CHAPTER IITHE MEANS OF CONDUCTING WAR

CHAPTER IITHE MEANS OF CONDUCTING WARViolence and Cunning.By the means of conducting war is to be understood all those measures which can be taken by one State against the other in order to attain the object of the war, to compel one’s opponent to submit to one’s will; they may be summarized in the two ideas of Violence and Cunning, and judgment as to their applicability may be embodied in the following proposition:What is permissible includes every means of war without which the object of the war cannot be obtained; what is reprehensible on the other hand includes every act of violence and destruction which is not demanded by the object of war.It follows from these universally valid principles that wide limits are set to the subjective freedom and arbitrary judgment of the Commanding Officer; the precepts of civilization, freedom and honor, the traditions prevalent in the army, and the general usages of war, will have to guide his decisions.A.—MEANS OF WAR DEPENDING ON FORCEThe most important instruments of war in the possession of the enemy are his army, and his military positions; to make an end of them is the first object of war. This can happen:1. By the annihilation, slaughter, or wounding of the individual combatants.2. By making prisoners of the same.3. By siege and bombardment.1.Annihilation, slaughter, and wounding of the hostile combatantsHow to make an end of the Enemy.In the matter of making an end of the enemy’s forces by violence it is an incontestable and self-evident rule that the right of killing and annihilation in regard to the hostile combatants is inherent in the war power and its organs, that all means which modern inventions afford, including the fullest, most dangerous, and most massive means of destruction, may be utilized; these last, just because they attain the object of war as quickly as possible, are on that account to be regarded as indispensable and, when closely considered, the most human.The Rules of the Game.As a supplement to this rule, the usages of war recognize the desirability of not employing severer forms of violence if and when the object of the war may be attained by milder means, and furthermorethat certain means of war which lead to unnecessary suffering are to be excluded. To such belong:The use of poison both individually and collectively (such as poisoning of streams and food supplies47) the propagation of infectious diseases.Assassination, proscription, and outlawry of an opponent.48The use of arms which cause useless suffering, such as soft-nosed bullets, glass, etc.The killing of wounded or prisoners who are no longer capable of offering resistance.49The refusal of quarter to soldiers who have laid down their arms and allowed themselves to be captured.The progress of modern invention has made superfluous the express prohibition of certain old-fashioned but formerly legitimate instruments of war (chain shot, red-hot shot, pitch balls, etc.), since others, more effective, have been substituted for these; on theother hand the use of projectiles of less than 400 grammes in weight is prohibited by the St. Petersburg Convention of December 11th, 1868. (This only in the case of musketry.50)He who offends against any of these prohibitions is to be held responsible therefore by the State. If he is captured he is subject to the penalties of military law.Colored Troops are “Blacklegs.”Closely connected with the unlawful instruments of war is the employment of uncivilized and barbarous peoples in European wars. Looked at from the point of view of law it can, of course, not be forbidden to any State to call up armed forces from its extra-European colonies, but the practise stands in express contradiction to the modern movement for humanizing the conduct of war and for alleviating its attendant sufferings, if men and troops are employed in war, who are without the knowledge of civilized warfare and by whom, therefore, the very cruelties and inhumanities forbidden by the usages of war are committed. The employment of these kinds of troops is therefore to be compared with the use of the instruments of war already described asforbidden. The transplantation of African and Mohammedan Turcos to a European seat of war in the year 1870 was, therefore, undoubtedly to be regarded as a retrogression from civilized to barbarous warfare, since these troops had and could have no conception of European-Christian culture, or respect for property and for the honor of women, etc.512.Capture of Enemy CombatantsPrisoners of War.If individual members or parties of the army fall into the power of the enemy’s forces, either through their being disarmed and defenseless, or through their being obliged to cease from hostilities in consequence of a formal capitulation, they are then in the position of “prisoners of war,” and thereby in some measure exchange an active for a passive position.Vae Victis!According to the older doctrine of international law all persons belonging to the hostile State, whether combatants or non-combatants, who happen to fall into the hands of their opponent, are in the position of prisoners of war. He could deal with them according to his pleasure, ill-treat them, kill them, lead them away into bondage, or sell them into slavery. History knows but few exceptions to this rule, these being the result of particular treaties. In the Middle Ages the Church tried to intervene as mediator in order to ameliorate the lot of the prisoners, but without success. Only the prospect of ransom, and chivalrous ideas in the case of individuals, availed to give any greater protection. It is to be borne in mind that the prisoners belonged to him who had captured them, a conception which began to disappear after the Thirty Years’ War. The treatment of prisoners of war was mostly harsh and inhuman; still, in the seventeenth century, it was usual to secure their lot by a treaty on the outbreak of a war.The credit of having opened the way to another conception of war captivity belongs to Frederick the Great and Franklin, inasmuch as they inserted in the famous Treaty of friendship, concluded in 1785 between Prussia and North America, entirely new regulations as to the treatment of prisoners of war.The Modern View.The complete change in the conception of war introduced in recent times has in consequence changedall earlier ideas as to the position and treatment of prisoners of war. Starting from the principle that only States and not private persons are in the position of enemies in time of war, and that an enemy who is disarmed and taken prisoner is no longer an object of attack, the doctrine of war captivity is entirely altered and the position of prisoners has become assimilated to that of the wounded and the sick.Prisoners of War are to be honorably treated.The present position of international law and the law of war on the subject of prisoners of war is based on the fundamental conception that they are the captives not of private individuals, that is to say of Commanders, Soldiers, or Detachments of Troops, but that they are the captives of the State. But the State regards them as persons who have simply done their duty and obeyed the commands of their superiors, and in consequence views their captivity not as penal but merely as precautionary.It therefore follows that the object of war captivity is simply to prevent the captives from taking any further part in the war, and that the State can, in fact, do everything which appears necessary for securing the captives, but nothing beyond that. The captives have therefore to submit to all those restrictions and inconveniences which the purpose of securing them necessitates; they can collectively be involved in a common suffering if some individualsamong them have provoked sterner treatment; but, on the other hand, they are protected against unjustifiable severities, ill-treatment, and unworthy handling; they do, indeed, lose their freedom, but not their rights; war captivity is, in other words, no longer an act of grace on the part of the victor but a right of the defenseless.Who may be made Prisoners.According to the notions of the laws of war to-day the following persons are to be treated as prisoners of war:1. The Sovereign, together with those members of his family who were capable of bearing arms, the chief of the enemy’s State, generally speaking, and the Ministers who conduct its policy even though they are not among the individuals belonging to the active army.522. All persons belonging to the