THE

UNITED STATES SERVICE

MAGAZINE.

VOL. IV.-NOVEMBER, 1865.—NO. V.

WHO MAY KILL IN WAR, AND WHO MAY NOT.

WE propose in this article to discuss certain questions of international law, in regard to the right to take human life in war; by whom, how, when, and where this right may be exercised; who may not lawfully exercise it, and the penalties incurred by those who unlawfully engage in war.

Publicists lay down the general rule, that a declaration of war makes each and every citizen of one belligerent power the enemy of each and every citizen of the other belligerent; and, in ancient times, the full rights of war were exercised by all on the one side against all on the other, without regard to age, sex, or condition. This extreme right of war is still recognized and exercised by barbarous nations and savage tribes. But Christianity has introduced a milder system, among all civilized people, which exempts certain classes from the extreme rights against their persons, and, to a certain extent, against their property, or, at least, against certain kinds of property. Thus, feeble old men, women, children, and sick persons are exempted, in nearly all wars; and also clergymen, artists, mechanics, and laborers, where these classes take no part in active hostilities. But if they actually engage in the war, by rendering personal assistance to one party, they are no longer exempt from being treated as active enemies by the other party; and

Entered according to Act of Congress, in the year 1865, by C. B. RICHARDSON, in the Clerk's Office of the District Court for the Southern District of New York.

VOL. IV.-25.

where females so far forget their sex as to take up arms, or to incite others to do so, or assist and encourage them in waging hostilities, they are no longer entitled to the exemption of noncombatants. Their activity, energy, and usefulness to one of the belligerents determine the degree of rigor by which they may be treated by the other. Moreover, the acts of leading members or classes of a particular community often determine the military status of the entire inhabitants of the town or district to which they belong. In other words, individuals who kill or assist in killing an enemy in war, no matter what may be their age, sex, profession, or occupation, may themselves be lawfully killed by that enemy. And the rule which applies to individuals often applies to communities which are formed wholly, or in part, by these same individuals.

Both by the ancient and modern rules of war, there are certain persons, and sometimes whole communities, who are recognized as combatants, and who may lawfully kill their opponents, or be lawfully killed by their opponents, in war.

According to the Roman law, no man could lift a weapon to strike a public enemy unless he had been enlisted or enrolled as a soldier, had taken the prescribed military oath, and actually served under pay. In other words, no man could be entitled to military immunities and privileges, until the character of a soldier had been formally conferred upon him. If he killed an enemy, except in self-defence, without first having been invested with the authority of the soldier, he was considered a murderer.

This rule was gradually relaxed in the Middle Ages, till lawful war assumed the form of pillage and robbery, and soldiers became mere banditti, military thieves and assassins. With the revival of learning in Europe, after the fall of the Roman Empire, there was a more full recognition of the jus gentium, as applicable to the rights and duties of states and their subjects engaged in war. Our limits will not permit us to trace out the various discussions and changes of opinion on this subject, or the conclusions finally reached, further than that the main principles of ancient military law were reaffirmed and adopted; viz., that those entitled to exercise belligerent rights were subject and entitled to the recognized rights of combatant belligerents, and that those who were not liable to be treated as active enemies could not exercise any belligerent rights as such. In other words, that the portion of the people dedicated to military purposes could exercise all the rights of belligerents, but that all others entitled to non-combatant rights could not take the life of an enemy in war, except in self-defence, without incurring the penalty of military murder. This rule, after numerous fluctuations and changes, finally became one of the established laws of war among civilized nations. The principle on which it is based is simple and easily understood, but diffi

culties have arisen in its application, because different states employ different kinds of troops, some exclusively of a military character, and others combining more or less the characteristics of the soldier and the citizen.

No question can arise in regard to the regularly organized troops of either party; nor in regard to the militia, national guards, landwehr, or reserves, when duly brought into actual service according to the laws of their own state and the orders of their own government. It makes little or no difference by what name they are called, so that they are duly organized under the laws of the state which they serve; for then they are simply the servants of the state, and their government, as well as themselves, are responsible for their good conduct.

In determining who are, and who are not, authorized to kill in war, we must not be misled by mere names or designations. Thus the term partisan has been applied to irregular troops of legitimate as well as illegitimate organization and character. The simple fact that a man is a partisan, or belongs to a partisan corps, does not deprive him of belligerent rights in war. The same may be said of guerrilla bands. The mere fact of belonging to a band called a guerrilla company, or guerrilleros, does not necessarily subject the individual to the penalties of waging illegal war. Nevertheless the case is prima facie against him, and he must clear himself in the way he best can. The whole question turns upon the fact whether he is duly organized as a soldier by his own government, and has received due authority, and been subjected to proper control and responsibility, as such active belligerent.

Some writers regard self-organization and self-control as the distinguishing characteristics of the illegal soldier; for, not being commissioned or enlisted, his own government cannot be held directly responsible for his acts. It must be admitted that the hostile acts of individuals, or of bands of men, without the sanction or authority of their own government, are not legitimate acts of war. The killing of an enemy by such men is murder, and the taking of public or private property is simply robbery; and the men themselves, not being legitimately in arms, may

be treated as outlaws.

