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land should be subject to legal adjudication before confiscation. The British prize courts have in fact been given jurisdiction of such seizures.20 In the United States the abandoned and captured property act of 186321 furnished a somewhat similar remedy during the Civil war. By this act, a sum equal to the value of captured property was to be deposited in the treasury, and persons claiming ownership were permitted to prosecute claims for such property in the court of claims. Property intended for use in waging war such as arms, ordinance ships, steamboats, forage, military supplies, etc., were excluded, and persons who had given “aid or comfort” to the rebellion were denied this privilege.
Such privileges as this have not been granted in other wars. This act probably was due to the fact that being a civil war, many inhabitants of the seat of war were loyal to the union cause. The act was to reimburse such persons, rather than enemies. As a matter of fact, by an act of 1864a2 it was specifically declared that the jurisdiction of the court of claims should not extend to general claims “against the United States growing out of the destruction or appropriation of or damage to property by the army or navy” during the Civil war.
In general therefore the United States does not provide for the enforcement by means of judicial adjudication of its duty to abstain from capturing enemy private property on land. The duty is enforced indirectly by measures for preventing illegal seizures by armed forces.
20Statute 1840, 3-4 Vict. c. 65, sec. 22, The Banda and Kirwee Booty L. R. I Adm. and Ecc. 109 (1866) Pitt Cobbett cases and opinions on international law, 2 vols., London, 1913, 2;201.
21 Act March 12, 1863, 12 stat. 820; Moore's Digest, 7;295-300. Cases under this act, see Young vs. U. S. 97 U. S. 39, (1877); Briggs vs. U. S., 143 U. S. 346, (1892); Vance vs. U. S., 30 Ct. Cl., 252. British subjects enjoy the benefits of this act, U. S. vs. O'Keefe, 11 Wall. 178; Carlisle vs. U. S. 16 Wall 147.
22 Act, July 4, 1864, 13 stat. 381.
CHAPTER XV. OBLIGATIONS OF PREVENTION
It is for the most part through the enforcement of the duty of prevention, as against its armed representatives, that the state fulfills its duties of abstention; and it is largely through the municipal sanctions thus enforced that the law of war is observed at all. The belligerent's duties toward neutrals tend to be observed because of the sanctions of international law. Neutrals can bring threats of force and demands for reparation which the belligerent usually finds it convenient to heed. But in the law of war the enemy is already using all the force he can. The treaty of peace definitely concludes any further demand for reparation. What therefore is the force which causes obedience to the law of war? There is none, except that of self-interest. Reciprocity benefits both belligerents. Each knows that a breach of law on its part will bring about a retaliatory breach by the other. If this process were continued, war rights would soon pass all limits, the law of war would disappear and savagery would prevail. It is only in so far as the principle of reciprocal benefit acts that the law is obeyed.
The state must therefore take extreme care that its armed representatives do not unwittingly break the law of war, for the minute the breach is made, a progressive march of retaliation and counter-retaliation will have begun which, although contrary to the self-interest of both, neither can stop. We will therefore discuss the laws of the United States designed to prevent infractions of the law of war by its (1) land forces and (2) naval forces. As a thírd division we will consider the laws of like effect in reference to (3) the civil population.
ACTS BY LAND FORCES Military law, military government, and martial law are three terms relating to the legal position of land forces in time of war which should be distinguished. Martial law is the law
" in force in portions of the home territory of a belligerent near
1On these distinctions see Ex Parte Milligan, 4 Wall. 2; W. E. Birkheimer, Military Government and Martial Law, 2nd. ed. London, 1904; p. 21, 372, G. B. Davis, Treatise on Military Law, p. 6.
the seat of war or in a state of insurrection. It is a matter regulated entirely by constitutional law and as its effect is primarily domestic it has no connection with international law, except in case neutrals are injured by the suspension of constitutional guarantees, in which case international questions would arise, but extraneous to the present topic.
Military government exists when an army is in secure occupation of a portion of enemy territory. The law applied under military government, (to which the term martial law is also sometimes applied), bears a relation to martial law, but in reality the condition is somewhat different. In the latter case the persons affected are for the most part citizens; in the former they are foreigners. The law of military government, therefore, is a matter governed by international law. The occupying belligerent owes obligations to the inhabitants and they owe obligations to it, both of which are determined by international law. We are therefore concerned here with the law of military government which the United States requires of its armies.
Military law is the law regulating the conduct of the army. It consists of the rules defining the powers and liabilities of military officers and enlisted men and the means of enforcing them. It defines the constitution of military tribunals, such as courts martial, military commissions and commissions of inquiry, their jurisdiction and their procedure, as well as the rules of executive subordination and enforcement of discipline. In the United States, military law is found in statutes, army regulations, and instructions and opinions of courts, attorneys general and judge advocates general.3 Military law is not a part of international
2See Lieber's Instructions, art. 1-10. By applying the theory of de facto governments, that sovereignty passes immediately upon effectual occupation of the territory, the law of military governments fulfills our definition of marital law, for the occupied territory has become home territory. With this conception the law of military government would be a subject of constitutional rather than of international law. Because of the practical difference and because of the fact that military government is regarded as a temporary and not permanent transfer of sovereignty, it seems well to preserve the distinction.
