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GENERAL
ORDERS No. 100.
WAR DEPT., ADJT.
GENERAL'S OFFICE,
Washington, April 24, 1863.
The following "Instructions for the Government of Armies of the
United States in the Field," prepared by Francis Lieber, LL.D.,
and revised by a board of officers, of which Maj. Gen. E. A.
Hitchcock is president, having been approved by the President of the
United States, he commands that they be published for the
information of all concerned.
By order of the
Secretary of War:
E. D. TOWNSEND,
Assistant Adjutant-General.
INSTRUCTIONS FOR THE
GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD.
SECTION I.--Martial
law--Military jurisdiction--Military necessity--Retaliation.
1. 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.
The presence of a hostile
army proclaims its martial law.
2. 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.
3. 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
well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the
forces may proclaim that the administration of all civil and penal
law shall continue either wholly or in part, as in times of peace,
unless otherwise ordered by the military authority.
4. Martial law is simply
military authority exercised in accordance with the laws and usages
of war. Military oppression is not martial law; it is the abuse of
the power which that law confers. As martial law is executed by
military force, it is incumbent upon those who administer it 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.
5. 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.
To save the country is
paramount to all other considerations.
6. All civil and penal
law shall continue 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, cease under martial law, or continue only with the
sanction, or, if deemed necessary, the participation of the occupier
or invader.
7. Martial law extends to
property, and to persons, whether they are subjects of the enemy or
aliens to that government.
8. Consuls, among
American and European nations, are not diplomatic agents.
Nevertheless, their offices and persons will be subjected to martial
law in cases of urgent necessity only; their property and business
are not exempted. Any delinquency they commit against the
established military rule may be punished as in the case of any
other inhabitant, and such punishment furnishes no reasonable ground
for international complaint.
9. The functions of
ambassadors, ministers, or other diplomatic agents, accredited by
neutral powers to the hostile government, cease, so far as regards
the displaced government; but the conquering or occupying power
usually recognizes them as temporarily accredited to itself.
10. Martial law affects
chiefly the police and collection of public revenue and taxes,
whether imposed by the expelled government or by the invader, and
refers mainly to the support and efficiency of the Army, its safety,
and the safety of its operations.
11. The law of war does
not only disclaim all cruelty and bad faith concerning engagements
concluded with the enemy during the war, 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.
It disclaims all
extortions and other transactions for individual gain; all acts of
private revenge, or connivance at such acts.
Offenses to the contrary
shall be severely punished, and especially so if committed by
officers.
12. Whenever feasible,
martial law is carried out in cases of individual offenders by
military courts; but sentences of death shall be executed only with
the approval of the chief executive, provided the urgency of the
case does not require a speedier execution, and then only with the
approval of the chief commander.
13. Military jurisdiction
is of two kinds: First, that which is conferred and defined by
statute; second, that which is derived from the common law of war.
Military offenses under the statute law must be tried in the manner
therein directed; but military offenses which do not come within the
statute must be tried and punished under the common law of war. The
character of the courts which exercise these jurisdictions depends
upon the local laws of each particular country.
In the armies of the
United States the first is exercised by courts-martial; while cases
which do not come within the Rules and Articles of War, or the
jurisdiction conferred by statute on courts-martial, are tried by
military commissions.
14. Military necessity,
as understood by modern civilized nations, consists in the necessity
of those measures which are indispensable for securing the ends of
the war, and which are lawful according to the modern law and usages
of war.
15. Military necessity
admits of all direct destruction of life or limb of armed enemies,
and of other persons whose destruction is incidentally unavoidable
in the armed contests of the war; it allows of the capturing of
every armed enemy, and every enemy of importance to the hostile
government, or of peculiar danger to the captor; it allows of all
destruction of property, and obstruction of the ways and channels of
traffic, travel, or communication, and of all withholding of
sustenance or means of life from the enemy; of the appropriation of
whatever an enemy's country affords necessary for the subsistence
and safety of the Army, and of such deception as does not involve
the breaking of good faith either positively pledged, regarding
agreements entered into during the war, or supposed by the modern
law of war to exist. Men who take up arms against one another in
public war do not cease on this account to be moral beings,
responsible to one another and to God.
16. Military necessity
does not admit of cruelty--that is, the infliction of suffering for
the sake of suffering or for revenge, nor of maiming or wounding
except in fight, nor of torture to extort confessions. It does not
admit of the use of poison in any way, nor of the wanton devastation
of a district. It admits of deception, but disclaims acts of
perfidy; and, in general, military necessity does not include any
act of hostility which makes the return to peace unnecessarily
difficult.
17. War is not carried on
by arms alone. It is lawful to starve the hostile belligerent, armed
or unarmed, so that it leads to the speedier subjection of the
enemy.
18. When a commander of a
besieged place expels the non-combatants, 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 non-combatants, 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.
20. Public war is a state
of armed hostility between sovereign nations or governments. It is a
law and requisite of civilized existence that men live in political,
continuous societies, forming organized units, called states or
nations, whose constituents bear, enjoy, and suffer, advance and
retrograde together, in peace and in war.