armed forces.3. All Diplomatists and Civil Servants attached to the army.4. All civilians staying with the army, with the approval of its Commanders, such as transport, sutlers, contractors, newspaper correspondents, and the like.5. All persons actively concerned with the war such as Higher Officials, Diplomatists, Couriers, and the like, as also all those persons whose freedom can be a danger to the army of the other State, forexample, Journalists of hostile opinions, prominent and influential leaders of Parties, Clergy who excite the people, and such like.536. The mass of the population of a province or a district if they rise in defense of their country.The points of view regarding the treatment of prisoners of war may be summarized in the following rules:Prisoners of war are subject to the laws of the State which has captured them.The treatment of Prisoners of War.The relation of the prisoners of war to their own former superiors ceases during their captivity; a captured officer’s servant steps into the position of a private servant. Captured officers are never the superiors of soldiers of the State which has captured them; on the contrary, they are under the orders of such of the latter as are entrusted with their custody.The prisoners of war have, in the places in which they are quartered, to submit to such restrictions of their liberty as are necessary for their safe keeping. They have strictly to comply with the obligation imposed upon them, not to move beyond a certain indicated boundary.Their confinement.These measures for their safe keeping are not tobe exceeded; in particular, penal confinement, fetters, and unnecessary restrictions of freedom are only to be resorted to if particular reasons exist to justify or necessitate them.The concentration camps in which prisoners of war are quartered must be as healthy, clean, and decent as possible; they should not be prisons or convict establishments.It is true that the French captives were transported by the Russians to Siberia as malefactors in the years 1812 and 1813. This was a measure which was not illegitimate according to the older practise of war, but it is no longer in accordance with the legal conscience of to-day. Similarly the methods which were adopted during the Civil War in North America in a prison in the Southern States, against prisoners of war of the Union Forces, whereby the men were kept without air and nourishment and thus badly treated, were also against the practise of the law of war.Freedom of movement within these concentration camps or within the whole locality may be permitted if there are no special reasons against it. But obviously prisoners of war are subject to the existing, or to the appointed rules of the establishment or garrison.The Prisoner and his Taskmaster.Prisoners of war can be put to moderate work proportionate to their position in life; work is a safeguardagainst excesses. Also on grounds of health this is desirable. But these tasks should not be prejudicial to health nor in any way dishonorable or such as contribute directly or indirectly to the military operations against the Fatherland of the captives. Work for the State is, according to the Hague regulations, to be paid at the rates payable to members of the army of the State itself.Should the work be done on account of other public authorities or of private persons, then the conditions will be fixed by agreement with the military authorities. The wages of the prisoners of war must be expended in the improvement of their condition, and anything that remains should be paid over to them after deducting the cost of their maintenance when they are set free. Voluntary work in order to earn extra wages is to be allowed, if there are no particular reasons against it.54Insurrection, insubordination, misuse of the freedom granted, will of course justify severer confinement in each case, also punishment, and so will crimes and misdemeanors.Flight.Attempts at escape on the part of individuals who have not pledged their word of honor might be regardedas the expression of a natural impulse for liberty, and not as a crime. They are therefore to be punished by restriction of the privileges granted and a sharper supervision but not with death. But the latter punishment will follow of course in the case of plots to escape, if only because of the danger of them. In case of a breach of a man’s parole the punishment of death may reasonably be incurred. In some circumstances, if necessity and the behavior of the prisoners compel it, one is justified in taking measures the effect of which is to involve the innocent with the guilty.55Diet.The food of the prisoners must be sufficient and suitable to their rank, yet they will have to be content with the customary food of the country; luxuries which the prisoners wish to get at their own expense are to be permitted if reasons of discipline do not forbid.Letters.Correspondence with one’s home is to be permitted, likewise visits and intercourse, but these of course must be watched.Personal belongings.The prisoners of war remain in possession of their private property with the exception of arms, horses,and documents of a military purport. If for definite reasons any objects are taken away from them, then these must be kept in suitable places and restored to them at the end of their captivity.The Information Bureau.Article 14 of the Hague Regulations prescribes that on the outbreak of hostilities there shall be established in each of the belligerent States and in a given case in neutral States, which have received into their territory any of the combatants, an information bureau for prisoners of war. Its duty will be to answer all inquiries concerning such prisoners and to receive the necessary particulars from the services concerned in order to be able to keep a personal entry for every prisoner. The information bureau must always be kept well posted about everything which concerns a prisoner of war. Also this information bureau must collect and assign to the legitimate persons all personal objects, valuables, letters, and the like, which are found on the field of battle or have been left behind by dead prisoners of war in hospitals or field-hospitals. The information bureau enjoys freedom from postage, as do generally all postal despatches sent to or by prisoners of war. Charitable gifts for prisoners of war must be free of customs duty and also of freight charges on the public railways.The prisoners of war have, in the event of their being wounded or sick, a claim to medical assistanceand care as understood by the Geneva Convention and, so far as is possible, to spiritual ministrations also.These rules may be shortly summarized as follows:Prisoners of war are subject to the laws of the country in which they find themselves, particularly the rules in force in the army of the local State; they are to be treated like one’s own soldiers, neither worse nor better.When Prisoners may be put to Death.The following considerations hold good as regard the imposition of a death penalty in the case of prisoners; they can be put to death:1. In case they commit offenses or are guilty of practises which are punishable by death by civil or military laws.2. In case of insubordination, attempts at escape, etc., deadly weapons can be employed.3. In case of overwhelming necessity, as reprisals, either against similar measures, or against other irregularities on the part of the management of the enemy’s army.4. In case of overwhelming necessity, when other means of precaution do not exist and the existence of the prisoners becomes a danger to one’s own existence.