44 MILITARY AID TO THE CIVIL POWER lections of art and science, and historical monuments, are exempted from such disposition. The burning of our Capitol and the President's House at Washington by the British forces in 1814 was wanton, without justification, and contrary to the modern laws of war. It was scathingly denounced at the time in the British House of Commons. (2) The rule as to taking or destroying private prop- . erty of the enemy is much the same as that applied to the private property of our own people. The humane maxims of the modern law of nations exempt the private property of non-combatant enemies from capture as booty of war. In fact all private property, whether of individuals or of private corporations, is now in general regarded as properly exempt from seizure, except where it is suitable for military use or is of a hostile character. (3) Towns and villages in the enemy's country may not be attacked at all, unless defended, and, if they are to be bombarded, fair warning must first be given by the attacking commander. If some buildings must be burned, blown up, or torn down, special care must be taken not to disturb those occupied as hospitals or in which wounded are cared for. 40. OPERATIONS OF WAR CARRIED ON ONLY BY LEGITIMATE FORCES OF THE STATE.-a. The legitimate forces of the United States are designated in the Constitution as the Army, Navy, and Militia. The following conditions must be satisfied: (1) That of being under the direction of a responsible leader. (2) That of wearing a uniform or distinctive mark, which latter must be fixed, capable of being recognized at a distance. (3) That of bearing arms openly. b. Recognition as forming a part of the armed forces of a state is also accorded the population of a territory not yet occupied by the enemy, who, upon his approach, spontaneously take up arms to resist the invading army, even though, owing to lack of time, they have not yet organized themselves militarily. c. Guerillas or other irregular armed bodies or persons, not forming part of the organized forces of a belliger THE LAWS OF WAR 45 ent or operating under the orders of its established commanders, are not in general recognized as legitimate troops or entitled, when captured, to be treated as prisoners of war, but may be summarily punished, even with death. d. Should one belligerent organize and include within its forces contingents of uncivilized combatants who would not be likely to respect the laws of war, the other belligerent would be justified in refusing to recognize them as legitimate forces. 41. AUTHORIZED WEAPONS AND MEANS OF WARFARE.a. Illegitimate weapons of war include those which, in disabling or causing death, inflict a needless, unusual, or unreasonable amount of torture or injury. Poison or poisoned weapons, explosive bullets or projectiles weighing less than 400 grammes, projectiles filled with powdered glass, dumdum bullets, etc., come under this head. b. The poisoning of wells or springs of drinking water, or of provisions likely to fall into the enemy's hands and be partaken of by his troops, would constitute a marked violation of this principle. c. In 1899, several of the more prominent nations of Europe and Asia pledged themselves at the Hague Conference of that year not to use projectiles the only object of which was to give out suffocating or poisonous gases. Germany signed this pledge in 1900, yet she initiated the use of poisonous gases during the World War when she launched her deadly chlorine attack on April 22, 1915, against the French and British lines in the northeastern part of the upper Ypres salient. Thus forced by Germany, the Allies turned their attention to the use of this new weapon and to devising means for protecting their troops against it. d. Though the United States did not sign the pledge not to use poisonous gases in warfare, its attitude has always been against such employment. The soundness of this attitude is questioned by Admiral Mahan in language as follows: "It is illogical and not demonstrably humane to be tender about asphyxiating men with gas, when all are prepared to admit that it is allowable to blow the bottom out of an ironclad at 46 MILITARY AID TO THE CIVIL POWER midnight, throwing four or five hundred men into the sea to be choked by the water, with scarcely the remotest chance to escape." e. Regardless of the logic of this, and regardless of the extent to which we may be inclined to agree with it, the fact remains that it does not represent the views of the Conference of the Principal Allied and Associated Powers that met at Washington, D.C., in 1921, for consideration of the limitation of armament. As already stated above, one of the seven treaties agreed upon by the conferees upon that occasion related to the use of submarines and noxious gases in warfare. While the Conference was unable either to abolish or to limit submarines, it stated with clarity and force the existing rules of international law which condemned the abhorrent practices followed in the recent war in the use of submarines against merchant vessels. The treaty respecting the use of poisonous gases contained the following provision: "The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties, to which a majority of the civilized Powers are parties, "The Signatory Powers, to the end that this prohibition shall be universally accepted as a part of international law binding alike the conscience and practice of nations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite all other civilized nations to adhere thereto." ""* f. It may be urged that nations at war will not adhere to this rule, or that some of them in the future may break it as did Germany in the past, and thereby