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ferred by statute on courts-martial, are tried by military commissions,
1 Vide Justification of Martial Law, by G. Norman Lieber, p. 3, who says:
Military jurisdiction is of four kinds, viz :
"1. Military law, which is the legal system that regulates the government of the military establishment. Military law is a branch of municipal law, and in the United States derives its existence from special constitutional grants.
"2. The law of hostile occupation, or military government, as it is sometimes called ; that is, military power exercised by a belligerent over the inhabitants and property of an enemy's territory, occupied by him. This belongs to the aw of war, and, therefore, to the law of nations.
3, Martial law applied to the army; that is, military power extended in time of war, insurrection, or rebellion over persons in the military service, as to obligations arising out of such emergency, and not falling within the domain of military law, nor otherwise regulated by law. It is an application of the doctrine of necessity, founded on the right of national self-preservation,
** 4. Martial law at home, or as a domestic fact; by which is meant military, power exercised in time of war, insurrection, or rebellion, in parts of the country retaining allegiance, and over persons and things not ordinarily subjected to it.”
17. In cases of individual offenders.-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 commander of the occupying forces.' 16. 0. 100, 1863, art. 12.
18. Cruelty, bad faith, extortion, revenge, etc., prohibited.The law of war not only disclaims all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of treaty obligations entered into by belligerents in time of peace and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortion 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.'
1G. O, 100, 1863, art. 11.
THE COMMENCEMENT OF HOSTILITIES,
19. Declaration of war required.-H. Con. III, Art. i. The contracting parties recognize that hostilities between themselves must not commence without previous and explicit warning in the form either of a reasoned declaration of war or of an ultimatum accompanied by a conditional declaration of war,
1 The framers of the Hague Rules were agreed to one rule, namely, that "an attack which nothing foreshadowed would be infamous." Å gross violation of international law would be committed by the commencement of hostilities in time of peace without a previous controversy and negotiations with a view to a peaceful settlement. (Vide Hague Peace Conferences, Higgins, p. 203.)
20. Surprise 'still possible.—Nothing in the foregoing rule requires that any time shall elapse between the actual declaration of war and the commencement of hostilities. It is still possible, therefore, to make a sudden and unexpected 'declaration of war and thus surprise an unprépared enemy."
* 1 The French proposal to The Hague' Peace Conference of 1907, based substantially on resolutions of the Inst. Int. Law at Ghent in September, 1906, consisted of three articles. The first two were embodied substantially as in the text above, while the third, “Hostilities
should not begin till after the expiry of a delay sufficient to insure that the rule of previous and unequivocal notice, may not be considered as evaded," was rejected.
21. Notification to neutrals.-H. Con. III, Art. II. The existence of a state of war must be notified to the neutral powers without delay, but shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.. Neutral powers, nevertheless, can not rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war,
1 See Chap. XI on " The rights and duties of neutral powers," infra, p. 135, par. 389.
22., It is binding between parties.-H. Con. III, Art. III. Article I of the present convention shall take effect in case of war between two or more of the contracting powers. ; Article II is binding as between a belligerent power which is a party to the convention and neutral powers which are also parties to the convention.
2 Act July 6, 11 betweentat., 577; R. visions. (Lockino Lee Smith, Pet. c. C., 466.)
23. Importance, both legal and commercial. This convention is important from both the legal and commercial point of view since it requires belligerents themselves to publicly announce a definite date for the commencement of hostilities, from which date they become entitled to exercise the rights of belligerency, and are themselves required to comply with and to exact from neutrals the obligations of neutrality.
TREATMENT OF RESIDENT ENEMY SUBJECTS. 24. Legal status.—" Public war is a state of armed hostility between sovereign nations or governments." So that the first effect of war between two states is to cause every subject of the one to become an enemy of every subject of the other, since it is impossible to sever the subjects from their state.?
1 G. 0. 100, 1863, art. 20.
2 G. 0. 100, 1863, 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." foregoing is both the American and English view. (Vide Land Warfare, Opp., p. 15.).
25. Right of control.-Every belligerent state possesses the inherent right to take such steps as it may deem necessary for dangerous to its safety. In strict law enemy, subjects located or resident in hostile territory may be detained, interned in designated localities, or expelled from the country: .
