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

REPRISALS 61

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

[David Thompson]

This interesting essay, tracing the history of the custom of reprisal, is taken from James Anson Farrar, Military Manners and Customs (1885). The full text of the book, which is essentially an argument for the abolition of warfare, can be seen at http://www.archive.org/details/military ... 00farrrich

CHAPTER IV.

MILITARY REPRISALS.

Si quis clamet iniquum non dare poenas quipeccavit, respondeo multo esse iniquius tot innocentium millia citra meritum in extremam vocari calamitatem. -- ERASMUS.

International law on legitimate reprisals -- The Brussels Conference on the subject -- Illustrations of barbarous reprisals -- Instances of non- retaliation -- Savage reprisals in days of chivalry -- Hanging the commonest reprisals for a brave defence, as illustrated by the warfare of the fifteenth century -- Survival of the custom to our own times -- The massacre of a conquered garrison still a law of war -- The shelling of Strasburg by the Germans -- Brutal warfare of Alexander the Great -- The connection between bravery and cruelty -- The abolition of slavery in its effects on war -- The storming of Magdeburg, Brescia, and Rome -- Cicero on Roman warfare -- The reprisals of the Germans in France in 1870 -- Their revival of the custom of taking hostages -- Their resort to robbery as a plea of reprisals -- General Von Moltke on perpetual peace -- The moral responsibility of the military profession -- The Press as a potent cause of war -- Plea for the abolition of demands for unconditional surrender, such as led to the bombardment of Alexandria in 1882.

ON no subject connected with the operations of war has International Law come as yet to lamer conclusions than concerning Military Reprisals, or the revenge that may be fairly exacted by one belligerent from the other for violation of the canons of honourable warfare.

General Halleck, for instance, whilst as against an

[93]

94 MILITARY MANNERS AND CUSTOMS.

enemy who puts in force the extreme rights of war he justifies a belligerent in following suit, denies the right of the latter to do so against an enemy who passes all bounds and conducts war in a downright savage fashion. Whilst therefore, according to him, the law of retaliation would never justify such acts as the massacre of prisoners, the use of poison, or promiscuous slaughter, he would consider as legitimate reprisals acts like the sequestration by Denmark of debts due from Danish to British subjects in retaliation for the confiscation by England of the Danish fleet in 1807, or Napoleon's seizure of all English travellers in France in retaliation for England's seizure and condemnation of French vessels in 1803. [1] And a French writer, in the same spirit, denies that the French Government would have been justified in retaliating on Russia, when the Czar had his French prisoners of war consigned to the mines of Siberia. [2]

The distinction is clearly untenable on any rational theory of the laws of retributive justice. You may retaliate for the lesser, but not for the greater injury ! You may check resort to infamous hostilities by the threat of reprisals, but must fold your hands and submit, if your enemy becomes utterly barbarous ! You may restrain him from burning your crops by burning his, but must be content to go without redress if he slays your wives and children !

How difficult the question really is appears from the attempt made to settle it at the Brussels Conference of 1874, when the following clauses formed part
______________________________
[1] International Law, ii. 95.
[2] Villiaume, L' Esprit de la Guerre, 56.

MILITARY REPRISALS. 95

of the original Russian project submitted to the consideration of that meeting :

Section IV.

69. ' Reprisals are admissible in extreme cases only, due regard being paid as far as possible to the laws of humanity when it shall have been unquestionably proved that the laws and customs of war have been violated by the enemy, and that they have had recourse to measures condemned by the law of nations.'

70. ' The selection of the means and extent of the reprisals should be proportionate to the degree of the infraction of the law committed by the enemy. Reprisals that are disproportionately severe are contrary to the rules of international law.'

71. ' Reprisals should be allowed only on the authority of the commander-in-chief, who shall likewise determine the degree of their severity and their duration.'

The delicacy of dealing with such a subject, when the memories of the Franco-German war were still fresh and green, led ultimately to a unanimous agreement to suppress these clauses altogether, and to leave the matter, as the Belgian deputy expressed it, in the domain of unwritten law till the progress of science and civilisation should bring about a completely satisfactory solution. Nevertheless, the majority of men will be inclined, in reference to this resolution, to say with the Russian Baron Jomini, the skilful President of that Military Council : ' 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 be suppressed by this reticence, I could

96 MILITARY MANNERS AND CUSTOMS.

not but approve of this course ; but if it is still to exist among the necessities of war, this reticence and this obscurity may, it is to be feared, remove any limits to its existence.'

The necessity of some regulation of reprisals, such as that contained in the clauses suggested at Brussels, is no less attested by the events of the war of 1870 than by the customs in this respect which have at all times prevailed, and which, as earlier in time, form a fitting introduction to those later occurrences.

That the fear of reprisals should act as a certain check upon the character of hostilities is too obvious a consideration not to have always served as a whole- some restraint upon military licence. When, for instance, Philip II of Spain in his war with the Netherlands ordered that no prisoners of war should be released or exchanged, nor any contributions be accepted as an immunity from confiscation, the threat of retaliation led to the withdrawal of his iniquitous proclamation. Nor would other similar instances be far to seek.

Nevertheless, it is evident that, as seldom as war itself is prevented by consideration of the forces in opposition, will its peculiar excesses, which constitute its details, be restrained by the fear of retaliatory measures ; and inasmuch as the primary offence is more often the creation of rumour than a proved fact, the usual result of reprisals is, not that one belligerent amends its ways, but that both belligerents become more savage and enter on a fatal career of competitive atrocities. In the wars of the fifteenth century between the Turks and Venetians, ' Sultan Mahomet

MILITARY REPRISALS. 97

would not suffer his soldiers to give quarter, but allowed them a ducat for every head, and the Venetians did the same. [1] When the Duke of Alva was in the Netherlands, the Spaniards, at the siege of Haarlem, threw the heads of two Dutch officers over the walls. The Dutch in return beheaded twelve Spanish prisoners, and sent their heads into the Spanish trenches. The Spaniards in revenge hung a number of prisoners in sight of the besieged ; and the latter in return killed more prisoners ; and so it went on during all the time that Alva was in the country, without the least improvement resulting from such sanguinary reprisals. [2] At the siege of Malta, the Grand Master, in revenge for some horrible Turkish barbarities, massacred all his prisoners and shot their heads from his cannon into the Turkish camp. [3] In one of the wars of Louis XIV., the Imperialist forces having put to death a French lieutenant and thirty troopers a few hours after having promised them quarter, Feuquieres, for reprisals, slew the whole garrison of two towns that he won by surprise, though the number so slain in each instance amounted to 650 men (1689). [4]

To all these cases the question asked by Vattel very pertinently applies : ' What right have you to cut off the nose and ears of the ambassador of a barbarian who has treated your ambassador in that manner ? ' The question is not an easy one to answer, for we have no more right in war than in civil life to punish the innocent for the guilty apart from the
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[1] De Commines, viii. 8.
[2] Watson's Philip II. , ii. 74.
[3] Ibid. i. 213.
[4] Memoirs, c. 19.

98 MILITARY MANNERS AND CUSTOMS.

ordinary accidents of hostilities, even if otherwise we must dispense with redress altogether. To do so by intention and in cold blood is ferocious, whatever the pretext of justification, and is never worth the passing gratification it affords. The citizens of Ghent, in their famous war with the Earl of Flanders, not only destroyed his house, but the silver cradle and bathing tub he had used as a child and the very font in which he had been baptized ; but such reprisals are soon regretted, and read very pitiably in the eyes of the after-world.

It is pleasanter to record some instances where abstinence from reprisals has not been without its reward. It is said that Caesar in Iberia, when, in spite of a truce, the enemy killed many of his men, instead of retaliating, released some of his prisoners and thereby brought the foe to regard him with favour. We read in Froissart that the Lisboners refrained from retaliating on the Castilians, when the latter mutilated their Portuguese prisoners ; and the English Government acted nobly when it refused to reciprocate the decree of the French Convention (though that also was meant as a measure of reprisals) that no English or Hanoverian prisoner should be allowed any quarter. [1] But the best story of this kind is that
_____________________________________________
[1] Villiaume (L' Esprit de la Guerre, 71) gives the following version : ' En 1793 et en 1794, le gouvernement anglais ayant viole le droit des gens centre la Republique Française, la Convention, dans un acces de brutale colere, decreta qu'il ne serait plus fait aucun prisonnier anglais ou hanovrien, c'est-a-dire que les vaincus seraient mis a mort, encore qu'ils se rendissent. Mais ce decret fut simplement comminatoire ; le Comite de Salut Public, sachant tres-bien que de miserables soldats n'étaient point coupables, donna l'ordre secret de faire grace a tous les vaincus. '

MILITARY REPRISALS. 99

told by Herodotus of Xerxes the Persian. The Spartans had thrown into a well the Persian envoys who had come to demand of them earth and water. In remorse they sent two of their nobles to Xerxes to be killed in atonement ; but Xerxes, when he heard the purport of their visit, answered them that he would not act like the Spartans, who by killing his heralds had broken the laws that were regarded as sacred by all mankind, and that, of such conduct as he blamed in them, he would never be guilty himself. [1]

But the most curious feature in the history of reprisals is the fact that they were once regarded as justly exacted for the mere offence of hostile opposition or self-defence. Grotius states that it was the almost constant practice of the Romans to kill the leaders of an enemy, whether they had surrendered or been captured, on the day of triumph. Jugurtha indeed was put to death in prison ; but the more usual practice 'appears to have been to keep conquered potentates in custody, after they had been led in triumph before the consul's chariot. This was the fate of Perseus, king of Macedonia, who was also allowed to retain his attendants, money, plate, and furniture ; [2] of Gentius, king of Illyria ; [3] of Bituitus, king of the Arvernians. Prisoners of less distinction were sold as slaves, or kept in custody till their friends paid their ransom.

But in the mediaeval history of Europe, in the so-called times of chivalry, a far worse spirit prevailed
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[1] Herodotus, vii. 136.
[2] Livy, xlv. 42.
[3] Ibid. xlv. 43.

100 MILITARY MANNERS AND CUSTOMS.

with regard to the treatment of captives. Godfrey of Bouillon, one of the brightest memories of chivalry, was responsible for the promiscuous slaughter of three days which the Crusaders exacted for the six weeks' siege which it had cost them to take Jerusalem (1099). The Emperor Barbarossa had 1,190 Swabian prisoners delivered to the executioner at Milan, or shot from military engines. [1] Charles of Anjou reserved many prisoners, taken at the battle of Beneventum, to be killed as criminals on his entrance into Naples. When the French took the castle of Pesquiere from the Venetians by storm, they slew all but three who surrendered to the pleasure of the king ; and Louis XII., who counted for a humane monarch, though his victims offered 100,000 ducats for their lives, swore that he would neither eat nor drink till they were hanged (1509). [2]

The indignation of the Roman Senate on one occasion with a consul who had sold as slaves 10,000 Ligurian prisoners, though they had surrendered at discretion, [3] was a sentiment that never affected the warriors of mediaeval Christendom. A surrender at discretion ceased to constitute a claim for mercy. Where the pagan held it wrong to enslave, the Christian never hesitated to kill. Froissart's story of the six citizens of Calais, whom Edward III. was with difficulty restrained from hanging for the obstinate siege which their town had resisted, throws a light over the war customs of that time, which other incidents of history abundantly confirm. The record
__________________________________________
[1] Ward, Law of Nations, i. 250.
[2] Petitot's Memoires, xvi. 177.
[3] Livy, xlii. 8, 9.

