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CHAPTER III. THE ARMED FORCES OF BELLIGERENTS. 29. General division of enemy population. The enemy population is divided in war into two general classes, known as the armed forces and the peaceful population. Both classes have distinct rights, duties, and disabilities, and no person can belong to both classes at one and the same time."
1 Vide H. Con. V, Art. XVII (b), “ Rights and duties of neutral powers and persons in war on land," Ch, XI.
30. Who are lawful belligerents.-H. R. Art. I. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and usages of war. In countries where militia or volunteer corps. constitute the army, or form part of it, they are included under the denomination army.”,
31. The army.-The members of the army as above 'defined are entitled to recognition as belligerent forces whether they have joined voluntarily, or have been compelled to do so by state law, and whether they joined before or after war is declared, and whether they are nationals of the enemy or of a neutral state."
1 Two classes..of militia and volunteer corps are referred to the one which forms part of or the entire army and includes territorial forces; the other which must fulfill the four conditions mentioned. 32. The first condition for militia and volunteer corps. This
is satisfied if by a regularly or authority, or if the officers, noncommissioned officers, and men are furnished with certificates or badges, granted by the government of the state, that will distinguish them from persons acting on their own responsibility."
1 The German rule in 1870 that " every, prisoner of war must prove his status as a French soldier by the production of an order issued by à competent authority and addressed to himself showing that he has been summoned to the colors and is borne on the rolls of a military unit raised by the French, Government," and their apparent refusal to recognize individual irregulars and small bands unless they can prove that they have state authorization, is not now legal under The Hague Rules.
33. The distinctive sign. This requirement will be satisfied by the wearing of a uniform, or even less than a complete uniform. The distance that the sign must be visible is left vague and undetermined and the practice is not uniform. This requirement will be satisfied certainly 'if this sign is "easily distinguishable by the naked eye of ordinary people” at a distance at which the form of an individual can be determined." Every nation making use of these troops should adopt, before hostilities commence, either a uniform or a distinctive sign which will fulfill the required conditions and give notice of the same to the enemy, although this' notification is not required."
1 Ariga, pp. 85–86. The Japanese Goverment will not consider as belligerents the free corps of the national army referred to in the Russian pote unless they can be easily distinguished by the naked eye of ordinary people, or unless they fulill the conditions required of the militia and volunteer corps by The Hague rule."!!
"As encounters now take place at long ranges, at whieh it is im, possible to distinguish the color or the cut of the clothing, it would seem advisable to provide irregulars with a helmet, slouch hat, or forage cap, as being completely different in outline from the ordinary civilian dress. It may be objected, however, that a headdress does not legally fulfill the condition that the sign must be fixed. Something of the nature of a badge sewn on the clothing should therefore be worn in addition." (Land Warfare Opp., pp. 19-20.)."
, In 1870 the French mobile national guard and Franc tireurs wore blue or gray blouses with a red arm band. The former wore, in addition, a forage cap (kepis). The Germans refused to recognize this as suficient, because the blouse was the pative costume and the red band could be seen at so short a distance, besides being readily removed, so that it was impossible to distinguish these troops from the ordinary citizen.
Ariga, p. 82. At Ping-yang Japanese civilians wore a white helmet and European clothes, with a flower embroidered in red thread on their coats.
2 Ariga, 'pp. 85–87. The 'Russians at Saghalien wore no uniform, but had a cross with the letters M. P. (Manchurian Regiment) on their caps, on their sleeves a red band about two-thirds of an inch broad, with a red edging on their overcoats. Some of these troops were executed for violation of the laws of war. The author gives the impression that this was because they did not wear the distinctive marks, not having been issued, or, if issued, were thrown away.
The Russians notified the Japanese of the uniform adopted for the irregular troops in Saghallen.
34. Carrying arms openly.---This condition is imposed to prevent making use of arms for active opposition and afterwards discarding or concealing them on the approach of the enemy, and will not be satisfied by carrying concealed weapons, such as pistols, daggers, sword sticks, etc.
35. Compliance with the laws of war.-When such troops are utilized they must be instructed in and be required to conform to the laws of war, and especially as to certain essentials, such as the use of treachery, maltreatment of prisoners, the wounded and dead, violations of or improper conduct toward flags of truce, pillage, unnecessary violence, and destruction of property, etc.
