Exchanges of prisoners take place—number for number—rank for rank—wounded for wounded—with added condition for added condition—such, for instance, as not to serve for a certain period.
106
In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of superior rank as may be agreed upon by cartel, which requires the sanction of the government, or of the commander of the army in the field.
107
A prisoner of war is in honor bound truly to state to the captor his rank; and he is not to assume a lower rank than belongs to him, in order to cause a more advantageous exchange, nor a higher rank, for the purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the commanders of released prisoners, and may be good cause for refusing to release such prisoners.
108
The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the payment of a stipulated sum of money, or, in urgent cases, of provision, clothing, or other necessaries.
Such arrangement, however, requires the sanction of the highest authority.
109
The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange prisoners of war.
A cartel is voidable as soon as either party has violated it.
110
No exchange of prisoners shall be made except after complete capture, and after an accurate account of them, and a list of the captured officers, has been taken.
111
The bearer of a flag of truce can not insist upon being admitted. He must always be admitted with great caution. Unnecessary frequency is carefully to be avoided.
112
If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle.
113
If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever.
114
If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy.
115
It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement.
116
Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they may be spared.
An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit.
117
It is justly considered an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause for refusing to respect such flags.
118
The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as much as possible.
SECTION VII
The Parole
119
Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole.
120
The term "Parole" designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor.
121
The pledge of the parole is always an individual, but not a private act.
122
The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live in greater freedom within the captor's country or territory, on conditions stated in the parole.
123
Release of prisoners of war by exchange is the general rule; release by parole is the exception.
124
Breaking the parole is punished with death when the person breaking the parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by the belligerents.
125
When paroles are given and received there must be an exchange of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated.
126
Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach.
127
No noncommissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individuals giving them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer.
128
No paroling on the battlefield; no paroling of entire bodies of troops after a battle; and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is permitted, or of any value.
129
In capitulations for the surrender of strong places or fortified camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged.
130
The usual pledge given in the parole is not to serve during the existing war, unless exchanged.
This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed.
131
If the government does not approve of the parole, the paroled officer must return into captivity, and should the enemy refuse to receive him, he is free of his parole.
132
A belligerent government may declare, by a general order, whether it will allow paroling, and on what conditions it will allow it. Such order is communicated to the enemy.
133
No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belligerent.
134
The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them.
SECTION VIII
Armistice—Capitulation
135
An armistice is the cessation of active hostilities for a period agreed between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties.
136
If an armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along the front of both belligerents.
If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other.
137
An armistice may be general, and valid for all points and lines of the belligerents; or special, that is, referring to certain troops or certain localities only.
An armistice may be concluded for a definite time; or for an indefinite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other.
138
The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no way affect the character of the armistice itself.
139
An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive official information of its existence.
140
Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for.
141
It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be allowed, if any.
If nothing is stipulated the intercourse remains suspended, as during actual hostilities.
142
An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.
143
When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this subject that the besieger must cease all extension, perfection, or advance of his attacking works as much so as from attacks by main force.
But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties.
144
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.
145
When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it.
146
Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice.
147
Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without any abatement.
SECTION IX
Assassination
148
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.
SECTION X
Insurrection—Civil War—Rebellion
149
Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view.
150
Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portion of the state are contiguous to those containing the seat of government.
151
The term "rebellion" is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their own.
152
When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.
153
Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.
154
Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.
155
All enemies in regular war are divided into two general classes—that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government.
The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto.
156
Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war as much as the common misfortune of all war admits.
The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.
Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has the right to decide.
157
Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason.
APPENDIX II
MANUAL OF THE LAWS OF WAR ON LAND
PREPARED BY THE INSTITUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED AT ITS MEETING AT OXFORD ON SEPTEMBER 9, 1880[496]
PART I. GENERAL PRINCIPLES
1. The state of war admits of the performance of acts of violence on the part only of the armed forces of the belligerent states.
Persons not forming part of a belligerent armed force must abstain from the performance of such acts.
A distinction being implied in the above rule between the individuals of whom the armed force of a state is composed and other subjects of a State, it becomes necessary to define an "armed force."
2. The armed force of a state comprehends—
§ 1. The army properly so called, including militia.
