Law of armed conflict

“ This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. ”

“ The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war (§ 7) , but also the breaking of stipulations solemnly contracted by the belligerents, in time of peace, and avowedly intended to remain in force in case of war between the contracting powers. ”

“ Martial Law in a hostile country, consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force, for the same ”

“ As their bodies swung to and fro, well relieved against the sky, and the setting sun cast its lurid beams over countenances yet warm in death, many felt the extreme severity yet justice of military law, particularly in an enemy's country. ”

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

“ An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. ”

“ That national armaments be limited to purposes of internal police, no nation be allowed to have a force sufficient to be a menace to general peace, and a League of Peace be formed which shall have at its hand sufficient armed power to compel order among the States. ”

“ It allows of no individual violence; and since it consists in the substitution of military rule for the established law and its administration, and because it is founded on military force, it is incumbent upon all military authorities acting by Martial Law, to be strictly guided by the principles of justice, honor, and humanity—virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. ”

“ Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed—even in the commander’s own country—when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion. ”

“ In the first place, international law declares that in a hostile section an army may save its rations and live off the country. To the large majority of the soldiers this would be sufficient warrant for them to appropriate from the enemy whatever they had a present liking for in the line of provisions. If all laws were based on absolute justice, the one quoted would settle the question finally, and leave nothing as an objection to foraging. ”

“ In modern wars all civil and penal law continues to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provincial, or local character, 4cease under Martial Law, or continue only with the assistance or special approbation of the occupier or invader. ”

“ Deserters from the American army, having entered the service of the enemy, suffer death, if they fall again into the hands of the United States, whether by capture, or being delivered up to the American army; and if a deserter from the enemy having taken service in the army of the United States, is captured by the enemy, and punished by them with death or otherwise, the United States do not consider it a breach against the law and usages of war, requiring redress or retaliation. ”

“ Another extraordinary moral consequence flows from this insufficiency of defence: “If the enemy fails to defend his country, we may rightfully appropriate what we want.” Here, now, is a nice question of martial law or casuistry, solved with the simplicity of an ancient Roman. In other words, when in the enemy’s country, the army shall be strictly careful not to seize, capture or appropriate to military or private uses, any property—that it cannot get.
“They (the Southern people) have lost all title to property, and can lose nothing not already forfeited.” ”

“ A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest. ”

“ But even those who look upon the Appeal of Battle as occasionally unavoidable in international controversies, concur in thinking it a deplorable necessity, only to be resorted to when all peaceful modes of arrangement have been vainly tried; and when the law of self-defence justifies a State, like an individual, in using force to protect itself from imminent and serious injury. ”

“ It is no longer considered lawful—on the con­trary, it is held to be a serious breach of the law of war—to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own and make it a portion of its own country. ”

“ War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
Section V.
Safe-conduct—Spies—War-traitors—Captured messengers—Abuse of the flag of truce. ”

“ When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.
19.
Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombard­ment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. ”

“ The Law of War does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, that may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry ”

“ The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. ”

“ It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. ”

“ But if the purpose of war necessitates it he is justified in so doing.
Destruction of Arms, Ammunition, and Provisions.
§ 152. Whatever enemy property a belligerent may appropriate he may likewise destroy. To prevent the enemy from making use of them a retreating force may destroy arms, ammunition, provisions, and the like, which they have taken from the enemy or requisitioned and cannot carry away. But it must be specially observed that they may not destroy provisions in the possession of private enemy inhabitants in order to prevent the enemy from making use of them in the future. ”

“ The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents, if they carry arms openly and if they respect the laws and customs of war. ”

“ Yet legitimate warfare is, on the whole at any rate, secured through several means recognised by International Law. These means of securing legitimate warfare may be divided into three classes. The first class comprises measures of self-help:—reprisals; punishment of war crimes committed by enemy soldiers and other enemy subjects ”

“ The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. ”

“ For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance ”

“ So citizens, good in the main, when they buckle on their forty-some-odds, declare a little martial law on their own account. We carry the law of the land at the saddle-horn, as the saying goes. The bad citizen packs a gun anyway and the good one ought to have an even break. It won't work, Professor. There are many good reasons to urge on your side—notably the appeal to arms just because they're handy. But there's no argument for or against a man carrying a gun that won't apply with equal force to a nation building a navy. A navy does other things besides fighting. ”

“ The State, then, in and of itself, declared martial law, and the defendants attempted to enforce it. In such a condition of things, I am not prepared to say that the authorities of a State alone can exercise the rights of war against their own citizens; persons, too, who, it is to be remembered, were for many purposes at the same time under the laws and protection of the general government. ”

“ The disarmed soldier is also no longer enemy, but subject. Our mode of considering him as a prisoner of war and keeping him for exchange, is an arbitrary arrangement of modern policy, which has no thorough, independent object in prosecuting war, and hence at all times considers the possibility of treating with the enemy. ”

“ Whether the use of armed force to impose or to resist the imposition of policy constitutes a legal state of war is a political question which does not affect the tasks the armed forces may be called on to perform. War, therefore, is to be understood herein as any condition in which one State employs physical violence against another, or against an organized part of itself which may be in rebellion. ”

“ Once restrict legitimate warfare to the limits of national defence, and it is evident that the refusal of men to take part in a war of aggression would equally put an end to the necessity of defensive exertion. ”

“ In 1798 an order in Council was issued to all general officers commanding H.M. forces to punish all persons acting in, aiding, or in any way assisting the rebellion, according to martial law, either by death or otherwise, as to them should seem expedient for the suppression and punishment of all rebels ”

“ Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. ”

“ The surrender of all munitions of war will not embrace the side arms of the officers, nor their private horses or baggage. Each officer and man will be allowed to return to their homes, not to be disturbed by the United States authorities so long as they observe their paroles and the laws in force where they may reside. ”

“ As war is a contention between States for the purpose of overpowering each other, violence consisting of different sorts of force applied against enemy persons is the chief and decisive means of warfare. These different sorts of force are used against combatants as well as non-combatants, but with discrimination and differentiation. The purpose of the application of violence against combatants is their disablement so that they can no longer take part in the fighting. ”

“ Article 3 of the Convention, which refers to the laws and customs of war, forbids the combatants to force enemy subjects to participate in military operations directed against their own country, even in cases where these subjects had been in their service before the outbreak of war. ”