ing of this rule. In 1777 an agreement for an exchange of prisoners was made between General Washington and Sir William Howe, in which it was merely stipulated that 'officers should be given for officers of equal rank, soldier for soldier, citizen for citizen.' When the agreement came to be carried out the Americans objected that a great proportion of those sent out by the English were not fit subjects of exchange when released and were made so by the severity of their treatment and confinement, and therefore a deduction should be made from the list to the extent of the number of non-effectives. Sir William Howe, while denying the alleged fact of severe treatment and referring the bad state of health of the prisoners to the sickness which is said to have prevailed in the American army at the time, fully granted that able men are not to be required by the party who, contrary to the laws of humanity, through design, or even neglect of reasonable and practicable care, shall have caused the debility of the prisoners he shall have to offer in exchange." 1 Bureaus of information, relief societies, etc., are provided in The Hague convention in connection with prisoners of war, so that knowledge of their existence and state and measures for the alleviation of their hardships can be officially and privately taken. Provisions for allowances of money, for mail communication, and the exercise of their religion are also found in the articles upon these subjects extending in numbers from Article 14 to Article 20. Article 20 reads that "after the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible." Holland says that "some delays must, of course, occur on account of (1) insufficiency of transport, (2) obvious risk in at once restoring to the vanquished power the troops of which it has been deprived, (3) some prisoners being under punishment for offences committed during their imprisonment." 2 1 Hall, 6th ed., pp. 408, 409. Holland, "Laws of War," p. 27. 144. Hostilities.-The obligations of belligerents with regard to the sick and wounded are governed by the Geneva convention of 1906, which will be found in Higgins, "Hague Conferences." It will be referred to in the text from time to time. The article in the convention of The Hague under discussion, referring to the subject of the sick and wounded, is Article 21 of Chapter III of Section I, treating of belligerents. Section II of the convention treats of hostilities, beginning with Article 22, which states in general terms that the right of belligerents to adopt means of injuring the enemy is not unlimited. The next article, 23, specifies matters that are prohibited, such as the employment of poisons, the killing or wounding of the surrendered, the declaration of no quarter, the use of arms causing unnecessary suffering, the improper use of a flag of truce, of the national flag, the uniform of the enemy or of the Geneva cross, and a wilful and unnecessary destruction of the enemy's property. Under the above rule that article of General Order No. 100 which permits a commander to direct his troops to give no quarter, in great straits, when his own situation makes it impossible to cumber himself with prisoners seems to be either an impossible danger or one that can be avoided by the release or disarmament of the overpowered enemy. It should be considered as obsolete. The last clause of Article 23, lettered h, has caused considerable discussion so far as its first paragraph is concerned. This reads that it is forbidden "to declare extinguished, suspended, or unenforceable in a court of law the rights and rights of action of the nationals of the adverse party." This, if a general principle, seems out of place here. Professor Holland, while admitting as possible that the paragraph is intended only for the guidance of an invading commander, adds that “if, as would rather appear, it is of general application, besides being quite out of place where it stands, it is so revolutionary of the doctrine which denies to an enemy any persona standi in judicio, that, although contained in the ratification by the United States and the signature by Great Britain, it can hardly, till its policy has been seriously discussed, be treated as a rule of international law."1 The last paragraph of clause h reads that "a belligerent is likewise forbidden to compel the nationals of the adverse party to take part in the operations of war directed against their country, even when they have been in his service before the commencement of the war." The next article states that ruses of war and the employment of methods necessary to obtain information about the enemy and the country are considered lawful. Article 25 states that "the attack or bombardment by any means whatever of towns, villages, habitations, or buildings which are not defended is prohibited." In view of the possibility of the expiration of the declaration prohibiting the dropping of projectiles from the sky at the end of the next Hague conference without renewal, there will be a necessity for a closer definition of this prohibition. It reads now as a prohibition of any attack from the sky upon buildings of themselves undefended even within a town of itself defended with external fortifications. This reading has certainly not been followed out in recent wars. Westlake, in referring to this article, points out that, in his belief, as this code only deals with war between civilized states it cannot be quoted against the attack or bombardment of a town or village of savages not having a government sufficient to be the proper object of hostilities. "Such an operation," he goes on to say, "may be an example of necessary punitive expeditions.”2 Articles 26 and 27 of The Hague convention provide that the commander of an attacking force before commencing a bombardment, except in the case of an assault, should do all 1 Holland, "Laws of War on Land," 1908, p. 44. that he can to warn the authorities and that all necessary steps should be taken to spare, as far as possible, edifices devoted to religion, art, science, or charity, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. The besieged ought to indicate these places by some particular and visible signs, which should be notified previously to the besiegers.1 Article 28 prohibits the pillage of a town or place, even when taken by assault. Pillage in a general sense can be defined as the forcible taking of private property without authority in an enemy's country or in a captured place. It has been seen and will be shown later that the laws of war on land give certain methods by which private property can be taken in war, under orders of the commander of a force. "If it be taken any other way," says General Davis, "such taking constitutes pillage and is punishable accordingly. There can be no higher test of discipline in a command than is shown by the manner in which the private property of an enemy is treated within its sphere of operations. If such property is respected, if acts of pillage are strictly repressed and severely punished, the discipline is good. If property and life are unsafe in its vicinity, if irregular seizures are permitted, if orchards and fields are devastated, discipline worthy of the name cannot be said to exist." 145. Spies.-In The Hague convention under consideration a spy is defined as a person who, acting clandestinely or on false pretences, obtains or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Article 29 goes on to say: "Soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: 1 Higgins, "Hague Conferences," p. 237. Davis, "Elements of Int. Law," 3d ed., p. 323. soldiers or civilians carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong, likewise, individuals sent in balloons to deliver despatches and generally to maintain communications between the various parts of an army or a territory." Article 30 reads that: "A spy taken in the act cannot be punished without previous trial." The trial will be by court martial, and the extreme penalty is death. Article 31 states that "A spy, however, 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."1 "Service as a spy," says General Davis, "is voluntary and cannot be compelled. A state cannot require an individual in its military service to act as a spy. If it permits or authorizes a person in its military or naval service to act in that capacity, the fact of his being in such service will not screen him from punishment should he be apprehended by the enemy; nor will retaliation be justifiable on the part of the belligerent who so employs persons in his military service."2 146. Flags of Truce.-Articles 32, 33, and 34 of The Hague convention say that: "A person is considered as the bearer of a flag of truce who is authorized by one of the belligerents to enter into communication with the other and who comes with a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag-bearer, and the interpreter who may accompany him. "The commander to whom a bearer of a flag of truce is sent is not obliged to receive him in all circumstances. "He can take all steps necessary to prevent the bearer taking advantage of his mission to obtain information. 'Higgins, "Hague Conferences," p. 239. |