§ 2. National Guards Landsturm, and all corps which satisfy the following requirements:
(a) That of being under the direction of a responsible leader.
(b) That of wearing a uniform or a distinctive mark, which latter must be fixed, and capable of being recognized at a distance.
(c) That of bearing arms openly.
§ 3. Crews of vessels of war, and other members of the naval forces of the country.
§ 4. Inhabitants of a territory not militarily occupied by the enemy, who, on the approach of his army, take up arms spontaneously and openly for the purpose of combating it. Such persons form part of the armed force of the State, even though, owing to want of time, they have not organized themselves militarily.
3. Every belligerent armed force is bound to conform to the laws of war.
The sole object during war to which states can legitimately direct their hostilities being the enfeeblement of the military strength of the enemy. (Declaration of St. Petersburg of the 4/16th November, 1868.)
4. The laws of war do not allow belligerents an unlimited freedom of adopting whatever means they may choose for injuring their enemy. Especially they must abstain from all useless severity, and from disloyal, unjust, or tyrannical acts.
5. Military conventions made between belligerents during war—such as armistices and capitulations—must be scrupulously observed and respected.
6. No invaded territory is considered to be conquered until war is ended. Until then the occupying state only exercises a de facto control of an essentially provisional nature.
PART II. APPLICATION OF THE GENERAL PRINCIPLES
I. Of Hostilities
A. RULES OF CONDUCT WITH RESPECT TO PERSONS
(a) Of the inoffensive population
Acts of violence being permissible only between armed forces (Art. 1),
7. It is forbidden to maltreat the inoffensive portion of the population.
(b) Of means of injuring the enemy
Loyalty of conduct being enjoined (Art. 4),
8. It is forbidden:—
(a) To employ poison in any form.
(b) To endeavor to take the life of an enemy in a traitorous manner,—e.g. by employing assassins, or by simulating surrender.
(c) To attack the enemy while concealing the distinctive marks of an armed force.
(d) To make improper use of the national flag, of signs of military ranks, or of the uniform of the enemy, of a flag of truce, or of the protective marks prescribed by the Convention of Geneva. (See Arts. 17 and 40.)
It being obligatory to abstain from useless severities (Art. 4),
9. It is forbidden:—
(a) To use arms, projectiles, or substances calculated to inflict superfluous suffering, or to aggravate wounds, particularly projectiles which, being explosible, or charged with fulminating or inflammable substances, weigh less than four hundred grams. (Declaration of St. Petersburg.)[497]
(b) To mutilate or kill an enemy who has surrendered at discretion, or is disabled, and to declare that quarter will not be given, even if the force making such declaration does not claim quarter for itself.
(c) Of wounded, sick, and the hospital staff
The wounded, the sick, and the hospital staff are exempted from unnecessary severities, which might otherwise touch them, by the following rules (Arts. 10 to 18), drawn from the Convention of Geneva.
10. Wounded and sick soldiers must be brought in and cared for, to whatever nation they belong.
11. When circumstances permit, officers commanding in chief, immediately after a combat, may send in enemy soldiers wounded during it to the advanced posts of the enemy, with the consent of the latter.
12. The operation of moving sick and wounded is a neutral act, and the staff engaged in it is neutral.
13. The staff of the hospitals and ambulances—namely, surgeons, clerks, hospital orderlies, and other persons employed in the sanitary, administrative, and transport departments, as well as chaplains, and members and agents of societies duly authorized to assist the official hospital staff—is considered to be neutral while exercising its functions, and so long as there are wounded to remove or succor.
14. The staff specified in the preceding Article must continue after occupation by an enemy has taken place to give its attention to the sick and wounded, to such extent as may be needful, in the ambulance or hospital which it serves.
15. When such staff applies for leave to retire, it falls to the officer commanding the occupying troops to fix the date of departure. After request, however, has been made, the departure of the staff can only be postponed for a short time, and for reasons of military necessity.
16. Measures must, if possible, be taken to secure to the neutralized staff fitting maintenance and allowance when it falls into the hands of the enemy.
17. The neutralized hospital staff must wear a white armlet with a red cross on it. The armlet can be issued only by the military authorities.
