亨利-梅因：国际法Lecture 9

individuals who have given them contrary to the laws of their country. A recaptured prisoner who has violated his parole may be punished with death； but the modern practice usually is to abstain from the infliction of death， except in an aggravated case， and to substitute strict confinement with severities and privations not cruel in their nature or degree.

　　These rules， which tend to ameliorate the condition and hopes of prisoners， are， relatively to the whole history of modern war， of ancient origin.

　　There is another set of rules， on which I propose to say something， which relate to the treatment of the general population of the enemy's country， and these are among the most modern parts of the International system. They constitute a subject of great interest but of very great difficulty； and indeed it was the attempt to construct a sort of code on this subject which brought the discussions of the Conference of Brussels to an end， and deprived its results， as a whole， of the authority which they otherwise might have possessed. How the questions involved arose I may perhaps best express in the following way： In all wars waged by armies of the modern type， and especially in the war between France and Germany， there arrives a point at which one side or the other may legitimately think that the campaign has ended favourably for him. In the Franco-German war we may say that this point was reached as soon as the German armies had invested Paris. But some of you can remember， and others may have read， what followed. Leon Gambetta， a principal member of the so-called Government of National Defence， escaped from Paris in a balloon and established a separate or branch Government at Tours. From that point a new campaign of a new nature may be said to have begun. Large forces were brought together by Gambetta， consisting chiefly of fragments of other armies which had been stationed in particular localities or had marched westwards after defeat from the Germans， and， besides these， of a great part of the hitherto unarmed population of the count

ry called to his standard under what was called a levee en masse. This part of the war was conducted with some success on the part of the French， but it at once gave rise to a large number of new questions as to what should be allowed in the conduct of war. The principles agreed upon by the Brussels Conference appeared to have been these： The first duty of a citizen is to defend his country， but this defence must be conducted according to the customs of war. These customs require that an enemy should be able to distinguish between the armed forces and the general population of a country， in order that he may spare the latter without exposing his troops to be attacked by persons whom he might reasonably suppose to be engaged only in peaceful capacities. Further， war must be conducted by persons acting under the control of some recognized Government having power to put an end to hostilities， in order that the enemy may know the authority to which he may resort when desirous of making peace. In ordinary circumstances， therefore， persons committing acts of hostility， who do not belong to an organised body authorized by some recognized Government， and who do not wear a military uniform or some conspicuous dress or mark showing them to be part of an organized military body， incur the risk of being treated as marauders and punished accordingly. So far the delegates at Brussels may be said to have been reasonably agreed； but then the qualifications which follow in the Manuals which the various Governments have now circulated show how very far the rules laid down were from being unanimously accepted or agreed to be universal. They go on to say： 'No rule， however， can be laid down which is not subject to great exceptions. For example， the customs of war do not justify a commander in putting to death or even in punishing the inhabitants of a town， after an attack has ceased， on the ground that they fought against him without uniform or distinguishing marks， as all the inhabitants of a town may be considered to be legitimate enemies until the town is taken. Similarly a population which rises en masse in a country not already occupied by the enemy are entitled to be treated as prisoners of war， and not as marauders， but in such case they must be formed into organized bodies. Again， when the regular Government of a country has been overthrown by civil tumult， the absence of the authority of a recognized Government to make peace would not of itself disentitle organized bodies of men， clearly distinguishable as foes and fighting in conformity with the customs of war against a foreign enemy， to be treated on capture as prisoners of war. Every case must be judged by its own circumstances， having regard to the principle that persons other than regular troops in uniform， whose dress shows their character， committing acts of hostility against an enemy， must， if they expect when captured to be treated as prisoners of war， be organised in such a manner or fight under such circumstances as to give their opponents due notice that they are open enemies from whom resistance is to be expected.

　　The extreme difficulty of arriving at complete agreement as to a new set of rules on this vexed subject proved insurmountable at the Brussels Conference； and in point of fact the debates showed that at the bottom of the discussion the matters at stale were the differences in the interests of states who possess such vast armies as served under the colours of the Germans or the French， and those smaller states which， either from policy or from poverty or from smallness， declined or were unable to keep on foot armies on that scale. The following remarks are to be found in the despatch in which the English Secretary of State， Lord Derby， summed up the results of this most remarkable controversy. He says at the fifth page of his despatch， published in 1876： 'The second chapter of the report of the Conference relating to combatants and non-combatants showed an

equal difference of opinion， smoothed over， in the long run， by a compromise. The Swiss delegate， in his observations on the article requiring the use of a distinctive badge， recognizable at a distance， remarked that a country might rise en masse， as Switzerland had formerly done， and defend itself without organization and under no command. The patriotic feeling which led to such a rising could not be kept down； and although these patriots， if defeated， might not be treated as peaceful citizens， it could not be admitted in defence that they were not belligerent.' The English delegate also reported that during the general discussion on the subject of this chapter the Netherlands delegate remarked that if the plan laid down by the German delegate was to be sanctioned， on the adoption of those articles which relate to belligerents as drawn up in the project， it would have the effect of diminishing the defensive force of the Netherlands， or render universal and obligatory service necessary —— a military revolution to which the public opinion of the Netherlands was opposed. He therefore reserved more than ever the opinion of his Government. The Belgian delegate also made a declaration of reservation. In the opinion of the Belgian delegate no country could possibly admit that if the population of a de facto occupied district should rise in arms against the established authority of an invader， they should be subject to the laws in force in the occupying army. He admitted that in time of war the occupier might occasionally be forced to treat with severity a population who might rise， and that from its weakness the population might be forced to submit； but he repudiated the right of any Government to require the delivering over to the justice of the enemy of those men who from patriotic motives and at their own risk might expose themselves to the dangers consequent upon a rising. The Swiss delegate， who had previously pointed out that the Conference was now engaged upon the cardinal points of the whole project， openly declared that two questions， diametrically opposed to each other， were before the Commission： the interest， on the one hand， of great armies in an enemy's country， which demands security for their communication and for their rayon of occupation； and， on the other， the principles of war and the interests of the invaded， which cannot admit that a population should be handed over as criminals to justice for having taken up arms against the enemy. The reconciliation of these conflicting interests was at this period impossible in the case of a lev嶪 en masse in the occupied country， and in the face of the opposite opinions expressed， until a provisional modification of them was accepted by the meeting， passing over this point， on which the greatest disagreement had been shown.

　　These difficulties， which prevented the project of the Brussels Conference from becoming part of the International Law of civilization， are no doubt to be attributed to the fact that reminiscences of the great war between France and Germany dominated the whole of these debates. It is one among many examples of a truth of considerable importance， that the proper time for ameliorating the critical parts of International Law is not a time immediately or shortly succeeding a great crisis. Hereafter I shall point out to you some conclusions to which this truth seems to me to point.

　　There is another part， however， of International Law upon which， if it be possible， it is extremely desirable to have a systematic set of rules. It is perhaps an inevitable but certainly a frequent result of the present want of rules， that when enemies are fighting in the same country， and one side complains of the measures adopted by the other， there is no means of punishing what is thought to be an infract

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