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1. How regulated. The conduct of war is regulated by certain well-established and recognized rules that are usually designated as "the laws of war," which comprise the rules, both written and unwritten, for the carrying on of war, both on land and at sea. 1
THE WRITTEN RULES. 2. Conventions and treaties. During the past 50 years many of these rules have been reduced to writing by means of conventions or treaties entered into by the principal civilized nations of the world after full discussion at The Hague, Geneva, Brussels, and St. Petersburg.
3. Those relating to war on land. The rules contained herein relate to war on land, and the principal written agreements relating to the conduct of war on land are the following, viz:;' 1 For full text of these conventions, see appendices.
(a) The Declaration of St. Petersburg of the 11th of Decem: ber, 1868, forbidding in tine of war the use of explosive projectiles under 400 grams weight.?
* This has never been ratified by the United States, but see paragraph "e,': Article XXIII, convention IV, Hague Rules, 1907, Infra, par. 184.
(b) The Declaration of The Hague of the 29th of July, 1899, forbidding the employment of projectiles" which have for their only object the diffusion of asphyxiating or deleterious gases.
(c) The Declaration of The Hague of the 29th of July, 1899, preventing the employment of bullets which expand or flatten in the human body.*
" (d) The Geneva convention of the 6th of July, 1906, for the "Amélioration of the condition of the sick and wounded of armies in the field.” 3 vention or 1906 but who are signatories of the Geneva convention of
the con1864 for "The amelioration of the condition of the wounded and sick of armies in the field " are bound by the provisions of this latter.
(e) Convention No. III of The Hague of the 18th of October, 1907, with regard to the opening of hostilities.
(f) Convention No. IV of The Hague of the 18th of October, 1907, concerning the laws and customs of war on land.
4 The Hague convention of 1899 “ Concerning the laws and customs of war on land” are still binding on those signatory States who have not acceded to or ratified the convention of 1907.
(g) Convention No. V of The Hague of the 18th of October, 1907, concerning the rights and duties of neutral powers and persons in war, on land.
5 Vide Ch. XI and Appendix 3.
(h) A portion of the Convention No. IX of The Hague of the 18th of October, 1907, concerning the bombardment by naval forces in time of war. -6 Vide infra, Ch. yi, Sec. IV, pars. 212, note 1, and 227.,
(i) Convention No. VIII of The Hague of the 18th of October, 1907, relative to the laying of submarine mines.'
? Vide infra, Ch. XII, p. 147..
(j) A portion of Convention No. XI of The Hague of the 18th of October, 1907, relative to the right of capture in naval warfare.
Vide infra, Appendix .6, p. 177.
(k) The declaration of The Hague of the 18th of October, 1907, prohibiting the discharge of projectiles and explosives from balloons.
s Vide infra, Ch. Vi, Sec. I, pars. 174-175, p. 56.
4. The foregoing do not constitute a complete code as appears from the preamble of Convention IV of October 18, 1907 :
According to the views of the high contracting parties, these! provisions, the preparation of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.
It has not, however, þeen found possible at present to prepare regulations covering all the circumstances which may arise in practice,
On the other hand, the high contracting parties clearly do not intend that unforeseen
cases should, in the absence of written undertaking, be left to the arbitrary judgment of military commanders.
Until a more complete code of the laws of war has been formulated, the high" contracting parties “deem it expedient to declare that, in cases not covered by the regulations adopted by
them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.
5. Publication of rules.-H. IV, Art. 1. The contracting powers shall issue instructions to their armed land forces which shall be in conformity with the regulations respecting the laws and customs of war on land, annexed to the present convention.'
1 Vide Bulletin No. 6; W. D., Feb. 19, 1913, and appendices.
6. To whom applicable.-H. IV, Art. II. The provisions contained in the regulations referred to in article 1, as well as in the present convention, do not apply except between contracting powers, and then only if all the belligents are parties to the convention.
7. Nature and binding force. These declarations and conventions, freely signed and ratified by a very great number of the civilized powers of the world, constitute true rules of international law that are binding upon those who are parties thereto in a war in which all belligerents engaged are parties. In case one power, who is a party to the war, has not agreed to these conventions, or having been a party has denounced the same, or has made reservations as to one or more articles, then and in that case the other parties belligerent will not be bound by the convention or by the reserved articles."
