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Woolsay, (International Law, 127, p. 218,) says, that “to lead the officers, counsellors, or troops of an enemy to treachery by bribes, or to seduce her subjects to betray their country, are temptations to commit a plain crime, which no hostile relation will justify. Yet to accept of the services of a traitor is allowable: ” citing Vattel, Droit des Gens, III., 10, S$ 180, 181.
The laws of war impose the punishment of death on one who attempts to bribe an officer or induce a soldier to desert. Halleck, Intern. Lar & Laros of War, p. 409, $ 27: citing Phillimore, Int. Law, v. 3, S 106.
Bluntschli, (Droit Intern. Codifié, $ 564, and note,) says, that the insti. gation of treason in the officers and soldiers of the enemy is not to be countenanced, but to instigate acts not dishonorable in themselves, such as political offenses in other cases, is allowable.
It should seem proper, however, for the nations uniting in a Code to recognize the obligation to respect the rights of allegiance in regard to civilians as well as soldiers.
Good faith in keeping engagements.
762. Lawful promises made to the enemy must be kept, in good faith.
Bluntschli, Droit Intern. Oodiflé, 566; fioré, Noudeau Droit Intern., v.2, p. 356.
“ Stratagems" defined.
763. Stratagems are snares laid for an enemy, or deceptions practiced on him.
1. Any false communication, by word, sign or otherwise, addressed directly to the enemy;"
2. The use of false colors, ' false uniforms, and false signals 'of distress ;
3. Disguise, or using indicia of neutrality or inactivity, for the purpose of committing acts of hostility, with the appearance of a peaceful intent;' and,
4. All other acts of perfidy' and treachery. 1 This is a more strict rule than is at present applied, but with the distinctions made in the next Article, is not more strict than good faith seems to require. The exigencies of lawful negotiations require that communications directly to the enemy should be truthful.
· This is different from the rule heretofore existing. Bluntschli, (Droit
Intern. Codifié, $ 565, and note,) says, it is not now unlawful to deceive the enemy by using his own colors and uniforin ; but before actual contest the true character must be disclosed.
Lieber, (Instructions, 1 65,) says, the use of the enemy's emblems of nationality for the purpose of deceiving him in battle, is perfidious.
False colors at sea are now allowed to be used in sailing, even in pur. suit, but the commission of any act of hostility under false colors is piracy. Halleck, (Intern. Law and Laws of War, p. 404,) says, that firing the affirming gun is not an act of bostility within this rule; but cites Massé and Hautefeuille as of a contrary opinion.
Ortolan, (Diplomatie de la Mer, v. 2, pp. 29, 80,) says, that it is not dishonorable, at sea, to draw the enemy into combat, or escape a superior enemy, by raising a false flag, but it is forbidden to commence or continue the combat under any other flag than the true one. Formerly it was forbidden to fire the warning gun under a false color, but now the French law only requires the French flag to be displayed before firing shot.
See also on this subject, 2 Wildman's Intern. Law, 25; The Peacock, 4 Robinson's Rep., 187; Pistoye et Duverdy Traité des Prises, tit. 5, ch. 1; Massé Droit Com., t. 1, § 307; Hautefeuille, Droit des Nations Neutres, t. 4, p. 8; Valin, Traité des Prises, ch. 1, sec. 1, 89; Lebeau, Nouveau Code dés Prises, t. 6, pp. 223, 283; De Cussy Droit Maritime, liv. 1, tit. 3, & 25.
By the present Article, a capture accomplished by the use of false colors would be unlawful. The protection of neutrals seems to require that the false use of neutral colors should not be resorted to by belliger. ents; and the enlarged immunity herein proposed for neutrals would make this restriction still more important.
8 Lieber, (Instructions, T 64,) says, that if uniforms captured from the enemy are used, a striking mark or sign must be adopted for distinction. Troops who fight in the enemy's uniform without such mark could expect no quarter. Bluntschli, (Droit Intern. Codifié, 8 583,) seems to apply this rule only to the use of such uniforms in battle.
* For an instance of the use of false signals in distress, see Vattel, Droit des Gens, liv, iii., c. 10, § 178. False signals not addressed to the enemy may perhaps be regarded as a part of lawful stratagem.
The principle which it is desired to establish is, that since new immunity from the evils of war is proposed for passive enemies and peutrals, belligerents shall not perfidiously take advantage of this as a means of stratagem. The case cited by Ortolan, (Diplomatie de la Mer, v. 2, p. 31,) of the British vessel of war in 1800, whose officers and men took possession of a Swedish vessel, a neutral, and in her surprised two Spanish frigates at anchor, is,-80 far as the offense against the Spanish forces is concerned,- only an extreme case of pursuit under false colors. If neutrals and passive enemies are to be respected, it should seem proper to forbid using any indicia of neutrality or inactivity as a cover for hostilities.
