On Reprisals

[David Thompson]

An interesting article on the customs and usages of war in regard to reprisals during the War of 1812:

"Every horror was committed with impunity . . . and not a man was punished!" Reflections on British Military Law and the Atrocities at Hampton in 1813
http://www.napoleon-series.org/military ... mpton.html

[David Thompson]

This passage on the customs of war regarding hostages and reprisals is from J. M. Spaight, War Rights on Land (London: 1911):

CHAPTER XIV
THE SANCTION OF THE LAWS OF WAR.
Conventional Law of War.—None.

As I have said in the first chapter of this book there is no machinery for compelling compliance with International Law. International Law will never have a real "sanction," that is, it will never be really " law " in the strict Austinian sense, unless and until the various nations surrender some of their sovereign power to one supreme ruler who shall have the right and the means to execute his decrees. Such a " High King "—a revived Pope, for instance, with a " ten-power standard " army and fleet and the right to refrain the spirit of refractory princes, not by excommunicating them, but by marching against them, smiting them hip and thigh, and imprisoning them in the Vatican—would certainly dispense a "law," but whether that law would then be International Law is doubtful. For, practically, so far as foreign affairs were concerned, the nations would not be independent and sovereign. As things are at present, there is no "sanction "in the legal sense at all. Observance of the rules of International Law rests upon the conscience of each nation and the might of its arm. If a nation wrongs another in peace—if it violates the rules of International Law which obtain between friendly nations—the other may secure redress by threatening or opening hostilities; but when the two nations are already at war, obviously this method of redress is no longer permissible. If the laws of war are broken, there are three possible methods of obtaining satisfaction to be considered:—

(1) The damaged belligerent may himself punish the offending enemy soldiers or nationals.

(2) He may lodge with the other belligerent a protest against

461

462 WAR RIGHTS ON LAND CHAP.

the infraction, and if it is a case in which an indemnity will compensate for the damage, claim one under Article III of the Hague Convention (the diplomatic prelude to the Règlement).

(3) If the actual offender cannot be reached and if the other belligerent has refused satisfaction, the damaged belligerent may resort to reprisals.

As to the case coming under (1) above, nothing need be said, except that the punishment of offenders, however manifest and grave their offence, should take place only after a fair trial -- by a military court, a council of war, or whatever kind of court has cognisance of offences against war law in each army ; and that sentences of death should invariably be subject to the approval of the commander-in-chief. The question of a man's life or death is as grave as the question of levying a contribution and ought to be decided by no less supreme and responsible an authority. It is not always easy, under the unfavourable conditions of war, to secure that detachment of spirit and judgment, that freedom from passion and emotion, which ought to mark every judicial process. But the very necessity for a trial and for the case against the accused being set down in writing (as is usual) makes for justice. Perhaps some day one may see a specialised body — a very few would suffice–of "war law judges" in each army, before whom all cases of violation of the laws and usages of war shall be heard.[1]

Article III of the Hague Convention speaks of an indemnity, being paid in "proper cases." What " proper cases " would be is not defined; presumably cases in which the damage caused by the violation is capable of being reduced to a money basis, such as a case of damage to property. The aggrieved belligerent would still be entitled to punish the offenders — if he could capture them — in such cases as treachery and the use of poison.

The third method of securing compliance with the laws of war is a method to be adopted only in the last resort. Reprisals are a survival of the lex talionis -- an eye for an eye, a limb for a limb, a life for a life. They are the very saddest of all the necessities of war. " History," says Professor De
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1 As to the necessity for a trial of offenders against the laws of war, see Article 84, Oxford Manual ; Article 12, American Instructions ; Bluntschli, op. cit. sec. 548 ; French Manuel a l' Usage, p. 90 ; British Manual, p. 45 ; Billet, op. cit. p. 209.

