their duties; but they may also in the exercise of their own PART III. discretion rejoin the corps or return to the country to which CHAP. II. they belong, the enemy having only the right to detain them for such time as may be required by strict military necessities. Field and military hospitals are also neutralised so long as any sick or wounded are in them: but while ambulances with their horses and medical and surgical stores are in no case liable to seizure, and accompany their staff when the latter rejoin the enemy, in fixed hospitals the stores are appropriated by the captors, and the medical staff in leaving only carry with them their private property. The special conditions of naval war dictate some provisions applicable to it alone. Trading vessels containing sick and wounded passengers exclusively, and not laden either with. enemy's goods or with contraband of war, cannot be seized; but the fact of a visit notified in the log-book by an enemy's cruiser, by establishing ability to capture, renders the sick and wounded incapable of serving during the continuance of the war. Surgeons belonging to a captured vessel are bound to give their assistance until and during the removal of the wounded; so soon as this is effected they are free to return to their country. As hospital ships may be deprived of protection by accident of weather or position, and their capture is not therefore, as in the case of military hospitals, necessarily connected with the defeat of the force to which they belong, they are not assimilated to fixed hospitals on land, but enjoy a complete neutrality, if they have been officially designated as hospitals before the outbreak of war, and if they are unfit for warlike use; when these conditions are not satisfied they become the property of the captor, but he cannot divert them from their special employment until after the conclusion of peace. Hospital ships fitted out by societies for the aid of sick and wounded, if provided with certain guarantees, are recognised as neutral, and permitted to operate under the reserve of a right of control and visit on the part of the belligerents. In order that neutralised objects and persons

PART III. shall be recognised, hospitals are indicated by a special flag, CHAP. II. hospital ships by a distinctive colour, and persons attendant on the sick and wounded by a badge 1.

There can be no doubt that the Geneva Conventions embody the principles on which the services giving aid to sick and wounded in war will be regulated in the future, but the specific rules will probably undergo some change. In their present form they are open to criticism in many details, and the occurrences of 1870, besides suggesting that voluntary assistance may need to be brought under firmer control, betrayed at least one serious omission in the stipulations which have been accepted. The instances of disregard for the Convention, which appear to have been unfortunately numerous during the Franco-German War, may in part be explained by unavoidable accident, and in the main may probably be referred to an ignorance in the soldiery of the duties imposed upon them which it may be hoped has not been allowed to continue; but the possibility must always exist that acts will take place which cannot be so leniently judged, and until belligerents see proof that intentional violation of the Convention will be punished by their enemy, every violation will be regarded as the evidence of a laxity of conduct on his part which will lead to corresponding laxity in them 2.

1 See Appendix vi.

2 M. Bluntschli (§ 587-9, 590-1-2) makes several criticisms on the details of the Convention and suggestions for its improvement. He notices with justice (§ 586) that the meaning of an expression in the 1st article is equivocal. It is stated that 'la neutralité cesserait si ces ambulances ou hôpitaux étaient gardés Iar une force militaire.' If the word 'gardés' is to be taken to signify militarily held,' no objection can be felt to the clause; but if it is to be read in the more natural sense of 'protected,' it sanctions a practice less liberal than that which has hitherto been customary. It is often necessary to place guards over hospitals to protect the inmates, or to prevent their contents from being plundered, and if on the appearance of the enemy these guards offer no resistance it has been usual to allow them to return to their army. The usage, and the duty of non-resistance correlative with the privilege, are illustrated by an occurrence which took place during the Peninsular War. Col. Trant on entering Coimbra, which was full of French sick and wounded, was resisted by the captain in command of the company left as a hospital guard. After sustaining an attack for three hours the captain requested to be allowed to rejoin

In 1868 a proposal was made, and rejected by the European PART III. governments, that an article should be added to the Convention CHAP. II. rendering infractions of it penal under their Articles of War. If the language of the article had covered wilful infractions only, its rejection would not have been to their credit 1.

sons may

of war.

§ 131. All persons whom a belligerent may kill become his What perprisoners of war on surrendering or being captured. But be made as the right to hold an enemy prisoner is a mild way of prisoners exercising the general rights of violence against his person, a belligerent has not come under an obligation to restrict its use within limits so narrow as those which confine the right to kill. He may capture all persons who are separated from the mass of non-combatants by their importance in the enemy's state, or by their usefulness to him in his war. Under the first of these heads fall the sovereign and the members of his family when non-combatants, the ministers and high officers of government, diplomatic agents, and any one who for special reasons may be of importance at a particular moment. Persons belonging to the auxiliary departments of an army, whether permanently or temporarily employed, such as commissariat employés, military police, guides, balloonists, messengers, and telegraphists, when not offering resistance on being attacked by mistake, or defending themselves personally during an attack made upon the combatant

the French army, and supported his demand when it was refused by referring to the case of an English company which had just before been sent in after the battle of Busaco. Colonel Trant required an unconditional surrender. You are not,' he said, 'in the same position as the English company. I have taken you with arms in your hands. You have killed or wounded thirty men and a superior officer; your resistance has been long and obstinate. You may think yourselves only too happy to be prisoners at all.' Koch, Mém. de Massena vii. 238. General Koch insinuates that the fact of resistance ought to have made no difference in the treatment accorded to the guard; but his judgment was apt to be warped when the conduct of English is in question.