Disguise for the purpose of getting within the enemy's lines without
force, to put a person to death, is unlawful ; but disguise of ships or forces, for gaining a position or making a capture with force, is not..
. It is the breach of good faith, express or implied, which constitutes perfidy. Halleck, Intern. Law and Laws of War, p. 402.
Fioré, (Nouveau Droit Intern., v. 2, p. 282,) concludes that stratagem is permissible only when it does not violate the principles of morality, pledged faith, and the general rules of war.
1. False representations, addressed to any other than the enemy, though intended to come to his knowledge;'
2. Feigning assent to an infamous proposal, and making false communications in response thereto; and,
3. Surprise, without disguise or treachery. 1 Halleck, Intern. Laso and Laws of War, p. 405,
Wildman, (Intern. Law, v. 2, p. 24), says, unqualifiedly, that disguising men and ships, except firing under false colors, as well as spreading false news, and the like, are lawful.
No rule of war forbids a commander to circulate false information, and to use means for deceiving his enemy with regard to his movements. Woolsey, Intern. Law, & 127.
Piratical use of false colors, &c.
766. Acts of hostility committed by a ship under false colors, or by the use of a neutral ship, or accomplished by the use of false colors, or of false signals, addressed to the enemy, are acts of piracy.
See note to Article 764; and compare Article 61.
- Spies" defined.
767. Spies are persons who, with disguise or other deception, go peaceably among the enemy to discover his condition.
Lieber's Instructions, I 88.
Halleck, (Intern. Law and Laws of War, p. 406,) includes in his definition the act of communicating information so acquired to the employer. But it is not necessary to show that done or even intended, in order to constitute a spy.
An open reconnoissance is not forbidden. Bluntschli, Droit. Intern Codifié, $ 630.
Employment and punishment of spies.
768. It is lawful to employ spies without corrupt. ing public or military officers ; ' but a spy is punishable with death if captured while acting as such,' or in going or returning. i Fioré, Nouveau Droit Intern., v. 2, p. 283.
The act of Congress of the United States, of March 3, 1863, $ 38, pun. ishes with death all persons found in time of war lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere.
Lieber, (Instructions, [ 83,) says, that a scout,—that is, a person who with disguise or other deception lurks within or about the lines of the enemy to obtain information,-is punishable with death,
But it should seem that one who lurks without the lines ought not to be punished for that alone.
A successful spy or war-traitor safely returned to his own army and afterwards 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 dangerous person.
769, A belligerent may compel any inhabitant to serve as guide or pilot; and one who serves his own nation as guide, or who by compulsion serves the enemy as guide, is not punishable therefor.
Lieber's Instructions, TT 93-95; Bluntschli, Droit Intern. Codifié, S8 634, 635.
If a citizen of a hostile and invaded district voluntarily serve as a guide to the enemy, or offer to do so, he is deemed a war-traitor, and may be punished with death.
A citizen serving voluntarily as a guide against his own country commits treason, and may be dealt with according to the law of his country.
Punishment of guides.
770. Guides or pilots who intentionally mislead, are punishable with death.
Lieber's Instructions, T 97; Bluntschli, Droit International Codifié, § 636.
Solicitation of desertion unlawful.
duty ; but, except during a truce or armistice,' deserters may be received and enlisted into service.
Fioré, Nouveau Droit Intern., v. 2 p. 282. 12 Wildman's International Law, p. 27; citing Grotius, III., 21, viii. Puffendorf, VIII., 7, xi.
Enlistment of deserters no protection from punishment.
772. A deserter who enlists with the enemy is not thereby protected from punishment according to the military law of the nation whose service he deserted, if he fall into its power again.
Lieber's Instructions, 48 ; Woolsey's International Law, $ 128, p. 220.
TRUCE AND ARMISTICE.
ARTICLE 773. “Truce" and “armistice" defined.
774. Authority to make a truce.
“Truce” and “armistice" defined.
773. The term “truce," as used in this Code, means a suspension of hostilities as to a part of the forces on either side, or as to one or more places.
The term “armistice” means a suspension of all hostilities between the belligerents.
Halleck, (Intern. Law and Laws of War, p. 654,) and Bluntschli, (Drvit Intern. Codifié, SS 687, 689,) distinguish between a suspension of arms, as being a temporary and local cessation of hostilities by a detachment of