PART II. APPLICATION OF THE GENERAL PRINCIPLES

I. +Of Hostilities+

A. +RULES OF CONDUCT WITH RESPECT TO PERSONS+

(_a_) _Of the inoffensive population_

Acts of violence being permissible only between armed forces (Art. 1),

7. It is forbidden to maltreat the inoffensive portion of the population.

(_b_) _Of means of injuring the enemy_

Loyalty of conduct being enjoined (Art. 4),

8. It is forbidden:--

(_a_) To employ poison in any form.

(_b_) To endeavor to take the life of an enemy in a traitorous manner,--_e.g._ by employing assassins, or by simulating surrender.

(_c_) To attack the enemy while concealing the distinctive marks of an armed force.

(_d_) To make improper use of the national flag, of signs of military ranks, or of the uniform of the enemy, of a flag of truce, or of the protective marks prescribed by the Convention of Geneva. (See Arts. 17 and 40.)

It being obligatory to abstain from useless severities (Art. 4),

9. It is forbidden:--

(_a_) To use arms, projectiles, or substances calculated to inflict superfluous suffering, or to aggravate wounds, particularly projectiles which, being explosible, or charged with fulminating or inflammable substances, weigh less than four hundred grams. (Declaration of St. Petersburg.)[497]

(_b_) To mutilate or kill an enemy who has surrendered at discretion, or is disabled, and to declare that quarter will not be given, even if the force making such declaration does not claim quarter for itself.

(_c_) _Of wounded, sick, and the hospital staff_

The wounded, the sick, and the hospital staff are exempted from unnecessary severities, which might otherwise touch them, by the following rules (Arts. 10 to 18), drawn from the Convention of Geneva.

10. Wounded and sick soldiers must be brought in and cared for, to whatever nation they belong.

11. When circumstances permit, officers commanding in chief, immediately after a combat, may send in enemy soldiers wounded during it to the advanced posts of the enemy, with the consent of the latter.

12. The operation of moving sick and wounded is a neutral act, and the staff engaged in it is neutral.

13. The staff of the hospitals and ambulances--namely, surgeons, clerks, hospital orderlies, and other persons employed in the sanitary, administrative, and transport departments, as well as chaplains, and members and agents of societies duly authorized to assist the official hospital staff--is considered to be neutral while exercising its functions, and so long as there are wounded to remove or succor.

14. The staff specified in the preceding Article must continue after occupation by an enemy has taken place to give its attention to the sick and wounded, to such extent as may be needful, in the ambulance or hospital which it serves.

15. When such staff applies for leave to retire, it falls to the officer commanding the occupying troops to fix the date of departure. After request, however, has been made, the departure of the staff can only be postponed for a short time, and for reasons of military necessity.

16. Measures must, if possible, be taken to secure to the neutralized staff fitting maintenance and allowance when it falls into the hands of the enemy.

17. The neutralized hospital staff must wear a white armlet with a red cross on it. The armlet can be issued only by the military authorities.

18. It is the duty of the generals of the belligerent Powers to appeal to the humanity of the inhabitants of the country in which they are operating, for the purpose of inducing them to succor the wounded, pointing out to them at the same time the advantages which result to themselves therefrom (Arts. 36 and 59). Those who respond to any such appeal are entitled to special protection.

(_d_) _Of the dead_

19. It is forbidden to strip and mutilate the dead lying on the field of battle.

20. The dead must never be buried before such indications of their identity (especially "livrets, numeros," etc.) as they may have upon them have been collected. The indications thus gathered upon enemy dead are communicated to their army or government.

(_e_) _Who can be made prisoners of war_

21. Persons forming part of the armed force of belligerents, on falling into the power of the enemy, must be treated as prisoners of war, conformably to Article 61, and those following it.

This rule applies to messengers openly carrying official dispatches, and to civil aëronauts employed to observe the enemy or to keep up communication between different parts of the army or territory.

22. Persons who follow an army without forming part of it, such as correspondents of newspapers, sutlers, contractors, etc., on falling into the power of the enemy, can only be detained for so long a time as may be required by military necessity.

(_f_) _Of spies_

23. Persons captured as spies cannot demand to be treated as prisoners of war.

_But_

24. Persons belonging to a belligerent armed force are not to be considered spies on entering, without the cover of a disguise, within the area of the actual operations of the enemy. Messengers, also, who openly carry official dispatches, and aëronauts (Art. 21) are not to be considered spies.

