unauthorized or secret communications to the enemy.

These

latter cases must therefore be dealt with under the laws relating to treason and espionage.*

1 G. O. 100, 1863, art. 102: "The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes concerning the spy, the war traitor, or the war rebel."

2 In occupied territory offenses relating to communication with the enemy will be punished as treason by the occupying forces. If committed in the home country, the laws relating to that subject or internal laws will govern. Land Warfare, Opp., par. 167 and note.

202. Treason. All unauthorized or secret communication with the enemy is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts or with the inhabitants of the hostile country so far as military authority permits, but no further.'

203. War traitor.-A traitor under the law, or a war traitor, is a person in a place or district under martial law (military government), who, unauthorized by the military commander, gives information of any kind to the enemy or holds intercourse with him.1

1 G. O. 100, 1863, art. 90.

204. Subject giving information to own government.—If the citizen or subject of a country or place invaded or conquered gives information to his own Government, from which he is separated by the hostile army, or to the army of his Government, he is a war traitor.1

G. O. 100, 1863, art. 92.

205. Guide as.-If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war traitor.1

1 G. O. 100, 1863, art. 95.

206. Punishment of spies.-The spy is punishable with death, whether or not he succeed in obtaining the information or in conveying it to the enemy.1

1 G. O. 100, 1863, art. 88, par. 2. See also Rev. Stat. U. S., 1343: "All persons who, in times of war or rebellion against the supreme authority of the United States, shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial or by a military commission, and shall on conviction thereof suffer death."

207. Punishment of treason. The war traitor is always severely punished. If his offense consists in betraying to the

enemy anything concerning the condition, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death."

1 G. O. 100, 1863, art. 91.

208. Spy must be tried.-H. R. XXX: A spy taken in the act should not be punished without previous trial.1

1 No one else should be punished for this offense of espionage or treason without previous trial. (Vide Hague Conference, 1899, p. 146.)

209. Spy immune from punishment after joining his own army.-H. R. XXXI: A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.'

1 This immunity extends only to previous acts of espionage, but does not extend to other offenses he may have committed, such as murder, etc. Hague Conference, 1899, p. 146.

210. Immunity not applicable to treason. This immunity does not extend to persons guilty of treason who may be arrested at any place or any time within the jurisdiction, And it is not necessary for traitors to be caught in the act in order that they may be punished.1

1 For practice of the Japanese Army, which is in accord with the text, see Ariga, pp. 395-397.

211. Assisting espionage punishable.--Assisting or favoring espionage or treason and knowingly concealing a spy may be made the subject of charges; and such acts are by the customary laws of war equally punishable.'

1 Ariga, pp 396-397, and Land Warfare, Opp., par. 172.

42225-14- -5

CHAPTER VI, SECTION II.

STRATAGEMS.

189. H. R. XXIV. Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.

190. Good faith.-Absolute good faith with the enemy must be observed as a rule of conduct. Without it war will degenerate into excesses and violences, ending only in the total destruction of one or both of the belligerents.1

1 G. O. 100, 1863, art 16. "It (military necessity) admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes return to peace unnecessarily difficult." Land Warfare, Opp., par. 140, 141: "Should it be found impossible to count on the loyalty of the adversary, there is grave danger of war degenerating into excesses and violence, to avoid which has been the aim of modern wars."

191. In general, belligerents may resort to such measures for mystifying or misleading the enemy, which the enemy ought to take measures to secure himself against, such as the employment of spies, inducing soldiers to desert, to surrender, to rebel, or to give false information to the enemy.

192. Must not involve treachery or perfidy.-The ruses of war are, however, legitimate so long as they do not involve treachery or perfidy on the part of the belligerent resorting to them. They are forbidden if they contravene any generally accepted rule.1

1" To demand a suspension of arms and break it by surprise, or to violate a safe conduct or any other agreement in order to gain an advantage is an act of perfidy.' (Land Warfare, Opp., par. 148.) Vide par. 232 infra.

