J. M. (James Molony) Spaight.

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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



c/



InauU.



WAR RIGHTS ON LAND



MACMILLAN AND CO., Limited

LONDON . BOMBAY . CALCUTTA
MELBOURNE

THE MACMILLAN COMPANY

NEW YORK . BOSTON . CHICAGO
ATLANTA . SAN FRANCISCO

THE MACMILLAN CO. OF CANADA, Ltd
TORONTO



WAR RIGHTS ON

LAND



P.V

J. M. SPAIGHT, LL.D.,

and double Senior Moaerator, Dublin University {Trinity).



WITH A PREFACE BV

FRANCIS D. ACLAND



MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON

1911



T

nil



Richard Clay & Sons, Limited,

Bnr.AD STREET HILL, E.C., AND
BUNOAY, SUFFOLK.






TO MY WIFE



Pretoria,

May, 1910.



PREFACE

Mr. Spaight, with whom I have had the pleasure of working
in the Civil Service, and in the Civil Ser^dce Volunteer Rifles,
has written to me from South Africa asking me to write a
preface to his book. Friendship bids me consent, though I am
more than doubtful whether my preface can do his book any
good. For his sake I might be tempted to say that a great
European Power is planning to invade our shores, that a
successful landing in great force can be made in this country
at any moment, that it is more than doubtful whether with our
present military organisation we can successfully resist any
such invasion, and, therefore, that it is every citizen's bounden
duty to make himself acquainted with the existing code of war
law on land, seeing that at no distant date he will probably be
subjected to it. I do not, however, believe any of these things,
and therefore I cannot use this special argument in com-
mending Mr. Spaight's work. But his book, I believe, more
than justifies itself apart from the possibility of the invasion of
these islands. Until civilised societies have ceased to settle
■differences between nations by the barbarous appeal to force,
war is a possibility, and it is the duty of citizens of a world-
wide Empire to know its rules in order that they may observe
them, whether they have to act as attackers, attacked or
neutrals. There are also certain particular reasons which make
a strict observance of these rules for the future a matter of
great importance. Great Britain undertook at the Hague, in
1907, to issue instructions to her troops on the subject of war
law, and to pay an indemnity for any breaches of war law
committed by them. Thus, if in the future our troops do not
know and observe the laws of war (and on some occasions, as



viii PREFACE

Mr. Spaight shows, we did not know and observe them during
the war in South Africa), their fault will appear in War Office
Estimates, and will be felt in the taxpayers' pockets. This
country also bound herself at Geneva, in 1906, to bring the
rules of the Geneva convention to the notice of the population
at large, and the population at large may just as well study
them in this book as in whatever way they have been, or may
be officially promulgated. And. assuming for the sake of
argument the possibility of invasion, if not here soon at any
rate somewhere sometime, it will be found that a knowledge of
the laws of war is most intimately connected with the status of
the citizen who takes up arms in the face of invasion to defend
his country. According to the Hague Re(jle7)%ent the only
conditions which such a man must fulfil in order to be regarded
as a belligerent, with all the rights which this entails, are to
carry arms openly and to respect the laws and customs of war.
If he does not know them he cannot respect them, and it is no
defence in the case of war law any more than any other law, to
plead ignorance as an excuse. If he does not know and obey
the laws of war he is liable to be treated as were the inhabitants
of Bazeilles by the Bavarians in 1870, and the Russians of
Saghalien by the Japanese in 1904— and in both cases the
treatment was most unpleasant.

But quite apart from any special reasons for knowing the
laws of war I venture to recommend their study to the ordinary
reader as being most interesting, and indeed fascinating. This
book makes one at once conscious of the depths of one's own
ignorance, and grateful for the chance of putting accurate
knowledge in its place. Let the reader put to himself a few
elementary questions on war law, and if he cannot answer them
he will know that he has much to learn from this book. For
instance, Should a declaration of war be made before hostilities
begin ? What rights has a country against the persons or
property of resident citizens of a hostile country on the out-
break of war, who are, and who are not, liable to serve in the
hostile army ? Does a volunteer enjoy the rights of a
belligerent if he acts as part of an armed force, and if he acts
alone ; if he acts in a country occupied or unoccupied by the
enemy ; if he destroj^s railway lines or telegraphs in occupied



