with one would affect the other. The relation of the United States to France and Great Britain, at the beginning of the war of 1793, is an example of such qualified neutrality. There is an obvious difference between an alliance and such neutrality, although it is sometimes difficult to draw the line of separation. General rights as to enemy's person CHAPTER XX RIGHTS OF WAR AS TO ENEMY'S PERSON 1. General rights of war as to enemy's person-2. Limitation of the right to take life-3. Exemption of non-combatants-4. When the exemption ceases-5. Is limited in particular cases-6. When quarter may be refused-7. Treatment due to prisoners of war-8. Made slaves in ancient times-9. Ransom and exchange-10. Moral obligation of the State towards its own subjects—11. Release on parole-12. Conditions which may be imposed-13. Delays in effecting exchange-14. Duties of a State to support its subjects in the hands of the enemy-15. Where exchanges cannot be effected16. Historical example-17. Extent of support to be rendered18. Where no probability of an exchange-19. May prisoners of war be put to death?-20. Useless defence of a place-21. Sacking a captured town-22. Remarks of Napier-23. Deserters found among prisoners of war-24. Rule of reciprocity-25. Limits to this rule. § I. IT has already been shown that war places all the subjects of one belligerent State in a hostile attitude towards all the subjects of the other belligerent; and although, in order to justify us at the tribunal of conscience and in the estimation of the world, it is necessary that we should have just cause of war, and justifiable reasons for undertaking it, yet, as the justness or unjustness of a war is usually a matter of controversy between the contending parties, and not always easy to be determined, it has become an established principle of international jurisprudence that a war in form shall, in its legal effects, be considered as just on both sides, and that whatever is permitted to one of the belligerents shall also be 1 Talleyrand writing to Napoleon (November 20, 1806) says, 'According to the maxim that war is not a relation between a man and another, but between State and State, in which private persons are only accidental enemies, not such as men, nor even as members or subjects, of the State, but simply as its defenders, the law of nations does not allow that the right of war and of conquest thence derived should be applied to peaceable, unarmed citizens, to private dwellings and properties, to the merchandise of commerce, to the magazines which contain it, to the vehicles which transport it, to unarmed ships which convey it on streams and seas, in one word, to the person and the goods of private individuals.' permitted to the other. The law of nations makes no distinction, in this respect, between a just and an unjust war, both of the belligerent parties being entitled to all the rights of war as against the other, and with respect to neutrals. Each party may employ force, not only to resist the violence of the other, but also to secure the objects for which the war is undertaken. The first and most important of these rights, which the state of war has conferred upon the belligerents, is that of taking human life. This right, in its full extent, authorises the individuals of the one party to kill and destroy those of the other, whenever milder means are insufficient to conquer them or bring them to terms.1 tion of § 2. But this extreme right of war, with respect to the Limits enemy's person, has been modified and limited by the usages right to and practices of modern warfare. We may lawfully kill take life those who are actually in arms and continue to resist. The Germans, during the last Franco-Prussian war, on taking the town of St. Ménehould, threatened death to any inhabitant who should conceal fire-arms. But we may not take the lives of those who are not in arms, or who, being in arms, cease their resistance and surrender themselves into our power. The just ends of the war may be attained by making them our prisoners, or by compelling them to give security for their future conduct. Force and severity can be used only so far as may be necessary to accomplish the objects for which the war was declared.2 § 3. There are certain persons in every State who, as Exempalready stated in chapter xviii., are exempt from the tion of direct operations of war. Feeble old men, women, and batants Hautefeuille, Des Nations Neutres, tit. vii. ch. i.; Vattel, Droit des Gens, liv. iii. ch. viii. §§ 136, 137, 138; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 1; Phillimore, On Int. Law, vol. iii. § 50. 2 Cornu v. Blackburne; 2 Dougl., 644; the 'Fladoyen,' I Rob., 134. 'In 1780 Lord Cornwallis, commanding the British forces, complained to the American Major-General Gates, that the officers and men taken at King's Mountain were treated with an inhumanity scarcely credible. Also he writes to Sir Henry Clinton, "However provoked by the horrid outrages and cruelties of the enemy in this district, I have always endeavoured to soften the horrors of war, and received the acknowledgment of General Gates and the principal officers of the enemy's army for the tenderness and attention shown to their wounded and prisoners. I will not hurt your excellency's feelings by attempting to describe the shocking tortures and inhuman murders which are every day committed by the enemy, not only on those who have taken part with us, but on many who refuse to join them."'