"Japan ordered naval officers to give cr_International Law

convoying officer. The idea was simply that, as generosity was the

chief object of Japan, she did not wish to search and make actual

inspection in order to verify the character of escorted merchantmen

and goods, trusting to the honor of neutral officers. This was the

main idea of the Japanese in adopting the Continental principle

regarding convoy; but she was not, in actual cases, so lax as to admit

exorbitant claims of the right of convoy, such as an English admiral

made for all British ships in the China Sea."[466]

The present tendencies seem to indicate an inclination to admit the

right of convoy within reasonable limits and under reasonable

regulations.[467]

§ 136. Blockade

Blockade is the obstruction of communication with a place in the

possession of one of the belligerents by the armed forces of the other

belligerent. The form which blockade takes in most cases is that of

obstruction of communication by water.

(_a_) =Historical.= In 1584 Holland declared the ports of Flanders

blockaded. Holland did not, however, maintain this declaration by ships

of war; indeed, in the early days there were no such ships as would

make the maintenance of a blockade possible. Such paper blockades were

common in the following centuries, and all the ports of a state were

frequently proclaimed blockaded, even though there might be no force in

the neighborhood to insure that the blockade would not be violated.

Treaties of the eighteenth century show an inclination in the states to

lessen the evils of blockade by proclamation. The growth of neutral

trade led to the adoption of rules for its greater protection. The armed

neutrality of 1780 asserted in its proclaimed principles that a valid

blockade should involve such a disposition of the vessels of the

belligerent proclaiming the blockade as to make the attempt to enter

manifestly dangerous.[468] The armed neutrality of 1800 asserted that a

notice from the commander of the blockading vessels must be given to the

approaching neutral vessel. During the Napoleonic wars there was a

return to the practice of issuing proclamations with the view to

limiting neutral commerce. The English Orders in Council of 1806 and

1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by

which Napoleon attempted to meet the English Orders, were the expression

of the extremest belligerent claims in regard to the obstruction of

neutral commerce. The treaties of 1815 said nothing in regard to

blockade. The practice and theory varied till, by the Declaration of

Paris in 1856, a fixed basis was announced in the provision that

"Blockades, in order to be binding, must be effective."[469]

(_b_) =Conditions of Existence.= A blockade presupposes,--

1. A state of war.

2. Declaration by the proper authority.

3. Notification of neutral states and their subjects.

4. Effective maintenance.

(_c_) =Blockade a War Measure.= The so-called pacific blockade differs

in its purpose and method to such an extent as to cause many to deny it

any standing in international law. Only a belligerent can institute a

blockade which other states are bound to respect, as, without war, there

are no neutrals. The blockade may continue even until the conclusion of

peace. The agreement to a truce or an armistice does not put an end to

the blockade.

(_d_) =Declaration.= Blockade can be declared only by the proper

authority.

As war is a state act, only the person or authority designated by the

constitution or law of the state can declare a blockade. Such a

declaration must, in general, come from the chief of the state. In

certain cases a blockade declared by an officer in command of forces

remote from the central government is held to be valid from the time of

its proclamation, if the act of the commander receives subsequent

ratification from the central authority.

(_e_) =Notification.= Neutrals must be notified of the existence of a

blockade. This notification may be:--

1. By official proclamation announcing the place to be blockaded,

and the time when the proclamation becomes effective.

2. By notification to vessels when they come near the place

blockaded.

3. The use of both the above methods.

The theory of the American and English authorities has been to assume a

knowledge of the blockade on the part of subjects if the political

authority of their state had been informed of the existence of the

blockade before the neutral vessel left port. In practice both powers

have in recent years given a neutral vessel warning of the existence of

blockade of a port before seizure.[470]

The French rule is to give in every instance an approaching neutral

vessel warning of the existence of a blockade, and to consider the

notification to the neutral state authorities as merely a diplomatic

courtesy.

Sometimes local notification is made to port and consular authorities of

the place blockaded.

In recent years the time allowed a vessel to discharge, reload, and to

leave port has been specified.

In case of special notification by the officer in command of a

blockading ship, the fact with particulars should be entered in the log

of the neutral vessel over the officer's signature.

(_f_) =A Blockade must be Effective.= This principle applies both to the

place and to the manner of enforcement.

1. It must apply to a place which may be blockaded, _i.e._ to

seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms

the boundary between one of the belligerent states and a neutral state

may not be blockaded. Rivers flowing for a part of their course

through belligerent territory but discharging through neutral

territory may not be blockaded. Certain waters are not liable to

blockade because exempt by agreement; as in the case of the Congo

River by the Act of 1885.

2. "Blockades, in order to be binding, must be effective, that is to

say, maintained by a force sufficient really to prevent access to the

coast of the enemy."[471] This is interpreted in the United States

Naval Code as a "force sufficient to render hazardous the ingress to

or egress from a port."[472] The subject of the degree of

effectiveness which is necessary has been much discussed, and can only

be determined by the circumstances in a given case.[473] The English

interpretation in the main agrees with that of the United States. The

Continental states are inclined to give a more literal interpretation

to the rule.

(_g_) =Cessation.= A blockade comes to an end:--

1. By the cessation of any attempt to render it effective.

2. By the repulse by force of the vessels attempting to maintain the

blockade.

3. For a given neutral vessel when there is no evidence of a

blockade, after due care to respect its existence. This may happen

when the blockading force is absent in pursuit of an offending vessel,

or for similar reason.

In this last case the Continental authorities hold that the neutral is

free to enter without question, as it is the duty of the belligerent to

render the blockade at all times evident and effective. The English and

American authorities generally consider such a case merely an

interruption, and hold that it does not require that the blockade be

proclaimed again. There is a general agreement that in the other cases

it must be formally instituted again as it was in the beginning.

§ 137. Violation of Blockade

"A breach of blockade is not an offense against the laws of the country

of the neutral owner or master. The only penalty for engaging in such

trade is the liability to capture and condemnation by the

belligerent."[474] The American and English practice is to regard as the

breach of blockade the act of passing into or out of a blockaded place,

unless by special privilege, or a manifestation of an intent to thus

pass. The French courts impose a penalty only upon those who actually

attempt to run the blockade. The American practice would make the vessel

liable to penalty from the time of its departure from neutral

jurisdiction with intent to enter the blockaded port until its return,

unless the blockade is raised meantime.

Under proper regulations, certain vessels are usually allowed to pass a

blockade without penalty:--

1. Neutral vessels in actual distress.

2. Neutral vessels of war.

3. Neutral vessels in the port at the time of the establishment of the

blockade, provided they depart within a reasonable time. In the War of

1898, the United States allowed thirty days after the establishment of

the blockade to neutral vessels to load and to depart.

The penalty for the violation of blockade is forfeiture of vessel and

cargo, although when vessel and cargo belong to different owners, and

the owner of the cargo is an innocent shipper, it has been held that the

cargo may be released. This may happen if a vessel deviates from her

original destination to a blockaded port. Even though a vessel pass a

blockade, she is liable to capture while at sea before the termination

of the voyage, provided the blockade continues.[475] The crews of

neutral vessels violating a blockade are not prisoners of war, but may

be held as witnesses before a prize court.

§ 138. Continuous Voyages

The Rule of War of 1756 declared that during war neutrals were not

permitted to engage with the colonies of a belligerent in a trade which

was not permitted to foreigners in time of peace.[476] Ordinarily in the

time of peace, trade between the mother country and the colony was

restricted to domestic ships. This rule was adopted in order that a

neutral might not, by undertaking trade denied him in time of peace,

relieve one of the belligerents of a part of the burdens of war which

the interruption of domestic commerce by the other belligerent had

imposed. Trade with neutral ports was allowed in time of peace.

Therefore, to avoid technical violation of the rule, neutral vessels

sailing from a port within belligerent jurisdiction, touched at a port

within neutral jurisdiction, and in some cases landed and reshipped

their cargoes. Lord Stowell decided that it was a settled principle

"that the mere touching at any port without importing the cargo into the

common stock of the country will not alter the nature of the voyage,

which continues the same in all respects, and must be considered as a

voyage to the country to which the vessel is actually going for the

purpose of delivering her cargo at the ultimate port."[477] In the case

of the _William_ in 1806, Sir William Grant declared that "the truth may

not always be discernible, but when it is discovered, it is according to

the truth and not according to the fiction that we are to give to the

transaction its character and denomination. If the voyage from the place

of lading be not really ended, it matters not by what acts the party may

have evinced his desire of making it appear to have ended. That those

acts have been attended with trouble and expense cannot alter their

quality or their effect."[478] The English authorities held that the

visit to a neutral port did not constitute the trip two voyages, but

that the voyage was continuous and the property liable to confiscation,

though Hall says the "cargo was confiscated only when captured on its

voyage from the port of colorable importation to the enemy

country."[479] British cruisers, however, seized three German vessels,

the _Herzog_, the _Bundesrath_, and the _General_, during the South

African War of 1899-1900, while on a voyage to the Portuguese port of

Lorenço Marques, which was the natural port of entry for Pretoria, the

capital of the South African Republic. Germany protested. The vessels

were released and the English authorities promised that in the future

they would refrain from searching vessels until the vessels had passed

beyond Aden, or any other place at the same distance from Delagoa Bay.