XIV SANCTION OF THE LAWS OF WAR 463

Martens," abounds in numberless examples of the most atrocious cruelties committed under the pretext of reprisals."1 Yet one cannot see how they can be entirely done away with. When the question of reprisals was discussed at Brussels, Baron Lambermont of Belgium, whose proposal to sacrifice " the proposed Article " on the altar of humanity " was unanimously accepted by the committee, pointed out that whatever care were taken to soften the law as to reprisals, the principle — an odious one — would still remain.[2] The enormous difficulty of the subject — one bearing upon the mitigation of the evils of war as much as any subject possibly can -- may be judged from the fact that the Brussels Conference shrank from legislating for it, and that the two Hague Conferences have not touched the question at all. At Brussels it was felt that "occasions on which reprisals of a severe character had been executed were of far too recent a date to allow the practice to be discussed calmly."[3] But no such objection to its being discussed existed in 1899 or in 1907. The words which Baron Jomini used at Brussels are both true and noteworthy, though one may doubt whether the suppression of all reference to the subject is likely to have such a " serious moral bearing" — such a deterrent effect upon resort to the practice — as he anticipated. The necessity for resorting to reprisals is recognised in all the service manuals; the only effect of the suppression of the Brussels Article has been that each manual gives its own rules instead of a universally-binding, stereotyped set. Baron Jomini"s words were:

I regret that the uncertainty of silence is to prevail with respect to one of the most bitter necessities of war. If the practice could
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[1] De Martens, op. cit. p. 423. Perhaps the worst war in this respect, i.e., the war in which each side deliberately practised inhumanities on the greatest scale by way of reprisals, was the Anglo-American War of 1812-14. The American troops in Canada, the English troops in the States, were guilty of an endless number of barbarities for which -- given an original outrage which could not be so excused — each party was able to find ample justification in the acts of the other. A " vicious circle" of reprisal was established which neither side had the magnanimity to break. It was asked at the time in the English House of Commons why the scalping of prisoners was not resorted to in wars with the Red Indians, or the enslavement of them in wars with the Barbary Corsairs, if the British retaliation for the messes of the American militia in Canada was good war. (Hewson Clark. History of the War, published 1817, p. 74.)
[2] Brussels B.B., p. 281.
[3] Ibid. p. 178.

464 WAR RIGHTS ON LAND CHAP.

be suppressed by this reticence I could but approve of this course. But if it is still to exist this reticence may, it is to be feared, remove any limits to its exercise. Nevertheless, I believe that the mere mention in the Protocol that the Committee, after having endeavoured to regulate, to soften, and to restrain reprisals, has shrunk from the task before the general repugnance felt with regard to the subject, will have a most serious moral bearing. It will, perhaps, be the best limitation we have been able to affix to the practice, and especially to the use which may be made of it, in future.[1]

The rules drawn up by the Institute of International Law and given in the Oxford Manual (Articles 85 and 86) may be regarded as the most authoritative expression of the International Law as to reprisals ; they are the " common denominator," as it were, of the rules on the subject given in the various army manuals.

Reprisals are formally forbidden in all cases in which the wrong complained of has been redressed.

In the grave cases in which reprisals appear to be an imperious necessity, the manner of inflicting them, and their extent, must not be disproportioned to the infraction committed by the enemy.

They can only be inflicted under the authority of the commander-in-chief.

They must in all cases take account of the laws of humanity and morality.

Another rule, the justice of which is evident, is suggested by Professor De Martens: viz., that if it is impossible to punish the actual culprits, reprisals ought in the first instance to be inflicted upon the commanders and officers of the enemy's troops.[2]

There is nothing to prevent the act of reprisals differing from that complained of. " Circumstances do not always allow of replying to an infraction by an identical infraction, and it is well, too, to have the power to limit oneself, on occasion, to measures of reprisal less grave and therefore different."[3] "Reprisals need not resemble in character the offence complained of. They may be exercised against persons or property."[4] Either combatants or non-combatants may be the victims of reprisals.
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[1] Brussels B.B. p. 178.
[2] Op. cit. p. 428.
[3] French Manuel a l'Usage, p. 26.
[4] Professor Holland's note in British Manual, p. 96.