21. The citizen or native
of a hostile country is thus an enemy, as one of the constituents of
the hostile state or nation, and as such is subjected to the
hardships of the war.
22. Nevertheless, as
civilization has advanced during the last centuries, so has likewise
steadily advanced, especially in war on land, the distinction
between the private individual belonging to a hostile country and
the hostile country itself, with its men in arms. The principle has
been more and more acknowledged that the unarmed citizen is to be
spared in person, property, and honor as much as the exigencies of
war will admit.
23. Private citizens are
no longer murdered, enslaved, or carried off to distant parts, and
the inoffensive individual is as little disturbed in his private
relations as the commander of the hostile troops can afford to grant
in the overruling demands of a vigorous war.
24. The almost universal
rule in remote times was, and continues to be with barbarous armies,
that the private individual of the hostile country is destined to
suffer every privation of liberty and protection and every
disruption of family ties. Protection was, and still is with
uncivilized people, the exception.
25. In modern regular
wars of the Europeans and their descendants in other portions of the
globe, protection of the inoffensive citizen of the hostile country
is the rule; privation and disturbance of private relations are the
exceptions.
26. Commanding generals
may cause the magistrates and civil officers of the hostile country
to take the oath of temporary allegiance or an oath of fidelity to
their own victorious government or rulers, and they may expel every
one who declines to do so. But whether they do so or not, the people
and their civil officers owe strict obedience to them as long as
they hold sway over the district or country, at the peril of their
lives.
27. The law of war can no
more wholly dispense with retaliation than can the law of nations,
of which it is a branch. Yet civilized nations acknowledge
retaliation as the sternest feature of war. A reckless enemy often
leaves to his opponent no other means of securing himself against
the repetition of barbarous outrage.
28. Retaliation will
therefore never be resorted to as a measure of mere revenge, but
only as a means of protective retribution, and moreover cautiously
and unavoidably--that is to say, retaliation shall only be resorted
to after careful inquiry into the real occurrence and the character
of the misdeeds that may demand retribution.
Unjust or inconsiderate
retaliation removes the belligerents farther and farther from the
mitigating rules of regular war, and by rapid steps leads them
nearer to the internecine wars of savages.
29. Modern times are
distinguished from earlier ages by the existence at one and the same
time of many nations and great governments related to one another in
close intercourse.
Peace is their normal
condition; war is the exception. The ultimate object of all modern
war is a renewed state of peace.
The more vigorously wars
are pursued the better it is for humanity. Sharp wars are brief.
30. Ever since the
formation and coexistence of modern nations, and ever since wars
have become great national wars, war has come to be acknowledged not
to be its own end, but the means to obtain great ends of state, or
to consist in defense against wrong; and no conventional restriction
of the modes adopted to injure the enemy is any longer admitted; but
the law of war imposes many limitations and restrictions on
principles of justice, faith, and honor.
SECTION
II.--Public and private property of the enemy--Protection of
persons, and especially of women; of religion, the arts and
sciences--Punishment of crimes against the inhabitants of hostile
countries.
31. A victorious army appropriates all public money, seizes all
public movable property until further direction by its government,
and sequesters for its own benefit or of that of its government all
the revenues of real property belonging to the hostile government or
nation. The title to such real property remains in abeyance during
military occupation, and until the conquest is made complete.
32. A victorious army, by
the martial power inherent in the same, may suspend, change, or
abolish, as far as the martial power extends, the relations which
arise from the services due, according to the existing laws of the
invaded country, from one citizen, subject, or native of the same to
another.
The commander of the army
must leave it to the ultimate treaty of peace to settle the
permanency of this change.
33. 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.
34. As a general rule,
the property belonging to churches, to hospitals, or other
establishments of an exclusively charitable character, to
establishments of education, or foundations for the promotion of
knowledge, whether public schools, universities, academies of
learning or observatories, museums of the fine arts, or of a
scientific character-such property is not to be considered public
property in the sense of paragraph 31; but it may be taxed or used
when the public service may require it.
35. Classical works of
art, libraries, scientific collections, or precious instruments,
such as astronomical telescopes, as well as hospitals, must be
secured against all avoidable injury, even when they are contained
in fortified places whi1st besieged or bombarded.
36. If such works of art,
libraries, collections, or instruments belonging to a hostile nation
or government, can be removed without injury, the ruler of the
conquering state or nation may order them to be seized and removed
for the benefit of the said nation. The ultimate ownership is to be
settled by the ensuing treaty of peace.
In no case shall they be
sold or given away, if captured by the armies of the United States,
nor shall they ever be privately appropriated, or wantonly destroyed
or injured.
37. The United States
acknowledge and protect, in hostile countries occupied by them,
religion and morality; strictly private property; the persons of the
inhabitants, especially those of women; and the sacredness of
domestic relations. Offenses to the contrary shall be rigorously
punished.