-Cornwallis, vol. i. non-com And children, and sick persons, come under the general description of enemies, and we have certain rights over them as members of the community with which we are at war; but, as they are enemies who make no resistance, we have no right to maltreat their persons, or to use any violence toward them, much less to take their lives. This is so plain a maxim of justice and humanity, that every nation in the least degree civilised acquiesces in it. modern practice has applied the same rule to ministers of religion, to men of science and letters, to professional men, artists, merchants, mechanics, agriculturists, labourers -in fine, to all non-combatants, or persons who take no part in the war, and make no resistance to our arms. The Convention of Geneva, 1864, establishes certain rules for hospitals, ambulances, and protection of wounded soldiers in time of war; ratifications have been exchanged between the 1 It has pased into French history, that in 1870, the Bavarians having been fired on by some civilians in the uniform of National Guards, set Bazeilles on fire, and drove back into the flames the inhabitants-old, young, women, and children-as they were endeavouring to escape. An eye-witness, 'M.P.,' writing to the Times (Sept. 8), denies this. Bazeilles certainly was on fire in many places, from shells, during the battle of Sedan, and the Bavarians did their best to burn out French soldiers who were attacking them from houses, and who refused to surrender. The same eye-witness speaks of some armed civilians, taken with arms in their hands on that occasion, and says that, far from being burnt alive, they were reserved for the rope the next morning (Edwards, The Germans in France). After the first occupation of Amiens, the Prussians marched out, leaving their wounded behind. The mayor, having no armed force with which to protect them, and serious fears being entertained for their safety, wrote over the doors of the hospitals, 'Honneur d'Amiens! Respect aux blessés !' This act restrained the excited townspeople (ibid.) 2 During the Franco-Prussian war, 1870, French medical officers, protected by the badge of Geneva, attended their own wounded at Soulz les Forêts after the battle of Woerth. Even irregular workers under the Geneva badge, although arrested, were not detained by either side. It was reported by the German commandant at Lichtenberg that the French had fired on the Geneva badge, and that Turcos had cut off an officer's head and killed some wounded men. The Crown Prince remarked that the Geneva flag had been fired on several times. The not unfrequent reports of one or other belligerent having fired on the Red Cross officials, is doubtless correct, and to be explained by the fact of these officials wearing a military or other uniform, which fails to distinguish them at short range from fighting men. It is most desirable that a universal, international, non-combatant uniform should be agreed on, which could be recognised at any reasonable distance, with minor distinctive decorative features which would denote the wearers' nationality. The most stupid soldiery could not plead ignorance of a Red Cross official, as they would have been thoroughly accustomed to the dress worn by their own non-fighting men in their own camps. principal civilised States. In 1868 additional Articles were proposed by several States for the purpose of extending the scope of the original Articles to hospital-ships, but they have not yet been ratified. The Articles of 1864 and of 1868 are both set out in full in an appendix to this chapter. It was the received opinion in ancient Rome, in the times of Cato and Cicero, that one who was not regularly enrolled as a soldier could not lawfully kill an enemy. But afterwards in Italy, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classes of persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to his person. But as wars are now carried on by regular troops, or, at least, by forces regularly organised, the peasants, merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in the ordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy. So long as they The Prussians, during their occupation of Versailles, required a bulletin of the health of the wounded Frenchmen, lying in the hospital of that town, to be sent to the commanding general every morning. The convalescents received an immediate order to leave for Germany as prisoners of war. Their departure from the hospital was watched by armed soldiers. The chief physician protested against their removal, as contrary to the fifth additional article of the above Convention, but in vain (Delerot, Versailles, 1870). On December 21, 1870, a German official gave notice, in writing, to the International French Society of Versailles, that it was dissolved, and that the members of ambulances, who were not native of Versailles, were to leave, for the adjoining departments, within the space of two days. It is unknown from whose authority this order emanated, but the Prussian commanding general annulled it, and requested the society to continue their duties (ibid.) At Rouen the Geneva flag was employed by the French to protect a hearse. (Edwards, The Germans in France). The examples of Cyrus, and of the Emperor Aurelian, in ancient history are not wanting to illustrate compassion for the sick and wounded in war. During the middle ages, the members of the Teutonic Order of Knighthood devoted themselves to the service of sick and wounded soldiers. This Order was founded in 1190, during the siege of Acre, by some Bremen merchants, who being moved with compassion at the sight of the miseries which the besiegers suffered, erected a hospital, where they gave constant attendance to all who had recourse to their charity. Their dress was a white mantle, with a black cross on it (Raymondi Duellii Hist. Ord. Teut.) In more modern times we read of the agreement between Louis XV. of France with Frederick the Great, that those persons who might attend on the sick and wounded during war should be treated as neutrals. Napoleon III., after the battle of Montebello (1859), restored to the enemy all wounded prisoners, without requiring any exchange. VOL. II. C |