PREFACE Ix

country ; if he does not wear a uniform ? Is guerilla warfare
ever contrary to war law ? May land mines be used, and if so
when ? May the residential parts of a town be shelled ? Why
may you not poison water, but how may you make water
poisonous ? Which countries have agreed to prohibit the dis-
charge of explosives from airships ? May you shoot your
enemies' sentries ? When may you wear the enemy's uniform ?
May a soldier dress as a civilian in order to carry or obtain
information ? Under what circumstances may a country be
devastated ? May you incite your enemy to desert ; and may
he refuse the rights of war if he makes prisoner those who have
deserted ? Can a civilian in a district occupied by the enemy
be ordered to make roads or to make cartridges ? When must
non-combatants be allowed to leave a besieged town, and when
may they be prevented ? What may you do, and what must
you not do under a flag of truce, and during an armistice ?
When may prisoners of war be shot, and what work may they
be compelled to do ? If a man gives his parole, breaks it, and
is recaptured, how may he be treated ? What constitutes
militarj- occupation, and does it justify the assumption of
sovereignty ? Should civil officials remain at their posts in
countries occupied by the enemy ? May inhabitants of an
occupied country be compelled to take an oath of neutrality, or
to act as guides ? May the Government of the occupying force
levy taxes as usual, or impose new taxes ? Was England right
in the South African war in declaring the annexation of
the South African Republics, in setting up concentration
camps, and in confiscating and selling farms to pay for the cost
of maintaining the families of the owners in the camps ?

These questions, which cover no more than a fraction of the
ground, are taken almost at random from this book, where they
will be found most fully and practically treated. It is, in
fact, Mr. Spaight's treatment of his subject which peculiarly
distinguishes his work. He is not only a student of war law
but of war. He not only examines the writings of jurists, the
conferences and conventions, but he re^■iews all the wars which
have taken place between civilised peoples in the last sixty
years for precedents and examples bearing on each question.
This treatment makes every point peculiarly living and vivid.



X PREFACE

The slow, but steady inarch of reason and humanity can be
traced on ahnost every side. The field for further progress is
clearly marked out. As we read we may compare the practice
of the earlier wars with that of the later, and both with the
law as now accepted, and with proposals made which are at
present too advanced for general acceptance. And the result
is gratifying to a lover of peace, and well worth tracing out in
these pages. The old rule that all is fair in love and war becomes
ever wider of the truth as far as war is concerned. War
becomes more and more hedged about with an elaborate ritual
punctiliously observed. The civilian is more and more left on
one side to pursue his ordinary avocations while the struggle of
those whom he pays to decide his disputes rages over his head.
Will not these civilians some day come to see that this method
of gladiatorial arbitrament is equally barbarous, ruinous and
unjust ? And will not war between civilised nations then
become as much a practice abandoned as trial by battle — for
the government of countries is in civilian hands, and civilians
can decide it so ? I believe that this book, by showing us in
what position we now stand, and whither we are moving, may
bring that day nearer. If it does so by ever so little it will
have been written to good purpose.

FRANCIS D. ACLAND.

Chelsea, January, 1911.



CONTENTS



CHAPTER I



Introbuctiox



CHAPTER II

The Commencement of Hostilities .

CHAPTER III
The Qualifications of Belligerents

CHAPTER IV

Hostilities — Means of Injuring the Enemy

CHAPTER V

Hostilities — Sieges and Bombardments



2a



34



73



157



Spies



CHAPTER VI



202



Flags of Truce



CHAPTER VII



216



Armistices



CHAPTER VIll



232



Capitulations



CHAPTER IX



24'. >



Prisoners of War



CHAPTER X



263



xii CONTENTS

CHAPTER XI

PAGE

Military Authokity over the Territory of the Hostile
State — (I) Military Occupation : War Rights of the
Occupant and of the Inhabitants .... 320