!,

The line of demarcation, however, between legitimate ruses and forbidden acts of treachery and perfidy is sometimes rather indistinct, and with regard to same, the writers of authority have disagreed. For example: It would be an improper practice to secure an advantage of the enemy by deliberate lying which involves a breach of faith, or when there is a moral obligation to speak the truth, such as declaring that an armistice had been agreed upon when such was not the case. On the other hand, it is a perfectly proper ruse to summon a force to surrender on the ground that it is surrounded, and thereby induce such surrender with a small force.2

2 H. R. XXIII, par. (b). Ante par. 178, G. O. 100, 1863, art. 101: "While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them."

Vide also Hague Conference, 1899, p. 146.

193. Legitimate ruses."Among legitimate ruses may be counted surprises; ambushes; feigning attacks, retreats, or flights; simulating quiet and inactivity; giving large outposts or a strong advanced guard to a small force; constructing works, bridges, etc., which it is not intended to use; transmitting false or misleading signals and telegraph messages, and sending false dispatches and newspapers, with a view to their being intercepted by the enemy; lighting camp fires where there are no troops; making use of the enemy's signals, bugle and trumpet calls, watchwords, and words of command; pretending to communicate with troops or reenforcements which have no existence; moving landmarks; putting up dummy guns or laying dummy mines; removing badges from uniforms; clothing the men of a single unit in the uniform of several different units so that prisoners and dead may give the idea of a large force."' 1 Land Warfare, Opp., par. 144,

*

1

to

194. Use of flags, insignia, military uniforms of the enemy.H. R. XXIII, par. (f). It is especially forbidden make improper use of a flag of truce, of the national flag, or of the military insignia and uniform of the enemy, as well as of the distinctive badges of the Geneva Convention.

195. Flags of truce.-Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reenforcements or to feign a surrender in order to surprise an enemy. An officer receiving them is not on this account absolved from the duty of exercising proper precautions with regard to them.1

1 Ariga, p. 255 et seq., cites an example of the use of the flag of truce combined with the Red Cross flag at Tang-tsiatoun, near Mukden, and during the battle, which he considers as legitimate. March 7, about 1 o'clock p. m., some Russians hoisted the two flags and advanced toward the Japanese First Army and asked for a suspension of arms for several hours to remove the wounded and dead. Both armies were actually engaged in this work, so that the request was assented to without any defined agreement. When the Japanese resumed fire in the evening the Russians had withdrawn.

This informal suspension of arms was taken advantage of to retire unseen by the enemy, and it was upon this ground that it is considered lawful; that is, they can be taken advantage of to effect movements unseen by the enemy.

Vide, G. O. 100, 1863, art. 114. "If it be discovered and fairly proved that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.

"So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy."

196. National flags, insignia, and uniforms as a ruse.-In practice it has been authorized to make use of these as a ruse. The foregoing rule does not prohibit such use, but does prohibit their improper use. It is certainly forbidden to make use

of them during a combat. Before opening fire upon the enemy they must be discarded. Whether the enemy flag can be displayed and his uniform worn to effect an advance or to withdraw is not settled.1

1 The Germans hold that The Hague Rules forbid absolutely the use of the enemy's flag and uniforms. (Kriegsbrauch, p. 24.) The French manual (La Guerre Sur Terre) says: In all the wars since 1866 belligerents have made many complaints upon this subject (p. 25, note). The English rule is as stated in the text. (Land Warfare, Opp., par. 152.)

G. O. 100, 1863, art. 65. "The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle is an act of perfidy, by which they lose all claim to protection of the laws of war.

G. O. 100, 1863, art. 63. "Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter."

197. Practice as to enemy uniform in this country. In this country it has always been authorized to utilize uniforms captured from the enemy, provided some striking mark or sign is attached to distinguish the American soldier from the enemy. All distinctive badges or marks of the enemy should be removed before making use of them. It is believed that such uniforms should not be used except in case of absolute necessity.

1.

1 G. O. 100, 1863, art. 64. “If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy."

198. Improper use of distinctive badges of Geneva Convention.-The Red Cross flag must be limited to the protection of units and material provided for in the Geneva Convention. As examples of the improper use may be cited covering wagons containing ammunition or nonmedical stores, a hospital train used to facilitate the escape of combatants, firing from a tent or building flying the Red Cross flag, using a hospital or other building accorded such protection as an observatory or military office or store, or generally for committing acts of hosiltity.1.

1G. O. 100, 1863, art. 117. "It is justly considered an act of bad faith, of infamy, or fiendishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause for refusing to respect such flags."