The American doctrine of continuous voyages is a considerable extension

of the English doctrine and has met with severe criticism. In the case

of the _Bermuda_, captured during the Civil War of 1861-1864, it was

held that:--

"Destination alone justifies seizure and condemnation of ship and

cargo in voyage to ports under blockade; and such destination

justifies equally seizure of contraband in voyage to ports not under

blockade; but in the last case the ship, and cargo, not contraband,

are free from seizure, except in cases of fraud or bad faith."[480]

In the case of the _Stephen Hart_, a British schooner, bound from London

to Cuba with a cargo of war supplies, captured in 1862 off the coast of

Florida, Judge Betts condemned both vessel and cargo. He maintained

that:--

"The commerce is in the destination and intended use of the property

laden on board of the vessel, and not in the incidental, ancillary,

and temporary voyage of the vessel, which may be but one of many

carriers through which the property is to reach its true and original

destination.... If the guilty intention, that the contraband goods

should reach a port of the enemy, existed when such goods left their

English port, that guilty intention cannot be obliterated by the

innocent intention of stopping at a neutral port on the way.... This

court holds that, in all such cases, the transportation or voyage of

the contraband goods is to be considered as a unit, from the port of

lading to the port of delivery in the enemy's country; that if any

part of such voyage or transportation be unlawful, it is unlawful

throughout; and that the vessel and her cargo are subject to capture;

as well before arriving at the first neutral port at which she touches

after her departure from England, as on the voyage or transportation

by sea from such neutral port to the port of the enemy."[481]

This position of the United States, which has been so criticised, is

liable to be abused to the disadvantage of neutral commerce. The absence

of some such rule would open the door to acts which, though neutral in

form, would be hostile in fact. The present tendency seems to be to

allow the exercise of a certain amount of supervision over commerce of

neutrals when it is destined to neutral ports having convenient

communication with the enemy. This may extend to the seizure of neutral

vessels bound for that port only in form, provided there is no doubt as

to the true destination, but such seizure must be made with the greatest

care not to violate the proper rights of neutrals. There is less reason

for the general exercise of this supervision over vessels sailing to a

neutral port which is separated from the belligerent territory by a

considerable expanse of water, than for its exercise over vessels

sailing to a port which is separated only by a narrow expanse of water.

In cases where the neutral port is upon the same land area with the

belligerent territory and has easy communication by rail or otherwise,

so that it may become a natural port of entry for goods bound for one of

the belligerents, the other belligerent may properly exercise a greater

degree of authority in the supervision of commerce than would ordinarily

be allowable. It was on this ground that England could justify her

action in the seizure of vessels bound for Delagoa Bay during the war in

South Africa, in 1899-1900; and similarly Italy justified her seizure of

the Dutch vessel, _Doelwyk_, in August, 1896, during the Abyssinian war.

This vessel was bound for a friendly port, but a port from which its

cargo of war supplies would pass overland to the enemy without

difficulty.

§ 139. Prize and Prize Courts

_Prize_ is the general term applied to captures made at sea. The ships

and goods of an enemy liable to capture by the laws of war, and the

ships and goods of a neutral when involved in acts forbidden by the laws

of war, may be brought into port for adjudication and disposition.

Enemy's goods, except contraband of war, are not liable to capture on

neutral ships.[482] Certain ships engaged in charitable or scientific

pursuits, and coast fishing vessels, are exempt from capture,[483] as

are also certain specially exempted by treaty. In general other goods

and vessels of the enemy are liable to capture. Contraband goods of a

neutral, vessels attempting to violate blockade, vessels performing

unneutral service, or goods or vessels otherwise involved in a way

contrary to the laws of war are liable to capture.

A _prize court_ is the tribunal which determines the rights of the

parties concerned in the capture and the disposition of the goods or

vessel. All captures belong to the state in whose name they are made. An

inchoate title to the prize is acquired by possession, but complete

title is acquired only after condemnation by a properly constituted

prize court.

A prize court may be established by the belligerent in its own state, in

the territory where the belligerent has military jurisdiction or in the

territory of an ally.[484] The establishment of a court in neutral

jurisdiction is not permitted. When Genêt, the minister of France,

tried, in 1793, to set up consular prize courts in the United States,

Washington protested and Genêt was recalled. Takahashi says, "It is

clear that if we admit the prevailing principle concerning the

establishment of a prize court in a belligerent's own dominions or its

ally's, or in occupied territory, we may infer that a court can be held

on the deck of a man-of-war--a floating portion of a territorial

sovereignty--lying in the above-mentioned waters, provided the processes

of procedure are followed."[485] He maintains, however, that a court

might not be established on the high seas, as proper procedure for the

interested parties would not be possible.

The tribunals which have jurisdiction of prize cases differ in the

different countries. In the United States, the District Courts possess

the powers of a prize court, and an appeal lies to the Supreme

Court.[486]

The methods of procedure of prize courts are similar in different

countries. The practice in the United States is as follows:--

Dana calls the prize tribunal _an inquest by the state_, and regards it

as the means by which the sovereign "desires and is required to inform

himself, by recognized modes, of the lawfulness of the capture." The

commanding officer of the capturing vessel, after securing the cargo and

documents of the captured vessel, makes an inventory of the last named,

seals them and sends them, together with the master, one or more of the

other officers, the supercargo, purser, or agent of the prize, and also

any one on board supposed to have information, under charge of a prize

master and a prize crew, into port to be placed in the custody of the

court. The prize master delivers the documents and the inventory to

prize commissioners, who are appointed by the court, and reports to the

district attorney, who files a libel against the prize property and sees

"that the proper preparatory evidence is taken by the prize

commissioners, and that the prize commissioners also take the

depositions _de bene esse_ of the prize crew, and of other transient

persons cognizant of any facts bearing on condemnation or

distribution."[487] The libel should "properly contain only a

description of the prize, with dates, etc., for identification, and the

fact that it was taken as prize of war by the cruiser, and brought to

the court for adjudication, that is, of facts enough to show that it is

a maritime cause of prize jurisdiction and not a case of municipal

penalty or forfeiture."[488] Notice is then published that citizens or

neutrals, but not enemies, interested in the prize property shall appear

and enter their claims. As there are no allegations in the libel, the

answer of the claimant is only a general denial under oath. The prize

commissioners then examine the witnesses privately; and this evidence,

which is kept in secret until complete, is called _in preparatorio_.[489]

If the court is in doubt it will order "further proof," that is besides

the ship, cargo, documents, and witnesses. The burden is on the claimant

to prove title.[490] If the claimant's right is not sufficiently

established, the property is condemned. The captors are, however, liable

to damages if there is found no probable cause for the capture.[491]

It has been the general practice to distribute the proceeds, or a part

of the proceeds, of a capture among the captors. This distribution is a

matter of municipal law. In England the sum realized from the sale of

the goods and vessel is distributed among the captors, though the crown

reserves the right to decide what interest the captors shall have, if

any.[492] By a royal decree of June 20, 1864, Prussia provided in detail

what each of those participating in the capture should receive.[493] By

the act of March 3, 1899, the United States provided that "all

provisions of law authorizing the distribution among captors of the

whole, or any portion, of the proceeds of vessels, or any property

hereafter captured, condemned as prize, or providing for the payment of

bounty for the sinking or destruction of vessels of the enemy hereafter

occurring in time of war, are hereby repealed."[494]

"If there are controlling reasons why vessels that are properly

captured may not be sent in for adjudication--such as unseaworthiness,

the existence of infectious disease, or the lack of a prize crew--they

may be appraised and sold, and if this cannot be done, they may be

destroyed. The imminent danger of recapture would justify destruction,

if there should be no doubt that the vessel was a proper prize. But in

all such cases all of the papers and other testimony should be sent to

the prize court, in order that a decree may be duly entered."[495]

APPENDICES

APPENDIX I

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE

FIELD

+General Orders+, } WAR DEPARTMENT,

No. 100. } +Adjutant General's Office+,

_Washington, April 24, 1863_.

The following "Instructions for the Government of Armies of the United

States in the Field," prepared by +Francis Lieber+, LL.D., and revised

by a Board of Officers, of which Major General +E. A. Hitchcock+ is

president, having been approved by the President of the United States,

he commands that they be published for the information of all

concerned.

+By Order of the Secretary of War+:

E. D. TOWNSEND,

_Assistant Adjutant General_.

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE

FIELD

SECTION I

+Martial Law--Military Jurisdiction--Military Necessity--Retaliation+

A place, district, or country occupied by an enemy stands, in

consequence of the occupation, under the Martial Law of the invading or

occupying army, whether any proclamation declaring Martial Law, or any

public warning to the inhabitants, has been issued or not. Martial Law

is the immediate and direct effect and consequence of occupation or

conquest.

The presence of a hostile army proclaims its Martial Law.

Martial Law does not cease during the hostile occupation, except by

special proclamation, ordered by the commander in chief; or by special

mention in the treaty of peace concluding the war, when the occupation

of a place or territory continues beyond the conclusion of peace as one

of the conditions of the same.

Martial Law in a hostile country consists in the suspension, by the

occupying military authority, of the criminal and civil law, and of the

domestic administration and government in the occupied place or

territory, and in the substitution of military rule and force for the

same, as well as in the dictation of general laws, as far as military

necessity requires this suspension, substitution, or dictation.

The commander of the forces may proclaim that the administration of all

civil and penal law shall continue either wholly or in part, as in times

of peace, unless otherwise ordered by the military authority.

Martial Law is simply military authority exercised in accordance with

the laws and usages of war. Military oppression is not Martial Law; it

is the abuse of the power which that law confers. As Martial Law is

executed by military force, it is incumbent upon those who administer it

to be strictly guided by the principles of justice, honor, and

humanity--virtues adorning a soldier even more than other men, for the

very reason that he possesses the power of his arms against the

unarmed.