CHAPTER XII

Sasie continued — (II) Requisitions, Contributions, Fines,

AND THE Treatment of Proj'erty .... 381

CHAPTER XIII
The Geneva Convention ...... 419

CHAPTER XIV
The Sanction of the Laws of War . . . .461

CHAPTER XV
The Neutrality Convention ...... 471



WAR RIGHTS ON LAND



CHAPTER I

INTRODUCTION

An individual who is a member of any organised State Rights
community has certain rights as against the other members of National
the State, and the other members and the State have certain Law.
rights as against him. This is only another way of saying that
a citizen has certain rights and obligations. As an English
subject I have a right to personal freedom from molestation, to
my property, to my reputation, &c., and I must respect the
similar rights which other subjects possess. If they interfere
with my rights, or if I interfere with theirs, they or I commit
what is obscurely called a " tort." If I infringe the rights of
the State as against me — if, for instance, I break the King's
Peace by committing treason or forgery, or if I go so far as to
keep a Colorado Beetle, I commit a " crime." In both cases,
the State machinery can be set in motion to secure com-
pensation for the breach of the rights infringed by the tort and
the crime. It is the State authority which enforces all such
rights, or, in the language of jurisprudence, supplies the
" sanction."

Clearly to understand the nature of Avar rights, one must Rights
imagine, not such an organised State community as England or tjiere^isno
any other developed country, but a very primitive condition of State,
society, like that which Hobbes postulated, in which " every
man is a wolf to his fellows," or, if one prefers Locke as
philosopher and guide, in which each individual goes about
with a " sedate, settled design " on his neighbour's life. In
this pleasant community, there would be no established State

B



2 WAR RIGHTS ON LAND chap.

authority to make laws and enforce them. Internecine and
continual strife would be the normal condition of things. But
in the course of time, assuming that no ruling power is set up
as the arbiter and conservator of peace (and this assumption is
not an extravagant one but closely analogous to the conditions
of International Law as between sovereign States), the self-
interest of individuals would recognise the advantage of a few
broad rules, founded on compromise and limiting the extreme
licence which had hitherto prevailed; rules, for example,
respecting truces, or the indiscriminate slaughter of women and
children, or the burning of temples, or the attitude of third
parties towards conflicts in which they were not immediately
concerned. No means of enforcing these rules would exist ;
the only influences making for compliance therewith would be
the conscience of each individual and the more potent motive
of fear of reprisals in kind for any breach of them. The only
ultimate means of redress would be self-help. Still, though a
"sanction" should be lacking, the rules adopted would supply
a standard of conduct, to which there would be a fairl}'^
close approximation in practice. One might not be able
to call on any State authority to enforce one's rights but
they would nevertheless have an existence and recognition
not the less real for being founded on an insecure foundation.
War Such rights, based not on authority but on compromise,

Rights enforced not by a law-giver but by each aggrieved individual
compared himself, find a close enough parallel in the War Rights which
^y^ are the subject of my book.^ The relationship of the armed

latter forces of One nation to the armed forces and population of
another independent nation is very like that of the individuals,
inter se — the masterless men — in the primitive community I
have tried to describe. Within their own boundaries, the
soldiers and civil inhabitants of each State have various rights
and obligations founded on the laws of the State and enforced

^ See United States Indructiona for Armies in the Field, paragraphs 40 and
41:—

There exists uo law or body of authoritative rules of action between hostile
armies, except that branch of the law of nature and nations which is called
the law and usages of war on land.

All municipal law of the ground on which armies stand, or of the countries
to which they belong, is silent and of no effect between armies in the field.



rights.



I INTRODUCTION 3

by State officials. Apart from war rights, they have no such
rights and obligations towards the soldiers and inhabitants of
an enemy State. There is no common law comprising within
its jurisdiction the diverse units which are the instrument and
sport of war. Primeval war, naked and unashamed, knows of
no right but the right to kill. But just as the individual of a
primitive unorganised community may be supposed to adopt
certain rules, based on mutual forbearance, to regulate their
internal wars, in like manner and for similar reasons modern
States have established a body of usages to regulate the conduct
of armies and populations in international wars. Some of these
usages have pride of lineage, and trace descent from classical
imes or the age of chivalry ; others are born of the develop-
ment of modern scientitic war. Like the customary rules of
the primitive community, they have no sanction in the last
resort save self-help. War law is an imperfect law ; for
whether law exists before the State, or whether without the
State there can be any law (which is, for my present purpose,
about as useful a matter for discussion as whether the egg or
the chicken came first), there is no doubt but that the ultimate
power of the law within any State depends on the ability of
the State to enforce it, and that a law unsupported by the
sword of State is an imperfect law.^ There is no international
tribunal which will force a nation to observe the usages which
the general sense of nations has approved. " The law of
nations has not fleets nor armies of its own to make itself
respected." - Any nation can at any time throw war laws to
the winds. But no nation does. The logical supplement to
the golden rule which warns us that as we do, so shall we be

