THE MEANS OF CONDUCTING WAR
[Sidenote: Violence and Cunning.]
By the means of conducting war is to be understood all those measures
which can be taken by one State against the other in order to attain
the object of the war, to compel one’s opponent to submit to one’s
will; they may be summarized in the two ideas of Violence and Cunning,
and judgment as to their applicability may be embodied in the following
proposition:
What is permissible includes every means of war without which the
object of the war cannot be obtained; what is reprehensible on the
other hand includes every act of violence and destruction which is
not demanded by the object of war.
It follows from these universally valid principles that wide limits are
set to the subjective freedom and arbitrary judgment of the Commanding
Officer; the precepts of civilization, freedom and honor, the
traditions prevalent in the army, and the general usages of war, will
have to guide his decisions.
A.--MEANS OF WAR DEPENDING ON FORCE
The most important instruments of war in the possession of the enemy
are his army, and his military positions; to make an end of them is the
first object of war. This can happen:
1. By the annihilation, slaughter, or wounding of the individual
combatants.
2. By making prisoners of the same.
3. By siege and bombardment.
1. _Annihilation, slaughter, and wounding of the hostile combatants_
[Sidenote: How to make an end of the Enemy.]
In the matter of making an end of the enemy’s forces by violence it
is an incontestable and self-evident rule that the right of killing
and annihilation in regard to the hostile combatants is inherent in
the war power and its organs, that all means which modern inventions
afford, including the fullest, most dangerous, and most massive means
of destruction, may be utilized; these last, just because they attain
the object of war as quickly as possible, are on that account to be
regarded as indispensable and, when closely considered, the most human.
[Sidenote: The Rules of the Game.]
As a supplement to this rule, the usages of war recognize the
desirability of not employing severer forms of violence if and when the
object of the war may be attained by milder means, and furthermore
that certain means of war which lead to unnecessary suffering are to be
excluded. To such belong:
The use of poison both individually and collectively (such as
poisoning of streams and food supplies[47]) the propagation of
infectious diseases.
Assassination, proscription, and outlawry of an opponent.[48]
The use of arms which cause useless suffering, such as soft-nosed
bullets, glass, etc.
The killing of wounded or prisoners who are no longer capable of
offering resistance.[49]
The refusal of quarter to soldiers who have laid down their arms
and allowed themselves to be captured.
The progress of modern invention has made superfluous the express
prohibition of certain old-fashioned but formerly legitimate
instruments of war (chain shot, red-hot shot, pitch balls, etc.),
since others, more effective, have been substituted for these; on the
other hand the use of projectiles of less than 400 grammes in weight
is prohibited by the St. Petersburg Convention of December 11th, 1868.
(This only in the case of musketry.[50])
He who offends against any of these prohibitions is to be held
responsible therefore by the State. If he is captured he is subject to
the penalties of military law.
[Sidenote: Colored Troops are “Blacklegs.”]
Closely connected with the unlawful instruments of war is the
employment of uncivilized and barbarous peoples in European wars.
Looked at from the point of view of law it can, of course, not be
forbidden to any State to call up armed forces from its extra-European
colonies, but the practise stands in express contradiction to the
modern movement for humanizing the conduct of war and for alleviating
its attendant sufferings, if men and troops are employed in war, who
are without the knowledge of civilized warfare and by whom, therefore,
the very cruelties and inhumanities forbidden by the usages of war are
committed. The employment of these kinds of troops is therefore to be
compared with the use of the instruments of war already described as
forbidden. The transplantation of African and Mohammedan Turcos to a
European seat of war in the year 1870 was, therefore, undoubtedly to be
regarded as a retrogression from civilized to barbarous warfare, since
these troops had and could have no conception of European-Christian
culture, or respect for property and for the honor of women, etc.[51]
2. _Capture of Enemy Combatants_
[Sidenote: Prisoners of War.]
If individual members or parties of the army fall into the power of the
enemy’s forces, either through their being disarmed and defenseless, or
through their being obliged to cease from hostilities in consequence
of a formal capitulation, they are then in the position of “prisoners
of war,” and thereby in some measure exchange an active for a passive
position.