MILITARY REPRISALS. 101

of the capitulations of cities or garrisons is no pleasant one, but it is a record which must be touched upon, in order that war and its still prevalent maxims may be judged at their proper value. We need scarcely travel further than the fifteenth century alone in search of facts to place in its proper light this aspect of martial atrocities.

When the town of Rouen surrendered to Henry V. of England, the latter stipulated for three of the citizens to be left to his disposal, of whom two purchased their lives, and the third was beheaded (1419). [1] When the same king the year following was besieging the castle of Montereau, he sent some twenty prisoners to treat with the governor for a surrender ; but when the governor refused to treat, even to save their lives, and when, after a fearful leave-taking with their wives and relatives, they had been escorted back to the English army, ' the King of England 'ordered a gallows to be erected and had them all hanged in sight of those within the castle.' [2] When the English took the castle of
Rougemont by storm, and some sixty of its defenders alive, with the loss of only one Englishman, Henry V., in revenge for his death, caused all the prisoners to be drowned in the Loire. [3] When Meaux surrendered to the same king, it was stipulated that six of its bravest defenders should be delivered up to justice, four of whom were beheaded at Paris, and its commander at once hung to a tree outside the walls of the city (1422). [4]
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[1] Monstrelet, Chronicles, i. 200.
[2] Ibid. i. 224.
[3] Ibid. i. 249.
[4] Ibid. i. 259.

102 MILITARY MANNERS AND CUSTOMS.

Not that there was any special cruelty in the English mode of warfare. They simply conformed to the customs of the time, as we may see by reference to the French and Burgundian wars into which they allowed themselves to be drawn. In 1434, the garrison of Chaumont ' was soon so hardly pressed that it surrendered at discretion to the Duke of Burgundy (Philip the Good), who had upwards of 100 of them hanged ; ' and as with the townsmen, so with those in the castle. [1] Bournonville, who commanded Soissons for the Duke of Burgundy, and whom Monstrelet calls ' the flower of the warriors of all France,' was beheaded at Paris, after the capture of the town, by order of the king and council, and his body hung to a gibbet, like a common malefactor's (1414). [2] When Dinant was taken by storm by the Burgundians, the prisoners, about 800, were drowned before Bovines (1466). [3] When the town of Saint-frou surrendered to the Duke of Burgundy, ten men, left to the disposal of that warrior, were beheaded ; and so it fared also with the town of Tongres (1467).[4] After the storming and slaughter at Liege, before the Duke of Burgundy (Charles the Bold) left the city, ' a great number of those poor creatures who had hid themselves in the houses when the town was taken and were afterwards made prisoners, were hanged (1468). [5] At Nesle, most of those who were taken alive were hung, and some had their hands cut off
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[1] Monstrelet, ii. 156.
[2] Ibid. 120.
[3] Philip de Commines, ii. i.
[4] Ibid. ii. 2.
[5] Ibid. ii. 14.

MILITARY REPRISALS. 103

(1472). [1] After the battle of Granson, the Swiss retook two castles from the French, and hung all the Burgundians they found in them. They then retook the town and castle of Granson, and ordered 512 Germans whom the Burgundians had hung to be cut down, and as many of the Burgundians as were still in Granson to be suspended on the same halters (1476).

In the skirmishes that occurred in a time of truce on the frontiers of Picardy, between the French king's forces and those of the Duke of Austria, ' all the prisoners that were taken on both sides were immediately hanged, without permitting any, of what degree or rank soever, to be ransomed' (1481). And as a climax to these facts, let us recall the decree of the Duke of Anjou, who, when Montpellier was taken by siege, condemned 600 prisoners to be put to death, 200 by the sword, 200 by the halter, and 200 by fire, and who, but for the remonstrances of a cardinal and a friar, would undoubtedly have executed his sentence. Ghastly facts enough these ! and a strange insight they afford us into the real character of a profession which, in the days when these things were its commonest occurrences, was held to be the noblest of all, but of which it is only too patent that its mainsprings were simply the brigand's love of plunder and of bloodshed. One story may be quoted to show that in this respect the sixteenth century was no improvement on the fifteenth. In the war between the Dutch and the Spaniards, the captain of Weerd Castle, having previously refused to surrender to Sir Francis de Vere,
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[1] Philip de Commines, iii. 9.

104 MILITARY MANNERS AND CUSTOMS.

begged at last for a capitulation with the honours of war ; Vere's answer was, that the honours of war were halters for a garrison that had dared to defend such a hovel against artillery. The commandant was killed first, and the remaining 26 men, having been made to draw black and white straws, the 12 who drew the white straws were hanged, the thirteenth only escaping by consenting to act as executioner of the rest ! [l]

It is clear, therefore, that in the wars of the past the axe and the halter have played as conspicuous a part as the sword or the lance ; a fact to which its due prominence has not always been given in the standard histories of military antiquities. It is surprising to find how close to the glories of war lie the sickening vulgarities of murder.

To the Duke of Somerset, the regent of England for Edward VI., appears to be due the credit of instituting a milder treatment of a besieged but surrendered garrison than had been previously customary. For De Thou, the historian, speaks of the admiration the Duke received for sparing the lives of a Scotch garrison , contrary to that ' ancient maxim in war which declares that a weak garrison forfeits all claim to mercy on the part of the conquerors, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against the royal army, or refuse reasonable conditions.

But the ancient maxim lasted, in spite of this better example, throughout the seventeenth and till late into the eighteenth century, for we find Vattel even
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[1] Motley's United Netherlands, iii. 323.

MILITARY REPRISALS. 105

then thus protesting against it : ' How could it be conceived in an enlightened age that it was lawful to punish with death a governor who has defended his town to the last extremity, or who in a weak place had the courage to hold out against a royal army ? In the last century this notion still prevailed ; it was looked upon as one of the laws of war, and is not even at present totally exploded. What an idea ! to punish a brave man for having performed his duty.' [1]

But not even yet is the notion definitely expunged from the unwritten code of martial etiquette. The original Russian project, submitted to the Brussels Conference, proposed to exclude, among other illicit means of war, ' the threat of extermination towards a garrison that obstinately holds a fortress.' The proposal was unanimously rejected, and that clause was carefully excluded from the published modified text ! But as the execution of a threat is morally of the same value as the threat itself, it is evident that the massacre of a brave but conquered garrison still holds its place among the laws of Christian warfare !

This peculiar and most sanguinary law of reprisals has always been defended by the common military sophism, that it shortens the horrors of war. The threat of capital punishment against the governor or defenders of a town should naturally dispose them to make a conditional surrender, and so spare both sides the miseries of a siege. But arguments in defence of atrocities, on the ground of their shortening a war, and coming from military quarters, must be viewed
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[1] Vattel, iii. 8, 143.

106 MILITARY MANNERS AND CUSTOMS.

with the greatest suspicion, and, inasmuch as they provoke reprisals and so intensify passion, with the greatest distrust. It was to such an argument that the Germans resorted in defence of their shelling the town of Strasburg, in order to intimidate the inhabitants and drive them to force General Uhrich to a surrender. ' The abbreviation,' said a German writer, ' of the period of actual fighting and of the war itself is an act of humanity towards both parties ; ' [1] although the savage act failed in its purpose and General Werder had to fall back, after his gratuitous destruction of life and property, on the slower process of a regular siege. If their tendency to shorten a war be the final justification of military proceedings, the ground begins to slip from under us against the use of aconitine or of clothes infected with the small-pox. Therefore such a pretext should meet with prompt condemnation, notwithstanding the efforts of the modern military school to render it popular upon the earth.

In respect, therefore, to this law of reprisals, the comparison is not to the credit of modern times as compared with the pagan era. A surrender, which in Greek and Roman warfare involved as a rule personal security, came in Christianised Europe to involve capital punishment out of motives of pure vindictiveness. The chivalry so often associated with the battle-field as at least a redeeming feature fades on closer inspection into the veriest fiction of romance. Bravery under any form has been the constant pretext for capital reprisals. Edward I. had William Wallace, the brave Scotch leader, exe-
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[1] Borbstaedt, Franco-German War (translation), 662.

MILITARY REPRISALS. 107

cuted on Tower Hill ; and it has been observed by one writer, as the facts already quoted prove, that the custom of thus killing defeated generals 'may be traced through a series of years so connected and extensive that we are not able to point out the exact time when it ceased.' [1]

A characteristic incident of this sort is connected with the famous pacification of Guienne by Montluc in 1562. Montluc had won Montsegur by storm, and its commander had been taken alive. The latter was a man of notorious valour, and in a previous campaign had been Montluc's fellow-soldier and friend. For that reason many interceded for his life, but Montluc decided to hang him, and simply on account of his valour. ' I well knew his courage,' he says, ' which made me hang him. ... I knew him to be valiant, but that made me the rather put him to death.' What of your chivalry after that ?

But Alexander the Great, whose career has been the ideal of all succeeding aspirants to military fame, dealt even more severely than Montluc with Betis, the gallant defender of Gaza. When Gaza was at last taken by storm, Betis, after fighting heroically, had the misfortune to be taken alive and to be brought into the presence of the conqueror. Alexander addressed him thus : 'You shall not die, Betis, in the manner you wished ; but make up your mind to suffer whatever torture can be thought of against a prisoner ; ' and when Betis for all answer returned him but the silence of disdain, Alexander had thongs fixed to his ankles, and, himself acting as charioteer, drove
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[1] Ward, i. 223.

108 MILITARY MANNERS AND CUSTOMS.

his yet living victim round the city, attached to his chariot wheels ; priding himself that by such conduct he rivalled Achilles' treatment of Hector. [1]

A valiant resistance was with Alexander always a sufficient motive for the most sanguinary reprisals. Arimages, who defended a fortified rock in Sogdia, thought his position so strong that when summoned to surrender, he asked tauntingly whether Alexander could fly ; and for this offence, when, unable to hold out any longer, Arimages and his relations descended to Alexander's camp to beg for quarter, Alexander had them first of all flogged and then crucified at the foot of the rock they had so bravely defended. [2] After the long siege of Tyre, Alexander had 2,000 Tynans, over and above the 6,000 who fell during the storming of that city, nailed to crosses along the shore, [3] perhaps in reprisal for a violation of the laws of war for Quintus Curtius declares that the Tyrians had murdered some Macedonian ambassadors, and Arrian, who makes no mention of the crucifixion, declares that they slew some Macedonian prisoners and threw them from their walls but more probably (since there were evidently different stories of the Tyrians' offence) on account simply of the obstinate resistance they had offered to Alexander's attack.

