International Law

by

Henry Maine

LECTURE VIII.
THE MODERN LAWS OF WAR.

In my last lecture I explained the detestation which newly-invented instruments of war sometimes occasioned in olden days, and of the severity with which soldiers who employed them were sometimes treated. The Manual for the use of officers in the field, on which I am basing these lectures, states the general rule on the subject of new warlike inventions in the following terms:

'With the exception of the means above stated to be prohibited. any instruments of destruction, whether open or concealed, partial or widespread in their effects, shells of any weight, torpedoes, mines, and the like, may legitimately be employed against an enemy; and seeing that the use is legitimate, there is no reason why the officers or soldiers employing them should be refused quarter, or be treated in a manner worse than other combatants.' The means above stated to be prohibited are poisoning water or food, assassination, and the use of explosive bullets above certain weight. It is added that 'a humane commander will, so far as the exigencies war admit, endeavor to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only, but practically no rule can be laid down on the subject.'

The latest instance in which mines of an extent and destructiveness far exceeding the immediate object were used, was one which attracted but little notice in this country owing to the distance of the locality at; which the explosion took place. It happened, however, that in the course of the advance of the Russian armies through the Tartar countries to the frontier of Afghanistan a well-known Russian commander, much beloved and respected, General Skobeleff, found his progress obstructed by a great fortification erected by a large tribe of Tartars. This was the fortress of Akhal Teke, an enormous construction of burnt clay. It would have taken much time, and cost many lives, to attack it by any of the recognized methods of capture. It appeared, however, that the tribe which had erected this fortress had no conception whatever of a mine, and Skobeleff passed several weeks before these walls in excavating mines of an enormous extent. At last, the besieged having no suspicion that they were likely to be attacked in any way except that known to them, the mines were exploded, and the greater part of the fortress and a vast number of persons inside it were at once destroyed. The remainder of the tribe received very severe treatment from the successful besiegers, and but a small portion escaped. It is sad to think that this example of warlike severity was set by the general of the Power which, it would be only just to admit, has done most to mitigate the cruelties of war. Skobeleff defended himself on the ground that what he had done was true humanity rather than severity, and that in no other way could a tribe which was not only formidable in war, but had done much to prevent the even temporary establishment of peace in those countries, be reduced. But, no doubt, in all operations of war which are conducted under the eyes of civilized men, who watch them through the press and the telegraph, the practice is stated in these Manuals, that 'a humane commander will, so far as the exigencies of war admit, endeavor to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only; but practically,' it is cautiously added, 'no rule can be laid down on the subject.' The general principle is -- and this is the conclusion of all these writers -- that in the mode of carrying on the war no greater harm shall be done to the enemy than necessity requires for the purpose of bringing him to terms. This principle excludes gratuitous barbarities, and every description of cruelty and insult that serves only to exasperate the sufferings or to increase the hatred of the enemy without weakening his strength or tending to produce his submission.

An interesting question for us to ask ourselves is, whether in the future history of warfare there is likely to be any such proscription of weapons through sheer dislike or horror as was common in the Middle Ages. I am myself not convinced but that hereafter there may be a very serious movement in the world on the subject of some parts of the newly-invented armament. Let us just take into our consideration two new inventions, which have shown themselves capable of causing terrific destruction -- two new implements of naval warfare, the Ram and the Torpedo. Neither has been extensively tried at present -- one hardly at all. At the battle of Lissa in the Adriatic, on the coast of North America during the War of Secession, and also on the western coast of South America, the ram has been tried, and has proved to be an instrument whose effects can hardly be measured. Ships have been sunk in a moment or two by its use. Of the use of the torpedo, however, we have hardly any example. Among military and naval men there is still great controversy as to its effectiveness. Torpedoes during the Russo-Turkish war were laid down in the mouths of the Danube in great quantities, but the Russians had no difficulty in removing them without injury to themselves; and all over the World it is still a question whether the defense or the attack, as these writers put it, is the stronger in their case. In this country, I think, which is confident of the possession of the most formidable forms of this implement, there is at present considerable belief in its effectiveness in war; but in France, on the other hand, the opinion on the whole tends in the other direction. French naval writers maintain emphatically that, as yet, it has not been proved that the torpedo is a weapon which can be used on a large scale with safety by a naval combatant; but these French writers have raised a question which is extremely interesting, to us with regard to the discussion which I am just closing. 'You must remember,' says one of them, a celebrated French admiral, 'that a torpedo is used under water and in the dark. Now, are you quite sure that you will always aim your attack against the ship which you intend to destroy? Suppose that the commander of a torpedo fleet makes his way to a force of ships lying off a particular coast, and one of his torpedoes is successfully fixed to the vulnerable parts of one of them. The electric spark is applied, and the ship and everybody on board it is blown into the air or sent into the depths of the sea! Supposing, however, immediately afterwards it is discovered that the ship which has been destroyed is a neutral, perhaps one of the finest vessels of a friendly Power! Do not you think that there would be a thrill of horror through the civilized world, and are you sure teat a combination of civilized nations will not be formed which will condemn the torpedo to the same proscription, and perhaps by the same means, as far more merciful weapons were condemned in the Middle Ages?' For my part, I think this reasoning exceedingly strong, and I am not yet convinced that warlike invention may not reach some point at which the natural feelings of humanity will cause it to be arrested.

