¹ The New York Times, May 9,1945.

² United States, Treaty Series, No. 539; War Department Technical Manual 27–251, pp. 1,15, 17.

³ Same, pp. 9, 11.

⁴ Spaight, J. M., War Rights On Land, 1911, pp. 51–53 Google Scholar.

⁵ It was proposed that this qualification be added to Article 9 of the Brussels Declaration which corresponds to Article 1 of the Hague Regulations; Brussels Blue Book, p. 162.

⁶ Same, at p. 172.

⁷ Spaight, note 4, at p. 51; Bordwell, , The Law of War Between Belligerents, 1908, p. 106 Google Scholar.

⁸ Same.

⁹ Brussels Blue Book, p. 294.

¹⁰ Fauchflle, P., Droit International Public, 1921, Sec. 1152; Scott, J. B. Proceedings of The Hague Conferences, pp. 54, 55, 547–553Google Scholar. The Hague Peace Conferences of 1899 and 1907.

¹¹ Scott, p. 54.

¹² Scott, pp. 54, 55.

¹³ Spaight, War Rights on Land (1922) pp. 54–55.

¹⁴ See note 11, above.

¹⁵ Spaight, pp. 325, 326.

¹⁶ Wheaton, H., Elements of International Law, ed. by Lawrence, T. J., 1863, p. 595 Google Scholar; Halleck, , International Law and Laws of War, 1861, pp. 386, 387Google Scholar; Lieber, “ Guerrilla Parties” in his Miscellaneous Writings, pp. 281, 282; Spaight, pp. 61, 65, (n. 2); 1937–, Vol. II.

Oppenheim, L., International Law, ed. by McNair, 1928, Sec. 60; same, ed. by Lauterpacht, 194–, Secs. 57,254; Hackworth, G., Digest of International Law, Vol. I, p. 319 Google Scholar.

¹⁷ The requirement that combatants serve some kind of government does not mean that they must be directly authorized by their government as members of its regular armed forces. The condition stated in Article 1 of the Hague Regulations that lawful combatants must be commanded by a person responsible for his subordinates is regarded as satisfied without direct state recognition. (British Manual of Military Law, 1929, Amendment 12, par. 22.) However, this is merely a recognition of the fact that irregular troops may spontaneously arise during a war in which their government is engaged, and does not do away with necessity for the existence of the government.

¹⁸ Gentili, A., De Jure Belli Libri Tres, Book I, Chapter III.

¹⁹ Same, Book I, Chapter IV.

²⁰ 2 Westlake, J., International Law, 1913, (2d Ed.), pp. 1, 2Google Scholar.

²¹ Oppenheim, International Law, 1940 ed., Sec. 254.

²² G. O. No. 100, April 24, 1863.

²³ See Davis, G. B., “Doctor Francis Lieber’s Instructions,” in this Journal, Vol. I (1907), at pp. 22, 23Google Scholar.

²⁴ Oppenheim, 1928, (4th ed.) Sec. 60.

²⁵ See G. O. No. 100, April 24,1863, par. 81; Lieber, as cited, pp. 279,280,290,291.

^25a “ Note 2, above.

^25b There are innumerable ways in which combatants can violate the laws of war, many of which are set forth in the War Department Rules of Land Warfare. War Department, Field Manual, 1940, pp. 27–10, pars. 345–359. That there are others is recognized in Ex Parte Quirin, 317, U. S. 1 (1942). See also G. O. No. 100, April 24, 1863, and at pp. 279, 280.

²⁶ The customary practice of nations constitutes evidence of international law. See, Revised Statutes of the Permanent Court of International Justice, Article 38, which states: “The Court shall apply: … 2. International custom, as evidence of a general practice accepted as law. ” Hudson, M. O., The Permanent Court of International Justice, 1920–1942, 1943, 677. See also Preamble to Hague Convention Number IV, in note 3, above.

