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
It must be specially observed that enemy soldiers--in contradistinction
to private enemy individuals--may only be punished for war treason when
they have committed the act of treason during their stay within a
belligerent's lines under disguise. If, for instance, two soldiers in
uniform are sent into the rear of the enemy for the purpose of
destroying a bridge, they may not, when caught by the enemy, be punished
for war treason, because their act was one of legitimate warfare. But if
they exchange their uniforms for plain clothes and thereby appear as
members of the peaceful private population, they may be punished for war
treason. A remarkable case of this kind occurred in the summer of 1904,
during the Russo-Japanese War. Two Japanese disguised in Chinese clothes
were caught in the attempt to destroy, with the aid of dynamite, a
railway bridge in Manchuria, in the rear of the Russian forces. Brought
before a court-martial, they confessed themselves to be Shozo Jakoga,
forty-three years of age, a Major on the Japanese General Staff, and
Teisuki Oki, thirty-one years of age, a Captain on the Japanese General
Staff. They were convicted, and condemned to be hanged, but the mode of
punishment was changed and they were shot. All the newspapers which
mentioned this case reported it as a case of espionage, but it is in
fact one of war treason. Although the two officers were in disguise,
their conviction for espionage was impossible according to article 29 of
the Hague Regulations, provided, of course, they were court-martialed
for no other act than the attempt to destroy a bridge.
It must be particularly noted that there are many acts of inhabitants
which a belligerent may forbid and punish in the interests of order and
the safety of his army, although these acts do not fall under the
category of war treason, and are not therefore punished as war crimes.
To this class belong all acts which violate the orders legitimately
decreed by an occupant of enemy territory.[484]
[Footnote 484: See _Land Warfare_, § 446.]
[Sidenote: Marauding.]
§ 256. Marauders are individuals roving either singly or collectively in
bands over battlefields, or following advancing or retreating forces in
quest of booty. They have nothing to do with warfare in the strict sense
of the term, but they are an unavoidable accessory to warfare and
frequently consist of soldiers who have left their corps. Their acts are
considered acts of illegitimate warfare, and their punishment takes
place in the interest of the safety of either belligerent.
[Sidenote: Mode of Punishment of War Crimes.]
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