18. It is the duty of the generals of the belligerent Powers to appeal to the humanity of the inhabitants of the country in which they are operating, for the purpose of inducing them to succor the wounded, pointing out to them at the same time the advantages which result to themselves therefrom (Arts. 36 and 59). Those who respond to any such appeal are entitled to special protection.
(d) Of the dead
19. It is forbidden to strip and mutilate the dead lying on the field of battle.
20. The dead must never be buried before such indications of their identity (especially "livrets, numeros," etc.) as they may have upon them have been collected. The indications thus gathered upon enemy dead are communicated to their army or government.
(e) Who can be made prisoners of war
21. Persons forming part of the armed force of belligerents, on falling into the power of the enemy, must be treated as prisoners of war, conformably to Article 61, and those following it.
This rule applies to messengers openly carrying official dispatches, and to civil aëronauts employed to observe the enemy or to keep up communication between different parts of the army or territory.
22. Persons who follow an army without forming part of it, such as correspondents of newspapers, sutlers, contractors, etc., on falling into the power of the enemy, can only be detained for so long a time as may be required by military necessity.
(f) Of spies
23. Persons captured as spies cannot demand to be treated as prisoners of war.
But
24. Persons belonging to a belligerent armed force are not to be considered spies on entering, without the cover of a disguise, within the area of the actual operations of the enemy. Messengers, also, who openly carry official dispatches, and aëronauts (Art. 21) are not to be considered spies.
To guard against the abuses to which accusations of acting as a spy give rise in time of war, it must clearly be understood that
25. No person accused of being a spy can be punished without trial.
It is moreover admitted that
26. A spy who succeeds in quitting a territory occupied by the enemy, cannot be held responsible for acts done before so leaving, if he afterwards falls into the enemy's hands.
(g) Of flags of truce
27. A person who is authorized by one of the belligerents to enter communication with the other belligerent, and presents himself to the latter with a white flag, is inviolable.
28. He may be accompanied by a trumpeter or drummer, by a flag-bearer, and, if necessary by a guide, and an interpreter, all of whom are also inviolable.
The necessity of this privilege is evident, especially as its exercise is frequently required in the simple interests of humanity. It must not, however, be so used as to be prejudicial to the opposite party.
Hence,
29. The commander to whom a flag of truce is sent is not obliged to receive its bearer under all circumstances.
Besides,
30. The commander who receives a flag of truce has the right to take all necessary measures to prevent the presence of an enemy within his lines from being prejudicial to him.
The bearer of a flag of truce, and those who accompany him, are bound to act with good faith toward the enemy who receives them (Art. 4).
31. If the bearer of a flag of truce abuse the confidence which is accorded to him, he may be temporarily detained; and if it be proved that he has made use of his privileges to suborn to traitorous practices, he loses his right of inviolability.
B. RULES OF CONDUCT WITH REGARD TO THINGS
(a) Of the means of exercising violence. Of bombardment
Mitigations of the extreme rights of violence are necessarily consequent upon the rule that useless severity shall not be indulged in (Art. 4). It is thus that
32. It is forbidden
(a) To pillage, even in the case of towns taken by assault.
(b) To destroy public or private property, unless its destruction be required by an imperative necessity of war.
(c) To attack and bombard undefended places.
The right of belligerents to have recourse to bombardment against fortresses and other places in which the enemy is intrenched is not contestable, but humanity requires that this form of violence shall be so restrained as to limit as much as possible its effects to the armed forces of the enemy and to their defenses.
Hence,
33. The commander of an attacking force must do everything in his power to intimate to the local authorities his intention of bombarding, before the bombardment commences, except when bombardment is coupled with assault.
34. In cases of bombardment, all necessary measures ought to be taken to spare, so far as possible, buildings devoted to religion, the arts, sciences, and charity, hospitals, and places in which sick and wounded are kept; provided always that such buildings are not at the same time utilized, directly or indirectly, for defense.
It is the duty of the besieged to indicate these buildings by visible signs, notified to the besieger beforehand.
(b) Of the sanitary matériel
The rules (Arts. 10 and those following) for the protection of the wounded would be insufficient if special protection were not also given to hospitals. Consequently, in accordance with the Convention of Geneva,
35. The ambulances and hospitals used by armies are recognized as being neutral, and must be protected and respected as such by the belligerents, so long as there are sick and wounded in them.