This rule does not
interfere with the right of the victorious invader to tax the people
or their property, to levy forced loans, to billet soldiers, or to
appropriate property, especially houses, lands, boats or ships, and
the churches, for temporary and military uses.
38. Private property,
unless forfeited by crimes or by offenses of the owner, can be
seized only by way of military necessity, for the support or other
benefit of the Army or of the United States.
If the owner has not
fled, the commanding officer will cause receipts to be given, which
may serve the spoliated owner to obtain indemnity.
39. The salaries of civil
officers of the hostile government who remain in the invaded
territory, and continue the work of their office, and can continue
it according to the circumstances arising out of the war--such as
judges, administrative or political officers, officers of city or
communal governments--are paid from the public revenue of the
invaded territory until the military government has reason wholly or
partially to discontinue it. Salaries or incomes connected with
purely honorary titles are always stopped.
40. There exists no law
or body of authoritative rules of action between hostile armies,
except that branch of the law of nature and nations which is called
the law and usages of war on land.
41. All municipal law of
the ground on which the armies stand, or of the countries to which
they belong, is silent and of no effect between armies in the field.
42. Slavery, complicating
and confounding the ideas of property (that is, of a thing), and of
personality (that is, of humanity), exists according to municipal or
local law only. The law of nature and nations has never acknowledged
it. The digest of the Roman law enacts the early dictum of the pagan
jurist, that "so far as the law of nature is concerned, all men
are equal." Fugitives escaping from a country in which they
were slaves, villains, or serfs, into another country, have, for
centuries past, been held free and acknowledged free by judicial
decisions of European countries, even though the municipal law of
the country in which the slave had taken refuge acknowledged slavery
within its own dominions.
43. Therefore, in a war
between the United States and a belligerent which admits of slavery,
if a person held in bondage by that belligerent be captured by or
come as a fugitive under the protection of the military forces of
the United States, such person is immediately entitled to the rights
and privileges of a freeman. To return such person into slavery
would amount to enslaving a free person, and neither the United
States nor any officer under their authority can enslave any human
being. Moreover, a person so made free by the law of war is under
the shield of the law of nations, and the former owner or State can
have, by the law of postliminy, no belligerent lien or claim of
service.
44. All wanton violence
committed against persons in the invaded country, all destruction of
property not commanded by the authorized officer, all robbery, all
pillage or sacking, even after taking a place by main force, all
rape, wounding, maiming, or killing of such inhabitants, are
prohibited under the penalty of death, or such other severe
punishment as may seem adequate for the gravity of the offense.
A soldier, officer, or
private, in the act of committing such violence, and disobeying a
superior ordering him to abstain from it, may be lawfully killed on
the spot by such superior.
45. All captures and
booty belong, according to the modern law of war, primarily to the
government of the captor.
Prize money, whether on
sea or land, can now only be claimed under local law.
46. Neither officers nor
soldiers are allowed to make use of their position or power in the
hostile country for private gain, not even for commercial
transactions otherwise legitimate. Offenses to the contrary
committed by commissioned officers will be punished with cashiering
or such other punishment as the nature of the offense may require;
if by soldiers, they shall be punished according to the nature of
the offense.
47. Crimes punishable by
all penal codes, such as arson, murder, maiming, assaults, highway
robbery, theft, burglary, fraud, forgery, and rape, if committed by
an American soldier in a hostile country against its inhabitants,
are not only punishable as at home, but in all cases in which death
is not inflicted the severer punishment shall be preferred.
SECTION
III.--Deserters--Prisoners of war--Hostages--Booty on the
battle-field.
48. 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, it is not a breach
against the law and usages of war, requiring redress or retaliation.
49. A prisoner of war is
a public enemy armed or attached to the hostile army for active aid,
who has fallen into the hands of the captor, either fighting or
wounded, on the field or in the hospital, by individual surrender or
by capitulation.
All soldiers, of whatever
species of arms; all men who belong to the rising en masse
of the hostile country; all those who are attached to the Army for
its efficiency and promote directly the object of the war, except
such as are hereinafter provided for; all disabled men or officers
on the field or elsewhere, if captured; all enemies who have thrown
away their arms and ask for quarter, are prisoners of war, and as
such exposed to the inconveniences as well as entitled to the
privileges of a prisoner of war.
50. Moreover, citizens
who accompany an army for whatever purpose, such as sutlers,
editors, or reporters of journals, or contractors, if captured, may
be made prisoners of war and be detained as such.
The monarch and members
of the hostile reigning family, male or female, the chief, and chief
officers of the hostile government, its diplomatic agents, and all
persons who are of particular and singular use and benefit to the
hostile army or its government, are, if captured on belligerent
ground, and if unprovided with a safe-conduct granted by the
captor's government, prisoners of war.
51. If the people of that
portion of an invaded country which is not yet occupied by the
enemy, or of the whole country, at the approach of a hostile army,
rise, under a duly authorized levy, en masse to resist the
invader, they are now treated as public enemies, and, if captured,
are prisoners of war.
52. No belligerent has
the right to declare that he will treat every captured man in arms
of a levy en masse as a brigand or bandit.
