of places taken by assault were not entitled to quarter, or that § 23. Deserters, found by the victor among his enemies, Deserters are guilty of a crime against him, and he has an undoubted right to punish them, and even to put them to death. They are not properly considered as military enemies, nor can they claim to be treated as such; they are perfidious citizens, who have committed an offence against the State; their enlistment with the enemy cannot obliterate that character, nor exempt them from the punishment they have deserved, and they are 1 Napier, Peninsular War, book xxii. chap. ii. ; Jomini, Vie Politique et Mil. de Napoléon, chaps. xiv., xvii.; Alison, Hist. of Europe, vol. iii. pp. 464, 470; vol. iv. p. 240; Southey, Peninsular War, vol. vi. p. 240; Belmas, Sièges, &c., tome iv. pp. 279, 469, app.; Jones, War in Spain, vol. ii. pp. 64, 76, 80; Thiers, Le Consulat et l'Empire, tome xiii. pp. 355, 375. VOL. II. D Rule of reciprocity generally punished under some municipal law. They are not protected by any compact of war, as a truce, capitulation, cartel, &c., unless specially and particularly mentioned and provided for. They are not military enemies in the general meaning of that term, nor are they entitled to the rights of ordinary prisoners of war, either under the law of nations, or by the general terms of a special compact or agreement. But when stipulations of amnesty are introduced into such compacts, in such terms as to include such deserters, by fair and proper intendment, good faith requires that all promises of this kind be honestly and fairly carried into effect. A violation of such agreements is infamous. Amnesties of this character are very common where the principal war is accompanied with insurrections and civil commotions, involving questions of personal duty and allegiance.1 § 24. In the operations of a war, the belligerent States not unfrequently adopt the rule of reciprocity, both with respect to the person and property of the enemy. Moreover, the same rule, as will be shown hereafter, is extended to neutrals. There is much justice and good sense in this rule, if confined within proper limits. As already remarked, modern usage has restricted many of the extreme rights of war, or at least limited their exercise and application. But this usage has not yet assumed the character of a positive law, and a belligerent will sometimes refuse to acknowledge its doctrines as fully established, or its rules as obligatory. In such a case, the opposing belligerent applies the rule of reciprocity, and metes out to his enemy the same measure of justice which he receives from him. Thus, if his enemy releases, on parole, prisoners of war, he does the same; if his enemy levies heavy contributions upon the conquered, he does the same; and if the enemy, exercising the extreme rights of war, seizes and 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 144; Heffter, Droit International, § 126; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xiv. The Duke of Wellington writing to Sir H. Wellesley, 1810, says, 'Since I have commanded the troops in this country I have always treated the French officers and soldiers who have been made prisoners with the utmost humanity and attention ; and in numerous instances I have saved their lives. . . . I must do the French the justice to say that our officers and soldiers who fell into their hands have been universally well treated, and in recent instances the wounded prisoners of the British army have been taken care of before the wounded of the French army.' destroys, or converts to his own use, public and private property, he retaliates by measures of the same character.1 tion of § 25. There is, however, a limit to this rule of reciprocity. LimitaIf the enemy refuses to shape his conduct by the milder usages the rule of war, and adopts the extreme and rigorous principles of former ages, we may do the same; but if he exceeds these extreme rights, and becomes barbarous and cruel in his conduct, we cannot, as a general thing, follow and retort upon his subjects, by treating them in like manner. We cannot go beyond the limits prescribed by international law to the rights of belligerents. The seizure and condemnation of French vessels by Great Britain, in 1803, was an exercise of an ancient and severe rule of war, for which Napoleon retaliated by the exercise of a still more extreme right, contrary to the milder rules of modern usage, by seizing all English travellers in French territory. This was regarded by the British Government as a return to barbarism, and they refused to regard the détenus as prisoners lawfully captured. However, in 1811, the British Government determined that all military and naval prisoners should be first exchanged, and, as there would remain a great surplus of French prisoners, it seemed a dictate of humanity to relieve the détenus by continuing the cartel for them, it being vain to urge the practice of modern warfare on the then French Government. If an enemy should massacre all prisoners of war, this would not afford a sufficient justification for the opposing belligerent to do the same. Suppose our enemy should use poisoned weapons, or poison springs and food, the rule of reciprocity would not justify us in resorting to the same means of retaliation. A savage enemy might kill alike old men, women, and children, but no civilised power would resort to similar measures of cruelty and barbarism, under the plea that they were justified by the law of retaliation.2 p. 64. Garden, De la Diplomatie, liv. vi. § 9; the 'Santa Cruz,' i. Rob. Rep., Wheaton, Elem. Int. Law, pt. iv. ch. i. § 2 ; Alison, Hist. of Europe, vol. ii. p. 270; Thiers, Le Consulat et l'Empire, liv. xvii.; Las Cases, Mémoires de Napoléon, vol. vii. pp. 32, 33; Martens, Nouveau Recueil, tome ii. p. 16; Garden, De la Diplomatie, liv. vi. § 9. THE CONVENTION OF GENEVA, 1864. This Convention was signed on behalf of Switzerland, Baden, Belgium, Denmark, Spain, France, Hesse-Darmstadt, Italy, Netherlands, Portugal, Prussia, and Würtemberg, August 22, 1864, and is now in full force. The following Powers have also acceded to it :-Argentine Republic, 1879; Austria, 1866; Bavaria, 1866; Bolivia, 1879; Bulgaria, 1884; Chili, 1879; Great Britain, 1865; Greece, 1865; Japan, 1887; Mecklenburg-Schwerin, 1865; Montenegro, 1875; Persia, 1874; Peru, 1880; the Pope, 1868 ; Roumania, 1874 ; Russia, 1867; Salvador, 1874 ; Saxony, 1866; Servia, 1876; Sweden and Norway, 1864; Turkey, 1865; United States, 1882. The Articles are as follows :— ART. I.