XIV SANCTION OF THE LAWS OF WAR 465

One finds instances in the Secession and Franco-German Wars of reprisals being exercised or threatened against prisoners of war.[1] M. Paul Carpentier holds that to execute prisoners is to break the quasi-contract made with them when they agreed to surrender;[2] but most jurists would, like Professor Pillet,[3] give the captor the power to adopt such a measure in very extreme eases. The German manual sanctions the killing of prisoners in unavoidable cases of urgent necessity.[4] " Every prisoner of war," says Article 59 of the American Instructions, " is liable to punishment inflicted by way of reprisals." " When the infraction complained of," says M. Bonfils, "emanates from soldiers, it is on soldiers especially that reprisals must be inflicted ";[5] and the right to inflict reprisals — to retaliate — must entail the right to execute in very extreme cases. Otherwise there would be no effective means of checking the enemy's very worst excesses.

As to non-combatants there is a difference of opinion. Some writers, like MM. Bonfils and Pillet, would deny commanders any war right of inflicting reprisals on peaceable citizens. But practice is all against their view. Every war has seen reprisals inflicted upon citizens, whether by way of the destruction of their property, the exaction of fines, or the seizure of their persons. In many wars their lives have been endangered through their being held accountable for acts committed by others. And this brings me to the difficult question of hostages -- a question which has assumed a great. magnitude and importance in modern wars. As I have said before, it is usual for an occupant to take hostages to secure compliance with his requisitions or as security for the good behaviour of the inhabitants of an occupied town. In the Secession War the Confederates carried off a number of unoffending citizens of Maryland and Pennsylvania and detained them in the south until the end of the war; their object being to hold them as security against the arrest or
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[1] See Bowman and Irwin, Sherman and his Campaigns, p. 355 ; Cassell History, Vol. II, p. 48.
[2] French translation of the Kriegsbrauch im Landkriege, pp. 176-7.
[3] Pillot, op. cit. p. 149. The British official Laws and Customs of War, (p. 46) contemplates the infliction of reprisals upon prisoners of war extreme caste."
[4] Kriegsbrauch im Landkriege, p. 10.
[5] Op. cit. sec. 1024.

466 WAR RIGHTS ON LAND CHAP.

ill-treatment by the Union Government of the Secession sympathisers—the " copperheads," as they were called—resident in the north.[1] Again, in 1870, the Germans seized as hostages forty notable inhabitants of Dijon, Gray, and Vesoul, in retaliation for the decision of the French Government to treat the crews of German merchantmen as prisoners of war, a decision which Germany held to be contrary to International Law but which has the support of practically all jurists.[2] The seizure in these cases was, in itself, a reprisal. But one sees the principle of retaliating upon non-combatants more clearly in another class of cases illustrated by events of the two wars just referred to, as well as of the Anglo-Boer War. The kind of case I mean is where a non-combatant is exposed to danger of life or limb with the object of preventing the enemy (active or passive) resorting to certain acts which the other belligerent considers illegitimate. As I have shown in an earlier chapter, the Federal Commanders of 1861-5 regarded the use of land mines or " torpedoes" as illegitimate in certain circumstances. Sherman ordered that, in such a case, the suspected place should be tested by a carload of prisoners, or of citizens implicated, being drawn over it by a long rope.[3] This system of " prophylactic reprisals" appears to have attracted no special attention until the Franco-Prussian War. It was in that war that it became one of the burning questions of modern war law. The attempts to wreck the trains in Alsace and other occupied districts in France became so frequent that, to stop them, the German authorities issued an order that the trains should be accompanied by inhabitants who are well known and generally respected, and who shall be placed upon the locomotive, so that it may be made known that every accident caused by the hostility of the inhabitants will, in the first place, injure their countrymen.

