SECTION I
Martial
Law - Military jurisdiction - Military necessity - Retaliation
Article
1.
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.
Art. 2.
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.
Art. 3.
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.
Art. 4.
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.
Art. 5.
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.
Art. 6.
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.
Art. 7.
Martial
Law extends to property, and to persons, whether they are subjects of the enemy
or aliens to that government.
Art. 8.
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.
Art. 9.
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.
Art. 10.
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.
Art. 11.
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.
Art. 12.
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.
Art. 13.
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.
Art. 14.
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.
Art. 15.
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.
Art. 16.
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.
Art. 17.
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.
Art. 18.
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.
Art. 19.
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.
Art. 20.
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, suffer, advance and retrograde together, in peace and
in war.
Art. 21.
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.
Art. 22.
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.
Art. 23.
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.
Art. 24.
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.
Art. 25.
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.
Art. 26.
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 everyone 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.
Art. 27.
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
Art. 28.
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.
Art. 29.
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.
Art. 30.
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.
Art. 31.
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.
Art. 32.
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.
Art. 33.
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.
Art. 34.
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.
Art. 35.
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.
Art. 36.
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.
Art. 37.
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
Art. 38.
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.
Art. 39.
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.
Art. 40.
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.
Art. 41.
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.
Art. 42.
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.
Art. 43.
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.
Art. 44.
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.
Art. 45.
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.
Art. 46.
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.
Art. 47.
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 battle-field.
Art. 48.
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.
Art. 49.
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.
Art. 50.
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 hostile reigning 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.
Art. 51.
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.
Art. 52.
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.
Art. 53.
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.
Art. 54
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.
Art. 55.
If a
hostage is accepted, he is treated like a prisoner of war, according to rank
and condition, as circumstances may admit.
Art. 56.
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.
Art. 57.
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.
Art. 58.
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 cannot retaliate by enslavement; therefore death must be the retaliation
for this crime against the law of nations.
Art. 59.
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.
Art. 60.
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.
Art. 61.
Troops
that give no quarter have no right to kill enemies already disabled on the
ground, or prisoners captured by other troops.
Art. 62.
All troops
of the enemy known or discovered to give no quarter in general, or to any
portion of the army, receive none.
Art. 63.
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.
Art. 64.
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.
Art. 65.
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.
Art. 66.
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.
Art. 67.
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.
Art. 68.
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.
Art. 69.
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.
Art. 70.
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.
Art.71.
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.
Art. 72.
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.
Art. 73.
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.
Art. 74.
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.
Art. 75.
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.
Art. 76.
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.
Art. 77.
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.
Art. 78.
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.
Art. 79.
Every
captured wounded enemy shall be medically treated, according to the ability of
the medical staff.
Art. 80.
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
Art. 81.
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.
Art. 82.
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.
Art. 83.
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.
Art. 84.
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.
Art. 85.
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
Art. 86.
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.
Art. 87.
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.
Art. 88.
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.
Art. 89.
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.
Art. 90.
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.
Art.91.
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.
Art. 92.
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.
Art. 93.
All armies
in the field stand in need of guides, and impress them if they cannot obtain
them otherwise.
Art. 94.
No person
having been forced by the enemy to serve as guide is punishable for having done
so.
Art. 95.
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.
Art. 96.
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.
Art. 97.
Guides,
when it is clearly proved that they have misled intentionally, may be put to
death.
Art. 98.
An
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.
Art. 99.
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.
Art. 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.
Art. 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 difficult to guard against them.
Art. 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.
Art. 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.
Art. 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
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 109.
The
exchange of prisoners of war is an act of convenience to both belligerents. If
no general cartel has been concluded, it cannot 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.
Art. 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.
Art. 111.
The bearer
of a flag of truce cannot insist upon being admitted. He must always be
admitted with great caution. Unnecessary frequency is carefully to be avoided.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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
Parole
Art. 119.
Prisoners
of war may be released from captivity by exchange, and, under certain
circumstances, also by parole.
Art. 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.
Art. 121.
The pledge
of the parole is always an individual, but not a private act.
Art. 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.
Art. 123.
Release of
prisoners of war by exchange is the general rule; release by parole is the
exception.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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. Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 145.
When an
armistice is clearly broken by one of the parties, the other party is released
from all obligation to observe it.
Art. 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.
Art. 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
Art. 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
Art. 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.
Art. 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 portions of the state are contiguous to those containing the seat
of government.
Art. 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.
Art. 152.
When
humanity induces the adoption of the rules of regular war to ward rebels,
whether the adoption is partial or entire, it does in no way whatever imply a
partial or complete acknowledgement 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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 have the right to decide.
Art. 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.
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