compel others to do likewise in self-defense. In this connection the remarks made by Mr. Root, one of the respresentatives of the United States, in presenting the treaty for the approval of the Conference are of interest. He said: "You will observe that this treaty does not undertake to modify international law in respect of visit, search, or seizure *The agreements made at the Washington Conference of 1921 are not binding upon any of the governments until ratified by all of the governments represented at that conference. The prohibition against the use of asphyxiating and poisonous gases has not, up to the present time (October 1, 1925), become binding upon the powers there represented. THE LAWS OF WAR 47 of merchant vessels. What it does undertake to do is to state the most important and effective provisions of the law of nations in regard to the treatment of merchant vessels by belligerent warships, and to declare that submarines are, under no circumstances, exempt from these humane rules for the protection of the life of innocent non-combatants. "It undertakes further to stigmatize violations of these rules, and the doing to death of women and children and non-combatants by the wanton destruction of merchant vessels upon which they are passengers and by a violation of the laws of war, which as between these five great powers and all other civilized nations who shall give their adherence shall be henceforth punished as an act of piracy. "It undertakes further to prevent temptation to the violation of these rules by the use of submarines for the capture of merchant vessels, and to prohibit that use altogether. It undertakes further to denounce the use of poisonous gases and chemicals in war, as they were used to the horror of all civilization in the war of 1914-1918. "Cynics have said that in the stress of war, these rules will be violated. Cynics are always near-sighted, and often and usually the decisive facts lie beyond the range of their vision. "We may grant that rules limiting the use of implements of warfare made between diplomatists will be violated in the stress of conflict. We may grant that the most solemn obligation assumed by governments in respect of the use of implements of war will be violated in the stress of conflict; but beyond diplomatists and beyond governments there rests the public opinion of the civilized world, and the public opinion of the world can punish. It can bring its sanction to the support of a prohibition with as terrible consequences as any criminal statute of Congress or of Parliament. "We may grant that in matters which are complicated and difficult, where the facts are disputed and the argument is sophistic, public opinion may be confused and ineffective, yet when a rule of action, clear and simple, is based upon the fundamental ideas of humanity and right conduct, and the public opinion of the world has reached a decisive judgment upon it, that rule will be enforced by the greatest power known to human history." g. Resort to the employment of assassins, or other violent or harmful and secret methods which cannot be guarded against by ordinary vigilance, such as the use of savage allies, introduction of infectious or contagious diseases, etc., is interdicted by civilized usage.* Thus the use, for the purpose of deceiving the enemy, of the national colors of the enemy, or a flag of truce, or the brassard of the Geneva Convention, or the uniform of the enemy, deprives those captured while designedly indulging in or attempting such *See Winthrop, 1223 and 1224, and the numerous authorities there cited. 48 MILITARY AID TO THE CIVIL POWER deception of the right to be treated as prisoners of war. They may be shot without trial, or tried and sentenced to death in the same manner as spies. 42. TRUCES AND CONVENTIONS.-a. Truces and conventions include cartels, capitulations, and armistices. Communications between enemies respecting them are usually initiated by flags of truce. The commander to whom a flag of truce is sent is not obliged to receive it under all circumstances, but he may not fire upon it or offer violence to its. bearers without sufficient warning. An armistice may be either general or local, depending upon the purposes, duration, and terms fixed by the agreement. It does not affect the state of war; that is, it is not a partial or temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties. b. The rule to remember about capitulations is that they should never involve unnecessary ignominy, or conditions otherwise repugnant to military honor. Private effects should not be required to be surrendered, and officers are generally allowed to retain their swords or other sidearms. 43. TREATMENT OF PRISONERS OF WAR.-a. Prisoners of war are not convicts. The purpose of their captivity is not to punish or wreak vengeance upon them, but merely to restrain them as a war measure. They are the prisoners of the captor's government, not the captor. No violence against them is justified by the mere fact that they are enemies. Each is treated with due regard to his rank, and, in the absence of special agreement between the belligerents, is placed on the same footing with regard to food and clothing as the troops of the government that made them prisoners. If they cannot be subsisted, they should be released on parole. The wounded are to be treated with the same care as the wounded of the captor. b. The days of "no quarter" on the battlefield have long since passed, and it is now a grave violation of the laws of war to kill prisoners of war or subject them to unreasonably harsh or cruel treatment, except, to a certain degree only, by way of retaliation for similar acts by the enemy. (See next succeeding paragraph.) |