[Sidenote: Vae Victis!]
According to the older doctrine of international law all persons
belonging to the hostile State, whether combatants or non-combatants,
who happen to fall into the hands of their opponent, are in the
position of prisoners of war. He could deal with them according to his
pleasure, ill-treat them, kill them, lead them away into bondage, or
sell them into slavery. History knows but few exceptions to this rule,
these being the result of particular treaties. In the Middle Ages the
Church tried to intervene as mediator in order to ameliorate the lot
of the prisoners, but without success. Only the prospect of ransom,
and chivalrous ideas in the case of individuals, availed to give any
greater protection. It is to be borne in mind that the prisoners
belonged to him who had captured them, a conception which began to
disappear after the Thirty Years’ War. The treatment of prisoners of
war was mostly harsh and inhuman; still, in the seventeenth century, it
was usual to secure their lot by a treaty on the outbreak of a war.
The credit of having opened the way to another conception of war
captivity belongs to Frederick the Great and Franklin, inasmuch as they
inserted in the famous Treaty of friendship, concluded in 1785 between
Prussia and North America, entirely new regulations as to the treatment
of prisoners of war.
[Sidenote: The Modern View.]
The complete change in the conception of war introduced in recent times
has in consequence changed all earlier ideas as to the position and
treatment of prisoners of war. Starting from the principle that only
States and not private persons are in the position of enemies in time
of war, and that an enemy who is disarmed and taken prisoner is no
longer an object of attack, the doctrine of war captivity is entirely
altered and the position of prisoners has become assimilated to that of
the wounded and the sick.
[Sidenote: Prisoners of War are to be honorably treated.]
The present position of international law and the law of war on the
subject of prisoners of war is based on the fundamental conception
that they are the captives not of private individuals, that is to say
of Commanders, Soldiers, or Detachments of Troops, but that they are
the captives of the State. But the State regards them as persons who
have simply done their duty and obeyed the commands of their superiors,
and in consequence views their captivity not as penal but merely as
precautionary.
It therefore follows that the object of war captivity is simply to
prevent the captives from taking any further part in the war, and
that the State can, in fact, do everything which appears necessary
for securing the captives, but nothing beyond that. The captives have
therefore to submit to all those restrictions and inconveniences which
the purpose of securing them necessitates; they can collectively be
involved in a common suffering if some individuals among them have
provoked sterner treatment; but, on the other hand, they are protected
against unjustifiable severities, ill-treatment, and unworthy handling;
they do, indeed, lose their freedom, but not their rights; war
captivity is, in other words, no longer an act of grace on the part of
the victor but a right of the defenseless.
[Sidenote: Who may be made Prisoners.]
According to the notions of the laws of war to-day the following
persons are to be treated as prisoners of war:
1. The Sovereign, together with those members of his family who
were capable of bearing arms, the chief of the enemy’s State,
generally speaking, and the Ministers who conduct its policy
even though they are not among the individuals belonging to
the active army.[52]
2. All persons belonging to the armed forces.
3. All Diplomatists and Civil Servants attached to the army.
4. All civilians staying with the army, with the approval of its
Commanders, such as transport, sutlers, contractors, newspaper
correspondents, and the like.
5. All persons actively concerned with the war such as Higher
Officials, Diplomatists, Couriers, and the like, as also all
those persons whose freedom can be a danger to the army of the
other State, for example, Journalists of hostile opinions,
prominent and influential leaders of Parties, Clergy who
excite the people, and such like.[53]
6. The mass of the population of a province or a district if they
rise in defense of their country.
The points of view regarding the treatment of prisoners of war may be
summarized in the following rules:
Prisoners of war are subject to the laws of the State which has
captured them.
[Sidenote: The treatment of Prisoners of War.]
The relation of the prisoners of war to their own former superiors
ceases during their captivity; a captured officer’s servant steps
into the position of a private servant. Captured officers are never
the superiors of soldiers of the State which has captured them; on
the contrary, they are under the orders of such of the latter as are
entrusted with their custody.