The Macedonian conqueror regarded his whole expedition against Persia as an act of reprisals for the invasion of Greece by Xerxes, 150 years before his own time. When he set fire to the Persian capital and palace, Persepolis, he justified himself against
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[1] Quintus Curtius, iv. 6, and Grote, viii. 368.
[2] Quintus Curtius, vii. n. 3
[3] Ibid . iv. 15.

MILITARY REPRISALS. 109

Parmenio's remonstrances on the ground that it was in revenge for the destruction of the temples in Greece during the Persian invasion ; [1] and this motive was constantly present with him, in justification both of the war itself and of particular atrocities connected with it. In the course of his expedition, he came to a city of the Branchidae, whose ancestors at Miletus had betrayed the treasures of a temple in their charge to Xerxes, and had by him been removed from Miletus to Asia. As Greeks they met Alexander's army with joy, and at once surrendered their city to him. The next day, after reflection given to the matter, Alexander had every single inhabitant of the city slain, in spite of their powerlessness, in spite of their supplications; in spite of their community of language and origin. He even had the walls of the city dug up from their foundation, and the trees of their sacred groves uprooted, that not a trace of their city might remain. [2]

Nor can doubt be thrown on these deeds by the fact that they are only mentioned by Quintus Curtius and not by Arrian. The silence of the one is no proof of the falsity or credulity of the other. Both writers lived many centuries after Alexander, and were dependent for their knowledge on the writings, then extant but long since lost, of contemporaries and eye-witnesses of the expedition to Asia. That those witnesses often gave conflicting accounts of the same event we have the assurance of either writer ; but since it is impossible to determine the degree of discretion with which each made their selections from
________________________________
[1] Arrian, iii. 18.
[2] Quintus Curtius, vii. 5.

110 MILITARY MANNERS AND CUSTOMS.

the original authorities, it is only reasonable to regard them both as of the same and equal validity. Seneca, who lived before Arrian and who therefore was equally conversant with the original authorities, hardly ever mentions Alexander without expressions of the strongest reprobation.

Cruelty, in fact, is revealed to us by history as the most conspicuous trait in the character of Alexander, though not in his case nor in others inconsistent with occasional acts of magnanimity and the gleams of a higher nature. This cruelty, however, taken in connection with his undoubted bravery, calls in question the truth of a remark made by Philip de Commines, and supported, he affirmed, by all historians, that no cruel man is ever courageous. The popular theory, that inhumanity is more likely to be the concomitant of a timid than of a daring nature, ignores altogether the teaching of history and the conclusions of a priori reasoning. For if our regard for the sufferings of others is proportioned to our regard for our own sufferings, inasmuch as our self-love is the foundation and measure of our powers of sympathy, a man's disregard for the sufferings of others in other words his cruelty is likely to be the exact reflection of his disregard for suffering in his own person, or, in other words, of his physical courage. Men, moreover, like Cicero, of whom it was said by Livy that he was better calculated for anything than for war, by their very incapacity for positions where their humanity is likely to be tested, are rarely exposed to those temptations of cruelty in which men of a more daring temperament naturally find themselves placed.

MILITARY REPRISALS. 111

And accordingly we find, by reference to instances which lie on the surface of history, that great bravery and great cruelty have more often been united than separate. In French history there is the cruelty of Charles the Bold, Duke of Burgundy ; of Montluc and Des Adretz, the latter of whom made 30 soldiers and their captain leap from the precipice of a strong place they had defended, and of both of whom Brantome remarks that they were very brave but very cruel. [1] In Scotch history, it was David I. who, though famed for his courage and humanity, suffered the sick and aged to be slain in their beds, even infants to be killed and priests murdered at the very altars. [2] In English history, it was Richard Cceur-de-Lion who had 5,000 Saracen prisoners led out to a large plain to be massacred (1191). [3] In Jewish history, it was King David who, when he took Rabbah of the Ammonites, ' brought forth the people that were therein and put them under saws and harrows of iron and under axes of iron, and made them pass through the brick kiln ; and thus did he unto all the cities of the children of Ammon.' [4] It is not therefore more probable that a man famed for his intrepidity will not lend himself to counsels or actions of cruelty than that another deficient in personal courage will not be humane.

And here one cause is deserving of attention as helping to explain the greater barbarity practised by the modern nations in the matter of reprisals, than that which was permitted by the code of honour which
________________________________________________
[1] ' Tous deux furent tres braves, tres vaillants, fort bizarres et cruels. '
[2] Lyttleton, Henry 77., i. 183.
[3] Hoveden, 697.
[4] 2 Samuel xli. 31.

112 MILITARY MANNERS AND CUSTOMS.

acted in restraint of them in the better periods of pagan antiquity; and that is the change that has occurred with regard to slavery.

The abolition of slavery, which in Western Europe has been the greatest achievement of modern civilisation, did not unfortunately tend to greater mildness in the customs of war. For in ancient times the sale of prisoners as slaves operated to restrain that indiscriminate and objectless slaughter which has been, even to cases within this century, the marked feature of the battle-field, and more especially where cities or places have been taken by storm. Avarice ceased to operate, as it once did, in favour of humanity. In one day the population of Magdeburg, taken by storm, was reduced from 25,000 to 2,700; and an English eye-witness of that event thus described it :

' Of 25,000, some said 30,000 people, there was not a soul to be seen alive, till the flames drove those that were hid in vaults and secret places to seek death in the streets rather than perish in the fire ; of these miserable creatures some were killed too by the furious soldiers, but at last they saved the lives of such as came out of their cellars and holes, and so about 2,000 poor desperate creatures were left.' [1]

' There was little shooting, the execution was all cutting of throats and mere house murders. . . . We could see the poor people in crowds driven down the streets, flying from the fury of the soldiers, who followed butchering them as fast as they could, and refused mercy to anybody ; till, driving them down to the river's edge, the desperate wretches

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[1] Memoirs of a Cavalier, i. 47.

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would throw themselves into the river, where thousands of them perished, especially women and children.' [1]

It is difficult to read this graphic description of a stormed city without the suspicion arising in the mind that a sheer thirst for blood and love of murder is a much more potent sustainer of war than it is usual or agreeable to believe. The narratives of most victories and of taken cities support this theory. At Brescia, for instance, taken by the French from the Venetians in 1512, it is said that 20,000 of the latter fell to only 50 of the former. [2] When Rome was sacked in 1527 by the Imperialist forces, we are told that 'the soldiery threw themselves upon the unhappy multitude, and, without distinction of age or sex, massacred all who came in their way. Strangers were spared as little as Romans, for the murderers fired indiscriminately at everyone, from a mere thirst of blood.' [3]

But this thirst of blood was checked in the days of slavery by the counteracting thirst of money ; there having been an obvious motive for giving quarter when a prisoner of war represented something of tangible value, like any other article of booty. The sack of Thebes by Alexander, and its demolition to the sound of the lute, was bad enough ; but after the first rage for slaughter was over, there remained 30,000 persons of free birth to be sold as slaves. And in Roman warfare the rule was to sell as slaves those who were taken prisoners in a stormed city ;
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1 Memoirs of a Cavalier , 49.
2 Life of Bayard ' in Petitot's Memoires, xvi. 9.
3 Major-General Mitchell's Biographies of Eminent Soldiers, 92.

114 MILITARY MANNERS AND CUSTOMS,

and it must be remembered that many so sold were slaves already. [1] All who were unarmed or who laid down their arms were spared from destruction, as well as from plunder ; [2] and for exceptions to this rule, as for instance for the indiscriminate and cruel massacre committed at Illiturji in Spain, there was always at least the pretext of reprisals, or some special military motive. [3]

Cicero, who lived to see the Roman arms triumphant over the world and the conversion of the Roman republic into a military despotism, found occasion to deplore at the same time the debased standard of military honour. He believed that in cruel vindictiveness and rapacity his contemporaries had degenerated from the customs of their ancestors, and he contrasted regretfully the utter destruction of Carthage, Numantia, and Corinth, with the milder treatment of their earlier enemies, the Sabines, Tusculans, and others. He adduced as a proof of the greater ferocity of the war spirit of his day the fact that the only term for an enemy was originally the milder term of stranger, and that it was only by degrees that the word meaning stranger came to have the connotation of hostility. 'What,' he asks, ' could have been added to this mildness, to call him with whom you are at war by so gentle a name as stranger ? But now the progress of time has given a harder signification to the word ; for
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[1] Livy, xxxi. 40. When Pelium was taken by storm, only the slaves were taken as spoil ; the freemen were even let off without ransom.
[2] Ibid, xxviii. 3.
[3] Ibid, xxviii. 20, xxvii. 16, xxxi. 27.

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it has ceased to apply to a stranger, and has remained the proper term for an actual enemy in arms.' [1]

Is a similar process taking place in modern warfare with regard to the law of reprisals ? It is a long leap from ancient Rome to modern Germany ; but to Germany, as the chief military Power now in existence, we must turn, in order to understand the law of reprisals as it is interpreted by the practice of a country whose power and example will make her actions precedents in all wars that may occur in future.

The worst feature in reprisals is that they are indiscriminate and more often directed against the innocent than the guilty. To murder women and children, old men, or any one else, on the ground of their connection with an enemy who has committed an action calling for retribution, can be justified by no theory that would not equally apply to a similar parody of justice in civil life. It is a return to the theory and practices of savages, who, if they cannot revenge themselves on a culprit, revenge themselves complacently on some one else. For bodies of peasants to resist a foreign invader by forming ambuscades or making surprises against him, though his advance is marked by fire and pillage and outrage, may be contrary to the laws of war (though that point has never been agreed upon) ; but to make such attacks the pretext for indiscriminate murder and robbery is an extension of the law of reprisals that was only
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[1] De Officiis, i. 12. Yet on this passage is founded the common assertion that among the Romans ' the word which signified stranger was the same with that which in its original denoted an enemy ' (Ward, ii. 174) ; implying that in their eyes a stranger and an enemy were one and the same thing. Cicero says exactly the reverse.

116 MILITARY MANNERS AND CUSTOMS.

definitely imported into the military code of Europe by the German invaders of France in 1870.

The following facts, offered in proof of this statement, are taken from a small pamphlet, published during the war by the International Society for Help to the Wounded, and containing only such facts as were attested by the evidence of official documents or of persons whose positions gave them an exceptional title to credit [1] At one place, where twenty-five francs-tireurs had hidden in a wood and received the Germans with a fusillade, reprisals were carried so far that the curé, rushing into the streets, seized the Prussian captain by the shoulders and entreated mercy for the women and children. ' No mercy ' was the only reply. [2] At another place twenty-six young men had joined the francs-tireurs ; the Baden troops took and shot their fathers. [3] At Nemours, where a body of Uhlans had been surprised and captured by some mobiles, the floors and furniture of several houses were first saturated with petroleum and then fired with shells. [4]

The new theory also was imported into the military code, that a village, by the mere fact of trying to defend itself, constituted itself a place of war which might be legitimately bombarded and, when taken, subjected to the rights of war which still govern the
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[1] Recueil de Documents sur les exactions, vols, et cruautés des armées prussiennes en France. The book is out of print, but may be seen at the British Museum, under the title, ' Prussia Army of.' It is to be regretted that, whilst every book, however dull, relating to that war has been translated into English, this record has hitherto escaped the publicity it so well deserves.
[2] Ibid. 19.
[3] Ibid. 8.
[4] Ibid. 13.

