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Some earlier authorities allow the killing of prisoners who have been taken and who cannot be safely kept. Vattel allows this, only, where no promise to spare them has been given; or where safety absolutely demands it. But Halleck, (p. 440, $ 20,) condemns such an act, in any case, as infamous at the present day.

11 Lieber's Instructions, 69.

12 Halleck, Intern. Law & Laws of War, p. 392; Bluntschli, Droit Intern. Codifié, § 557. This applies equally to the poisoning, and to the diseases of animals. Klüber, Droit des Gens, § 244. The use of poison in any way is forbidden. Lieber's Instructions, ¶¶ 16, 70; compare, however, Lieber's Political Ethics, Bk. VII., § 25. Some earlier authorities sanction the use of poison. See Wildman's Intern. Law, v. 2, p. 24.

13 By the existing rules this is allowed. Dana's Wheaton, § 343, note 166; and Lieber's Instructions, ¶ 18, allow also driving back non-combatants whom the commander of a besieged place expels. But these extreme measures should no longer be continued.

Notice of bombardment

757. Before bombarding any city or town, a commander must give notice to its authorities of his intention to do so; and must allow a reasonable time for the removal of all who are not active enemies.

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Lieber, (Instructions, ¶ 19,) says, that it is no infraction of the laws of war to omit such notice; for surprise may be a military necessity.

In the Franco-Prussian war, the Germans hesitated to resort to a general bombardment of Paris, and it is said, decided to reduce the city by famine instead of fire, if possible. Circular of Count Bismarck. Annual Register, for 1870, p. 187.

The rule that the bombardment of a fortified town should be preceded by notice was asserted by the representatives of neutral powers in Paris, during the siege; and they accordingly united in a note to Count Bismarck, requesting that in accordance with the recognized principles and usages of the law of nations, steps may be taken to permit their countrymen to place themselves and their property in safety." Foreign Relations of the United States, 1871, pp. 282, 295. This was refused by Count Bismarck, on the ground that ample warning and opportunity to leave had been given. Id. pp. 293, 363.

Retaliation, when allowed.

758. Upon satisfactory evidence that the rules of lawful warfare are violated by an enemy, and if there be no other means of restraining his excesses, retaliation may, after deliberation, be justly resorted to in order to compel him to observe the law.

Lawrence's Wheaton, Elem. of Intern. Law, pp. 607, 608; Dana's Wheaton, § 347, citing Vattel, Droit des Gens, liv. III., ch. 8, § 142; ch. 9, Sg 166-173; Marten's Précis du Droit des Gens Moderne de l'Europe, liv. VIII., ch. 4, §§ 272-280; Klüber, Droit des Gens, Part II., tit. 2, sec. 2, ch. 1, §§ 262-265. Bluntschli, Droit Intern. Codifié, § 567; Lieber, Instructions, ¶ 28.

In the war of the rebellion, the president of the United States issued an order, July 30, 1863, in view of barbarities inflicted upon prisoners by the enemy, declaring that for every soldier of the United States killed in violation of the laws of war, a rebel soldier should be executed; and for every one enslaved or sold into slavery by the enemy, a rebel soldier should be placed at hard labor on the public works, until the other should be released and treated as a prisoner of war. General Orders of U. S. War Department, v. 2, p. 323, No. 252.

Mode of retaliation not to be barbarous.

759. Retaliation for barbarous hostilities. such as mutilation, deprivation of food or drink, or enslavement of prisoners, the use of unlawful weapons, or other cruelties, cannot be made by inflicting the same barbarities; but may be by inflicting death.

This principle is declared in Lieber's Instructions, ¶ 58, in respect to enslavement.

Passive or disabled enemies and prisoners.

760. The refusal of quarter, when authorized, does not justify killing passive enemies, or active enemies already disabled on the ground, or those who are already prisoners.

Lieber's Instructions, ¶ 61; Bluntschli, Droit Intern. Codifié, § 582.

Bribery and intrigue.

761. Bribing or attempting to bribe any enemy impressed with the military character of the hostile nation, or any of its officers, agents or servants; and clandestinely corresponding with a faction in the enemy's forces or people, are unlawful.

Halleck says, the latter is not unlawful; though the former is not honorable.

Klüber, (Droit des Gens, § 244,) declares the corrupting of the generals and functionaries of the enemy to be unlawful, as well as engaging its subjects in treason or sedition.

Woolsey, (International Law, 127, p. 218,) says, that "to lead the officers, counsellors or troops of an enemy to treachery by bribes, or to se duce her subjects to betray their country, are temptations to commit a plain crime, which no hostile relation will justify. Yet to accept of the services of a traitor is allowable:" citing Vattel, Droit des Gens, III., 10, SS 180, 181.

The laws of war impose the punishment of death on one who attempts to bribe an officer or induce a soldier to desert. Halleck, Intern. Law & Laws of War, p. 409, § 27; citing Phillimore, Int. Law, v. 3, § 106.

Bluntschli, (Droit Intern. Codifié, § 564, and note,) says, that the instigation of treason in the officers and soldiers of the enemy is not to be countenanced, but to instigate acts not dishonorable in themselves, such as political offenses in other cases, is allowable.

It seems proper, however, for the nations uniting in this Code to recognize the obligation of respecting the rights of allegiance in regard to civilians as well as soldiers.

Good faith in keeping engagements.

762. Lawful promises made to the enemy must be kept, in good faith.

Bluntschli, Droit Intern. Codifié, § 566; Fioré, Nouveau Droit Intern. v. 2, p. 356.