“Reprisals.”As regards the admissibility of reprisals, it is to be remarked that these are objected to by numerous teachers of international law on grounds of humanity.To make this a matter of principle, and apply it to every case exhibits, however, “a misconception due to intelligible but exaggerated and unjustifiable feelings of humanity, of the significance, the seriousness and the right of war. It must not be overlooked that here also the necessity of war, and the safety of the State are the first consideration, and not regard for the unconditional freedom of prisoners from molestation.”56One must not be too scrupulous.That prisoners should only be killed in the event of extreme necessity, and that only the duty of self-preservation and the security of one’s own State can justify a proceeding of this kind is to-day universally admitted. But that these considerations have not always been decisive is proved by the shooting of 2,000 Arabs at Jaffa in 1799 by Napoleon; of the prisoners in the rising of La Vendée; in the Carlist War; in Mexico, and in the American War of Secession, where it was generally a case of deliverance from burdensome supervision and the difficulties of maintenance; whereas peoples of a higher morality such as the Boers in our own days, finding themselves in a similar position, have preferred to let their prisoners go. For the rest, calamities such as might lead to the shooting of prisoners are scarcely likely to happen under the excellent conditions of transport in our own time and the correspondinglysmall difficulty of feeding them—in a European campaign.57The end of Captivity.The captivity of war comes to an end:1. By force of circumstances whichde factodetermine it, for example, successful escape, cessation of the war, or death.2. By becoming the subject of the enemy’s state.3. By release, whether conditional or unconditional, unilateral or reciprocal.4. By exchange.As to 1. With the cessation of the war every reason for the captivity ceases, provided there exist no special grounds for another view. It is on that account that care should be taken to discharge prisoners immediately. There remain only prisonerssentenced to punishment or awaiting trial,i.e., until the expiation of their sentence or the end of their trial as the case may be.As to 2. This pre-supposes the readiness of the State to accept the prisoner as a subject.Parole.As to 3. A man released under certain conditions has to fulfil them without question. If he does not do this, and again falls into the hands of his enemy, then he must expect to be dealt with by military law, and indeed according to circumstances with the punishment of death. A conditional release cannot be imposed on the captive; still less is there any obligation upon the state to discharge a prisoner on conditions—for example, on his parole. The release depends entirely on the discretion of the State, as does also the determination of its limits and the persons to whom it shall apply.The release of whole detachments on their parole is not usual. It is rather to be regarded as an arrangement with each particular individual.Arrangements of this kind, every one of which is as a rule made a conditional discharge, must be very precisely formulated and the wording of them most carefully scrutinized. In particular it must be precisely expressed whether the person released is only bound no longer to fight directly with arms against the State which releases him, in the present war, whether he is justified in rendering services to hisown country in other positions or in the colonies, etc., or whether all and every kind of service is forbidden him.The question whether the parole given by an officer or a soldier is recognized as binding or not by his own State depends on whether the legislation or even the military instructions permit or forbid the giving of one’s parole.58In the first case his own State must not command him to do services the performance of which he has pledged himself not to undertake.59But personally the man released on parole is under all circumstances bound to observe it. He destroys his honor if he breaks his word, and is liable to punishment if recaptured, even though he has been hindered by his own State from keeping it.60According to the Hague Regulations a Government can demand no services which are in conflict with a man’s parole.Exchange of Prisoners.As to 4. The exchange of prisoners in a single case can take place between two belligerents without its being necessary in every case to make circumstantial agreements. As regards the scope of the exchange and the forms in which it is to be completed the Commanding Officers on both sides alone decide. Usually the exchange is man for man, in which case the different categories of military persons are taken into account and certain ratios established as to what constitutes equivalents.Removal of Prisoners.Transport of Prisoners.—Since no Army makes prisoners in order to let them escape again afterwards, measures must be taken for their transport in order to prevent attempts at escape. If one recalls that in the year 1870–71, no fewer than 11,160 officers and 333,885 men were brought from France to Germany, and as a result many thousands often had to be guarded by a proportionately small company, one must admit that in such a position only the most zealous energy and ruthless employment of all the means at one’s disposal can avail, and although it is opposed to military sentiment to use weapons against the defenseless, none the less in such a case one has no other choice. The captive who seeks to free himself by flight does so at his peril and can complainof no violence which the custody of prisoners directs in order to prevent behavior of that kind. Apart from these apparently harsh measures against attempt at escape, the transport authorities must do everything they can to alleviate the lot of the sick and wounded prisoners, in particular they are to protect them against insults and ill-treatment from an excited mob.3.Sieges and BombardmentsFair Game.War is waged not merely with the hostile combatants but also with the inanimate military resources of the enemy. This includes not only the fortresses but also every town and every village which is an obstacle to military progress. All can be besieged and bombarded, stormed and destroyed, if they are defended by the enemy, and in some cases even if they are only occupied. There has always been a divergence of views, among Professors of International Law, as to the means which are permissible for waging war against these inanimate objects, and these views have frequently been in strong conflict with those of soldiers; it is therefore necessary to go into this question more closely.We have to distinguish:(a) Fortresses, strong places, and fortified places.(b) Open towns, villages, buildings, and the like, which, however, are occupied or used for military purposes.Fortresses and strong places are important centers of defense, not merely in a military sense, but also in a political and economic sense. They furnish a principal resource to the enemy and can therefore be bombarded just like the hostile army itself.Of making the most of one’s opportunity.A preliminary notification of bombardment is just as little to be required as in the case of a sudden assault. The claims to the contrary put forward by some jurists are completely inconsistent with war and must be repudiated by soldiers; the cases in which a notification has been voluntarily given do not prove its necessity. The besieger will have to consider for himself the question whether the very absence of notification may not be itself a factor of success, by means of surprise, and indeed whether notification will not mean a loss of precious time. If there is no danger of this then humanity no doubt demands such a notification.Since town and fortifications belong together and form an inseparable unity, and can seldom in a military sense, and never in an economic and political sense, be separated, the bombardment will not limit itself to the actual fortification, but it will and must extend over the whole town; the reason for this lies in the fact that a restriction of the bombardment to the fortifications is impracticable; it would jeopardize the success of the operation, and wouldquite unjustifiably protect the defenders who are not necessarily quartered in the works.Spare the Churches.But this does not preclude the exemption by the besieger of certain sections and buildings of the fortress or town from bombardment, such as churches, schools, libraries, museums, and the like, so far as this is possible.But of course it is assumed that buildings seeking this protection will be distinguishable and that they are not put to defensive uses. Should this happen, then every humanitarian consideration must give way. The utterances of French writers about the bombardments of Strasburg Cathedral in the year 1870, are therefore quite without justification, since it only happened after an observatory for officers of artillery had been erected on the tower.The only exemption from bombardment recognized by international law, through the medium of the Geneva Convention, concerns hospitals and convalescent establishments. Their extension is left to the discretion of the besieger.A Bombardment is no Respecter of Persons.As regards the civil population of a fortified place the rule is: All