1

1 The proposed article was as follows:-‘Les hautes Puissances contractantes s'engagent à introduire dans leurs règlements militaires les modifications devenues indispensables par suite de leur adhésion à la Convention. Elles en ordonneront l'explication aux troupes de terre et de mer en temps de paix, et la mise à l'ordre du jour en temps de guerre.'

PART III. portions of the army, in which case they become prisoners CHAP. II. of war as combatants, are still liable to capture, together with

contractors and every one present with a force on business connected with it, on the ground of the direct services which they are engaged in rendering. Finally, sailors on board enemy's trading vessels become prisoners because of their fitness for immediate use on ships of war1. The position of surgeons and chaplains, apart from the Convention of Geneva, is not fully determined. In the eighteenth century they were liable to capture, but on an exchange of prisoners

1 Bluntschli, § 594-6; Manuel de Droit Int. à l'Usage des Officiers de l'Armée de Terre (French Official Handbook), 37; Am. Inst., art. 50; Project of Declaration of Brussels, § 34; Heffter, § 126. M. Bluntschli, the American Instructions, and the Project of Declaration include correspondents of newspapers among persons liable to be made prisoners of war. Probably it is only meant that they may be detained if their detention is recommended by special reasons. All persons however can be made prisoners for special reasons; newspaper correspondents in general seem hardly to render sufficiently direct service to justify their detention as a matter of course; and they are quite as often embarrassing to the army which they accompany as to its enemy. Perhaps it is unfortunate that they are enumerated as subjects of belligerent right together with persons who are always detained.

In 1870 Count Bismarck denied that sailors found in merchant vessels can be made prisoners of war, and in a note addressed to the government of the National Defence threatened to use reprisals if those who had been captured were not liberated. In justification of his doctrine he pretended that the only object of seizing merchant seamen is to diminish the number of men from whom the crews of privateers could be formed, and that therefore as France was a party to the Declaration of Paris, it must be supposed that it had adhered in advance' to their immunity from capture. The Comte de Chaudordy had no difficulty in showing that no such inference could be drawn from the fact of adherence to the Declaration of Paris, that the usage of capturing sailors had been invariable, that the mercantile marine of a nation, apart from any question of privateering, is capable of being transformed at will into an instrument of war, and that in countries where, as in Germany, all seafaring men are subject to conscription for the navy of the state, the reasons for capture are of double force (D'Angeberg, Nos. 580, 694, 813, 826, 911). Count Bismarck executed his threat to use reprisals, and sent Frenchmen of local importance as prisoners to Bremen in a number equal to that of the captains of merchantmen who were detained in France. If the pretension of Count Bismarck to create an international rule by his simple fiat may provoke a smile, it is rather a matter for indignation that he should attempt to prevent an adversary from acting within his undoubted rights by means which are reserved to punish and to brand violations of law.

they were commonly returned without equivalents or ransom. PART III. During the Peninsular War they shared the lot of other CHAP. II. non-combatants. According to De Martens a usage had in his time grown up of sending them back to the enemy, and Klüber recognises their entire immunity; but as both writers class with them non-combatants of whose liability to capture there can be no doubt, the value of their evidence is open to question. More recently M. Heffter subjects surgeons and chaplains to seizure; and the American Instructions for armies in the field, by directing that they are only to be retained if the commander of the army capturing them has need of their services, render their dismissal a matter of grace1. On the whole it may be concluded that as the Convention of Geneva is not yet universally binding, belligerents, who are unfettered as respects their enemy by its obligations, still have the right to treat his medical staff as prisoners of war.

soners.

§ 132. The rights possessed by a belligerent over his Treatment of priprisoners under the modern customs of war are defined by the same rule, that more than necessary violence must not be used, which ought to govern him in all his relations with his enemy. The seizure of a prisoner is the seizure of a certain portion of the resources of the enemy, and whatever is needed.

1 Moser, ix. ii. 255 and 260. Cartel of exchange between England and France in 1798, De Martens, Rec. vi. 498. In some cases doctors, surgeons, and their assistants were returned without ransom long before any usage in their favour had begun to be formed. So far back as 1673 a provision to this effect was made in a cartel between France and the United Provinces, Dumont, vii. i. 231; and a like indulgence is stipulated for in the Anglo-French Cartel of 1780, De Martens, Rec. iii. 306. De Martens, Précis, § 276; Klüber, § 247; Heffter, § 126; American Inst., art. 53. On Massena assuming command of the army of Portugal, Lord Wellington proposed that surgeons and officers of other civil departments should, if captured, be returned. At the moment an arrangement to this effect was believed by the French to be contrary to their interests, and no notice was taken of the suggestion; but after the seizure by Colonel Trant of the whole of the French hospitals at Coimbra, the same proposal was made by Massena in his turn. It does not appear whether under the then circumstances Lord Wellington would have acceded to it, as before any answer could be given it became known that an arrangement had been made between the English and French governments for a general exchange. Wellington Despatches, vii. 591.