"Stratagems" defined.

763. Stratagems are snares laid for an enemy, or deceptions practiced on him.

Unlawful stratagems.

764. The following are unlawful stratagems:

1. Any false communication, by word, sign or otherwise, addressed directly to the enemy;'

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2. The use of false colors, false uniforms," and false signals of distress;

3. Disguise, or using indicia of neutrality or inactivity, for the purpose of committing acts of hostility, with the appearance of a peaceful intent; and,

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4. All other acts of perfidy" and treachery.

1 This is a more strict rule than is at present applied, but with the distinctions made in the next Article, is not more strict than good faith seems to require. The exigencies of lawful negotiations require that communications directly to the enemy should be truthful.

2 This will change the rule heretofore existing. Bluntschli, (Droit

Intern. Codifié, § 565, and note,) says, it is not now unlawful to deceive the enemy by using his own colors and uniform; but before actual contest the true character must be disclosed.

Lieber, (Instructions, ¶ 65,) says, the use of the enemy's emblems of nationality for the purpose of deceiving him in battle, is perfidious.

False colors at sea are now allowed to be used in sailing, even in pursuit, but the commission of any act of hostility under false colors is piracy. Halleck, (Intern. Law and Laws of War, p. 404,) says, that firing the affirming gun is not an act of hostility within this rule; but cites Massé and Hautefeuille, as of a contrary opinion.

Ortolan, (Diplomatie de la Mer, v. 2, pp. 29, 30,) says, that it is not dishonorable, at sea, to draw the enemy into combat, or escape a superior enemy, by raising a false flag, but it is forbidden to commence or continue the combat under any other flag than the true one. Formerly it was forbidden to fire the warning gun under a false color, but now the French law only requires the French flag to be displayed before firing shot.

See also on this subject, 2 Wildman's Intern. Law, 25; The Peacock, 4 Robinson's Rep., 187; Pistoye et Duverdy Traité des Prises, tit. 5, ch. 1 ; Massé Droit Com., t. 1, § 307; Hautefeuille, Droit des Nations Neutres, t. 4, p. 8; Vulin, Traité des Prises, ch. 1, sec. 1, § 9; Lebeau, Nouveau Code dés Prises, t. 6, pp. 223, 283; De Cussy Droit Maritime, liv. 1, tit. 3, § 25. By the present Article, a capture accomplished by the use of false colors will be unlawful. The protection of neutrals seems to require that the false use of neutral colors shall not be resorted to by belligerents; and the enlarged immunity herein proposed for neutrals makes this restriction still more important.

3 Lieber, (Instructions, ¶ 64,) says, that if uniforms captured from the enemy are used, a striking mark or sign must be adopted for distinction. Troops who fight in the enemy's uniform without such mark could expect no quarter. Bluntschli, (Droit Intern. Codifié, § 583,) seems to apply this rule only to the use of such uniforms in battle,

4 For an instance of the use of false signals of distress, see Vattel, Droit des Gens, liv. iii., c. 10, § 178. False signals not addressed to the enemy may perhaps be regarded as a part of lawful stratagem.

5 The principle which it is desired to establish is, that since new immunity from the evils of war is proposed for passive enemies and neutrals, belligerents shall not perfidiously take advantage of this as a means of stratagem. The case cited by Ortolan, (Diplomatie de la Mer, v. 2, p. 31,) of the British vessel of war in 1800, whose officers and men took possession of a Swedish vessel, a neutral, and in her surprised two Spanish frigates at anchor, is,—so far as the offense against the Spanish forces is concerned,-only an extreme case of pursuit under false colors. If neutrals and passive enemies are to be respected, it seems proper to forbid using any indicia of neutrality or inactivity as a cover for hostilities.

Disguise for the purpose of getting within the enemy's lines without

force, to put a person to death, is unlawful; but disguise of ships or forces, for gaining a position or making a capture with force, is not.

It is the breach of good faith, express or implied, which constitutes perfidy. Halleck, Intern. Law and Laws of War, p. 402.

Fioré, (Nouveau Droit Intern., v. 2, p. 282,) concludes that stratagem is permissible only when it does not violate the principles of morality, pledged faith, and the general rules of war.

Lawful stratagems.

765. The following are lawful stratagems:

1. False representations, addressed to any other than the enemy, though intended to come to his knowledge;'

2. Feigning assent to an infamous proposal, and making false communications in response thereto; and, 3. Surprise, without disguise or treachery.

1 Halleck, Intern. Law and Laws of War, p. 405.

Wildman, (Intern. Law, v. 2, p. 24,) says, unqualifiedly, that disguising men and ships, except firing under false colors, as well as spreading false news, and the like, are lawful.

No rule of war forbids a commander to circulate false information, and to use means for deceiving his enemy with regard to his movements. Woolsey, Intern. Law, § 127.

Piratical use of false colors, &c.

766. Acts of hostility committed by a ship under false colors, or by the use of a neutral ship, or accomplished by the use of false colors, or of false signals, addressed to the enemy, are acts of piracy.

See note to Article 764; and compare Article 61.

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767. Spies are persons who, with disguise or other deception, go peaceably among the enemy to discover

his condition.

Lieber's Instructions, ¶ 88.

Halleck, (Intern. Law and Laws of War, p. 406,) includes in his defi nition the act of communicating information so acquired to the employer. But it is not necessary to show that done or even intended, in order to constitute a spy.

An open reconnoissance is not forbidden. Bluntschli, Droit Intern. Codifié, § 630.

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