the inhabitants, whether natives or foreigners, whether permanent or temporary residents, are to be treated alike.No exception need be made in regard to the diplomatists of neutral States who happen to be in the town; if before or during the investment by the besiegertheir attention is drawn to the fate to which they expose themselves by remaining, and if days of grace in which to leave are afforded them, that simply rests on the courtesy of the besieger. No such duty is incumbent upon him in international law. Also permission to send out couriers with diplomatic despatches depends entirely upon the discretion of the besieger. In any case it will always depend on whether the necessary security against misuse is provided.61A timely severity.If the commandant of a fortress wishes to strengthen its defensive capacity by expelling a portion of the population such as women, children, old people, wounded, etc., then he must take these steps in good time,i.e., before the investment begins. If the investment is completed, no claim to the free passage of these classes can be made good. All juristic demands to the contrary are as a matter of principle to be repudiated, as being in fundamental conflict with the principles of war. The very presenceof such persons may accelerate the surrender of the place in certain circumstances, and it would therefore be foolish of a besieger to renounce voluntarily this advantage.62Once the surrender of a fortress is accomplished, then, by the usages of war to-day, any further destruction, annihilation, incendiarism, and the like, are completely excluded. The only further injuries that are permitted are those demanded or necessitated by the object of the war,e.g., destruction of fortifications,removal of particular buildings, or in some circumstances of complete quarters, rectification of the foreground and so on.“Undefended Places.”A prohibition by international law of the bombardment of open towns and villages which are not occupied by the enemy, or defended, was, indeed, put into words by the Hague Regulations, but appears superfluous, since modern military history knows of hardly any such case.But the matter is different where open towns are occupied by the enemy or are defended. In this case, naturally all the rules stated above as to fortified places hold good, and the simple rules of tactics dictate that fire should be directed not merely against the bounds of the place, so that the space behind the enemy’s firing line and any reserves that may be there shall not escape. A bombardment is indeed justified, and unconditionally dictated by military consideration, if the occupation of the village is not with a view to its defense but only for the passage of troops, or to screen an approach or retreat, or to prepare or cover a tactical movement, or to take up supplies, etc. The only criterion is the value which the place possesses for the enemy in the existing situation.Regarding it from this point of view, the bombardment of Kehl by the French in 1870 was justified by military necessity, although the place bombarded wasan open town and not directly defended. “Kehl offered the attacking force the opportunity of establishing itself in its buildings, and of bringing up and placing there its personnel and material, unseen by the defenders. It became a question of making Kehl inaccessible to the enemy and of depriving it of the characteristics which made its possession advantageous to the enemy. The aforesaid justification was not very evident.”63Also the bombardment of the open town of Saarbrücken cannot from the military point of view be the subject of reproach against the French. On August 2nd a Company of the Fusilier Regiment No. 40 had actually occupied the railway station and several others had taken up a position in the town. It was against these troops that the fire of the French was primarily directed. If havoc was spread in the town, that could scarcely be avoided. In the night of August 3rd to 4th, the fire of the French batteries was again directed on the railway station in order to prevent the despatch of troops and material. Against this proceeding also no objection can be made, since the movement of trains had actually taken place.If, therefore, on the German side64energetic protest were made in both cases, and the bombardmentof Kehl and Saarbrücken were declared a violation of international law, this only proves that in 1870 a proper comprehension of questions of the laws of war of this kind was not always to be found even in the highest military and official circles. But still less was this the case on the French side as is clear from the protests against the German bombardment of Dijon, Chateaudun, Bazeilles, and other places, the military justification for which is still clearer and incontestable.65B.—METHODS NOT INVOLVING THE USE OF FORCE. CUNNING, AND DECEITStratagems.Cunning in war has been permissible from the earliest times, and was esteemed all the more as itfurthered the object of war without entailing the loss of men. Surprises, laying of ambushes, feigned attacks and retreats, feigned flight, pretense of inactivity, spreading of false news as to one’s strength and dispositions, use of the enemy’s parole—all this was permitted and prevalent ever since war begun, and so it is to-day.66What are “dirty tricks”?As to the limits between recognized stratagems and those forms of cunning which are reprehensible, contemporary opinion, national culture, the practical needs of the moment, and the changing military situation, are so influential that it is prima facie proportionately difficult to draw any recognized limit, as difficult as between criminal selfishness and taking a justifiable advantage. Some forms of artifice are, however, under all circumstances irreconcilable with honorable fighting, especially all those which take the form of faithlessness, fraud, and breach of one’s word. Among these are breach of a safe-conduct; of a free retirement; or of an armistice, in order to gain by a surprise attack an advantage overthe enemy; feigned surrender in order to kill the enemy who then approach unsuspiciously; misuse of a flag of truce, or of the Red Cross, in order to secure one’s approach, or in case of attack, deliberate violation of a solemnly concluded obligation,e.g., of a war treaty; incitement to crime, such as murder of the enemy’s leaders, incendiarism, robbery, and the like. This kind of outrage was an offense against the law of nations even in the earliest times. The natural conscience of mankind whose spirit is chivalrously alive in the armies of all civilized States, has branded it as an outrage upon human right, and enemies who in such a public manner violate the laws of honor and justice have been regarded as no longer on an equality.67Of False Uniforms.The views of military authorities about methods of this kind, as also of those which are on the borderline, frequently differ from the views held by notable jurists. So also the putting on of enemy’s uniforms, the employment of enemy or neutral flags and marks, with the object of deception are as a rule declaredpermissible by the theory of the laws of war,68while military writers69have expressed themselves unanimously against them. The Hague Conference has adopted the latter view in forbidding the employment of enemy’s uniforms and military marks equally with the misuse of flags of truce and of the Red Cross.70The Corruption of others may be useful.And murder is one of the Fine Arts.Bribery of the enemy’s subjects with the object of obtaining military advantages, acceptance of offers of treachery, reception of deserters, utilization of the discontented elements in the population, support of pretenders and the like, are permissible, indeed internationallaw is in no way opposed71to the exploitation of the crimes of third parties (assassination, incendiarism, robbery, and the like) to the prejudice of the enemy.The ugly is often expedient, and that it is a mistake to be too “nice-minded.”Considerations of chivalry, generosity, and honor may denounce in such cases a hasty and unsparing exploitation of such advantages as indecent and dishonorable, but law which is less touchy allows it.72“The ugly and inherently immoral aspect of such methods cannot affect the recognition of their lawfulness. The necessary aim of war gives the belligerent the right and imposes upon him, according to circumstances, the duty not to let slip the important, it may be the decisive, advantages to be gained by such means.73