Martial Law should be less stringent in places and countries fully

occupied and fairly conquered. Much greater severity may be exercised in

places or regions where actual hostilities exist, or are expected and

must be prepared for. Its most complete sway is allowed--even in the

commander's own country--when face to face with the enemy, because of

the absolute necessities of the case, and of the paramount duty to

defend the country against invasion.

To save the country is paramount to all other considerations.

All civil and penal law shall continue to take its usual course

in the enemy's places and territories under Martial Law, unless

interrupted or stopped by order of the occupying military power; but

all the functions of the hostile government--legislative, executive, or

administrative--whether of a general, provincial, or local character,

cease under Martial Law, or continue only with the sanction, or, if

deemed necessary, the participation of the occupier or invader.

Martial law extends to property, and to persons, whether they are

subjects of the enemy or aliens to that government.

Consuls, among American and European nations, are not diplomatic agents.

Nevertheless, their offices and persons will be subjected to Martial Law

in cases of urgent necessity only: their property and business are not

exempted. Any delinquency they commit against the established military

rule may be punished as in the case of any other inhabitant, and such

punishment furnishes no reasonable ground for international complaint.

The functions of Ambassadors, Ministers, or other diplomatic agents,

accredited by neutral powers to the hostile government, cease, so far as

regards the displaced government; but the conquering or occupying power

usually recognizes them as temporarily accredited to itself.

Martial Law affects chiefly the police and collection of public revenue

and taxes, whether imposed by the expelled government or by the invader,

and refers mainly to the support and efficiency of the army, its safety,

and the safety of its operations.

The law of war does not only disclaim all cruelty and bad faith

concerning engagements concluded with the enemy during the war, but also

the breaking of stipulations solemnly contracted by the belligerents in

time of peace, and avowedly intended to remain in force in case of war

between the contracting powers.

It disclaims all extortions and other transactions for individual gain;

all acts of private revenge, or connivance at such acts.

Offenses to the contrary shall be severely punished, and especially so

if committed by officers.

Whenever feasible, Martial Law is carried out in cases of individual

offenders by Military Courts; but sentences of death shall be executed

only with the approval of the chief executive, provided the urgency of

the case does not require a speedier execution, and then only with the

approval of the chief commander.

Military jurisdiction is of two kinds: First, that which is conferred

and defined by statute; second, that which is derived from the common

law of war. Military offenses under the statute law must be tried in the

manner therein directed; but military offenses which do not come within

the statute must be tried and punished under the common law of war. The

character of the courts which exercise these jurisdictions depends upon

the local laws of each particular country.

In the armies of the United States the first is exercised by

courts-martial, while cases which do not come within the "Rules and

Articles of War," or the jurisdiction conferred by statute on

courts-martial, are tried by military commissions.

Military necessity, as understood by modern civilized nations, consists

in the necessity of those measures which are indispensable for securing

the ends of the war, and which are lawful according to the modern law

and usages of war.

Military necessity admits of all direct destruction of life or limb of

_armed_ enemies, and of other persons whose destruction is incidentally

_unavoidable_ in the armed contests of the war; it allows of the

capturing of every armed enemy, and every enemy of importance to the

hostile government, or of peculiar danger to the captor; it allows of

all destruction of property, and obstruction of the ways and channels of

traffic, travel, or communication, and of all withholding of sustenance

or means of life from the enemy; of the appropriation of whatever an

enemy's country affords necessary for the subsistence and safety of the

army, and of such deception as does not involve the breaking of good

faith either positively pledged, regarding agreements entered into

during the war, or supposed by the modern law of war to exist. Men who

take up arms against one another in public war do not cease on this

account to be moral beings, responsible to one another and to God.

Military necessity does not admit of cruelty--that is, the infliction of

suffering for the sake of suffering or for revenge, nor of maiming or

wounding except in fight, nor of torture to extort confessions. It does

not admit of the use of poison in any way, nor of the wanton devastation

of a district. It admits of deception, but disclaims acts of perfidy;

and, in general, military necessity does not include any act of

hostility which makes the return to peace unnecessarily difficult.

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.

When a commander of a besieged place expels the noncombatants, in order

to lessen the number of those who consume his stock of provisions, it is

lawful, though an extreme measure, to drive them back, so as to hasten

on the surrender.

Commanders, whenever admissible, inform the enemy of their intention to

bombard a place, so that the noncombatants, and especially the women and

children, may be removed before the bombardment commences. But it is no

infraction of the common law of war to omit thus to inform the enemy.

Surprise may be a necessity.

Public war is a state of armed hostility between sovereign nations or

governments. It is a law and requisite of civilized existence that men

live in political, continuous societies, forming organized units, called

states or nations, whose constituents bear, enjoy, and suffer, advance

and retrograde together, in peace and in war.

The citizen or native of a hostile country is thus an enemy, as one of

the constituents of the hostile state or nation, and as such is

subjected to the hardships of the war.

Nevertheless, as civilization has advanced during the last centuries, so

has likewise steadily advanced, especially in war on land, the

distinction between the private individual belonging to a hostile

country and the hostile country itself, with its men in arms. The

principle has been more and more acknowledged that the unarmed citizen

is to be spared in person, property, and honor as much as the exigencies

of war will admit.

Private citizens are no longer murdered, enslaved, or carried off to

distant parts, and the inoffensive individual is as little disturbed in

his private relations as the commander of the hostile troops can afford

to grant in the overruling demands of a vigorous war.

The almost universal rule in remote times was, and continues to be with

barbarous armies, that the private individual of the hostile country is

destined to suffer every privation of liberty and protection, and every

disruption of family ties. Protection was, and still is with uncivilized

people, the exception.

In modern regular wars of the Europeans, and their descendants in other

portions of the globe, protection of the inoffensive citizen of the

hostile country is the rule; privation and disturbance of private

relations are the exceptions.

Commanding generals may cause the magistrates and civil officers of the

hostile country to take the oath of temporary allegiance or an oath of

fidelity to their own victorious government or rulers, and they may

expel every one who declines to do so. But whether they do so or not,

the people and their civil officers owe strict obedience to them as long

as they hold sway over the district or country, at the peril of their

lives.

The law of war can no more wholly dispense with retaliation than can the

law of nations, of which it is a branch. Yet civilized nations

acknowledge retaliation as the sternest feature of war. A reckless enemy

often leaves to his opponent no other means of securing himself against

the repetition of barbarous outrage.

Retaliation will, therefore, never be resorted to as a measure of mere

revenge, but only as a means of protective retribution, and moreover,

cautiously and unavoidably; that is to say, retaliation shall only be

resorted to after careful inquiry into the real occurrence, and the

character of the misdeeds that may demand retribution.

Unjust or inconsiderate retaliation removes the belligerents farther and

farther from the mitigating rules of regular war, and by rapid steps

leads them nearer to the internecine wars of savages.

Modern times are distinguished from earlier ages by the existence, at

one and the same time, of many nations and great governments related to

one another in close intercourse.

Peace is their normal condition; war is the exception. The ultimate

object of all modern war is a renewed state of peace.

The more vigorously wars are pursued, the better it is for humanity.

Sharp wars are brief.

Ever since the formation and coexistence of modern nations, and ever

since wars have become great national wars, war has come to be

acknowledged not to be its own end, but the means to obtain great ends

of state, or to consist in defense against wrong; and no conventional

restriction of the modes adopted to injure the enemy is any longer

admitted; but the law of war imposes many limitations and restrictions

on principles of justice, faith, and honor.

SECTION II

+Public and Private Property of the Enemy--Protection of Persons, and

especially of Women; of Religion, the Arts and Sciences--Punishment

of Crimes against the Inhabitants of Hostile Countries+

A victorious army appropriates all public money, seizes all public

movable property until further direction by its government, and

sequesters for its own benefit or of that of its government all the

revenues of real property belonging to the hostile government or nation.

The title to such real property remains in abeyance during military

occupation, and until the conquest is made complete.

A victorious army, by the martial power inherent in the same, may

suspend, change, or abolish, as far as the martial power extends, the

relations which arise from the services due, according to the existing

laws of the invaded country, from one citizen, subject, or native of the

same to another.

The commander of the army must leave it to the ultimate treaty of peace

to settle the permanency of this change.

It is no longer considered lawful--on the contrary, it is held to be a

serious breach of the law of war--to force the subjects of the enemy

into the service of the victorious government, except the latter should

proclaim, after a fair and complete conquest of the hostile country or

district, that it is resolved to keep the country, district, or place

permanently as its own and make it a portion of its own country.

As a general rule, the property belonging to churches, to hospitals, or

other establishments of an exclusively charitable character, to

establishments of education, or foundations for the promotion of

knowledge, whether public schools, universities, academies of learning

or observatories, museums of the fine arts, or of a scientific

character--such property is not to be considered public property in the

sense of paragraph 31; but it may be taxed or used when the public

service may require it.

Classical works of art, libraries, scientific collections, or precious

instruments, such as astronomical telescopes, as well as hospitals, must

be secured against all avoidable injury, even when they are contained in

fortified places whilst besieged or bombarded.

If such works of art, libraries, collections, or instruments belonging

to a hostile nation or government, can be removed without injury, the

ruler of the conquering state or nation may order them to be seized and

removed for the benefit of the said nation. The ultimate ownership is to

be settled by the ensuing treaty of peace.

