The Lieber
Code of 1863
CORRESPONDENCE, ORDERS,
REPORTS, AND RETURNS OF THE UNION AUTHORITIES
FROM
JANUARY 1 TO DECEMBER 31, 1863.--#7
O.R.--SERIES
III--VOLUME III [S# 124]
GENERAL ORDERS No. 100.
WAR DEPT., ADJT.
GENERAL'S OFFICE,
The following
"Instructions for the Government of Armies of the
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.
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
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
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
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
The
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
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