Volume Ii Part 34 (2/2)

PUNISHMENT OF WAR CRIMES

Hall, -- 135--Bluntschli, ---- 627-643A--Spaight, p. 462--Holland, _War_, Nos. 117-118--Ariga, ---- 96-99--Takahas.h.i.+, pp.

166-184--Landa in _R.I._ X. (1878), pp. 182-184--_Land Warfare_, ---- 441-451.

[Sidenote: Conception of War Crimes.]

-- 251. In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as members of armed forces who have done no wrong, war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. It must, however, be emphasised that the term war crime is used, not in the moral sense of the term crime, but only in a technical legal sense, on account of the fact that perpetrators of these acts may be punished by the enemy. For, although among the acts called war crimes are many which are crimes in the moral sense of the term, such, for instance, as the abuse of a flag of truce or a.s.sa.s.sination of enemy soldiers; there are others which may be highly praiseworthy and patriotic acts, such as taking part in a levy _en ma.s.se_ on territory occupied by the enemy. But because every belligerent may, and actually must, in the interest of his own safety punish these acts, they are termed war crimes, whatever may be the motive, the purpose, and the moral character of the respective act.[480]

[Footnote 480: See above, -- 57.]

[Sidenote: Different kinds of War Crimes.]

-- 252. In spite of the uniform designation of these acts as war crimes, four different kinds of war crimes must be distinguished on account of the essentially different character of the acts. Violations of recognised rules regarding warfare committed by members of the armed forces belong to the first kind; all hostilities in arms committed by individuals who are not members of the enemy armed forces const.i.tute the second kind; espionage and war treason belong to the third; and all marauding acts belong to the fourth kind.

[Sidenote: Violations of Rules regarding Warfare.]

-- 253. Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations _by order_ of their Government, they are not war criminals and may not be punished by the enemy; the latter may, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.

The following are the more important violations that may occur:

(1) Making use of poisoned or otherwise forbidden arms and ammunition.

(2) Killing or wounding soldiers disabled by sickness or wounds, or who have laid down arms and surrendered.

(3) a.s.sa.s.sination, and hiring of a.s.sa.s.sins.

(4) Treacherous request for quarter, or treacherous feigning of sickness and wounds.

(5) Ill-treatment of prisoners of war, of the wounded and sick.

Appropriation of such of their money and valuables as are not public property.

(6) Killing or attacking harmless private enemy individuals. Unjustified appropriation and destruction of their private property, and especially pillaging. Compulsion of the population of occupied territory to furnish information about the army of the other belligerent or about his means of defence.

(7) Disgraceful treatment of dead bodies on battlefields. Appropriation of such money and other valuables found upon dead bodies as are not public property, nor arms, ammunition, and the like.

(8) Appropriation and destruction of property belonging to museums, hospitals, churches, schools, and the like.

(9) a.s.sault, siege, and bombardment of undefended open towns and other habitations. Unjustified bombardment of undefended places on the part of naval forces.

(10) Unnecessary bombardment of historical monuments, and of such hospitals and buildings devoted to religion, art, science, and charity, as are indicated by particular signs notified to the besiegers bombarding a defended town.

(11) Violations of the Geneva Convention.

(12) Attack on or sinking of enemy vessels which have hauled down their flags as a sign of surrender. Attack on enemy merchantmen without previous request to submit to visit.

(13) Attack or seizure of hospital s.h.i.+ps, and all other violations of the Hague Convention for the adaptation to naval warfare of the principles of the Geneva Convention.

(14) Unjustified destruction of enemy prizes.[481]

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