at the approach of the invaders, who commit hostile acts with intermitting returns to their homes and vocations, divesting themselves of the character or appearance of soldiers, have no cause for complaint of an infringement of the laws of war if when they are caught they are denied belligerent rights and put to death.”1 Private citizens have been granted exceptional treatment when as such they have assisted the army of defence of a besieged town. This was the case in the historic defence of Saragossa in Spain, in which the women assisted the gunners, and the defence of Plevna against the Russians in the RussoTurkish War. In regard to bombardment and the siege of fortified towns rules vary. No notice was given of the bombardment of Paris by the Germans, though a deliberate bombardment should be notified by the requirements of humanity. There is no obligation imposed either by the conventional rules or the unwritten laws of war in case of siege or bombardment to allow private citizens or women and children to leave a besieged town, even when a bombardment is about to begin. Article 18 of General Orders No. 100 of the United States army (Lieber's Code) reads as follows: "When the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender."2 This should be eliminated from any code authorized by the United States. Instances of this procedure have occurred in modern times, but generally more humane treatment prevails. During the Franco-German War the Germans insisted upon their war rights in cases of sieges almost invariably. Our forces before bombarding Santiago de Cuba, in the Spanish-American War, gave forty-eight hours' notice and allowed the exit of non 1 Higgins, "War and the Private Citizen," p. 42. combatants. In the siege of Ladysmith, on the other hand, non-combatants were not allowed to leave and were dependent for their supplies upon the defenders of the town. They were allowed to be placed, however, in a camp outside of the zone of fire. In the occupation of territory, as suggested in preceding pages, the private citizen suffers in so many ways as to his person and property that it can be truthfully said that the socalled exemption of private property from capture or seizure on land may be called almost nominal. Holland says "that an invading army may, on the grounds of military necessity, devastate whole tracts of country, burning dwellings and clearing the district of supplies. In this case it is, however, the duty of the invader to make the best provision he can for the dispossessed population."1 Lieber's instructions of General Order No. 100 in Article 15 says that "military necessity allows of all destruction of property and obstruction of the ways and channels of traffic, travel, or communications and of all withholding of sustenance or means of life from the enemy." Sheridan's devastation of the Shenandoah Valley had for its palliation the end of the raids through the valley northward and the destruction of the granary of Lee's armies. War brings at times martial law in the home territory such as in cases of civil war, of invasion, or in expectation thereof, by which the rights and privileges of the citizens and domiciled aliens of the home country are considerably curtailed. This is only to a limited extent a matter of international law but mainly and more especially of the municipal law of the territory placed under martial law. This state of affairs occurred in our Civil War and has occurred in British selfgoverning colonies at various times. In regard to hostages in general Hall says: "Under a usage which has long become obligatory, it is forbidden to take their 1 1 Holland, "Laws of War," pp. 13, 14. [hostages'] lives except during an attempt to escape, and they must be treated in all respects as prisoners of war, except that escape may be guarded against by closer confinement."1 142. The Laws of War on Land. Belligerents.-The instrument which contains the laws and customs of war on land in the most authoritative manner is that adopted by the first Hague conference of 1899, as amended by the second conference of 1907. Quotations have already been made from some of the general articles which precede the regulations as codified. Practically all of the civilized states of the world, including the United States, have signed and ratified this convention, which is No. IV, and the reservations have been few, there being none made by the United States in the ratification made by the United States Senate on March 10, 1908. The provisions contained in the annexed regulations are only binding between the contracting parties and only if all the belligerents are parties to the convention. A belligerent state violating the provisions of the regulations shall, if the case demands it, be liable to make compensation. It shall also be responsible for all acts committed by persons forming part of its armed forces. In addition to what has previously been quoted from the preamble of the convention, Article I of the convention requires that the contracting parties will issue to their armed land forces instructions which shall be in conformity with the regulations that are annexed to the convention, known as "Regulations respecting the Laws and Customs of War on Land." The first section of the regulations treats of the subject of belligerents, and the first chapter of that section treats of the qualifications of belligerents. In the first article of the chapter it is stated that the laws, rights, and duties of war apply not only to armies but also to militia and volunteer corps fulfilling conditions that are named. This inclusion of militia and volunteer corps with the regular armies of a state is a 1 Hall, 6th ed., pp. 411, 412. Bluntschli, sec. 600. recognition of the change which has occurred since the time when professional soldiers were alone considered to be entitled to fight for the state. As late as the Franco-German War of 1870, the Prussian commander-in-chief required that prisoners, in order to be considered as prisoners of war, were to prove that they were "called out and borne on the rolls of a military organized corps by a legal order personally addressed."1 The conditions required by this article are that the armed forces are to have at their head a person responsible for his subordinates; to have a fixed distinctive emblem recognizable at a distance; to carry arms openly; and to conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps either constitute the army or form part of it they are to be included under the denomination of army.2 Provision is made in Article 17 of the convention for an uprising of a mass of the population for the defence of their country or territory, as follows: "The population of a territory which has not been occupied, who, on the enemy's approach, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance with Article I, shall be regarded as belligerents if they carry arms openly and respect the laws and customs of war." A definition of the composition of the armed forces of the belligerents is further made in Article III of the convention under discussion by providing that it may consist of combatants and non-combatants, both, in case of capture, having a right to be treated as prisoners of war. It is generally conceded that certain non-combatants either accompanying an army or elsewhere, from their position and importance, can be made prisoners of war. These are the ruler or monarch and members of the reigning family of the 1 Hall, 6th ed., p. 513. 2 Art. I, Convention IV; Higgins, "Hague Conferences," etc. state, the chief officers of the enemy's government, and any person who for certain reasons may be specially or generally of importance to an enemy. There may also be included in the term non-combatants persons connected with the supply and transport services, guides, balloonists, agents, contractors, and others who assist in its movement, equipment, and maintenance. By Article 9 of the Geneva convention of 1906 the personnel engaged exclusively in the collection, transport, and treatment of the wounded and sick, as well as in the administration of medical units and establishments, and the chaplains attached to armies shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be treated as prisoners of war. These provisions apply to the guard of the medical units and other establishments furnished with an authority in due form. The use of savage or semibarbarous troops in modern warfare is subject in a general sense to the conditions required by the rules relating to lawful belligerents. This applies also as to guerilla, irregular, or other detached bodies of men. During the Russo-Japanese War Admiral Alexieff issued an order offering special inducements to convicts from the Island of Sakhalin to enlist in the Russian army. Though this cannot be regarded as a positive violation of the law of nations, there is something peculiarly revolting to modern conceptions of humanity in the employment of criminals for purposes of warfare.1 143. Prisoners of War.-The instructions for the government of the armies of the United States by Doctor Francis Lieber and issued by the adjutant-general's office in 1863 as General Order No. 100, and previously referred to, may be said to be still in force in the United States army, and were again issued without modification for the government of the United States armies in 1898. They were issued originally for a civil war and do not fully represent either the most modern ideas 1 1 Hershey, "Essentials," note, p. 375. |