CHAPTER I

RIGHTS AND DUTIES OF THE INHABITANTS

[Sidenote: The Civil Population is not to be regarded as an enemy.]

It has already been shown in the introduction that war concerns not merely the active elements, but that also the passive elements are involved in the common suffering, _i.e._, the inhabitants of the occupied territory who do not belong to the army. Opinions as to the relations between these peaceable inhabitants of the occupied territory and the army in hostile possession have fundamentally altered in the course of the last century. Whereas in earlier times the devastation of the enemy’s territory, the destruction of property, and, in some cases indeed, the carrying away of the inhabitants into bondage or captivity, were regarded as a quite natural consequence of the state of war, and whereas in later times milder treatment of the inhabitants took place although destruction and annihilation as a military resource still continued to be entertained, and the right of plundering the private property of the inhabitants remained completely unlimited--to-day, the universally prevalent idea is that the inhabitants of the enemy’s territory are no longer to be regarded, generally speaking, as enemies. It will be admitted, as a matter of law, that the population is, in the exceptional circumstances of war, subjected to the limitations, burdens, and measures of compulsion conditioned by it, and owes obedience for the time being to the power _de facto_, but may continue to exist otherwise undisturbed and protected as in time of peace by the course of law.

[Sidenote: They must not be molested.]

It follows from all this, as a matter of right, that, as regards the personal position of the inhabitants of the occupied territory, neither in life or in limb, in honor or in freedom, are they to be injured, and that every unlawful killing; every bodily injury, due to fraud or negligence; every insult; every disturbance of domestic peace; every attack on family, honor, and morality and, generally, every unlawful and outrageous attack or act of violence, are just as strictly punishable as though they had been committed against the inhabitants of one’s own land. There follows, also, as a right of the inhabitants of the enemy territory, that the invading army can only limit their personal independence in so far as the necessity of war unconditionally demands it, and that any infliction that needlessly goes beyond this is to be avoided.

[Sidenote: Their duty.]

As against this right, there is naturally a corresponding duty on the part of the inhabitants to conduct themselves in a really peaceable manner, in no wise to participate in the conflict, to abstain from every injury to the troops of the power in occupation, and not to refuse obedience to the enemy’s government. If this presumption is not fulfilled, then there can no longer be any talk of violations of the immunities of the inhabitants, rather they are treated and punished strictly according to martial law.

[Sidenote: Of the humanity of the Germans and the barbarity of the French.]

The conception here put forward as to the relation between the army and the inhabitants of an enemy’s territory, corresponds to that of the German Staff in the years 1870-71. It was given expression in numerous proclamations, and in still more numerous orders of the day, of the German Generals. In contrast to this the behavior of the French authorities more than once betrays a complete ignorance of the elementary rules of the law of nations, alike in their diplomatic accusations against the Germans and in the words used towards their own subjects. Thus, on the outbreak of the war, a threat was addressed to the Grand Duchy of Baden, not only by the French Press but also officially (von amtlicher Stelle),[83] “that even its women would not be protected.” So also horses of Prussian officers, who had been shot by the peasants, were publicly put up to auction by the murderers. So also the Franctireurs threatened the inhabitants of villages occupied by the Germans that they would be shot and their houses burnt down if they received the enemy in their houses or “were to enter into intercourse with them.” So also the prefect of the Cote d’Or, in an official circular of November 21st, urges the sub-prefects and mayors of his Department to a systematic pursuit of assassination, when he says: “The Fatherland does not demand of you that you should assemble _en masse_ and openly oppose the enemy, it only expects that three or four determined men should leave the village every morning and conceal themselves in a place indicated by nature, from which, without danger, they can shoot the Prussians; above all, they are to shoot at the enemy’s mounted men whose horses they are to deliver up at the principal place of the Arrondissement. I will award a bonus to them (for the delivery of such horses), and will publish their heroic deed in all the newspapers of the Department, as well as in the _Moniteur_.” But this conception of the relation between the inhabitants and the hostile army not only possessed the minds of the provincial authorities but also the central government at Tours itself, as is clear from the fact that it held it necessary to stigmatize publicly the members of the municipal commission at Soissons who, after an attempt on the life of a Prussian sentry by an unknown hand, prudently warned their members against a repetition of such outrages, when it [the central government] ordered “that the names of the men who had lent themselves to the assistance and interpretation of the enemy’s police be immediately forthcoming.”[84] And if, on the French side, the proclamation of General von Falckenstein is cited as a proof of similar views on the German side--the proclamation wherein the dwellers on the coast of the North Sea and the Baltic are urged to participate in the defense of the coast, and are told: “Let every Frenchman who sets foot on your coast be forfeit”--as against this all that need be said is that this incitement, as is well known, had no effect in Germany and excited the greatest surprise and was properly condemned.

