Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the Army, and is under his supreme control.

United States v. Diekelman, 92 U. S. 520.

A merchant vessel of one country visiting, for the purpose of trade, a port of another where martial law has been established, under belligerent right, subjects herself to that law while she is in such port.

United States v. Diekelman, 92 U. S. 520.

See, to the same effect, Mr. Seward, Sec. of State, to Baron von Gerolt, Prussian min., Oct. 11, 1862, MS. Notes to Prussian Leg. VII, 146.

Moore's Digest, vol. VII, p. 277.

OFFENDERS AGAINST THE LAWS OF WAR.

A belligerent party which violates the provisions of the said Regulations [annexed to Hague Convention IV, 1907], shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

Article 3, Hague Convention IV, 1907.

[For a discussion of certain specific offences against the laws of war, see "The Laws of Land Warfare," United States Government Printing Office, 1919, citations collected under the headings of Articles 22 and 23, Regulations, Hague Convention IV, 1907.]

Article 84. Offenders against the laws of war are liable to the punishments specified in the penal law.

This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other course than a resort to reprisals remains.

Institute (1880), pp. 41, 42.

Article 1. Each of the contracting Parties shall undertake to elaborate a penal law covering all possible infractions of the Geneva Convention.

Article 2. Within a period of three years, these laws shall be promulgated and notified to the Swiss Federal Council, which shall communicate them through diplomatic channels to the signatory Powers of the Geneva Convention.

The changes which any of the contracting States shall later make in its penal code shall also be notified to the Swiss Federal Council. Article 3. A belligerent State which shall make complaint of a violation of the Geneva Convention by the ressortissants of another belligerent State shall have the right to request, through the mediation of a neutral State, that an inquiry be instituted. The accused State shall be obliged to have its authorities institute this inquiry, to make known the result to the neutral State which has acted as intermediary, and, if necessary, to cause the guilty to be punished under the criminal laws.

Article 4. The states signatory to the Geneva Convention which shall not have subscribed in the first instance to the present act, may

do so at any time by a notification in the form prescribed for adhering to the Convention itself, addressed to all the States that are already signatories.

Institute (1895), p. 118.

Alien, with national commission.

An alien, under the sanction of a national commission, cannot commit piracy while he pursues his authority. His acts may be hostile, and his nation responsible for them. They may amount to a lawful cause of war, but they are never to be regarded as piracy. The Barbary powers, notwithstanding some doubts which formerly existed, are now, and for a century past have been, regarded as lawful powers, and not pirates. They have all the insignia of regular independent governments, and are competent to maintain the European relations of peace and war. Cicero, and, after him, Grotius, define a regular enemy to be a power which hath the elements or constituents of a nation, such as a government, a code of laws, a national treasury, the consent and agreement of the citizens, and which pays a regard to treaties of peace and alliance; and all these things, says Bynkershoek, are to be found among the states of Barbary.

Kent, vol. I, pp. 202, 203.

At the Brussels Conference of 1874, a suggestion was made, on behalf of France, to provide by international agreement a single system for the repression of offences against the laws of war, to be put in force by each Power as part of its military law (Parl. Paper, Miscell. No. 1, 1875, p. 20). Nothing has, however, been done in this direction. With reference only to offences against the Geneva Convention, the Institut de Droit International, in 1895, drafted a set of rules (see Annuaire, t. xiv, p. 188); and the Geneva Convention of 1906 followed suit in Articles 27 and 28 (Arts. 68 and 69 supra), to which, as has already been explained, the British Government have been unable to accede. The unauthorized use of the Red Cross emblem had been, however, already made illegal in many countries, the laws of which upon this subject are set out in the Actes de la Conférence, pp. 166-174, as also in Parl. Paper 1908 [Cd. 3933], pp. 64-74. Very little is to be found in English Statutes or Regulations with reference to offences against International Law.

Holland, p. 60.

Individual offenders.

Individuals offending against the laws of war are liable to such punishment as is prescribed by the military code of the belligerent into whose hands they may fall, or, in default of such code, then

to such punishment as may be ordered, in accordance with the laws and usages of war, by a military court.

Holland. pp. 59, 60.

Offences by an entire corps.

When a whole corps systematically disregards the laws of war, e. g. by refusal of quarter, any individuals belonging to it, who are taken prisoners, may be treated as implicated in the offence.

Holland, p. 60.

Methods of obtaining satisfaction.

If the laws of war are broken, there are three possible methods of obtaining satisfaction to be considered:

(1) The damaged belligerent may himself punish the offending enemy soldiers or nationals.

(2) He may lodge with the other belligerent a protest against the infraction, and if it is a case in which an indemnity will compensate for the damage, claim one under Article III of the Hague Convention (the diplomatic prelude to the Règlement).

(3) If the actual offender cannot be reached and if the other belligerent has refused satisfaction, the damaged belligerent may resort to reprisals.

As to the case coming under (1) above, nothing need be said, except that the punishment of offenders, however manifest and grave their offence, should take place only after a fair trial-by a military court, a council of war, or whatever kind of court has cognisance of offences against war law in each army; and that sentences of death should invariably be subject to the approval of the commander-in-chief. The question of a man's life or death is as grave as the question of levying a contribution and ought to be decided by no less supreme and responsible an authority. It is not always easy, under the unfavourable conditions of war, to secure that detachment of spirit and judgment, that freedom from passion and emotion, which ought to mark every judicial process. But the very necessity for a trial and for the case against the accused being set down in writing (as is usual) makes for justice. Perhaps some day one may see a specialised body-a very few would suffice-of "war law judges" in each army, before whom all cases of violation of the laws and usages of war shall be heard.

Spaight, pp. 461, 462.

Indemnity.

Article III of the Hague Convention [IV, 1907] speaks of an indemnity, being paid in "proper cases." What " proper cases would be is not defined; presumably cases in which the damage caused by the violation is capable of being reduced to a money basis, such as

a case of damage to property. The aggrieved belligerent would still be entitled to punish the offenders-if he could capture them-in such cases as treachery and the use of poison.

Spaight, p. 462.

Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral States. This being the case, the question as to the causes of war is of minor importance for the Law of Nations, although not for international ethics.

Oppenheim, vol. 2, p. 72.

The first article of the Convention [Hague II, 1899] bound the signatory powers to issue instructions to their land forces in conformity with the annexed Regulations. The Hague Conference of 1907 not only reenacted this obligation, but improved the Regulations, and made the contracting parties responsible, when belligerents, for all acts committed by persons forming part of their armed forces, and rendered them liable to pay compensation if the case demanded it.

Thus the old customary law based on general usage has been largely superseded by rules deriving their force from express consent given in the form of signatures to a law-making treaty. Practically the whole civilized world has assented to it; and a state that openly, avowedly, and of set purpose, violates its provisions will dishonor its own signature and write itself down as an unscrupulous pledgebreaker. It will not find such a reputation helpful when next it wants to come to an agreement with its neighbors, even if they do not rise in indignation at the moment and compel it to mend its ways. We are not speaking here of the possible excesses of troops that have got completely out of control, or of deplorable occurrences, such as the shooting of a wounded foe, which may happen occasionally in the hurly-burly of conflict without any command from responsible authorities. These things are incidents of all wars. We must look to increased self-control and improved discipline to reduce them to a minimum; and as long as they exist, reputable states are bound to punish their authors. What we have in mind is the case of a conscious and deliberate violation of the laws of war as a matter of state policy. Now that these laws are being clearly defined and solemnly accepted by all civilized states, the nation that could thus act must possess at once extreme unscrupulousness and enormous strength. It is just possible that now and again such a combination.