If, however, the people
of a country, or any portion of the same, already occupied by an
army, rise against it, they are violators of the laws of war and are
not entitled to their protection.
53. The enemy's
chaplains, officers of the medical staff, apothecaries, hospital
nurses, and servants, if they fall into the hands of the American
Army, are not prisoners of war, unless the commander has reasons to
retain them. In this latter case, or if, at their own desire, they
are allowed to remain with their captured companions, they are
treated as prisoners of war, and may be exchanged if the commander
sees fit.
54. A hostage is a person
accepted as a pledge for the fulfillment of an agreement concluded
between belligerents during the war, or in consequence of a war.
Hostages are rare in the present age.
55. If a hostage is
accepted, he is treated like a prisoner of war, according to rank
and condition, as circumstances may admit.
56. A prisoner of war is
subject to no punishment for being a public enemy, nor is any
revenge wreaked upon him by the intentional infliction of any
suffering, or disgrace, by cruel imprisonment, want of food, by
mutilation, death, or any other barbarity.
57. So soon as a man is
armed by a sovereign government and takes the soldier's oath of
fidelity he is a belligerent; his killing, wounding, or other
warlike acts are no individual crimes or offenses. No belligerent
has a right to declare that enemies of a certain class, color, or
condition, when properly organized as soldiers, will not be treated
by him as public enemies.
58. The law of nations
knows of no distinction of color, and if an enemy of the United
States should enslave and sell any captured persons of their Army,
it would be a case for the severest retaliation, if not redressed
upon complaint.
The United States cannot
retaliate by enslavement; therefore death must be the retaliation
for this crime against the law of nations.
59. A prisoner of war
remains answerable for his crimes committed against the captor's
army or people, committed before he was captured, and for which he
has not been punished by his own authorities.
All prisoners of war are
liable to the infliction of retaliatory measures.
60. It is against the
usage of modern war to resolve, in hatred and revenge, to give no
quarter. No body of troops has the right to declare that it will not
give, and therefore will not expect, quarter; but a commander is
permitted to direct his troops to give no quarter, in great straits,
when his own salvation makes it impossible to cumber himself with
prisoners.
61. Troops that give no
quarter have no right to kill enemies already disabled on the
ground, or prisoners captured by other troops.
62. All troops of the
enemy known or discovered to give no quarter in general, or to any
portion of the Army, receive none.
63. Troops who fight in
the uniform of their enemies, without any plain, striking, and
uniform mark of distinction of their own, can expect no quarter.
64. If American troops
capture a train containing uniforms of the enemy, and the commander
considers it advisable to distribute them for use among his men,
some striking mark or sign must be adopted to distinguish the
American soldier from the enemy.
65. The use of the
enemy's national standard, flag, or other emblem of nationality, for
the purpose of deceiving the enemy in battle, is an act of perfidy
by which they lose all claim to the protection of the laws of war.
66. Quarter having been
given to an enemy by American troops, under a misapprehension of his
true character, he may, nevertheless, be ordered to suffer death if,
within three days after the battle, it be discovered that he belongs
to a corps which gives no quarter.
67. 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.
68. Modern wars are not
internecine wars, in which the killing of the enemy is the object.
The destruction of the enemy in modern war, and, indeed, modern war
itself, are means to obtain that object of the belligerent which
lies beyond the war.
Unnecessary or revengeful
destruction of life is not lawful.
69. Outposts, sentinels,
or pickets are not to be fired upon, except to drive them in, or
when a positive order, special or general, has been issued to that
effect.
70. The use of poison in
any manner, be it to poison wells, or food, or arms, is wholly
excluded from modern warfare. He that uses it puts himself out of
the pale of the law and usages of war.
71. Whoever intentionally
inflicts additional wounds on an enemy already wholly disabled, or
kills such an enemy, or who orders or encourages soldiers to do so,
shall suffer death, if duly convicted, whether he belongs to the
Army of the United States, or is an enemy captured after having
committed his misdeed.
72. Money and other
valuables on the person of a prisoner, such as watches or jewelry,
as well as extra clothing, are regarded by the American Army as the
private property of the prisoner, and the appropriation of such
valuables or money is considered dishonorable, and is prohibited.
Nevertheless, if large
sums are found upon the persons of prisoners, or in their
possession, they shall be taken from them, and the surplus, after
providing for their own support, appropriated for the use of the
Army, under the direction of the commander, unless otherwise ordered
by the Government. Nor can prisoners claim, as private property,
large sums found and captured in their train, although they have
been placed in the private luggage of the prisoners.
73. All officers, when
captured, must surrender their side-arms to the captor. They may be
restored to the prisoner in marked cases, by the commander, to
signalize admiration of his distinguished bravery, or approbation of
his humane treatment of prisoners before his capture. The captured
officer to whom they may be restored cannot wear them during
captivity.
74. A prisoner of war,
being a public enemy, is the prisoner of the Government and not of
the captor. No ransom can be paid by a prisoner of war to his
individual captor, or to any officer in command. The Government
alone releases captives, according to rules prescribed by itself.