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[Sidenote: What the Invader may do.]

Having thus developed the principles governing the relation between the hostile army and the inhabitants, we will now consider somewhat more closely the duties of the latter and the burdens which, in a given case, it is allowable to impose upon it. Obviously a precise enumeration of every kind of service which may be demanded from them is impossible, but the following of the most frequent occurrence are:

1. Restriction of post, railway and letter communication, supervision, or, indeed, total prohibition of the same.

2. Limitation of freedom of movement within the country, prohibition to frequent certain parts of the seat of war, or specified places.

3. Surrender of arms.

4. Obligation to billet the enemy’s soldiers; prohibition of illumination of windows at night and the like.

5. Production of conveyances.

6. Performance of work on streets, bridges, trenches (_Gräben_), railways, buildings, etc.

7. Production of hostages.

As to 1, the necessity of interrupting, in many cases, railway, postal, and telegraph communication, of stopping them or, at the least, stringently supervising them, hardly calls for further proof. Human feeling on the part of the commanding officer will know what limits to fix, where the needs of the war and the necessities of the population permit of mutual accommodation.

As to 2, if according to modern views no inhabitant of occupied territory can be compelled to participate directly in the fight against his own Fatherland, so, conversely, he can be prevented from reenforcing his own army. Thus the German staff in 1870, where it had acquired authority, in particular in Alsace-Lorraine, sought to prevent the entrance of the inhabitants into the French army, even as in the Napoleonic wars the French authorities sought to prevent the adherence of the States of the Rhine Confederation to the army of the Allies.

[Sidenote: A man may be compelled to betray his Country.]

The view that no inhabitant of occupied territory can be compelled to participate directly in the struggle against his own country is subject to an exception by the general usages of war which must be recorded here: the calling up and employment of the inhabitants as guides on unfamiliar ground. However much it may ruffle human feeling, to compel a man to do harm to his own Fatherland, and indirectly to fight his own troops, none the less no army operating in an enemy’s country will altogether renounce this expedient.[85]

[Sidenote: And Worse.]

But a still more severe measure is the compulsion of the inhabitants to furnish information about their own army, its strategy, its resources, and its military secrets. The majority of writers of all nations are unanimous in their condemnation of this measure. Nevertheless it cannot be entirely dispensed with; doubtless it will be applied with regret, but the argument of war will frequently make it necessary.[86]

[Sidenote: Of forced labor.]

[Sidenote: Of a certain harsh measure and its justification.]

As to 5 and 6, the summoning of the inhabitants to supply vehicles and perform works has also been stigmatized as an unjustifiable compulsion upon the inhabitants to participate in “Military operations.” But it is clear that an officer can never allow such a far-reaching extension of this conception, since otherwise every possibility of compelling work would disappear, while every kind of work to be performed in war, every vehicle to be furnished in any connection with the conduct of war, is or may be bound up with it. Thus the argument of war must decide. The German Staff, in the War of 1870, moreover, rarely made use of compulsion in order to obtain civilian workers for the performance of necessary works. It paid high wages and, therefore, almost always had at its disposal sufficient offers. This procedure should, therefore, be maintained in future cases. The provision of a supply of labor is best arranged through the medium of the local authorities. In case of refusal of workers punishment can, of course, be inflicted. Therefore the conduct of the German civil commissioner, Count Renard--so strongly condemned by French jurists and jurists with French sympathies--who, in order to compel labor for the necessary repair of a bridge, threatened, in case of further refusal, after stringent threats of punishment had not succeeded in getting the work done, to punish the workers by shooting some of them, was in accordance with the actual laws of war; _the main thing was that it attained its object_, without its being necessary to practise it. The accusation made by the French that, on the German side, Frenchmen were compelled to labor at the siege works before Strassburg, has been proved to be incorrect.

[Sidenote: Hostages.]

7. By hostages are understood those persons who, as security or bail for the fulfilment of treaties, promises or other claims, are taken or detained by the opposing State or its army. Their provision has been less usual in recent wars, as a result of which some Professors of the law of nations have wrongly decided that the taking of hostages has disappeared from the practise of civilized nations. As a matter of fact it was frequently practised in the Napoleonic wars; also in the wars of 1848, 1849, and 1859 by the Austrians in Italy; in 1864 and 1866 by Prussia; in the campaigns of the French in Algiers; of the Russians in the Caucasus; of the English in their Colonial wars, as being the usual thing. The unfavorable criticisms of it by the German Staff in isolated cases is therefore to be referred to different grounds of applied expedients.[87]

[Sidenote: A “harsh and cruel” measure.]

