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responsibility of observing the laws of war because his adversary neglects to obey them; but he may have recourse to reprisals as a mode of redress. This term here means the measures adopted by one belligerent to prevent a recurrence of offences committed by the other; and though reprisals are generally violations of the laws of war in themselves, yet they are tolerated because they are sometimes the only penalty which can be exacted from a defaulting opponent. This form of obtaining redress must, however, be kept within strict limits, and in order to justify a belligerent who adopts this course, there must have been some flagrant breach of the laws of war or some open denial of justice. The facts ought to be established upon irrefutable evidence, and the punishment inflicted ought not to be out of proportion to the magnitude of the offence. If this latter rule were neglected, reprisals might have an effect opposite to that which was intended, and would only tend to encourage a spirit of rancour between the two States concerned.

In most wars, the services of spies are to some extent enlisted. An individual can only be considered H. 29. a spy if, acting clandestinely or on false pretences, he obtains or seeks to obtain information within the zone of operations of a belligerent, with the intention of communicating it to the hostile party. The essential characteristics of a spy in a military sense are that

his proceedings are conducted secretly and in disguise. An officer or soldier who approaches the enemy's lines in full uniform for the purpose of observing his movements does not fall within this definition. A spy, when taken in the act, is not accorded the privileges of prisoners of war. He may be either hanged or H. 80. shot, but such punishment cannot be inflicted without previous trial. The severe punishment inflicted in the case of a captured spy is intended to prevent the employment of such persons and to deter them from engaging in this service. A spy who has carried out H. 81. his mission successfully and has rejoined his own

army is no longer responsible for his previous acts of espionage to use a technical term employed with reference to a vessel engaged in running a blockade or carrying contraband of war, his offence is deemed to be "deposited." Should he be subsequently taken prisoner as a combatant, he must be treated as a prisoner of war, and is not liable to any penalty.

Of late years the question of the status of persons engaged in observing the enemy's movements from balloons has been made the subject of some discussion. It has been suggested that they should be treated as spies; but this contention, never sustainable on principle, has been negatived by Article XXIX of the Hague Convention. The vital distinction between the two cases is that the operations of a spy are

characterized by secrecy; while those of the balloonist are conducted in full view of both armies. Balloonists, therefore, if captured, are entitled to the privileges of prisoners of war.

An analogous point arising out of novel circumstances which occurred during the recent RussoJapanese War may be mentioned here. A vessel named the Haimun was fitted out by the "Times," and provided with wireless telegraphy apparatus for the purpose of transmitting war news to London. Admiral Alexeieff, however, threatened to treat the newspaper correspondents on board as spies, if found off Kwantung or within the zone of operations, on the ground that they were supposed to be transmitting news to London, the publication of which might be detrimental to his interests. The likeness to the case of balloonists is at once apparent, as the element of secrecy which is essential to the definition of a spy is wanting. The vessel in question pursued her avocation without any disguise whatsoever, and was always open to visitation and search-a right which was exercised by both belligerents. No Convention has as yet provided for the case of wireless telegraphy; but it is obvious that the persons using this means of transmitting information, whether identified with either army or not, can under no circumstances be treated as spies.

CHAPTER III.

THE NON-HOSTILE INTERCOURSE OF BELLIGERENTS.

Of hardly less importance than the rules governing the active conduct of hostilities, are those relating to the non-hostile intercourse of belligerents; this includes the law relating to Flags of Truce, Capitulations, and Armistices, which it is proposed to set out briefly in this chapter. A scrupulous regard for the conditions imposed in each case must be observed by both commanders, and it would be justifiable to visit any breach of good faith with the severest penalties. H. 32. An individual, duly authorized by one belligerent to enter into communication with the other and bearing a white flag, is considered to be the bearer of a flag of truce. His person is inviolable, as is also that of the bugler, interpreter, or flag-bearer who may accompany him into the enemy's lines. It is H. 38. not obligatory on the enemy commander to receive the bearer of the flag of truce: but if he decides to admit him, he may take all proper precautions, by blindfolding or otherwise, to ensure that the messengers do not overlook the entrenchments or works, or gain any information likely to be useful to

their side. The commander may also, in case of any abuse of this privilege, detain the envoy temporarily ; if it can be proved that he has taken advantage of his privileged position to instigate or commit any act of H. 34. treachery, he thereby loses his rights of inviolability. It is worthy of remark that only the most conclusive evidence of treachery on the part of the bearer of a flag of truce should be accepted, and it is better to allow him to depart, if there is even any doubt as to his guilt.

A Capitulation is an agreement, usually upon conditions, for the surrender of a fortified place or of a defeated force. Such conditions must be in H. 35. accordance with the rules of military honour, and when once agreed to, must be scrupulously observed by both parties. It is within the power of every commander to enter into them with regard to the places or forces under his control, but the scope of his authority in this direction is not unlimited. He may not make an agreement that his force shall never serve again against that particular enemy, nor may he stipulate for the permanent cession of a fortified town or place. Should he do so, he is acting in excess of his implied authority, and his promise amounts to a mere sponsion. An example of this is to be found in Roman history, in the case of the Convention made by the Roman Consuls with the Samnites at the Caudine

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