International Law. A Treatise Volume Ii Part 21

Vattel, III. ---- 168-170--Hall, -- 186--Lawrence, -- 204--Westlake, II. pp. 76-79--Moore, VII. -- 1112--Halleck, II. pp. 59, 67, 185--Taylor, ---- 483-485--Bluntschli, ---- 552-554B--Heffter, -- 125--Lueder in Holtzendorff, IV. pp. 448-457--G. F. Martens, II. -- 286--Ullmann, -- 181--Bonfils, Nos. 1079-1087--Despagnet, Nos.

528-535--Pradier-Fodere, VI. Nos. 2779-2786--Rivier, II. pp.

284-288--Nys, III. pp. 210-219--Calvo, IV. ---- 2067-2095--Fiore, III. Nos. 1322-1330, and Code, Nos. 1519-1524--Longuet, ---- 58-59--Merignhac, pp. 171-182--Pillet, pp. 101-112--Zorn, pp.

161-174--Holland, _War_, Nos. 80-83--Rolin-Jaequemyns in _R.I._ II. (1870), pp. 659 and 674, III. (1871), pp. 297-307--Bordwell, pp. 286-288--Meurer, ---- 32-34--Spaight, pp.

157-201--_Kriegsbrauch_, pp. 18-22--_Land Warfare_, ---- 117-138.

[Sidenote: a.s.sault, Siege, and Bombardment, when lawful.]

-- 155. a.s.sault is the rush of an armed force upon enemy forces in the battlefield, or upon intrenchments, fortifications, habitations, villages, or towns, such rushing force committing every violence against opposing persons and destroying all impediments. Siege is the surrounding and investing of an enemy locality by an armed force, cutting off those inside from all communication for the purpose of starving them into surrender or for the purpose of attacking the invested locality and taking it by a.s.sault. Bombardment is the throwing by artillery of shot and sh.e.l.l upon persons and things. Siege can be accompanied by bombardment and a.s.sault, but this is not necessary, since a siege can be carried out by mere investment and starvation caused thereby. a.s.sault, siege, and bombardment are severally and jointly perfectly legitimate means of warfare.[295] Neither bombardment nor a.s.sault, if they take place on the battlefield, needs special discussion, as they are allowed under the same circ.u.mstances and conditions as force in general is allowed. The only question here is under what circ.u.mstances a.s.sault and bombardment are allowed outside the battlefield. The answer is indirectly given by article 25 of the Hague Regulations, where it is categorically enacted that "the attack or bombardment, by any means[296] whatever, of towns, villages, habitations, or buildings, which are not defended, is prohibited." Siege is not specially mentioned, because no belligerent would dream of besieging an undefended locality, and because siege of an undefended town would involve unjustifiable violence against enemy persons and would, therefore, be unlawful. Be this as it may, the fact that defended localities only may now be bombarded, involves a decided advance in the view taken by International Law. For it was formerly a.s.serted by many writers[297] and military experts that, for certain reasons and purposes, undefended localities also might in exceptional cases be bombarded. But it must be specially observed that it matters not whether the defended locality be fortified or not, since an unfortified place can be defended.[298] And it must be mentioned that nothing prevents a belligerent who has taken possession of an undefended fortified place from destroying the fortifications by bombardment as well as by other means.

[Footnote 295: The a.s.sertion of some writers--see, for instance, Pillet, pp. 104-107, and Merignhac, p. 173--that bombardment is lawful only after an unsuccessful attempt of the besiegers to starve the besieged into surrender is not based upon a recognised rule of the Law of Nations.]

[Footnote 296: The words _by any means whatever_ were inserted by the Second Peace Conference in order to make it quite clear that the article is likewise to refer to bombardment from air-vessels.]

[Footnote 297: See, for instance, Lueder in Holtzendorff, IV. p. 451.]

[Footnote 298: See Holls, _The Peace Conference at the Hague_ (1900), p.

152.]

[Sidenote: a.s.sault, how carried out.]