The prisoners of war have, in the places in which they are quartered,
to submit to such restrictions of their liberty as are necessary for
their safe keeping. They have strictly to comply with the obligation
imposed upon them, not to move beyond a certain indicated boundary.
[Sidenote: Their confinement.]
These measures for their safe keeping are not to be exceeded; in
particular, penal confinement, fetters, and unnecessary restrictions
of freedom are only to be resorted to if particular reasons exist to
justify or necessitate them.
The concentration camps in which prisoners of war are quartered must be
as healthy, clean, and decent as possible; they should not be prisons
or convict establishments.
It is true that the French captives were transported by the Russians to
Siberia as malefactors in the years 1812 and 1813. This was a measure
which was not illegitimate according to the older practise of war, but
it is no longer in accordance with the legal conscience of to-day.
Similarly the methods which were adopted during the Civil War in North
America in a prison in the Southern States, against prisoners of war of
the Union Forces, whereby the men were kept without air and nourishment
and thus badly treated, were also against the practise of the law of
war.
Freedom of movement within these concentration camps or within the
whole locality may be permitted if there are no special reasons against
it. But obviously prisoners of war are subject to the existing, or to
the appointed rules of the establishment or garrison.
[Sidenote: The Prisoner and his Taskmaster.]
Prisoners of war can be put to moderate work proportionate to their
position in life; work is a safeguard against excesses. Also on
grounds of health this is desirable. But these tasks should not
be prejudicial to health nor in any way dishonorable or such as
contribute directly or indirectly to the military operations against
the Fatherland of the captives. Work for the State is, according to the
Hague regulations, to be paid at the rates payable to members of the
army of the State itself.
Should the work be done on account of other public authorities or of
private persons, then the conditions will be fixed by agreement with
the military authorities. The wages of the prisoners of war must be
expended in the improvement of their condition, and anything that
remains should be paid over to them after deducting the cost of their
maintenance when they are set free. Voluntary work in order to earn
extra wages is to be allowed, if there are no particular reasons
against it.[54] Insurrection, insubordination, misuse of the freedom
granted, will of course justify severer confinement in each case, also
punishment, and so will crimes and misdemeanors.
[Sidenote: Flight.]
Attempts at escape on the part of individuals who have not pledged
their word of honor might be regarded as the expression of a natural
impulse for liberty, and not as a crime. They are therefore to be
punished by restriction of the privileges granted and a sharper
supervision but not with death. But the latter punishment will follow
of course in the case of plots to escape, if only because of the danger
of them. In case of a breach of a man’s parole the punishment of death
may reasonably be incurred. In some circumstances, if necessity and
the behavior of the prisoners compel it, one is justified in taking
measures the effect of which is to involve the innocent with the
guilty.[55]
[Sidenote: Diet.]
The food of the prisoners must be sufficient and suitable to their
rank, yet they will have to be content with the customary food of the
country; luxuries which the prisoners wish to get at their own expense
are to be permitted if reasons of discipline do not forbid.
[Sidenote: Letters.]
Correspondence with one’s home is to be permitted, likewise visits and
intercourse, but these of course must be watched.
[Sidenote: Personal belongings.]
The prisoners of war remain in possession of their private property
with the exception of arms, horses, and documents of a military
purport. If for definite reasons any objects are taken away from them,
then these must be kept in suitable places and restored to them at the
end of their captivity.
[Sidenote: The Information Bureau.]
Article 14 of the Hague Regulations prescribes that on the outbreak
of hostilities there shall be established in each of the belligerent
States and in a given case in neutral States, which have received
into their territory any of the combatants, an information bureau for
prisoners of war. Its duty will be to answer all inquiries concerning
such prisoners and to receive the necessary particulars from the
services concerned in order to be able to keep a personal entry for
every prisoner. The information bureau must always be kept well
posted about everything which concerns a prisoner of war. Also this
information bureau must collect and assign to the legitimate persons
all personal objects, valuables, letters, and the like, which are found
on the field of battle or have been left behind by dead prisoners of
war in hospitals or field-hospitals. The information bureau enjoys
freedom from postage, as do generally all postal despatches sent to or
by prisoners of war. Charitable gifts for prisoners of war must be free
of customs duty and also of freight charges on the public railways.
