Martial Law

Martial Law in a hostile country consists in the suspension by the occupying military authority of the criminal and civil law, and of the domestic administration and government of the place or territory, and in the substitution of military rule and force for the same as well as in the dictation of general laws as far as military necessity requires this suspension, substitution or dictation. The commander of the force may proclaim that the administration of all civil and penal law shall continue both wholly or in part, as in times of peace, unless otherwise ordered by the military authority.

All civil and penal law shall continue to take its usual course in the enemy's places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all functions of the hostile government- legislative, executive and adininistrative -- whether of a general, provisional or local character, cease under Martial Law or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader.

The functions of ambassadors, ministers or other diplomatic agents accredited a neutral power to the hostile government, cease so far as regards the displaced government; but the conquering or occupying power usually recognizes them as temporarily accredited to itself.

Martial Law affects chiefly the police and collection of public revenue, as taxes chiefly imposed on the expelled government or on the individual, and refers mainly to the support and efficiency of the army, its safety and the safety of its operations.

Law of War

The law of war not only disclaims all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace and avowedly intended to remain in force in case of war between the contracting powers.

It disclaims all extortions and other transactions for individual gain, all acts of private revenge or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers.

Whenever feasible, Martial Law is carried out in case of individual offences by Military Courts; but sentence of death will be executed only with the approval of the chief executive (president), provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief- commander.

Things Forbidden

Military necessity does not admit of cruelty; that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight nor of torture to extort confessions. It does not admit of the use of poison in any way nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy, and the general military necessity does not include any acts of hostility which makes the return of peace unnecessarily difficult. The use of poison in any manner, be it to poison wells, food or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.

Returning Non-combatants

When the commander of a besieged place expels the non- combatants in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back so as to hasten the surrender.

Notice of Bombardment

Commanders, wherever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy, Surprise may be a necessity.

The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.

Spoils of War

A victorious army appropriates all public money, seizes all public moveable property until further directed by its government, and sequesters for its own benefit or that of its government all the revenues of real property belonging to the hostile government or nation. The title of such real property remains in abeyance during military occupation and until the conquest is made complete.

It is no longer considered lawful -- on the contrary it it is held to be a serious breach of the law of war -- to force a subject of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district or place permanently as its own and make it a portion of its own country.

Preservation of Order

The United States acknowledge and protect in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

This rule does not interfere with the right of the victorious individual to tax the people or their property, to levy taxed loans, to billet soldiers or to appropriate property, especially houses, land, boats or ships, and churches for temporary and military uses.

Private Property

Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of inilltary necessity for the support or other benefit of the ariny of the United States. If the owner has not fled, the commanding officer will cause receipts to be given which may serve the spoliated owner to obtain indemnity.

Native Civil Officers

The salaries of civil officers of the hostile government who remain in the invaded territory and continue the work of their offices, and can continue it according to the circumstances arising out of the war -- such as judges, administrative and police officers, officers of city or communal government -- are paid from the public revenue in the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped.

Violence Punished

All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officers, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming or killing of such inhabitants are prohibited under the penalty of death or such other severe punishment as may seem adequate for the gravity of the offense.

Any soldier, officer or private, in the act of committing such violence and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death if duly convicted, whether he be longs to the army of the United States or is an enemy captured after having committed his misdeed.

Private Property of Prisoner Money and other valuables on the person of a prisoner, such as watches and jewelry, as well as extra clothing, are regarded by the American army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable and is prohibited.

Nevertheless, if large sums arc found upon the persons of prisoners, or in their possession, they shall be taken from them and the surplus, after providing for their own support, appropriated for the use of the army under the direction of the commander, unless otherwise ordered by the government. Nor can prisoners claim as private property large sums found and captured in their train, although they have been placed in the private luggage of the prisoner.

Private Gain

Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished by cashiering and such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense.

Crime

Crime, punishable by all penal codes, such as arson, murder, maiming, assault, highway robbery, theft, burglary, fraud, forging, and rape, if committed by an American soldier in a hostile country against its inhabitants, is not only punishable as at home, but in all cases in which death is not inflicted the severer punishment shall be preferred.

Deserters

Deserters from the American army having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture or being delivered up to the American army; and if a deserter from the enemy, having taken service in the army of the United States, is captured by the enemy and punished by them with death or otherwise, it is not a breach against the law and usages of war requiring redress or retaliation.

Hospital Corps

The enemy's chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American army, are not prisoners of war unless the commander has reasons to retain them. In this latter case, or if at their own desire they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit.

Giving of Quarter

All troops of the enemy known or discovered to give no quarter in general or to any portion of the army, receive none.

Troops who fight in the uniform of their enemy without a plain, striking and uniform mark of distinction of their own, can expect no quarter.

The use of the enemy's national standard, flag or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.

Outposts, sentinels and pickets are not to be fired upon except to drive them in or when a positive order, special or general, has been issued to that effect.

Prisoners

All officers when captured must surrender their sidearms to the captor. They may be restored to the prisoner in marked cases by the commander to signalize admiration of his distinguished bravery or approbation of his humane treatment of prisoners before his capture. The captured officer to whom they may be restored cannot wear them during captivity.