A new application of “hostage-right” was practised by the German Staff in the war of 1870, when it compelled leading citizens from French towns and villages to accompany trains and locomotives in order to protect the railways communications which were threatened by the people. Since the lives of peaceable inhabitants were without any fault on their part thereby exposed to grave danger, every writer outside Germany has stigmatized this measure as contrary to the law of nations and as unjustified towards the inhabitants of the country. As against this unfavorable criticism it must be pointed out that this measure, which was also recognized on the German side as harsh and cruel, was only resorted to after declarations and instructions of the occupying[88] authorities had proved ineffective, and that in the particular circumstance it was the only method which promised to be effective against the doubtless unauthorized, indeed the criminal, behavior of a fanatical population.

[Sidenote: But it was “successful.”]

Herein lies its justification under the laws of war, but still more in the fact that it proved completely successful, and that wherever citizens were thus carried on the trains (whether result was due to the increased watchfulness of the communes or to the immediate influence on the population), the security of traffic was restored.[89]

To protect oneself against attack and injuries from the inhabitants and to employ ruthlessly the necessary means of defense and intimidation is obviously not only a right but indeed a duty of the staff of the army. The ordinary law will in this matter generally not suffice, it must be supplemented by the law of the enemy’s might. Martial law and courts-martial must take the place of the ordinary jurisdiction.[90]

To Martial law are subject in particular:

1. All attacks, violations, homicides, and robberies, by soldiers belonging to the army of occupation.

2. All attacks on the equipment of this army, its supplies, ammunition, and the like.

3. Every destruction of communication, such as bridges, canals, roads, railways and telegraphs.

4. War rebellion and war treason.

Only the fourth point requires explanation.

[Sidenote: War Rebellion.]

By war rebellion is to be understood the taking up of arms by the inhabitants against the occupation; by war treason on the other hand the injury or imperiling of the enemy’s authority through deceit or through communication of news to one’s own army as to the disposition, movement, and intention, etc., of the army in occupation, whether the person concerned has come into possession of his information by lawful or unlawful means (_i.e._, by espionage).

Against both of these only the most ruthless measures are effective. Napoleon wrote to his brother Joseph, when, after the latter ascended the throne of Naples, the inhabitants of lower Italy made various attempts at revolt: “The security of your dominion depends on how you behave in the conquered province. Burn down a dozen places which are not willing to submit themselves. Of course, not until you have first looted them; my soldiers must not be allowed to go away with their hands empty. Have three to six persons hanged in every village which has joined the revolt; pay no respect to the cassock. Simply bear in mind how I dealt with them in Piacenza and Corsica.” The Duke of Wellington, in 1814, threatened the South of France; “he will, if leaders of factions are supported, burn the villages and have their inhabitants hanged.” In the year 1815, he issued the following proclamation: “All those who after the entry of the (English) army into France leave their dwellings and all those who are found in the service of the usurper will be regarded as adherents of his and as enemies; their property will be used for the maintenance of the army.” “These are the expressions in the one case of one of the great masters of war and of the dominion founded upon war power, and in the other, of a commander-in-chief who elsewhere had carried the protection of private property in hostile lands to the extremest possible limit. Both men as soon as a popular rising takes place resort to terrorism.”[91]

[Sidenote: “War Treason” and Unwilling Guides.]

A particular kind of war treason, which must be briefly gone into here, inasmuch as the views of the jurists about it differ very strongly from the usages of war, is the case of deception in leading the way, perpetrated in the form of deliberate guiding of the enemy’s troops by an inhabitant on a false or disadvantageous road. If he has offered his services, then the fact of his treason is quite clear, but also in case he was forced to act as guide his offense cannot be judged differently, for he owed obedience to the power in occupation, he durst in no case perpetrate an act of open resistance and positive harm but should have, if the worst came to the worst, limited himself to passive disobedience, and he must therefore bear the consequence.[92]

[Sidenote: Another deplorable necessity.]

However intelligible the inclination to treat and to judge an offense of this kind from a milder standpoint may appear, none the less the leader of the troops thus harmed cannot do otherwise than punish the offender with death, since only by harsh measures of defense and intimidation can the repetition of such offenses be prevented. In this case a court-martial must precede the infliction of the penalty. The court-martial must however be on its guard against imputing hastily a treasonable intent to the guide. The punishment of misdirection requires in every case proof of evil intention.

Also it is not allowable to diplomatic agents to make communications from the country which they inhabit during the war to any side as to the military situation or proceedings. Persons contravening this universally recognized usage of war may be immediately expelled or in the case of great danger arrested.