out a sentence of capital punishment in the interest of self-preservation. Former V TAKING OF HOSTAGES Grotius, iii. c. 4, § 14 and c. 11, § 18-Hall, §§ 135, 156-Taylor, § 525Bluntschli, § 600-Lueder in Holtzendorff, iv. pp. 475-477—Klüber, S$ 156, 247-G. F. Martens, ii. § 277-Ullmann, § 183-Bonfils, Nos. 1145 and 1151—Pradier-Fodéré, 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-Breton, Les Non-belligérants: leurs Devoirs, leurs Droits, et la Question des Otages (1904)-Garner, i. §§ 195-201-Kriegsbrauch, pp. 49, 50—Land Warfare, SS 461-464. § 258. The practice of taking hostages, as a means of taking of securing legitimate warfare, prevailed in former Hostages. 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, as, for instance, in the case of capitulations and armistices. 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 it 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, by way of 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.1 1 The case has been discussed above in § 249. All the French writers who comment upon it make the mistake of referring to it as an instance of the taking of hostages. of taking § 259. A new practice of taking hostages was resorted Modern to by the Germans in 1870 during the Franco-German Practice War for the purpose of securing the safety of forces Hostages. against possible hostile acts by 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, a device 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 1 in 1900 during the South African War. It 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. 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 punishing as war treason.3 It is for the purpose of guarding against an act of illegitimate warfare that these hostages are put on the engines. The danger to which they are exposed comes from their fellow-citizens, who are informed that hostages are on 1 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. xxxii. pp. 147, 149. Land Warfare, § 463, does not consider the practice commendable, because innocent citizens are thereby exposed to legitimate acts of trainwrecking on the part of raiding parties of armed forces of the enemy. See above, § 255 (8). the engines, and 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 the troops and lines of communication of the occupying belligerent is at stake, and I doubt, therefore, whether even the most humane commanders will be able to dispense with this measure, since it alone has proved effective. 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. Moreover, is it not more reasonable to prevent train-wrecking by putting hostages on the engines than to resort to reprisals when it has been done? For there is no doubt that a belligerent is justified in resorting to reprisals 1 in each case of train-wrecking by private enemy individuals,2 and no objection is ever raised against his doing so, although it is possible that the train-wrecking was a legitimate act committed by a raiding party of the armed forces of the enemy. During the World War Germany adopted a terrible practice of taking hostages in the territories occupied by her armies, and shooting them when she believed that civilians had fired upon German troops. Garner, after considering the evidence in detail, summarises it in the following words: 'It is clear that the German practice of taking hostages was very general. There is indeed reason to believe that it was resorted to in most of the towns and villages in Belgium and France which fell under their occupation. For the most part, the pur warfare; see above, § 116, p. 175, n. 2, and § 170, p. 241, n. 5. The Hague Regulations do not mention the taking of hostages for any pur. pose. pose was to ensure the good behaviour of the inhabitants and strict obedience to the German authority. . . The hostages were sometimes stationed on bridges to ensure the latter against destruction; sometimes they were assembled on the public square; frequently they were marched in front of the German columns to protect the latter against attack, and the like. Considerable numbers were shot.'1 VI COMPENSATION Bonfils, No. 10261-Despagnet, No. 510 bis-Lémonon, pp. 344-346-Higgins, pp. 260-261-Scott, Conferences, p. 528-Nippold, ii. § 24-Boidin, pp. 83-84-Spaight, p. 462-Holland, War, No. 19-Land Warfare,'§ 436Hofer, Der Schadenersatz im Landkriegsrecht (1913)—Schoen, Die völkerrechtliche Haftung der Staaten aus unerlaubten Handlungen (1917), pp. 92-94 and 122-143-Garner, ii. § 580-Fauchille in R. G., xxiii. (1916), pp. 280-297-Pic, ibid., pp. 243-268-Mérignhac in R.G., xxiv. (1917), p. 8. Principle for Viola the Laws 259a. There is no doubt that, if a belligerent can How the be made to pay compensation for all damage done by of Com him in violating the laws of war, this will be an indirect pensation means of securing legitimate warfare. In former times tions of no rule existed which stipulated such compensation, of War although, of course, violation of the laws of war was arose. always an international delinquency. On the contrary, it was an established customary rule 2 that claims for reparation for damages caused by violations of the rules of legitimate warfare could not be raised after the conclusion of peace, unless the contrary was expressly stipulated. It was not until the Second Hague Conference that matters underwent a change. In revising Compensation for Violations of the Hague Regulations. the Convention concerning the Laws and Customs of War on Land, besides other alterations, it adopted a new article (3) which enacts that a belligerent who violates the provisions of the Hague Regulations, shall, if the case demand, be liable to make compensation, and that he shall be responsible for all acts committed by persons forming part of his armed forces. Germany, on whose initiative this principle was adopted, proposed two articles concerning the matter, the one dealing with the payment of compensation for violations of the Hague Regulations with regard to subjects of neutral States,1 and the other for violations of these Regulations with regard to enemy subjects. The conference, however, preferred to make no distinction between the different cases of violation, but to adopt the general principle. § 2596. It is apparent that Article 3 of Convention IV. enacts two different rules: (1) that a belligerent who violates the Hague Regulations shall, if the case demand, pay compensation; (2) that a belligerent is responsible for all acts committed by any persons forming part of his armed forces. To take this second rule first, the responsibility of a State for internationally illegal acts on the part of members of its armed forces is, provided the acts have not been committed by its command or authorisation, only a vicarious responsibility, but nevertheless it must, as was pointed out above, pay damages for these acts when required. For this reason, Article 3 did not create a new rule in so far as it enacted that belligerents must pay for damage caused by members of their forces. On the other hand, the rule that compensation must be paid by belligerents for damage done through violations of the Hague Regulations, was a new rule, at any rate in so far as it is laid down in a general way. |