The prisoners of war have, in the event of their being wounded or sick,
a claim to medical assistance and care as understood by the Geneva
Convention and, so far as is possible, to spiritual ministrations also.
These rules may be shortly summarized as follows:
Prisoners of war are subject to the laws of the country in which they
find themselves, particularly the rules in force in the army of the
local State; they are to be treated like one’s own soldiers, neither
worse nor better.
[Sidenote: When Prisoners may be put to Death.]
The following considerations hold good as regard the imposition of a
death penalty in the case of prisoners; they can be put to death:
1. In case they commit offenses or are guilty of practises which
are punishable by death by civil or military laws.
2. In case of insubordination, attempts at escape, etc., deadly
weapons can be employed.
3. In case of overwhelming necessity, as reprisals, either against
similar measures, or against other irregularities on the part
of the management of the enemy’s army.
4. In case of overwhelming necessity, when other means of
precaution do not exist and the existence of the prisoners
becomes a danger to one’s own existence.
[Sidenote: “Reprisals.”]
As regards the admissibility of reprisals, it is to be remarked that
these are objected to by numerous teachers of international law on
grounds of humanity. To make this a matter of principle, and apply it
to every case exhibits, however, “a misconception due to intelligible
but exaggerated and unjustifiable feelings of humanity, of the
significance, the seriousness and the right of war. It must not be
overlooked that here also the necessity of war, and the safety of the
State are the first consideration, and not regard for the unconditional
freedom of prisoners from molestation.”[56]
[Sidenote: One must not be too scrupulous.]
That prisoners should only be killed in the event of extreme necessity,
and that only the duty of self-preservation and the security of one’s
own State can justify a proceeding of this kind is to-day universally
admitted. But that these considerations have not always been decisive
is proved by the shooting of 2,000 Arabs at Jaffa in 1799 by Napoleon;
of the prisoners in the rising of La Vendée; in the Carlist War; in
Mexico, and in the American War of Secession, where it was generally a
case of deliverance from burdensome supervision and the difficulties
of maintenance; whereas peoples of a higher morality such as the
Boers in our own days, finding themselves in a similar position, have
preferred to let their prisoners go. For the rest, calamities such
as might lead to the shooting of prisoners are scarcely likely to
happen under the excellent conditions of transport in our own time and
the correspondingly small difficulty of feeding them--in a European
campaign.[57]
[Sidenote: The end of Captivity.]
The captivity of war comes to an end:
1. By force of circumstances which _de facto_ determine it, for
example, successful escape, cessation of the war, or death.
2. By becoming the subject of the enemy’s state.
3. By release, whether conditional or unconditional, unilateral or
reciprocal.
4. By exchange.
As to 1. With the cessation of the war every reason for the captivity
ceases, provided there exist no special grounds for another view. It
is on that account that care should be taken to discharge prisoners
immediately. There remain only prisoners sentenced to punishment or
awaiting trial, _i.e._, until the expiation of their sentence or the
end of their trial as the case may be.
As to 2. This pre-supposes the readiness of the State to accept the
prisoner as a subject.
[Sidenote: Parole.]
As to 3. A man released under certain conditions has to fulfil them
without question. If he does not do this, and again falls into the
hands of his enemy, then he must expect to be dealt with by military
law, and indeed according to circumstances with the punishment of
death. A conditional release cannot be imposed on the captive; still
less is there any obligation upon the state to discharge a prisoner on
conditions--for example, on his parole. The release depends entirely
on the discretion of the State, as does also the determination of its
limits and the persons to whom it shall apply.
The release of whole detachments on their parole is not usual. It is
rather to be regarded as an arrangement with each particular individual.