I pass now briefly to a portion of these Manuals which in spirit is a good deal connected with that which I am placing before you. It is the chapter which they contain on 'Spies and Stratagems.' A spy, they all say, in a military sense is a person who is found in a district occupied by the enemy collecting secretly, and in disguise, information respecting his condition and designs, with a view of communicating such information to the opposing force. Secrecy and disguise are the essential characteristics of a spy in the military sense. An officer in uniform, however nearly he approaches to the enemy, or however closely he observes his motions, is not a spy, and if taken must be treated as a prisoner of war. Spies when taken are punishable with death, either by hanging or shooting. The services of spies must be secured by rewards, as no one can be called upon to undertake the office of spy as a matter of duty or against his will. A commander may, course, avail himself of information if given by a traitor. How far he is justified in endeavoring to suborn treachery, is a more difficult question. Such transactions are spill by Vattel to be not uncommon, though never boasted of by those who have entered on them. An officer may feign to be a traitor for the purpose of ensnaring an enemy who attempts to corrupt his fidelity; but if he voluntarily makes overtures to the enemy under presence of being a traitor, and then deceives the enemy with false information, his conduct is dishonorable, and contrary to the customs of war. Prisoners of war cannot be punished or ill treated for refusing to disclose the number or condition of the body to which they belong. False attacks, the dissemination of false information or pass-words when not perfidious, are permissible by the customs of war. Indeed, to take a town by surprise, or to turn a position by a stratagem, is more glorious nowadays to a General than to effect the object by force, in proportion as to win a great battle with little slaughter is more creditable to the skill of the General than to gain a bloody victory. It must, however, be observed that no deceit is allowable where no express or implied engagement exists that the truth should be acted or spoken. To violate such an engagement is perfidy and contrary alike to the customs of war and the dictates of honor. For example, it is a gross breach of faith and an outrage against the customs of war to hoist a Hospital flag on buildings not appropriated to the wounded, or to use a place protected by a Hospital flag for any other purpose than a Hospital.

