CHAPTER VI, SECTION I.

THE CONDUCT OF HOSTILITIES.

172. Means of conducting hostilities.-H. R. XXII. The right of belligerents to adopt means of injuring the enemy is not unlimited.

173. Limitations on means of carrying on war.-On general principles it is permissible to destroy your enemy and it is immaterial how this is accomplished. But in practice the means employed are definitely restricted by international declarations and conventions, and by the laws and usages of war. Generally speaking, the means to be employed include both force and stratagem, and there is included therein the killing and disabling the enemy, forcing him by defeat and exhaustion to surrender, the investment, bombardment, or siege of his fortresses and defended places, the damage, destruction, and appropriation of property, and injury to the general resources of the country.' 1 Flad Oyen. (1 Rob., 134); G. O. 100, 1863, art. 17. "War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy."

174. Discharging explosives from balloons.-H. D. XIV, 1907. The contracting powers agree to prohibit, for a period extending to the close of the third peace conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.

175. There were three declarations included in The Hague Conference of 1899 with reference to the improper use of projectiles, but the above is the only one of the three to which the United States was a party. This may be said to be of comparatively little value since it has, only ten signatories and the United States and Great Britain are the only two of the great powers who have ratified the same, and then, too, the same object is substantially accomplished under H. R. XXV.1

1 For other conventions, see declarations 2 and 3 at The Hague, of 1899, as follows: 2." The contracting powers renounce the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.' 3. "The contracting powers renounce the use of bullets which expand in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions."

The United States refused to adhere to these provisions, and its representatives presented as a substitute the following:

"The use of bullets which inflict unnecessarily cruel wounds-such as explosive bullets, and, in general, every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combatshould be forbidden."

The United States has, however, by convention or otherwise, adhered in its wars to the principle announced in the proposed amendment. Vide Am. Jour. Int. Law (Gen. G. B. Davis, vol. 2, pp. 74-76).

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The following Declarations of the St. Petersburg Convention were never ratified by the United States, and are now considered as limiting too much the legitimate methods of making war:

"Considering that the progress of civilization should have the effect of alleviating as much as possible the calamities of war;

"That the only legitimate object which States should set before themselves 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 would uselessly aggravate the sufferings of disabled men, or render their death inevitable; and

"That the employment of such arms would, therefore, be contrary to the laws of humanity."

176. The use of poison.-H. R. XXIII, par. (a). In addition to the prohibitions provided by special conventions, it is especially forbidden * * * to employ poison or poisoned weapons.

177. Application of rule. This prohibition extends to the use of means calculated to spread contagious diseases, and includes the deliberate contamination of sources of water by throwing into same dead animals and all poisonous substances of any kind, but does not prohibit measures being take to dry up springs or to divert rivers and aqueducts from their courses.1

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1 The original or base of this prohibition is found in G. O. 100, of 1863, art. 70, as follows: "The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the laws and usages of war."

178. The use of treachery.-H. R. XXIII, par. (b). It is especially forbidden to kill or wound treacherously

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individuals belonging to the hostile nation or army.1:

1 It would be treacherous to call out, " Do not fire: we are friends," and then fire a volley. To feign death and then fire at an enemy, Land Warfare, Opp., p. 37, note (b).'

179. Assassination and outlawry.-Civilized nations look with horror upon offers of rewards for the assassination of enemies, and the perpetrator of such an act has no claim to be treated as a combatant, but should be treated as a criminal. So, too, the proclaiming of an individual belonging to the hostile army, or a citizen or subject of the hostile government, an outlaw, who may be slain without trial by a captor. The article includes not only assaults upon individuals, but as well any offer for an individual "dead or alive." 1

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1 Vide Laws of War on Land, Holland, p. 43; Land Warfare, Opp., arts. 46 and 47; Les Lois, Jacomet, p. 58, art. 5; G. O. 100, 1863, par. 148. "The law of war does not allow proclaiming either an individual belonging to the hostile army or a citizen or a subject of the hostile government an outlaw who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry: on the contrary it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism."

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180. Injuring an enemy who has surrendered.-H. R. XXIII, par. (c). It is especially forbidden to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion.

181. Penalty for violation.-War is for the purpose of overcoming armed resistance, and no vengeance can be taken because an individual has done his duty to the last. And "whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States or is an enemy captured after having committed the misdeed." 1 G. O. 100, 1863, art. 71. Vide also G. C., arts. 3 and 28, pars. 110,' 165, and 171, supra...

182. Refusal of quarter.-H. R. XXIII, par quarter will be (d). It is es

pecially forbidden

given.

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to declare that

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183. It is no longer contemplated that quarter will be refused to the garrison of a fortress carried by assault, to the defenders of an undefended place who did not surrender when threatened with bombardment, or to a weak garrison which obstinately and uselessly persevered in defending a fortified place against overwhelming odds.1

1 Land Warfare, Opp., p. 24, par 49. But see G. O. 100, 1863, art. 62: "All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none."

ART. 60. "It is against the usage of modern warfare to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter; but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners."

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ART. 63. "Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. See also arts. 63 and 66.