Arrangements of this kind, every one of which is as a rule made a
conditional discharge, must be very precisely formulated and the
wording of them most carefully scrutinized. In particular it must be
precisely expressed whether the person released is only bound no longer
to fight directly with arms against the State which releases him, in
the present war, whether he is justified in rendering services to his
own country in other positions or in the colonies, etc., or whether all
and every kind of service is forbidden him.
The question whether the parole given by an officer or a soldier is
recognized as binding or not by his own State depends on whether the
legislation or even the military instructions permit or forbid the
giving of one’s parole.[58] In the first case his own State must not
command him to do services the performance of which he has pledged
himself not to undertake.[59] But personally the man released on parole
is under all circumstances bound to observe it. He destroys his honor
if he breaks his word, and is liable to punishment if recaptured, even
though he has been hindered by his own State from keeping it.[60]
According to the Hague Regulations a Government can demand no services
which are in conflict with a man’s parole.
[Sidenote: Exchange of Prisoners.]
As to 4. The exchange of prisoners in a single case can take place
between two belligerents without its being necessary in every case to
make circumstantial agreements. As regards the scope of the exchange
and the forms in which it is to be completed the Commanding Officers
on both sides alone decide. Usually the exchange is man for man, in
which case the different categories of military persons are taken
into account and certain ratios established as to what constitutes
equivalents.
[Sidenote: Removal of Prisoners.]
Transport of Prisoners.--Since no Army makes prisoners in order to
let them escape again afterwards, measures must be taken for their
transport in order to prevent attempts at escape. If one recalls that
in the year 1870-71, no fewer than 11,160 officers and 333,885 men
were brought from France to Germany, and as a result many thousands
often had to be guarded by a proportionately small company, one
must admit that in such a position only the most zealous energy and
ruthless employment of all the means at one’s disposal can avail, and
although it is opposed to military sentiment to use weapons against the
defenseless, none the less in such a case one has no other choice. The
captive who seeks to free himself by flight does so at his peril and
can complain of no violence which the custody of prisoners directs in
order to prevent behavior of that kind. Apart from these apparently
harsh measures against attempt at escape, the transport authorities
must do everything they can to alleviate the lot of the sick and
wounded prisoners, in particular they are to protect them against
insults and ill-treatment from an excited mob.
3. _Sieges and Bombardments_
[Sidenote: Fair Game.]
War is waged not merely with the hostile combatants but also with the
inanimate military resources of the enemy. This includes not only the
fortresses but also every town and every village which is an obstacle
to military progress. All can be besieged and bombarded, stormed and
destroyed, if they are defended by the enemy, and in some cases even if
they are only occupied. There has always been a divergence of views,
among Professors of International Law, as to the means which are
permissible for waging war against these inanimate objects, and these
views have frequently been in strong conflict with those of soldiers;
it is therefore necessary to go into this question more closely.
We have to distinguish:
(_a_) Fortresses, strong places, and fortified places.
(_b_) Open towns, villages, buildings, and the like, which,
however, are occupied or used for military purposes.
Fortresses and strong places are important centers of defense, not
merely in a military sense, but also in a political and economic sense.
They furnish a principal resource to the enemy and can therefore be
bombarded just like the hostile army itself.
[Sidenote: Of making the most of one’s opportunity.]
A preliminary notification of bombardment is just as little to be
required as in the case of a sudden assault. The claims to the contrary
put forward by some jurists are completely inconsistent with war and
must be repudiated by soldiers; the cases in which a notification has
been voluntarily given do not prove its necessity. The besieger will
have to consider for himself the question whether the very absence
of notification may not be itself a factor of success, by means of
surprise, and indeed whether notification will not mean a loss of
precious time. If there is no danger of this then humanity no doubt
demands such a notification.
Since town and fortifications belong together and form an inseparable
unity, and can seldom in a military sense, and never in an economic and
political sense, be separated, the bombardment will not limit itself to
the actual fortification, but it will and must extend over the whole
town; the reason for this lies in the fact that a restriction of the
bombardment to the fortifications is impracticable; it would jeopardize
the success of the operation, and would quite unjustifiably protect
the defenders who are not necessarily quartered in the works.