The opinion here expressed, that successes gained through a spy are more creditable to the skill of a commander than successes in drawn battles, was very largely held in the last century, and military writers of great celebrity have left accounts of the successful use which they made of spies and their services. Frederick the Great of Prussia, in November 1760, published Military Instructions for the use of his Generals, which were based on a wide practical knowledge of the matter. He classed spies as 'ordinary spies,' 'double spies,' 'spies of distinction,' and 'spies by compulsion.' By 'double spies' he meant spies who also pretended to be in the service of the side they betrayed; by ' spies of distinction' he meant officers of Hussars whose services he found useful under the peculiar circumstances of an Austrian campaign. When he could not procure himself spies among the Austrians owing to the careful guard which their light troops kept around their camp, the idea occurred to him, and he acted on it with success, of utilizing the suspension of arms that was customary after a skirmish between Hussars, to make those officers the means of conducting epistolary correspondence with the officers on the other aide. 'Spies of compulsion' he explained in this way. When you wish to convey false information to an enemy, you take a trustworthy soldier and compel him to pass to the enemy's camp to represent there all that you wish the enemy to believe. You also send by him letters to excite the troops to desertion; and in the event of its being impossible to obtain information about the enemy, Frederick prescribes the following: choose some rich citizen who has land and a wife and children, and another man, disguised as his servant or coachman, who understands the enemy's language. Force the former to take the latter with him to the enemy's camp to complain of injuries sustained, threatening him that if he fails to bring the man back with him after having stayed long enough for the desired object his wife and children shall be hanged and his house burnt. 'I was myself,' he adds, 'constrained to have recourse to this method, and it succeeded.' The humanity and good faith of Frederick the Great have never been celebrated; but how much of these principles survive to our own times we can gather from Lord Wolseley's 'Soldier's Pocket Book.' 'The best way,' he suggests, 'to send out a spy is to send a peasant with a letter written on very thin paper, which maybe rolled up so tightly as to be portable in a quill an inch and a half long, and this precious quill may be hidden in the hair or beard, or in a hollow at then end of a walking stick. It is also a good plan to write secret correspondence in lemon juice across a newspaper or the leaves of the New Testament. It is then safe against discovery, and will become legible when held before a fire or near a red-hot iron. As a nation,' adds Lord Wolseley, 'we are brought up to feel it a disgrace even to succeed by falsehood. The word "spy" conveys something as repulsive as "slave." We keep hammering along with the conviction that "honesty is the best policy," and that truth always wins in the long run. These sentiments do well for a copy-book, but a man who acts upon them had better sheath his sword for ever.'

One of the most important subjects of which the new Manuals treat is the person of the enemy. The enemy, it is laid down, consists of armed forces and of the unarmed population. The first principle of war is that armed forces as long as they resist may be destroyed by any legitimate means. The right of killing an armed man exists only so long as he resists. As soon as he submits, he is entitled to be treated as a prisoner of war. Quarter should never be refused to men who surrender, unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death; and when so guilty they should, whenever practicable, be taken prisoners and put upon their trial before being executed, as it is seldom justifiable in a combatant to take the law into his own hands against an unresisting enemy. Most of you, I imagine, are aware that this principle, stated in this broad way, is quite modern. Most of us have learnt, when children, touching stories of the refusal of quarter to garrisons that had surrendered in our avers of succession with France. Many of us remember Froissart's story of six citizens of Calais whom Edward III was with difficulty restrained from hanging for the obstinate resistance they had made to the siege of their town. In point of fact, during this war, and the later war of Henry V against France, even when the successful General was disposed to be merciful, he generally reserved a certain number of the besieged, though a small number, for execution. When Rouen surrendered to Henry V the latter stipulated for three of the citizens to be left at his disposal, of whom two purchased their lives, but the third was beheaded. When the same king, the year following, was besieging the castle of Montereau, he sent twenty prisoners to treat with the Governor for a surrender; but when the Governor refused to treat even to save their lives, and when, after taking leave of their wives and families, they were escorted back to the English army, the King of England ordered erected, and had them all hanged in sight of those within the castle. When Meaux surrendered to the same king, it was stipulated that six of the bravest defenders should be delivered up to justice, four of whom were beheaded at Paris, and its commander at once hanged on a tree outside the walls of the city. No doubt this severity was due in a great degree to the hard measure which in those days was always dealt out to a force which had resisted an attack when there was no chance of success. And this is one ground on which the savage practices which accompanied storms and sieges were explained; but it is always to be recollected that in these French and English wars there was another cause of extreme truculence. In the minds of those who waged them they were wars of succession, and questions therefore of the faith and submission due to a sovereign mixed themselves up with the ordinary considerations of the field. On reading the accounts of them carefully, the special severities of our Edward III and our Henry V may be seen to be constantly explained by the successful king's belief that he was dealing with traitors who had surrendered themselves; and in fact it appears to have been the conviction that the population attacked owed legally fealty to the General of the army attacking them, which led specially to the cruelties of these wars, just as a conviction of the lawfulness of the severest punishment for heresy and infidelity led to the savageness of the wars of religion. There is no doubt that at present the Manuals state the practice correctly, that quarter ought never to be refused to men who surrender, unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death, and when so guilty they should whenever practicable be taken prisoners and put upon their trial before they are executed, for it is seldom justifiable for a combatant to take the law into his own hands against an unresisting enemy. The point was one which was largely discussed at the Conference of Brussels, and it was proposed by some of the delegates that even spies should be no longer executed when taken, but should always be treated as prisoners of war.