1" The observance by the French Army of tne rules announced is implicitly subordinated to the condition of reciprocity on the part of the opposing belligerent, for if France imposes certain limitations upon her means of action against future enemies, it is naturally upon the condition that they impose upon themselves the same restrictions." (Les Lois de La Guerre Continentale, by Lieut. Jacomet, p. 26.)
THE UNWRITTEN RULES.. 8. Usage. In addition to the written rules there exist certain other well-recognized usages and customs that have developed into, and have become recognized as, rules of warfare. These usages and customs are still in process of development.
9. How developed.---The development of the laws and usages of war is determined by three principles. First, that.a belligerent is justified in applying any amount and any kind of force which is necessary for the purpose of the war; that is, the complete submission of the enemy at the earliest possible moment with the least expenditure of men and money. Second, the principle of humanity, which says that all such kinds and degrees of violence as are not necessary for the purpose of war are not permitted to a belligerent. Third, the principle of chivalry, which demands a certain amount of fairness in 'offense and defense and a certain mutual respect between opposing forces."
1 Land Warfare, Opp., C. I., par. 3.
10. The object of war.-The object of war is to bring about the complete submission of the enemy as soon as possible by means of regulated violence."
1 G. 0. 100, 1863, 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, and suffer, advance and retrograde together, in peace and in war,
Von Moltke said: The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable, with that view, to employ all methods save those which are absolutely objectionable. I can by no means profess agreement with the Declaration of St. Petersburg, when it asserts that the weakening of the military forces of the enemy is the only lawful procedure in war. No; you must attack all the resources of the enemy's government-its finances, its railways, its stores, and even its prestige.". Letter to Professor Bluntschli, Dec, 11, 1880, cited Holland, War on Land, p. 12.
11. Military necessity.-Military necessity: justifies a resort to all the measures which are indispensable for securing this object and which are not forbidden by the modern laws and customs of war.
12. What military necessity admits of.--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 war; it allows of the capturing of every armed enemy, and of 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 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 the enemy's country affords that is 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." 1 G. 0. 100, 1863, art. 15.
What necessity does not admit of cruelty that is, 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
1919 to peace unnecessarily difficult."
1 G. 0. 100, 1863, art. 16.
14. Martial law.-Martial law is simply military authority exercised in accordance with the laws and usages of war."
1G. O. 100, 1863, art. 4. . Till 10 OLIDO!! sanft ghi
In the case of ex parte Milligan (4. Wall., 2), Chief Justice Chase, in a dissenting opinion, which did not affect the merits of the case under consideration, drew a distinction in military jurisdiction as follows: jurisdiction
There are under the Constitution three kinds of military United States," optime time foreign eben without the boundaries other the
States districts occupied by rebels treated as belligerents; and, third, to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger remilitary law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the
military commander under the direction of the President, with the express or implied sanction of Congress, while the third may gress, or temporarily, when the action of Congress can not be invited, and in the case of justifying or excusing peril, by the President, in tricts of localities where ordinary law no longer adequaterythsecules public safety and private rights." This distinction has never since been sustained by the Supreme Court, although military writers have made
to designate the jurisdiction exercised over enemy territory by to include that of a foreign state and also that part of the belligerent state that has been accorded recognition of belligerency, and martial law” to designate the jurisdiction exercised by the military power over parts of the dominant state that is in rebellion or insurrection without being recognized as belligerents, or, in a word, treating “ martial law " as a domestic fact. (Vide Military government and Martial law, Birkhimer, p. 21, 2d ed.) (Tranh pisto given in Great Britain, where the same distinction is made between "military law," * martial law," and "martial law in the home territory." (Vide Law of War on Land, Holland. pp. 14-17; vide also Jour. Mil, Ser. Inst., Vol. Xy, article by Carbaugh.) 4 10 2819 T 2010
15. Extends to property and persons.--Martial law extends to property and to all persons in the occupied territory, whether they are subjects of the enemy or aliens to that government.
16. O. 100, 1863, art. 7. Vide also infra Chaps. 'VIII and IX.
16. Military jurisdiction.—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 con