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to the protection extended to enemies by the laws of war.
A military organization is not enough. Bluntschli, Droit International Codifié, § 513. If, however, such forces join, and are received by the belligerent power, they become enemies.
Partisans, says Lieber, (Instructions, 1 81,) 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 prisoners of war.
Men or squads of men, who commit hostilities, whether by fighting or by inroads for destruction or plunder, or by raids of any kind, without commission, without being part of the organized hostile army, and without sharing continuously in the war, but who do so with intermit, ting returns to their homes and avocations, or with the occasional as• sumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers, such men or squads of men, ure not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but should be treated summarily as highway robbers or pirates.
AGAINST WHOM HOSTILITIES MAY BE WAGED.
ARTICLE 744. “Enemy" defined.
745. Individual enemies.
“ Enemy" defined.
744. Except where a different intent plainly appears, the term “enemy," as used in this Code, without qualification, designates the hostile nation or commun. ity, and all individuals identified with it, as active enemies, according to the definition of article 746.
" Active enemies" defined.
746. The following persons, and no others, are deemed active enemies :
1. Those impressed with a military character, by the belligerent,' as defined by article 736.
2. Those who, not being impressed with such character, are unlawfully waging hostilities;
3. Those who unlawfully give aid and comfort to the opposing belligerent;"
4. Spies ; and, 5. Pirates. 1 If a soldier of foreign origin take service in the standing army of a nation, he becomes, for the time of his service, a member de facto of the nation, for all belligerent purposes. Twiss, Law of Nations, pt. II., p. 81.
• The phrase “aid and comfort to the enemies ” of the nation, alone, does not include compulsory assistance, nor service in purely civil funetious; nor mere expression of opinion, nor mere acts of charity done with intent to relieve immediate suffering, and not in aid of the cause. It designates overt acts, done with intent to further the war. 12 Opinions of U. 8. Attorneys-General, pp. 160, 204. Non-combatants, who make forcible resistance, or violate the rules of warfare, give military infor. mation to their friends, or obstruct the forces in possession, are liable to be treated as combatants. Dana's Wheaton, Elem. of Intern. Law, $ 345, note 168; see also, Woolsey's Intern. Law, $ 130.
It is not essential to constitute giving aid and comfort, that the effort should be successful, and actually render assistance. Overt acts, wbich, if successful, would advance the interest of the enemy, amount to aid and comfort. United States o. Greathouse, 2 Abbott's United States Reports, 364.
“ Passive enemies" defined.
747. Passive enemies are all members of the hostile nation, or other belligerent community, and all domiciled residents therein, who are not active enemies.
Active enemies resisting with arms.
Book, it is lawful for a belligerent to attack and kill or subdue active enemies, while they are resisting with arms in their hands.
The rule that hostilities can only be waged, on the territory of a belligerent, and on the high seas, or in other places not within the jurisdiction of a neutral nation, is contained in the provisions of Division V., concerning NEUTRALS.
749. Persons impressed with the military cnaracter, whose duty does not require them to take part in hostilities, such as those employed in judicial, commissary and medical departments, are exposed to the dangers of general hostilities, but can not lawfully be separately attacked, so long as they do not take part in actual hos. tilities.
Bluntschli, Droit International Codifié, 8 578.
Passive enemies are inviolable.
750. Passive enemies can not be made the objects of hostilities,' except as provided in this Title,' or incidentally when they are personally involved in the consequences of contests with active enemies. .
1 " No use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and generally, all public or private individuals engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms or guilty of some misconduct in vio. lation of the usages of war by which they forfeit their immunity.” Lawrence's Wheaton, Elem. of Intern. Law, pp. 593–596 ; Dana's Wheaton, $ 345, citing, Vattel, Droit des Gens, liv. 3, ch. 8, 88 145–147, 159; Klüber, Droit des Gens Moderne de l'Europe, pt. II., tit. 2, sec. 2, ch. 1, SS 245–247. According to some treaties and decrees, fishermen catching fish for food are also exempt.
. They are liable to be taken prisoners of war, (see Articles 753 and 801,) and to visitation and search. (see Article 865.)
Halleck, (Intern. Law & Lars of War, p. 427, § 3,) enumerates as exempt from direct operations of war ; 1. Feeble, old men ; women and children, and the sick ; 2. Ministers of religion ; men of science and letters ; professional men ; artists, merchants, mechanics, agriculturists, laborers,-iD fine, all non-combatants or persons who take no part in the war, and make no resistance to arms. This exemption continues only so long as they refrain from hostilities or inciting hostilities, pay military contribu. tions and submit to military authority.
Passive enemies, sick and wounded, leaving armed place.
751. Passive enemies, and sick and wounded, may always be sent out of an armed place; and in taking their departure, they, with their attendants, must be respected and protected by the belligerents.
See Convention of Geneva, Art. VI., 1 5.
752. The passive enemies in a particular place may be disarmed and restrained, when necessary for the security or success of the belligerent force.
Halleck, Intern. Law & Laws of War, p. 428, $ 5.
Persons communicating with the enemy.
753. Persons who, within the miltary lines, make any communication with the enemy, direct or indirect, intended to subserve the purpose of the war, may be expelled from the lines,' or may be treated as active enemies.
· Lieber, (Instructions, T 98.) says, that all unauthorized or secret com munications with the enemy are treasonable.
The same author, (S8 90–91, (says of war traitors, (persons in a place or district under martial law, who, unauthorized by the military commander, give information of any kind to the enemy or hold intercourse with him,) that they are always severely punished. If their offense consist in betraying to the enemy anything concerning the condition, safety, operations or plans of the troops holding or occupying the place or district, their punishment is death.
If the citizen or subject of a country or place invaded or conquered, give 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. This rule seems too harsh. It is sufficient to subject them to the treatment of active enemies, except where they come within the category of spiee.
The rules respecting spies, war traitors and war rebels, are applied without distinction of sex. Lieber's Instructions, 1 102.
THE INSTRUMENTS AND MODES OF HOSTILITIES.
It has not been thought best, in framing these provisions, to attempt the statement of a theoretic distinction between those forms of force which are and those which are not unlawful, but only to enumerate those which it seems practically important to prohibit.
Concealed modes of extensive destruction are allowable; as, torpedoes planted to blow up ships, or strewed over the ground before an advancing enemy, and mines; hot shell are permissible, and bombshells to set fire to ships, camps or forts; and it is thought that steam or boiling water may lawfully be thrown upon boarders, by a ship on the defensive.
The employment of assassins ; the introduction of infectious or contagious diseases, the poisoning of springs, the use of poisoned weapons or of chemical compounds, which may maim or torture the enemy, or of any material which owes its efficacy to a distinct quality of producing pain, or of causing or increasing the chances of death or disability, and which can not be remedied by the usual medical and surgical applications for forcible injuries, or averted by retreat o: surrender, are unlawful. Dana's Wheaton, Elem. of Intern. Law, § 343, note 166.
ARTICLE 754. Unlawful weapons.
755. Private gratification forbidden.