3The statutory laws relating to the control of the army, annotated with references to court decisions, and official opinions, may be found in “The Military laws of the United States”, 1901, ed. G. B. Davis, with supplement to 1911, ed. J. B. Porter. The “Digest of Opinions of the Judge Advocates General of the Army” published in 1912, C. R. Rowland, ed., also contains references to statutes, cases and opinions of attorneys general bearing on the various points. See also annual publication of Army Regulations and General Orders of the War Department.
law. The relationships it defines are entirely domestic. Yet it is of great importance for our present subject, for it is through the sanctions of military law that the army is compelled to obey the law of war. Much of it consists of laws supplementary to international law.
There has long been a discussion whether war is a relation between states or between armies. The latter view was eloquently espoused by Rousseau* and apparently influenced the early statesmen of the United States. At any rate the policy they established, now a national tradition, that private property ought to be immune from capture in war, is in harmony with it. The present regime of universal conscription armies seems to nullify the theory, in Europe at least. In our view Rousseau's dicta is untenable. The relationship is one between two communities or states, not between two armies or two navies. Facts are sufficient justification for the assertion. It is, however, clear that though both are enemies a distinction exists between combatants and noncombatants. We may therefore consider successively the duties of the army to (1) combatants and (2) non-combatants.
(1) The duties of armed forces toward enemy combatants include such matters as the employment of only legitimate means of warfare, care of sick and wounded, treatment of prisoners of war and spies, observance of flags of truce, armistices, etc.
A number of early treaties prescribed humane treatment for prisoners of war. All of the subjects mentioned are regulated in detail in the Hague conventions of 1899 and 1907 relating to the laws of war on land and in the Geneva conventions of 1864 establishing the red cross flag and prescribing rules for the care of the sick and wounded. By its ratification of these treaties the United States has made them law for its armies. The same matters are covered by Francis Lieber's celebrated instructions for the government of the armies of the United States in the field, written during the Civil war. On April 24, 1863, these instructions were officially promulgated as a general order of the war department and are therefore binding law for the army. The in
"J. J. Rousseau, The Social Contract, Translation by Tozer, London, 1909, p. 106. See discussion on this question, J. Westlake, Principles of International Law, Cambridge, 1894, p. 258; G. M. Ferrante, Private Property in Maritime War, Pol. Sci. Quar., 20; 706, (1895).
5Treaties, Algiers, 1816-1830, art. 17, p. 15; Prussia, 1785-1796, art. 24, p. 1484; 1799-1810, revived 1828, art. 24, p. 1494; Mexico, 1848, art. 22, p. 1118; Morocco, 1787-1836, art. 16, p. 1209, Tripoli, 1805-1911, art. 16, p. 1791.
structions give detailed regulations defining the limits permitted by necessity and by retaliation, the treatment of prisoners of war and spies, use of flags of truce, exchange of prisoners, and prohibited measures such as assassination.
The enforcement of these laws is largely in the hands of military commissions. Courts martial, being of statutory jurisdiction, can not take cognizance of many of these cases, as violations of the laws of war are not listed in the offenses specified in the articles of war. By statute courts martial are, however, given jurisdiction over the trial of spies, and over officers or soldiers injuring persons bringing provisions or other necessaries to the army while in “foreign parts”. This jurisdiction extends to camp followers, retainers and militia in the service of the government, as well as the regular army and volunteers violating the articles of war. The imposition of criminal penalties upon violators is the means employed by both courts martial and military commissions for enforcing the law. It must not be lost sight of, however, that the control of the army is largely executive rather than legal. It is to the discretion of commanding officers that enforcement of the laws of war, whether unwritten, in treaties, or in orders, is left.10
(2) Non-combatants vary in legal rights somewhat according to circumstances. Thus non-combatants domiciled in the belligerent's own state, in territory under military government and in the actual zone of hostilities enjoy different immunities. The army does not affect the first class. Their treatment will be considered under the duties of the civil population.
On authority and jurisdiction of courts martial and military commissions see Rev. Stat. sec. 1342-1343; Military Laws, 1911, p. 744, note 1, P. 745; Dig. Op. Judge. Ad. Gen., 1912, p. 1067; Lieber's Instructions, art. 13.
7Rev. Stat. sec. 1343.
8 Articles of War, Rev. Stat., sec. 1342, art. 56, 63, 64. Courts martial may punish members of these classes for felonies in time of war, (art. 58) and soldiers for being found over a mile from camp without leave, (art. 34).
°Dig. Op. Judge Ad. Gen., 1912, pp. 510-511, 1071-1072.
10 By the Articles of War an officer must keep good order and “to the utmost of his power, redress all abuses and disorders which may be committed by an officer or soldier under his command, (art. 54) and officers guilty of conduct unbecoming an officer and a gentleman may be dismissed.” (art. 61).