tion of certain privileges or advantages, he pledges his honor to pursue, or refrain from pursuing, a particular course of conduct. Paroles are Paroles are ordinarily received only from officers, and, when necessary, are given by officers, for the enlisted men of their commands. They are accepted from enlisted men only in exceptional cases: Paroles are given by officers to secure greater freedom of movement or to obtain special privileges while held by the enemy as prisoners of war. These may, or may not, be in writing. They are also given to obtain a release from captivity, with permission to return home. Such paroles are accompanied by a pledge to refrain from taking part in an existing war until regularly exchanged. They are given in writing, usually in duplicate, one copy being retained by the captor, the other by the officer giving the parole. These instruments are obligatory upon the governmert of the state to which the individual belongs only when accepted, or recognized, by its authority: That government may refuse to permit its officers to give their paroles, when held as prisoners of war, and may refuse to recognize them when given. In such an event, however, it is the duty of the paroled officer to return at once to captivity. As legal instruments, paroles lose their binding force-1. Upon the formal exchange of the paroled officer; 2. At the termination of the war. A breach of parole is an offence against the laws of war. Its enormity consists in the breach of good faith that is involved in the commission of the offence. The punishment inflicted is in proportion to the importance of the parole given. The extreme penalty is death, which may be inflicted upon a paroled prisoner who is captured in arms before he has been regularly exchanged.' Treatment of the Sick and Wounded. It has long been regarded as a well-established and highly obligatory rule or 1 Hall, pp. 407-411; II Halleck, PP. 77, 78; Risley, p. 131; Snow, PP. 98, 99; Woolsey,§ 134; I Guelle, PP. 204-213; Vattel, liv. iii. chap. viii. §151; Pradier-Fodéré, §§ 28232830; IV Calvo, §§ 2151, 2152. custom of civilized warfare that the sick and wounded are entitled to the most humane consideration-not only at the hands of their own government, but from the belligerent into whose custody they happen to fall. The established practice in that regard was first made the subject of treaty stipulation in the Geneva Convention of August 2, 1864, in which the symbol of the Red Cross was adopted as the emblem and distinctive sign of the convention. The agreement of 1864 was amplified, to some extent, by the supplemental convention of October 10, 1868. The requirements of the Geneva Convention of 1868, in respect to the treatment of sick and wounded in maritime warfare, have been replaced by the conventions of July 29, 1899, and October 18, 1907, at The Hague. The conventions of 1864 and 1868 have also been replaced, in their application to the treatment of the sick and wounded in warfare on land, by the Geneva Convention of 1906.1 CRIMES AND OFFENCES AGAINST THE LAWS OF WAR Nature and Character. Certain acts done, or offences committed, in the immediate theatre of military operations, during the continuance of hostilities, are regarded by all nations as violations of the laws of war. They are, in fact, crimes at international law, and may be punished by the belligerent who suffers by their commission; and such an infliction of punishment, by one belligerent, furnishes the other with no ground for complaint or retaliation. As these offences derive their criminal character from the existence of war, and only retain it during its continuance, it follows that they lose that quality at the close of the war, when they cease to be punishable. For text of the Geneva Convention of July 6, 1906, see Appendix B; for the Hague Convention of October 18, 1907, see Appendix F, Convention No. 10. II Halleck, pp. 452-454; Instructions for Armies of the United States, etc., paragraphs 4, 5, 12, 13, 44, 47; Hall, pp. 413, 414. In the military service of the United States such tribunals are known as military commissions. This tribunal was first resorted to by General Scott, during the war with Mexico, for the trial of persons not subject to the Articles of War and Military Jurisdiction. The trial of persons charged with crimes committed in violation of the law of war, or for offences created by the municipal law of a belligerent, constitute an exercise of military jurisdiction. Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the laws or usages of war. Military offences under the statute law must be tried in the manner therein directed; but non-statutory military offences are tried and punished under the common law of war. The character of the courts which exercise these several forms of jurisdiction 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.2 If, therefore, an offence against the law of a belligerent state be committed by a person belonging to its military establishment, or otherwise subject to its military jurisdiction, such offender is tried by the appropriate military tribunal of the offended state; if, on the other hand, the offence is not made criminal by the law of that state, or if the offender is not subject to its military law, or if both offender and offence are without its military jurisdiction, the case is usually referred to a military commission for trial, and the sentence imposed by the commission, if ap for the trial of military persons for offences not triable by general courts-martial. The tribunal before which Major André was tried, at West Point, in 1780, although described as a court-martial in the order