[Sidenote: Spare the Churches.]
But this does not preclude the exemption by the besieger of certain
sections and buildings of the fortress or town from bombardment, such
as churches, schools, libraries, museums, and the like, so far as this
is possible.
But of course it is assumed that buildings seeking this protection will
be distinguishable and that they are not put to defensive uses. Should
this happen, then every humanitarian consideration must give way.
The utterances of French writers about the bombardments of Strasburg
Cathedral in the year 1870, are therefore quite without justification,
since it only happened after an observatory for officers of artillery
had been erected on the tower.
The only exemption from bombardment recognized by international law,
through the medium of the Geneva Convention, concerns hospitals and
convalescent establishments. Their extension is left to the discretion
of the besieger.
[Sidenote: A Bombardment is no Respecter of Persons.]
As regards the civil population of a fortified place the rule is: All
the inhabitants, whether natives or foreigners, whether permanent or
temporary residents, are to be treated alike.
No exception need be made in regard to the diplomatists of neutral
States who happen to be in the town; if before or during the investment
by the besieger their attention is drawn to the fate to which they
expose themselves by remaining, and if days of grace in which to
leave are afforded them, that simply rests on the courtesy of the
besieger. No such duty is incumbent upon him in international law. Also
permission to send out couriers with diplomatic despatches depends
entirely upon the discretion of the besieger. In any case it will
always depend on whether the necessary security against misuse is
provided.[61]
[Sidenote: A timely severity.]
If the commandant of a fortress wishes to strengthen its defensive
capacity by expelling a portion of the population such as women,
children, old people, wounded, etc., then he must take these steps in
good time, _i.e._, before the investment begins. If the investment is
completed, no claim to the free passage of these classes can be made
good. All juristic demands to the contrary are as a matter of principle
to be repudiated, as being in fundamental conflict with the principles
of war. The very presence of such persons may accelerate the surrender
of the place in certain circumstances, and it would therefore be
foolish of a besieger to renounce voluntarily this advantage.[62]
Once the surrender of a fortress is accomplished, then, by the usages
of war to-day, any further destruction, annihilation, incendiarism,
and the like, are completely excluded. The only further injuries that
are permitted are those demanded or necessitated by the object of the
war, _e.g._, destruction of fortifications, removal of particular
buildings, or in some circumstances of complete quarters, rectification
of the foreground and so on.
[Sidenote: “Undefended Places.”]
A prohibition by international law of the bombardment of open towns and
villages which are not occupied by the enemy, or defended, was, indeed,
put into words by the Hague Regulations, but appears superfluous, since
modern military history knows of hardly any such case.
But the matter is different where open towns are occupied by the enemy
or are defended. In this case, naturally all the rules stated above
as to fortified places hold good, and the simple rules of tactics
dictate that fire should be directed not merely against the bounds of
the place, so that the space behind the enemy’s firing line and any
reserves that may be there shall not escape. A bombardment is indeed
justified, and unconditionally dictated by military consideration, if
the occupation of the village is not with a view to its defense but
only for the passage of troops, or to screen an approach or retreat, or
to prepare or cover a tactical movement, or to take up supplies, etc.
The only criterion is the value which the place possesses for the enemy
in the existing situation.
Regarding it from this point of view, the bombardment of Kehl by the
French in 1870 was justified by military necessity, although the place
bombarded was an open town and not directly defended. “Kehl offered
the attacking force the opportunity of establishing itself in its
buildings, and of bringing up and placing there its personnel and
material, unseen by the defenders. It became a question of making Kehl
inaccessible to the enemy and of depriving it of the characteristics
which made its possession advantageous to the enemy. The aforesaid
justification was not very evident.”[63]
Also the bombardment of the open town of Saarbrücken cannot from the
military point of view be the subject of reproach against the French.
On August 2nd a Company of the Fusilier Regiment No. 40 had actually
occupied the railway station and several others had taken up a position
in the town. It was against these troops that the fire of the French
was primarily directed. If havoc was spread in the town, that could
scarcely be avoided. In the night of August 3rd to 4th, the fire of the
French batteries was again directed on the railway station in order to
prevent the despatch of troops and material. Against this proceeding
also no objection can be made, since the movement of trains had
actually taken place.