36. A like rule applies to private buildings, or parts of private buildings, in which sick and wounded are collected and cared for.
Nevertheless,
37. The neutrality of ambulances and hospitals ceases to exist if they are guarded by a military force, a police post being alone permissible.
38. The matériel of military hospitals remains subject to the laws of war; persons attached to the hospitals can only, therefore, carry away their private property on leaving. Ambulances, on the other hand, preserve their matériel.
39. Under the circumstances contemplated in the foregoing paragraph, the term "ambulance" is applicable to field hospitals and other temporary establishments which follow the troops to the field of battle for the purpose of receiving sick and wounded.
40. A distinctive flag and uniform, bearing a red cross upon a white ground, is adopted for hospitals, ambulances, and things and persons connected with the movement of sick and wounded. It must always be accompanied by the national flag.
II. Of Occupied Territory
A. DEFINITION
41. A territory is considered to be occupied when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists.
B. RULES OF CONDUCT WITH REGARD TO PERSONS
Since new relations arise from the provisional change of government,
42. It is the duty of the occupying military authority to inform the inhabitants of the occupied territory as soon as possible of the powers which it exercises, as well as of the local extent of the occupation.
43. The occupier must take all measures in his power to reëstablish and to preserve public order.
With this object
44. The occupier must, so far as possible, retain the laws which were in vigor in the country in time of peace, modifying, suspending, or replacing them only in case of necessity.
45. The civil functionaries of every kind who consent to continue the exercise of their functions are under the protection of the occupier. They may be dismissed, and they may resign at any moment. For failing to fulfill the obligations freely accepted by them, they can only be subjected to disciplinary punishment. For betraying their trust, they may be punished in such manner as the case may demand.
46. In emergencies the occupier may require the inhabitants of an occupied district to give their assistance in carrying on the local administration.
As occupation does not entail a change of nationality on the part of the inhabitants,
47. The population of an occupied country cannot be compelled to take an oath of fidelity or obedience to the enemy's power. Persons doing acts of hostility directed against the occupier are, however, punishable (Art. 1).
48. Inhabitants of an occupied territory who do not conform to the orders of the occupier can be compelled to do so.
The occupier cannot, however, compel the inhabitants to assist him in his works of attack or defense, nor to take part in military operations against their own country (Art. 4).
Moreover,
49. Human life, female honor, religious beliefs, and forms of worship must be respected. Interference with family life is to be avoided (Art. 4).
C. RULES OF CONDUCT WITH RESPECT TO THINGS
(a) Public property
Although an occupier, for the purpose of governing the occupied territory, takes the place, in a certain sense, of the legitimate government, he does not possess unrestricted powers. So long as the ultimate fate of the territory is undecided—that is to say, until the conclusion of peace—the occupier is not at liberty to dispose freely of such property of his enemy as is not immediately serviceable for the operations of war.
Hence,
50. The occupier can appropriate only money and debts (including negotiable instruments) belonging to the State, arms, stores, and, in general, such movable property of the State as can be used for the purposes of military operations.
51. Means of transport (State railways and their rolling stock, State vessels, etc.), as well as land telegraphs and landing cables, can only be sequestrated for the use of the occupier. Their destruction is forbidden, unless it be required by the necessities of war. They are restored at the peace in the state in which they then are.
52. The occupier can only enjoy the use of, and do administrative acts with respect to immovable property, such as buildings, forests, and agricultural lands belonging to the enemy State (Art. 6).
Such property cannot be alienated, and must be maintained in good condition.
53. The property of municipal and like bodies, that of religious, charitable, and educational foundations, and that appropriated to the arts and sciences, are exempt from seizure.
All destruction or intentional damage of buildings devoted to the above purposes, of historical monuments, of archives, and of works of art or science, is forbidden, unless it be imperatively demanded by the necessities of war.
(b) Private property
If the powers of an occupier are limited with respect to the property of the enemy state, a fortiori they are limited with respect to the property of private persons.
54. Private property, whether held by individuals or by corporations, companies, or other bodies, must be respected, and cannot be confiscated except to the extent specified in the following Articles.