All of the foregoing rules are now superseded by The Hague rule. Vide par. 368 infra.

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184. Employment of arms, etc., causing unnecessary injúry.→ H. R. XXIII, par. (e). It is especially forbidden to employ arms, projectiles, or material, of a nature to cause unnecessary injury.

185. What included in prohibition.-The foregoing prohibition is not intended to apply to the use of explosives contained in artillery projectiles, mines, aerial torpedoes, or hand grenades, but it does include the use of lances with barbed heads, irregular-shaped bullets, projectiles filled with glass, etc., and the use of any substance on these bullets that would tend to unnecessarily inflame a wound inflicted by them, and the scoring of the surface or filing off the ends of the hard case of such bullets. It is believed that this prohibition extends to the use of soft-nosed and explosive bullets, mentioned in paragraph 175 and note.

186. Train wrecking, etc.-Train wrecking and setting on fire camps or military depots are legitimate means of injuring the enemy when carried out by the members of the armed forces. Wrecking of trains should be limited strictly to cases which tend directly to weaken the enemy's military forces.1

Opp., Land Warfare, p. 24, par. 45. Mr. Spaight, War Rights on Land, on p. 127, says: Though railway breaking is a legitimate act of warfare, designedly to wreck a hospital train, or a train which is known to be conveying peaceable inhabitants, would not be legitimate, for it would lack the essential requirement of being intended to weaken the enemy's military forces. But, generally speaking, railroads being to-day an all-important means of warfare such design would have to be clearly proved against a belligerent to condemn him for exercising his broad war right to interrupt his enemy's communications. It is a very sad but inevitable consequence of a lawful act that it may endanger or kill persons who are strangers to hostilities. * A belligerent has a

war right, not only to stop a train, but to blow it sky high, if it carries fighting troops or war material or supplies, and this war right he will hardly forego for humanitarian reasons. The strategic use of railways is so important that they must be regarded, in a country where active hostilities are going on, as a specific means of warfare, and only secondarily as fulfilling the ordinary functions of railways in peace time. I have said before, noncombatants must travel by train at their risk when there is war in the land, and the only practical method of insuring their safety appears to be the sending ahead of a herald engine to test the line.'

As

187. Subjects not to be compelled to take part in operations against their own country.-H. R. XXIII, last par. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.

188. Interpretation of this article.-This article was introduced by Germany for the purpose of extending the principles of article 44 of The Hague Conference of 1899, which it was intended to replace, to all persons over whom a State exercised jurisdiction. The Austro-Hungarian amendment to insert the words as combatants" after the words "take part" was rejected and the article passed substantially as proposed. The language used is still ambiguous, since it is uncertain whether it is unlawful to compel inhabitants of occupied territory to work on certain works that may be urgently required, such as roads and bridges which may be of ultimate military service, or whether these inhabitants can be compelled to act as guides by the enemy. This practice is still considered as admissible by Germany.

1 Vide War on Land, Holland, p. 44, art. 77. The Hague Peace Conferences, by Higgins, pp. 265-269, for further discussion. Kriegsbrauch, p. 48. Vide post discussion of H. R. 44, pars. 321-323 and notes.

CHAPTER VI, SECTION II.

STRATAGEMS.

189. H. R. XXIV. Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.

190. Good faith.-Absolute good faith with the enemy must be observed as a rule of conduct. Without it war will degenerate into excesses and violences, ending only in the total destruction of one or both of the belligerents.1

1 G. O. 100, 1863, art 16. "It (military necessity) admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes return to peace unnecessarily difficult." Land Warfare, Opp., par. 140, 141: "Should it be found impossible to count on the loyalty of the adversary, there is grave danger of war degenerating into excesses and violence, to avoid which has been the aim of modern wars."

191. In general, belligerents may resort to such measures for mystifying or misleading the enemy, which the enemy ought to take measures to secure himself against, such as the employment of spies, inducing soldiers to desert, to surrender, to rebel, or to give false information to the enemy.

192. Must not involve treachery or perfidy.-The ruses of war are, however, legitimate so long as they do not involve treachery or perfidy on the part of the belligerent resorting to them. They are forbidden if they contravene any generally accepted rule.1

1" To demand a suspension of arms and break it by surprise, or to violate a safe conduct or any other agreement in order to gain an advantage is an act of perfidy.' (Land Warfare, Opp., par. 148.) Vide par. 232 infra.

The line of demarcation, however, between legitimate ruses and forbidden acts of treachery and perfidy is sometimes rather indistinct, and with regard to same, the writers of authority have disagreed. For example: It would be an improper practice to secure an advantage of the enemy by deliberate lying which involves a breach of faith, or when there is a moral obligation to speak the truth, such as declaring that an armistice had been agreed upon when such was not the case. On the other hand, it is a perfectly proper ruse to summon a force to surrender on the ground that it is surrounded, and thereby induce such surrender with a small force."

2 H. R. XXIII, par. (b). Ante par. 178, G. O. 100, 1863, art. 101: "While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them."

Vide also Hague Conference, 1899, p. 146.