Volume Ii Part 16 (1/2)

-- 110--Longuet, ---- 42-49--Merignhac, pp. 146-165--Pillet, pp.

85-95--Holland, _War_, pp. 70-76--Zorn, pp. 127-161--Bordwell, pp.

278-283--Meurer, II. ---- 30-31--Spaight, pp.

73-156--_Kriegsbrauch_, pp. 9-11--_Land Warfare_, ---- 39-53.

[Sidenote: On Violence in general against Enemy Persons.]

-- 107. As war is a contention between States for the purpose of overpowering each other, violence consisting of different sorts of force applied against enemy persons is the chief and decisive means of warfare. These different sorts of force are used against combatants as well as non-combatants, but with discrimination and differentiation. The purpose of the application of violence against combatants is their disablement so that they can no longer take part in the fighting. And this purpose may be realised through either killing or wounding them, or making them prisoners. As regards non-combatant members of armed forces, private enemy persons showing no hostile conduct, and officials in important positions, only minor means of force may as a rule be applied, since they do not take part in the armed contention of the belligerents.

[Sidenote: Killing and Wounding of Combatants.]

-- 108. Every combatant may be killed or wounded, whether a private soldier or an officer, or even the monarch or a member of his family.

Some publicists[233] a.s.sert that it is a usage of warfare not to aim at a sovereign or a member of his family. Be that as it may, there is in strict law[234] no rule preventing the killing and wounding of such ill.u.s.trious persons. But combatants may only be killed or wounded if they are able and willing to fight or to resist capture. Therefore, such combatants as are disabled by sickness or wounds may not be killed.

Further, such combatants as lay down arms and surrender or do not resist being made prisoners may neither be killed nor wounded, but must be given quarter. These rules are universally recognised, and are now expressly enacted by article 23 (_c_) of the Hague Regulations, although the fury of battle frequently makes individual fighters[235] forget and neglect them.

[Footnote 233: See Kluber, -- 245; G. F. Martens, II. -- 278; Heffter, -- 126.]

[Footnote 234: Says Vattel, III. -- 159: ”Mais ce n'est point une loi de la guerre d'epargner en toute rencontre la personne du roi ennemi; et on n'y est oblige que quand on a la facilite de le faire prisonnier.” The example of Charles XII. of Sweden (quoted by Vattel), who was intentionally fired at by the defenders of the fortress of Thorn, besieged by him, and who said that the defenders were within their right, ought to settle the point.]

[Footnote 235: See Baty, _International Law in South Africa_ (1900), pp.

84-85.]

[Sidenote: Refusal of Quarter.]

-- 109. However, the rule that quarter must be given has its exceptions.

Although it has of late been a customary rule of International Law, and although the Hague Regulations now expressly stipulate by article 23 (_d_) that belligerents are prohibited from declaring that no quarter will be given, quarter may nevertheless be refused[236] by way of reprisal for violations of the rules of warfare committed by the other side; and, further, in case of imperative necessity, when the granting of quarter would so enc.u.mber a force with prisoners that its own security would thereby be vitally imperilled.[237] But it must be emphasised that the mere fact that numerous prisoners cannot safely be guarded and fed by the captors[238] does not furnish an exceptional case to the rule, provided that no vital danger to the captors is therein involved. And it must likewise be emphasised that the former rule is now obsolete according to which quarter could be refused to the garrison of a fortress carried by a.s.sault, to the defenders of an unfortified place against an attack of artillery, and to the weak garrison who obstinately and uselessly persevered in defending a fortified place against overwhelming enemy forces.

[Footnote 236: See Pradier-Fodere, VII. Nos. 2800-2801, who opposes this principle but discusses the subject in a very detailed way.]

[Footnote 237: See Payrat, _Le Prisonnier de Guerre_ (1910), pp.

191-220, and _Land Warfare_, -- 80.]

[Footnote 238: Accordingly, the Boers frequently during the South African War set free British soldiers whom they had captured.]

[Sidenote: Lawful and Unlawful Means of killing and wounding Combatants.]

-- 110. Apart from such means as are expressly prohibited by treaties or custom, all means of killing and wounding that exist or may be invented are lawful. And it matters not whether the means used are directed against single individuals, as swords and rifles, or against large bodies of individuals, as, for instance, shrapnel, Gatlings, and mines.

On the other hand, all means are unlawful that render death inevitable or that needlessly aggravate the sufferings of wounded combatants. A customary rule of International Law, now expressly enacted by article 23 (_e_) of the Hague Regulations, prohibits, therefore, the employment of poison and of such arms, projectiles, and material as cause unnecessary injury. Accordingly: wells, pumps, rivers, and the like from which the enemy draws drinking water must not be poisoned; poisoned weapons must not be made use of; rifles must not be loaded with bits of gla.s.s, irregularly shaped iron, nails, and the like; cannons must not be loaded with chain shot, crossbar shot, red-hot b.a.l.l.s, and the like. Another customary rule, now likewise enacted by article 23 (_b_) of the Hague Regulations, prohibits any treacherous way of killing and wounding combatants. Accordingly: no a.s.sa.s.sin must be hired and no a.s.sa.s.sination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.

[Sidenote: Explosive Bullets.]

-- 111. In 1868 a conference met at St. Petersburg for the examination of a proposition made by Russia with regard to the use of explosive projectiles in war. The representatives of seventeen Powers--namely, Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North German Confederation, Sweden-Norway, Switzerland, Turkey and Wurttemberg (Brazil acceded later) signed on December 11, 1868, the so-called Declaration of St. Petersburg,[239] which stipulates that the signatory Powers, and those who should accede later, renounce in case of war between themselves the employment, by their military and naval troops, of any projectile of a weight below 400 grammes (14 ounces) which is either explosive or charged with fulminating or inflammable substances.

This engagement is obligatory only upon the contracting Powers, and it ceases to be obligatory in case a non-contracting Power takes part in a war between any of the contracting Powers.

[Footnote 239: See above, vol. I. -- 562, and Martens, _N.R.G._ XVIII. p.

474.]

[Sidenote: Expanding (Dum-Dum) Bullets.]