable effect in restraining the conduct of disciplined armies.3 XXVIII of deceit Ruses of war or stratagems are recognized by international The use law as legitimate means of deceiving the enemy, and their cus tomary use is confirmed by the Hague Regulations. Their use, however, is restricted by the condition that they must not involve a violation of good faith. Hence they may not be resorted to in cases where the enemy has been taken off his guard by any of the recognized signs, such as flags of truce or the Red Cross emblem, of a desire to establish communication or to enjoy immunity from attack. Nor may the agents appointed to enter into a parley with the enemy perform any hostile act under cover of their pacific character. A debatable issue is presented by the use of the uniform of the enemy or of his national flag. The Regulations forbid the "improper" use of these emblems, but the vagueness of the pro 1 5 For a discussion of the former attitude of commanding officers toward besieged towns which presumptuously dared to hold out against superior forces when the capture of the fortress was regarded as certain, see Vattel, Droit des Gens (Eng. trans.), Bk. III, § 143; Hall, International Law, § 129, n. For a modern instance see Spaight, War Rights on Land, 99. 2 Instructions, No. 60. See, however, Rules of Land Warfare, No. 183. For instances in illustration of the practical problems presented to attacking forces, see Spaight, op. cit., 91 ff. Art. 24. "Ruses of war and the employment of methods necessary for obtaining information about the enemy and the country are considered lawful.' Art. 23f. It is forbidden "to make improper use of a flag of truce, of the national flag, or of military insignia and uniform of the enemy, as also the distinctive signs of the Geneva Convention.”’ CHAP. Spying hibition would seem to leave the question to be settled by the customary law. Practice has sanctioned the use of the enemy's uniform, taken from the dead or from prisoners, where necessary to relieve a shortage of clothing; but in such cases a distinctive emblem must be used, or alterations made so as to prevent deception. Earlier practice also sanctioned the use of the enemy flag or uniform as a means of drawing him into action and its use as a means of escaping from him. While the latter use would not appear inconsistent with the Regulations, the former is regarded by many writers as being so. The customary rule merely prescribes that in such cases the disguise must be dropped before action commences; but it is pointed out that there is no logic in a rule which permits a belligerent to lure the enemy to a position by a form of deceit which becomes unlawful only when it is too late for the enemy to benefit by the removal of the disguise. By an old customary law, confirmed by the Hague Regulations, it is forbidden "to kill or wound treacherously individuals belonging to the hostile nation or army. Apart from the above cases involving bad faith, deceit is widely used in warfare, and under the name of "strategy" has been the deciding factor of many battles. It may be added that while it was formerly thought by certain writers unlawful to incite the enemy's troops to treason or desertion, practice during the World War discarded any such usage and engaged freely in the attempt to break down the morale of the enemy's troops by propaganda taking various forms. The use of spies in time of war is a measure of recognized legality, notwithstanding the severe penalty inflicted upon the spy if caught by the enemy. Difficulties in international practice have, however, arisen from lack of a sharp distinction between spies, scouts, despatch-bearers, and war traitors. The Hague Regulations follow the customary law in making the essence of spying consist in acting "clandestinely or on false pretenses" with the object of obtaining information in the zone of operations of a belligerent and of communicating it to the enemy. It is further provided that soldiers not in disguise, properly known as "scouts," may For examples in recent wars, see Spaight, op. cit., 106-110. 'See Hall, International Law, § 187; Hyde, International Law, II, § 659. For the use of the enemy's flag at sea, see below, 501. Art. 23b. Vattel quotes the classic instance of the rejection by the Roman consuls of the proposal of the physician of Pyrrhus that he should poison his master. Bk. III, § 155. See Westlake, International Law, 2nd ed., II, 83. 5 Art. 29. 1 XXVIII penetrate the enemy's lines to obtain information without being CHAP. considered spies. So also despatch-bearers, whether soldiers or civilians, are not considered spies if they carry out their mission openly. Persons sent in balloons to deliver despatches or maintain communication between different parts of the army or territory come within the same class. It would appear that soldiers or civilians using air-ships for scouting or similar purposes share the exemption accorded by the Hague Regulations to persons in balloons. Upon the outbreak of the Russo-Japanese War, Russia announced the intention of treating as spies war correspondents who should communicate news to the enemy by wireless telegraphy, but the threat was not carried into effect. The Regulations provide for a trial of spies before punishment, and emphasize the legality of the use of spies by providing that a spy who has escaped and is afterward captured is to be treated as a prisoner of war. The American Rules of Land Warfare emphasize the customary rule that no distinction of sex is made in respect to the penalty inflicted upon spies.