Violence and Cunning.

By the means of conducting war is to be understood all those measures which can be taken by one State against the other in order to attain the object of the war, to compel one’s opponent to submit to one’s will; they may be summarized in the two ideas of Violence and Cunning, and judgment as to their applicability may be embodied in the following proposition:

What is permissible includes every means of war without which the object of the war cannot be obtained; what is reprehensible on the other hand includes every act of violence and destruction which is not demanded by the object of war.

It follows from these universally valid principles that wide limits are set to the subjective freedom and arbitrary judgment of the Commanding Officer; the precepts of civilization, freedom and honor, the traditions prevalent in the army, and the general usages of war, will have to guide his decisions.

The most important instruments of war in the possession of the enemy are his army, and his military positions; to make an end of them is the first object of war. This can happen:

1. By the annihilation, slaughter, or wounding of the individual combatants.2. By making prisoners of the same.3. By siege and bombardment.

1. By the annihilation, slaughter, or wounding of the individual combatants.

2. By making prisoners of the same.

3. By siege and bombardment.

1.Annihilation, slaughter, and wounding of the hostile combatants

How to make an end of the Enemy.

In the matter of making an end of the enemy’s forces by violence it is an incontestable and self-evident rule that the right of killing and annihilation in regard to the hostile combatants is inherent in the war power and its organs, that all means which modern inventions afford, including the fullest, most dangerous, and most massive means of destruction, may be utilized; these last, just because they attain the object of war as quickly as possible, are on that account to be regarded as indispensable and, when closely considered, the most human.

The Rules of the Game.

As a supplement to this rule, the usages of war recognize the desirability of not employing severer forms of violence if and when the object of the war may be attained by milder means, and furthermorethat certain means of war which lead to unnecessary suffering are to be excluded. To such belong:

The use of poison both individually and collectively (such as poisoning of streams and food supplies47) the propagation of infectious diseases.Assassination, proscription, and outlawry of an opponent.48The use of arms which cause useless suffering, such as soft-nosed bullets, glass, etc.The killing of wounded or prisoners who are no longer capable of offering resistance.49The refusal of quarter to soldiers who have laid down their arms and allowed themselves to be captured.

The use of poison both individually and collectively (such as poisoning of streams and food supplies47) the propagation of infectious diseases.

Assassination, proscription, and outlawry of an opponent.48

The use of arms which cause useless suffering, such as soft-nosed bullets, glass, etc.

The killing of wounded or prisoners who are no longer capable of offering resistance.49

The refusal of quarter to soldiers who have laid down their arms and allowed themselves to be captured.

The progress of modern invention has made superfluous the express prohibition of certain old-fashioned but formerly legitimate instruments of war (chain shot, red-hot shot, pitch balls, etc.), since others, more effective, have been substituted for these; on theother hand the use of projectiles of less than 400 grammes in weight is prohibited by the St. Petersburg Convention of December 11th, 1868. (This only in the case of musketry.50)

He who offends against any of these prohibitions is to be held responsible therefore by the State. If he is captured he is subject to the penalties of military law.

Colored Troops are “Blacklegs.”

Closely connected with the unlawful instruments of war is the employment of uncivilized and barbarous peoples in European wars. Looked at from the point of view of law it can, of course, not be forbidden to any State to call up armed forces from its extra-European colonies, but the practise stands in express contradiction to the modern movement for humanizing the conduct of war and for alleviating its attendant sufferings, if men and troops are employed in war, who are without the knowledge of civilized warfare and by whom, therefore, the very cruelties and inhumanities forbidden by the usages of war are committed. The employment of these kinds of troops is therefore to be compared with the use of the instruments of war already described asforbidden. The transplantation of African and Mohammedan Turcos to a European seat of war in the year 1870 was, therefore, undoubtedly to be regarded as a retrogression from civilized to barbarous warfare, since these troops had and could have no conception of European-Christian culture, or respect for property and for the honor of women, etc.51

2.Capture of Enemy Combatants

Prisoners of War.

If individual members or parties of the army fall into the power of the enemy’s forces, either through their being disarmed and defenseless, or through their being obliged to cease from hostilities in consequence of a formal capitulation, they are then in the position of “prisoners of war,” and thereby in some measure exchange an active for a passive position.

Vae Victis!

According to the older doctrine of international law all persons belonging to the hostile State, whether combatants or non-combatants, who happen to fall into the hands of their opponent, are in the position of prisoners of war. He could deal with them according to his pleasure, ill-treat them, kill them, lead them away into bondage, or sell them into slavery. History knows but few exceptions to this rule, these being the result of particular treaties. In the Middle Ages the Church tried to intervene as mediator in order to ameliorate the lot of the prisoners, but without success. Only the prospect of ransom, and chivalrous ideas in the case of individuals, availed to give any greater protection. It is to be borne in mind that the prisoners belonged to him who had captured them, a conception which began to disappear after the Thirty Years’ War. The treatment of prisoners of war was mostly harsh and inhuman; still, in the seventeenth century, it was usual to secure their lot by a treaty on the outbreak of a war.

The credit of having opened the way to another conception of war captivity belongs to Frederick the Great and Franklin, inasmuch as they inserted in the famous Treaty of friendship, concluded in 1785 between Prussia and North America, entirely new regulations as to the treatment of prisoners of war.

The Modern View.

The complete change in the conception of war introduced in recent times has in consequence changedall earlier ideas as to the position and treatment of prisoners of war. Starting from the principle that only States and not private persons are in the position of enemies in time of war, and that an enemy who is disarmed and taken prisoner is no longer an object of attack, the doctrine of war captivity is entirely altered and the position of prisoners has become assimilated to that of the wounded and the sick.

Prisoners of War are to be honorably treated.

The present position of international law and the law of war on the subject of prisoners of war is based on the fundamental conception that they are the captives not of private individuals, that is to say of Commanders, Soldiers, or Detachments of Troops, but that they are the captives of the State. But the State regards them as persons who have simply done their duty and obeyed the commands of their superiors, and in consequence views their captivity not as penal but merely as precautionary.

It therefore follows that the object of war captivity is simply to prevent the captives from taking any further part in the war, and that the State can, in fact, do everything which appears necessary for securing the captives, but nothing beyond that. The captives have therefore to submit to all those restrictions and inconveniences which the purpose of securing them necessitates; they can collectively be involved in a common suffering if some individualsamong them have provoked sterner treatment; but, on the other hand, they are protected against unjustifiable severities, ill-treatment, and unworthy handling; they do, indeed, lose their freedom, but not their rights; war captivity is, in other words, no longer an act of grace on the part of the victor but a right of the defenseless.

Who may be made Prisoners.

According to the notions of the laws of war to-day the following persons are to be treated as prisoners of war:

1. The Sovereign, together with those members of his family who were capable of bearing arms, the chief of the enemy’s State, generally speaking, and the Ministers who conduct its policy even though they are not among the individuals belonging to the active army.522. All persons belonging to the armed forces.3. All Diplomatists and Civil Servants attached to the army.4. All civilians staying with the army, with the approval of its Commanders, such as transport, sutlers, contractors, newspaper correspondents, and the like.5. All persons actively concerned with the war such as Higher Officials, Diplomatists, Couriers, and the like, as also all those persons whose freedom can be a danger to the army of the other State, forexample, Journalists of hostile opinions, prominent and influential leaders of Parties, Clergy who excite the people, and such like.536. The mass of the population of a province or a district if they rise in defense of their country.

2. All persons belonging to the armed forces.

3. All Diplomatists and Civil Servants attached to the army.

4. All civilians staying with the army, with the approval of its Commanders, such as transport, sutlers, contractors, newspaper correspondents, and the like.