55. Means of transport (railways and their rolling stock, vessels, etc.), telegraphs, stores of arms and munitions of war, may be seized by the occupier, notwithstanding that they belong to individuals or companies; but they must be restored if possible at the conclusion of peace, and compensation for the loss inflicted on their owners must be provided.
56. Supplies in kind (requisitions) demanded from districts or individuals must correspond to the generally recognized necessities of war, and must be proportioned to the resources of the country.
Requisitions can only be made by express authorization of the officer commanding in the occupied locality.
57. The occupier can only levy such taxes and duties as are already established in the occupied State. He uses them to satisfy the expenses of administration to the extent that they have been so used by the legitimate government.
58. The occupier can only levy contributions in money as the equivalent of unpaid fines, or unpaid taxes, or of supplies in kind, which have not been duly made.
Contributions in money can only be imposed by the order, and on the responsibility, of the general in chief or of the supreme civil authority established in the occupied territory; and their incidence must as far as possible correspond to that of the taxes already in existence.
59. In apportioning the burdens arising from the billeting of troops and contributions of war, zeal shown by individuals in caring for the wounded is to be taken into consideration.
60. Receipts are to be given for the amount of contributions of war, and for articles requisitioned when payment for them is not made. Measures must be taken to secure that these receipts shall be given always, and in proper form.
III. Of Prisoners of War
A. THE STATE OF CAPTIVITY
Captivity is neither a punishment inflicted on prisoners of war (Art. 21) nor an act of vengeance; it is merely a temporary detention which is devoid of all penal character. In the following Articles, regard is had both to the consideration due to prisoners of war and to the necessity of keeping them in safe custody.
61. Prisoners of war are at the disposal of the enemy government, not of the individuals or corps which have captured them.
62. They are subjected to the laws and rules in force in the enemy army.
63. They must be treated with humanity.
64. All that belongs to them personally, except arms, remains their property.
65. Prisoners are bound to state, if asked, their true name and rank. If they do not do so, they can be deprived of all or any of the mitigations of imprisonment enjoyed by other prisoners circumstanced like themselves.
66. Prisoners can be subjected to internment in a town, fortress, camp, or any other place, definite bounds being assigned which they are not allowed to pass; but they can only be confined in a building when such confinement is indispensable for their safe detention.
67. Insubordination justifies whatever measures of severity may be necessary for its repression.
68. Arms may be used against a fugitive prisoner after summons to surrender.
If he is retaken before he has rejoined his army, or has escaped from the territory under the control of his captor, he may be punished, but solely in a disciplinary manner, or he may be subjected to more severe surveillance than that to which prisoners are commonly subjected. But if he be captured afresh, after having accomplished his escape, he is not punishable unless he has given his parole not to escape, in which case he may be deprived of his rights as prisoner of war.
69. The government detaining prisoners is charged with their maintenance.
In default of agreement between the belligerents on this point, prisoners are given such clothing and rations as the troops of the capturing State receive in time of peace.
70. Prisoners cannot be compelled to take part in any manner in the operations of the war, nor to give information as to their country or army.
71. They may be employed upon public works which have no direct relation to the operations carried on in the theater of war, provided that labor be not exhausting in kind or degree, and provided that the employment given to them is neither degrading with reference to their military rank, if they belong to the army, nor to their official or social position, if they do not so belong.
72. When permission is given to them to work for private employers, their wages may be received by the detaining government, which must either use it in procuring comforts for them, or must pay it over to them on their liberation, the cost of their maintenance being if necessary first deducted.
B. TERMINATION OF CAPTIVITY
The reasons which justify the detention of a captured enemy last only during the continuance of war.
Consequently,
73. The captivity of prisoners of war ceases as of course on the conclusion of peace; but the time and mode of their actual liberation is a matter for agreement between the governments concerned.
In virtue of the Convention of Geneva,
74. Captivity ceases as of course, before the date fixed upon for general liberation, in the case of wounded or sick prisoners who, after being cured, are found to be incapable of further service.
The captor must send these back to their country so soon as their incapacity is established.
