fessor Renault aptly remarked that most acts of war, when the element of intent is eliminated, contain all the essentials of criminal acts, and if they are forbidden by the law of nations they are analogous to ordinary crimes and may be punished as such. What deprives such acts of the element of criminality is their conformity to the rules of international law. That is to say, the killing by a soldier of a person belonging to the enemy's forces, or the taking of private property in occupied territory, are lawful acts of war only when they are done in the manner and subject to the conditions prescribed by international law; otherwise they are murder or theft, as the case may be, and their authors are liable to punishment. In short, soldiers, as well as civilians, may commit crimes during war, and it would be extraordinary to hold that they are protected by their uniform against trial and punishment. As a general rule, a soldier cannot be held criminally responsible for acts committed by him in the line of duty during war when those acts are authorized by the generally accepted laws of war; such acts are not crimes, but lawful acts of war; but if they are forbidden by the generally recognized laws and usages of war, they are not legitimate acts and they may be crimes under the common law. The United States Supreme Court has affirmed that soldiers are not liable for acts done by them in accord with the usages of civilized warfare and by military authority." It would seem to follow logically that the authors of acts in violation of these usages may be held personally responsible.

Most of the war manuals and military criminal codes recognize. that certain acts committed by soldiers in time of war are ordinary crimes, and provide for the punishment of such acts whenever the offenders fall into the hands of the authorities. Article 249 of the French Code of Military Justice, for example, declares that "every individual who, in the zone of operations, despoils a wounded, sick or dead soldier shall be punished by réclusion, and every individual who commits violence on such a soldier shall be put to death." The 6 Article cited in 25 R. G. D. I. P., p. 10. Compare, also, Garcon, 39 Revue Pénitentiaire, p. 479.

7 Dow v. Johnson, 100 U. S. 158, and Friedland v. Williams, 131 U. S. 416. 8 Compare an article by C. A. H. Bartlett entitled "Liability for Official War Crimes" in 35 Law Quar. Rev. (1919), p. 186.

provisions of the criminal code relative to murder, assault and assassination are declared to be applicable in such cases. The term "every individual" is certainly broad enough to include members of the enemy's forces who commit such acts in the zone of operations, whether they are military persons or not.

The American Rules of Land Warfare (1914) provide punishment for acts of pillage and maltreatment of the dead and wounded (Art. 112), for intentionally inflicting additional wounds upon an enemy already disabled, or for killing such an enemy, whether he belongs to the army of the United States or is an enemy captured after having committed the misdeed (Art. 181), for the wanton destruction of property (Art. 340), and for committing any one of a long list of acts, such as the use of poison, refusal of quarter, killing of wounded, maltreatment of dead bodies, ill-treatment of prisoners and of inhabitants of occupied territory, and many other offences (Art. 366). Crimes punishable by all criminal codes, such as arson, murder, theft, burglary, rape, and the like, if committed by an American soldier in a hostile country against its inhabitants, are declared to be punishable not only as at home, but, in all cases in which death is not inflicted, the severer punishment shall be preferred (Art. 378). Except as to the wounding of disabled soldiers, no express mention is made, however, of the punishment of offenders belonging to the enemy's forces, but there is little doubt that every person guilty of committing such acts against American soldiers would, if apprehended, be punished equally with those belonging to the American army.10 American practice during the Civil War was in accordance with this view.11

The British Manual of Military Law likewise enumerates a long Compare Art. 71 of Lieber's Instructions for the Government of the Armies of the United States in the Field.

10 Art. 71 declares in fact that "a prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured and for which he has not been punished by his own army."

11 As is well known, William Wirz, commandant of the Confederate prison at Andersonville, was tried by a military commission of the United States after the close of the war, on the charge of brutal treatment of Federal prisoners. He was convicted and hanged on November 10, 1865. Rhodes, History of the United States, Vol. V, p. 506.

list of war crimes which may be punished as such, irrespective of whether they are committed by British soldiers or those belonging to the enemy's forces, except that those may not be punished for such violations of the recognized rules of warfare, as are ordered by their government or commander (Art. 443).

The German Kriegsbrauch im Landkriege is none the less explicit on this point. It declares that the inhabitants of occupied territory must not be injured in life, limb, honor or freedom; that every unlawful killing, every bodily injury due to fraud or negligence, every insult, every disturbance of domestic peace, every attack on family, honor, or morality, and generally, every unlawful and outrageous attack or act of violence, are just as strictly punishable as though they had been committed against the inhabitants of one's own land. It expressly prohibits all aimless destruction, devastation, burning, and ravaging of the enemy's country, and declares that the soldier who does such acts is "an offender according to the appropriate law." Finally, it declares that the seizure and carrying away of money, watches, jewelry, and other objects of value, is considered to be criminal theft and is punishable as such.12

It being recognized that certain acts committed by soldiers during war in violation of the rules of international law are assimilable to ordinary crimes and may be punished as such, several questions are presented as to the practical application of the principle. May, for example, the courts of one belligerent try and punish offenders belonging to the forces of the enemy, and if so, shall it be the ordinary criminal courts or the military tribunals? 13 Practically all the authorities are agreed that soldiers belonging to the enemy army may be tried by the courts of the opposing belligerent for crimes committed in violation of the laws of war in the latter's territory against the persons or property of nationals of the injured belligerent,

12 Morgan, War Book of the German General Staff, pp. 148, 162, and Carpentier, Les Lois de la Guerre Continentale (Kriegsbrauch im Landkriege), pp. 104, 121, 131.