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fate of places taken by assault. [1] Nor let it be supposed that those rights were not exercised as rigorously as they ever have been by victorious troops. At Nogent-sur-Seine, the Wurtemburg troops carried their fury to the slaughter of women and children and even of the wounded. And if the belief still lingers that the German troops of the Emperor William behaved otherwise towards the weaker sex than their ancestors in Rome and Italy under the Constable of Bourbon, let the reader refer to the experiences of Clermont, Andernay, or Neuville. [2]

Reprisals beget, of course, reprisals ; and had the French and German war been by any accident prolonged, it is appalling to think of the barbarities that would have occurred. ' Threat for threat,' wrote Colonel R. Garibaldi to the Prussian commander at Chatillon, in reference to the latter's resolve to punish the inhabitants of that place for the acts of some
francs-tireurs ; ' I give you my assurance that I will not spare one of the 200 Prussians whom you know to be in my hands.' [3] ' We will fight,' wrote General Chanzy to the Prussian commander at Vendome, [4] without truce or mercy, because it is a question now not of fighting loyal enemies, but hordes of devastators.' [4]

Under the theory of legitimate reprisals, the Germans resuscitated the custom of taking hostages. The French having (in accordance with the still recognised but barbarous rule of war) taken prisoners the captains of some German merchant vessels, the
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[1] Chaudordy's Circular of November 29, 1870, in the Recueil.
[2] Recueil, 12, 15, 67, 119.
[3] Ibid. 56.
[4] Ibid. 54.

118 MILITARY MANNERS AND CUSTOMS.

Germans retaliated by taking twenty persons of respectable position at Dijon, and nine at Vesoul, and detaining them as hostages. Nor was this an uncommon episode in the campaign : though the sending to Germany as prisoners of war of French merchants, magistrates, lawyers, and doctors, and the making them answerable with their lives and fortunes for actions of their countrymen which they could neither prevent nor repress, was a revival in its worst form of the theory of vicarious punishment, and a direction of hostilities against non-combatants, which was a gross violation of the proclamation of the Prussian king, made at the beginning of the campaign (after the common cant of the leaders of armies), that his forces had no war to wage with the peaceable inhabitants of France.

Even plunder enters into the German law of reprisals. Remiremont in the Vosges had to pay 8,000 l. because two German engineers and one soldier had been taken prisoners by the French troops. The usual forced military contributions which the victors exacted did not exclude a system of pillage and devastation that the present age fondly believed to belong only to a past state of warfare. On December 5, 1870, a German soldier wrote to the Cologne Gazette : ' Since the war has entered upon its present stage it is a real life of brigands we lead. For four weeks we have passed through districts entirely ravaged ; the last eight days we have passed through towns and villages where there was absolutely nothing left to take.' Nor was this plunder only the work of the common military serfs or conscripts, whose

MILITARY REPRISALS. 119

miserable poverty might have served as an excuse, but it was conducted by officers of the highest rank, who, for their own benefit, robbed farms and stables of their sheep and horses, and sacked country houses of their works of art, their plate, and even of their ladies' jewels. [1]

The world, therefore, at least owes this to the Germans, that they have taught us to see war in its true light, by removing it from the realm of romance, where it was decked with bright colours and noble actions, to the region of sober judgment, where the soldier, the thief, and the murderer are seen in scarcely distinguishable colours. They have with- drawn the veil which blinded our ancestors to the evils of war, and which led dreamy humanitarians to believe in the possibility of civilised warfare ; so that now the deeds of shame threaten to obscure the deeds of glory. In the middle ages it was the custom to declare a war that was intended to be waged with special fury by sending a man with a naked sword in one hand and a burning torch in the other, to signify that the war so begun was to be one of blood and fire. We have since learnt that there is no need to typify by any peculiar ceremony the character of any particular war ; for that the characteristics of all are the same.

The German general Von Moltke, in a published letter wherein he maintained that Perpetual Peace was a dream and not even a beautiful one, went on to say, in defence of war, that in it the noblest virtues of mankind were developed courage, self-abnegation, faithfulness to duty, the spirit of sacrifice ; and that
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1 Recueil, 33-37, and Lady Bloomfield's Reminiscences ; ii. 235, 8, 9.

120 MILITARY MANNERS AND CUSTOMS.

without wars the world would soon stagnate and lose itself in materialism. [1] We have no data from which to judge of the probable state of a warless world, but we do know that the brightest samples of these virtues have been ever given by those who in peace and obscurity, and without looking for lands, or titles, or medals for their reward, have laboured not to destroy life but to save it, not to lower the standard of morality but to raise it, not to preach revenge but mercy, not to spread misery and poverty and crime but to increase happiness, wealth, and virtue. Is there or will there be no scope for courage, for self-sacrifice, for duty, where fever and disease are the foes to be combated, where wounds and pain need to be cured or soothed, or where sin and ignorance and poverty are the forces to be assailed ? But apart from this there is another side to the picture of war, of which Von Moltke says not a word, but of which, in the preceding pages, some indication has been given. Now that we are no longer satisfied with the dry narratives of strategical operations, but are beginning to search into the details of military proceedings ; into the fate of the captured, of the wounded, of the pursued ; into the treatment of hostages, of women, of children ; into the statistics of massacre and spoliation that are the penalties of defeat ; into the character of stratagems ; and into the justice of reprisals, we see war in another mirror, and recognise that the old one gave but a distorted reflection of its realities. No one ever denied but that great qualities are displayed in war ; but the doubt is spreading fast, not only whether
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1 The Times, March 7, 1881.

MILITARY REPRISALS. 121

it is the worthiest field for their display, but whether it is not also the principal nursing-bed of the crimes that are the greatest disgrace to our nature.

It is idle to think that our humanity will fail to take its colouring from our calling. Marshal Montluc, the bravest yet most cruel of French soldiers, was fond of protesting that the inhumanity he was guilty of was in corruption of his original and better nature ; and at the close of his book and of his life, he consoled himself for the blood he had caused to flow like water by the consideration, that the sovereigns whose servant he had been were (as he told one of them) really responsible for the misery he had caused. But does the excuse avail him, or the millions who have succeeded to his trade? A king or a government can commission men to execute its policy or its vengeance ; but is a free agent, who accepts a commission that he believes to be iniquitous, morally acquitted of his share of culpability? Is his responsibility no greater than that of the sword, the axe, or the halter with which he carries out his orders ; or does the plea of military discipline justify him in acting with no more moral restraint than a slave, or than a horse that has no understanding ? The Prussian officer who at Dijon blew out his brains rather than execute some iniquitous order [1] showed that he understood the dignity of human nature as it was understood in the days of the bygone moral grandeur of Rome. Such a man deserved a monument far more than most to whom memorial monuments are raised.

Recent events lend an additional interest to the
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[1] Recueil, 29 ; compare 91.

122 MILITARY MANNERS AND CUSTOMS.

question of reprisals, and add emphasis to the necessity of placing them, as it was sought to do at Brussels, on the footing of an International Agreement. It is sometimes said that dynastic wars belong to the past, and that kings have no longer the power to make war, as they once did, for their own pleasure or pastime. There may be truth in this, though the last great war in Europe but one had its immediate cause in an inter-dynastic jealousy ; but a far more potent agency for war than ever existed in monarchical power is now wielded by the Press. War in every country is the direct pecuniary interest of the Daily Press. ' I know proprietors of newspapers,' said Cobden during the Crimean war, ' who have pocketed 3,000 l. or 4,000 l. a year through the war as directly as if the money had been voted to them in the Parliamentary estimates.' [1] The temptation, therefore, is great, first to justify any given war by irrelevant issues or by stories of the enormities committed by the enemy, or even by positive false statements (as when the English Press, with the Times at its head, with almost one voice taught us that the Afghan ruler had insulted our ambassador, and left us to find out our mistake when a too ready credulity had cost us a war of some 20,000,000 l.) ; and then, when war has once begun, to fan the flame by demanding reprisals for atrocities that have generally never been committed nor established by anything like proof. In this way the French were charged at the beginning of the last German war with bombarding the open town of Saarbrűck, and with firing explosive bullets from the
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[1] Morley's Cobden, ii. 177.

MILITARY REPRISALS. 123

mitrailleuse ; and the belief, thus falsely and purposely propagated, covered of course with the cloak of reprisals a good deal of all that came afterwards.

In this way has arisen the modern practice of justifying every resort to war, not as a trial of strength or test of justice between enemies, but as an act of virtuous and necessary chastisement against criminals. Charges of violated faith, of the abuse of flags of truce, of dishonourable stratagems, of the ill-treatment or torture of prisoners, are seized upon, regardless of any inquiry into their truth, and made the pretext for the indefinite prolongation of hostilities. The lawful enemy is denounced as a rebel or a criminal, whom it would be wicked to treat with or trust ; and only an unconditional surrender, which drives him to desperation, and so embitters the war, is regarded as a possible preliminary to peace. The time has surely come when such a demand, on the ground of reprisals, should cease to operate as a bar to peace. One of the proposals at the Brussels Conference was that no commander should be forced to capitulate under dishonourable conditions, that is to say, without the customary honours of war. It should be one of the demands of civilisation that an unconditional surrender, such as was insisted upon from Arabi in 1882 and led to the bombardment of Alexandria with all the subsequent troubles, should under no circumstances be insisted on in treating with an enemy ; and that no victorious belligerent should demand of a defeated one what under reversed conditions it would consider dishonourable to grant itself.

[David Thompson]

Here's an early essay on the subject, from Emmerich de Vattel (or Wattel), The law of nations; or, Principles of the law of nature (1758) (1883 ed.)

When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declares war (of which we shall treat in the following book), there are various methods practised among nations which remain to be treated of here. Among those method; of obtaining satisfaction, has been reckoned what is called the law of retaliation, according to which we make another

[281]

282 OF THE MODE OF TERMINATING

suffer precisely as much evil as he has done. Many have extolled that law, as being founded in the strictest justice:-- and can we be surprised at their having proposed it to princes, since they have presumed to make it a rule even for the deity himself? The ancients called it the law of Rhadamanthas. The idea is wholly derived from the obscure and false notion which represents evil as essentially and in its own nature worthy of punishment. We have shown above (Book I. § 169), what is the true origin of the right of punishing ; whence we have deduced the true and just proportion of penalties (Book I. § 171). Let us say, then, that a nation may punish another which has done her an injury, as we have shown above (see Chap. IV. and VI. of this book), if the latter refuses to give her a just satisfaction : but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the ambassador of a barbarian who had treated your ambassador in that manner? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles ; and we shall speak of them in their proper place. The only truth in this idea of retaliation is, that, all circumstances being in other respects equal, the punishment ought to bear some proportion to the evil for which we mean to inflict it,—the very object and foundation of punishment requiring thus much.