²⁷ Smith, J. H., The War With Mexico, New York, 1919, Vol. II, pp. 168–169, 421, 423Google Scholar.

²⁸ Sen. Exec. Doc. No. 52, 30th Cong., 1st Sess.

²⁹ General Scott’s Orders, 1847–1848, Book 41 ½, United States Archives.

³⁰ Chynoweth, W. H., The Fall of Maximilian, 1872, p. 51 Google Scholar.

³¹ Cong. Globe, 40th Cong., 1st Sess., 1867, 598.

³² Winthrop, W., Military Law and Precedents, 1920, 798 Google Scholar, N. 62.

³³ Official Records of the War of the Rebellion, Series IV, pp. 1094, 1095.

³⁴ Winthrop, p. 783, n. 53, 54.

³⁵ 17 Official Records of the War of the Rebellion, Series 1, Part 2, p. 69.

³⁶ Bowman, and Irwin, , Sherman And His Campaign, 1865, 234 Google Scholar.

³⁷ Winthrop, p. 784, n. 57.

³⁸ 2 Sheridan, P. H., Personal Memoirs of P. H. Sheridan, p. 208. Smith surrendered on May 26, 1866.

³⁹ Edwards, H. S., Germans In France, as cited in 2 Halleck, H. W., International Law, 1878, p. 8, n. 5; Spaight, p. 42.

⁴⁰ Robinson, G. I., The Betrayal of Metz, p. 231 Google Scholar, as quoted in Spaight, p. 43, n. 2

⁴¹ Edwards, H. S., Germans In France, as cited in 2 Halleck, H. N., International Law, 1878, p. 8.

⁴² 2 Revue De Droit International, p. 663, as quoted in Bordwell, p. 91.

⁴³ See Spaight, pp. 43, 44.

⁴⁴ 1 Annual Report of Major General Arthur MacArthur, Commanding, Division of the Philippines and Military Governor, Manila, 1900, p. 1.

⁴⁵ Same, p. 2.

⁴⁶ Some of the methods employed by the guerrillas are indicated by the following excerpts from General MacArthur’s report (same):

“ The practice of discarding the uniform enables the insurgents to appear and disappear almost at their convenience. At one time they are in the ranks as soldiers, and immediately thereafter are within the American lines in the attitude of peaceful natives, absorbed in a dense mass of sympathetic people, speaking a dialect of which few white men, and no Americans, have any knowledge (same, p. 2) … Of course, under the conditions described, all regular and systematic tactical operations ceased, but a hostile contact was established throughout the entire zone of activity, an infinite number of minor affairs resulted, some of which reached the dignity of combats … the casualties arising from this irregular warfare in the American army between November 1, 1899, and September 1, 1900, were 268 killed, 750 wounded, 55 captured; the Filipino losses for the same time, as far as of record, 3,227 killed, 694 wounded, 2,864 captured. (same, p. 3) … most of the towns secretly organized complete insurgent municipal governments, to proceed simultaneously and in the same sphere as the American governments, and in many instances through the same personnel; that is to say the presidents and town officials acted openly in behalf of the Americans and secretly in behalf of the insurgents, and, paradoxical as it may seem, with considerable apparent solicitude for the interests of both … at the same time they were exacting and collecting contributions and supplies and recruiting men for the Filipino forces, and sending all obtainable military information to the Filipino leaders. … In other words, the towns, regardless of the fact of American occupation and town organization, are the actual bases for all insurgent military activities; and not only so in the sense of furnishing supplies for the so-called flying columns of guerrillas, but as affording secure places of refuge. Indeed it is now the most important maxim of Filipino tactics to disband when closely pressed and seek safety in the nearest barrio; a manoeuver quickly accomplished by reason of the assistance of the people and the ease with which the Filipino soldier is transformed into the appearance of a peaceful native, as referred to in a preceding paragraph” (same, p. 5).

⁴⁷ Same, Appendix I, p. 2.