Exchanges of prisoners take place -- number for number, rank for rank, wounded for wounded, with added condition for added condition -- such, for instance, as not to serve for a certain period.

A prisoner of war is in honor bound truly to state to the captor his rank; and he is not to assume a lower rank than belongs to him in order to cause a more advantageous exchange, nor a higher rank for the purpose of obtaining better treatment.

A prisoner of war who escapes may be shot or otherwise killed in his flight, but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape.

If, however, a conspiracy is discovered, the purpose of which is a united and general escape, the conspirators may be rigorously punished, even with death. A capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow-prisoners or other persons.

If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape and are captured again in battle after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subject to stricter confinement.

Bushwhacking

Men, or squads of men, who commit hostilities, whether by fighting or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character and appearance of soldiers -- such men, or squads of men, are not public enemies, and therefore if captured are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting telegraph wires, are not entitled to the privileges of the prisoner of war.

Scouts and Spies

Scouts or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captors, are treated as spies and suffer death.

A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy.

The spy is punishable with death by hanging by the neck, whether or not be succeeds in obtaining the information or in conveying it to the enemy.

A messenger carrying written dispatches or verbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its government, if armed, and in the uniform of his army, and if captured while doing so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected with his capture must determine the disposition that shall be made of him.

A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.

Acts of Citizens

If a citizen of the United States obtains information in a legitimate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death.

No person having been forced by the enemy to serve as guide is punishable for having done so.

All unauthorized or secret communication with the enemy is considered treasonable by the law of war.

Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts, or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this rule.

Guides

If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war-traitor, and shall suffer death.

A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country.

Guides, when it is clearly proved that they have misled intentionally, may be put to death.

War-Rebels and War-Traitors

War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence.

The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condition, safety, operations or plans of the troops holding or occupying the place or district, his punishment is death.

If the citizen or subject of a country or place invaded or conquered gives information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offense.

Traitor

A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by military commander, gives information of any kind to the enemy, or holds intercourse with him.

Flag of Truce

The bearer of a flag of truce cannot insist upon being admitted. He must always be admiitted with great caution. Unnecessary frequency is carefully to be avoided.

If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such a flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle.

If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever.

Hospital Flag

It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement.

It is justly considered an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection. Such an act of bad faith may be good cause for refusing to respect such flags.

The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as much as possible.

it In the case of a collection of Italian paintings and prints captured by a British vessel during the war of 1812, in their passage from Italy to the United States, the learned judge (Sir Alexander Croke), vice-admiralty court at Halifax, directed them to be restored to the Academy of Arts in Philadelphia, on the ground that the arts and sciences are admitted, amongst all civilized nations, to form an exception to the several rights of war, and are entitled to favor and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large and as belonging to the common interest of the whole species; and that the restitution of such property to the claimants would be in conformity with the law of nations as practiced by all civilized countries." (Wharton's " International Law Digest," page 350.)

Parole

Breaking the parole is punished with death when the person breaking the parole is captured again.

Accurate lists, therefore, of the paroled persons must be kept by the belligerents.

Commissioned officers only are allowed to give their parole, and they give it only with the permission of their superior, as long as a superior in rank is within reach.

No non-commissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individual giving them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer.

No paroling on the battlefield, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is permitted, or of any value.

In capitulations for the surrender of strong places or fortified camps, the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged.

The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it, he may arrest, confine, or detain them.

"Generally, a belligerent contents himself with a pledge that his prisoner, unless exchanged, will not serve during the existing war against the captor or his allies engaged in the same war. This pledges understood to refers only to active service in the field, and does not, therefore, debar prisoners from performing military duties of any kind at places not within the seat of actual hostilities, notwithstanding, that the services thus rendered may have a direct effect in increasing the power of the country for resistance or aggression. Thus, paroled prisoners may raise and drill recruits, they may fortify places not yet within the scope of military operations, and they may be employed in the administrative departments of the army away from the seat of war.

As the right of a belligerent over his prisoners is limited to the bare power of keeping them in safe custody for the duration of the war, he cannot in paroling them make stipulations which are inconsistent with their duties as subjects, or which shall continue to operate after the conclusion of peace. Thus if prisoners are liberated on condition of not serving during a specified period, before the end of which peace is concluded and hostilities again break out, they enter upon the fresh war discharged from obligation to the enemy.

The prisoner who violates the conditions upon which he has been paroled is punishable with death if he falls into the hands of the enemy before the termination of the war." ("International Law," W. E. Hall, London, (P. 426).)

Armistice

An armistice is the cessation of active hostilities for a period agreed upon between the belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties.

An armistice is binding upon the belligerent from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive official information of its existence.

An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.

When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this subject that the besieger must cease all extension, perfection, or advance of his attacking work, as much so as from attacks by main force.

But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties.

Capitulation

The term "parole" designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor.

So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition, in his possession, during the time which elapses between the signing and execution of the capitulation, unless otherwise stipulated in the same.

Treating of Rebels

Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife, and settles the future relations between the contending parties.

Treating, in the field, the rebellious enemy according to the law and usages of war, has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. (Snow's "Cases on International Law.")

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