But self-organization and self-control are not the only nor even the essential characteristics of the illegal soldier. We think that, as with the Romans, he must be duly enrolled for pay, and take the solemn oath of his office, before he can lawfully exercise belligerent rights. Suppose our enemy were to organize free corps of guerrilla bands, with the express understanding that they were to receive no pay, clothing, or subsistence but such as they might obtain by pillage, robbery, and murder. Will any one contend that such men, when captured, are to be treated simply as prisoners of war? The modern

laws of war do not recognize or permit such organizations, because they would destroy civilization and bring back the age of barbarism. Such men are simply marauders, brigands, and robbers, whether or not organized under the authority of their own state; for no authority for such purposes can be legally given by any government.

The penalty for the acts of such bands is, almost universally, death. They are as much outlaws in war as in peace. Hence they usually massacre their prisoners, or release them only on being paid ransom-money, thus directly renewing the barbarism of the ages in which they were formerly tolerated.

Another important characteristic of the soldier who is authorized to exercise belligerent rights to the extent of lawfully killing his enemy, is his uniform. The want of this, if in campaign, is prima facie evidence that he is a freebooter or military robber; within the lines of the opposing belligerent, that he is a spy; if on the battle-field, of a perfidious disguise; and the offence in each case is punished by death. The fact is prima facie evidence of perfidy, but not conclusive proof; for presumption may in each case be removed and the penalty averted.

On this subject we quote from the "Instructions for the Government of the Armies of the United States in the Field":

"Men, or squads of men, who commit hostilities, whether by fighting or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers: such men, or squads of men, are not public enemies; and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

"Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

"Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of prisoners of war."

Some European' writers have confounded the rules applicable to guerrilla warfare with those governing levies in wars to repel invasion, and the distinction has sometimes been disregarded in European wars. In the invasion of France in 1814, the Allies gave no quarter, and punished with death armed French peasants, although they had been regularly levied and organized by authority of the government. Again, in the Peninsular War, some of the French generals punished alike all Spanish peasants found in arms, whether as guerrilla parties or as troops duly raised and organized by proper authorities. A proper

distinction seems to have been made by Wellington, in his invasion of the South of France in 1814. The troops of Mina and Morillo having committed the greatest excesses in plundering the French peasants, they were severely rebuked by Wellington. "A sullen obedience followed," says Napier, "for the moment, but the plundering system was soon resumed, and this, with the mischief already done, was sufficient to rouse the inhabitants of Bidarray, as well as those of the Val de Baigorri, into action. They commenced and continued a partisan warfare until Lord Wellington, incensed by their activity, issued a proclamation calling upon them to take arms openly and join Soult, or stay peaceably at home, declaring that he would otherwise burn their villages and hang all the inhabitants. Thus it appeared that, notwithstanding all the outcries made against the French for resorting to this system of repressing the warfare of peasants in Spain, it was considered by the English general both justifiable and necessary. However, the threat

was sufficient for the occasion."

Dr. Lieber, in his pamphlet on "Guerrilla Parties," says:

"I believe it can be said that the most recent publicists and writers on international law agree that the rising of the people to repel invasion entitles them to the full benefits of the laws of war, and that the invader cannot well inquire into the origin of the armed masses opposing him; that is to say, he will be obliged to treat the captured citizens in arms as prisoners of war, so long as they openly oppose him in respectable numbers, and have risen in the yet uninvaded or unconquered portions of the hostile country.

"Their acting in separate bodies does not necessarily give them a different character. Some entire wars have been carried on by separate bands or capitaneries, such as the recent war of independence of Greece. It is true, indeed, that the

question of the treatment of prisoners was not discussed in that war, because the Turkish government killed or enslaved all prisoners; but I take it that a civilized government would not have allowed the fact that the Greeks fought in detached parties and carried on mountain guerrilla warfare to influence its conduct toward prisoners.

"It does not seem that, in the case of a rising en masse, the absence of a uniform can constitute a difference. There are cases, indeed, in which the absence of a uniform may be taken as very serious prima facie evidence against an armed prowler or marauder, but it must be remembered that a uniform dress is a matter of impossibility in a levy en masse; and in some cases regulars have had no uniforms, at least for a considerable time. The Southern prisoners made at Fort Donelson, whom I have seen at the West, had no uniform. They were indeed dressed very much alike, but it was the uniform dress of the countrymen in that region: yet they were treated by us as prisoners of war, and well treated too. Nor would it be difficult to adopt something of a badge, easily put on and off, and to call it a uniform. It makes a great difference, however, whether the absence of the uniform is used for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, for destruction of life or property, or for pillage, and whether the parties have no organization at all, and are so small that they cannot act otherwise than by stealth. Nor can it be maintained in good faith, or with any respect for sound sense and judgment, that an individual-an armed prowler (now frequently called a bushwhacker) shall be entitled to the protection of the law of war, simply because he says that he has taken up his gun in defense of his country, or because his government or his chief has issued a proclamation by which he calls upon the people to infest the bushes and commit homicides which every civilized nation will consider murder. Indeed, the importance of writing on this subject is much diminished by the fact that the soldier generally decides these cases for himself. The most disciplined soldiers will exe