* Distinct from the act of spying, which involves acts done by persons in the service of the enemy, is the act of individuals who upon their own initiative secretly communicate with the enemy or otherwise give him aid and comfort. The offense may be committed by either a citizen or a resident alien against the de jure government of the country, or by the inhabitant of an occupied territory against the military occupant. It is a question municipal law what punishment a state may inflict upon its own citizens who hold communication with, or otherwise give aid and comfort to, the enemy; and international law sanctions the same penalties with respect to alien residents of whatever nationality who are guilty of the same acts. The term "war traitor" is applied to the citizens or subjects of an invaded or occupied country who give information to their own expelled government or to the army of their country, or who serve as guides to their own army.5 Custom sanctions the imposition of severe penalties upon war traitors, the death penalty being imposed in cases where the information or aid given to the enemy is of an important character. 1 Art. 29. 'See Hershey, International Law and Diplomacy of the Russo-Japanese War, 115 ff. Art. 30, 31. No. 201. For the case of Edith Cavell, see below, p. 470. 'See U. S. Rules of Land Warfare, Nos. 203-207. War treason CHAP. Case of Edith d. Treatment of prisoners of war Provisions It would appear that the offense committed by the British nurse, Edith Cavell, at Brussels in 1915 was that of war treason, aggravated by the fact that her position as a Red Cross nurse was one of special trust. On the other hand, the aid alleged to have been rendered by her to the enemy appears to have been insignificant in itself, and it bore no relation to the safety of the army of occupation.1 The penalty of death imposed upon her was, therefore, more severe than usage warranted.2 The modern rules of international law with the respect to the treatment to be accorded to prisoners of war stand in marked contrast with the prevailing practice of earlier times. As Grotius. found it, the law of nations authorized the enslavement of prisoners, but the influence of Christianity had moderated the rigor of the law in favor of the alternative practice of holding prisoners for ransom. This latter practice was encouraged by the rule now discarded, that prisoners belonged to the individual or to the army corps which captured them, so that the ransom money went directly to the captors. At times the prisoner was allowed to ransom himself by means of a ransom contract, which, as has been said, formed an exception to the rule with respect to the validity of contracts between enemies. The growing tendency during the second half of the nineteenth century toward the "humanizing" of war led to the formulation, at the Brussels Conference in 1874, of elaborate provisions for the improvement of the condition of prisoners." Finally, the First and Second Hague Conferences incorporated these and other proposals into the Regulations annexed to the Convention respecting the Laws and Customs of War on Land. The Regulations laid down the two general principles that prisoners of war are "in the power of the hostile government" as distinct from that of the individuals or corps which captured them, and that they must be "humanely treated." Further provisions of a most specific character deal with various aspects of the treatment to be accorded them. The captor government obligates itself to maintain them, and accepts as a normal standard of 'For details, see Garner, op. cit., II, §§ 382-386. 'Doubtless the secrecy attending the trial of Miss Cavell and the general policy of intimidation pursued by the German army of occupation in Belgium served to accentuate the severity of the death penalty. 'De Jure Belli et Pacis, Bk. III, Chap. VII. See Walker, History of the Law of Nations, 189 ff. See above, p. 455. For the text of the Brussels Declaration, see Higgins, The Hague Peace Conferences, 273 ff. Art. 4. 3 XXVIII maintenance the food, quarters, and clothing assigned to its own CHAP. troops.1 Prisoners are to retain possession of their property, with the exception of arms, horses, and military papers.2 They may be interned in towns or fortresses, and may be kept in confinement only when the circumstances urgently demand it. They may, with the exception of officers, be put to labor at tasks not connected with the operations of war, and must be paid for their services.* Prisoners are liable to disciplinary punishment in case they show insubordination or attempt to escape. They may be set at liberty on parole provided the laws of their country permit it, in which case their own government assumes an obligation not to require or accept service from them incompatible with the parole given." Provision is made for the establishment by the belligerents of bureaus of information relative to prisoners,' and for the acceptance of the charitable services of relief societies organized in the country to which the prisoner belongs, both of which agencies are granted special privileges for the performance of their duties. These leading rules are accompanied by further detailed provisions for their administration or enforcement. After the conclusion of peace the repatriation of prisoners is to take place with the least possible delay. This subject, however, has been generally provided for in the treaty of peace itself.10 8 11 during the The experience of the World War showed the difficulty of rec- Practice onciling the improved conditions provided for prisoners by the World War Hague Regulations with the exigencies of a state at war. The principle calling for humane treatment appears to have broken down in many cases before the instincts of cruelty aroused by intense national hatreds. The rule imposing upon the belligerent government the obligation of the maintenance of prisoners has been shown to have led to the utilization of their labor beyond the intention of the Hague Regulations. The right to impose disciplinary punishment for insubordination led in certain instances to measures of barbarous severity. Above all, the standard of maintenance in respect to food, clothing, and shelter observed 1 Art. 7. 10 See, for example, Treaty of Paris between the United States and Spain, 1898, Art. VI. Malloy, Treaties, II, 1692. See also, Treaty of Versailles, 1919, Art. 214-224. "Account must be taken of the fact that the Regulations as such were not binding upon the belligerents, but that they represented on the whole the modern usage of states. |