During the war
75. Prisoners can be released by means of a cartel of exchange negotiated between the belligerent parties.
Even without exchange
76. Prisoners can be set at liberty on parole, if the laws of their country do not forbid it. The conditions of their parole must be clearly stated. If so set at liberty, they are bound, on their honor, to fulfill scrupulously the engagements which they have freely entered into. Their government, on its part, must neither require nor accept from them any service inconsistent with their pledged word.
77. A prisoner cannot be compelled to accept his liberty on parole. In the same way the enemy government is not obliged to accede to a request made by a prisoner to be released on parole.
78. Prisoners liberated on parole and retaken in arms against the government to which they are pledged, can be deprived of the rights of prisoners of war, unless they have been included among prisoners exchanged unconditionally under a cartel of exchange negotiated subsequently to their liberation.
IV. Persons Interned in Neutral Territory
It is universally admitted that a neutral State cannot lend assistance to belligerents, and especially cannot allow them to make use of its territory without compromising its neutrality. Humanity, on the other hand, demands that a neutral State shall not be obliged to repel persons who beg refuge from death or captivity. The following rules are intended to reconcile these conflicting requirements:
79. The neutral State within the territory of which bodies of troops or individuals belonging to the armed force of the belligerents take refuge, must intern them at a place as distant as possible from the theater of war. It must do the same with persons using its territory as a means of carrying on military operations.
80. Interned persons may be kept in camps, or may be shut up in fortresses or other places of safety. The neutral State decides whether officers may be left free on parole on an engagement being entered into by them not to leave the neutral territory without authorization.
81. In default of special convention regulating the maintenance of interned persons, the neutral State supplies them with rations and clothes, and bestows care upon them in other ways to such extent as is required by humanity.
It also takes care of the matériel of war which the interned persons may have had with them on entering the neutral territory.
On the conclusion of peace, or sooner if possible, the expenses occasioned by the internment are repaid to the neutral State by the belligerent State to which the interned persons belong.
82. The provisions of the Convention of Geneva of the 22d August, 1864 (see above, Articles 10 to 18, 35 to 40, and 74) are applicable to the hospital staff, as well as to the sick and wounded who have taken refuge in, or been carried into, neutral territory.
Especially,
83. Sick and wounded who are not prisoners may be moved across neutral territory, provided that the persons accompanying them belong solely to the hospital staff, and that any matériel carried with them is such only as is required for the use of sick and wounded. The neutral State, across the territory of which sick and wounded are moved, is bound to take whatever measures of control are required to secure the strict observance of the above conditions.
PART III. PENAL SANCTION
When infractions of the foregoing rules take place, the guilty persons should be punished, after trial, by the belligerent within whose power they are.
84. Persons violating the laws of war are punishable in such way as the penal law of the country may prescribe.
But this mode of repressing acts contrary to the laws of war being only applicable when the guilty person can be reached, the injured party has no resource other than the use of reprisals when the guilty person cannot be reached, if the acts committed are sufficiently serious to render it urgently necessary to impress respect for the law upon the enemy. Reprisals, the occasional necessity of which is to be deplored, are an exceptional practice, at variance with the general principles that the innocent must not suffer for the guilty, and that every belligerent ought to conform to the laws of war, even without reciprocity on the part of the enemy. The right to use reprisals is tempered by the following restrictions:—
85. Reprisals are forbidden whenever the wrong which has afforded ground of complaint has been repaired.
86. In the grave cases in which reprisals become an imperative necessity, their nature and scope must never exceed the measure of the infraction of the laws of war committed by the enemy.
They can only be made with the authorization of the commander in chief.
They must, in all cases, be consistent with the rules of humanity and morality.
APPENDIX III
CONFERENCE AT BRUSSELS, 1874, ON THE RULES OF MILITARY WARFARE[498]
SECTION I
Of the Rights of Belligerents One toward the Other
Chapter I. Of Military Authority over the Hostile State
Article 1. A territory is considered as occupied when it is actually placed under the authority of the hostile army.
The occupation only extends to those territories where this authority is established and can be exercised.
Art. 2. The authority of the legal power being suspended, and having actually passed into the hands of the occupier, he shall take every step in his power to reëstablish and secure, as far as possible, public safety and social order.