To guard against the abuses to which accusations of acting as a spy give rise in time of war, it must clearly be understood that

25. No person accused of being a spy can be punished without trial.

It is moreover admitted that

26. A spy who succeeds in quitting a territory occupied by the enemy, cannot be held responsible for acts done before so leaving, if he afterwards falls into the enemy's hands.

(_g_) _Of flags of truce_

27. A person who is authorized by one of the belligerents to enter communication with the other belligerent, and presents himself to the latter with a white flag, is inviolable.

28. He may be accompanied by a trumpeter or drummer, by a flag-bearer, and, if necessary by a guide, and an interpreter, all of whom are also inviolable.

The necessity of this privilege is evident, especially as its exercise is frequently required in the simple interests of humanity. It must not, however, be so used as to be prejudicial to the opposite party.

Hence,

29. The commander to whom a flag of truce is sent is not obliged to receive its bearer under all circumstances.

Besides,

30. The commander who receives a flag of truce has the right to take all necessary measures to prevent the presence of an enemy within his lines from being prejudicial to him.

The bearer of a flag of truce, and those who accompany him, are bound to act with good faith toward the enemy who receives them (Art. 4).

31. If the bearer of a flag of truce abuse the confidence which is accorded to him, he may be temporarily detained; and if it be proved that he has made use of his privileges to suborn to traitorous practices, he loses his right of inviolability.

B. +RULES OF CONDUCT WITH REGARD TO THINGS+

(_a_) _Of the means of exercising violence. Of bombardment_

Mitigations of the extreme rights of violence are necessarily consequent upon the rule that useless severity shall not be indulged in (Art. 4). It is thus that

32. It is forbidden

(_a_) To pillage, even in the case of towns taken by assault.

(_b_) To destroy public or private property, unless its destruction be required by an imperative necessity of war.

(_c_) To attack and bombard undefended places.

The right of belligerents to have recourse to bombardment against fortresses and other places in which the enemy is intrenched is not contestable, but humanity requires that this form of violence shall be so restrained as to limit as much as possible its effects to the armed forces of the enemy and to their defenses.

Hence,

33. The commander of an attacking force must do everything in his power to intimate to the local authorities his intention of bombarding, before the bombardment commences, except when bombardment is coupled with assault.

34. In cases of bombardment, all necessary measures ought to be taken to spare, so far as possible, buildings devoted to religion, the arts, sciences, and charity, hospitals, and places in which sick and wounded are kept; provided always that such buildings are not at the same time utilized, directly or indirectly, for defense.

It is the duty of the besieged to indicate these buildings by visible signs, notified to the besieger beforehand.

(_b_) _Of the sanitary matériel_

The rules (Arts. 10 and those following) for the protection of the wounded would be insufficient if special protection were not also given to hospitals. Consequently, in accordance with the Convention of Geneva,

35. The ambulances and hospitals used by armies are recognized as being neutral, and must be protected and respected as such by the belligerents, so long as there are sick and wounded in them.

36. A like rule applies to private buildings, or parts of private buildings, in which sick and wounded are collected and cared for.

Nevertheless,

37. The neutrality of ambulances and hospitals ceases to exist if they are guarded by a military force, a police post being alone permissible.

38. The _matériel_ of military hospitals remains subject to the laws of war; persons attached to the hospitals can only, therefore, carry away their private property on leaving. Ambulances, on the other hand, preserve their _matériel_.

39. Under the circumstances contemplated in the foregoing paragraph, the term "ambulance" is applicable to field hospitals and other temporary establishments which follow the troops to the field of battle for the purpose of receiving sick and wounded.

40. A distinctive flag and uniform, bearing a red cross upon a white ground, is adopted for hospitals, ambulances, and things and persons connected with the movement of sick and wounded. It must always be accompanied by the national flag.

II. +Of Occupied Territory+

A. +DEFINITION+

41. A territory is considered to be occupied when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists.

B. +RULES OF CONDUCT WITH REGARD TO PERSONS+

Since new relations arise from the provisional change of government,

42. It is the duty of the occupying military authority to inform the inhabitants of the occupied territory as soon as possible of the powers which it exercises, as well as of the local extent of the occupation.

43. The occupier must take all measures in his power to reëstablish and to preserve public order.

With this object

44. The occupier must, so far as possible, retain the laws which were in vigor in the country in time of peace, modifying, suspending, or replacing them only in case of necessity.

45. The civil functionaries of every kind who consent to continue the exercise of their functions are under the protection of the occupier. They may be dismissed, and they may resign at any moment. For failing to fulfill the obligations freely accepted by them, they can only be subjected to disciplinary punishment. For betraying their trust, they may be punished in such manner as the case may demand.