In no case shall they be sold or given away, if captured by the armies

of the United States, nor shall they ever be privately appropriated, or

wantonly destroyed or injured.

The United States acknowledge and protect, in hostile countries occupied

by them, religion and morality; strictly private property; the persons

of the inhabitants, especially those of women; and the sacredness of

domestic relations. Offenses to the contrary shall be rigorously

punished.

This rule does not interfere with the right of the victorious invader to

tax the people or their property, to levy forced loans, to billet

soldiers, or to appropriate property, especially houses, lands, boats or

ships, and churches, for temporary and military uses.

Private property, unless forfeited by crimes or by offenses of the

owner, can be seized only by way of military necessity, for the support

or other benefit of the army or of the United States.

If the owner has not fled, the commanding officer will cause receipts to

be given, which may serve the spoliated owner to obtain indemnity.

The salaries of civil officers of the hostile government who remain in

the invaded territory, and continue the work of their office, and can

continue it according to the circumstances arising out of the war--such

as judges, administrative or police officers, officers of city or

communal governments--are paid from the public revenue of the invaded

territory, until the military government has reason wholly or partially

to discontinue it. Salaries or incomes connected with purely honorary

titles are always stopped.

There exists no law or body of authoritative rules of action between

hostile armies, except that branch of the law of nature and nations

which is called the law and usages of war on land.

All municipal law of the ground on which the armies stand, or of the

countries to which they belong, is silent and of no effect between

armies in the field.

Slavery, complicating and confounding the ideas of property (that is of

a _thing_), and of personality (that is of _humanity_), exists according

to municipal or local law only. The law of nature and nations has never

acknowledged it. The digest of the Roman law enacts the early dictum of

the pagan jurist, that "so far as the law of nature is concerned, all

men are equal." Fugitives escaping from a country in which they were

slaves, villains, or serfs, into another country, have, for centuries

past, been held free and acknowledged free by judicial decisions of

European countries, even though the municipal law of the country in

which the slave had taken refuge acknowledged slavery within its own

dominions.

Therefore, in a war between the United States and a belligerent which

admits of slavery, if a person held in bondage by that belligerent be

captured by or come as a fugitive under the protection of the military

forces of the United States, such person is immediately entitled to the

rights and privileges of a freeman. To return such person into slavery

would amount to enslaving a free person, and neither the United States

nor any officer under their authority can enslave any human being.

Moreover, a person so made free by the law of war is under the shield of

the law of nations, and the former owner or State can have, by the law

of postliminy, no belligerent lien or claim of service.

All wanton violence committed against persons in the invaded country,

all destruction of property not commanded by the authorized officer, all

robbery, all pillage or sacking, even after taking a place by main

force, all rape, wounding, maiming, or killing of such inhabitants, are

prohibited under the penalty of death, or such other severe punishment

as may seem adequate for the gravity of the offense.

A soldier, officer or private, in the act of committing such violence,

and disobeying a superior ordering him to abstain from it, may be

lawfully killed on the spot by such superior.

All captures and booty belong, according to the modern law of war,

primarily to the government of the captor.

Prize money, whether on sea or land, can now only be claimed under local

law.

Neither officers nor soldiers are allowed to make use of their position

or power in the hostile country for private gain, not even for

commercial transactions otherwise legitimate. Offenses to the contrary

committed by commissioned officers will be punished with cashiering or

such other punishment as the nature of the offense may require; if by

soldiers, they shall be punished according to the nature of the offense.

Crimes punishable by all penal codes, such as arson, murder, maiming,

assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if

committed by an American soldier in a hostile country against its

inhabitants, are not only punishable as at home, but in all cases in

which death is not inflicted, the severer punishment shall be

preferred.

SECTION III

+Deserters--Prisoners of War--Hostages--Booty on the Battlefield+

Deserters from the American Army, having entered the service of the

enemy, suffer death if they fall again into the hands of the United

States, whether by capture, or being delivered up to the American Army;

and if a deserter from the enemy, having taken service in the Army of

the United States is captured by the enemy, and punished by them with

death or otherwise, it is not a breach against the law and usages of

war, requiring redress or retaliation.

A prisoner of war is a public enemy armed or attached to the hostile

army for active aid, who has fallen into the hands of the captor, either

fighting or wounded, on the field or in the hospital, by individual

surrender, or by capitulation.

All soldiers, of whatever species of arms; all men who belong to the

rising _en masse_ of the hostile country; all those who are attached to

the army for its efficiency and promote directly the object of the war,

except such as are hereinafter provided for; all disabled men or

officers on the field or elsewhere, if captured; all enemies who have

thrown away their arms and ask for quarter, are prisoners of war, and as

such exposed to the inconveniences as well as entitled to the privileges

of a prisoner of war.

Moreover, citizens who accompany an army for whatever purpose, such as

sutlers, editors, or reporters of journals, or contractors, if captured,

may be made prisoners of war, and be detained as such.

The monarch and members of the reigning hostile family, male or female,

the chief, and chief officers of the hostile government, its diplomatic

agents, and all persons who are of particular and singular use and

benefit to the hostile army or its government, are, if captured, on

belligerent ground, and if unprovided with a safe conduct granted by the

captor's government, prisoners of war.

If the people of that portion of an invaded country which is not yet

occupied by the enemy, or of the whole country, at the approach of a

hostile army, rise, under a duly authorized levy, _en masse_ to resist

the invader, they are now treated as public enemies, and, if captured,

are prisoners of war.

No belligerent has the right to declare that he will treat every

captured man in arms of a levy _en masse_ as a brigand or bandit.

If, however, the people of a country, or any portion of the same,

already occupied by an army, rise against it, they are violators of the

laws of war, and are not entitled to their protection.

The enemy's chaplains, officers of the medical staff, apothecaries,

hospital nurses and servants, if they fall into the hands of the

American Army, are not prisoners of war, unless the commander has

reasons to retain them. In this latter case, or if, at their own desire,

they are allowed to remain with their captured companions, they are

treated as prisoners of war, and may be exchanged if the commander sees

fit.

A hostage is a person accepted as a pledge for the fulfillment of an

agreement concluded between belligerents during the war, or in

consequence of a war. Hostages are rare in the present age.

If a hostage is accepted, he is treated like a prisoner of war,

according to rank and condition, as circumstances may admit.

A prisoner of war is subject to no punishment for being a public enemy,

nor is any revenge wreaked upon him by the intentional infliction of any

suffering, or disgrace, by cruel imprisonment, want of food, by

mutilation, death, or any other barbarity.

So soon as a man is armed by a sovereign government and takes the

soldier's oath of fidelity, he is a belligerent; his killing, wounding,

or other warlike acts are not individual crimes or offenses. No

belligerent has a right to declare that enemies of a certain class,

color, or condition, when properly organized as soldiers, will not be

treated by him as public enemies.

The law of nations knows of no distinction of color, and if an enemy of

the United States should enslave and sell any captured persons of their

army, it would be a case for the severest retaliation, if not redressed

upon complaint.

The United States can not retaliate by enslavement; therefore death must

be the retaliation for this crime against the law of nations.

A prisoner of war remains answerable for his crimes committed against

the captor's army or people, committed before he was captured, and for

which he has not been punished by his own authorities.

All prisoners of war are liable to the infliction of retaliatory

measures.

It is against the usage of modern war 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.

Troops that give no quarter have no right to kill enemies already

disabled on the ground, or prisoners captured by other troops.

All troops of the enemy known or discovered to give no quarter in

general, or to any portion of the army, receive none.

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.

If American troops capture a train containing uniforms of the enemy, and

the commander considers it advisable to distribute them for use among

his men, some striking mark or sign must be adopted to distinguish the

American soldier from the enemy.

The use of the enemy's national standard, flag, or other emblem of

nationality, for the purpose of deceiving the enemy in battle, is an act

of perfidy by which they lose all claim to the protection of the laws of

war.

Quarter having been given to an enemy by American troops, under a

misapprehension of his true character, he may, nevertheless, be ordered

to suffer death if, within three days after the battle, it be discovered

that he belongs to a corps which gives no quarter.

The law of nations allows every sovereign government to make war upon

another sovereign state, and, therefore, admits of no rules or laws

different from those of regular warfare, regarding the treatment of

prisoners of war, although they may belong to the army of a government

which the captor may consider as a wanton and unjust assailant.

Modern wars are not internecine wars, in which the killing of the enemy

is the object. The destruction of the enemy in modern war, and, indeed,

modern war itself, are means to obtain that object of the belligerent

which lies beyond the war.

Unnecessary or revengeful destruction of life is not lawful.

Outposts, sentinels, or pickets are not to be fired upon, except to

drive them in, or when a positive order, special or general, has been

issued to that effect.

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 law and usages of war.

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 his misdeed.

Money and other valuables on the person of a prisoner, such as watches

or jewelry, as well as extra clothing, are regarded by the American Army

as the private property of the prisoner, and the appropriation of such

valuables or money is considered dishonorable, and is prohibited.

Nevertheless, if _large_ sums are found upon the persons of prisoners,

or in their possession, they shall be taken from them, and the surplus,

after providing for their own support, appropriated for the use of the

army, under the direction of the commander, unless otherwise ordered by

the government. Nor can prisoners claim, as private property, large sums

found and captured in their train, although they have been placed in the

private luggage of the prisoners.

All officers, when captured, must surrender their side arms to the

captor. They may be restored to the prisoner in marked cases, by the

commander, to signalize admiration of his distinguished bravery or

approbation of his humane treatment of prisoners before his capture. The

captured officer to whom they may be restored can not wear them during

captivity.