75. Prisoners of war are
subject to confinement or imprisonment such as may be deemed
necessary on account of safety, but they are to be subjected to no
other intentional suffering or indignity. The confinement and mode
of treating a prisoner may be varied during his captivity according
to the demands of safety.
76. Prisoners of war
shall be fed upon plain and wholesome food, whenever practicable,
and treated with humanity.
They may be required to
work for the benefit of the captor's government, according to their
rank and condition.
77. A prisoner of war who
escapes may be shot, or otherwise killed, in his flight; but neither
death nor any other punishment shall be inflicted upon him simply
for his attempt to escape, which the law of war does not consider a
crime. Stricter means of security shall be used after an
unsuccessful attempt at escape.
If, however, a conspiracy
is discovered, the purpose of which is a united or general escape,
the conspirators may be rigorously punished, even with death; and
capital punishment may also be inflicted upon prisoners of war
discovered to have plotted rebellion against the authorities of the
captors, whether in union with fellow-prisoners or other persons.
78. If prisoners of war,
having given no pledge nor made any promise on their honor, forcibly
or otherwise escape, and are captured again in battle, after having
rejoined their own army, they shall not be punished for their
escape, but shall be treated as simple prisoners of war, although
they will be subjected to stricter confinement.
79. Every captured
wounded enemy shall be medically treated, according to the ability
of the medical staff.
80. Honorable men, when
captured, will abstain from giving to the enemy information
concerning their own army, and the modern law of war permits no
longer the use of any violence against prisoners in order to extort
the desired information, or to punish them for having given false
information.
SECTION
IV.--Partisans--Armed enemies not belonging to the hostile
army--Scouts--Armed prowlers-- War-rebels.
81. Partisans are soldiers armed and wearing the uniform of their
army, but belonging to a corps which acts detached from the main
body for the purpose of making inroads into the territory occupied
by the enemy. If captured they are entitled to all the privileges of
the prisoner of war.
82. Men, or squads of
men, who commit hostilities, whether by fighting, or inroads for
destruction or plunder, or by raids of any kind, without commission,
without being part and portion of the organized hostile army, and
without sharing continuously in the war, but who do so with
intermitting returns to their homes and avocations, or with the
occasional assumption of the semblance of peaceful pursuits,
divesting themselves of the character or appearance of
soldiers--such men, or squads of men, are not public enemies, and
therefore, if captured, are not entitled to the privileges of
prisoners of war, but shall be treated summarily as highway robbers
or pirates.
83. Scouts or single
soldiers, if disguised in the dress of the country, or in the
uniform of the army hostile to their own, employed in obtaining
information, if found within or lurking about the lines of the
captor, are treated as spies, and suffer death.
84. Armed prowlers, by
whatever names they may be called, or persons of the enemy's
territory, who steal within the lines of the hostile army for the
purpose of robbing, killing, or of destroying bridges, roads, or
canals, or of robbing or destroying the mail, or of cutting the
telegraph wires, are not entitled to the privileges of the prisoner
of war.
85. 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 to armed violence.
SECTION
V.--Safe-conduct--Spies-- War-traitors-- Captured
messengers-Abuse of the flag of truce.
86. All intercourse between the territories occupied by belligerent
armies, whether by traffic, by letter, by travel, or in any other
way, ceases. This is the general rule, to be observed without
special proclamation.
Exceptions to this rule,
whether by safe-conduct or permission to trade on a small or large
scale, or by exchanging mails, or by travel from one territory into
the other, can take place only according to agreement approved by
the Government or by the highest military authority.
Contraventions of this
rule are highly punishable.
87. Ambassadors, and all
other diplomatic agents of neutral powers accredited to the enemy
may receive safe-conducts through the territories occupied by the
belligerents, unless there are military reasons to the contrary, and
unless they may reach the place of their destination conveniently by
another route. It implies no international affront if the
safe-conduct is declined. Such passes are usually given by the
supreme authority of the state and not by subordinate officers.
88. A spy is a person who
secretly, in disguise or under false pretense, seeks information
with the intention of communicating it to the enemy.
The spy is punishable
with death by hanging by the neck, whether or not he succeed in
obtaining the information or in conveying it to the enemy.
89. If a citizen of the
United States obtains information in a legitimate manner and betrays
it to the enemy, be he a military or civil officer, or a private
citizen, he shall suffer death.
90. A traitor under the
law of war, or a war-traitor, is a person in a place or district
under martial law who, unauthorized by the military commander, gives
information of any kind to the enemy, or holds intercourse with him.
91. The war-traitor is
always severely punished. If his offense consists in betraying to
the enemy anything concerning the condition, safety, operations, or
plans of the troops holding or occupying the place or district, his
punishment is death.
92. If the citizen or
subject of a country or place invaded or conquered gives information
to his own government, from which he is separated by the hostile
army, or to the army of his government, he is a war-traitor, and
death is the penalty of his offense.