At Nancy the first hostage was the venerable President of the
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[1] Draper, op. cit. Vol. III, p. 501.
[2] See Count de Chaudordy's circular in Cassell's History, Vol. I, p. 221 ; Kriegsbrauch im Landkriege, p. 49. For other cases of the seizure of hostages in this war, see Sutherland Edwards, op. cit. pp. 268-9.
[3] See Bowman and Irwin, op. cit. pp. 235-6. McClellan made his prisoners search for the torpedoes in such a case (McClellan's Own Story, pp. 326-7), as also did Sheridan (Memoirs, Vol. I, pp. 380-1). See Grant, Memoirs, p. 558.

XIV SANCTION OF THE LAWS OF WAR 467

(Court of Appeal, M. Leclair ; another notable citizen who was " invited " to go travelling was Procureur General Isard, who, escorted by two Prussian gendarmes, had to mount the tender and travel to Luneville, where his colleague in that town took his place. The President of the Chamber of Commerce, a judge, and a barrister, occupied the post of danger on other occasions.[1] The German practice was revived by Great Britain in the South African war. I have already quoted the Proclamation issued by Lord Roberts on the subject.[2] The Proclamation was soon repealed -- by Proclamation No. 9 of 27th July, 1900[3] — but the practice continued. One finds Mr. Brodrick, Secretary for War, upholding the legitimacy of the practice in the House of Commons as late as 26th March, 1902. Mr. Bryce had declared that

"the practice is contrary to the Hague Convention [Règlernent] and contrary to the general usages of civilised warfare. (Several hon. members: No, no.) Unquestionably. The only parallel I can find fur it is the case which occurred in the Franco-Prussian War of 1870, under somewhat different circumstances.

Mr. Brodrick replied that Mr. Bryce"s view was not that held by those who advised the Government in this matter, and he declared that there was another precedent for the practice than that of the War of 1870-1, which, however, he declined to name, " because of the susceptibilities which are aroused by statements of this kind in this House." " I should not have far to go," he said, " to look for another example which would amply justify us in the course Lord Kitchener thought it necessary to take."' He was referring, I think, to the cases in the Secession War, in which the principle was the same though the circumstances were somewhat different. But, indeed, he might have quoted the Boers themselves as his authority for practices of the kind, if the legality of the thing
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[1] Hosier, Franco-Prussian War, Vol. II, p. 90.
[2] Vide supra, p. 124.
[3] Proclamations of Lord Roberts, (Cd. 426) p. 12. The original Proclamation, authorising the carrying of hostages on trains, was No. 6 of 19th June, 1900 (ibid., p. 11).
[4] Wyman's Army Debates, Session 1902, Vol. II, pp 196 200. See also do., Vol. I, pp. 595, 610, 782, for further references in the House to this question of earning hostages on trains.

468 WAR RIGHTS ON LAND CHAP.

was to be decided by precedents and not on the higher ground that "right is right" When the Boers approached Aliwal North in November, 1899, before crossing the Orange River, they "sent a messenger to fetch Mr. Hugo, the magistrate, and ordered him to stand on the middle of the bridge with his assistant and chief constable, while the commando crossed, as a precaution in case the bridge might be mined." This was a perfectly clear case of " prophylactic reprisals "; the enemy non-combatants were placed in the post of danger, not on a locomotive, but on a bridge, as a kind of security against what was regarded as an illegitimate act on the enemy's part.

The practice of war, then, may be affirmed as good evidence in favour of this usage of exposing civilian hostages to danger by way of preventive retaliation. What about theory and abstract justice ? Theory has condemned the practice almost unanimously.[2] "Their proceedings," says Professor Pillet, referring to the German practice, " resemble that of the mutineers who place women and children in the first rank, hoping that the troops will not dare to fire upon them. Fighting ought to be confined to soldiers, and there is little military virtue in making use of non-combatants as a shield against the enterprises of the enemy." "It would not be more unjust," says Professor Westlake, "if civilians of the enemy State were placed in the front of battle in order to induce the enemy's troops to withhold their fire." The German Official Manual admits that the method adopted to stop train wrecking in 1870-1 was a cruel one, but justifies. it on the ground that it was completely successful in its object, no accidents occurring to trains which carried notables, whereas all previous attempts to prevent " the undoubtedly irregular, even criminal, conduct of a fanatical population " had ended in failure.[3] Both of the views I have presented — Professors Westlake's and Pillet's—the general view on the one side, the German official jurist's on the other –
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[1] Times History, Vol. II, p. 292.
[2] See Bonfils, op. cit. sec. 1145 ; Pillet, op. cit. p. 213 ; Hall, International Law, p. 475; Bluntschli, op. cit. sec. 600; Westlake, International Law, Part II, p. 102. On the other hand, see Oppenheim, International Law, Vol. II, pp. 272-3, who upholds the practice.
[3] Kriegsbrauch im Landkriege, pp. 49-50. See also Busch, Bismarck, Vol. II, pp. 121-2.

