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Killing

granting of quarter would so encumber a force with prisoners that its own security would thereby be vitally imperilled.1 But it may well be doubted whether under modern conditions of civilised warfare such a case of imperative necessity can ever arise, and it must be emphasised that the mere fact that numerous prisoners cannot safely be guarded and fed 2 by the captors, or that prisoners might regain their liberty through an impending success of their own army, does not justify a refusal of quarter unless vital danger to the captors is involved. The former rules that 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 a weak garrison which obstinately and uselessly persevered in defending a fortified place against overwhelming enemy forces, are now obsolete.

Lawful § 110. As already mentioned, Article 22 of the Hague Unlawful Regulations stipulates expressly that the right of Means of belligerents to adopt means of injuring the enemy is not and unlimited. Some means are expressly prohibited by ing Com treaties; others are condemned by custom. But apart batants. from those expressly prohibited by treaties or by custom,

Wound

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 are swords and rifles, or against large bodies of individuals, as are, for instance, shrapnel, Gatlings, and mines. On the other hand, all means are unlawful that render death inevitable 3 or that needlessly aggravate the sufferings of wounded combatants. A customary rule of International Law, also expressly enacted by Article 23(e) of the Hague Regulations, prohibits, therefore,

1 See Payrat, Le Prisonnier de Guerre (1910), pp. 191-220, and Land Warfare, § 80.

2 Accordingly, the Boers frequently during the South African War set

free British soldiers whom they had captured.

There are indications in the author's manuscript that he had intended to reconsider this statement.

the employment of poison and of such arms, projectiles, and material1 as cause unnecessary injury.2 Accordingly wells, pumps, rivers, and the like from which the enemy draws drinking water must not be poisoned; 3 poisoned weapons must not be made use of; 4 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, also 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.

Bullets.

§ 111. In 1868 a conference met at St. Petersburg Explosive for the examination of a proposition made by Russia with regard to the use of explosive projectiles in war. The representatives of seventeen Powers signed, on December 11, 1868, the so-called Declaration of St. Petersburg, which stipulates that the signatory Powers,

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it must be condemned. See Parl.
Papers, Cd. 8306, pp. 74-78, and
Garner, i. § 190.

4 The diffusion of poisonous and
asphyxiating gases from cylinders or
otherwise than by projectiles (which
is discussed below, § 113)-a practice
instituted by the Germans during the
World War (see details in Garner,
i. §§ 180-183)—whether or not within
the prohibition of the use of 'poison
or poisoned weapons' contained in
Article 23(a) of the Hague Regula-
tions (as to which the author had
expressed no opinion), was illegal
because it exposed combatants to
unnecessary suffering.

See above, vol. i. § 562, and
Martens, N.R.G., xviii. p. 474.

and those who should accede later, renounce in case of war between themselves the employment, by their military and naval forces, 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 so in case a non-contracting Power takes part in a war between any of the contracting Powers.

Expand- § 112. As Great Britain had introduced bullets manuing (Dum-factured at the Indian arsenal of Dum-Dum, near Dum) Bullets. 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 Conference adopted a declaration, signed on July 29, 1899, by fifteen Powers, stipulating that they 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.1

Pro

jectiles

§ 113. The First Hague Conference also adopted a diffusing declaration, signed on July 29, 1899, by sixteen States, Asphyxia- stipulating that the signatory Powers should, in a war Deleteri- between two or more of them, abstain from the use of ous Gases. projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.2

ting or

Violence § 114. The First Hague Conference had adopted likedirected wise a declaration, signed on July 29, 1899, prohibiting Vessels. for a term of five years the launching of projectiles or

from Air

1 During the World War the belligerents charged one another with using these bullets. See details in Garner, i. § 177, who considers that (§ 178) 'the evidence at hand

does not indicate that any general use of [this type of bullet] was authorised by any belligerent,

or that it was in fact used except perhaps in occasional instances.'

2

During the World War, however, Germany introduced such shells, and her adversaries also used them by way of reprisals. See details in Garner, i. § 188.

explosives from balloons or other kinds of aerial vessels. The Second Hague Conference, on October 18, 1907, had renewed this declaration up to the close of the Third Hague Conference, but out of twenty-seven States which signed it only a few-(among them Great Britain and the United States of America)-had ratified it before the World War, and Germany, France, Italy, Japan, Russia-not to mention smaller Powers-did not even sign it. When the World War broke out, not one of the Central Powers had ratified the declaration; its provisions were not binding, and were not observed.1

against

Members

Forces.

§ 115. It will be remembered 2 that numerous indi- Violence viduals belong to armed forces without being com- Non-Combatants. Now, since and in so far as these non-com- batant batant members of armed forces do not take part of Armed 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 3 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.

against

Persons.

§ 116. Whereas in former 4 times private enemy Violence persons of either sex could be killed or otherwise badly Private treated according to discretion, and whereas in especial Enemy 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

1 See below, § 214a.

2 See above, § 79.

3 See below, § 121.

4 See Grotius, iii. c. 4, §§ 6, 9.

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.

As regards captivity, the rule is that private enemy persons may not be made prisoners of war.1 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.2

But if a levy en masse is not threatening, an occupant has no right to take into captivity 3 private enemy individuals of military age, although, of course, he can resort to measures of restraint to prevent them from escaping and joining the forces of the enemy, and can punish them if they attempt to do so.

Apart from captivity, restrictions of all sorts may

1 This statement refers only to the treatment of private enemy individuals by an invader and has no reference to enemy subjects found by a belligerent on his own territory at the outbreak of war. See above, $ 100.

2 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 n. (a).

3 When in 1914, during the World War, the Germans took into captivity all men of military age in Belgium and the occupied part of France, Great Britain and France resorted to reprisals. See below, § 413, and Wehberg, p. 315.

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