At the Brussels Conference of 1874 the representatives of the States who were present agreed that only 'fortified' places should be liable to siege; but in 1899, at the first Hague Conference, this expression was replaced, at the instance of the German delegate, by the more ambiguous one 'defended,' on the ground that the requirement implied in the former would unduly restrict the action of armies in the field. A place that is merely occupied by troops, though not actually defended, would fall within the terms of this Article. The German Official Manual lays down that military necessity justifies bombardment of an occupied locality not only when its occupation has been devised for defensive purposes, but also when it is intended to guard a passage, to defend approaches, to protect a retreat, to prepare or cover a tactical movement, or to procure provisions (v). Several open towns, both French and German, were subjected to bombardment in the Franco-German war because they defended themselves. To offer a defence is not being open for the enemy to enter if he wishes or if he is able otherwise. An undefended town that shares in the defence of a fortified town would probably be regarded as liable to attack. Further, it may be that military necessity would be held to justify the bombardment of an open town which is near a fortress, and which is of military use to the defenders of the latter. Article 25, it is to be noted, applies also to the use of aircraft bombs. The words 'by any means whatever' were specially added in 1907 to the corresponding Article of 1899, with that intention.

"The commander of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities" (x).

The warning is, of course, required in order that non-combatants and their property may be removed to a place of safety. The word 'assault' refers to a surprise attack. A usage may now be said to be growing up in favour of the free exit of ' useless mouths.' When a belligerent proposes to reduce a town by bombardment, and not by famine, his refusal to permit the civilian population to leave it would be tantamount to inflicting suffering on persons who are by the fundamental principles of war law immune from hostilities. Thus, in the Franco-German war, the Germans allowed the departure of non-combatants from Strassburg, as they resolved to carry the town by assault; they refused it in the case of Paris which they proposed to reduce by famine. There is no fixed

(v) Kriegsbrauch im Landkriege, p. 21.

(x) Art. 26.

interval between the notification and the commencement of the bombardment; the amount allowed will naturally depend on the circumstances of each case. If, after due warning, the women, children, and other non-combatants do not depart, the investing commander cannot then be held responsible for any injury they may suffer (y).

"In sieges and bombardments all necessary steps should be taken Protected buildings. to spare, as far as possible, buildings devoted to religion, art, science, and charity, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. It is the duty of the besieged to indicate these buildings or places by some special visible signs, which shall previously be notified to the assailants" (z).

The character of the special sign required by this Article is not determined for land warfare, as it has been determined for naval bombardment. Hence, in the former case, an arrangement between the belligerents would be necessary. Military hospitals, as we have seen, are specifically protected by the Geneva Convention; so that the hospitals referred to in this Article are civil hospitals. If hospitals are deliberately set up in parts of the town which it is of vital importance for the assailants to shell, the responsibility for damage to them and injury to the inmates must fall on the defenders. In the Franco-German war, cathedrals, churches, hospitals, historic and artistic buildings, libraries-including the great library of Strassburg-suffered dreadfully. In several other wars before that and since, these protected monuments and buildings were spared; but in the Great War, 1914, merciless destruction appears to have been the rule followed regularly by the German forces in Belgium and France. The cathedrals of Malines and Termonde were deliberately attacked, the famous Cloth Hall of Ypres was intentionally demolished; the wilful destruction of Reims Cathedral and the university and library of Louvain aroused the indignation of the entire world. Hospitals, museums, and other protected buildings were not spared (a).

The giving up to pillage of a town or place, even when taken by assault, is forbidden" (b).

We shall later on deal more fully with this subject in connection with Article 47, which prohibits pillage generally (c).

(y) For the terrible and lawless bombardment by the Germans of Belgian and French towns and villages, see Phillipson, Int. Law and the Great War, pp. 162 seq.

(2) Art. 27.

(a) See Phillipson, loc. cit.
(b) Art. 28.

(c) See infra, p. 533.

SPIES AND
ESPIONAGE.

Definition of espionage.

Balloonists.

International law does not prohibit a belligerent from obtaining any information he deems to be necessary about the enemy, the enemy's country, his preparations, measures of offence and defence, military resources, strategic plans, &c. But to carry out this purpose no method may be adopted that involves a violation of any of the Hague Rules or any rule of customary law. So far as the field of operations is concerned, such information may be procured not only by the usual means of reconnoitring, but by intercepting messages, questioning prisoners of war, bribing enemy soldiers and civilians (a practice that is allowed by military usage, though reprobated by many writers), using secret agents and spies.