XIV SANCTION OF THE LAWS OF WAR 469

appear to me to miss the true solution of this difficulty, and to miss it, too, for the same reason in each case. Both views, that is to say, are too absolute, general, and dogmatic; both fail to take account of the varying circumstances in which the practice in question may be resorted to. Mr. Bryce, too, spoke beside the point, I think, when he described the practice as contrary to the convention and usage of war. For the whole question hostages is bound up with the question of reprisals, and reprisals have not been legislated for, nor is there any universal usage which would warrant one in raying that " prophylactic reprisals" of the kind I am dealing with are banned by customary war law. If reprisals are legitimate at all and if they may be inflicted upon a civil population, then to retaliate , as far as possible in kind is proper and equitable. But reprisals can only be inflicted for a violation of the laws of war. They must not be inflicted to prevent the enemy carrying out a proper act of hostilities. Now, as I have shown in Chapter IV, railway wrecking is, generally speaking, a perfectly legitimate act of war, but it must, like any other such act, be carried out by the enemy's proper agents of war—his combatant troops. If a non-combatant interferes with a railway line, he lays himself open to extreme and summary punishment. It is quite fitting that he should be the first to suffer for such interference, or (reprisals being allowed) for any interference effected by ether non-combatants. If, therefore, one confines one's remarks to a district in which there is no possibility of the damage done to the line having been effected by the enemy's raiding parties or in which such raiding parties could not achieve their purpose without the inhabitants' assistance or connivance, I hold that no objection arises under the laws and customs of war to the carrying of hostages on trains. To compare the measure to placing women and children in the forefront of a battle is to confuse the issue ; for to expose women and children in such a way is to seek to prevent the enemy doing what he has a perfect right to do, while carrying hostages on a train, under the restricted conditions I refer to, is to seek to prevent noncombatants meddling treacherously in hostilities and thereby violating war law. As I have said in Chapter IV, there was little substantial reason for assuming that the railway lines in

470 WAR RIGHTS ON LAND CH. XIV

the occupied parts of France in 1870-1 could not have been injured without the help or connivance of the inhabitants and still less reason for this assumption in the case of the Boer Republics. Therefore, so far as the question of the right or wrong of the practice adopted in these two wars is concerned, I agree with the majority of writers in casting my vote against it—the conditions which would have legalised it not being proved to have been in existence. But that is not to say that it would not have been proper and justifiable under circumstances not so very dissimilar from those in which it was actually resorted to.

[phylo_roadking]

Interesting. I WAS going to ask who Spaight was and what legal weight this had..

Therefore, so far as the question of the right or wrong of the practice adopted in these two wars is concerned, I agree with the majority of writers in casting my vote against it—the conditions which would have legalised it not being proved to have been in existence. But that is not to say that it would not have been proper and justifiable under circumstances not so very dissimilar from those in which it was actually resorted to.

...until I got to the end. Seems to be a legal opinion piece built on precedences? But still no weight as such - unlike the legal judgements cited, which COULD be used in court. I have to agree with THIS, however...

