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.

1

1 G. O. 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 to a hostile country and the hostile country itself, with its men in 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 of war will admit." As to what is meant by armed forces," see infra, Ch. III, pp. 21–24.

2

1

27. Practice as to detention and internment.-Enemy subjects are not made prisoners en masse on the breaking out of hostilities. 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, if deemed advisable, interned on the ground of self-preservation, in the exercise of the right of control.

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.)

8 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 decreed from seaports, fortresses, defended areas, and the actual or contemplated theaters of operation.1 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.

2 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,

but afterwards were required to leave, on the ground of personal safety' and public defense.

In 1877 Turkish subjects in Russia were permitted to remain and continue their business, subject to the laws,

In the Spanish-American War the subjects of both belligerents were permitted to remain or withdraw.

In the Russo-Japanese War Russian subjects were authorized to remain in Japan and were assured of the protection of their lives, honor, and property, although a reservation was made as to surveillance or other measures taken by military or naval authorities for military purposes, and limitations were placed as to change of domicile or journeys case the Government saw fit. (Ariga, p. 43.)

1

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.

U. S. R. Stat., sec. 4068: "When an alien 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."

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

66

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

1

1

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 condition is satisfied if commanded by a regularly or temporarily commissioned officer, or by a person of position and 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 a 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.1 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 note unless they can be easily distinguished by the naked eye of ordinary people, or unless they fulfill the conditions required of the militia and volunteer corps by The Hague rule.'

"As encounters now take place at long ranges, at which it is impossible 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 sufficient, because the blouse was the native 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 Saghalien.

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

1 Note that the first two requirements for militia and volunteer corps are not required, i. e., no responsible commander and no distinctive sign is required. The American rule, from which the above was taken, is contained in G. O. 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 duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war." The new rule actually duly authorizes' the levy, and omits including specifically or of the whole country," making use of the words "the inhabitants of a territory.'

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

1 G. O. 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.1

1 G. O. 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.1

1 G. O. 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

1 Land Warfare, Opp., par. 37.