§ 340. Various modes of punishing, without having recourse to arms. It is not always necessary to have recourse to arms, in order to punish a nation. The offended party may, by way of punishment, deprive her of the privileges she enjoyed in his dominions,—seize on some of her property, if he has an opportunity,—and detain it till she has given him sufficient satisfaction.

§ 341. Retortion. When a sovereign is not satisfied with the manner in which his subjects are treated by the laws and customs of another nation, he is at liberty to declare that he will treat the subjects of that nation in the same manner as his are treated This is what is called retortion. There is nothing in this, but what is conformable to justice and sound policy. No one can complain on receiving the same treatment which he gives to others. Thus the king of Poland, elector of Saxony, enforces the law of escheatage only against the subjects of those princes who make the Saxons liable to it. The retortion may also take place with respect to certain regulations, of which we have no right to complain, and which we are even obliged to approve, though it is proper to guard against their effect

DISPUTES BETWEEN NATIONS. 283

by imitating them. Such are the orders relating to the importation or exportation of certain commodities or merchandise. On the other hand, circumstances frequently forbid us to have recourse to retortion. In this respect, each nation may act according to the dictates of her own prudence.

§ 342. Reprisals. Reprisals are used between nation and nation in order to do justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another,—if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it,—the latter may seize something belonging to the former, and apply it to her own advantage , till she obtains payment of what is due to her, together with interest and damages, or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or a seizure, than reprisals : but they are frequently confounded in common language. The effects thus are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and then the reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared or hostilities commenced ; and then also the effects seized may be confiscated.

§ 343. What is required to render them lawful. It is only upon evidently just grounds, or for a well-ascertained and undeniable debt, that the law of nations allows us to make reprisals. For he who advances a doubtful pretension, cannot in the first instance demand any thing more than an equitable examination of his right. In the next place, before he proceed to such extremities, he should be able to show that he has ineffectually demanded justice, or at least that he has every reason to think it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and do himself justice. It would be too inconsistent with the peace, the repose, and the safety of nations, with their mutual commerce, and the duties which bind them to each other, that each one should be authorized to have immediate recourse to violent measures, without knowing whether there exist on the other side a disposition to do her justice, or to refuse it.

But, in order perfectly to understand this article, it must be observed, that if, in a disputable case, our adversary either refuses to pursue, or artfully evades the necessary steps for bringing the matter to the proof,—if he does not candidly and sincerely accede to some pacific mode of terminating the dispute,—especially if he is foremost in adopting violent measures,—he gives justice to our cause which before was problematical: we may then have recourse to reprisals, or the

284 OF THE MODE OF TERMINATING

seizure of his effects, in order to compel him to embrace the methods of conciliation which the law of nature prescribes. This is the last remaining effort previous to a commencement of open hostilities.

§ 344. Upon what effects are reprisals made. We have observed above (§ 81), that the wealth of the citizens constitutes a part of the aggregate wealth of a nation, that, between state and state, the private property of the members is considered as belonging to the body, and is answerable for the debts of that body (§ 82): whence it follows, that in reprisals we seize on the property of the subject just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject to reprisals, whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the proprietor has placed in our good faith, that we happen to have such deposit in our hands, it ought to be respected, even in case of open war. Such is the conduct observed in France, England, and elsewhere, with respect to the money which foreigners have placed in the public funds.

§ 345. The state ought to compensate those who suffer by reprisals. He who makes reprisals against a nation on the property of its members indiscriminately, cannot be taxed with seizing the property of an innocent person for the debt of another: for, in this case, the sovereign is to compensate those of his subjects on whom the reprisals fall ; it is a debt of the state or nation, of which each citizen ought only to pay his quota.

§ 346. The sovereign alone can order reprisals. It is only between state and state that all the property of the individuals is considered as belonging to the nation. Sovereigns transact their affairs between themselves ; they carry on business with each other directly, and can only consider a foreign nation as a society of men who have but one common interest. It belongs therefore to sovereigns alone to make and order reprisals on the footing we have just described. Besides, this violent measure approaches very near to an open rupture, and is frequently followed by one. It is, therefore, an affair of too serious a nature to be left to the discretion of private individuals. And accordingly we see, that in every civilized state, a subject who thinks himself injured by a foreign nation, has recourse to his sovereign, in order to obtain permission to make reprisals. This is what the French call applying for letters of marque.

§ 347. Reprisals against a nation for actions of its subjects, and in favour of the injured subjects. We may make reprisals against a nation not only for the actions of the sovereign, but also for those of his subjects : and this may take place when the state or the sovereign participates in the act of his subject, and takes it upon himself, actions of which he may do in several ways, as we have shown in Chap. VI. of this Book.

In the same manner the sovereign demands justice, or makes reprisals, not only for his own concerns, but also for those of his subjects, whom he is bound to protect, and whose
cause is that of the nation.

§ 348. But not in favour of foreigners. But to grant reprisals against a nation in favour of foreigners, is to set himself up as a judge between that nation and those foreigners ; which no sovereign has a right to do. The cause of reprisals ought to be just : they ought even to be grounded on a denial of justice,—either an actual denial, or one which there is good reason to apprehend (§ 343): Now, what right have we to judge whether the complaint of a stranger against an independent state is just, if he has really been denied justice ? If it be objected, that we may espouse the quarrel of another state in a war that appears to us to be just,—to assist her, and even to unite with her,—the case is different. In granting succours against a nation, we do not detain her property or her people that happen to be within our territories under the public faith ; and in declaring war against her, we suffer her to withdraw her subjects and her effects, as will hereafter appear. In the case of reprisals granted to our own subjects, a nation cannot complain that we violate the public faith in seizing on her people or her property ; because we are under no other obligation to grant security to that property and those people, than what arises from a reasonable supposition that their nation will not, in the first instance, violate, with respect to us or our subjects, the rules of justice which nations ought to observe towards each other. If she violate them, we have a right to obtain satisfaction; and the mode of reprisals is more easy, safe. and mild, than that of war. We cannot urge the same argument in justification of reprisals ordered in favour of foreigners. For the security we owe to the subjects of a foreign power does not depend, as a condition, on the security which that power shall grant to all other nations, to people who do not belong to us, and are not under our protection. England having, in 1662, granted reprisals against the United Provinces in favour of the knights of Malta, the states of Holland asserted, with good reason, that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern.

§ 349. Those who have given cause for reprisals ought to indemnify those who suffer by them. The individuals, who by their actions have given cause for just reprisals, are bound to indemnify those on whom they fall, and the sovereign ought to compel them to do it. For we are under an obligation to repair the damage we have occasioned by our own fault. And, although the sovereign, by refusing justice to the offended party, has brought on the reprisals against his subjects, those who were the first cause of them do not become the less guilty : the fault of the sovereign does not exempt them from repairing the consequences of theirs. However, if they were ready to give satisfaction to the party whom they had injured or offended, and their sovereign has prevented their doing it, they are not bound to do any thing more in that case, than they would before have been obliged to do in order to prevent the reprisals ; and it is the sovereign's duty to repair the additional damage, which is the consequence of his own fault (§ 345).

§ 350. What may be deemed a refusal to do justice. We have said (§ 343) that we ought not to make reprisals, except when we are unable to obtain justice. Now, justice is refused in several ways :—First, by a denial of justice, properly so called, or by a refusal to hear your complaints or those of your subjects, or to admit them to establish their right before the ordinary tribunals. Secondly, by studied delays, for which no good reasons can be given—delays

DISPUTES BETWEEN NATIONS 287

equivalent to a refusal, or still more ruinous. Thirdly, by an evidently unjust and partial decision. But it is necessary that this injustice should be manifest and palpable. In all cases susceptible of doubt, a sovereign ought not to listen to the complaints of his subjects against a foreign tribunal, nor to attempt to screen them from the effects of a sentence passed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states should reciprocally pay that kind of deference to each other's jurisdiction, for the same reason as the civil law ordains, within the state, that every definitive sentence, passed in due form, shall be esteemed just. Between nation and nation the obligation is neither so express nor so extensive : but it cannot be denied, that it is highly conducive to their peace and conformable to their duties towards human society, to oblige their subjects, in all doubtful cases, and, unless where there in a manifest wrong done to them, to submit to the sentences of the foreign tribunals before which their causes have been tried. (See above, § 84).

§ 351. Subjects arrested by way of reprisals. As we may seize the things which belong to a nation, in order to compel her to do justice, we may equally, for the same reason, arrest some of her citizens, and not release them till we have received full satisfaction. This is what the Greeks called Androlepsia. At Athens the law permitted the relatives of him who had been assassinated in a foreign country, to seize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up. But, in the practice of modern Europe, this method is seldom resorted to, except with a view to obtain satisfaction for an injury of the same nature—that is to say, to compel a sovereign to release a person whom he detains unjustly.

The persons, however, who are thus arrested, being detained only as a security, or pledge, in order to oblige a nation to do justice—if their sovereign obstinately persists in refusing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refusal of which they are not guilty. Their property, their liberty itself, may be staked for the debts of the state ; but not their lives, of which man has not the power of disposing. A sovereign has no right to put to death the subjects of a state which has done him an injury, except when they are engaged in war ; and we shall see, elsewhere, what it is that gives him that right.

§ 352. Our right against those who oppose reprisals. But the sovereign is authorised to employ forcible means against those who resist him in the exertion of his right, and to pursue such means as far as is necessary to overcome their unjust resistance. It is therefore lawful to repel those who undertake to oppose the making of just reprisals : and if, for that purpose, it be necessary to proceed even so far as to

288 OF THE MODE OF TERMINATING

put them to death, the whole blame of that misfortune is imputable to their unjust and inconsiderate resistance. In such a case, Grotius would have us rather abstain from making reprisals.* Between private persons, and for things that are not of the highest importance, it is certainly worthy, not only of a Christian, but, in general, of every man of principle, rather to abandon his right than to kill the person who unjustly resists him. But, between sovereigns, the case is otherwise. To suffer themselves to be bullied, would be attended with consequences of too serious a nature. The true and just welfare of the state is the grand rule : moderation is ever laudable in itself; but the conductors of nations ought to practise that virtue so far only as it is consistent with the happiness and safety of their people.

§ 353. Just reprisals do not afford a just cause of war. After having demonstrated the lawfulness of making reprisals when we can no otherwise obtain justice, we may thence readily conclude that a sovereign is not justifiable in making forcible opposition to, or waging war against, the party, who, by ordering or making reprisals in such a case, only exerts his just right.

§ 354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities. And as the law of humanity directs nations as well as individuals ever to prefer the gentlest measures, when they are sufficient to obtain justice—whenever a sovereign can, by the mode of reprisals, procure a just indemnification or a suitable satisfaction, he ought to confine himself to this method, which is less violent and less fatal than war. On this subject, I cannot avoid noticing an error which is too general to be wholly disregarded. If it happens that a prince, having reason to complain of some injustice or some acts of hostility, and not finding his adversary disposed to give him satisfaction, determines to make reprisals with the view of endeavouring to compel him to listen to the voice of justice before he proceeds to an open rupture,—if, without a declaration of war, he seizes on his effects, his shipping, and detains them as pledges,—you hear certain men cry out that this is robbery. If that prince had at once declared war, they would not have said a word; they would perhaps, have praised his conduct. Strange forgetfulness of reason, and of every sound principle ! Would we not, at this rate, be tempted to suppose that nations were bound to observe the laws of chivalry, —to challenge each other to the lists,—and decide their quarrels like a pair of doughty champions engaged in regular duel ? It is the duty of sovereigns attentively to maintain the rights of their people. and to obtain justice by every lawful means—still, however,
preferring the gentlest methods : and we again repeat the assertion—it is evident that the mode of reprisals, of which we are speaking, is infinitely more gentle and less fatal than that of war. But since, between powers whose strength is nearly
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* Grotius De Jure Belli et Pacia, lib. iii. cap. ii. §6.