As I have said in the first chapter of this book there is no machinery for compelling compliance with International Law. International Law will never have a real "sanction," that is, it will never be really " law " in the strict Austinian sense, unless and until the various nations surrender some of their sovereign power to one supreme ruler who shall have the right and the means to execute his decrees. Such a " High King "—a revived Pope, for instance, with a " ten-power standard " army and fleet and the right to refrain the spirit of refractory princes, not by excommunicating them, but by marching against them, smiting them hip and thigh, and imprisoning them in the Vatican—would certainly dispense a "law," but whether that law would then be International Law is doubtful. For, practically, so far as foreign affairs were concerned, the nations would not be independent and sovereign. As things are at present, there is no "sanction "in the legal sense at all. Observance of the rules of International Law rests upon the conscience of each nation and the might of its arm.

Without some "third party" authority with punitive strength behind it - the Hague Rules could ONLY ever be enforced retrospectively I.E. AFTER the crime had occured and people suffered in some way

[phylo_roadking]

However, one thing is VERY interesting...

from J. M. Spaight, War Rights on Land (London: 1911):

....obviously people were STILL therefore arguing over how to actually ENFORCE the 1907 Conventions....and what they actually MEANT in practice!!!

[David Thompson]

From Charles Cheney Hyde, Land Warfare (US Government Printing Office: 1918):

i.

RETALIATION.

Retaliation in land warfare refers to a single form of that broad and grave procedure whereby a belligerent State endeavors to check

54 LAND WARFARE

the illegal conduct of the enemy by recourse to measures supposedly similar in kind. In justification it is pleaded that a belligerent which violates the law forfeits the right to claim respect for it by its foe.[1]

In land warfare the opportunity for a commanding officer to exercise discretion in resorting to retaliation is narrow, because such procedure, by reason of the serious consequences which it may entail, is commonly determined by the highest authorities of the State, and when agreed upon, leaves the commander in the field no alternative.[2] The right, therefore, of such an officer, as a matter of domestic as well as international law, to resort to the excesses of the enemy as a means of causing their abatement, must be limited to occasions when no other effective deterrent is available.[3]

According to the Rules of Land Warfare, "retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."[4]

The punishment of captured enemy persons for having violated the laws of war may suffice to deter the commission of reprehensible acts and so remove the necessity of retaliation. It should be observed, however, that retaliation does not purport to be the imposi-

LAND WARFARE. 55

tion of a penalty as such,[5] but merely a preventive which may, of necessity, demand the application of severe measures against persons themselves guilty of no wrongful conduct.[6] This circumstance emphasizes the great caution with which commanding officers should permit themselves to return lawlessness for lawlessness, and the zeal with which, despite grave provocation, they should endeavor to restrain their subordinates from the commission of even retaliatory acts of cruelty.[7]

