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rules regarding land warfare only, leaving the further development of the rules regarding sea warfare to custom and usage as hitherto.

II

VIOLENCE AGAINST ENEMY PERSONS

Grotius, III. c. 4—Vattel, III. §§ 139-159-Hall, §§ 128, 129, 185Lawrence, $ 185, 186, 190-192-Maine, pp. 123-148-Manning, pp. 196-205-Phillimore, III. $$ 94-95-Halleck, II. pp. 14-18Taylor, §§ 477-480-Walker, § 50-Wheaton, §§ 343-345-Bluntschli, §§ 557-563-Heffter, § 126-Lueder in Holtzendorff, IV. pp. 390-394-Gareis, § 85-Klüber, § 244-Liszt, § 40, III.-G. F. Martens, II. § 272-Ullmann, § 149-Bonfils, Nos. 1068-1071, 1099, 1141-Despagnet, Nos. 528-529-Pradier-Fodéré, VI. Nos. 2742-2758-Rivier, II. pp. 260-265-Calvo, IV. 2098-2105-Fiore, III. Nos. 1317-1320, 1342-1348-Martens, II. § 110-Longuet, SS 42-49-Mérignhac, pp. 146-165-Pillet, pp. 85-95-Kriegsgebrauch, pp. 9-11-Holland, War, 55-58-Zorn, "Kriegsmittel und Kriegführung im Landkrieg nach den Bestimmungen der Haager Conferenz, 1899" (1902).

Violence

Enemy

§ 107. As war is a contention between States for On the purpose of overpowering each other, violence in general consisting in different sorts of force applied against against enemy persons is the chief and decisive means of Persons. warfare. These different sorts of force are used against combatants as well as non-combatants, but with discrimination and differentiation. The purpose of application of violence against combatants is their disablement so that they can no longer take part in the fighting. And this purpose may be realised through either killing or wounding them, or making them prisoners. As regards non-combatant members of armed forces, private enemy persons showing no hostile conduct, and officials in important positions, only minor means of force may as a rule be applied,

Killing and

Wounding of Combatants.

Refusal of
Quarter.

since they do not take part in the armed contention of the belligerents.

§ 108. Every combatant may be killed or wounded, whether a simple private or an officer, or even the monarch or a member of his family. Some publicists 1 assert that it is a usage of warfare not to aim at a sovereign or a member of his family. Be that as it may, there is in strict law 2 no rule preventing the killing and wounding of such illustrious persons. But combatants may only be killed or wounded if they are able and willing to fight or to resist capture. Therefore, such combatants as are disabled by sickness or wounds may not be killed. Further, such combatants as lay down arms and surrender or do not resist being made prisoners may neither be killed nor wounded, but must be given quarter. These rules are universally recognised, and are now expressly enacted by article 23 (c) of the Hague Regulations, although the fury of battle frequently makes single fighters forget and neglect them.

3

§ 109. However, the rule that quarter must be given has its exceptions. Although it has of late been the customary rule of International Law, and although the Hague Regulations stipulate now expressly by article 23 (d) that belligerents are prohibited from declaring that no quarter will be given, quarter may nevertheless be refused by way of reprisals for violations of the rules of warfare committed by the other

2

1 See Klüber, § 245; G. F. Martens, II. § 278; Heffter, § 126. Says Vattel, III. § 159: "Mais ce n'est point une loi de la guerre d'épargner en toute rencontre la personne du roi ennemi; et on n'y est obligé que quand on a la facilité de le faire prisonnier." The example of Charles XII. of

Sweden (quoted by Vattel), who was intentionally fired at by the defenders of the fortress of Thorn, besieged by him, and who said that the defenders were in their right, ought to settle the point.