DISPUTES BETWEEN NATIONS. 289

equal, reprisals often lead to war, they ought not to be attempted, except in the last extremity. In such circumstances, the prince who has recourse to that expedient, instead of proceeding to an open rupture, is undoubtedly entitled to praise for his moderation and prudence.

Those who run to arms without necessity, are the scourges of the human race, barbarians, enemies to society, and rebellious violaters of the laws of nature, or rather, the laws of the common father of mankind.

There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so : and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute, relates, not to an act of violence, or an injury received, but to a contested right,—after an ineffectual endeavour to obtain justice by conciliatory and pacific measures,—it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith as well as to the mutual duties of nations. This will more evidently appear, when we shall have explained the reasons which establish the obligation of declaring war previous to a commencement of hostilities.*

But if, from particular conjunctures, and from the obstinacy of an unjust adversary, neither reprisals, nor any of the methods of which we have been treating, should prove sufficient for our defence, and for the protection of our rights, there remains only the wretched and melancholy alternative of war, which will be the subject of the following book.
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* See Book III. Chap. iv.

[David Thompson]

This digest on the custom of reprisal as it existed in WWII is from Law Reports of Trials of War Criminals vol. XV, United Nations War Crimes Commission (1949), pp. 177-182:

9. THE PLEA OF LEGITIMATE REPRISALS

(i) The plea of legitimate reprisals has two aspects ; it may be used to justify acts between belligerents which would not be legal otherwise, and it may be quoted as justifying measures taken by an occupying power against the population of an occupied territory which would otherwise be illegal. The taking of reprisals against prisoners of war is forbidden by Article 2 of the Geneva Prisoners of War Convention. This rule was illustrated by the Dostler Trial.(5)

(ii) No judicial authority dealing directly with the first aspect has come to the notice of the compilers of the present series of volumes, perhaps mainly because of the paucity of trials in which any allegations have been made of the use during the second World War of illegal methods of conducting hostilities.(6)

(iii) The second aspect has arisen in a number of trials, mainly those reported in Volume VIII and the High Command and Rauter Trials reported in Volumes XII and XIV respectively. In the Hostages Trial,(7) the Tribunal
____________________________________________________________________
(1) See Vol. X, p. 148.
(2) This trial was also cited in Vol. V, pp. 73 and 76.
(3) See Vol. XIII, pp. 149-50. Compare Vol. XIV, p. 129.
(4) See Vol. III, pp. 77-78 and 79-80, where the plea is examined a little further.
(5) See Vol. I, pp. 28-31.
(6) See pp. 109-111. The Tribunal acting in the Hostages Trial stated explicitly that this aspect was not before it (Vol. VIII, p. 77). Compare a comment in Vol. XIV, pp. 129-130.
(7) See Vol. VIII, pp. 34-92.

178 DEFENCE PLEAS

distinguished between " reprisal victims " and " hostages "(1) but it has been seen that the distinction appears to lie in the circumstances under which the victims are taken into captivity and not in the law which should govern their fate.(2)

The plea of legitimate reprisals has usually come before the courts in cases of the killing of inhabitants of occupied territories rather than in cases of their ill-treatment. The Tribunal acting in the Hostages Trial held that, subject to a number of conditions, the killing of reprisal victims or hostages in order to guarantee the peaceful conduct in the future of the populations of occupied territories was legal.(3) These conditions were said to be the following :

(a) the step should be taken only " as a last resort " and only after regulations such as those elaborated by the Tribunal(4) had first been enforced ;

(b) the hostages may not be taken or executed as a matter of military expediency ;

(c) " The population generally " must be a party " either actively or passively " to the offences whose cessation is aimed at ;

(The Tribunal did not define the nature of " active " or " passive " participation, but stated that " some connection " must be shown " between the population from whom the hostages are taken and the crime committed "(6))

(d) it must have proved impossible to find the actual perpetrators of the offences complained of ;

(e) a proclamation must be made, " giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason the hostages will be shot " ;

(f)" the number of hostages shot must not exceed in severity the offences the shooting is designed to deter " ;

(The Tribunal did not, however, suggest any tests whereby such measures could be related to offences whose perpetration was expected) ; and

(g)" unless the necessity for immediate action is affirmatively shown, the execution of hostages or reprisal prisoners without a judicial hearing is unlawful " ;(6)

(It was not stated on what charges hostages would be tried and what would be the nature of proceedings taken against them ; a passage in the judgment, however, suggests that what was meant was not a trial in the usual sense but " a judicial finding that the necessary conditions exist and the essential steps have been taken to give validity to such action. "(7)).
______________________________________________________________________
(1) See Vol. VIII, p. 61.
(2) See Vol. VIII, p. 79.
(3) See Vol. VIII, pp. 77-88.
(4) See Vol. VIII, p. 62.
(5) Elsewhere, however, the Tribunal pointed out that there was " nothing to infer that the population of Topola [from whom certain hostages had been taken and shot] supported
or shielded the guilty persons." (Vol. VIII, p. 65.) (See also pp. 86-88 of Vol. VIII.)
(6) See Vol. VIII, pp. 64-65.
(7) Vol. VIII, p. 64.

DEFENCE PLEAS 179

The Trial of Bruns and two others by the Norwegian Courts provides evidence that, since the purpose of reprisal action is to coerce an adversary or an inhabitant of occupied territory to observe international law, it is one test of the bona fides of such action that its being taken should be publicly announced.(1)

An examination of the Judgment delivered in the Hostages Trial shows that the Tribunal's conclusion that the killing of hostages and reprisal prisoners may in certain circumstances be legal has not been the reason for a finding of not guilty regarding any of the accused in the trial with the possible exception of the defendant von Leyser, of whom the Tribunal said : " The evidence concerning the killing of hostages and reprisal prisoners within the corps area is so fragmentary that we cannot say that the evidence is sufficient to support a finding that the measures taken were unlawful. The killing of hostages and reprisal prisoners is entirely lawful under certain circumstances. The evidence does not satisfactorily show in what respect, if any, the law was violated. This is a burden cast upon the prosecution which it has failed to sustain ". This accused was, therefore, found not guilty under Count One of the Indictment, but guilty on other counts.

The Judge Advocate acting in the Trial of Kesselring expressed the opinion that there was " nothing which makes it absolutely clear that in no circumstances—and especially in the circumstances which I think are agreed in this case—that an innocent person properly taken for the purpose of a reprisal cannot be executed ".(2)

On the other hand, the London Charter, in Article 6 (b), and Control Council Law No. 10, in paragraph 1 (b) of Article II, both recognise without qualification the " killing of hostages " as a war crime(3) as do also the Australian, Netherlands and Chinese War Crimes laws,(4) while the French War Crimes Ordinance of 28th August, 1944 states that " Premeditated murder shall include killing as a form of reprisal ".(5)

Furthermore, Article 46 of the Hague Convention protects " individual life " in occupied territory and Article 50 provides :

" No collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible ".(6)

The Tribunal which conducted the Einsatzgruppen Trial had no hesitation in regarding Article 50 of the Hague Regulations as being applicable to the
_________________________________________________________________
(1) See Vol. III, pp. 21-22. Compare Vol. VI, pp. 115-16 and 119.
(2) Vol. VIII, pp. 12, 83 and 85.
(3) The defence in the Hostages Trial claimed that the killing of hostages which was prohibited by the Charter of the International Military Tribunal and Law No. 10, as by paragraph 461 of the British Manual, to which Counsel also made reference, was the execution of hostages in the old sense of prisoners held as a guarantee of the observance of treaties, armistices or other agreements, or of persons taken by an occupying power as security for requisitions and contributions and not the killing of inhabitants of occupied territories with the aim of ensuring the observance of good order in such territories. The prosecution replied that it was inconceivable that, since thousands of hostages were executed in reprisal for hostile acts during the last two wars, this was not precisely the practice which the Charter and Control Council Law condemned. If these statutes were held not to include the execution of all kinds of hostages, they would be completely anchronistic and meaningless. (See Vol. VIII, p. 83).
(4) Vol. V, p. 95, Vol. XI, p. 93 and Vol. XIV, p. 153.
(5) See Vol. III, p. 52, Vol. VIII, pp. 27-29 arid Vol. IX, p. 60:
(6) See however, Vol. VIII, p. 78.

180 THE PROCEDURE OF THE COURTS

taking of reprisals and consequently ruled that reprisals may only be taken against persons who can be regarded as jointly responsible for the acts complained of.(1)

In the High Command Trial the Tribunal, faced with facts concerning reprisal killings in occupied territories similar to those proved in the Hostages Trial, found it " unnecessary to approve or disapprove the conclusions of the law [announced in the Judgment delivered in the latter trial] as to the permissibility of such killings." It was content to hold that the killings proved to have taken place would not fall within the field of what was permissible according to the Judgment in the Hostages Trial.(2)

The British Military Courts which conducted the Trial of von Mackensen and Maelzer,(3) and the Trial of Kesselring,(4) must be taken, in finding the accused guilty, to have rejected the plea of legitimate reprisals on the facts of the two cases, and the confirming officer did not upset the findings of guilty passed on the accused. Nor did the accused in the Trials of Franz Holstein and 23 others and of Hans Szabados(5) which were conducted before French Military Tribunals, benefit from any consideration that their acts might be justifiable as legitimate reprisals, for here again the offences proved to have taken place went beyond what could be considered as legitimate even taking into account the unsettled state of the law on this point.(6)

(iv) The Judge Advocate acting in the Trial of Captain Eikichi Kato, by an Australian Military Court, Rabaul, 7th May, 1946, drew the Court's attention to the following paragraphs in Chapter XIV of the Australian Manual of Military Law, thereby seemingly giving his approval to these passages :

" 386. If, contrary to the duty of the inhabitants to remain peaceful, hostile acts are committed by individual inhabitants, a belligerent is justified in requiring the aid of the population to prevent their recurrence and, in serious and urgent cases, in resorting to reprisals.

" 387. An act of disobedience is not excusable because it is committed in consequence of the orders of the legitimate Government, and any attempt to keep up relations with that Government or to act in understanding with it, to the detriment of the occupant, is punishable as war treason. . . .