-- 156. No special rules of International Law exist with regard to the mode of carrying out an a.s.sault. Therefore, only the general rules respecting offence and defence find application. It is in especial not[299] necessary to give notice of an impending a.s.sault to the authorities of the respective locality, or to request them to surrender before an a.s.sault is made. That an a.s.sault may or may not be preceded or accompanied by a bombardment, need hardly be mentioned, nor that by article 28 of the Hague Regulations pillage of towns taken by a.s.sault is now expressly prohibited.

[Footnote 299: This becomes indirectly apparent from article 26 of the Hague Regulations.]

[Sidenote: Siege, how carried out.]

-- 157. With regard to the mode of carrying out siege without bombardment no special rules of International Law exist, and here too only the general rules respecting offence and defence find application.

Therefore, an armed force besieging a town may, for instance, cut off the river which supplies drinking water to the besieged, but must not poison[300] such river. And it must be specially observed that no rule of law exists which obliges a besieging force to allow all non-combatants, or only women, children, the aged, the sick and wounded, or subjects of neutral Powers, to leave the besieged locality unmolested. Although such permission[301] is sometimes granted, it is in most cases refused, because the fact that non-combatants are besieged together with the combatants, and that they have to endure the same hardships, may, and very often does, exercise pressure upon the authorities to surrender. Further, should the commander of a besieged place expel the non-combatants in order to lessen the number of those who consume his store of provisions, the besieging force need not allow them to pa.s.s through its lines, but may drive them back.[302]

[Footnote 300: See above, -- 110.]

[Footnote 301: Thus in 1870, during the Franco-German War, the German besiegers of Stra.s.sburg as well as of Belfort allowed the women, the children, and the sick to leave the besieged fortresses.]

[Footnote 302: See _Land Warfare_, -- 129.]

That diplomatic envoys of neutral Powers may not be prevented from leaving a besieged town is a consequence of their exterritoriality.

However, if they voluntarily remain, may they claim uncontrolled[303]

communication with their home State by correspondence and couriers? When Mr. Washburne, the American diplomatic envoy at Paris during the siege of that city in 1870 by the Germans, claimed the right of sending a messenger with despatches to London in a sealed bag through the German lines, Bismarck declared that he was ready to allow foreign diplomatists in Paris to send a courier to their home States once a week, but only under the condition that their despatches were open and did not contain any remarks concerning the war. Although the United States and other Powers protested, Bismarck did not alter his decision. The whole question must be treated as open.[304]

[Footnote 303: The matter is discussed by Rolin-Jaequemyns in _R.I._ III. (1871), pp. 371-377.]

[Footnote 304: See above, vol. I. -- 399, and Wharton, I. -- 97.]

[Sidenote: Bombardment, how carried out.]

-- 158. Regarding bombardment, article 26 of the Hague Regulations enacts that the commander of the attacking forces shall do all he can to notify his intention to resort to bombardment. But it must be emphasised that a strict duty of notification for all cases of bombardment is not thereby imposed, since it is only enacted that a commander _shall do all he can_ to send notification. He cannot do it when the circ.u.mstances of the case prevent him, or when the necessities of war demand an immediate bombardment. Be that as it may, the purpose of notification is to enable private individuals within the locality to be bombarded to seek shelter for their persons and for their valuable personal property.

Article 27 of the Hague Regulations enacts the hitherto customary rule that all necessary steps must be taken to spare as far as possible all buildings devoted to religion, art, science, and charity; further, historic monuments, hospitals, and all other places where the sick and wounded are collected, provided these buildings, places, and monuments are not used at the same time for military purposes. To enable the attacking forces to spare these buildings and places, the latter must be indicated by some particular signs, which must be previously notified to the attacking forces and must be visible from the far distance from which the besieging artillery carries out the bombardment.[305]

[Footnote 305: No siege takes place without the besieged accusing the besiegers of neglecting the rule that buildings devoted to religion, art, charity, the tending of the sick, and the like, must be spared during bombardments. The fact is that in case of a bombardment the destruction of such buildings cannot always be avoided, although the artillery of the besiegers do not intentionally aim at them. That the forces of civilised States intentionally destroy such buildings, I cannot believe.]

