International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 115. It will be remembered from above, § 79, that numerous individuals
belong to armed forces without being combatants. Now, since and in so
far as these non-combatant members of armed forces do not take part in
the fighting, they may not directly be attacked and killed or wounded.
However, they are exposed to all injuries indirectly resulting from the
operations of warfare. And, with the exception of the personnel[242]
engaged in the interest of the wounded, such as doctors, chaplains,
persons employed in military hospitals, official ambulance men, who,
according to articles 9 and 10 of the Geneva Convention, are specially
privileged, such non-combatant members of armed forces may certainly be
made prisoners, since the assistance they give to the fighting forces
may be of great importance.
[Footnote 242: See below, § 121.]
[Sidenote: Violence against Private Enemy Persons.]
§ 116. Whereas in former[243] times private enemy persons of either sex
could be killed or otherwise badly treated according to discretion, and
whereas in especial the inhabitants of fortified places taken by assault
used to be abandoned to the mercy of the assailants, in the eighteenth
century it became a universally recognised customary rule of the Law of
Nations that private enemy individuals should not be killed or attacked.
In so far as they do not take part in the fighting, they may not be
directly attacked and killed or wounded. They are, however, like
non-combatant members of the armed forces, exposed to all injuries
indirectly resulting from the operations of warfare. Thus, for instance,
when a town is bombarded and thousands of inhabitants are thereby
killed, or when a train carrying private individuals as well as soldiers
is wrecked by a mine, no violation of the rule prohibiting attack on
private enemy persons has taken place.
[Footnote 243: See Grotius, III. c. 4, §§ VI. and IX.]
As regards captivity, the rule is that private enemy persons may not be
made prisoners of war. But this rule has exceptions conditioned by the
carrying out of certain military operations, the safety of the armed
forces, and the order and tranquillity of occupied enemy territory.
Thus, for instance, influential enemy citizens who try to incite their
fellow-citizens to take up arms may be arrested and deported into
captivity. And even the whole population of a province may be imprisoned
in case a levy _en masse_ is threatening.[244]
[Footnote 244: Civilians who render assistance to the enemy as drivers,
or as labourers to construct fortifications or siege works, or in a
similar way, if captured while they are so engaged, may not be detained
as prisoners of war, whether they render these services voluntarily or
are requisitioned or hired. See _Land Warfare_, § 58 note (_a_).]
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