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亨利-梅因:国际法Lecture 9

2006-08-11 13:55   我要纠错 | 打印 | 收藏 | | |


  At the close of my last lecture I spoke of the Geneva Convention of 1864 as the farthest, as well as the most recent, point of advance reached by a concert of nations in the attempt to mitigate the inevitable sufferings of war. International Law, as now understood, contains a number of rules of greater antiquity having the same object in view. The status of the prisoner of war is historically descended from the status of the slave. He represents the class which, as the Romans put it, had lost liberty, country, and family; by capture he had forfeited to the captor all the rights which he possessed, and was bound to labour at the order of the captor, and anybody who succeeded the captor in title, to the end of his life. But as slavery fell into disrepute and decay chiefly owing to the influence of the Christian Church, a number of rules gradually grew up for the purpose of limiting the power of the captor over the prisoner of war. They may be described as intended to prevent his being treated actually as a slave, in the form which they have now taken. In the Manuals which several of the great civilised states have prepared for their officers in the field, it is declared that the object of detaining prisoners of war is to prevent their taking part again in the operations of war. So much restraint, therefore, and no more, should be applied as is sufficient for that purpose. They cannot be compelled to aid their captors in military operations, but they may be employed in any other manner suitable to their condition. The money which they earn by work should be placed to their credit after deducting the expenses of subsistence. A prisoner of war who has committed an offense against the customs of war —— such, for example, as stabbing or robbing wounded men —— may be considered to have forfeited the character of a prisoner of war, and be punished with death for his crime. The primary obligation to support prisoners of war necessarily lies with the captor, and he should maintain them in a manner suitable to their condition. A prisoner of war, unless he has given a pledge or promise not to escape, is justified in making the attempt; but if retaken he is not punishable by death, or otherwise, for having made the attempt, as the customs of war do not regard an attempt to escape on the part of a prisoner as a crime. On the other hand, a rising amongst prisoners of war with a view to effect a general escape may be rigorously punished, even with death in the case of absolute necessity, as self-security is the law of the conqueror, and the customs of war justify the use of means necessary to that end. Stricter means of confinement may be used after an unsuccessful attempt to escape. But a prisoner of war cannot be ill treated or punished for refusing to give information as to the forces to which he belonged, or for giving false information. It has happened in modern days that after great wars, or where communication between the belligerents was possible during them, serious complaints have been made of the imperfect discharge of the obligatious imposed by International Law or by usage on a captor holding a captive in duress. At the close of the War of Secession between the Northern and Southern sections of the United States, the Northern armies obtained possession of the person of a Confederate officer who had been in charge of the prisoners taken by the Confederates during the war. He had been accused of barbarous cruelties towards his enemies who were captives, and the Northern army, after a trial which on the other side was charged with every kind of carelessness and irregularity, put him to death by hanging. The English Government was, at the beginning of this century and the end of the last, constantly accused of barbarity towards the French prisoners who were detained in the hulks at Portsmouth and other ports; and probably to this day it is a commonplace amongst the French that this is one of the greatest crimes which the English have perpetrated against themselves. England was in reality in great difficulties in providing places of confinement for the prisoners through the want or scarcity of such places in this country, and in the last part of the struggle the Emperor Napoleon I. is now known to have been indisposed to facilitate exchange of prisoners between the two countries. Gathering his vast armies not only from France, but practically from the whole of the Continent, he looked with little favour on anything that would add to the numbers of the British army, which he believed to be smaller than it really was, or on anything that would increase the extent of his own overgrown forces. Still it is probable that both in the War of Secession, and in the French and English war at the beginning of the century, too little tenderness was shown to prisoners; and I hope that with the emphatic expressions which are contained in the new Manuals, and which will henceforward give the law in the field, there will be no reason in the future to make a grievance of the treatment of prisoners of war. The only complete mitigation of the misfortune of captivity is, of course, to be found either in the escape of the prisoner, on which I have said a few words, or else in some rules which should authorise his discharge from the captive condition. In all probability these methods of releasing prisoners are all descended from the system of ransom now extinct. One result of the theory that the captive had become a slave was, naturally, that if he were able he might pay to his captor such a price as would induce him to release what had become his own property. Very large Bums of money seem to have been exacted in the Middle Ages as the ransom of a mailed knight when taken prisoner. He was usually a man of birth and of wealth; but as he lost his relative importance, and as the most effective part of armies came to consist of the men-at-arms, and afterwards of mercenary troops carrying a new class of weapons, a number of rules present themselves which are intended to facilitate the voluntary discharge of the bulk of the prisoners. After the battle of Poitiers it is expressly stated that there were so many prisoners taken as to make it necessary to discharge the knights, debiting them with the amount of their ransom and not at once exacting it; and that the rest of the captives, whose number was very great indeed, were exchanged.