3 See Baty, International Law in South Africa (1900), pp. 84-85.

side; and, further, in case of imperative necessity, when the granting of quarter would so encumber a force with prisoners that its own security would thereby be vitally imperilled. But it must be emphasised that the mere fact that numerous prisoners cannot safely be guarded and fed by the captors1 does not furnish an exceptional case to the rule, provided that no vital danger for the captors is therein involved. And it must likewise be emphasised that the former rule is now obsolete according to which quarter could be refused to the garrison of a fortress carried by assault, to the defenders of an unfortified place against an attack of artillery, and to the weak garrison who obstinately and uselessly persevered in defending a fortified place against overwhelming enemy forces.

and

killing

Combat

§ 110. Apart from such means as are expressly Lawful prohibited by treaties or custom, all means of killing Unlawful and wounding that exist or may be invented are Means of lawful. And it matters not whether the means used and are directed against single individuals, as swords and wounding rifles, or against large bodies of individuals, as, for ants. instance, shrapnel, Gatlings, and mines. On the other hand, all means are unlawful that render death inevitable or that needlessly aggravate the sufferings of wounded combatants. A customary rule of International Law, now expressly enacted by article 23 (e) of the Hague Regulations, prohibits, therefore, the employment of poison and of such arms, projectiles, and material as cause unnecessary injury. Accordingly wells, pumps, rivers, and the like from which the enemy draws drinking water must not be poisoned; poisoned weapons must not be made use of; rifles

1 Accordingly, the Boers fre- War set British soldiers free quently during the South African whom they had captured.

Explosive
Bullets.

must not be loaded with bits of glass, irregularly shaped iron, nails, and the like; cannons must not be loaded with chain shot, crossbar shot, red-hot balls, and the like. Another customary rule, now likewise enacted by article 23 (f) of the Hague Regulations, prohibits the killing and wounding of combatants in a treacherous way. Accordingly: no assassin must be hired and no assassination of combatants be committed; no putting of price on the head of an enemy individual is allowed; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.

§ 111. In 1868 a conference met at St. Petersburg for the examination of a Russian proposition with regard to the use of explosive projectiles in war. The representatives of seventeen Powers-namely, Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark, France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North German Confederation, Sweden-Norway, Switzerland, Turkey, and Wurtemburg (Brazil acceded later on) signed on November 29, 1868, the so-called Declaration of St. Petersburg,1 which stipulates that the signatory Powers and those who should accede later on renounce in case of war between themselves the employment by their military and naval troops of any projectile of a weight below 400 grammes (14 ounces) which is either explosive or charged with fulminating or inflammable substances. This engagement is obligatory only upon the contracting Powers, and it ceases to be obligatory in case a non-contracting Power takes part in a war between any of the contracting Powers.

1 See above, Vol. I. § 562, and Martens, N.R.G. XVIII. p. 474.

§ 112. As Great Britain had introduced bullets Expandmanufactured at the Indian arsenal of Dum-Dum, ing (Dumnear Calcutta, the hard jacket of which did not Bullets. quite cover the core and which therefore easily expanded and flattened in the human body, the Hague Conference adopted a declaration1 signed on July 29, 1899, by twenty-three Powers-namely, AustriaHungary, Germany, Belgium, Denmark, Spain, China, Japan, Mexico, France, Greece, Montenegro, Holland, Persia, Italy, Roumania, Russia, Siam, Servia, Spain, Sweden-Norway, Switzerland, Turkey, and Bulgaria— stipulating that the contracting Powers abstain, in case of war between two or more of them, from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. Although Great Britain did not sign the Declaration, the British Government withdrew the Dum-Dum bullets during the South African War. And it is to be taken for certain that Great Britain will not in future make use of them in a war with civilised Powers.

2

launched

§ 113. The Hague Conference adopted a Declaration, Projectiles signed on July 29, 1899, by twenty-five Powers-namely, ExAustria-Hungary, Germany, Luxemburg, Belgium, Den- plosives mark, Spain, the United States of America, China, Mexico, from France, Greece, Italy, Japan, Montenegro, Holland, Persia, Balloons. Portugal, Roumania, Russia, Servia, Siam, Sweden-Norway, Switzerland, Turkey, and Bulgaria-stipulating for a term of five years the prohibition in a war between two or more of the signatory Powers against the launching of projectiles or explosives from balloons or by other methods of a similar nature. This Declaration, not being renewed before the end of five years, expired in July 1904. But a similar Declaration will very likely take its place in the future.

1 See Martens, N.R.G., 2nd ser. XXVI. p. 1002.

* See Martens, N.R.G. 2nd ser. XXVI. p. 994.

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