ART. III. After due notice has been given, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced, if the local authorities, after a formal summons has been made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force before the place in question.

These requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in cash; if not, they shall be evidenced by receipts.

Requisitions. Military execution.-As is the case with the land forces, so with the naval forces it is proper to resort to bombardment as a penalty for not furnishing requisitions. This article should be carefully compared with H LII. The form of the second paragraph is in accord with Article LII of the old convention and does not prescribe as H LII does, that the "payment of the amount due shall be made as soon as possible."

ART. IV. Undefended ports, towns, villages, dwellings or buildings may not be bombarded on account of failure to pay money contributions.

Money contributions by naval forces forbidden.—Here naval warfare differs from that on land. In certain cases money contributions may be exacted by military forces," and in those cases they may be enforced by the bombardment of undefended towns, but the reasons for allowing contributions by land forces do not apply to naval forces. The latter would be too much of the nature of ransoms from pillage.

ART. V. In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific or charitable purposes, historic monuments, hospitals and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edifices or places by visible signs, which shall consist of large stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white.

16 See infra, p. 314.

Improvement over land convention.-Compare H XXVII. The specification of the kind of sign to be used is a great improvement.

ART. VI. If the military situation permits, the commander of the attacking naval force, before commencing the bombardment must do his utmost to warn the authorities.

Compare H XXVI. As already pointed out, the proviso, "if the military situation permits," might well be substi tuted in H XXVI for "except in cases of assault."

ART. VII. A town or place, even when taken by storm, may not be pillaged.

Compare H XXVIII.

H XXVIII. The pillage of a town or place, even when taken by assault, is prohibited.

Towns taken by assault not to be pillaged. The pillage of a town taken by assault and the refusal of quarter to its defenders, especially where there had been an obstinate resistance, had seemed to be so unavoidable as to have been recognized. in times past as legitimate, even when it was regretted. So well established was the old rule that it was deemed necessary to have this special article in addition to the later article prohibiting pillage in general.

H XXIX. A person can only be considered a spy when, acting clandestinely or on false pretenses, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory.

Seeking information within the lines of the enemy clandestinely the essence of spying.-By a soldier not in disguise is meant a soldier in uniform. It was urged at Brussels that, so long as a soldier is capable of identification as such, he should be entitled to the benefit of the second paragraph since it is to be presumed that he is acting with

honorable motives, and therefore should not be subject to the same treatment as the professional spy. But it was the opinion of the Conference that the act should be looked to and not the motive." The Conference appeared to regard spies generally as scamps, who deserve the treatment they get.

Balloonists not spies.-As acting secretly is, by the first paragraph, made one of the essentials of spying, balloonists cannot be considered as spies, even if they do not come within the terms of the example given in the second paragraph and are not carrying despatches, but are engaged in observing the positions and movements of the enemy." H XXX. A spy taken in the act shall not be punished without previous trial.

A spy has a right to trial.—This principle should be applied in every case where penalties are inflicted under the laws of war.

H XXXL A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

Spying wiped out by successful termination.-Spying is one of those acts which are not contrary to the laws of war, but which may be of great injury to a belligerent, and which he may therefore punish if he can catch the offender in the act. The principle is, "Catch me if you can; but if you can't, you have no right to punish me." 17 Protocol 4 of the Full Conference.

NONHOSTILE INTERCOURSE OF BELLIGERENTS.

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CHAPTER VIL

NONHOSTILE INTERCOURSE OF BELLIGERENTS.

H XXXII. A person is regarded as bearing a flag of truce who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.

H XXXIII. The commander to whom a flag of truce is sent is not in all cases obliged to receive it.

He may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information.

In case of abuse, he has the right to detain the envoy temporarily..

The flag of truce not to be misused. The provisions of this article are necessary to prevent the flag of truce from being used either to gain time, or to deprive the enemy of an advantage, or to discover his movements. If the bearer of a flag of truce presents himself during an engagement, the enemy is not obliged to forego an advantage which he is about to gain and instantly to cease firing, and if the bearer of the flag of truce is accidentally injured no blame is incurred by the other belligerent.

"If the flag proceeds from the enemy's lines during a battle, the ranks which it leaves must halt and cease their fire. When the bearer displays his flag, he will be sig nalled by the opposing force, either to advance or to retire; if the former, the forces he approaches will cease firing; if the latter, he must instantly retire, for, if he should not, he may be fired upon."

Declaration not to receive flag of truce for fixed period disapproved of.-The Brussels Declaration contained a provision recognizing the right of a commander to refuse to receive the bearer of flags of truce for a fixed period, but at The Hague it was thought that this was a practice to be regarded with disfavor and the provision was dropped.

1 Halleck, International Law, II, p. 334.

The bearer of a flag of truce may be blindfolded.—The bearer of a flag of truce may be blindfolded and prevented from holding communication with persons other than those designated to conduct negotiations, in order to prevent his obtaining information.

H XXXIV. The envoy loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treachery.

H XXXV. Capitulations agreed upon between the contracting parties must take into account the rules of military honour. Once settled, they must be scrupulously observed by both parties.

Powers of a commander with respect to capitulations.— The terms of a capitulation may vary from the absolute surrender of a place or of a body of troops to the grant of "all the honors of war," including the right to march out with colors flying and drums beating. Where there has been no express delegation of powers, the grant of more favorable terms than these is beyond the powers of a commander, and if his government refuses to ratify the capitulation there can be no occasion for charges of bad faith or double-dealing. There is less likelihood of a commander's acting in excess of his powers today, however, than there was formerly, as he is likely to keep in close touch with his government by telegraph.

Property not to be destroyed between the signing and execution of capitulations.-The American Instructions, Article 144, provide: "So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores or ammunition in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same."

H XXXVI. An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.

Use of the terms, suspension of arms, truce and armistice. * Halleck, International Law, II, pp. 319–320.