Art. 3. With this object he will maintain the laws which were in force in the country in time of peace, and will only modify, suspend, or replace them by others if necessity obliges him to do so.
Art. 4. The functionaries and officials of every class who, at the instance of the occupier, consent to continue to perform their duties, shall be under his protection. They shall not be dismissed or be liable to summary punishment unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to justice only if they violate those obligations by unfaithfulness.
Art. 5. The army of occupation shall only levy such taxes, dues, duties, and tolls as are already established for the benefit of the State, or their equivalent if it be impossible to collect them, and this shall be done as far as possible in the form of and according to existing practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as was obligatory on the legal Government.
Art. 6. The army occupying a territory shall take possession only of the specie, the funds, and bills, etc., which are the actual property of the state; the depots of arms, means of transport, magazines, and supplies, and, in general, all the personal property of the State, which may be of service in carrying on the war.
Railway plant, land telegraphs, steam and other vessels, not included in cases regulated by maritime law, as well as depots of arms, and generally every kind of munitions of war, although belonging to companies or to private individuals, are to be considered equally as means of aid in carrying on a war, which cannot be left at the disposal of the enemy. Railway plant, land telegraphs, as well as the steam and other vessels above mentioned, shall be restored, and indemnities be regulated on the conclusion of peace.
Art. 7. The occupying state shall only consider itself in the light of an administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile state, and situated in the occupied territory. It is bound to protect these properties, and to administer them according to the laws of usufruct.
Art. 8. The property of parishes, of establishments devoted to religion, charity, education, arts, and sciences, although belonging to the State, shall be treated as private property.
Every seizure, destruction of, or willful damage to such establishments, historical monuments, or works of art, or of science, should be prosecuted by the competent authorities.
Chapter II. Of those who are to be recognized as Belligerents; of Combatants and Non-combatants
Art. 9. The laws, rights, and duties of war are applicable not only to the army, but likewise to militia and corps of volunteers complying with the following conditions:
1. That they have at their head a person responsible for his subordinates;
2. That they wear some settled, distinctive badge, recognizable at a distance;
3. That they carry arms openly; and
4. That, in their operations, they conform to the laws and customs of war.
In those countries where the militia form the whole or part of the army, they shall be included under the denomination of "army."
Art. 10. The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9, shall be considered as belligerents, if they respect the laws and customs of war.
Art. 11. The armed forces of the belligerents may be composed of combatants and non-combatants. In the event of being captured by the enemy, both one and the other shall enjoy the rights of prisoners of war.
Chapter III. Of the Means of injuring the Enemy; of those which are permitted or should be forbidden
Art. 12. The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy.
Art. 13. According to this principle are strictly forbidden:
(a) The use of poison or poisoned weapons.
(b) Murder by treachery of individuals belonging to the hostile nation or army.
(c) Murder of an antagonist who, having laid down his arms, or having no longer the means of defending himself, has surrendered at discretion.
(d) The declaration that no quarter will be given.
(e) The use of arms, projectiles, or substances which may cause unnecessary suffering, as well as the use of the projectiles prohibited by the declaration of St. Petersburg in 1868.[499]
(f) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Convention.
(g) All destruction or seizure of the property of the enemy which is not imperatively required by the necessity of war.
Art. 14. Stratagems and the employment of means necessary to procure intelligence respecting the enemy or the country (subject to the provisions of Art. 36), are considered as lawful means.
Chapter IV. Of Sieges and Bombardments
Art. 15. Fortified places are alone liable to be besieged. Towns, agglomerations of houses or villages, which are open and undefended, cannot be attacked or bombarded.
Art. 16. But if a town or fortress, agglomeration of houses, or village be defended, the commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his power to warn the authorities.
Art. 17. In the like case all necessary steps should be taken to spare, as far as possible, buildings devoted to religion, arts, sciences, and charity, hospitals and places where sick and wounded are collected, on condition that they are not used at the same time for military purposes.
It is the duty of the besieged to indicate these buildings by special visible signs to be notified beforehand by the besieged.
Art. 18. A town taken by storm should not be given up to the victorious troops to plunder.
Chapter V. Of Spies
Art. 19. No one shall be considered as a spy but those who, acting secretly or under false pretenses, collect, or try to collect information in districts occupied by the enemy with the intention of communicating it to the opposing force.