⁴⁸ See, Warner Barnes and Co. v. U. S., 40 Ct. Cl. 1, 29 (1904), reversed, 197 U. S. 419, 428 (1905).

⁴⁹ Report of General MacArthur, note 44 at p. 8.

⁵⁰ Same, at p. 9.

⁵¹ General Orders, Division of The Philippines, 1900.

⁵² Headquarters Division of The Philippines, G. O. No. 197, July 27, 1901; CM 26064.

⁵³ G. O. 9, 82, 91, 108, 137 (1900); G. O. 56, 63, 94 (1901).

⁵⁴ G. O. 57 (1901).

⁵⁵ G. O. 9, 77, 98 (1900).

⁵⁶ G. O. 77, 103 (1900).

⁵⁷ G. O. 115 (1900); G. 0. 69 (1901).

⁵⁸ G. O. 77 (1900).

⁵⁹ G. O. 77, 116 (1901).

⁶⁰ G. O. 157 (1900).

⁶¹ G. O. 81, 137, 147 (1900); G. O. 25, 38 (1901).

⁶² G. O. 42, 95, 120 (1900).

⁶³ G. O. 108, 13, 137 (1900); G. O. 37 (1901).

⁶⁴ G. O. 129 (1900); G. O. 37 (1901).

⁶⁵ G. O. 82, 92 (1900).

⁶⁶ G. O. 17 (1901).

⁶⁷ G. O. 56, 57, 59, 69, 71, 83, 151 (1900).

⁶⁸ G. O. 9, 81, 98, 108, 137, 147 (1900); 25, 38, 63, 94 (1901).

⁶⁹ Proclamations of Lord Roberts as quoted in Spaight, note 13 at pp. 330, 331.

⁷⁰ Same, p. 331.

⁷¹ Same, p. 64.

⁷² 56 Parliamentary Papers, 1900, od. 426, as cited in Bordwell, p. 146.

⁷³ Papers on Martial Law, South Africa, cd. 981, 16 as quoted in Spaight, p. 62.

⁷⁴ Same, p. 201.

⁷⁵ De Wet, C., Three Years War, pp. 3–6–308Google Scholar.

⁷⁶ Spaight, p. 65.

⁷⁷ Vol. 5, 321.

⁷⁸ 2 Wilson, H. W., After Pretoria: The Guerilla War, p. 635; Spaight, p. 65.

⁷⁹ Verordnungsblatt, 194–, No. 9, 128, as quoted in Lemkin, R., Axis Rule in Occupied Europe, 1944, p. 478 Google Scholar.

⁸⁰ Monitorul Oficial, No. 161, July 1–, 1941, quoted same, at p. 566.

⁸¹ Verordnungsblatt Fur Das Besetzte Jugoslawische Gebiet, No. 1, 1941, 4, quoted same, p. 597, 598.

⁸² Verordnungsblatt Des Befehlshabers Serbien, No. 27,1941,19, quoted same, pp. 598, 599.

⁸³ The New York Times, May 18, 1941, p. 1, col. 1.

⁸⁴ The New York Times, June 12,1944, p. 7, cols. 2, 3.

⁸⁵ Same, June 18,1945, p. 1, col. 6.

⁸⁶ Same, June 28, 1944, p. 7, cols. 1–3.

⁸⁷ Same, July 16, 1944, p. 23, col. 5.

⁸⁸ Washington Post, April 15, 1945.

⁸⁹ The New York Times, April 20, 1945.

⁹⁰ Associated Press report, quoted in Yank, April 27, 1945, p. 19.

⁹¹ Oppenheim, L., International Law, ed. by McNair, 1928, sec. 60. In accord is Spaight, p. 65. But see, Wheaton, H., International Law, 1944, p. 103 Google Scholar.

⁹² Cf., Prize Cases, 67 U.S. 635, 666–667 (1862), where it is stated:

“The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other.

“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents— the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.

“The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.”