Espionage is defined by the Hague Regulations (d) as the act of a soldier or civilian who, proceeding clandestinely or on false pretences, obtains or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. In order that a charge of espionage (in the sense contemplated by international law) may be maintained, three points must be established: firstly, the stealthy character of the act or false pretences; secondly, that it was committed within the zone of belligerent operations; thirdly, an intention to communicate it to the adverse party. If the act is committed or attempted without secrecy or false pretences or outside the zone of operations, it may none the less be regarded as a serious offence (a war crime') by the belligerent into whose hands the offender falls. It follows from the definition that soldiers not in disguise who have penetrated into the zone of operations of the hostile army to obtain information cannot be regarded as spies. Similarly, the following are not considered spies: soldiers or civilians carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy; persons sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory; and others similarly engaged. It is obvious that a soldier would not be carrying out his mission openly if he divested himself of his uniform and put on civilian dress.

A question arose during the Franco-German war as to what treatment persons should receive who ascended in balloons in order to reconnoitre the enemy's forces. Those who were captured by the Germans were imprisoned in fortresses, and brought to trial by a council of war. But the German practice was condemned at

(d) Art. 29.

the time; many jurists and publicists held that such balloonists if captured should be treated as prisoners of war; and the new provision of the Hague is in accordance with this view. The declaration made by a Russian admiral, soon after the commencement of the Russo-Japanese war, that newspaper correspondents sending wireless messages from neutral steamers were liable to be treated as spies was clearly untenable.

A well-known case relating to this subject is that of Major Case of André. John André, born in London (1751), of French-Swiss Major André. descent, joined the British army in Canada and became aide-decamp to General Sir Henry Clinton. Benedict Arnold, an American commandant, having undertaken to surrender a certain fortress to the British forces, André was sent by Clinton to make the necessary arrangements for carrying out this engagement. André met Arnold near the Hudson on the night of September 20, 1780; then André put on civilian clothes, and by means of a passport given to him by Arnold in the name of John Anderson he was to pass through the American lines. Approaching the British lines, he was captured and handed over to the American military authorities. A court-martial summoned by Washington convicted him of espionage, and declared that "agreeably to the laws and usages of nations he ought to suffer death." He was hanged October 2, 1780; but in this country he was considered a martyr. According to the provision indicated above, his offence could not now have been regarded as espionage, as he was not seeking information; it might, however, have been considered a 'war crime' or war treason.'

We may conveniently refer here to the Lody case. Lody, a The Lody German subject, was charged (October 30, 1914) before a General case. Court Martial in London with attempting to give information to the German authorities with regard to the defences and war preparations of Great Britain. As the offence was committed in Edinburgh and Dublin-places beyond the 'zone of operations of a belligerent'-it was described as a 'war crime' or war treason.' The accused was found guilty, condemned to death, and shot.

A person found guilty of espionage may be hanged or shot; but Penalty. smaller punishments are sometimes imposed. Where a death sentence is pronounced, it is generally carried out by shooting. In earlier times a spy caught in the act was liable to be shot on the spot without any trial. Now the Hague Regulations (e) require a previous trial.

(e) Art. 30.

NON-HOSTILE

BETWEEN

"A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is to be treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage" (f).

Grotius has devoted a whole chapter of his great work to prove, INTERCOURSE by the consenting testimony of all ages and nations, that good BELLIGERENTS. faith ought to be observed towards an enemy. And even Bynkershoek, who holds that every other sort of fraud may be practised towards him, prohibits perfidy, upon the ground that his character of enemy ceases by the compact with him, so far as the terms of that compact extend. "I allow of any kind of deceit," says he, "perfidy alone excepted, not because anything is unlawful against an enemy, but because when our faith has been pledged to him, so far as the promise extends, he ceases to be an enemy." Indeed, without this mitigation, the horrors of war would be indefinite in extent and interminable in duration. The usage of civilized nations has therefore introduced certain commercia belli, by which the violence of war may be allayed, so far as is consistent with its objects and purposes, and something of a pacific intercourse may be kept up, which may lead, in time, to an adjustment of differences, and ultimately to peace (g).

Commercia belli.

Truce or armistice.

There are various modes in which the extreme rigour of the rights of war may be relaxed at the pleasure of the respective belligerent parties. Among these is that of a suspension of hostilities, by means of a truce or armistice. This may be either general or special. If it be general in its application to all hostilities in every place, and is to endure for a very long or indefinite period, it amounts in effect to a temporary peace, except that it leaves undecided the controversy in which the war originated. Such were the truces formerly concluded between the Christian Powers and the Turks. Such, too, was the armistice concluded, in 1609, between Spain and her revolted provinces in the Netherlands. A partial truce is limited to certain places, such as the suspension of hostilities, which may take place between two contending armies, or between a besieged fortress and the army by which it is invested (h).

(f) Art. 31. As to spying which does not amount to espionage in the international law sense, see infra, P. 528.

(g) Bynkershock, Quæst. Jur. Pub. lib. i. cap. 1. The Daifje (1800), 3 C. Rob. 139.

(h) Vattel, Droit des Gens, liv. iii. ch. 16, §§ 235, 236.