46. In emergencies the occupier may require the inhabitants of an occupied district to give their assistance in carrying on the local administration.

As occupation does not entail a change of nationality on the part of the inhabitants,

47. The population of an occupied country cannot be compelled to take an oath of fidelity or obedience to the enemy's power. Persons doing acts of hostility directed against the occupier are, however, punishable (Art. 1).

48. Inhabitants of an occupied territory who do not conform to the orders of the occupier can be compelled to do so.

The occupier cannot, however, compel the inhabitants to assist him in his works of attack or defense, nor to take part in military operations against their own country (Art. 4).

Moreover,

49. Human life, female honor, religious beliefs, and forms of worship must be respected. Interference with family life is to be avoided (Art. 4).

C. +RULES OF CONDUCT WITH RESPECT TO THINGS+

(_a_) _Public property_

Although an occupier, for the purpose of governing the occupied territory, takes the place, in a certain sense, of the legitimate government, he does not possess unrestricted powers. So long as the ultimate fate of the territory is undecided--that is to say, until the conclusion of peace--the occupier is not at liberty to dispose freely of such property of his enemy as is not immediately serviceable for the operations of war.

Hence,

50. The occupier can appropriate only money and debts (including negotiable instruments) belonging to the State, arms, stores, and, in general, such movable property of the State as can be used for the purposes of military operations.

51. Means of transport (State railways and their rolling stock, State vessels, etc.), as well as land telegraphs and landing cables, can only be sequestrated for the use of the occupier. Their destruction is forbidden, unless it be required by the necessities of war. They are restored at the peace in the state in which they then are.

52. The occupier can only enjoy the use of, and do administrative acts with respect to immovable property, such as buildings, forests, and agricultural lands belonging to the enemy State (Art. 6).

Such property cannot be alienated, and must be maintained in good condition.

53. The property of municipal and like bodies, that of religious, charitable, and educational foundations, and that appropriated to the arts and sciences, are exempt from seizure.

All destruction or intentional damage of buildings devoted to the above purposes, of historical monuments, of archives, and of works of art or science, is forbidden, unless it be imperatively demanded by the necessities of war.

(_b_) _Private property_

If the powers of an occupier are limited with respect to the property of the enemy state, _a fortiori_ they are limited with respect to the property of private persons.

54. Private property, whether held by individuals or by corporations, companies, or other bodies, must be respected, and cannot be confiscated except to the extent specified in the following Articles.

55. Means of transport (railways and their rolling stock, vessels, etc.), telegraphs, stores of arms and munitions of war, may be seized by the occupier, notwithstanding that they belong to individuals or companies; but they must be restored if possible at the conclusion of peace, and compensation for the loss inflicted on their owners must be provided.

56. Supplies in kind (requisitions) demanded from districts or individuals must correspond to the generally recognized necessities of war, and must be proportioned to the resources of the country.

Requisitions can only be made by express authorization of the officer commanding in the occupied locality.

57. The occupier can only levy such taxes and duties as are already established in the occupied State. He uses them to satisfy the expenses of administration to the extent that they have been so used by the legitimate government.

58. The occupier can only levy contributions in money as the equivalent of unpaid fines, or unpaid taxes, or of supplies in kind, which have not been duly made.

Contributions in money can only be imposed by the order, and on the responsibility, of the general in chief or of the supreme civil authority established in the occupied territory; and their incidence must as far as possible correspond to that of the taxes already in existence.

59. In apportioning the burdens arising from the billeting of troops and contributions of war, zeal shown by individuals in caring for the wounded is to be taken into consideration.

60. Receipts are to be given for the amount of contributions of war, and for articles requisitioned when payment for them is not made. Measures must be taken to secure that these receipts shall be given always, and in proper form.

III. +Of Prisoners of War+

A. THE STATE OF CAPTIVITY

Captivity is neither a punishment inflicted on prisoners of war (Art. 21) nor an act of vengeance; it is merely a temporary detention which is devoid of all penal character. In the following Articles, regard is had both to the consideration due to prisoners of war and to the necessity of keeping them in safe custody.

61. Prisoners of war are at the disposal of the enemy government, not of the individuals or corps which have captured them.

62. They are subjected to the laws and rules in force in the enemy army.

63. They must be treated with humanity.

64. All that belongs to them personally, except arms, remains their property.

65. Prisoners are bound to state, if asked, their true name and rank. If they do not do so, they can be deprived of all or any of the mitigations of imprisonment enjoyed by other prisoners circumstanced like themselves.

