Unlawful weapons.

754. The following are unlawful weapons:

1. Those which are poisoned ;'

2. Those which contain explosive material, whether in musket balls or in any other missile intended especially for the person ;*

3. Those which contain chemical compounds intended to torture; and,

4. All other weapons intended to cause needless suffering, or wounds unnecessarily difficult to heal.'

1 Klüber, Droit des Gens, § 244; Bluntschli, Droit Intern. Codifié, §

557.

The International Military Commission, in a session at St. Petersburg, agreed to prohibit the use in time of war of all explosive projec tiles weighing less than four hundred,grammes. Army and Navy Journal, New York, Nov. 28, 1868.

Fioré Nouveau Droit Intern., v. 2, p. 279.

Of this class are: Boulets'à chaines, which, according to Bluntschli, (Droit Intern. Codifié, § 560,) are forbidden only on land. Boulets à bras.

Boulets ramés, mentioned by Bluntschli, § 560, note.

Balles crénelées.

Le petit plomb.

Mitraille, (de faire charger le canon avec des morceaux de fer ou de verre, ou avec des clou.) (Mitraille proprement dite.)

According to Klüber, mitraile in the ordinary acceptation of the term, and, even in case of necessity, of pieces of lead, not perfectly round, are allowable. But according to Bluntschli, § 560, they are forbidden at sea. Verre pilé.

De faire charger le fusils à deux balles; à deux mortiés de balles; ou fondues avec de morceaux de verre ou de chaux.

Boulets rouges ou de couronnes foudroyantes; cercles poissés.
These are prohibited by treaty in some maritime wars.

note a.

Klüber, § 244,

Fleches barbelés. Bluntschli, Droit Intern. Cod., § 558. Klüber, (Droit des Gens, § 244,) says, that the customs of war condemn the use of chain shot and bar shot, shooting bits of iron, brass, nails, &c., the loading of muskets with two balls, with jagged balls, or with balls mixed with glass or lime.

Special treaties have prohibited as between the parties the use of chain, bar, and hot shot, as well as of pitch rings, (cercles poissés.) Grape, canister and shrapnel shell, or spherical case shot are used in the United States navy. Ordnance Instructions of 1866, p. 76, §§ 271

275.

Private gratification forbidden.

755. All transactions for individual gain at the expense of the enemy,' all insults to the religion, honor, language or manners of the enemy;" all assassination' or other acts of private revenge, or connivance at such acts, and all violence for private purposes, are unlawful.

4

Lieber's Instructions for the Government of Armies of the United States, 11.

1 Such as extortion of money for private use. Lieber's Political Ethics. bk. VII., § 24.

2 Bluntschli, Droit Intern. Codifié, § 577

3

Klüber, Droit des Gens, § 244; Bluntschli, Droit Intern. Codifié, § 561 · Lieber's Instructions, ¶ 148; Dana's Wheaton, Elem. of Intern. Law, § 343, note 166.

§ 24.

Such as the gratification of lust. Lieber's Political Ethics, bk. VII.,

Unlawful hostilities.

756. The following acts are unlawful,' except when inflicted in retaliation, within the limits prescribed by article 758:

1. Offering reward for the death of any person;' 2. Proclaiming any person an outlaw ;'

3. Incendiarism, except of military structures ;* 4. Bombardment of defenseless places ;"

5. All wanton injuries to property, not subject to hostilities according to the provisions of this Book ;

6. All unnecessary or avoidable injury to the person of others than active enemies, or to property mentioned in article 840, even when contained in fortified places besieged or bombarded ;'

8

7. Refusing quarter to those who surrender and lay down their arms, or killing or wounding a defenseless or unresisting" enemy; except in the cases where the refusal of quarter is necessary by way of retaliation, allowed by article 758, or when the punishment of death is ordered by a competent tribunal for an offense committed by such enemy.

8. Mutilation or other wanton injuries of the person of a prisoner:

9. Firing on outposts,' "sentinels or pickets, except under express orders to drive them in :

10. The use of poison" or other means, to vitiate food, drink or atmosphere, or to spread contagious or infectious disease; and,

11. Starving" the enemy by cutting off supplies of food or water.

1 It is lawful, however, to take advantage of the disorder or weakness caused by such acts, when committed by third parties. Bluntschli, Droit Intern. Codifié, § 563, note.

2 Bluntschli, Droit Intern. Codifié, § 562; Lieber's Instructions for the Government of Armies of United States, ¶ 148.

Klüber, (Droit des Gens, § 244,) says, putting a price on the head of the sovereign or general-in-chief is forbidden.

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. Lieber's Instructions, ¶ 148.

4 Bluntschli, Droit Intern. Codifié, § 563, note.

This, it seems, should be prohibited, though it has been regarded as allowable.

Such are the violation of women, the despoiling of tombs, the profaning of places of worship, &c. Klüber, Droit des Gens, § 244. 1 Lieber's Instructions, ¶ 35.

By the present rules of international law, says Halleck (Int. Law & Laws of War, p. 429, § 6, citing many authorities,) quarter can be refused the enemy, only, in cases where those asking it have forfeited their lives by some crime against the conqueror, under the laws and usages of war. But Lieber, (Instructions, ¶ 60,) says, that a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible for him to incumber himself with prisoners. See also Bluntschli, Droit Intern. Codifié, § 580.

