CHAPTER XIX LAWS OF WAR. LAWS OF LAND WARFARE 139. Laws of War in General.-By the laws of war we mean not only the conventional rules adopted specifically by most of the civilized nations of the world respecting warfare but also the customs and usages which are recognized as being part of the laws of nations, but which have not become in addition formulated treaty obligations among the various nations of the earth. The early writers upon the laws of nations from the first treated of the laws of nations as applied to time of war as well as to the time of peace. As a matter of fact, more space and time were given to the period of war in early treatises not only because of the greater frequency of wars but also on account of inhumanities and suffering that resulted from wars in these earlier periods. The title of Grotius's great work was "The Law of War and Peace." "The whole growth," says Oppenheim, "of the laws and usages of war is determined by three principles. There is, first, the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realization of the purpose of war; secondly, the principle of humanity at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to a belligerent; and, thirdly and lastly, there are at work the principles of chivalry, which arose in the Middle Ages and introduced a certain amount of fairness in offence and defence and a certain mutual respect."1 With respect to the laws of warfare, it may be said that 1 Oppenheim, 2d ed., vol. II, pp. 78, 79. though there is a differentiation between the laws of land and maritime warfare, to which will be added those of aerial warfare, there is, however, a great deal that is common and applicable to all of these methods of warfare. Not only is this the case as to the rules of warfare which are not matters of international convention but it is largely applicable to the rules which have become specifically international obligations by treaty. In examining the conventions adopted by The Hague conferences and the Geneva conventions, it will be found that The Hague conventions and declarations relative to the commencement of hostilities, automatic submarine contact mines, the prohibition of the discharge of projectiles and explosives from balloons, the use of asphyxiating gases, and in relation to expanding bullets are common to all methods of warfare, while the conventions in regard to the amelioration of the condition of the sick and wounded are applicable to all warfare as circumstances permit. In the Convention of The Hague No. IV, with respect to the laws and customs of war on land, of 1907, though drawn up specifically for land warfare, the preliminary general articles are applicable to all warfare, while the chapters which follow, so far as they treat of belligerents, prisoners of war, the sick and wounded, hostilities, spies, flags of truce, capitulations, armistices, and even military authority over the territory of the hostile state, are at times, in part or entirely, applicable to warfare generally. This is extended in case of naval forces acting as landing forces to an entire similarity to purely military or land forces under similar conditions. On the other hand, in fortified ports in which the defences and mines are controlled by the military forces, there are certain rules governing an attack by naval forces or the movements and stay of belligerent vessels in neutral ports which would be applicable to those in command of land forces. 140. Modern Development of the Laws of War.-The latterday development of the laws of war has been mainly produced by the following international agreements and propositions: 1. The declaration of Paris of 1856. 2. The instructions for the government of the armies of the United States of America in the field, of 1863, by Doctor Lieber. 3. The Geneva convention of 1864 for the amelioration of the sick and wounded in warfare, amplified and improved by the Geneva convention of 1906. 4. The declaration of St. Petersburg of 1868. 5. The Brussels code of land warfare of 1874. 6. The Hague conventions for the codification of the laws of land warfare of 1899 and 1907. 7. The principles of the Geneva conventions applied to maritime warfare and adopted by The Hague conference of 1907. 8. The declaration of London of 1909. These are the principal rules in regard to the laws of war, but they have been supplemented by various other conventions, declarations, and codes of more or less importance, which will be referred to in the treatment of the special subjects. Most of these have by common agreement or acceptance become conventional laws of war and do not admit opposing methods except, perhaps, in cases of retaliation. In the preamble to the declaration of St. Petersburg of 1868 it is stated: "That the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy; "That for this purpose it is sufficient to disable the greatest possible number of men; "That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable; "That the employment of such arms would, therefore, be contrary to the laws of humanity."1 Referring to the first of the clauses quoted above from the preamble of the declaration of St. Petersburg, Westlake says: 1 Higgins, "The Hague Conferences," pp. 5, 6. "Since in a war between civilized states the object is to break down the resistance of the enemy government, measures not aimed at the military forces of that government, or the organization and wealth which support them, would exceed the object and be inhuman. And the advance of public opinion has even condemned all action in war the connection of which with the weakening of the enemy's military forces is not proximate. Slaughter of non-combatants or carrying them off as prisoners and the devastation of territory not necessary for covering the retreat of an army or for any other directly military purpose, but intended to create general terror or distress, may, indeed, help to break down resistance but are universally condemned."1 In further pursuance of this subject it may be well also to quote from The Hague Convention No. IV, concerning the laws and customs of war on land, which ends with the following paragraph: "Until a more complete code of the laws of war can be issued, the high contracting parties think it expedient to declare that, in cases not included in the regulations adopted by them, populations and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established between civilized nations from the laws of humanity and the requirements of the public conscience."2 141. Laws of War and the Private Citizen.-All of the above is true, especially when private citizens abstain by word and deed from taking part in hostilities. There are, however, some important exceptions, as when invasion should occur and during military occupation the private citizen suffers in many ways. As Higgins says: "Men and squads of men not under strict discipline, not forming part of the army or of a levy en masse 1 Westlake, "Int. Law," 2d ed., vol. II, p. 58. 2 Higgins, "The Hague Conferences," pp. 209, 211. at the approach of the invaders, who commit hostile acts with intermitting returns to their homes and vocations, divesting themselves of the character or appearance of soldiers, have no cause for complaint of an infringement of the laws of war if when they are caught they are denied belligerent rights and put to death."1 Private citizens have been granted exceptional treatment when as such they have assisted the army of defence of a besieged town. This was the case in the historic defence of Saragossa in Spain, in which the women assisted the gunners, and the defence of Plevna against the Russians in the RussoTurkish War. In regard to bombardment and the siege of fortified towns rules vary. No notice was given of the bombardment of Paris by the Germans, though a deliberate bombardment should be notified by the requirements of humanity. There is no obligation imposed either by the conventional rules or the unwritten laws of war in case of siege or bombardment to allow private citizens or women and children to leave a besieged town, even when a bombardment is about to begin. Article 18 of General Orders No. 100 of the United States army (Lieber's Code) reads as follows: "When the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender."2 This should be eliminated from any code authorized by the United States. Instances of this procedure have occurred in modern times, but generally more humane treatment prevails. During the Franco-German War the Germans insisted upon their war rights in cases of sieges almost invariably. Our forces before bombarding Santiago de Cuba, in the Spanish-American War, gave forty-eight hours' notice and allowed the exit of non 1 Higgins, "War and the Private Citizen," p. 42. |