We come now to portions of these Manuals of warlike customs which are pleasanter reading. 'The wounded must not only be spared, but humanity commands that if they fall into the hands of their opponents the care taken of them should be second only to the care taken of the wounded belonging to the captors. Surgeons and others in attendance on the wounded, though forming part of the armed forces, are exempted from the liability of being attacked unless they divest themselves of their non-combatant character by actually using arms, in which case they may be treated as part of the combatant body. The same amenity and under the same conditions should be extended to camp followers, and other persons in attendance on the army but not bearing arms,'

The first and last parts of this paragraph give the results of the Geneva Convention, the furthest point which has at present been reached by humane doctrine in the actual conduct of war. This Convention was signed on August 22, 1864. It states that it was drawn up for the amelioration of the condition of the wounded of armies in the field. I will read you a few of its principal provisions:

'Ambulance end military Hospitals shall be acknowledged to be neutral, and as such shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or Hospitals should be held by a military force. Persons employed in Hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality while so employed, and so long as there remain any wounded to bring in and to succour.' The persons designated in the preceding article may even after occupation by the enemy continue to fulfill their duty in the Hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Under such circumstances, when those persons shall cease from their functions they shall be delivered by the occupying army to the outposts of the enemy. As the equipment of military Hospitals remains subject to the laws of war, persons attached to such Hospitals cannot on their withdrawing carry away any articles but their own private property; and under the circumstances an ambulance shall, on the contrary, retain its equipment. Inhabitants of the country who may bring help to the wounded shall be respected and remain free. The Generals of the belligerent Powers shall make it their care to inform the inhabitants of the appeal addressed to their humanity, and of the neutrality which shad be the consequence of it. Any wounded when entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders-in-chief shall have the power to delver immediately to the outposts of the enemy soldiers who have been wounded in an engagement, when circumstances permit it to be done, and with the consent of both parties. Those who are recognized, after their wounds are healed, as incapable of serving, shad be sent back to their country. The others may also be sent back on condition of not again bearing arms during the continuance of the war. Evacuations, together with the persons under whose directions they take place, shall be protected by absolute neutrality. A distinctive and uniform tag shall be adopted for Hospitals, ambulances, and evacuations. It must on every occasion be accompanied by the neutral flag. A badge for the arm shall also be allowed for individuals neutralized; but the delivery thereof shall be left to the neutral authority. The flag and the badge shall bear a red cross on a white ground.

The conduct of the Hospitals established under the Geneva Convention has been carried on by surgeons, nurses, and military servants, with the greatest self-sacrifice and with the greatest enthusiasm. Nothing, I hope, will ever occur to provoke retrograde measures with regard to so great a reform. At the same time there are some drawbacks, from a military point of view, to the application of the provisions of the Geneva Convention, on which I will say a few words in conclusion. I am told on very excellent authority that it is very difficult to persuade military commanders in the field of the perfect fairness and good faith with which these provisions are carried into action. You may not fire on a Geneva Hospital or ambulance, and yet the Geneva Hospital, with its ambulances and appurtenances generally kept a good deal in motion, is a very extensive set of structures, and protects a considerable portion of the field from the line of fire. Generals are apt to think, or to persuade themselves, that the Hospital has been put in a locality either expressly designed to cover the fire of one party or another, or to prevent the fire of one party from being as effective as it might be. There is, I am persuaded, a great deal of delusion about these suspicions, delusion unhappily of the nature which is constantly arising in the minds of men actually engaged in a deadly struggle. All that we have a right to say here is, that the most abundant good faith should be. used in the localization and use of these beneficent mitigations of the hardships of war, and that no punishment would be too severe for an officer, no matter his rank, who knowingly used them for the purpose of inflicting warlike injury on an opponent.