It must be specially observed that no legal duty exists for the attacking forces to restrict bombardment to fortifications only. On the contrary, destruction of private and public buildings through bombardment has always been and is still considered lawful, as it is one of the means to impress upon the authorities the advisability of surrender. Some writers[306] a.s.sert either that bombardment of the town, in contradistinction to the fortifications, is never lawful, or that it is only lawful when bombardment of the fortifications has not resulted in inducing surrender. But this opinion does not represent the actual practice of belligerents, and the Hague Regulations do not adopt it.

[Footnote 306: See, for instance, Pillet, pp. 104-107; Bluntschli -- 554A; Merignhac, p. 180. Vattel (III. -- 169) does not deny the right to bombard the town, although he does not recommend such bombardment.]

X

ESPIONAGE AND TREASON

Vattel, III. ---- 179-182--Hall, -- 188--Westlake, II. pp. 79 and 90--Lawrence, -- 199--Phillimore, III. -- 96--Halleck, I. pp.

571-575, and in _A.J._ V.(1911), pp. 590-603--Taylor, ---- 490 and 492--Wharton, III. -- 347--Moore, VII. -- 1132--Bluntschli, ---- 563-564, 628-640--Heffter, -- 125--Lueder in Holtzendorff, IV. pp.

461-467--Ullmann, -- 176--Bonfils, Nos. 1100-1104--Despagnet, Nos.

537-542--Pradier-Fodere, VI. Nos. 2762-2768--Rivier, II. pp.

282-284--Nys, III. pp. 256-263--Calvo, IV. ---- 2111-2122--Fiore, III. Nos. 1341, 1374-1376, and Code, Nos. 1487-1490--Martens, II.

-- 116--Longuet, ---- 63-75--Merignhac, pp. 183-209--Pillet, pp.

97-100--Zorn, pp. 174-195--Holland, _War_, Nos. 84-87--Bordwell, pp. 291-292--Meurer, ---- 35-38--Spaight, pp. 202-215, 333-335--Ariga, ---- 98-100--Takahashi, pp. 185-194--Friedemann, _Die Lage der Kriegskundschafter und Spione_ (1892)--Violle, _L'espionage militaire en temps de guerre_ (1904)--Adler, _Die Spionage_ (1906)--_Kriegsbrauch_, pp. 30-31--_Land Warfare_, ---- 155-173--Bentwich in _The Journal of the Society of Comparative Legislation_, New Series, X. (1909), pp. 243-299.

[Sidenote: Twofold Character of Espionage and Treason.]

-- 159. War cannot be waged without all kinds of information about the forces and the intentions of the enemy and about the character of the country within the zone of military operations. To obtain the necessary information, it has always been considered lawful, on the one hand, to employ spies, and, on the other, to make use of the treason of enemy soldiers or private enemy subjects, whether they were bribed[307] or offered the information voluntarily and gratuitously. Article 24 of the Hague Regulations enacts the old customary rule that the employment of methods necessary to obtain information about the enemy and the country is considered allowable. The fact, however, that these methods are lawful on the part of the belligerent who employs them does not prevent the punishment of such individuals as are engaged in procuring information. Although a belligerent acts lawfully in employing spies and traitors, the other belligerent, who punishes spies and traitors, likewise acts lawfully. Indeed, espionage and treason bear a twofold character. For persons committing acts of espionage or treason are--as will be shown below in -- 255--considered war criminals and may be punished, but the employment of spies and traitors is considered lawful on the part of the belligerents.

[Footnote 307: Some writers maintain, however, that it is not lawful to bribe enemy soldiers into espionage; see below, -- 162.]

[Sidenote: Espionage in contradistinction to Scouting and Despatch-bearing.]

