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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."
16. 0. 100, 1863, art 16. "It (military necessity) admits of decep. tion, 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 contravené any generally accepted rule,
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 rusés 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 II. R. XXIII, par. (6). 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 1' Land Warfare, Opp., par. 144,
194. Use of flags, insignia, military uniforms of the enemy.H. R. XXIII, par. (f). It is especially forbidden
to 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."
so 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 adxamce do toward the Japanese First Army ande asked fond suspension of 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 taken ad
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 un
Vide, G. 0. 100, 1863, art. 114. “If it be discovered and fairly proved that a flag of truce has been abused for surreptitiously obtaining milltary 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, amd 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.
in 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 perfidý, by which they lose all claim to protection of the laws of war.
G. 0. 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 nó 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.?!:
1G, 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 G. 0. 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 sucb flags."
or endeavors to obtain information in the zone of operez.obtains
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ha P. Dus, (k * CHAPTER VI, SECTION III.
ESPIONAGE AND TREASON. *** 199. Spies.-H, R. XXIX. A person can only be considered a spy when, acting clandestinely or on false pretenses, he
of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a 'disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spiesă, similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of dispatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches, and, generally, of maintaining, communications between different parts of an army or a territory."
1 Compare this definition with G. 0. 100, 1863, art. 88. "A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy.",
The fact of being in the enemy's lines dressed as a civilian, or wearing the enemy's uniform, is presumed to constitute a spy, but it is possible to rebut this presumption by proof of no intention to obtain with being a spy is in the uniform
sinbisk Statey have gainean admismilitary, information. On the other hand, the fact that a person charged sion into the enemy's lines under the privileges of the Red Cross and have taken advantage of the opportunity afforded him for obtaining information
the, use loons for espionage and the
so using them
'treated as spies. Dissimulation of the object sought is the principal character istic of the offense of the spy: Vide Land Warfare, Opp., pars. 162-165. War Rights on Land, Spaight, pp. 203-215. War on" Land, Holland, pp. 47–48. Les Lois, Jacomet, PP, 65–66,
I'l. : 200. Recognition of necessity for obtaining information.--In the foregoing rule and in H. R. XXIV. is distinct recognition of the necessity for employing, spies and other secret agents for obtaining information about the enemy, so that the acquirement of such information by secret methods is 'regulated by the laws and usages of war.
201. Who included in definition. The definition above comprehends all classes whether officer, soldier', 'or civilian, and, like the criminal law, makes no distinetion as to sex. As to the offense, it limits the same to securing information clandestinely or on false pretences in the zone of operations. It does not include all cases in which a person makes or endeavors to make
CHAPTER VI, SECTION IV. BOMBARDMENTS, ASSAULTS, AND SIEGES. 212. Bombardment of undefended places forbidden.-H. R. XXV: The attack or bombardment by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
1 Compare this article with the following from "Convention IX of The Hague, 1907, Bombardment by naval forces in time of war :
"Art. 1. The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.
"A place can not be bombarded solely because automatic submarine contact mines are anchored off the harbor.
"ART. II. Military works, military or naval establishments, depots of arms or war matériel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed..
"He incurs no responsibility for any unavoidable damage which may be cansed by a bombardment under, such circumstances,
"If for military reasons immediate action is necessary; and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended' town holds good, as in the case given in paragraph 1, and that the commander shall take all due measures in order that the town may suffer as little harm as possible.
"ART. III. After due notice has been given, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced, if the local authorities, after a formal summons has been made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force before the place in question
“ These requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in cash; if not, they shall be evidenced by receipts.
"ART. IV.' The bombardment of undefended ports, towns, villages, dwellings, or buildings for the nonpayment of money contributions is forbidden."
Holland, War on Land, says: "A place, although not fortified, may be bombarded if it is defended. This article is not to be taken to prohibit the use of any means for the destruction of buildings for military reasons. A place must not be bombarded with a view merely
to the exaction from it of a ransom. (Art. 80, note.) Mr. Oppenheim, Land Warfare, art, 118, says: “It is not sufficient reason for bombard ment that a town contains supplies of value to the enemy, or railway establishments, telegraphs, or bridges. They if it is necessary to do so, be destroyed by other means.