Where the lawlessness of a hostile army takes the form of acts which disregard the laws of humanity and morality, the return of like for like can give no cause of umbrage to the former. Doubtless in dealing with certain uncivilized tribes no milder response may serve to check atrocities. When, however, the army of an enlightened state, in the course of retaliation, resorts to acts of barbarity which its enemies do not hesitate to commit, it not only sinks to the level of its foes, but also establishes a precedent which sullies the profession of arms and weakens the efforts of other forces under the same flag to pursue a finer course. For that reason it seems important, especially in view of reported occurrences of the European War, that the highest military authorities of every belligerent state should, upon the outbreak of hostilities, make known to all subordinates certain forms of conduct which acts of retaliation should never be permitted to assume.
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[1] Upon the entrance of the United States into the European war in April, 1917, the declarations of President Wilson describing the country as the protagonist of democracy and the foe of the autocratic powers in control of Germany rather than with the people of that country were of a nature to encourage opposition to the Hohenzollern rule on the part of soldiers and civilians alike. The effort, if any, through whatsoever channel, to bring his words to knowledge of men in the German trenches was a direct and reasonable means of endeavoring to weaken a system of government against which the United States had resorted to arms.
[2] See Retaliation in General, supra.
The regulations annexed to The Hague convention of 1907, respecting the Laws and Customs of War on Land contain no provisions concerning retaliation.
See, for example, the retaliatory treatment of British prisoners in the United States in the War of 1812, as indicated in Wharton, Dig., Ill, 330, citing Am. State Papers, For. Rel, III, 630, and quoted in Moore, Dig., VII, 182.
See also Correspondence between Vice Admiral Cochrane of the British Navy, and Mr. Monroe, Secy. of State, in August and September, 1814, respecting the destruction of American coast towns by the former pursuant to the request of the Governor General of the Canadas "to aid him in carrying into effect measures of retaliation against the inhabitants of the United States for the wanton destruction committed by their army in Upper Canada.' American State Papers, For. Rel. in. 093, 694, Moore, Dig., VII, 183-186.
[3] Thus where the enemy disclaims intentional violation of the laws of war, or a readiness to grant reparation for injuries committed in consequence of so doing, or a willingness to enter into a reciprocal arrangement to prevent a recurrence of acts complained of, the reason for retaliation disappears. See in this connection the communication of Mr. Monroe, Secy, of State, to Vice Admiral Cochrane, Sept. 6, 1818, American State Papers, For. Rel. Ill, 693, Moore, Dig., VII, 184.
Declares Gen. Davis: "A general who suffers a wrong at the hands of an enemy, or who finds that his enemy has violated any of the accepted usages of war, addresses him a communication setting forth the facts which constitute his ground of complaint. If no explanation or apology is attempted, or if the enemy assumes the responsibility of the act, he is justified in resorting to measures of retaliation. In choosing a means of retaliation, revenge cannot enter into the consideration or decision of the question. His sole purpose must be to constrain his adversary to discontinue the irregular acts complained of. Unless the enemy's act be in gross violation of the dictates of humanity, he must retaliate by resorting to the same or similar acts in his military operations." (3 ed., 326, citing Woolsey, §132; Risky, p. 126; Field, International Code, §§758, 759.)
See J. M. Spaight, War Rights on Land (Chap. XIV., on the Sanction of the Laws of War).
[4] See § 381, where it is added that "Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages." See § XXVIII, General Orders, No. 100, of April 24, 1863.
[5] See Stockton, Outlines, 330.
[6] § 59 of General Orders, No. 100, of Apr. 24, 1863, declared that " All prisoners of war are liable to the indiction of retaliatory measures." This language has been incorporated in the Rules of Land Warfare, §383, and is followed by the statement that "Persons guilty of no offense whatever may be punished as retaliation for the guilty acts of others. " It may be doubted whether this sentence was intended to signify more than that innocent persons might be subjected to retaliatory measures.
"I am well aware of the danger and great difficulty of the task our Army has had in the Philippine Islands, and of the well-nigh intolerable provocation it has received from the cruelty, treachery, and total disregard of the rules and customs of civilized warfare on the part of its foes. I also heartily approve the employment of the sternest measures necessary to put a stop to such atrocities and to bring this war to a close. It would be culpable to show weakness in dealing with such foes or to fail to use all legitimate and honorable methods to overcome them. But the very fact that warfare is of such character as to afford infinite provocation for the commission of acts of cruelty by junior officers and the enlisted men, must make the officers in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates. " (President Roosevelt, approving the findings and sentence of the court-martial in the case of one Brig. Gen. S., Senate Doc. 213, 57 Cong., 2 sess. 3, Moore, Dig., VII, 188.)
[7] According to Art. LXXXVI, of the Manual of the Institute of International Law of 1880, on the Laws of War on Land: "In grave cases in which reprisals [signifying acts of retaliation] appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy.
"They can only be resorted to with the authorization of the commander in chief.
"They must conform in all cases to the laws of humanity and morality. " (Annuaire, V. 157, 174; J. B. Scott, Resolutions, 42.)

[David Thompson]

Some biographical information on J. M. Spaight: http://airminded.org/biographies/j-m-spaight/
and on Charles Cheney Hyde: http://www.britannica.com/EBchecked/top ... heney-Hyde

[David Thompson]

This excerpt on the military custom of reprisal is from Thomas Erskine Holland, The Laws of War on Land (Written and Unwritten) (Oxford: 1908), pp. 59-61.