A prisoner of war, being a public enemy, is the prisoner of the

government, and not of the captor. No ransom can be paid by a prisoner

of war to his individual captor or to any officer in command. The

government alone releases captives, according to rules prescribed by

itself.

Prisoners of war are subject to confinement or imprisonment such as may

be deemed necessary on account of safety, but they are to be subjected

to no other intentional suffering or indignity. The confinement and

mode of treating a prisoner may be varied during his captivity according

to the demands of safety.

Prisoners of war shall be fed upon plain and wholesome food, whenever

practicable, and treated with humanity.

They may be required to work for the benefit of the captor's government,

according to their rank and condition.

A prisoner of war who escapes may be shot or otherwise killed in his

flight; but neither death nor any other punishment shall be inflicted

upon him simply for his attempt to escape, which the law of war does not

consider a crime. Stricter means of security shall be used after an

unsuccessful attempt at escape.

If, however, a conspiracy is discovered, the purpose of which is a

united or general escape, the conspirators may be rigorously punished,

even with death; and capital punishment may also be inflicted upon

prisoners of war discovered to have plotted rebellion against the

authorities of the captors, whether in union with fellow prisoners or

other persons.

If prisoners of war, having given no pledge nor made any promise on

their honor, forcibly or otherwise escape, and are captured again in

battle after having rejoined their own army, they shall not be punished

for their escape, but shall be treated as simple prisoners of war,

although they will be subjected to stricter confinement.

Every captured wounded enemy shall be medically treated, according to

the ability of the medical staff.

Honorable men, when captured, will abstain from giving to the enemy

information concerning their own army, and the modern law of war permits

no longer the use of any violence against prisoners in order to extort

the desired information or to punish them for having given false

information.

SECTION IV

+Partisans--Armed Enemies not belonging to the Hostile

Army--Scouts--Armed Prowlers--War-rebels+

Partisans are soldiers armed and wearing the uniform of their army, but

belonging to a corps which acts detached from the main body for the

purpose of making inroads into the territory occupied by the enemy. If

captured, they are entitled to all the privileges of the prisoner of

war.

Men, or squads of men, who commit hostilities, whether by fighting, or

inroads for destruction or plunder, or by raids of any kind, without

commission, without being part and portion of the organized hostile

army, and without sharing continuously in the war, but who do so with

intermitting returns to their homes and avocations, or with the

occasional assumption of the semblance of peaceful pursuits, divesting

themselves of the character or appearance of soldiers--such men, or

squads of men, are not public enemies, and, therefore, if captured, are

not entitled to the privileges of prisoners of war, but shall be treated

summarily as highway robbers or pirates.

Scouts, or single soldiers, if disguised in the dress of the country or

in the uniform of the army hostile to their own, employed in obtaining

information, if found within or lurking about the lines of the captor,

are treated as spies, and suffer death.

Armed prowlers, by whatever names they may be called, or persons of the

enemy's territory, who steal within the lines of the hostile army for

the purpose of robbing, killing, or of destroying bridges, roads, or

canals, or of robbing or destroying the mail, or of cutting the

telegraph wires, are not entitled to the privileges of the prisoner of

war.

War-rebels are persons within an occupied territory who rise in arms

against the occupying or conquering army, or against the authorities

established by the same. If captured, they may suffer death, whether

they rise singly, in small or large bands, and whether called upon to do

so by their own, but expelled, government or not. They are not prisoners

of war; nor are they if discovered and secured before their conspiracy

has matured to an actual rising or armed violence.

SECTION V

+Safe-conduct--Spies--War-traitors--Captured Messengers--Abuse of the

Flag of Truce+

All intercourse between the territories occupied by belligerent armies,

whether by traffic, by letter, by travel, or in any other way, ceases.

This is the general rule, to be observed without special proclamation.

Exceptions to this rule, whether by safe-conduct, or permission to trade

on a small or large scale, or by exchanging mails, or by travel from one

territory into the other, can take place only according to agreement

approved by the government, or by the highest military authority.

Contraventions of this rule are highly punishable.

Ambassadors, and all other diplomatic agents of neutral powers,

accredited to the enemy, may receive safe-conducts through the

territories occupied by the belligerents, unless there are military

reasons to the contrary, and unless they may reach the place of their

destination conveniently by another route. It implies no international

affront if the safe-conduct is declined. Such passes are usually given

by the supreme authority of the State and not by subordinate officers.

A spy is a person who secretly, in disguise or under false pretense,

seeks information with the intention of communicating it to the enemy.

The spy is punishable with death by hanging by the neck, whether or not

he succeed in obtaining the information or in conveying it to the enemy.

If a citizen of the United States obtains information in a legitimate

manner, and betrays it to the enemy, be he a military or civil officer,

or a private citizen, he shall suffer death.

A traitor under the law of war, or a war-traitor, is a person in a place

or district under martial law who, unauthorized by the military

commander, gives information of any kind to the enemy, or holds

intercourse with him.

The war-traitor is always severely punished. If his offense consists in

betraying to the enemy anything concerning the condition, safety,

operations, or plans of the troops holding or occupying the place or

district, his punishment is death.

If the citizen or subject of a country or place invaded or conquered

gives information to his own government, from which he is separated by

the hostile army, or to the army of his government, he is a war-traitor,

and death is the penalty of his offense.

All armies in the field stand in need of guides, and impress them if

they can not obtain them otherwise.

No person having been forced by the enemy to serve as guide is

punishable for having done so.

If a citizen of a hostile and invaded district voluntarily serves as a

guide to the enemy, or offers to do so, he is deemed a war-traitor, and

shall suffer death.

A citizen serving voluntarily as a guide against his own country commits

treason, and will be dealt with according to the law of his country.

Guides, when it is clearly proved that they have misled intentionally,

may be put to death.

All unauthorized or secret communication with the enemy is considered

treasonable by the law of war.

Foreign residents in an invaded or occupied territory, or foreign

visitors in the same, can claim no immunity from this law. They may

communicate with foreign parts, or with the inhabitants of the hostile

country, so far as the military authority permits, but no further.

Instant expulsion from the occupied territory would be the very least

punishment for the infraction of this rule.

A messenger carrying written dispatches or verbal messages from one

portion of the army, or from a besieged place, to another portion of the

same army, or its government, if armed, and in the uniform of his army,

and if captured, while doing so, in the territory occupied by the enemy,

is treated by the captor as a prisoner of war. If not in uniform, nor a

soldier, the circumstances connected with his capture must determine the

disposition that shall be made of him.

100

A messenger or agent who attempts to steal through the territory

occupied by the enemy, to further, in any manner, the interests of the

enemy, if captured, is not entitled to the privileges of the prisoner of

war, and may be dealt with according to the circumstances of the case.

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.

102

The law of war, like the criminal law regarding other offenses, makes no

difference on account of the difference of sexes, concerning the spy,

the war-traitor, or the war-rebel.

103

Spies, war-traitors, and war-rebels are not exchanged according to the

common law of war. The exchange of such persons would require a special

cartel, authorized by the government, or, at a great distance from it,

by the chief commander of the army in the field.

104

A successful spy or war-traitor, safely returned to his own army, and

afterwards captured as an enemy, is not subject to punishment for his

acts as a spy or war-traitor, but he may be held in closer custody as a

person individually dangerous.

SECTION VI

+Exchange of Prisoners--Flags of Truce--Flags of Protection+

105

Exchanges of prisoners take place--number for number--rank for

rank--wounded for wounded--with added condition for added

condition--such, for instance, as not to serve for a certain period.

106

In exchanging prisoners of war, such numbers of persons of inferior rank

may be substituted as an equivalent for one of superior rank as may be

agreed upon by cartel, which requires the sanction of the government, or

of the commander of the army in the field.

107

A prisoner of war is in honor bound truly to state to the captor his

rank; and he is not to assume a lower rank than belongs to him, in order

to cause a more advantageous exchange, nor a higher rank, for the

purpose of obtaining better treatment.

Offenses to the contrary have been justly punished by the commanders of

released prisoners, and may be good cause for refusing to release such

prisoners.

108

The surplus number of prisoners of war remaining after an exchange has

taken place is sometimes released either for the payment of a stipulated

sum of money, or, in urgent cases, of provision, clothing, or other

necessaries.

Such arrangement, however, requires the sanction of the highest

authority.

109

The exchange of prisoners of war is an act of convenience to both

belligerents. If no general cartel has been concluded, it can not be

demanded by either of them. No belligerent is obliged to exchange

prisoners of war.

A cartel is voidable as soon as either party has violated it.

110

No exchange of prisoners shall be made except after complete capture,

and after an accurate account of them, and a list of the captured

officers, has been taken.

111

The bearer of a flag of truce can not insist upon being admitted. He

must always be admitted with great caution. Unnecessary frequency is

carefully to be avoided.

112

If the bearer of a flag of truce offer himself during an engagement, he

can be admitted as a very rare exception only. It is no breach of good

faith to retain such flag of truce, if admitted during the engagement.

Firing is not required to cease on the appearance of a flag of truce in

battle.

113

If the bearer of a flag of truce, presenting himself during an

engagement, is killed or wounded, it furnishes no ground of complaint

whatever.

114

If it be discovered, and fairly proved, that a flag of truce has been

abused for surreptitiously obtaining military knowledge, the bearer of

the flag thus abusing his sacred character is deemed a spy.