93. All armies in the
field stand in need of guides, and impress them if they cannot
obtain them otherwise.
94. No person having been
forced by the enemy to serve as guide is punishable for having done
so.
95. If a citizen of a
hostile and invaded district voluntarily serves as a guide to the
enemy, or offers to do so, he is deemed a war-traitor and shall
suffer death.
96. A citizen serving
voluntarily as a guide against his own country commits treason, and
will be dealt with according to the law of his country.
97. Guides, when it is
clearly proved that they have misled intentionally, may be put to
death.
98. All unauthorized or
secret communication with the enemy is considered treasonable by the
law of war.
Foreign residents in an
invaded or occupied territory or foreign visitors in the same can
claim no immunity from this law. They may communicate with foreign
parts or with the inhabitants of the hostile country, so far as the
military authority permits, but no further. Instant expulsion from
the occupied territory would be the very least punishment for the
infraction of this rule.
99. A messenger carrying
written dispatches or verbal messages from one portion of the army
or from a besieged place to another portion of the same army or its
government, if armed, and in the uniform of his army, and if
captured while doing so in the territory occupied by the enemy, is
treated by the captor as a prisoner of war. If not in uniform nor a
soldier, the circumstances connected with his capture must determine
the disposition that shall be made of him.
100. A messenger or agent
who attempts to steal through the territory occupied by the enemy to
further in any manner the interests of the enemy, if captured, is
not entitled to the privileges of the prisoner of war, and may be
dealt with according to the circumstances of the case.
101. While deception in
war is admitted as a just and necessary means of hostility, and is
consistent with honorable warfare, the common law of war allows even
capital punishment for clandestine or treacherous attempts to injure
an enemy, because they are so dangerous, and it is so difficult to
guard against them.
102. The law of war, like
the criminal law regarding other offenses, makes no difference on
account of the difference of sexes, concerning the spy, the
war-traitor, or the war-rebel.
103. Spies, war-traitors,
and war-rebels are not exchanged according to the common law of war.
The exchange of such persons would require a special cartel,
authorized by the Government, or, at a great distance from it, by
the chief commander of the army in the field.
104. A successful spy or
war-traitor, safely returned to his own army, and afterward captured
as an enemy, is not subject to punishment for his acts as a spy or
war-traitor, but he may be held in closer custody as a person
individually dangerous.
SECTION
VI.--Exchange of prisoners--Flags of truce--Flags of protection.
105. Exchanges of prisoners take place--number for number--rank for
rank--wounded for wounded--with added condition for added
condition--such, for instance, as not to serve for a certain period.
106. In exchanging
prisoners of war, such numbers of persons of inferior rank may be
substituted as an equivalent for one of superior rank as may be
agreed upon by cartel, which requires the sanction of the
Government, or of the commander of the army in the field.
107. A prisoner of war is
in honor bound truly to state to the captor his rank; and he is not
to assume a lower rank than belongs to him, in order to cause a more
advantageous exchange, nor a higher rank, for the purpose of
obtaining better treatment.
Offenses to the contrary
have been justly punished by the commanders of released prisoners,
and may be good cause for refusing to release such prisoners.
108. The surplus number
of prisoners of war remaining after an exchange has taken place is
sometimes released either for the payment of a stipulated sum of
money, or, in urgent cases, of provision, clothing, or other
necessaries.
Such arrangement,
however, requires the sanction of the highest authority.
109. The exchange of
prisoners of war is an act of convenience to both belligerents. If
no general cartel has been concluded, it cannot be demanded by
either of them. No belligerent is obliged to exchange prisoners of
war.
A cartel is voidable as
soon as either party has violated it.
110. No exchange of
prisoners shall be made except after complete capture, and after an
accurate account of them, and a list of the captured officers, has
been taken.
111. The bearer of a flag
of truce cannot insist upon being admitted. He must always be
admitted with great caution. Unnecessary frequency is carefully to
be avoided.
112. If the bearer of a
flag of truce offer himself during an engagement, he can be admitted
as a very rare exception only. It is no breach of good faith to
retain such flag of truce, if admitted during the engagement. Firing
is not required to cease on the appearance of a flag of truce in
battle.
113. If the bearer of a
flag of truce, presenting himself during an engagement, is killed or
wounded, it furnishes no ground of complaint whatever.
114. If it be discovered,
and fairly proved, that a flag of truce has been abused for
surreptitiously obtaining military knowledge, the bearer of the flag
thus abusing his sacred character is deemed a spy.
So sacred is the
character of a flag of truce, and so necessary is its sacredness,
that while its abuse is an especially heinous offense, great caution
is requisite, on the other hand, in convicting the bearer of a flag
of truce as a spy.
115. It is customary to
designate by certain flags (usually yellow) the hospitals in places
which are shelled, so that the besieging enemy may avoid firing on
them. The same has been done in battles when hospitals are situated
within the field of the engagement.
116. Honorable
belligerents often request that the hospitals within the territory
of the enemy may be designated, so that they may be spared.