5. All persons actively concerned with the war such as Higher Officials, Diplomatists, Couriers, and the like, as also all those persons whose freedom can be a danger to the army of the other State, forexample, Journalists of hostile opinions, prominent and influential leaders of Parties, Clergy who excite the people, and such like.53

6. The mass of the population of a province or a district if they rise in defense of their country.

The points of view regarding the treatment of prisoners of war may be summarized in the following rules:

Prisoners of war are subject to the laws of the State which has captured them.

The treatment of Prisoners of War.

The relation of the prisoners of war to their own former superiors ceases during their captivity; a captured officer’s servant steps into the position of a private servant. Captured officers are never the superiors of soldiers of the State which has captured them; on the contrary, they are under the orders of such of the latter as are entrusted with their custody.

The prisoners of war have, in the places in which they are quartered, to submit to such restrictions of their liberty as are necessary for their safe keeping. They have strictly to comply with the obligation imposed upon them, not to move beyond a certain indicated boundary.

Their confinement.

These measures for their safe keeping are not tobe exceeded; in particular, penal confinement, fetters, and unnecessary restrictions of freedom are only to be resorted to if particular reasons exist to justify or necessitate them.

The concentration camps in which prisoners of war are quartered must be as healthy, clean, and decent as possible; they should not be prisons or convict establishments.

It is true that the French captives were transported by the Russians to Siberia as malefactors in the years 1812 and 1813. This was a measure which was not illegitimate according to the older practise of war, but it is no longer in accordance with the legal conscience of to-day. Similarly the methods which were adopted during the Civil War in North America in a prison in the Southern States, against prisoners of war of the Union Forces, whereby the men were kept without air and nourishment and thus badly treated, were also against the practise of the law of war.

Freedom of movement within these concentration camps or within the whole locality may be permitted if there are no special reasons against it. But obviously prisoners of war are subject to the existing, or to the appointed rules of the establishment or garrison.

The Prisoner and his Taskmaster.

Prisoners of war can be put to moderate work proportionate to their position in life; work is a safeguardagainst excesses. Also on grounds of health this is desirable. But these tasks should not be prejudicial to health nor in any way dishonorable or such as contribute directly or indirectly to the military operations against the Fatherland of the captives. Work for the State is, according to the Hague regulations, to be paid at the rates payable to members of the army of the State itself.

Should the work be done on account of other public authorities or of private persons, then the conditions will be fixed by agreement with the military authorities. The wages of the prisoners of war must be expended in the improvement of their condition, and anything that remains should be paid over to them after deducting the cost of their maintenance when they are set free. Voluntary work in order to earn extra wages is to be allowed, if there are no particular reasons against it.54Insurrection, insubordination, misuse of the freedom granted, will of course justify severer confinement in each case, also punishment, and so will crimes and misdemeanors.

Flight.

Attempts at escape on the part of individuals who have not pledged their word of honor might be regardedas the expression of a natural impulse for liberty, and not as a crime. They are therefore to be punished by restriction of the privileges granted and a sharper supervision but not with death. But the latter punishment will follow of course in the case of plots to escape, if only because of the danger of them. In case of a breach of a man’s parole the punishment of death may reasonably be incurred. In some circumstances, if necessity and the behavior of the prisoners compel it, one is justified in taking measures the effect of which is to involve the innocent with the guilty.55

Diet.

The food of the prisoners must be sufficient and suitable to their rank, yet they will have to be content with the customary food of the country; luxuries which the prisoners wish to get at their own expense are to be permitted if reasons of discipline do not forbid.

Letters.

Correspondence with one’s home is to be permitted, likewise visits and intercourse, but these of course must be watched.

Personal belongings.

The prisoners of war remain in possession of their private property with the exception of arms, horses,and documents of a military purport. If for definite reasons any objects are taken away from them, then these must be kept in suitable places and restored to them at the end of their captivity.

The Information Bureau.

Article 14 of the Hague Regulations prescribes that on the outbreak of hostilities there shall be established in each of the belligerent States and in a given case in neutral States, which have received into their territory any of the combatants, an information bureau for prisoners of war. Its duty will be to answer all inquiries concerning such prisoners and to receive the necessary particulars from the services concerned in order to be able to keep a personal entry for every prisoner. The information bureau must always be kept well posted about everything which concerns a prisoner of war. Also this information bureau must collect and assign to the legitimate persons all personal objects, valuables, letters, and the like, which are found on the field of battle or have been left behind by dead prisoners of war in hospitals or field-hospitals. The information bureau enjoys freedom from postage, as do generally all postal despatches sent to or by prisoners of war. Charitable gifts for prisoners of war must be free of customs duty and also of freight charges on the public railways.

The prisoners of war have, in the event of their being wounded or sick, a claim to medical assistanceand care as understood by the Geneva Convention and, so far as is possible, to spiritual ministrations also.

These rules may be shortly summarized as follows:

Prisoners of war are subject to the laws of the country in which they find themselves, particularly the rules in force in the army of the local State; they are to be treated like one’s own soldiers, neither worse nor better.

When Prisoners may be put to Death.

The following considerations hold good as regard the imposition of a death penalty in the case of prisoners; they can be put to death:

1. In case they commit offenses or are guilty of practises which are punishable by death by civil or military laws.2. In case of insubordination, attempts at escape, etc., deadly weapons can be employed.3. In case of overwhelming necessity, as reprisals, either against similar measures, or against other irregularities on the part of the management of the enemy’s army.4. In case of overwhelming necessity, when other means of precaution do not exist and the existence of the prisoners becomes a danger to one’s own existence.

1. In case they commit offenses or are guilty of practises which are punishable by death by civil or military laws.

2. In case of insubordination, attempts at escape, etc., deadly weapons can be employed.

3. In case of overwhelming necessity, as reprisals, either against similar measures, or against other irregularities on the part of the management of the enemy’s army.

4. In case of overwhelming necessity, when other means of precaution do not exist and the existence of the prisoners becomes a danger to one’s own existence.

“Reprisals.”

As regards the admissibility of reprisals, it is to be remarked that these are objected to by numerous teachers of international law on grounds of humanity.To make this a matter of principle, and apply it to every case exhibits, however, “a misconception due to intelligible but exaggerated and unjustifiable feelings of humanity, of the significance, the seriousness and the right of war. It must not be overlooked that here also the necessity of war, and the safety of the State are the first consideration, and not regard for the unconditional freedom of prisoners from molestation.”56

One must not be too scrupulous.

