CHAPTER III. THE LAWS OF WAR WITH REGARD TO ENEMY PERSONS. § 184. It will be convenient to begin by considering the case of enemy subjects found in a state at the outbreak of war. The treatment of such persons has varied very much at different times. In the Middle The treatment ac- Ages a right to detain them as captives was held to exist, and, though enemy merchants were generally allowed time to depart, the power to arrest did not become obsolete from disuse. Accordingly the early publicists were obliged to lay down that it existed, though they strove to mitigate its severity. Grotius declared that enemies found within a territory at the outbreak of war might be captured and held as prisoners while the war lasted, but he added that they might not be detained after the termination of hostilities, as in his day ordinary prisoners were.1 But as commerce grew more powerful arrest was less frequent, till in the middle of the eighteenth century the right to resort to it was denied by Vattel; 2 and from that day to the present a number of treaties have been negotiated, giving a time varying from six months to a year for withdrawal. Such stipulations are hardly needed now; for the old right of arrest has been destroyed by the continuous contrary custom of nearly a hundred and fifty years. The only case of 1 De Jure Belli ac Pacis, III., IX., IV. detention to be found in modern times occurred in 1803, when Napoleon arrested the British subjects found in France after the rupture of the Treaty of Amiens; but this has always been regarded as a violent proceeding carried out in defiance of right. The modern doctrine is that expulsion may be resorted to in extreme cases, but unless there are special reasons to the contrary enemy subjects should be allowed to remain in the country as long as they give no aid or information to their own side. Great Britain inaugurated this liberal policy. In 1756 at the outbreak of war with France she gave permission for French subjects "who shall demean themselves dutifully" to remain in the country; and her Treaty of 1794 with the United States was the first to provide that in future wars between the contracting parties subjects of each residing in the country of the other should remain unmolested as long as they lived peaceably and observed the laws, and should be granted a term of twelve months to wind up their affairs and leave, if their conduct caused them to be suspected.1 Other states have followed this example, and treaties containing similar provisions are constantly being concluded. The last instance2 of expulsion occurred in 1870 when the French Government ordered all German subjects to leave the department of the Seine at the time when the German armies were moving on Paris and the population was intensely excited against all who were suspected of belonging to the enemy nationality. The authorities felt doubtful of their ability to protect such persons, and therefore adopted the extreme measure of compelling them to depart. It is difficult to see how they could have acted otherwise, when domestic revolution and foreign invasion were stirring the passions of the people. But in ordinary wars there is no excuse for a general measure of expulsion directed against all enemy subjects, no matter 1 Vattel, Droit des Gens, III., § 63; Treaties of the U. S., 392, 393. 2 The Boer war of 1899-1900 provides later instances. At its commencement, and during its progress, various categories of British subjects resident in the territory of the two Republics were ordered to leave, and in some cases impressed for service against their own country if they remained. how quiet and peaceable they may be. The modern rule, in the absence of treaty stipulations, is that the right to arrest no longer exists, and, though the right to expel remains, it should be used sparingly and only in great emergencies. ern ideas of the violence permissible in war. § 185. enemy The old idea of war was that it wrought an absolute interruption of all relations between the belligerents exAncient and mod- cept those arising from force, and delivered over the and all that he possessed to unlimited violence. Even so humane a man as Grotius, writing at a period so late in the world's history as 1625, was obliged to declare that by the law of nations it was lawful to put to death all persons found within the enemy's territory, including women and children and such resident strangers as did not depart within a reasonable time. But he is careful to add that these extreme severities are allowed only in the sense that they are not forbidden by the customs of nations. He pleads earnestly for better practices, arguing that justice requires a belligerent to spare those who have done no wrong to him, and even when justice does not demand the exercise of mercy, it is approved by goodness, moderation, and magnanimity. He excepts by name from liability to slaughter women, children, old men, priests, husbandmen, merchants and prisoners.2 But these temperamenta belli are recommended by him as counsels of perfection, rather than laid down as actual law. They were eagerly seized upon by the more humane of his successors, and gradually developed into a broad distinction between combatants and non-combatants. From the Peace of Westphalia in 1648 an improvement in the usages of warfare set in, and as they became less severe publicists discarded the old doctrine that war authorized the citizens and subjects of each of the belligerent states to exercise unlimited violence 1 De Jure Belli ac Pacis, III., IV., VI-XIV. 2 Ibid., III., XI., IX-XIII. against its foes, and substituted for it the theory that only so much stress may be put upon an enemy as is sufficient to destroy his power of resistance. War is in its nature harsh and cruel. As long as it exists at all it must involve hard blows and terrible suffering. But all possible mitigations and restraints are contained within the principle we have just enunciated and can easily be deduced from it. It limits not only the classes to whom violence may be applied, but also the measure and extent of the violence when applied. Non-combatants do not contribute to the strength of an enemy except by paying taxes and affording supplies. This can be prevented without subjecting them to personal attack or plunder, by the process of occupying the district where they live. Hence it follows that they may not be destroyed. Force is necessary to overcome the resistance of the enemy's fighting men. When that end is attained further infliction of pain is useless. Hence it follows that the wounded must be spared and those who surrender must be received as pris oners. Several military states have recently issued instructions to their armies in the form of Manuals containing a complete code of rules for use in warfare. The first of these was set forth by the United States in 1863, and the example has been followed by Germany, France, Russia and England. An attempt was made by the Emperor Alexander II. of Russia to bring about the adoption of a common code by the civilized states of the world. At his instigation a conference of representatives of all the powers of Europe met at Brussels in 1874 to discuss the laws of warfare on land. The delegates were not plenipotentiaries, and any agreement they might come to was to be subject to further negotiations between the governments concerned. After long discussion they were able to give their approval to a series of articles which would have formed an excellent basis for a code, though several difficult points were passed over or evaded.1 1 British State Papers, Miscellaneous, No. 1 (1875), pp. 320–324. But Great Britain declined to enter into further negotiaLions on the ground of the impossibility of any reconciliation of the differences of opinion revealed at the previous conferences. Nevertheless the proposals agreed to at Brussels in 1874 have had a great influence on the Manuals subsequently issued by European states for the guidance of their armies, and on the Code adopted by the Institut de Droit International in 1880.1 We shall refer to them often in the course of this chapter and those which follow; but it must be noted that they have no other authority than that which is derived from the agreement of a number of highly trained experts. Except in so far as they formulate general usage they are not International Law.2 A short review of the present usages of warfare, with regard first to combatants and afterwards to non-combatants, will show how far mitigations of its old severity have been carried, and indicate what further improvements may be hoped for in consequence of the operation of the principle we have been considering. § 186. In dealing with combatants we will commence with the assertion that The growth of the quarter. Quarter is given except in very extreme cases. When an armed enemy ceases to fight and begs for mercy, he is said to ask for quarter; and when his life is spared and he is made prisoner, quarter is said to practice of giving have been granted to him. Not till the beginning of the seventeenth century was it deemed obligatory upon victorious soldiers to give quarter to vanquished enemies; and for some time longer the rule in favor of it was frequently disregarded. When Gustavus Adolphus landed in Pomerania in 1630 he had to make a special agreement with the Imperialists in order to secure 1 Tableau Général de l'Institut de Droit International, 173–190. 2 A great advance in this respect was made at the Hague Conference of 1899. See Appendix, § V. |