According to the same authorities, troops known to give no quarter receive none; (Bluntschli, § 581; Lieber, ¶ 62 ;) and if the character of a prisoner, as a member of such troops, is unknown at the time of capture, he may be put to death, if it be discovered within three days after the battle in which quarter was given under such misapprehension. Lieber, T 66.

This Article would establish a more humane rule.

Bluntschli, Droit Intern. Codifié, § 561, and note.

10 Halleck, Intern. Law and Laws of War, p. 426, § 2; p. 429, § 6; Lieber's Instructions, ¶ 71; Bluntschli, Droit Intern. Codifié, § 385.

Some earlier authorities allow the killing of prisoners who have been taken and who can not be safely kept. Vattel allows this, only, where no promise to spare them has been given; or where safety absolutely demands it. But Halleck, (p. 440, § 20,) condemns such an act, in any case, as infamous at the present day.

11 Lieber's Instructions, ¶ 69.

19 Halleck, Intern. Law and Laws of War, p. 392; Bluntschli, Droit Intern. Codifié, § 557. This applies equally to the poisoning, and to the diseases of animals. Klüber; Droit des Gens, § 244. The use of poison in any way is forbidden. Lieber's Instructions, ¶¶ 16, 70; compare, however, Lieber's Political Ethics, Bk. VII., § 25. Some earlier authorities sanction the use of poison. See Wildman's Intern. Law, v. 2, p. 24.

18 By the existing rules this is allowed. Dana's Wheaton, § 343, note 166; and Lieber's Instructions, ¶ 18, allow also driving back non-combatants whom the commander of a besieged place expels. But these extreme measures, it should seem, ought not to be continued.

Notice of bombardment.

757. Before bombarding any city or town, a commander must give notice to its authorities of his intention to do so; and must allow a reasonable time for the removal of all who are not active enemies.

Lieber, (Instructions, ¶ 19,) says that it is no infraction of the laws of war to omit such notice; for surprise may be a military necessity.

In the Franco-Prussian war, the Germans hesitated to resort to a general bombardment of Paris, and it is said, decided to reduce the city by famine instead of fire, if possible. Circular of Count Bismarck. Annual Register, for 1870, p. 187.

The rule that the bombardment of a fortified town should be preceded by notice was asserted by the representatives of neutral powers in Paris, during the seige; and they accordingly united in a note to Count Bismarck, requesting that "in accordance with the recognized principles and usages of the law of nations, steps may be taken to permit their countrymen to place themselves and their property in safety." Foreign Relations of the United States, 1871, pp. 284, 295. This was refused by Count Bismarck, on the ground that ample warning and opportunity to leave had been given. Id. pp. 293, 363.

Retaliation, when allowed.

758. Upon satisfactory evidence that the rules of lawful warfare are violated by an enemy, and if there be no other means of restraining his excesses, retaliation may, after deliberation, be justly resorted to in order to compel him to observe the law.

Lawrence's Wheaton, Elem. of Intern. Law, pp. 607, 608; Dana's Wheaton, § 347, citing Vattel, Droit des Gens, liv. III., ch. 8, § 142; ch. 9, §§ 166--173; Marten's Précis du Droit des Gens Moderne de l' Europe, liv. VIII., ch. 4, §§ 272--280; Klüber, Droit des Gens, Part II., tit. 2, sec. 2, ch. 1, §§ 262--265. Bluntschli, Droit Intern. Codifié, § 567; Lieber, Instructions, ¶ 28.

In the war of the rebellion, the president of the United States issued an order, July 30, 1863, in view of alleged barbarities inflicted upon prisoners by the enemy, declaring that for every soldier of the United States killed in violation of the laws of war, a rebel soldier should be executed; and for every one enslaved or sold into slavery by the enemy, a rebel soldier should be placed at hard labor on the public works, until the other should be released and treated as a prisoner of General Orders of U. S. War Department, v. 2, p. 323, No. 252.

war.

Mode of retaliation not to be barbarous.

759. Retaliation for barbarous hostilities, such as mutilation, deprivation of food or drink, or enslavement of prisoners, the use of unlawful weapons, or other cruelties, can not be made by inflicting the same barbarities; but may be by inflicting death.

This principle is declared in Lieber's Instructions, ¶ 58, in respect to enslavement.

Passive or disabled enemies and prisoners.

760. The refusal of quarter, when authorized, does not justify killing passive enemies, or active enemies already disabled on the ground, or those who are already prisoners.

Lieber's Instructions, ¶ 61; Bluntschli, Droit Inter. Codifié, § 582.

Bribery and intrigue.

761. Bribing or attempting to bribe any enemy impressed with the military character of the hostile nation, or any of its officers, agents or servants; and clandestinely corresponding with a faction in the enemy's forces or people, are unlawful.

Halleck says, the latter is not unlawful; though the former is not honorable.

Klüber, (Droit des Gens, § 244,) declares the corrupting of the generals and functionaries of the enemy to be unlawful, as well as engaging its subjects in treason or sedition.