Art. 20. A spy, if taken in the act, shall be tried and treated according to the laws in force in the army which captures him.
Art. 21. If a spy, who rejoins the army to which he belongs, is subsequently captured by the enemy, he is to be treated as a prisoner of war, and incurs no responsibility for his previous acts.
Art. 22. Military men who have penetrated within the zone of operations of the enemy's army, with the intention of collecting information, are not considered as spies if it has been possible to recognize their military character.
In like manner military men (and also non-military persons carrying out their mission openly), charged with the transmission of dispatches either to their own army or to that of the enemy, shall not be considered as spies if captured by the enemy.
To this class belong also, if captured, individuals sent in balloons to carry dispatches, and generally to keep up communications between the different parts of an army, or of a territory.
Chapter VI. Of Prisoners of War
Art. 23. Prisoners of war are lawful and disarmed enemies. They are in the power of the enemy's Government but not of the individuals or of the corps who made them prisoners.
They should be treated with humanity.
Every act of insubordination authorizes the necessary measures of severity to be taken with regard to them.
All their personal effects, except their arms, are considered to be their own property.
Art. 24. Prisoners of war are liable to internment in a town, fortress, camp, or in any locality whatever, under an obligation not to go beyond certain fixed limits; but they may not be placed in confinement unless absolutely necessary as a measure of security.
Art. 25. Prisoners of war may be employed on certain public works which have no immediate connection with the operations on the theater of war, provided the employment be not excessive nor humiliating to their military rank, if they belong to the army, or to their official or social position if they do not belong to it.
They may also, subject to such regulations as may be drawn up by the military authorities, undertake private work.
The pay they receive will go towards ameliorating their position, or will be put to their credit at the time of their release. In this case the cost of their maintenance may be deducted from their pay.
Art. 26. Prisoners of war cannot be compelled in any way to take any part whatever in carrying on the operations of the war.
Art. 27. The Government in whose power are the prisoners of war, undertakes to provide for their maintenance.
The conditions of such maintenance may be settled by a mutual understanding between the belligerents.
In default of such an understanding, and as a general principle, prisoners of war shall be treated, as regards food and clothing, on the same footing as the troops of the Government who made them prisoners.
Art. 28. Prisoners of war are subject to the laws and regulations in force in the army in whose power they are.
Arms may be used, after summoning, against a prisoner attempting to escape. If retaken, he is subject to summary punishment or to a stricter surveillance.
If after having escaped he is again made prisoner, he is not liable to any punishment for his previous escape.
Art. 29. Every prisoner is bound to declare, if interrogated on the point, his true names and rank; and in the case of his infringing this rule, he will incur a restriction of the advantages granted to the prisoners of the class to which he belongs.
Art. 30. The exchange of prisoners of war is regulated by mutual agreement between the belligerents.
Art. 31. Prisoners of war may be released on parole if the laws of their country allow of it; and in such a case they are bound on their personal honor to fulfill scrupulously, as regards their own Government, as well as that which made them prisoners, the engagements they have undertaken.
In the same case their own Government should neither demand nor accept from them any service contrary to their parole.
Art. 32. A prisoner of war cannot be forced to accept release on parole, nor is the enemy's Government obliged to comply with the request of a prisoner claiming to be released on parole.
Art. 33. Every prisoner of war liberated on parole, and retaken carrying arms against the Government to which he had pledged his honor, may be deprived of the rights accorded to prisoners of war, and may be brought before the tribunals.
Art. 34. Persons in the vicinity of armies, but who do not directly form part of them, such as correspondents, newspaper reporters, vivandiers, contractors, etc., may also be made prisoners of war.
These persons should, however, be furnished with a permit, issued by a competent authority, as well as with a certificate of identity.
Chapter VII. Of Non-combatants and Wounded
Art. 35. The duties of belligerents, with regard to the treatment of sick and wounded, are regulated by the Convention of Geneva of the 22d August, 1864, subject to the modifications which may be introduced into that Convention.
SECTION II
Of the Rights of Belligerents with Reference to Private Individuals
Chapter I. Of the Military Power with respect to Private Individuals