Various measures have been their territory. Such persons may, says Rivier, be detained, especially those subject to military service; or they may be interned in determinate, places, or yet may be expelled, a brief delay being allowed them to settle up their affairs. But such measures, although justified by the right of self-preservation, are less and less practiced, and are often criticized as not being in harmony with the spirit of modern war.
* Whenever there is a
and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States, by proclamation of the event, all natives,
citizens, denizens, or subjects of the hostile nation or government, who are 14 years old and upward, and who are not actually naturalized, may be liable for reconduct to be observed, on part of the United States toward aliens who are liable to removal, the manner and degree of restraint to which they may be subjected, and the security upon which their residence may be permitted." Sec. 4069 : The courts of the United States having criminal jurisdiction are authorized to enforce such proclamations,
not call in the judiciary to enforce these protive officers are to deal with its alien enemies." (C. & O. R. R, V.U. S. 20, C, Cls., 49.), ble 978 dainW ET FOU TBTTeu hus formavi03
26. Modern practice as to status.-It is now universally recognized that hostilities are restricted to the armed forces of bel
the control of all
persons whose conduct or presence appears
adopted by "governmenere, sec, 1116.
ligerents, and that the unarmed citizens who refrain from acts of hostility and pursue their ordinary avocations must be distinguished from the armed forces of the belligerent, must be treated leniently, must not be injured in their lives or liberty, except' for cause or after due trial, and must not, as a rule, be deprived of their private property.
[org bus| 16. 0. 100, 1863, 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 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 war will admit," As to what is meant by armed
09189 127. Practice as to detention and internment.
Enemy subjects tilities. Persons known to be active or reserve officers, or reservists, of the hostile army, as well as persons suspected of communicating with the enemy, will
be detained and, it deemed advisable, interned on the ground of self-preservation, in the exercise of the right of control.S
1 Napoleon based his action in making prisoners of war of all British subjects between 18 and 60 years of age in 1803 (the last case of the kind) on the ground of retaliation or reprisal.
2 Hague Convention, 1907, Actes, Vol. III, p. 109, discussed the following proposition : "Subjects of a belligerent residing in the territory of the adverse party will not be placed in confinement unless the exigencies of war render it necessary." It was suggested that the words "nor expelled,". be inserted after the word "confined," but no action was taken. (Vide also pp. 9, 10, and 110.)
Vide notes 1 and 2, par. 25, supra; also Land Warfare, Opp., pp. 15-16.
28. Practice as to expulsion.-In modern practice the expulsion of the citizens or subjects of the enemy is generally de creed from seaports, fortresses, defended areas, and the actual or contemplated theaters of operation. From other territory the practice is not uniform, expulsion being resorted to usually for grave reasons of state only. When decreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable them to arrange for the collection, disposal, and removal of their goods and property.®
1 During the Crimean War British subjects were expelled from the Russian seaports of Cronstadt, Odessa, and Sevastopol.
Japanese subjects were expelled from Siberia, Vladivostok, and Port Arthur in 1904. (Ariga, pp. 363-4.)
In 1905 the Japanese expelled all foreigners from Port Arthur, except about 20, as soon as the defenses were completed.
In 1870 every German in Paris and Department of The Seine was ordered to leave.
? In the Crimean War Russian subjects were allowed to reside without molestation in Great Britain and France.
In 1870 Frenchmen were permitted to remain in Germany. On the contrary, German citizens were at first permitted to remain in France,
S RO .r safety RULES OF LAND WARFARE, In 1877 Turkish subjects in Russia were permitted to remain and continue their business, subject t In the Spanish-American War
both belligerents were permitted to remain or withdraw. m
In the Russo-Japanese War Russian subjects were authorized to remain in Japan and were assured of the protection of their lives, honor, other measures taken by military or naval authorities for military purposes, and limitations were placed as to change of domicile
or journeys Japanese subjects were allowed to continue, under the protection of the Russian laws, their sojourn and the exercise of peaceful occupations in the Russian Empire, except in territories which are under the control of the Imperial viceroy in the Far East.
In 1879 Chileans were expelled from Bolivia and their goods confiscated.
18 U.S. R. Stat., sec. 4068: "When an allen who becomes liable to removal as an enemy is not chargeable with actual hostility or other crimes against public safety, he must be allowed for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which may be stipulated in any treaty; and where no such treaty exists the President may fix such reasonable time as may be consistent with public safety and according to the dictates of humanity and national hospitality."