Marauding. Mode of conviction for espionage was impossible according to article 29 of the Hague Regulations, provided, of course, they were court-martialled for no other act than the attempt to destroy a bridge. § 256. Marauders are individuals roving either singly or collectively in bands over battlefields, or following in quest of booty forces in advance or retreat. They have nothing to do with warfare in the strict sense of the term, but they are an unavoidable accessory to warfare and frequently consist of soldiers who have left their corps. Their acts are considered acts of illegitimate warfare, and their punishment takes place in the interest of the safety of either belligerent. § 257. All war crimes may be punished with death, but belligerents may, of course, pronounce a more lenient punishment or commute a verdict of death into a more lenient penalty. If this is done and imprisonment takes the place of capital punishment, the question arises whether such convicts must be released at the end of the war, although their term of imprisonment has not yet expired. Some publicists 1 answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But I believe that the question has to be answered in the negative. If a belligerent has a right to pronounce capital punishment, it is obvious that he can select a more lenient penalty and carry the latter out even beyond the duration of the war. And it would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would have always to pronounce and carry out capital punishment in the interest of self-preservation. V TAKING OF HOSTAGES Hall, $ 135 and 156-Taylor, § 525-Bluntschli, § 600-Lueder in Practice § 258. The practice of taking hostages as a means Former of securing legitimate warfare prevailed in former of taking times much more than nowadays. It was frequently Hostages. resorted to in all cases, such as capitulations and armistices for instance, in which belligerent forces depended more or less upon each other's faith. To make sure that no perfidy was intended, officers or prominent private individuals were taken as hostages who could be held responsible with their lives for any perfidy committed by the enemy. This practice has totally disappeared, and will hardly be revived. But this former practice must not be confounded with the still continued practice of seizing enemy individuals for the purpose of making them the object of reprisals. Thus, when in 1870, during the Franco-German War, Count Bismarck ordered forty French notables to be seized and to be taken away into captivity as a retaliation upon the French for refusing to liberate the crews of forty captured merchantmen, these forty French notables were not taken as hostages, but were made the object of reprisals.1 § 259. A new practice of taking hostages was Modern resorted to by the Germans in 1870 during the of taking 1 The case has been discussed case, however, make the mistake above in § 249. All the French of enumerating it as an instance writers who comment upon this of the taking of hostages. Practice Hostages. Franco - German War for the purpose of securing the safety of forces against possible hostile acts on the part of private inhabitants of occupied enemy territory. Well-known men of prominence were seized and retained in the expectation that the population would refrain from hostile acts out of regard for the fate of the hostages. Thus, when unknown people frequently wrecked the trains transporting troops, the Germans seized prominent enemy citizens and put them on the engines of trains to prevent the latter from being wrecked, a means which always proved effective and soon put a stop to further train-wrecking. The same practice was resorted to, although for a short time only, by Lord Roberts in 1900 during the South African War. This practice has, apart from a few German writers, been condemned by the publicists of the whole world. But, with all due deference to the authority of so many prominent men, I cannot agree with their opinion. Matters would be different if hostages were seized and exposed to dangers for the purpose of preventing legitimate hostilities on the part of members of the armed forces of the enemy. But nobody can deny that train-wrecking on occupied enemy territory by private enemy individuals is an act which a belligerent is justified in considering and punishing as war treason. It is for the purpose of guarding himself against an act of illegitimate warfare that these hostages are put on the engines. The danger they are exposed to comes from their fellow-citizens, who are informed of the fact that hostages are on the engines 1 See section 3 of the Proclamation of Lord Roberts; dated Praetoria, June 19, 1900; but this section was repealed by Proclama tion of July 29, 1900. See Martens, N.R.G., 2nd ser., XXXII. (1905), pp. 147 and 149. 2 See above, § 255, No. 8. and ought therefore to refrain from wrecking the trains. It cannot and will not be denied that the measure is a hard one, and makes individuals liable to suffer for acts for which they are not responsible. But the safety of his troops and lines of communication is at stake for the belligerent concerned, and I doubt, therefore, whether even the most humane commanders will be able to dispense with this measure, since it alone has proved effective. And it must further be taken into consideration that the amount of cruelty contained in it is in no wise greater than in reprisals where also innocent individuals must suffer for illegitimate acts for which they are not responsible. And is it not more reasonable to prevent train-wrecking by putting hostages on the engines than to resort to reprisals for wreckage of trains? For there is no doubt that a belligerent is justified in resorting to reprisals1 in each case of train-wrecking by private enemy individuals.2 War a Tempo dition. CHAPTER VII END OF WAR, AND POSTLIMINIUM I ON TERMINATION OF WAR IN GENERAL Hall, § 197-Lawrence, § 238-Phillimore, III. § 510-Taylor, § 580- $260. The normal condition between two States rary Con- being peace, war can never be more than a temporary condition; whatever may have been the cause or causes of a war, the latter can naturally not last for ever. For either the purpose of war will be realised and one belligerent will be overpowered by the other, or both will sooner or later be so exhausted by their exertions that they will desist from continuing the struggle. But nevertheless wars may last for many years, although of late European wars have become shorter and shorter. The shortening of European wars in recent times is the result of several factors, the more important of which are:-the conscription on which are based the armies of all the great European Powers, Great Britain excepted; the net of railways extending over all European countries, which enables a much quicker transport of troops on enemy territory; lastly, the vast numbers of the opposing forces which usually hasten the decisive battle. |