SECTION X
PENALTIES FOR VIOLATIONS OF THE LAWS OF WAR

Punishment of Offenders.

117. Individuals offending against the laws of war are liable to such punishment as is prescribed by the military code of the belligerent into whose hands they may fall, or, in default of such code, then to such punishment as may be

60 VIOLATIONS OF THE LAWS OF WAR

ordered, in accordance with the laws and usages of war, by a military court.

118. When a whole corps systematically disregards the laws of war, e. g. by refusal of quarter, any individuals belonging to it, who are taken prisoners, may be treated as implicated in the offence.

At the Brussels Conference of 1874, a suggestion was made, on behalf of France, to provide by international agreement a single system for the repression of offences against the laws of war, to be put in force by each Power as part of its military law (Parl. Paper, Miscell. No. 1, 1875, p. 20). Nothing has, however, been done in this direction. With reference only to offences against the Geneva Convention, the Institut de Droit International, in 1895, drafted a set of rules (see Annuaire, t. xiv, p. 188); and the Geneva Convention of 1906 followed suit in Articles 27 and 28 (Arts. 68 and 69 supra), to which, as has already been explained, the British Government have been unable to accede. The unauthorised use of the Red Cross emblem had been, however, already made illegal in many countries, the laws of which upon this subject are set out in the Actes de la Conference, pp. 166-174, as also in Parl. Paper 1908 [Cd. 3933], pp. 64-74. Very little is to be found in English Statutes or Regulations with reference to offences against International Law.

Reprisals.

119. When the actual offenders cannot be reached or identified, resort is sometimes had to measures of " Reprisals " or "Retaliation ", by which persons guilty of no offence may suffer for the acts of others. Since, however, the permissibility of such measures is a painful exception to the rule that a belligerent must observe the laws of war, even without reciprocity on the part of the enemy, Reprisals must be sparingly exercised, and then not by way of vengeance, but solely in order to prevent a repetition of the offence complained of.

Reprisals need not resemble in character the offence complained of. They may be exercised against persons or property. Only in extreme cases have prisoners of war been executed by way of

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reprisal ; but the destruction of villages, houses, &c., on account of offences committed in them, or in their neighbourhood, has not been uncommon. Such destruction is not to be confused with that which is occasionally necessary for strategic reasons. Cf. supra, Arts. 3 and 76 (g).

120. Reprisals must be exercised only subject to the following restrictions :—

1. The offence in question must have been carefully inquired into.

2. Redress for the wrong, or punishment of the real offender, must be unattainable.

3. The Reprisals must be authorized, unless under very special circumstances, by the Commander-in-chief.

4. They must not be disproportioned to the offence, and must in no case be of a barbarous character.

This article is intended to represent prevalent authoritative opinion upon this subject, as to which as yet no written rules have been adopted by international consent. The Projet of a Convention on the laws of war, submitted by Russia to the Brussels Conference of 1874, suggested the following articles:-69. "Reprisals are only admitted in extreme cases, regard being paid, as far as possible, to the laws of humanity, when it shall have been established beyond question that the laws and customs of war have been violated by the enemy, and that he has resorted to measures condemned by the Law of Nations." 70. "The choice of the means and the extent of reprisals should be proportioned to the gravity of the infraction of law perpetrated by the enemy. Reprisals which are disproportionately severe are contrary to the rules of the Law of Nations." 71. " Reprisals shall be allowed only on the authority of the Commander-in-chief, who must also determine the degree of their severity and their duration." (See Parl. Paper, Miscell. No. 1, 1874, p. 11.) The Conference, however, largely in deference to Belgian representations, declined to seem to add to the authority for a practice so repulsive, although, under certain circumstances, unavoidable, by legislating on the subject. The attempt to regulate the practice has not been renewed at the Hague Conferences of 1899 or 1907.

[David Thompson]

For a biographical note on Thomas Erskine Holland, see http://en.wikipedia.org/wiki/Thomas_Erskine_Holland