tion after the war, without compensation, or be requisitioned, or even destroyed, on payment of compensation, so long as provision is made for the safety of the persons on board, and the security of the ship's papers. It is obvious that, in case such vessels are not ignorant of the outbreak of war-having, for instance, received the news by wireless telegraphy-they may not any longer claim the privileges stipulated by Article 3. And this article stipulates expressly that, after having touched a port of their own or of a neutral country, such vessels are no longer privileged. (2) This article applies also to enemy cargo on board such vessels. (3) It does not apply to merchant ships which by their construction show that they are intended for conversion into war vessels. Germany and Russia entered reservations against this article; consequently the British and French 2 Prize Courts condemned German vessels, and the German 3 Prize Court condemned a Russian vessel, captured at sea while still ignorant of the outbreak of war. 1 The Marie Glæser, (1914) 1 B. and C. P. C. 38, [1914] P. 218; The Perkeo, (1914) 1 B. and C. P. C. 136. The Porto, and other cases cited by Garner, i. § 113. The Fenix, Z.I., ix. (1915), p. 103; A.J., x. (1916), p. 909. Aims and CHAPTER III WARFARE ON LAND I ON LAND WARFARE IN GENERAL Vattel, iii. §§ 136-138-Hall, §§ 184-185-Phillimore, iii. § 94-Taylor, § § 103. The purpose of war, namely, the overpowering Land of the enemy, is served in land warfare through two Warfare. aims 1-first, 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. § 104. But to use the words of Article 22 of the Hague Regulations- the belligerents have not an 1 Aims of land warfare must not be confounded with ends of war; see above, § 66. and of Land unlimited right as to the means they adopt for injuring Lawful the enemy.' For not all possible practices of injuring Unlawful the enemy in offence and defence are lawful, certain Practices practices being prohibited under all circumstances and Warfare. 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 for many hundreds of years to create these restrictions, and their work is not yet at an end.1 However, apart from these restrictions, all kinds and degrees of force, and many other practices, may be made use of in war. of the Warfare. § 105. In a sense, all means of warfare are directed Objects against one object only-namely, the enemy State, Means of which is to be overpowered by all legitimate means. Apart from this, the means of land warfare are directed against several objects. 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 promoting the realisation of the purpose of war. Warfare in contra tion to Sea § 106. Land warfare must be distinguished from sea Land warfare chiefly for two reasons. First, their circumstances and conditions differ widely, and, therefore, distinctheir means and practices also differ. Secondly, the Warfare. law-making conventions which deal with warfare rarely deal with land and sea warfare at the same time, but generally treat them separately. Thus, whereas some conventions deal exclusively with warfare on sea, the 1 See, however, above, § 67. 2 See Oppenheim, Die Objekte des Verbrechens (1894), pp. 64-146, where Hague Regulations (Convention IV.) deal exclusively with warfare on land. On in general II VIOLENCE AGAINST ENEMY PERSONS Grotius, iii. c. 4 and c. 11-Vattel, iii. §§ 139-159-Hall, §§ 128, 129, 185Westlake, ii. pp. 76-83-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-Hershey, Nos. 375380-Taylor, §§ 477-480-Walker, § 50-Wheaton, §§ 343-345-Bluntschli, §§ 557-563-Heffter, § 126-Lueder in Holtzendorff, iv. pp. 390394-Gareis, § 85-Klüber, § 244-Liszt, § 40, iii.-G. F. Martens, ii. § 272-Ullmann, § 176-Bonfils, Nos. 1068-1071, 1099, 1141-Despagnet, Nos. 525-527-Mérignhac, iiia. pp. 240-270-Pradier-Fodéré, vi. Nos. 2742-2758-Rivier, ii. pp. 260-265-Nys, iii. pp. 144-148-Calvo, iv. §§ 2098-2105-Fiore, iii. Nos. 1317-1320, 1342-1348, and Code, Nos. 14811488-Martens, ii. § 110-Longuet, §§ 42-49-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-Garner, i. §§ 175-190-Schultze in Z.I., xxvii. (1918), pp. 1-39. § 107. As war is a contention between States for Violence the purpose of overpowering each other, violence conagainst sisting of different sorts of force applied against enemy Enemy Persons. persons is the chief and decisive means of warfare. These different sorts of force are used against both combatants and 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 killing or wounding them, or making them prisoners. But to 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. and Com § 108. Every combatant may be killed or wounded, Killing whether a private soldier or an officer, or even the Woundmonarch or a member of his family. Some publicists 1 ing of assert that it is a usage of warfare not to aim at a sove- batants. reign or a member of his family. Be that as it may, there is in strict law 2 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, combatants disabled by sickness or wounds may not be killed. Further, such combatants as lay down their 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 3 forget and neglect them. Quarter. § 109. However, the rule that quarter must be given Refusal of has 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 to members of a force who continue to fire after having hoisted the white flag as a sign of surrender; further, by way of reprisal 4 for violations of the rules of warfare committed by the other side; and, thirdly, in case of imperative necessity, when the 1 See Klüber, § 245; G. F. Martens, ii. § 278; Heffter, § 126. 2 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 3 See Baty, International Law in See Pradier-Fodéré, vii. Nos. 2800-2801, who opposes this principle, but discusses the subject in a very detailed way; and Spaight, p. 89. |