66. Prisoners can be subjected to internment in a town, fortress, camp, or any other place, definite bounds being assigned which they are not allowed to pass; but they can only be confined in a building when such confinement is indispensable for their safe detention.

67. Insubordination justifies whatever measures of severity may be necessary for its repression.

68. Arms may be used against a fugitive prisoner after summons to surrender.

If he is retaken before he has rejoined his army, or has escaped from the territory under the control of his captor, he may be punished, but solely in a disciplinary manner, or he may be subjected to more severe surveillance than that to which prisoners are commonly subjected. But if he be captured afresh, after having accomplished his escape, he is not punishable unless he has given his parole not to escape, in which case he may be deprived of his rights as prisoner of war.

69. The government detaining prisoners is charged with their maintenance.

In default of agreement between the belligerents on this point, prisoners are given such clothing and rations as the troops of the capturing State receive in time of peace.

70. Prisoners cannot be compelled to take part in any manner in the operations of the war, nor to give information as to their country or army.

71. They may be employed upon public works which have no direct relation to the operations carried on in the theater of war, provided that labor be not exhausting in kind or degree, and provided that the employment given to them is neither degrading with reference to their military rank, if they belong to the army, nor to their official or social position, if they do not so belong.

72. When permission is given to them to work for private employers, their wages may be received by the detaining government, which must either use it in procuring comforts for them, or must pay it over to them on their liberation, the cost of their maintenance being if necessary first deducted.

B. +TERMINATION OF CAPTIVITY+

The reasons which justify the detention of a captured enemy last only during the continuance of war.

Consequently,

73. The captivity of prisoners of war ceases as of course on the conclusion of peace; but the time and mode of their actual liberation is a matter for agreement between the governments concerned.

In virtue of the Convention of Geneva,

74. Captivity ceases as of course, before the date fixed upon for general liberation, in the case of wounded or sick prisoners who, after being cured, are found to be incapable of further service.

The captor must send these back to their country so soon as their incapacity is established.

During the war

75. Prisoners can be released by means of a cartel of exchange negotiated between the belligerent parties.

Even without exchange

76. Prisoners can be set at liberty on parole, if the laws of their country do not forbid it. The conditions of their parole must be clearly stated. If so set at liberty, they are bound, on their honor, to fulfill scrupulously the engagements which they have freely entered into. Their government, on its part, must neither require nor accept from them any service inconsistent with their pledged word.

77. A prisoner cannot be compelled to accept his liberty on parole. In the same way the enemy government is not obliged to accede to a request made by a prisoner to be released on parole.

78. Prisoners liberated on parole and retaken in arms against the government to which they are pledged, can be deprived of the rights of prisoners of war, unless they have been included among prisoners exchanged unconditionally under a cartel of exchange negotiated subsequently to their liberation.

IV. +Persons Interned in Neutral Territory+

It is universally admitted that a neutral State cannot lend assistance to belligerents, and especially cannot allow them to make use of its territory without compromising its neutrality. Humanity, on the other hand, demands that a neutral State shall not be obliged to repel persons who beg refuge from death or captivity. The following rules are intended to reconcile these conflicting requirements:

79. The neutral State within the territory of which bodies of troops or individuals belonging to the armed force of the belligerents take refuge, must intern them at a place as distant as possible from the theater of war. It must do the same with persons using its territory as a means of carrying on military operations.

80. Interned persons may be kept in camps, or may be shut up in fortresses or other places of safety. The neutral State decides whether officers may be left free on parole on an engagement being entered into by them not to leave the neutral territory without authorization.

81. In default of special convention regulating the maintenance of interned persons, the neutral State supplies them with rations and clothes, and bestows care upon them in other ways to such extent as is required by humanity.

It also takes care of the _matériel_ of war which the interned persons may have had with them on entering the neutral territory.

On the conclusion of peace, or sooner if possible, the expenses occasioned by the internment are repaid to the neutral State by the belligerent State to which the interned persons belong.

82. The provisions of the Convention of Geneva of the 22d August, 1864 (see above, Articles 10 to 18, 35 to 40, and 74) are applicable to the hospital staff, as well as to the sick and wounded who have taken refuge in, or been carried into, neutral territory.

Especially,

83. Sick and wounded who are not prisoners may be moved across neutral territory, provided that the persons accompanying them belong solely to the hospital staff, and that any _matériel_ carried with them is such only as is required for the use of sick and wounded. The neutral State, across the territory of which sick and wounded are moved, is bound to take whatever measures of control are required to secure the strict observance of the above conditions.