' Sir F. Pollock says (Jurispriidence, p. 13) that we are not called upon to
consider whether International Law is most akin to (1) national law, (2)
purely moral rules, or (.3) those customs and observations of an imperfectlj-
organised society which have not fully acquired the character of law, but are
on their way to become law. They have characteristics of each of these three
categories, but are, I think, most akin to the third, to which they may use-
fully be compared for the purpose of illustrating their essential nature.
Professor Holland describes International Law, which he classes under the
" Adjective law of nations," as "the vanishing point of jurisprudence," since
it lacks any arbiter of disputed questions save public opinion, beyond and
above the disputant parties themselves. {Jurisprudence, p. 333 ff.).

- Lieutenant-(icneral Uen Beer Portugael in Revue des Deux Mondes, 1st
November, 1901, p. 59.

B 2



4 WAR RIGHTS ON LAND chap.

done by, is the chief motive for the compliance of civilised
States with the usages of war. Another motive is found in the
national conscience and sense of justice — " the instinct of the
just and the unjust," which, as Maeterlinck sajs, pervades all
humanity. " The grand word, Ought," is not necessarily ex-
punged from the vocabulary of nations at war. Despite its weak-
ness on the coercive side, International Law is a very great and
real restraining power which no nation can afford to disregard.
Good name is a valuable asset for a nation as for an individual
War being but a passing phase in a nation's life — the fire in
which peace is consumed to be born anew of its own ashes — a
nation should not, and does not, cast away its regard for its
reputation when it casts away its scabbard. War laws are often
broken — are not municipal laws broken too ? — but no modern
nation is bold enough or strong enough to disregard them
wholly. To do so would be to extend to every latitude in war
time the doctrine of the old buccaneers that there was neither
God nor treaty within thirty degrees of the Line.^
War law a The International Law of war has had its detractors, who
rea i y. \-^q^yq derided its authority and even questioned its existence.
The late Lord Salisbury said " it depended generally on the
prej udices of the writers of text-books " ; as if common law did
not depend on the prejudices of judges and equity on the
prejudices of chancellors. The French Admiral Aube spoke
in a signed review article of " that monstrous association of
words, the laws of war " : implying that war cannot admit of
any restraint, but must necessarily be an appeal to wholly
unbridled force. Such a position is merely unconsidered swash-
bucklerism. There is no nation which has not rendered homage
to the laws of war. Had such laws no existence and no
authority, wars would be, as between belligerents, sheer butchery,
massacre, annihilation, like the wars of the Children of Israel
long ago or the modern Afghans and Apaches ; and as between
belligerents and neutrals, world-conflagrations involving all
nations sooner or later. War law is the only law which covers

^ For an example of what even a modern (nominally) civilised struggle can
be when neither party recognises any war rights in the other, I recommend
Mr. Loraine Petre's El Libertador, which describes the war for freedom waged
by Bolivar and his men — mostly Creoles, but with an intermixture of men of
pure European blood — against the Spanish troops in S. America.



I INTRODUCTION 5

" like the vault of heaven," as a great French statesman said,
all civilised nations with the benign authority of its humanity
and order. It needs no apologist for its existence and utility.
Can anything be more vitally real and beneficent than the
power which has been able to abate even in a slight degree the
wrath and violence of war ? To say, as one writer does, that
" the laws of war make one think of the snakes of Ireland," ^
is to be epigrammatic at the expense of truth.

