Volume Ii Part 22 (1/2)

[Sidenote: Treason.]

-- 162. Treason can be committed by a soldier or an ordinary subject of a belligerent, but it can also be committed by an inhabitant of an occupied enemy territory or even by the subject of a neutral State temporarily staying there, and it can take place after an arrangement with the favoured belligerent or without such an arrangement. In any case a belligerent making use of treason acts lawfully, although the Hague Regulations do not mention the matter at all. But many acts of different sorts can be treasonable; the possible cases of treason and the punishment of treason will be discussed below in -- 255.

Although it is generally recognised that a belligerent acts lawfully who makes use of the offer of a traitor, the question is controversial[314]

whether a belligerent acts lawfully who bribes a commander of an enemy fortress into surrender, incites enemy soldiers to desertion, bribes enemy officers for the purpose of getting important information, incites enemy subjects to rise against the legitimate Government, and the like.

If the rules of the Law of Nations are formulated, not from doctrines of book-writers, but from what is done by the belligerents in practice,[315] it must be a.s.serted that such acts, detestable and immoral as they are, are not considered illegal according to the Law of Nations.

[Footnote 314: See Vattel, III. -- 180; Heffter, -- 125; Taylor, -- 490; Martens, II. -- 110 (8); Longuet, -- 52; Merignhac, p. 188, and others.

See also below, -- 164.]

[Footnote 315: See _Land Warfare_, -- 158.]

XI

RUSES

Grotius, III. c. 1, ---- 6-18--Bynkershoek, _Quaest. jur. publ._ I.

c. 1--Vattel, III. ---- 177-178--Hall, -- 187--Lawrence, -- 207--Westlake, II. p. 73--Phillimore, III. -- 94--Halleck, I. pp.

566-571--Taylor, -- 488--Moore, VII. -- 1115--Bluntschli, ---- 565-566--Heffter, -- 125--Lueder in Holtzendorff, IV. pp.

457-461--Ullmann, -- 176--Bonfils, Nos. 1073-1075--Despagnet, Nos.

526-527--Pradier-Fodere, VI. Nos. 2759-2761--Rivier, II. p.

261--Nys, III. pp. 252-255--Calvo, IV. ---- 2106-2110--Fiore, III.

Nos. 1334-1339--Longuet, ---- 53-56--Merignhac, pp. 165-168--Pillet, pp. 93-97--_Kriegsbrauch_, pp. 23-24--Holland, _War_, Nos.

78-79--Bordwell, pp. 283-286--Meurer, II pp. 151-152--Spaight, pp.

152-156--_Land Warfare_, ---- 139-154--Brocher in _R.I._ V. (1873), pp. 325-329.

[Sidenote: Character of Ruses of War.]

-- 163. Ruses of war or stratagems are deceit employed during military operations for the purpose of misleading the enemy. Such deceit is of great importance in war, and, just as belligerents are allowed to employ all methods of obtaining information, so they are, on the other hand, and article 24 of the Hague Regulations confirms this, allowed to employ all sorts of ruses for the purpose of deceiving the enemy. Very important objects can be attained through ruses of war, as, for instance, the surrender of a force or of a fortress, the evacuation of territory held by the enemy, the withdrawal from a siege, the abandonment of an intended attack, and the like. But ruses of war are also employed, and are very often the decisive factor, during battles.

[Sidenote: Different kinds of Stratagems.]

-- 164. Of ruses there are so many kinds that it is impossible to enumerate[316] and cla.s.sify them. But in order to ill.u.s.trate acts carried out as ruses some instances may be given. It is hardly necessary to mention the laying of ambushes and traps, the masking of military operations such as marches or the erection of batteries and the like, the feigning of attacks or flights or withdrawals, the carrying out of a surprise, and other stratagems employed every day in war. But it is important to know that, when useful, feigned signals and bugle-calls may be ordered, the watchword of the enemy may be used, deceitful intelligence may be disseminated,[317] the signals and the bugle-calls of the enemy may be mimicked[318] to mislead his forces. And even such detestable acts[319] as bribery of enemy commanders and officials in high position, and secret seduction of enemy soldiers to desertion, and of enemy subjects to insurrection, are frequently committed, although many writers protest. As regards the use of the national flag, the military ensigns, and the uniforms of the enemy, theory and practice are unanimous in rejecting it during actual attack and defence, since the principle is considered inviolable that during actual fighting belligerent forces ought to be certain who is friend and who is foe. But many[320] publicists maintain that until the actual fighting begins belligerent forces may by way of stratagem make use of the national flag, military ensigns, and uniforms of the enemy. Article 23 (_f_) of the Hague Regulations does not prohibit any and every use of these symbols, but only their _improper_ use, thus leaving the question open,[321] what uses are proper and what are not. Those who have hitherto taught the admissibility of the use of these symbols outside actual fighting can correctly maintain that the quoted article 23 (_f_) does not prohibit it.[322]

[Footnote 316: See _Land Warfare_, -- 144, where a great number of legitimate ruses are enumerated.]

[Footnote 317: See the examples quoted by Pradier-Fodere, VI. No. 2761.]

[Footnote 318: See Pradier-Fodere, VI. No. 2760.]

[Footnote 319: The point has been discussed above in -- 162.]

[Footnote 320: See, for instance, Hall, -- 187; Bluntschli, -- 565; Taylor, -- 488; Calvo, IV. No. 2106; Pillet, p. 95; Longuet, -- 54. But, on the other hand, the number of publicists who consider it illegal to make use of the enemy flag, ensigns, and uniforms, even before an actual attack, is daily becoming larger; see, for instance, Lueder in Holtzendorff, IV. p. 458; Merignhac, p. 166; Pradier-Fodere, VI. No.

2760; Bonfils, No. 1074; _Kriegsbrauch_, p. 24. As regards the use of the enemy flag on the part of men-of-war, see below, in -- 211.]

[Footnote 321: Some writers maintain that article 23 (_f_) of the Hague Regulations has settled the controversy, but they forget that this article speaks only of the _improper_ use of the enemy ensigns and uniform. See _Land Warfare_, -- 152.]

[Footnote 322: The use of the enemy uniform for the purpose of deceit is different from the case when members of armed forces who are deficient in clothes wear the uniforms of prisoners or of the enemy dead. If this is done--and it always will be done if necessary--such distinct alterations in the uniform ought to be made as will make it apparent to which side the soldiers concerned belong (see _Land Warfare_, -- 154).