If, therefore, on the German side[64] energetic protest were made in
both cases, and the bombardment of Kehl and Saarbrücken were declared
a violation of international law, this only proves that in 1870 a
proper comprehension of questions of the laws of war of this kind
was not always to be found even in the highest military and official
circles. But still less was this the case on the French side as is
clear from the protests against the German bombardment of Dijon,
Chateaudun, Bazeilles, and other places, the military justification for
which is still clearer and incontestable.[65]
B.--METHODS NOT INVOLVING THE USE OF FORCE. CUNNING, AND DECEIT
[Sidenote: Stratagems.]
Cunning in war has been permissible from the earliest times, and was
esteemed all the more as it furthered the object of war without
entailing the loss of men. Surprises, laying of ambushes, feigned
attacks and retreats, feigned flight, pretense of inactivity, spreading
of false news as to one’s strength and dispositions, use of the enemy’s
parole--all this was permitted and prevalent ever since war begun, and
so it is to-day.[66]
[Sidenote: What are “dirty tricks”?]
As to the limits between recognized stratagems and those forms of
cunning which are reprehensible, contemporary opinion, national
culture, the practical needs of the moment, and the changing military
situation, are so influential that it is prima facie proportionately
difficult to draw any recognized limit, as difficult as between
criminal selfishness and taking a justifiable advantage. Some forms
of artifice are, however, under all circumstances irreconcilable
with honorable fighting, especially all those which take the form of
faithlessness, fraud, and breach of one’s word. Among these are breach
of a safe-conduct; of a free retirement; or of an armistice, in order
to gain by a surprise attack an advantage over the enemy; feigned
surrender in order to kill the enemy who then approach unsuspiciously;
misuse of a flag of truce, or of the Red Cross, in order to secure
one’s approach, or in case of attack, deliberate violation of a
solemnly concluded obligation, _e.g._, of a war treaty; incitement to
crime, such as murder of the enemy’s leaders, incendiarism, robbery,
and the like. This kind of outrage was an offense against the law of
nations even in the earliest times. The natural conscience of mankind
whose spirit is chivalrously alive in the armies of all civilized
States, has branded it as an outrage upon human right, and enemies who
in such a public manner violate the laws of honor and justice have been
regarded as no longer on an equality.[67]
[Sidenote: Of False Uniforms.]
The views of military authorities about methods of this kind, as also
of those which are on the borderline, frequently differ from the views
held by notable jurists. So also the putting on of enemy’s uniforms,
the employment of enemy or neutral flags and marks, with the object
of deception are as a rule declared permissible by the theory of the
laws of war,[68] while military writers[69] have expressed themselves
unanimously against them. The Hague Conference has adopted the latter
view in forbidding the employment of enemy’s uniforms and military
marks equally with the misuse of flags of truce and of the Red
Cross.[70]
[Sidenote: The Corruption of others may be useful.]
[Sidenote: And murder is one of the Fine Arts.]
Bribery of the enemy’s subjects with the object of obtaining military
advantages, acceptance of offers of treachery, reception of deserters,
utilization of the discontented elements in the population, support of
pretenders and the like, are permissible, indeed international law
is in no way opposed[71] to the exploitation of the crimes of third
parties (assassination, incendiarism, robbery, and the like) to the
prejudice of the enemy.
[Sidenote: The ugly is often expedient, and that it is a mistake to be
too “nice-minded.”]
Considerations of chivalry, generosity, and honor may denounce in such
cases a hasty and unsparing exploitation of such advantages as indecent
and dishonorable, but law which is less touchy allows it.[72] “The
ugly and inherently immoral aspect of such methods cannot affect the
recognition of their lawfulness. The necessary aim of war gives the
belligerent the right and imposes upon him, according to circumstances,
the duty not to let slip the important, it may be the decisive,
advantages to be gained by such means.[73]