creating it, was, in fact, a military commission, as the Articles of War then in force did not confer jurisdiction upon courtsmartial for the trial of the offence charged in Major André's casethat of being a spy. See also IV Calvo, § 2184-2192; VII Pradier- II Halleck, pp. 452-455; II 2 Instructions for the Government of the Armies of the U. S., etc. par. 13. See Appendix A; II Halleck, p. 120; II Winthrop, Military Law, pp. 18-47, 57-94. proved by him, is carried into effect by the general commanding-in-chief in the occupied territory.' Spies. A spy is a person who enters the lines of an army in disguise, or under false pretences, for the purpose of securing information. An individual who, in the proper uniform of his army, penetrates within an enemy's lines, is not a spy, for it is the duty of the enemy to maintain his line of outposts at such strength and efficiency, in point of numbers, as will make it impossible for individuals to pass them, Concealment or disguise, and the employment of false pretences, are essential elements to the crime of being a spy. Those who undertake to gain information of the enemy's movements by means of balloons cannot be regarded as spies, for none of the essential conditions of the offence attend such operations. Spies are employed at rates of pay commensurate to the risks they undertake, and are presumed to be aware of the penalty incurred in the event of their being captured by the enemy. Service as a spy is voluntary, and cannot be compelled. A state cannot require an individual in its military service to act as a spy.. If it permits or authorizes a person in its military or naval service to act in that capacity, the fact of his being in such service will not screen him from punishment, should he be apprehended by the enemy; nor will retaliation be justifiable on the part of the belligerent who so employs persons in his military service. For being a spy the punishment is death. An individual charged with the crime cannot demand a trial; it is granted, if at all, by the municipal law of the captor's state;' or in 'Davis, Mil. Law, pp. 5, 42-60, 300-313: II Winthrop, Mil. Law, pp. 18-47, 57-94; III Dig. Int. Law, $354; VII Pradier-Fodéré, §§ 29742989. II Halleck, pp. 30-35; Hall, pp. 537-539; II Ferguson, § 192; Risley, pp. 121-124; Heffter, § 250; Klüber, §§ 266-266c; Vattel, liv: iii. chap. x. §§ 179-182; Grotius, liv. iii. chap. iv. § 18; Snow, p. 96; Blunt schli, §§ 628-631; III Phillimore, § 96; Field, Int. Code, § 802; I Guelle, pp. 122-126; IV Calvo, §§ 21112114; VI Pradier-Fodéré, §§ 27652768; Articles 30 and 31 Convention of The Hague, 1899. 'II Halleck, p. 30; Woolsey, S 141; Snow, p. 96; 1343 Revised Statutes (U.S.); Hall, pp. 537. 538; III Phillimore, § 96; Art. 21 Brussels Conference. After the retreat consequence of treaty stipulations between the opposing belligerents.' Guerillas. These are persons who lurk in the vicinity of an army, and commit acts of hostility without the authorization of their government, or who carry on their operations in violation of the laws of war.. Guerillas are not to be confounded with bands or organized parties, commissioned by their government and forming a part of its regular forces, called partisans, whose operations, however annoying to an enemy, are perfectly lawful so long as they are carried on in accordance with the laws of war. Guerillas, however, are not partisans, "their acts are unlawful, and when captured they are not treated as prisoners of war, but as criminals, subject to the punishment due to their crimes. . . . The perpetrators of such of Washington from Long Island, Captain Nathan Hale, an officer of the Revolutionary army, recrossed to that island and entered the British lines with the express purpose of obtaining information as to the strength, movements, and purposes of the enemy. In 1780 Major André became the agent in effecting the bribery of Arnold with a view to induce that officer to betray the post committed to his charge. On his return to New York, and while within the American lines, André was captured by the outposts of the enemy. In both cases the officers were captured within the lines of the enemy in disguise, with intent to obtain information as to his strength and purposes; both were condemned to death and executed for the same violation of the laws of war. These cases illustrate the rule that, while an officer or enlisted man may not be compelled to act as a spy, the service of either in that capacity is by no means dishonorable. The severe punishment imposed is justified by the danger to which belligerents are exposed by the opera tions of spies and secret agents; the service itself, though, as we have seen, not one upon which a military person may properly be detailed, is honorable when undertaken by a soldier for patriotic motives, as was especially the case with Captain Hale; it ceases to be honorable only when it is undertaken for purely mercenary motives.-II Halleck, pp. 32, 33. Article 30 of the Rules of War on Land, adopted by the Peace Conference at The Hague, in 1907, contains the requirement that, in wars to which the signatory powers are the belligerent parties, persons charged with acts of espionage shall be tried by the appropriate military tribunals of the captor state before undergoing the infliction of the punishment authorized by the laws of war. Article 31 of the same con. vention, provides that spies who are captured, after having successfully returned to the lines of the army which employs them, shall not be liable to trial or punishment for offences committed prior to such successful return. For text of this undertaking, see App.F, Con. No. 4. |