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STATUS OF PERSONS IN WAR
99. PERSONS AFFECTED BY WAR.
$99. Persons affected by War (a) By the strict theory of war “the subjects of enemy states are enemies."1 The treatment of the subjects of enemy states is not, however, determined by che allegiance alone, but in part by conduct and in part by domicile of the subject.
(6) The subjects of neutral states are affected by their relations to the hostile states as established by their own government, as determined by their conduct, and as determined by their domicile.
(c) By conduct persons are divided into combatants and non-combatants, according as they do or do not participate in the hostilities. The status of such persons may be further modified by domicile or by political allegiance.
$ 100. Combatants Combatants in the full sense are the regularly authorized military and naval forces of the states. They are liable to the risks and entitled to the immunities of warfare, and if captured become prisoners of war.
1 Hall, $ 126, p. 405; Instr. U. S. Armies, $8 20, 21, 22; Appendix, pp. 336, 337.
(a) The status of combatants is also allowed to two classes which engage in defensive hostilities :
(1) The officers and crew of a merchant vessel which defends itself by force are liable to capture as prisoners of war.
(2) With regard to levies en masse much difference of opinion exists. Article 10 of the Declaration of Brussels, 1874, was adopted at the Hague Conference in 1899, and may be considered as representing a generally accepted position, namely, “ The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9 [providing for responsible leader, uniform, etc.), shall be considered as belliger
ents, if they respect the laws and customs of war.”1 (6) The status of combatants is not allowable for those who, without state authorization, engage in aggressive hostilities.
(1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protection.
(2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in offensive hostilities, they are liable to the same treatment as above mentioned. (3) Spies are those who, acting secretly or under
1 See Appendix, p. 386.
false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the intention of communicating it to the opposing force.1 Such agents are not forbidden, but are liable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging. The office of spy is not necessarily dishonorable.
§ 101. Non-combatants Non-combatants include those who do not participate in the hostilities. In practice this status is generally conceded to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hardships consequent upon war.
(a) When the armed forces of one state obtain authority over territory previously occupied by the other state, the non-combatant population is free from all violence or constraint other than that required by military necessity. They are liable, however, to the burdens imposed by civilized warfare.
(6) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times detained as prisoners. While Grotius (1625) allows this on the ground of weakening the forces of the enemy, and while Ayala had earlier (1597) sanctioned it,3 Bynkershoek, writing in 1737, mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice may be said to be so well established that, in absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nineteenth century have provisions to the effect of Article XXVI. of the treaty between the United States and Great Britain of 1795 : “ The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they live peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property.” This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Persons thus allowed to remain are generally treated as neutrals, though in the case of Alcinous v. Nigreu 1 it was held that an enemy subject, residing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored.
1 Appendix, pp. 353, 372, 388. 2 “ De Jure Belli," III., ix., 4. .8" De Jure et Officiis Bellicis," I., V., 25.
STATUS OF PROPERTY ON LAND
102. PUBLIC PROPERTY OF THE ENEMY.
§ 102. Public Property of the Enemy Formerly the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. The practice in regard to public property of the enemy has now become fairly defined.
The public property of one belligerent state within the territory of the other at the outbreak of war, if real property, may be administered during the war for the benefit of the local state ; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.1 The Treaty of Aug. 20, 1890, between Great Britain and France, exempts public vessels employed in the postal service.
In case one belligerent by military occupation acquires authority over territory formerly within the
1 Appendix, pp. 340, 385.