So sacred is the character of a flag of truce, and so necessary is its

sacredness, that while its abuse is an especially heinous offense, great

caution is requisite, on the other hand, in convicting the bearer of a

flag of truce as a spy.

115

It is customary to designate by certain flags (usually yellow) the

hospitals in places which are shelled, so that the besieging enemy may

avoid firing on them. The same has been done in battles, when hospitals

are situated within the field of the engagement.

116

Honorable belligerents often request that the hospitals within the

territory of the enemy may be designated, so that they may be spared.

An honorable belligerent allows himself to be guided by flags or signals

of protection as much as the contingencies and the necessities of the

fight will permit.

117

It is justly considered an act of bad faith, of infamy or fiendishness,

to deceive the enemy by flags of protection. Such act of bad faith may

be good cause for refusing to respect such flags.

118

The besieging belligerent has sometimes requested the besieged to

designate the buildings containing collections of works of art,

scientific museums, astronomical observatories, or precious libraries,

so that their destruction may be avoided as much as possible.

SECTION VII

+The Parole+

119

Prisoners of war may be released from captivity by exchange, and, under

certain circumstances, also by parole.

120

The term "Parole" designates the pledge of individual good faith and

honor to do, or to omit doing, certain acts after he who gives his

parole shall have been dismissed, wholly or partially, from the power of

the captor.

121

The pledge of the parole is always an individual, but not a private act.

122

The parole applies chiefly to prisoners of war whom the captor allows to

return to their country, or to live in greater freedom within the

captor's country or territory, on conditions stated in the parole.

123

Release of prisoners of war by exchange is the general rule; release by

parole is the exception.

124

Breaking the parole is punished with death when the person breaking the

parole is captured again.

Accurate lists, therefore, of the paroled persons must be kept by the

belligerents.

125

When paroles are given and received there must be an exchange of two

written documents, in which the name and rank of the paroled individuals

are accurately and truthfully stated.

126

Commissioned officers only are allowed to give their parole, and they

can give it only with the permission of their superior, as long as a

superior in rank is within reach.

127

No noncommissioned officer or private can give his parole except through

an officer. Individual paroles not given through an officer are not only

void, but subject the individuals giving them to the punishment of death

as deserters. The only admissible exception is where individuals,

properly separated from their commands, have suffered long confinement

without the possibility of being paroled through an officer.

128

No paroling on the battlefield; no paroling of entire bodies of troops

after a battle; and no dismissal of large numbers of prisoners, with a

general declaration that they are paroled, is permitted, or of any

value.

129

In capitulations for the surrender of strong places or fortified camps

the commanding officer, in cases of urgent necessity, may agree that the

troops under his command shall not fight again during the war, unless

exchanged.

130

The usual pledge given in the parole is not to serve during the existing

war, unless exchanged.

This pledge refers only to the active service in the field, against the

paroling belligerent or his allies actively engaged in the same war.

These cases of breaking the parole are patent acts, and can be visited

with the punishment of death; but the pledge does not refer to internal

service, such as recruiting or drilling the recruits, fortifying places

not besieged, quelling civil commotions, fighting against belligerents

unconnected with the paroling belligerents, or to civil or diplomatic

service for which the paroled officer may be employed.

131

If the government does not approve of the parole, the paroled officer

must return into captivity, and should the enemy refuse to receive him,

he is free of his parole.

132

A belligerent government may declare, by a general order, whether it

will allow paroling, and on what conditions it will allow it. Such order

is communicated to the enemy.

133

No prisoner of war can be forced by the hostile government to parole

himself, and no government is obliged to parole prisoners of war, or to

parole all captured officers, if it paroles any. As the pledging of the

parole is an individual act, so is paroling, on the other hand, an act

of choice on the part of the belligerent.

134

The commander of an occupying army may require of the civil officers of

the enemy, and of its citizens, any pledge he may consider necessary for

the safety or security of his army, and upon their failure to give it he

may arrest, confine, or detain them.

SECTION VIII

+Armistice--Capitulation+

135

An armistice is the cessation of active hostilities for a period agreed

between belligerents. It must be agreed upon in writing, and duly

ratified by the highest authorities of the contending parties.

136

If an armistice be declared, without conditions, it extends no further

than to require a total cessation of hostilities along the front of both

belligerents.

If conditions be agreed upon, they should be clearly expressed, and must

be rigidly adhered to by both parties. If either party violates any

express condition, the armistice may be declared null and void by the

other.

137

An armistice may be general, and valid for all points and lines of the

belligerents; or special, that is, referring to certain troops or

certain localities only.

An armistice may be concluded for a definite time; or for an indefinite

time, during which either belligerent may resume hostilities on giving

the notice agreed upon to the other.

138

The motives which induce the one or the other belligerent to conclude an

armistice, whether it be expected to be preliminary to a treaty of

peace, or to prepare during the armistice for a more vigorous

prosecution of the war, does in no way affect the character of the

armistice itself.

139

An armistice is binding upon the belligerents from the day of the agreed

commencement; but the officers of the armies are responsible from the

day only when they receive official information of its existence.

140

Commanding officers have the right to conclude armistices binding on the

district over which their command extends, but such armistice is subject

to the ratification of the superior authority, and ceases so soon as it

is made known to the enemy that the armistice is not ratified, even if a

certain time for the elapsing between giving notice of cessation and the

resumption of hostilities should have been stipulated for.

141

It is incumbent upon the contracting parties of an armistice to

stipulate what intercourse of persons or traffic between the inhabitants

of the territories occupied by the hostile armies shall be allowed, if

any.

If nothing is stipulated the intercourse remains suspended, as during

actual hostilities.

142

An armistice is not a partial or a temporary peace; it is only the

suspension of military operations to the extent agreed upon by the

parties.

143

When an armistice is concluded between a fortified place and the army

besieging it, it is agreed by all the authorities on this subject that

the besieger must cease all extension, perfection, or advance of his

attacking works as much so as from attacks by main force.

But as there is a difference of opinion among martial jurists, whether

the besieged have the right to repair breaches or to erect new works of

defense within the place during an armistice, this point should be

determined by express agreement between the parties.

144

So soon as a capitulation is signed, the capitulator has no right to

demolish, destroy, or injure the works, arms, stores, or ammunition, in

his possession, during the time which elapses between the signing and

the execution of the capitulation, unless otherwise stipulated in the

same.

145

When an armistice is clearly broken by one of the parties, the other

party is released from all obligation to observe it.

146

Prisoners taken in the act of breaking an armistice must be treated as

prisoners of war, the officer alone being responsible who gives the

order for such a violation of an armistice. The highest authority of the

belligerent aggrieved may demand redress for the infraction of an

armistice.

147

Belligerents sometimes conclude an armistice while their

plenipotentiaries are met to discuss the conditions of a treaty of

peace; but plenipotentiaries may meet without a preliminary armistice;

in the latter case, the war is carried on without any abatement.

SECTION IX

+Assassination+

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.

SECTION X

+Insurrection--Civil War--Rebellion+

149

Insurrection is the rising of people in arms against their government,

or a portion of it, or against one or more of its laws, or against an

officer or officers of the government. It may be confined to mere armed

resistance, or it may have greater ends in view.

150

Civil war is war between two or more portions of a country or state,

each contending for the mastery of the whole, and each claiming to be

the legitimate government. The term is also sometimes applied to war of

rebellion, when the rebellious provinces or portion of the state are

contiguous to those containing the seat of government.

151

The term "rebellion" is applied to an insurrection of large extent, and

is usually a war between the legitimate government of a country and

portions of provinces of the same who seek to throw off their allegiance

to it and set up a government of their own.

152

When humanity induces the adoption of the rules of regular war toward

rebels, whether the adoption is partial or entire, it does in no way

whatever imply a partial or complete acknowledgment of their government,

if they have set up one, or of them, as an independent and sovereign

power. Neutrals have no right to make the adoption of the rules of war

by the assailed government toward rebels the ground of their own

acknowledgment of the revolted people as an independent power.

153

Treating captured rebels as prisoners of war, exchanging them,

concluding of cartels, capitulations, or other warlike agreements with

them; addressing officers of a rebel army by the rank they may have in

the same; accepting flags of truce; or, on the other hand, proclaiming

martial law in their territory, or levying war-taxes or forced loans, or

doing any other act sanctioned or demanded by the law and usages of

public war between sovereign belligerents, neither proves nor

establishes an acknowledgment of the rebellious people, or of the

government which they may have erected, as a public or sovereign power.

Nor does the adoption of the rules of war toward rebels imply an

engagement with them extending beyond the limits of these rules. It is

victory in the field that ends the strife and settles the future

relations between the contending parties.

154

Treating, in the field, the rebellious enemy according to the law and

usages of war has never prevented the legitimate government from trying

the leaders of the rebellion or chief rebels for high treason, and from

treating them accordingly, unless they are included in a general

amnesty.

155

All enemies in regular war are divided into two general classes--that is

to say, into combatants and noncombatants, or unarmed citizens of the

hostile government.

The military commander of the legitimate government, in a war of

rebellion, distinguishes between the loyal citizen in the revolted

portion of the country and the disloyal citizen. The disloyal citizens

may further be classified into those citizens known to sympathize with

the rebellion without positively aiding it, and those who, without

taking up arms, give positive aid and comfort to the rebellious enemy

without being bodily forced thereto.

156

Common justice and plain expediency require that the military commander

protect the manifestly loyal citizens, in revolted territories, against

the hardships of the war as much as the common misfortune of all war

admits.