-- 160. Espionage must not be confounded, firstly, with scouting, or secondly, with despatch-bearing. According to article 29 of the Hague Regulations, espionage is the act of a soldier or other individual who clandestinely, or under false pretences, seeks to obtain information concerning one belligerent in the zone of belligerent operations with the intention of communicating it to the other belligerent.[308]

Therefore, soldiers not in disguise, who penetrate into the zone of operations of the enemy, are not spies. They are scouts who enjoy all privileges of the members of armed forces, and they must, if captured, be treated as prisoners of war. Likewise, soldiers or civilians charged with the delivery of despatches for their own army or for that of the enemy and carrying out their mission openly are not spies. And it matters not whether despatch-bearers make use of balloons or of other means of communication. Thus, a soldier or civilian trying to carry despatches from a force besieged in a fortress to other forces of the same belligerent, whether making use of a balloon or riding or walking at night, may not be treated as a spy. On the other hand, spying can well be carried out by despatch-bearers or by persons in a balloon, whether they make use of the balloon of a despatch-bearer or rise in a balloon for the special purpose of spying.[309] The mere fact that a balloon is visible does not protect the persons using it from being treated as spies; since spying can be carried out under false pretences quite as well as clandestinely. But special care must be taken really to prove the fact of espionage in such cases, for an individual carrying despatches is _prima facie_ not a spy and must not be treated as a spy until proved to be such.

[Footnote 308: a.s.sisting or favouring espionage or knowingly concealing a spy are, according to a customary rule of International Law, punishable as though they were themselves acts of espionage; see _Land Warfare_, -- 172.]

[Footnote 309: See below, -- 356 (4), concerning wireless telegraphy.]

A remarkable case of espionage is that of Major Andre,[310] which occurred in 1780 during the American War of Independence. The American General Arnold, who was commandant of West Point, on the North River, intended to desert the Americans and join the British forces. He opened negotiations with Sir Henry Clinton for the purpose of surrendering West Point, and Major Andre was commissioned by Sir Henry Clinton to make the final arrangements with Arnold. On the night of September 21, Arnold and Andre met outside the American and British lines, but Andre, after having changed his uniform for plain clothes, undertook to pa.s.s the American lines on his return, furnished with a pa.s.sport under the name of John Anderson by General Arnold. He was caught, convicted as a spy, and hanged. As he was not seeking information,[311] and therefore was not a spy according to article 29 of the Hague Regulations, a conviction for espionage would not, if such a case occurred to-day, be justified.

But it would be possible to convict for war treason, for Andre was no doubt negotiating treason. Be that as it may, George III. considered Andre a martyr, and honoured his memory by granting a pension to his mother and a baronetcy to his brother.[312]

[Footnote 310: See Halleck in _A.J._ V. (1911), p. 594.]

[Footnote 311: Halleck, _loc. cit._, p. 598, a.s.serts the contrary.]

[Footnote 312: See Phillimore, III. -- 106; Halleck, I. p. 575; Rivier, II. p. 284.]

[Sidenote: Punishment of Espionage.]

-- 161. The usual punishment for spying is hanging or shooting, but less severe punishments are, of course, admissible and sometimes inflicted.

However this may be, according to article 30 of the Hague Regulations a spy may not be punished without a trial before a court-martial. And according to article 31 of the Hague Regulations a spy who is not captured in the act but rejoins the army to which he belongs, and is subsequently captured by the enemy, may not be punished for his previous espionage and must be treated as a prisoner of war. But it must be specially observed that article 31 concerns only such spies as belong to the armed forces of the enemy; civilians who act as spies and are captured later may be punished. Be that as it may, no regard is paid to the status, rank, position, or motive of a spy. He may be a soldier or a civilian, an officer or a private. He may be following instructions of superiors or acting on his own initiative from patriotic motives. A case of espionage, remarkable on account of the position of the spy, is that of the American Captain Nathan Hale, which occurred in 1776. After the American forces had withdrawn from Long Island, Captain Hale recrossed under disguise and obtained valuable information about the English forces that had occupied the island. But he was caught before he could rejoin his army, and he was executed as a spy.[313]

[Footnote 313: The case of Major Jakoga and Captain Oki, which, though reported as a case of espionage, is really a case of treason, will be discussed below in -- 255.]