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
I think, if the facts of war are taken into consideration without
prejudice, there ought to be no doubt that the British and American view
is correct.[64] It is impossible to sever the citizens from their State,
and the outbreak of war between two States cannot but make their
citizens enemies. But the point is unworthy of dispute, because it is
only one of terms without any material consequences.[65] For, apart from
the terminology, the parties agree in substance upon the rules of the
Law of Nations regarding such private subjects as do not directly or
indirectly belong to the armed forces.[66] Nobody doubts that such
private individuals are safe as regards their life and liberty, provided
they behave peacefully and loyally; and that, with certain exceptions,
their private property must not be touched. On the other hand, nobody
doubts that, according to a generally recognised custom of modern
warfare, the belligerent who has occupied a part or the whole of his
opponent's territory, and who treats such private individuals leniently
according to the rules of International Law, may punish them for any
hostile act, since they do not enjoy the privileges of members of armed
forces. Although, on the one hand, International Law by no means
forbids, and, as a law between States, is not competent to forbid,
private individuals to take up arms against an enemy, it gives, on the
other hand, the right to the enemy to treat hostilities committed by
private[67] individuals as acts of illegitimate warfare. A belligerent
is under a duty to respect the life and liberty of private enemy
individuals, but he can carry out this duty under the condition only
that these private individuals abstain from hostilities against himself.
Through military occupation in war such private individuals fall under
the authority[68] of the occupant, and he may therefore demand that they
comply with his orders regarding the safety of his forces. The position
of private enemy individuals is made known to them through the
proclamations which the commander-in-chief of an army occupying the
territory usually publishes. Thus General Sir Redvers Buller, when
entering the territory of the South African Republic in 1900, published
the following proclamation:
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