The commander will throw the burden of the war, as much as lies within

his power, on the disloyal citizens, of the revolted portion or

province, subjecting them to a stricter police than the noncombatant

enemies have to suffer in regular war; and if he deems it appropriate,

or if his government demands of him that every citizen shall, by an oath

of allegiance, or by some other manifest act, declare his fidelity to

the legitimate government, he may expel, transfer, imprison, or fine the

revolted citizens who refuse to pledge themselves anew as citizens

obedient to the law and loyal to the government.

Whether it is expedient to do so, and whether reliance can be placed

upon such oaths, the commander or his government has the right to

decide.

157

Armed or unarmed resistance by citizens of the United States against the

lawful movements of their troops is levying war against the United

States, and is therefore treason.

APPENDIX II

MANUAL OF THE LAWS OF WAR ON LAND

PREPARED BY THE INSTITUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED

AT ITS MEETING AT OXFORD ON SEPTEMBER 9, 1880[496]

PART I. GENERAL PRINCIPLES

1. The state of war admits of the performance of acts of violence on the

part only of the armed forces of the belligerent states.

Persons not forming part of a belligerent armed force must abstain from

the performance of such acts.

A distinction being implied in the above rule between the

individuals of whom the armed force of a state is composed and other

subjects of a State, it becomes necessary to define an "armed

force."

2. The armed force of a state comprehends--

§ 1. The army properly so called, including militia.

§ 2. National Guards Landsturm, and all corps which satisfy the

following requirements:

(_a_) That of being under the direction of a responsible leader.

(_b_) That of wearing a uniform or a distinctive mark, which

latter must be fixed, and capable of being recognized at a

distance.

(_c_) That of bearing arms openly.

§ 3. Crews of vessels of war, and other members of the naval forces of

the country.

§ 4. Inhabitants of a territory not militarily occupied by the enemy,

who, on the approach of his army, take up arms spontaneously and

openly for the purpose of combating it. Such persons form part of

the armed force of the State, even though, owing to want of time,

they have not organized themselves militarily.

3. Every belligerent armed force is bound to conform to the laws of war.

The sole object during war to which states can legitimately direct

their hostilities being the enfeeblement of the military strength of

the enemy. (Declaration of St. Petersburg of the 4/16th November,

1868.)

4. The laws of war do not allow belligerents an unlimited freedom of

adopting whatever means they may choose for injuring their enemy.

Especially they must abstain from all useless severity, and from

disloyal, unjust, or tyrannical acts.

5. Military conventions made between belligerents during war--such as

armistices and capitulations--must be scrupulously observed and

respected.

6. No invaded territory is considered to be conquered until war is

ended. Until then the occupying state only exercises a _de facto_

control of an essentially provisional nature.

PART II. APPLICATION OF THE GENERAL PRINCIPLES

I. +Of Hostilities+

A. +RULES OF CONDUCT WITH RESPECT TO PERSONS+

(_a_) _Of the inoffensive population_

Acts of violence being permissible only between armed forces (Art. 1),

7. It is forbidden to maltreat the inoffensive portion of the

population.

(_b_) _Of means of injuring the enemy_

Loyalty of conduct being enjoined (Art. 4),

8. It is forbidden:--

(_a_) To employ poison in any form.

(_b_) To endeavor to take the life of an enemy in a traitorous

manner,--_e.g._ by employing assassins, or by simulating

surrender.

(_c_) To attack the enemy while concealing the distinctive marks of an

armed force.

(_d_) To make improper use of the national flag, of signs of military

ranks, or of the uniform of the enemy, of a flag of truce, or of

the protective marks prescribed by the Convention of Geneva. (See

Arts. 17 and 40.)

It being obligatory to abstain from useless severities (Art. 4),

9. It is forbidden:--

(_a_) To use arms, projectiles, or substances calculated to inflict

superfluous suffering, or to aggravate wounds, particularly

projectiles which, being explosible, or charged with fulminating

or inflammable substances, weigh less than four hundred grams.

(Declaration of St. Petersburg.)[497]

(_b_) To mutilate or kill an enemy who has surrendered at discretion,

or is disabled, and to declare that quarter will not be given,

even if the force making such declaration does not claim quarter

for itself.

(_c_) _Of wounded, sick, and the hospital staff_

The wounded, the sick, and the hospital staff are exempted from

unnecessary severities, which might otherwise touch them, by the

following rules (Arts. 10 to 18), drawn from the Convention of

Geneva.

10. Wounded and sick soldiers must be brought in and cared for, to

whatever nation they belong.

11. When circumstances permit, officers commanding in chief, immediately

after a combat, may send in enemy soldiers wounded during it to the

advanced posts of the enemy, with the consent of the latter.

12. The operation of moving sick and wounded is a neutral act, and the

staff engaged in it is neutral.

13. The staff of the hospitals and ambulances--namely, surgeons, clerks,

hospital orderlies, and other persons employed in the sanitary,

administrative, and transport departments, as well as chaplains, and

members and agents of societies duly authorized to assist the official

hospital staff--is considered to be neutral while exercising its

functions, and so long as there are wounded to remove or succor.

14. The staff specified in the preceding Article must continue after

occupation by an enemy has taken place to give its attention to the sick

and wounded, to such extent as may be needful, in the ambulance or

hospital which it serves.

15. When such staff applies for leave to retire, it falls to the officer

commanding the occupying troops to fix the date of departure. After

request, however, has been made, the departure of the staff can only be

postponed for a short time, and for reasons of military necessity.

16. Measures must, if possible, be taken to secure to the neutralized

staff fitting maintenance and allowance when it falls into the hands of

the enemy.

17. The neutralized hospital staff must wear a white armlet with a red

cross on it. The armlet can be issued only by the military authorities.

18. It is the duty of the generals of the belligerent Powers to appeal

to the humanity of the inhabitants of the country in which they are

operating, for the purpose of inducing them to succor the wounded,

pointing out to them at the same time the advantages which result to

themselves therefrom (Arts. 36 and 59). Those who respond to any such

appeal are entitled to special protection.

(_d_) _Of the dead_

19. It is forbidden to strip and mutilate the dead lying on the field of

battle.

20. The dead must never be buried before such indications of their

identity (especially "livrets, numeros," etc.) as they may have upon

them have been collected. The indications thus gathered upon enemy dead

are communicated to their army or government.

(_e_) _Who can be made prisoners of war_

21. Persons forming part of the armed force of belligerents, on falling

into the power of the enemy, must be treated as prisoners of war,

conformably to Article 61, and those following it.

This rule applies to messengers openly carrying official dispatches, and

to civil aëronauts employed to observe the enemy or to keep up

communication between different parts of the army or territory.

22. Persons who follow an army without forming part of it, such as

correspondents of newspapers, sutlers, contractors, etc., on falling

into the power of the enemy, can only be detained for so long a time as

may be required by military necessity.

(_f_) _Of spies_

23. Persons captured as spies cannot demand to be treated as prisoners

of war.

_But_

24. Persons belonging to a belligerent armed force are not to be

considered spies on entering, without the cover of a disguise, within

the area of the actual operations of the enemy. Messengers, also, who

openly carry official dispatches, and aëronauts (Art. 21) are not to be

considered spies.

To guard against the abuses to which accusations of acting as a spy

give rise in time of war, it must clearly be understood that

25. No person accused of being a spy can be punished without trial.

It is moreover admitted that

26. A spy who succeeds in quitting a territory occupied by the enemy,

cannot be held responsible for acts done before so leaving, if he

afterwards falls into the enemy's hands.

(_g_) _Of flags of truce_

27. A person who is authorized by one of the belligerents to enter

communication with the other belligerent, and presents himself to the

latter with a white flag, is inviolable.

28. He may be accompanied by a trumpeter or drummer, by a flag-bearer,

and, if necessary by a guide, and an interpreter, all of whom are also

inviolable.

The necessity of this privilege is evident, especially as its

exercise is frequently required in the simple interests of humanity.

It must not, however, be so used as to be prejudicial to the

opposite party.

Hence,

29. The commander to whom a flag of truce is sent is not obliged to

receive its bearer under all circumstances.

Besides,

30. The commander who receives a flag of truce has the right to take all

necessary measures to prevent the presence of an enemy within his lines

from being prejudicial to him.

The bearer of a flag of truce, and those who accompany him, are

bound to act with good faith toward the enemy who receives them

(Art. 4).

31. If the bearer of a flag of truce abuse the confidence which is

accorded to him, he may be temporarily detained; and if it be proved

that he has made use of his privileges to suborn to traitorous

practices, he loses his right of inviolability.

B. +RULES OF CONDUCT WITH REGARD TO THINGS+

(_a_) _Of the means of exercising violence. Of bombardment_

Mitigations of the extreme rights of violence are necessarily

consequent upon the rule that useless severity shall not be indulged

in (Art. 4). It is thus that

32. It is forbidden

(_a_) To pillage, even in the case of towns taken by assault.

(_b_) To destroy public or private property, unless its destruction be

required by an imperative necessity of war.

(_c_) To attack and bombard undefended places.

The right of belligerents to have recourse to bombardment against

fortresses and other places in which the enemy is intrenched is not

contestable, but humanity requires that this form of violence shall

be so restrained as to limit as much as possible its effects to the

armed forces of the enemy and to their defenses.

Hence,

33. The commander of an attacking force must do everything in his power

to intimate to the local authorities his intention of bombarding, before

the bombardment commences, except when bombardment is coupled with

assault.