" 459. What kinds of acts should be resorted to as reprisals is a matter for the consideration of the injured party. Acts done by way of reprisals must not, however, be excessive and must not exceed the degree of violation committed by the enemy. "(7)

These passages however do not deal specifically with the killing of innocent inhabitants in occupied territory.(8)

(v) The Netherlands Courts acting in the Trial of Hans Rauter dealt at some length with the question of reprisals in general(9) and the Court of
__________________________________________________________________
(1) See Vol. VIII, pp. 86-7.
(2) See Vol. XII, pp. 84-5.
(3) See Vol. VIII, pp. 1-8.
(4) See Vol. VIII, pp. 9-14.
(5) See Vol. VIII, pp. 22-23 and Vol. XI, p. 60.
(6) Compare Vol. VIII, pp. 12-13 and 80-1.
(7) Vol, V, p. 38.
(8) In fact the Manual does not represent the rules of international law as permitting such killings.
(9) See Vol. XIV, pp. 123-138.

DEFENCE PLEAS 181

Cassation, on appeal, adopted the view that no right of reprisal can arise-except as a result of an illegal act of a State. Consequently, acts on the part of inhabitants of occupied territories, unless they can be regarded as acts of a State, do not give rise to a right to reprisal but only to a right to punish the individual offenders.

In its Judgment the Netherlands Special Court of Cassation distinguished between three separate issues :

(a) The legal basis of legitimate reprisals ;

(b) The possible objects of such lawful reprisals ;

(c) The nature of certain acts allegedly committed in reprisals, in the absence of a proper legal basis.

(a) The Court took the view that legitimate reprisals could only arise between States as subjects of international law. The main consequence of this opinion was that the original violation, giving rise to legitimate reprisals, must be in the nature of an act involving the responsibility of a State. The Court stressed the fact that such acts can be committed only through the medium of individuals, but they must be individuals acting on behalf of the State and thereby representing it as its organs. The Court referred specifically to members of governments and military commanders.

From this it followed that where violations are committed by irresponsible individuals, this can never give a legal basis for resorting to lawful reprisals. The Court found that such was the case with the hostile acts of the Dutch population against the Germans. They constituted acts of individuals and not of a State, so that, in the absence of any violation for which the Netherlands State could be held responsible, the Germans could not and did not acquire the right to answer these hostile acts by reprisals.

(b) When reprisals are lawful under this rule, they may be taken " against all objects which, in the given circumstances, come into consideration to this end ". This includes, as the Court put it, the " subjects " (citizens) of the State guilty of the criminal violation " wherever they may be ".

The Court of Cassation did not go beyond this point with regard to the possible objects of lawful reprisals, and consequently did not state its views as to whether or in what circumstances it was permissible to kill inhabitants detained as hostages.

(c) Acts allegedly committed in reprisals which lacked the legal basis described above, were treated by the Court of Cassation as " so-called " or illegitimate reprisals. All the acts committed by the accused Rauter against the Dutch population were regarded as falling within this concept for the reason that, under international law, the Netherlands State, as represented by its organs during the war, had not been guilty of any violation of international law against the German State. In the absence of such violation the German State, as represented by its organs in occupied Holland, was not entitled to take any reprisals against any possible object, including members of the Dutch population.(1)
___________________________________________________________________
(1) It would appear that the Court of Cassation took the view that in any case the German government lost any right of reprisal which it may otherwise have had by waging a war of aggression against the Netherlands and failing to fulfil its duties as an occupant. (See Vol. XIV, pp. 136-137).

182 DEFENCE PLEAS

While classifying the accused's acts in the above fashion, the Court of Cassation entered into the related question as to the position arising when inhabitants of occupied territory do commit hostile acts against the occupant to which the latter cannot reply by reprisals. The court came to the conclusion that in such cases the occupant was entitled to impose punishment upon the offenders. It stressed two points in this respect :

(a) The punishment must affect only the actual offenders.

(b) The punishment imposed must not be contrary to the laws and customs of war.

In the court's opinion this derived from Article 50 of the Hague Regulations, which prohibits the imposition of collective penalties of any kind. The only exception allowed is when the population in a given area can be " regarded as collectively responsible " for an offence. This, in the Court's opinion, meant that even in this exceptional case the individuals affected were the actual offenders. The general conclusion drawn by the Court was that, when acts of violence are committed by inhabitants, the punishment may never affect innocent persons.

The rule that individuals guilty of a violation of the laws and customs of war, including the taking of illegitimate reprisals, are penally responsible, is left unaffected. Under the Court's theory a State official who commits illegitimate reprisals and thus affects innocent persons, is guilty of a war crime.

(vi) The remark of the Tribunal before which the Einsatzgruppen Trial was held that " under International Law, as in domestic law, there can be no reprisal against reprisal " (since a legal reprisal cannot create the grounds for a legal counter-reprisal) suggests that the inhabitant of an occupied territory is not always bound to refrain from hostile acts against the occupying power. (1)
__________________________________________________________________
(1) See Vol. VIII, pp. 87-8. Lord Wright in his Foreword to Vol. VIII has maintained that it is never legitimate deliberately to kill innocent individuals and that to do so is prohibited by the Hague Convention, the London Charter and Law No. 10. The Report of the 1919 law mission on Responsibilities and the opinions of eminent international lawyers were quoted in support of this thesis.

[David Thompson]

From the judgment of the American military tribunal in the "Hostage case," rendered 19 Feb 1948, NMT proceedings vol. 11, pp. 1248-57:

The major issues involved in the present case gravitate around the claimed right of the German armed forces to take hostages from the innocent civilian population to guarantee the peaceful conduct of the whole of the civilian population and its claimed right to execute hostages, members of the civil population, and captured members of the resistance forces in reprisal for armed attacks by resistance forces, acts of sabotage and injuries committed by unknown persons.

We wholly exclude from the following discussion of the subject of hostages the right of one nation to take them, to compel the armed forces of another nation to comply with the rules of war or the right to execute them if the enemy ignores the warning. We limit our discussion to the right to take hostages from the innocent civilian population of occupied territory as a guaranty against attacks by unlawful resistance forces, acts of sabotage and the unlawful acts of unknown persons, and the further right to execute them if the unilateral guaranty is violated.

Neither the Hague Convention of 1907, nor any other conventional law for that matter, says a word about hostages in the sense that we are to use the term in the following discussion. But certain rules of customary law and certain inferences legitimately to be drawn from existing conventional law lay down the rules applicable to the subject of hostages. In former times prominent persons were accepted as hostages as a means of insuring observance of treaties, armistices, and other agreements, the performance of which depended on good faith. This practice is now obsolete. Hostages under the alleged modern practice of nations are taken (a) to protect individuals held by the enemy, (b) to force the payment of requisitions, contributions, and the like, and (c) to insure against unlawful acts by enemy forces or people. We are concerned here only with the last provision. That hostages may be taken for this purpose cannot be denied.

The question of hostages is closely integrated with that of reprisals. A reprisal is a response to an enemy's violation of the laws of war which would otherwise be a violation on one's own side. It is a fundamental rule that a reprisal may not exceed the degree of the criminal act it is designed to correct. Where an excess is knowingly indulged, it in turn is criminal and may

1248

be punished. Where innocent individuals are seized and punished for a violation of the laws of war which has already occurred, no question of hostages is involved. It is nothing more than the infliction of a reprisal. Throughout the evidence in the present case, we find the term hostage applied where a reprisal only was involved.

Under the ancient practice of taking hostages they were held responsible for the good faith of the persons who delivered them, even at the price of their lives. This barbarous practice was wholly abandoned by a more enlightened civilization. The idea that an innocent person may be killed for the criminal act of another is abhorrent to every natural law. We condemn the injustice of any such rule as a barbarous relic of ancient times. But it is not our province to write international law as we would have it; we must apply it as we find it.

For the purposes of this opinion the term "hostages" will be considered as those persons of the civilian population who are taken into custody for the purpose of guaranteeing with their lives the future good conduct of the population of the community from which they were taken. The term "reprisal prisoners" will be considered as those individuals who are taken from the civilian population to be killed in retaliation for offenses committed by unknown persons within the occupied area.

An examination of the available evidence on the subject convinces us that hostages may be taken in order to guarantee the peaceful conduct of the populations of occupied territories and, when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort, be shot. The taking of hostages is based fundamentally on a theory of collective responsibility. The effect of an occupation is to confer upon the invading force the right of control for the period of the occupation within the limitations and prohibitions of international law. The inhabitants owe a duty to carry on their ordinary peaceful pursuits and to refrain from all injurious acts toward the troops or in respect to their military operations. The occupant may properly insist upon compliance with regulations necessary to the security of the occupying forces and for the maintenance of law and order. In the accomplishment of this objective, the occupant may only, as a last resort, take and execute hostages.

Hostages may not be taken or executed as a matter of military expediency. The occupant is required to use every available method to secure order and tranquility before resort may be had to the taking and execution of hostages. Regulations of all kinds must be imposed to secure peace and tranquility before the shooting of hostages may be indulged. These regulations may include

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one or more of the following measures: (1) the registration of the inhabitants, (2) the possession of passes or identification certificates, (3) the establishment of restricted areas, (4) limitations of movement, (5) the adoption of curfew regulations, (6) the prohibition of assembly, (7) the detention of suspected persons, (8) restrictions on communication, (9) the imposition of restrictions on food supplies, (10) the evacuation of troublesome areas, (11) the levying of monetary contributions, (12) compulsory labor to repair damage from sabotage, (13) the destruction of property in proximity to the place of the crime, and any other regulation not prohibited by international law that would in all likelihood contribute to the desired result.

If attacks upon troops and military installations occur regardless of the foregoing precautionary measures and the perpetrators cannot be apprehended, hostages may be taken from the population to deter similar acts in the future provided it can be shown that the population generally is a party to the offense, either actively or passively. Nationality or geographic proximity may under certain circumstances afford a basis for hostage selection, depending upon the circumstances of the situation. This arbitrary basis of selection may be deplored but it cannot be condemned as a violation of international law, but there must be some connection between the population from whom the hostages are taken and the crime committed. If the act was committed by isolated persons or bands from distant localities without the knowledge or approval of the population or public authorities, and which, therefore, neither the authorities nor the population could have prevented, the basis for the taking of hostages, or the shooting of hostages already taken, does not exist.

It is essential to a lawful taking of hostages under customary law that proclamation be made, giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason the hostages will be shot. The number of hostages shot must not exceed in severity the offenses the shooting is designed to deter. Unless the foregoing requirements are met, the shooting of hostages is in contravention of international law and is a war crime in itself. Whether such fundamental requirements have been met is a question determinable by court martial proceedings. A military commander may not arbitrarily determine such facts. An order of a military commander for the killing of hostages must be based upon the finding of a competent court martial that necessary conditions exist and all preliminary steps have been taken which are essential to the issuance of a valid order. The taking of the lives of innocent persons arrested as hostages is a very serious step. The right

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to kill hostages may be lawfully exercised only after a meticulous compliance with the foregoing safeguards against vindictive or whimsical orders of military commanders.