An honorable belligerent
allows himself to be guided by flags or signals of protection as
much as the contingencies and the necessities of the fight will
permit.
117. It is justly
considered an act of bad faith, of infamy or fiendishness, to
deceive the enemy by flags of protection. Such act of bad faith may
be good cause for refusing to respect such flags.
118. The besieging
belligerent has sometimes requested the besieged to designate the
buildings containing collections of works of art, scientific
museums, astronomical observatories, or precious libraries, so that
their destruction may be avoided as much as possible.
SECTION
VII.--The parole.
119. Prisoners of war may be released from captivity by exchange,
and, under certain circumstances, also by parole.
120. The term parole
designates the pledge of individual good faith and honor to do, or
to omit doing, certain acts after he who gives his parole shall have
been dismissed, wholly or partially, from the power of the captor.
121. The pledge of the
parole is always an individual, but not a private act.
122. The parole applies
chiefly to prisoners of war whom the captor allows to return to
their country, or to live in greater freedom within the captor's
country or territory, on conditions stated in the parole.
123. Release of prisoners
of war by exchange is the general rule; release by parole is the
exception.
124. Breaking the parole
is punished with death when the person breaking the parole is
captured again.
Accurate lists,
therefore, of the paroled persons must be kept by the belligerents.
125. When paroles are
given and received there must be an exchange of two written
documents, in which the name and rank of the paroled individuals are
accurately and truthfully stated.
126. Commissioned
officers only are allowed to give their parole, and they can give it
only with the permission of their superior, as long as a superior in
rank is within reach.
127. No non-commissioned
officer or private can give his parole except through an officer.
Individual paroles not given through an officer are not only void,
but subject the individuals giving them to the punishment of death
as deserters. The only admissible exception is where individuals,
properly separated from their commands, have suffered long
confinement without the possibility of being paroled through an
officer.
128. No paroling on the
battle-field; no paroling of entire bodies of troops after a battle;
and no dismissal of large numbers of prisoners, with a general
declaration that they are paroled, is permitted, or of any value.
129. In capitulations for
the surrender of strong places or fortified camps the commanding
officer, in cases of urgent necessity, may agree that the troops
under his command shall not fight again during the war unless
exchanged.
130. The usual pledge
given in the parole is not to serve during the existing war unless
exchanged.
This pledge refers only
to the active service in the field against the paroling belligerent
or his allies actively engaged in the same war. These cases of
breaking the parole are patent acts, and can be visited with the
punishment of death; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortifying
places not besieged, quelling civil commotions, fighting against
belligerents unconnected with the paroling belligerents, or to civil
or diplomatic service for which the paroled officer may be employed.
131. If the government
does not approve of the parole, the paroled officer must return into
captivity, and should the enemy refuse to receive him he is free of
his parole.
132. A belligerent
government may declare, by a general order, whether it will allow
paroling and on what conditions it will allow it. Such order is
communicated to the enemy.
133. No prisoner of war
can be forced by the hostile government to parole himself, and no
government is obliged to parole prisoners of war or to parole all
captured officers, if it paroles any. As the pledging of the parole
is an individual act, so is paroling, on the other hand, an act of
choice on the part of the belligerent.
134. The commander of an
occupying army may require of the civil officers of the enemy, and
of its citizens, any pledge he may consider necessary for the safety
or security of his army, and upon their failure to give it he may
arrest, confine, or detain them.
SECTION
VIII.--Armistice--Capitulation.
135. An armistice is the cessation of active hostilities for a
period agreed between belligerents. It must be agreed upon in
writing and duly ratified by the highest authorities of the
contending parties.
136. If an armistice be
declared without conditions it extends no further than to require a
total cessation of hostilities along the front of both belligerents.
If conditions be agreed
upon, they should be clearly expressed, and must be rigidly adhered
to by both parties. If either party violates any express condition,
the armistice may be declared null and void by the other.
137. An armistice may be
general, and valid for all points and lines of the belligerents; or
special--that is, referring to certain troops or certain localities
only. An armistice may be concluded for a definite time; or for an
indefinite time, during which either belligerent may resume
hostilities on giving the notice agreed upon to the other.
138. The motives which
induce the one or the other belligerent to conclude an armistice,
whether it be expected to be preliminary to a treaty of peace, or to
prepare during the armistice for a more vigorous prosecution of the
war, does in no way affect the character of the armistice itself.
139. An armistice is
binding upon the belligerents from the day of the agreed
commencement; but the officers of the armies are responsible from
the day only when they receive official information of its
existence.
140. Commanding officers
have the right to conclude armistices binding on the district over
which their command extends, but such armistice is subject to the
ratification of the superior authority, and ceases so soon as it is
made known to the enemy that the armistice is not ratified, even if
a certain time for the elapsing between giving notice of cessation
and the resumption of hostilities should have been stipulated for.
141. It is incumbent upon
the contracting parties of an armistice to stipulate what
intercourse of persons or traffic between the inhabitants of the
territories occupied by the hostile armies shall be allowed, if any.
If nothing is stipulated
the intercourse remains suspended, as during actual hostilities.