That prisoners should only be killed in the event of extreme necessity, and that only the duty of self-preservation and the security of one’s own State can justify a proceeding of this kind is to-day universally admitted. But that these considerations have not always been decisive is proved by the shooting of 2,000 Arabs at Jaffa in 1799 by Napoleon; of the prisoners in the rising of La Vendée; in the Carlist War; in Mexico, and in the American War of Secession, where it was generally a case of deliverance from burdensome supervision and the difficulties of maintenance; whereas peoples of a higher morality such as the Boers in our own days, finding themselves in a similar position, have preferred to let their prisoners go. For the rest, calamities such as might lead to the shooting of prisoners are scarcely likely to happen under the excellent conditions of transport in our own time and the correspondinglysmall difficulty of feeding them—in a European campaign.57

The end of Captivity.

The captivity of war comes to an end:

1. By force of circumstances whichde factodetermine it, for example, successful escape, cessation of the war, or death.2. By becoming the subject of the enemy’s state.3. By release, whether conditional or unconditional, unilateral or reciprocal.4. By exchange.

1. By force of circumstances whichde factodetermine it, for example, successful escape, cessation of the war, or death.

2. By becoming the subject of the enemy’s state.

3. By release, whether conditional or unconditional, unilateral or reciprocal.

4. By exchange.

As to 1. With the cessation of the war every reason for the captivity ceases, provided there exist no special grounds for another view. It is on that account that care should be taken to discharge prisoners immediately. There remain only prisonerssentenced to punishment or awaiting trial,i.e., until the expiation of their sentence or the end of their trial as the case may be.

As to 2. This pre-supposes the readiness of the State to accept the prisoner as a subject.

Parole.

As to 3. A man released under certain conditions has to fulfil them without question. If he does not do this, and again falls into the hands of his enemy, then he must expect to be dealt with by military law, and indeed according to circumstances with the punishment of death. A conditional release cannot be imposed on the captive; still less is there any obligation upon the state to discharge a prisoner on conditions—for example, on his parole. The release depends entirely on the discretion of the State, as does also the determination of its limits and the persons to whom it shall apply.

The release of whole detachments on their parole is not usual. It is rather to be regarded as an arrangement with each particular individual.

Arrangements of this kind, every one of which is as a rule made a conditional discharge, must be very precisely formulated and the wording of them most carefully scrutinized. In particular it must be precisely expressed whether the person released is only bound no longer to fight directly with arms against the State which releases him, in the present war, whether he is justified in rendering services to hisown country in other positions or in the colonies, etc., or whether all and every kind of service is forbidden him.

The question whether the parole given by an officer or a soldier is recognized as binding or not by his own State depends on whether the legislation or even the military instructions permit or forbid the giving of one’s parole.58In the first case his own State must not command him to do services the performance of which he has pledged himself not to undertake.59But personally the man released on parole is under all circumstances bound to observe it. He destroys his honor if he breaks his word, and is liable to punishment if recaptured, even though he has been hindered by his own State from keeping it.60According to the Hague Regulations a Government can demand no services which are in conflict with a man’s parole.

Exchange of Prisoners.

As to 4. The exchange of prisoners in a single case can take place between two belligerents without its being necessary in every case to make circumstantial agreements. As regards the scope of the exchange and the forms in which it is to be completed the Commanding Officers on both sides alone decide. Usually the exchange is man for man, in which case the different categories of military persons are taken into account and certain ratios established as to what constitutes equivalents.

Removal of Prisoners.

Transport of Prisoners.—Since no Army makes prisoners in order to let them escape again afterwards, measures must be taken for their transport in order to prevent attempts at escape. If one recalls that in the year 1870–71, no fewer than 11,160 officers and 333,885 men were brought from France to Germany, and as a result many thousands often had to be guarded by a proportionately small company, one must admit that in such a position only the most zealous energy and ruthless employment of all the means at one’s disposal can avail, and although it is opposed to military sentiment to use weapons against the defenseless, none the less in such a case one has no other choice. The captive who seeks to free himself by flight does so at his peril and can complainof no violence which the custody of prisoners directs in order to prevent behavior of that kind. Apart from these apparently harsh measures against attempt at escape, the transport authorities must do everything they can to alleviate the lot of the sick and wounded prisoners, in particular they are to protect them against insults and ill-treatment from an excited mob.

3.Sieges and Bombardments

Fair Game.

War is waged not merely with the hostile combatants but also with the inanimate military resources of the enemy. This includes not only the fortresses but also every town and every village which is an obstacle to military progress. All can be besieged and bombarded, stormed and destroyed, if they are defended by the enemy, and in some cases even if they are only occupied. There has always been a divergence of views, among Professors of International Law, as to the means which are permissible for waging war against these inanimate objects, and these views have frequently been in strong conflict with those of soldiers; it is therefore necessary to go into this question more closely.

We have to distinguish:

(a) Fortresses, strong places, and fortified places.(b) Open towns, villages, buildings, and the like, which, however, are occupied or used for military purposes.

(a) Fortresses, strong places, and fortified places.

(b) Open towns, villages, buildings, and the like, which, however, are occupied or used for military purposes.

Fortresses and strong places are important centers of defense, not merely in a military sense, but also in a political and economic sense. They furnish a principal resource to the enemy and can therefore be bombarded just like the hostile army itself.

Of making the most of one’s opportunity.

A preliminary notification of bombardment is just as little to be required as in the case of a sudden assault. The claims to the contrary put forward by some jurists are completely inconsistent with war and must be repudiated by soldiers; the cases in which a notification has been voluntarily given do not prove its necessity. The besieger will have to consider for himself the question whether the very absence of notification may not be itself a factor of success, by means of surprise, and indeed whether notification will not mean a loss of precious time. If there is no danger of this then humanity no doubt demands such a notification.

Since town and fortifications belong together and form an inseparable unity, and can seldom in a military sense, and never in an economic and political sense, be separated, the bombardment will not limit itself to the actual fortification, but it will and must extend over the whole town; the reason for this lies in the fact that a restriction of the bombardment to the fortifications is impracticable; it would jeopardize the success of the operation, and wouldquite unjustifiably protect the defenders who are not necessarily quartered in the works.

Spare the Churches.

But this does not preclude the exemption by the besieger of certain sections and buildings of the fortress or town from bombardment, such as churches, schools, libraries, museums, and the like, so far as this is possible.

But of course it is assumed that buildings seeking this protection will be distinguishable and that they are not put to defensive uses. Should this happen, then every humanitarian consideration must give way. The utterances of French writers about the bombardments of Strasburg Cathedral in the year 1870, are therefore quite without justification, since it only happened after an observatory for officers of artillery had been erected on the tower.

The only exemption from bombardment recognized by international law, through the medium of the Geneva Convention, concerns hospitals and convalescent establishments. Their extension is left to the discretion of the besieger.