Indeed, history gives a full and complete denial to those who Its
question the reality and authority of war law. Every modern ^^^
war has seen its principles and rules recognised. There have, authority

1 • ,• • 1 • • recog-

it is true, been instances 01 strained interpretations and nised.

questionings of the applicability to given circumstances of
certain of its rules, but such instances are only further evidences
of the recognition of a universally binding system of war law.
No nation has deliberately gone about to override Inter-
national Law as a whole. Belligerent States may violate it
occasionally, but they do not challenge its existence and
authority ; rather, they try to justify their actions by a reference
to the principles of the particular law, conventional or customary,
which they are accused of infringing. And it cannot be that
violations of war law are not heard of by the world at large.
Wars, to-day, are fought under the eyes of foreign military
attaches and Press correspondents, and the most stringent
censorship cannot prevent the reports of these neutral eye-
witnesses at length reaching the War Departments or news-
papers by which they are commissioned. Attache's and corres-
pondents, especially the latter, do in fact go a long way towards
fulfilling the role which the Institute of International Law (in
its session at Zurich, 1877) suggested that militarj' attaches
should be assigned by International agreement, namely, the oSle
of a "jury of honour " who should report to neutral Governments
any infractions of war laws committed by the belligerents."' The
suggestion is an excellent one and is to be hoped that some
future conference may see fit to sanction it and thus grant the
official approval of the Cabinets to a practice which is already to
some extent carried out unofficially.

' Fairer, Military Manners and Customs, p. 2.

- See M. de Martens, La Paix el la Guerre, p. 552.



WAR RIGHTS ON LAND



CHAP.



Influences
making
for the
observ-
ance of
war law.



Attempts
to draw
up a code
of war
law.

The

Brussels
Con-
ference.



The

Hague
Con-
ference
1899.



The self-interest, then, of nations and their regard for their
world reputation are influences making for the observance of
the laws of war. A further influence is the recognition of the
obvious advantage of having a known body of rules dealing
with a subject of much doubt and difficulty ; in other words,
of having war usage standardised. Again, in most modern
States, the balance of political power between two or more
parties furnishes another safeguard for the observance of war
law. Ministers are ultimately answerable in constitutional
States for the actions of the national troops, and if the " Big-
Endians " are in power, the " Little-Endians " will not be slow
to make political capital out of any lapse from correct inter-
national usage committed by the country's forces. Com-
pliance with war law is thus sometimes secured indirectly
through what is primarily a party move.

There is no complete code of war law. Several attempts
have been made to draw up such a code but never with
complete success. In 1874 the representatives of the European
Powers met at Brussels to consider the question, and though
unanimity was reached on many points, man}^ others were left
undecided and some were not discussed at all. The Brussels
project, containing the articles to which the delegates agreed,
was never ratified owing to the opposition of the British
Government.^ It has, however, had from the first a great
moral influence on the conduct of armies, embodying as it does
" the most authoritative opinion of tacticians, diplomatists, and
jurists on the laws and customs obligatory for belligerent States
and their armies." - In 1 899, a further conference of repre-
sentatives, held at the Hague, reconsidered the Brussels project,
and the result of their labours was the completion of a Reglement
or series of regulations, which the Powers agreed to embody in
their respective Army regulations. This Reglement is the
nearest approach to a complete code of war law. The fact
that it was approved as an annex to a Convention instead
of being made part of the Convention itself has militated
against its effect. The Powers who sanctioned the Regle-
ment are not bound by its terms, as they are by those of

^ See M. de Martens, La Paix et la Guerre, Chapter III.
2 De Martens, p. 120. See Hall, International Law (Atlay's Edition),
p. 524).



I INTRODUCTION 7

the St. Petersburg Declaration and the Geneva Convention ;
their undertaking is to issue instructions to their troops " in
conformity with " the articles of the R^glemcnt, and some of the
Powers have interpreted the intention of this undertaking very
loosely. There is not, it is true, any power given to the several
Cabinets under the agreement to pick and choose from the
articles and to omit or modify such of them as each Cabinet
deems to clash with national interests.^ A proposal to this
effect was made at the Hague by the British military delegate
and withdrawn on general opposition being offered to it. But



Online LibraryJ. M. (James Molony) SpaightWar rights on land → online text (page 1 of 52)