36. Levee en massé. -H. R., Art. II. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article I, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.
1 Note that the first two requirements for militia and volunteer corps are not required, 1. e., no responsible commander and no distinctive sign is required. The American rule, from which the above was taken, is contained in G. 0. 100, 1863, art. 51. If the people of that portion of an invaded country 'which is not yet occupied by the enemy, or of the whole country, at the aproach of a hostile army, rise, under a treated as public enemies, and, if captured, are prisoners of war." The new rule actually t'duly authorizes the levy, and omits including specifically or of the whole country,” making use of the words if the
Mr. Oppenheim, in Land Warfare, p. 21, art. 31, says: “The word • territory in this relation is not intended to mean the whole extent of a belligerent state, but refers to any part of it which is not yet invaded.”
37. Can not be treated as brigands, etc.—No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit.
1 G. 0. 100, 1863, art. 52, par. 1.
38. Deserters, etc., do not enjoy immunity.-Certain classes of those forming part of a levee en masse can not claim the privileges accorded in the preceding paragraph. Among these are deserters, subjects of the invading belligerent, and those who are known to have violated the laws and customs of war."
16. 0. 100, 1863, art. 48. “ Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture or being delivered up to the American Army; and if a deserter from the enemy, having taken service in the Army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation.”
39. Uprisings in occupied territory.-If the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection.'
16. 0. 100, 1863, art. 52, par. 2, vide infra, Chps. VIII and X.
40. Duty of officers as to status of troops.—The determination of the status of captured troops is to be left to courts organized for the purpose.
Summary executions are no longer contemplated under the laws of war. The officers' duty is to hold the persons of those captured, and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority.
1 Land Warfare, Opp., par. 37.
41. Colored troops.-The law of nations knows no distinction of color, so that the enrolling of individuals belonging to civilized colored races and the employment of whole regiments of colored troops is duly authorized. The employment of så vage tribes or barba rous races should not be resorted to in wars between civilized nations."
1G. O, 100, 1863, art. 57. “ So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimés or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition when properly organized as soldiers, will not be treated by him as public enemies."
42. Armed forces consist of combatants and noncombatants.H. R., Art. III. The armed forces of the belligerent parties may consist of combatants and noncombatants. In case of capture by the enemy, both have a right to be treated as prisoners of war.
PRISONERS OF WAR. 43. Definition.--A prisoner of war is an individual whom the enemy, upon capture, temporarily deprives of his personal liberty on account of his participation directly or indirectly in the hostilities, and whom the laws of war prescribe shall be treated with certain considerations."
1 Vide G. 0. 100, 1863, art. 49.
44. Treatment. The law of nations allows every sovereign Government to make war upon another sovereign State, and. therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a Government which the captor may consider as a wanton and unjust assailant.' 1G. 0. 100, 1863, art. 67.11
45. Who can claim the status of prisoners of, war.-H. R., Art. III. The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war,
1 As to persons enjoying special exemptions when captured or upon falling into the hands of the enemy, vide infra, Geneva Convention, arts. 6 to 13, infra, secs. 118 et seq. ; as to persons not directly attached to the army, sée infra, secs. 46 et seq. ; as to persons who can not claim the rights of prisoners of war when captured, see sec. 82 and secs. 367 et seq. .
46. Individuals who follow an army without belonging to it. H. R., Art. XIII. Individuals who follow an army without directly belonging to it, such as newspaper correspondents, and reporters, sutlers, and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are en. titled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they accompanied."
1 F. S. R. 1914, Art, VIII, pars. 426–431, pp. 168-9, Ariga, pp: 123-124. Certain newspaper correspondents, subjects of the United States, attached to the Russian Army, also a medical officer missionary captured by the Japanese at Lio Yang, were sent under guard to Japan.
For forms of certificate, vide appendices A and B, this chapter,
47. What civilians made prisoners of war. In addition to the armed forces, both combatant and noncombatant, and civilians authorized to accompany armies, the following may be made prisoners of war:
(a) The sovereign and members of the royal family, the President or head of a republican State, and the ministers who direct the policy of a State." . 16. 0. 100, 1863, art. 50, par. 2.