—Ambulances and military hospitals shall be acknowledged to be neuter, and, as such, shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or hospitals should be held by a military force. ART. II.-Persons employed in hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality, whilst so employed, and so long as there remain any wounded to bring in or to succour. ART. III.—The persons designated in the preceding article may, even after occupation by the enemy, continue to fulfil their duties in the hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Under such circumstances, when these persons shall cease from their functions, they shall be delivered by the occupying army to the outposts of the enemy. ART. IV. As the equipment of military hospitals remains subject to the laws of war, persons attached to such hospitals cannot, in withdrawing, carry away any articles but such as are their private property. Under the same circumstances an ambulance shall, on the contrary, retain its equipment. ART. V.-Inhabitants of the country who may bring help to the wounded shall be respected and shall remain free. The generals of the belligerent Powers shall make it their care to inform the inhabitants of the appeal addressed to their humanity, and of the neutrality which will be the consequence of it. Any wounded man entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. ART. VI.-Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders-in-chief shall have the power to deliver immediately to the outposts of the enemy soldiers who have been wounded in an engagement, when circumstances permit this to be done, and with the consent of both parties. Those who are recognised, after their wounds are healed, as incapable of serving, shall be sent back to their country. The others may also be sent back, on condition of not again bearing arms during the continuance of the war. Evacuations, together with the persons under whose directions they take place, shall be protected by an absolute neutrality. ART. VII-A distinctive and uniform flag shall be adopted for hospitals, ambulances, and evacuations. It must, on every occasion, be accompanied by the national flag. An arm badge (brassard) shall also be allowed for individuals neutralised, but the delivery thereof shal be left to military authority. The flag and the arm badge shall bear a red cross on a white ground. [Turkey uses a red crescent.] ART. VIII. The details of execution of the present convention shall be regulated by the commanders-in-chief of belligerent armies, according to the instructions of their respective Governments, and in conformity with the general principles laid down in this convention. ART. IX.—The high contracting Powers have agreed to communicate the present convention to those Governments which have not found it convenient to send plenipotentiaries to the International Conference at Geneva, with an invitation to accede thereto; the procotcol is for that purpose left open. ART. X. The present convention shall be ratified and the ratifications shall be exchanged at Berne in four months, or sooner if possible. THE ADDITIONAL ARTICLES OF 1868. [The following additional articles were proposed and signed at Geneva on October 20, 1868, on behalf of Great Britain, Austria, Baden, Bavaria, Belgium, Denmark, France, Italy, Netherlands, North Germany, Sweden and Norway, Switzerland, Turkey, and Würtemberg. On July 22, 1870, it was stated by the Swiss Government that all those States on whose behalf the original convention had been signed had adhered to the additional articles, Rome and Spain excepted, but that Russia, whilst agreeing to the additional articles, proposed a supplement to Art. XIV., with the view of preventing the abuse to the distinguishing flag of neutrality; that it could not be expected that the ratifications of all the contracting States would be received directly, and consequently the final adoption of the additional articles could not take place till a more or less distant time; that the Federal Council of Switzerland had proposed to the North German Confederation and to France to recognise the Convention of Geneva with the additional articles during the war which had just broken out (the Franco-German war, 1870), as a modus vivendi, and that those Powers had readily acceded to the proposal. However, the exchange of the ratifications of these articles has not yet taken place between the contracting parties, and therefore they cannot be regarded as a treaty in full force and effect.] ART. I. The persons designated in Article II. of the convention shall, after the occupation by the enemy, continue to fulfil their duties, according to their wants, to the sick and wounded in the ambulance or the hospital which they serve. When they request to withdraw, the commander of the occupying troops shall fix the time of departure, which he shall only be allowed to delay for a short time in case of military necessity. ART. II.-Arrangements will have to be made by the belligerent Powers to ensure to the neutralised person, fallen into the hands of the army of the enemy, the entire enjoyment of his salary. ART. III.-Under the conditions provided for in Articles I. and IV. of the convention, the name ambulance applies to field hospitals and other temporary establishments, which follow the troops on the field of battle to receive the sick and wounded. |