A Bombardment is no Respecter of Persons.

As regards the civil population of a fortified place the rule is: All the inhabitants, whether natives or foreigners, whether permanent or temporary residents, are to be treated alike.

No exception need be made in regard to the diplomatists of neutral States who happen to be in the town; if before or during the investment by the besiegertheir attention is drawn to the fate to which they expose themselves by remaining, and if days of grace in which to leave are afforded them, that simply rests on the courtesy of the besieger. No such duty is incumbent upon him in international law. Also permission to send out couriers with diplomatic despatches depends entirely upon the discretion of the besieger. In any case it will always depend on whether the necessary security against misuse is provided.61

A timely severity.

If the commandant of a fortress wishes to strengthen its defensive capacity by expelling a portion of the population such as women, children, old people, wounded, etc., then he must take these steps in good time,i.e., before the investment begins. If the investment is completed, no claim to the free passage of these classes can be made good. All juristic demands to the contrary are as a matter of principle to be repudiated, as being in fundamental conflict with the principles of war. The very presenceof such persons may accelerate the surrender of the place in certain circumstances, and it would therefore be foolish of a besieger to renounce voluntarily this advantage.62

Once the surrender of a fortress is accomplished, then, by the usages of war to-day, any further destruction, annihilation, incendiarism, and the like, are completely excluded. The only further injuries that are permitted are those demanded or necessitated by the object of the war,e.g., destruction of fortifications,removal of particular buildings, or in some circumstances of complete quarters, rectification of the foreground and so on.

“Undefended Places.”

A prohibition by international law of the bombardment of open towns and villages which are not occupied by the enemy, or defended, was, indeed, put into words by the Hague Regulations, but appears superfluous, since modern military history knows of hardly any such case.

But the matter is different where open towns are occupied by the enemy or are defended. In this case, naturally all the rules stated above as to fortified places hold good, and the simple rules of tactics dictate that fire should be directed not merely against the bounds of the place, so that the space behind the enemy’s firing line and any reserves that may be there shall not escape. A bombardment is indeed justified, and unconditionally dictated by military consideration, if the occupation of the village is not with a view to its defense but only for the passage of troops, or to screen an approach or retreat, or to prepare or cover a tactical movement, or to take up supplies, etc. The only criterion is the value which the place possesses for the enemy in the existing situation.

Regarding it from this point of view, the bombardment of Kehl by the French in 1870 was justified by military necessity, although the place bombarded wasan open town and not directly defended. “Kehl offered the attacking force the opportunity of establishing itself in its buildings, and of bringing up and placing there its personnel and material, unseen by the defenders. It became a question of making Kehl inaccessible to the enemy and of depriving it of the characteristics which made its possession advantageous to the enemy. The aforesaid justification was not very evident.”63

Also the bombardment of the open town of Saarbrücken cannot from the military point of view be the subject of reproach against the French. On August 2nd a Company of the Fusilier Regiment No. 40 had actually occupied the railway station and several others had taken up a position in the town. It was against these troops that the fire of the French was primarily directed. If havoc was spread in the town, that could scarcely be avoided. In the night of August 3rd to 4th, the fire of the French batteries was again directed on the railway station in order to prevent the despatch of troops and material. Against this proceeding also no objection can be made, since the movement of trains had actually taken place.

If, therefore, on the German side64energetic protest were made in both cases, and the bombardmentof Kehl and Saarbrücken were declared a violation of international law, this only proves that in 1870 a proper comprehension of questions of the laws of war of this kind was not always to be found even in the highest military and official circles. But still less was this the case on the French side as is clear from the protests against the German bombardment of Dijon, Chateaudun, Bazeilles, and other places, the military justification for which is still clearer and incontestable.65

Stratagems.

Cunning in war has been permissible from the earliest times, and was esteemed all the more as itfurthered the object of war without entailing the loss of men. Surprises, laying of ambushes, feigned attacks and retreats, feigned flight, pretense of inactivity, spreading of false news as to one’s strength and dispositions, use of the enemy’s parole—all this was permitted and prevalent ever since war begun, and so it is to-day.66

What are “dirty tricks”?

As to the limits between recognized stratagems and those forms of cunning which are reprehensible, contemporary opinion, national culture, the practical needs of the moment, and the changing military situation, are so influential that it is prima facie proportionately difficult to draw any recognized limit, as difficult as between criminal selfishness and taking a justifiable advantage. Some forms of artifice are, however, under all circumstances irreconcilable with honorable fighting, especially all those which take the form of faithlessness, fraud, and breach of one’s word. Among these are breach of a safe-conduct; of a free retirement; or of an armistice, in order to gain by a surprise attack an advantage overthe enemy; feigned surrender in order to kill the enemy who then approach unsuspiciously; misuse of a flag of truce, or of the Red Cross, in order to secure one’s approach, or in case of attack, deliberate violation of a solemnly concluded obligation,e.g., of a war treaty; incitement to crime, such as murder of the enemy’s leaders, incendiarism, robbery, and the like. This kind of outrage was an offense against the law of nations even in the earliest times. The natural conscience of mankind whose spirit is chivalrously alive in the armies of all civilized States, has branded it as an outrage upon human right, and enemies who in such a public manner violate the laws of honor and justice have been regarded as no longer on an equality.67

Of False Uniforms.

The views of military authorities about methods of this kind, as also of those which are on the borderline, frequently differ from the views held by notable jurists. So also the putting on of enemy’s uniforms, the employment of enemy or neutral flags and marks, with the object of deception are as a rule declaredpermissible by the theory of the laws of war,68while military writers69have expressed themselves unanimously against them. The Hague Conference has adopted the latter view in forbidding the employment of enemy’s uniforms and military marks equally with the misuse of flags of truce and of the Red Cross.70

The Corruption of others may be useful.

And murder is one of the Fine Arts.

Bribery of the enemy’s subjects with the object of obtaining military advantages, acceptance of offers of treachery, reception of deserters, utilization of the discontented elements in the population, support of pretenders and the like, are permissible, indeed internationallaw is in no way opposed71to the exploitation of the crimes of third parties (assassination, incendiarism, robbery, and the like) to the prejudice of the enemy.

The ugly is often expedient, and that it is a mistake to be too “nice-minded.”

Considerations of chivalry, generosity, and honor may denounce in such cases a hasty and unsparing exploitation of such advantages as indecent and dishonorable, but law which is less touchy allows it.72“The ugly and inherently immoral aspect of such methods cannot affect the recognition of their lawfulness. The necessary aim of war gives the belligerent the right and imposes upon him, according to circumstances, the duty not to let slip the important, it may be the decisive, advantages to be gained by such means.73

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