We are also concerned with the subject of reprisals and the detention of members of the civilian population for the purpose of using them as the victims of subsequent reprisal measures. The most common reason for holding them is for the general purpose of securing the good behavior and obedience of the civil population in occupied territory. The taking of reprisals against the civilian population by killing members thereof in retaliation for hostile acts against the armed forces or military operations of the occupant seems to have been originated by Germany in modern times. It has been invoked by Germany in the Franco-Prussian War, World War I, and in World War II. No other nation has resorted to the killing of members of the civilian population to secure peace and order insofar as our investigation has revealed. The evidence offered in this case on that point will be considered later in the opinion. While American, British, and French manuals for armies in the field seem to permit the taking of such reprisals as a last resort, the provisions do not appear to have been given effect. The American manual provides in part—[1]

"The offending forces or populations generally may lawfully be subjected to appropriate reprisals. Hostages taken and held for the declared purpose of insuring against unlawful acts by the enemy forces or people may be punished or put to death if the unlawful acts are nevertheless committed."

The British field manual provides in part—[2]

"Although collective punishment of the population is forbidden for the acts of individuals for which it cannot be regarded as collectively responsible, it may be necessary to resort to reprisals against a locality or community, for same act committed by its inhabitants, or members who cannot be identified."

In two major wars within the last 30 years, Germany has made extensive use of the practice of killing innocent members of the population as a deterrent to attacks upon its troops and acts of sabotage against installations essential to its military operations. The right to so do has been recognized by many nations including the United States, Great Britain, France, and the Soviet Union. There has been complete failure on the part of the nations of the world to limit or mitigate the practice by conventional rule. This requires us to apply customary law.
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[1] Rules of Land Warfare, U. S. Army. Field Manual 27-10, op. cit. supra. par 358d. p, 89-90.
[2] British Manual of Military Law, par. 458.

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That international agreement is badly needed in this field is self-evident.

International law is prohibitive law and no conventional prohibitions have been invoked to outlaw this barbarous practice. The extent to which the practice has been employed by the Germans exceeds the most elementary notions of humanity and justice. They invoke the plea of military necessity, a term which they confuse with convenience and strategical interests. Where legality and expediency have coincided, no fault can be found insofar as international law is concerned. But where legality of action is absent, the shooting of innocent members of the population as a measure of reprisal is not only criminal but it has the effect of destroying the basic relationship between the occupant and the population. Such a condition can progressively degenerate into a reign of terror. Unlawful reprisals may bring on counter reprisals and create an endless cycle productive of chaos and crime. To prevent a distortion of the right into a barbarous method of repression, international law provides a protective mantle against the abuse of the right.

Generally, it can be said that the taking of reprisal prisoners, as well as the taking of hostages, for the purpose of controlling the population involves a previous proclamation that if a certain type of act is committed, a certain number of reprisal prisoners will be shot, if the perpetrators cannot be found. If the perpetrators are apprehended, there is no right to kill either hostages or reprisal prisoners.

As in the case of the taking of hostages, reprisal prisoners may not be shot unless it can be shown that the population as a whole is a party to the offense, either actively or passively. In other words, members of the population of one community cannot properly be shot in reprisal for an act against the occupation forces committed at some other place. To permit such a practice would conflict with the basic theory that sustains the practice in that there would be no deterrent effect upon the community where the offense was committed. Neither may the shooting of innocent members of the population as a reprisal measure exceed in severity the unlawful acts it is designed to correct. Excessive reprisals are in themselves criminal and guilt attaches to the persons responsible for their commission.

It is a fundamental rule of justice that the lives of persons may not be arbitrarily taken. A fair trial before a judicial body affords the surest protection against arbitrary, vindictive, or whimsical application of the right to shoot human beings in reprisa1. It is a rule of international law, based on these fundamental concepts of justice and the rights of individuals, that the

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lives of persons may not be taken in reprisal in the absence of a judicial finding that the necessary conditions exist and the essential steps have been taken to give validity to such action. The possibility is great, of course, that such judicial proceedings may become ritualistic and superficial when conducted in wartime but it appears to be the best available safeguard against cruelty and injustice. Judicial responsibility ordinarily restrains impetuous action and permits principles of justice and right to assert their humanitarian qualities. We have no hesitancy in holding that the killing of members of the population in reprisal without judicial sanction is itself unlawful. The only exception to this rule is where it appears that the necessity for the reprisal requires immediate reprisal action to accomplish the desired purpose and which would be otherwise defeated by the invocation of judicial inquiry. Unless the necessity for immediate action is affirmatively shown, the execution of hostages or reprisal prisoners without a judicial hearing is unlawful. The judicial proceeding not only affords a measure of protection to innocent members of the population, but it offers, if fairly and impartially conducted, a measure of protection to the military commander, charged with making the final decision.

It cannot be denied that the shooting of hostages or reprisal prisoners may under certain circumstances be justified as a last resort in procuring peace and tranquility in occupied territory and has the effect of strengthening the position of a law abiding occupant. The fact that the practice has been tortured beyond recognition by illegal and inhuman application cannot justify its prohibition by judicial fiat.

Military necessity has been invoked by the defendants as justifying the killing of innocent members of the population and the destruction of villages and towns in the occupied territory. Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. In general, it sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection

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between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit the wanton devastation of a district or the willful infliction of suffering upon its inhabitants for the sake of suffering alone.

The issues in the present case raise grave questions of international law. Military men the world over debate both the law and the policy involved in the prosecution for war crimes of the high ranking commanders of defeated armies. This is partially brought about by the possibility of future wars and the further possibility that the victors of the present may be the vanquished of the future. This only serves to impress the Tribunal with the absolute necessity of affording the defendants a fair and impartial trial under the rules of international law as they were at the time the alleged offenses were committed. Unless this be done, the hand of injustice may fall upon those who so vindictively contend for more far reaching pronouncements, sustained by precedents which we would hereby establish.

Strict discipline is necessary in the organization of an army, and it becomes hard for many to believe that a violation of the orders of a superior may bring about criminal liability. Love of country and adherence to duty intervene to palliate unlawful conduct. The passage of time and the thankfulness for a return to peaceful pursuits tend to lessen the demand that war criminals answer for their crimes. In addition thereto, there is a general feeling that excesses occur in all armies, no matter how well disciplined, and that military trials are held to convict the war criminals of the vanquished while those of the victor are cleansed by victory. Unless civilization is to give way to barbarism in the conduct of war, crime must be punished. If international law as it applies to a given case is hopelessly inadequate, such inadequacy should be pointed out. If customary international law has become outmoded, it should be so stated. If conventional international law sets forth an unjust rule, its enforcement will secure its correction. If all war criminals are not brought to the bar of justice under present procedures, such procedures should be made more inclusive and more effective. If the laws of war are to have any beneficent effect, they must be enforced.

The evidence in this case recites a record of killing and destruction seldom exceeded in modern history. Thousands of innocent inhabitants lost their lives by means of a firing squad or hangman's noose, people who had the same inherent desire to live as do these defendants. Wherever the German armed forces were

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found, there also were the SS (Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei), the SD (Der Sicherheitsdienst des Reichsfuehrer SS), the Gestapo (Die Geheime Staatspolizei), the SA (Die Sturmabteilungen der Nationalsozialistischen Deutschen Arbeiterpartei), the administrators of Goering's Four Year Plan, and the Einsatzstab Rosenberg, all participating in the administration of the occupied territories in varying degrees. Mass shootings of the innocent population, deportations for slave labor, and the indiscriminate destruction of public and private property, not only in Yugoslavia and Greece but in many other countries as well, lend credit to the assertion that terrorism and intimidation was the accepted solution to any and all opposition to the German will. It is clear, also, that this had become a general practice and a major weapon of warfare by the German Wehrmacht. The German attitude seems to be reflected in the introduction to the German War Book, as translated by J. H. Morgan [John Murray, London, 1915] on pages 53-55 wherein it is stated:

"If therefore, in the following work the expression 'the law of war' is used, it must be understood that by it is meant not a lex scripta introduced by international agreements, but only a reciprocity of mutual agreement; a limitation of arbitrary behaviour, which custom and conventionality, human friendliness and a calculating egotism have erected, but for the observance of which there exists no express sanction, but only 'the fear of reprisals' decides. *** Moreover the officer is a child of his time. He is subject to the intellectual tendencies which influence his own nation; the more educated he is the more will this be the case. The danger that, in this way, he will arrive at false views about the essential character of war must not be lost sight of. The danger can only be met by a thorough study of war itself. By steeping himself in military history an officer will be able to guard himself against excessive humanitarian notions, it will teach him that certain severities are indispensable to war, nay more, that the only true humanity very often lies in a ruthless application of them. It will also teach him how the rules of belligerent intercourse in war have developed, how in the course of time they have solidified into general usages of war, and finally it will teach him whether the governing usages of war are justified or not, whether they are to be modified or whether they are to be observed."

It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the

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view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law. Articles 46, 47, and 50 of the Hague Regulations of 1907 make no such exceptions to its enforcement. The rights of the innocent population therein set forth must be respected even if military necessity or expediency decree otherwise. We have hereinbefore pointed out that it is the duty of the commanding general in occupied territory to maintain peace and order, punish crime, and protect lives and property. This duty extends not only to the inhabitants of the occupied territory but to his own troops and auxiliaries as well. The commanding general of occupied territory, having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself was responsible for the crime and that he is thereby absolved from responsibility. It is here claimed, for example, that certain SS units under the direct command of Heinrich Himmler committed certain of the atrocities herein charged without the knowledge, consent, or approval of these defendants. But this cannot be a defense for the commanding general of occupied territory. The duty and responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defense. The fact is that the reports of subordinate units almost without exception advised these defendants of the policy of terrorism and intimidation being carried out by units in the field. They requisitioned food supplies in excess of their local need and caused it to be shipped to Germany in direct violation of the laws of war. Innocent people were lodged in collection and concentration camps where they were mistreated to the everlasting shame of the German nation. Innocent inhabitants were forcibly taken to Germany and other points for use as slave labor. Jews, gypsies, and other racial groups were the victims of systematized murder or deportation for slave labor for no other reason than their race or religion, which is in violation of the express conventional rules of the Hague Regulations of 1907. The German theory that fear of reprisal is the only deterrent in the enforcement of the laws of war cannot be accepted here. That reprisals may be indulged to compel an enemy nation to comply with the rules of war must be conceded.

It is not, however, an exclusive remedy. If it were, the persons responsible would seldom, if ever, be brought to account. The only punishment would fall upon the reprisal victims who are usually innocent of wrongdoing. The prohibitions of the Hague

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Regulations of 1907 contemplate no such system of retribution. Those responsible for such crimes by ordering or authorizing their commission, or by a failure to take effective steps to prevent their execution or recurrence, must be held to account if international law is to be anything more than an ethical code, barren of any practical coercive deterrent.

That the acts charged as crimes in the indictment occurred is amply established by the evidence. In fact, it is evident that they constitute only a portion of the large number of such acts which took place as a part of a general plan for subduing the countries of Yugoslavia and Greece. The guilt of the German occupation forces is not only proved beyond a reasonable doubt but it casts a pall of shame upon a once highly respected nation and its people: The defendants themselves recognize this situation when they decry the policies of Hitler and assert that they continually protested against orders of superiors issued in conformity with the plan of terrorism and intimidation.