142. An armistice is not
a partial or a temporary peace; it is only the suspension of
military operations to the extent agreed upon by the parties.
143. When an armistice is
concluded between a fortified place and the army besieging it, it is
agreed by all the authorities on this subject that the besieger must
cease all extension, perfection, or advance of his attacking works
as much so as from attacks by main force.
But as there is a
difference of opinion among martial jurists whether the besieged
have a right to repair breaches or to erect new works of defense
within the place during an armistice, this point should be
determined by express agreement between the parties.
144. So soon as a
capitulation is signed the capitulator has no right to demolish,
destroy, or injure the works, arms, stores, or ammunition in his
possession, during the time which elapses between the signing and
the execution of the capitulation, unless otherwise stipulated in
the same.
145. When an armistice is
clearly broken by one of the parties the other party is released
from all obligation to observe it.
146. Prisoners taken in
the act of breaking an armistice must be treated as prisoners of
war, the officer alone being responsible who gives the order for
such a violation of an armistice. The highest authority of the
belligerent aggrieved may demand redress for the infraction of an
armistice.
147. Belligerents
sometimes conclude an armistice while their plenipotentiaries are
met to discuss the conditions of a treaty of peace; but
plenipotentiaries may meet without a preliminary armistice; in the
latter case the war is carried on without any abatement.
SECTION
IX.--Assassination.
148. 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, who may be slain without trial by any
captor, any more than the modern law of peace allows such
international outlawry; on the contrary, it abhors such outrage. The
sternest retaliation should follow the murder committed in
consequence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards for the
assassination of enemies as relapses into barbarism.
SECTION
X.--Insurrection-- Civil war--Rebellion.
149. Insurrection is the rising of people in arms against their
government, or portion of it, or against one or more of its laws, or
against an officer or officers of the government. It may be confined
to mere armed resistance, or it may have greater ends in view.
150. Civil war is war
between two or more portions of a country or state, each contending
for the mastery of the whole, and each claiming to be the legitimate
government. The term is also sometimes applied to war of rebellion,
when the rebellious provinces or portions of the state are
contiguous to those containing the seat of government.
151. The term rebellion
is applied to an insurrection of large extent, and is usually a war
between the legitimate government of a country and portions of
provinces of the same who seek to throw off their allegiance to it
and set up a government of their own.
152. When humanity
induces the adoption of the rules of regular war toward rebels,
whether the adoption is partial or entire, it does in no way
whatever imply a partial or complete acknowledgment of their
government, if they have set up one, or of them, as an independent
or sovereign power. Neutrals have no right to make the adoption of
the rules of war by the assailed government toward rebels the ground
of their own acknowledgment of the revolted people as an independent
power.
153. Treating captured
rebels as prisoners of war, exchanging them, concluding of cartels,
capitulations, or other warlike agreements with them; addressing
officers of a rebel army by the rank they may have in the same;
accepting flags of truce; or, on the other hand, proclaiming martial
law in their territory, or levying war taxes or forced loans, or
doing any other act sanctioned or demanded by the law and usages of
public war between sovereign belligerents, neither proves nor
establishes an acknowledgment of the rebellious people, or of the
government which they may have erected, as a public or sovereign
power. Nor does the adoption of the rules of war toward rebels imply
an engagement with them extending beyond the limits of these rules.
It is victory in the field that ends the strife and settles the
future relations between the contending parties.
154. Treating in the
field the rebellious enemy according to the law and usages of war
has never prevented the legitimate government from trying the
leaders of the rebellion or chief rebels for high treason, and from
treating them accordingly, unless they are included in a general
amnesty.
155. All enemies in
regular war are divided into two general classes--that is to say,
into combatants and non-combatants, or unarmed citizens of the
hostile government.
The military commander of
the legitimate government, in a war of rebellion, distinguishes
between the loyal citizen in the revolted portion of the country and
the disloyal citizen. The disloyal citizens may further be
classified into those citizens known to sympathize with the
rebellion without positively aiding it, and those who, without
taking up arms, give positive aid and comfort to the rebellious
enemy without being bodily forced thereto.
156. Common justice and
plain expediency require that the military commander protect the
manifestly loyal citizens in revolted territories against the
hardships of the war as much as the common misfortune of all war
admits.
The commander will throw
the burden of the war, as much as lies within his power, on the
disloyal citizens, of the revolted portion or province, subjecting
them to a stricter police than the non-combatant enemies have to
suffer in regular war; and if he deems it appropriate, or if his
government demands of him that every citizen shall, by an oath of
allegiance, or by some other manifest act, declare his fidelity to
the legitimate government, he may expel, transfer, imprison, or fine
the revolted citizens who refuse to pledge themselves anew as
citizens obedient to the law and loyal to the government.
Whether it is expedient
to do so, and whether reliance can be placed upon such oaths, the
commander or his government have the right to decide.
157. Armed or unarmed
resistance by citizens of the United States against the lawful
movements of their troops is levying war against the United States,
and is therefore treason.
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