  Exchange has now become one of the regular customs of war, and one of the most humane and beneficial, and much disrepute is usually incurred by the refusal to admit it. At the same time, while exchange, says the text of the Manuals which I have been citing, is the ordinary mode of releasing prisoners of war, a nation is not guilty of any actual breach of the customs of war in refusing to exchange its prisoners, and may detain them to the close of the war. Exchanges of prisoners take place number for number, rank for rank, wounded for wounded, with added conditions for added conditions, such, for instance, as not to serve for a particular period. In exchanging prisoners of war such numbers of persons of inferior rank may be substituted as an equivalent for one of superior rank as may be agreed upon, but the agreement requires the sanction of the Government or of the commander of the army in the field. A prisoner of war is in honour bound truly to state to the captor his rank, and he is not to assume a lower rank than belongs to him in order to cause a more advantageous exchange, nor a higher rank for the purpose of obtaining better treatment.

  Prisoners of war are also not infrequently released through pledging their word to observe certain conditions imposed by the captor. A prisoner of war so pledging his word is said to give his parole, and if his parole be accepted by the captor, to be paroled. The usual pledge given with a parole is not to serve during the existing war. This pledge only extends to active service against the enemy. It does not refer to internal service, such as recruiting or drilling recruits, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or the civil or the diplomatic service on which a paroled person may be employed. It is laid down by the legal authorities that paroling is a voluntary contract entered into between the parties. The captor is not obliged to over to parole a prisoner of war, and a prisoner of war cannot be compelled to give his parole, but may remain a captive. It is a rule that a list of the names of officers and men paroled should always be made in writing and be carefully kept. It is further a rule that a prisoner of war has no authority to pledge himself never again to serve against a particular enemy. The pledge must be confined to a limited time, as he cannot divest himself wholly of the duty which he owes to his sovereign and country. The right of a prisoner of war to give his parole may be still further limited by the laws of his own country. If a prisoner make an engagement which is not approved of by his own Government, he is bound to return and surrender himself to the enemy. As a general rule the commanding officer has an implied authority to give his parole on behalf of himself and the officers and men under his command; an inferior officer ought not to give parole either for himself or his men without the authority of a superior officer, if such an officer be within reach. And according to the English practice a state has no power to force its subjects to act contrary to their parole; but how far it is authorised to refuse such paroles, and to force its paroled subjects back into the enemy's lines, would seem to be in principle doubtful. As a general rule it would appear advisable to admit of the validity of the paroles, but to punish the 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 country 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 infraction of rule except retaliation or, as the technical word is, reprisals. Retaliation, we are told, is military vengeance. It takes place where an outrage committed on one side is avenged by the commission of a similar act on the other. For example, an unjust execution of prisoners by the enemy may be followed by the execution of an equal number of prisoners by their opponents. Retaliation is an extreme right of war, and should only be resorted to in the last necessity. 'It may be well to notice,' says the writer I am quoting, incidentally for the purpose of reprobating it, 'the idea once prevailed that a garrison which obstinately defended a place when it had, in the opinion of the enemy, become untenable, might be put to the sword.' There is no doubt that during the Franco-German war reprisals were carried to unjustifiable lengths on both sides. The French Government has published a curious volume which reproduces all the placards which either they or others had affixed to the walls during the contest in France. At one point the Germans granted no quarter during an attack on a village, on the plea that twenty-five francs-tireurs (riflemen) had hidden in a wood near it, without any regular officer or uniform, and had shot down as many Germans as came within range of their guns. On another of these placards is a notice by a French officer to the Prussian commander of Ch漮ellerault in reference to the alleged resolve of the latter to punish the inhabitants of that place for the acts of some of the francs-tireurs. 'I give you my assurance, threat for threat, that I will not spare one of the two hundred Prussian soldiers whom you know to be in my hands.' And indeed General Chanzy, himself a gallant officer in high place, wrote to the Prussian commander of Vendorne, and stated that he intended to fight without truce or mercy because it is a question now not of fighting loyal enemies but hordes of devastators. On this great subject the Brussels Conference was able to do but little except to suggest that retaliation should only be resorted to in the most extreme cases, and should be conducted with the greatest possible humanity.

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