34. In cases of bombardment, all necessary measures ought to be taken to

spare, so far as possible, buildings devoted to religion, the arts,

sciences, and charity, hospitals, and places in which sick and wounded

are kept; provided always that such buildings are not at the same time

utilized, directly or indirectly, for defense.

It is the duty of the besieged to indicate these buildings by visible

signs, notified to the besieger beforehand.

(_b_) _Of the sanitary matériel_

The rules (Arts. 10 and those following) for the protection of the

wounded would be insufficient if special protection were not also

given to hospitals. Consequently, in accordance with the Convention

of Geneva,

35. The ambulances and hospitals used by armies are recognized as being

neutral, and must be protected and respected as such by the

belligerents, so long as there are sick and wounded in them.

36. A like rule applies to private buildings, or parts of private

buildings, in which sick and wounded are collected and cared for.

Nevertheless,

37. The neutrality of ambulances and hospitals ceases to exist if they

are guarded by a military force, a police post being alone permissible.

38. The _matériel_ of military hospitals remains subject to the laws of

war; persons attached to the hospitals can only, therefore, carry away

their private property on leaving. Ambulances, on the other hand,

preserve their _matériel_.

39. Under the circumstances contemplated in the foregoing paragraph, the

term "ambulance" is applicable to field hospitals and other temporary

establishments which follow the troops to the field of battle for the

purpose of receiving sick and wounded.

40. A distinctive flag and uniform, bearing a red cross upon a white

ground, is adopted for hospitals, ambulances, and things and persons

connected with the movement of sick and wounded. It must always be

accompanied by the national flag.

II. +Of Occupied Territory+

A. +DEFINITION+

41. A territory is considered to be occupied when, as the result of its

invasion by an enemy's force, the State to which it belongs has ceased,

in fact, to exercise its ordinary authority within it, and the invading

State is alone in a position to maintain order. The extent and duration

of the occupation are determined by the limits of space and time within

which this state of things exists.

B. +RULES OF CONDUCT WITH REGARD TO PERSONS+

Since new relations arise from the provisional change of government,

42. It is the duty of the occupying military authority to inform the

inhabitants of the occupied territory as soon as possible of the powers

which it exercises, as well as of the local extent of the occupation.

43. The occupier must take all measures in his power to reëstablish and

to preserve public order.

With this object

44. The occupier must, so far as possible, retain the laws which were in

vigor in the country in time of peace, modifying, suspending, or

replacing them only in case of necessity.

45. The civil functionaries of every kind who consent to continue the

exercise of their functions are under the protection of the occupier.

They may be dismissed, and they may resign at any moment. For failing to

fulfill the obligations freely accepted by them, they can only be

subjected to disciplinary punishment. For betraying their trust, they

may be punished in such manner as the case may demand.

46. In emergencies the occupier may require the inhabitants of an

occupied district to give their assistance in carrying on the local

administration.

As occupation does not entail a change of nationality on the part of

the inhabitants,

47. The population of an occupied country cannot be compelled to take an

oath of fidelity or obedience to the enemy's power. Persons doing acts

of hostility directed against the occupier are, however, punishable

(Art. 1).

48. Inhabitants of an occupied territory who do not conform to the

orders of the occupier can be compelled to do so.

The occupier cannot, however, compel the inhabitants to assist him in

his works of attack or defense, nor to take part in military operations

against their own country (Art. 4).

Moreover,

49. Human life, female honor, religious beliefs, and forms of worship

must be respected. Interference with family life is to be avoided (Art.

4).

C. +RULES OF CONDUCT WITH RESPECT TO THINGS+

(_a_) _Public property_

Although an occupier, for the purpose of governing the occupied

territory, takes the place, in a certain sense, of the legitimate

government, he does not possess unrestricted powers. So long as the

ultimate fate of the territory is undecided--that is to say, until

the conclusion of peace--the occupier is not at liberty to dispose

freely of such property of his enemy as is not immediately

serviceable for the operations of war.

Hence,

50. The occupier can appropriate only money and debts (including

negotiable instruments) belonging to the State, arms, stores, and, in

general, such movable property of the State as can be used for the

purposes of military operations.

51. Means of transport (State railways and their rolling stock, State

vessels, etc.), as well as land telegraphs and landing cables, can only

be sequestrated for the use of the occupier. Their destruction is

forbidden, unless it be required by the necessities of war. They are

restored at the peace in the state in which they then are.

52. The occupier can only enjoy the use of, and do administrative acts

with respect to immovable property, such as buildings, forests, and

agricultural lands belonging to the enemy State (Art. 6).

Such property cannot be alienated, and must be maintained in good

condition.

53. The property of municipal and like bodies, that of religious,

charitable, and educational foundations, and that appropriated to the

arts and sciences, are exempt from seizure.

All destruction or intentional damage of buildings devoted to the above

purposes, of historical monuments, of archives, and of works of art or

science, is forbidden, unless it be imperatively demanded by the

necessities of war.

(_b_) _Private property_

If the powers of an occupier are limited with respect to the

property of the enemy state, _a fortiori_ they are limited with

respect to the property of private persons.

54. Private property, whether held by individuals or by corporations,

companies, or other bodies, must be respected, and cannot be confiscated

except to the extent specified in the following Articles.

55. Means of transport (railways and their rolling stock, vessels,

etc.), telegraphs, stores of arms and munitions of war, may be seized by

the occupier, notwithstanding that they belong to individuals or

companies; but they must be restored if possible at the conclusion of

peace, and compensation for the loss inflicted on their owners must be

provided.

56. Supplies in kind (requisitions) demanded from districts or

individuals must correspond to the generally recognized necessities of

war, and must be proportioned to the resources of the country.

Requisitions can only be made by express authorization of the officer

commanding in the occupied locality.

57. The occupier can only levy such taxes and duties as are already

established in the occupied State. He uses them to satisfy the expenses

of administration to the extent that they have been so used by the

legitimate government.

58. The occupier can only levy contributions in money as the equivalent

of unpaid fines, or unpaid taxes, or of supplies in kind, which have not

been duly made.

Contributions in money can only be imposed by the order, and on the

responsibility, of the general in chief or of the supreme civil

authority established in the occupied territory; and their incidence

must as far as possible correspond to that of the taxes already in

existence.

59. In apportioning the burdens arising from the billeting of troops and

contributions of war, zeal shown by individuals in caring for the

wounded is to be taken into consideration.

60. Receipts are to be given for the amount of contributions of war, and

for articles requisitioned when payment for them is not made. Measures

must be taken to secure that these receipts shall be given always, and

in proper form.

III. +Of Prisoners of War+

A. THE STATE OF CAPTIVITY

Captivity is neither a punishment inflicted on prisoners of war

(Art. 21) nor an act of vengeance; it is merely a temporary

detention which is devoid of all penal character. In the following

Articles, regard is had both to the consideration due to prisoners

of war and to the necessity of keeping them in safe custody.

61. Prisoners of war are at the disposal of the enemy government, not of

the individuals or corps which have captured them.

62. They are subjected to the laws and rules in force in the enemy army.

63. They must be treated with humanity.

64. All that belongs to them personally, except arms, remains their

property.

65. Prisoners are bound to state, if asked, their true name and rank. If

they do not do so, they can be deprived of all or any of the mitigations

of imprisonment enjoyed by other prisoners circumstanced like

themselves.

66. Prisoners can be subjected to internment in a town, fortress, camp,

or any other place, definite bounds being assigned which they are not

allowed to pass; but they can only be confined in a building when such

confinement is indispensable for their safe detention.

67. Insubordination justifies whatever measures of severity may be

necessary for its repression.

68. Arms may be used against a fugitive prisoner after summons to

surrender.

If he is retaken before he has rejoined his army, or has escaped from

the territory under the control of his captor, he may be punished, but

solely in a disciplinary manner, or he may be subjected to more severe

surveillance than that to which prisoners are commonly subjected. But if

he be captured afresh, after having accomplished his escape, he is not

punishable unless he has given his parole not to escape, in which case

he may be deprived of his rights as prisoner of war.

69. The government detaining prisoners is charged with their

maintenance.

In default of agreement between the belligerents on this point,

prisoners are given such clothing and rations as the troops of the

capturing State receive in time of peace.

70. Prisoners cannot be compelled to take part in any manner in the

operations of the war, nor to give information as to their country or

army.

71. They may be employed upon public works which have no direct relation

to the operations carried on in the theater of war, provided that labor

be not exhausting in kind or degree, and provided that the employment

given to them is neither degrading with reference to their military

rank, if they belong to the army, nor to their official or social

position, if they do not so belong.

72. When permission is given to them to work for private employers,

their wages may be received by the detaining government, which must

either use it in procuring comforts for them, or must pay it over to

them on their liberation, the cost of their maintenance being if

necessary first deducted.

B. +TERMINATION OF CAPTIVITY+

The reasons which justify the detention of a captured enemy last

only during the continuance of war.

Consequently,

73. The captivity of prisoners of war ceases as of course on the

conclusion of peace; but the time and mode of their actual liberation is

a matter for agreement between the governments concerned.

In virtue of the Convention of Geneva,

74. Captivity ceases as of course, before the date fixed upon for

general liberation, in the case of wounded or sick prisoners who, after

being cured, are found to be incapable of further service.

The captor must send these back to their country so soon as their

incapacity is established.

During the war

75. Prisoners can be released by means of a cartel of exchange

negotiated between the belligerent parties.

Even without exchange

"Japan ordered naval officers to give credence to the declaration of a