13 The Treaty of Peace provides that the military tribunals of the country of which the injured victim is a national shall have jurisdiction. The French writers are not entirely agreed. Some hold that the criminal courts may take jurisdiction; others that it belongs to the military courts.

if they fall in his hands.1 And this is the view laid down in the military manuals and military penal codes. But in the countries which follow the personal theory of jurisdiction their nationals are also punishable for crimes committed abroad. Thus, according to German law, a German soldier who committed a crime in the occupied regions of Belgium and France is liable to trial and punishment by the German courts. Could he also be tried and punished by a Belgian or French court? Renault, Pic, Garcon, Merignhac, FeraudGiraud and other French jurists maintain that jurisdiction in such cases is concurrent, that is to say, the courts of either belligerent may take jurisdiction, and the fact that the offender may already have been tried and punished by a German court does not deprive a Belgian or French court from trying him. Otherwise, offenders would often be insufficiently punished or not punished at all. It is well known that the German authorities not only approved the commission of various acts done by German soldiers in violation of the laws of war, but even encouraged them, and the instances in which such offenders were tried and punished by the German courts were distressingly rare. The Treaty of Peace expressly declares that trial by a German court of Germans charged with violation of the laws of war shall be no bar to their prosecution before the courts of the Allied Powers (Art. 228).

The right of the belligerent in whose territory, even if it be at the moment under the military occupation of the enemy, crimes are committed by enemy soldiers, to try and punish the offenders, must be admitted in the interest of justice. The fact that the territory in which the offence is committed is at the time under hostile occupation would not seem to constitute a legal impediment to the assumption of jurisdiction by the courts of the country occupied, since under the modern conception of occupation there is no extinction of sovereignty, but only its temporary displacement.15 In practice, France has

14 Beling, a German writer, in the Deutsche Juristen-Zeitung of February 1, 1915, however, denies that one belligerent may lawfully punish offenders belonging to the army of the adversary. Cited in 43 Clunet, p. 72.

15 Nevertheless, it may be remarked that the German International Society of Comparative Law and Political Economy maintains the exclusive jurisdiction of the military occupant. A soldier in enemy territory, it insists, is under the

proceeded on the assumption that its courts may take jurisdiction of crimes committed by German soldiers within French territory under German military occupation. Some cases occurred after the close of the war of 1870-71,16 and there were many instances during the late war. 17 The Treaty of Peace, as stated above, required Germany to deliver up to the Allies such offenders as they might designate. When the list of the accused was communicated to Baron von Lersner and made public in Germany it aroused such opposition that the Baron declined to deliver it to his government and announced his intention of resigning. In the face of an opposition which threatened to render impossible the execution of this provision of the treaty, the Supreme Council agreed 18 to allow the accused to be tried by German courts. In consequence, the whole project for the trial of the Germans in the courts of the Allied and Associated Powers fell to the ground.

If there is no doubt that a belligerent has jurisdiction over crimes committed by enemy troops in his own territory, even though it be under hostile occupation, what shall we say as to his right to try and punish persons belonging to the enemy's forces who commit criminal acts against the soldiers of the former in a foreign country? exclusive jurisdiction of the laws of his own country, and he cannot be punished by the courts of the opposing belligerent. Berliner Tageblatt, Feb. 10, 1915, quoted by Merignhac, article cited, p. 37.

16 Renault, article cited, p. 18; Merignhac, article cited, p. 35.

17 On Feb. 26, 1915, a German soldier was sentenced to death by a French military court at Rennes for pillage, incendiarism and assassination of a wounded soldier on the field of battle in Belgium. Other cases are mentioned by Merignhac, article cited, p. 35. In May, 1919, a former German captain committed suicide while being held for trial by a French court on the charge of looting in France during the war. In November, 1919, five officers of the German army were arrested by the French military authorities in Germany and returned to France for trial on the charge of pillage and robbery in French territory during the German occupation thereof. A press dispatch from Lille, dated Nov. 20, 1919, stated that Allied officers were searching for 150 other Germans who were charged with similar offences.

18 The list of the accused contained the names of 896 persons, of whom 97 were demanded by England, 334 by Belgium and France each, 29 by Italy, 57 by Poland, and 41 by Roumania. Among the accused were Generals Hindenberg, Ludendorff and von Mackensen, Prince Rupprecht of Bavaria, the Duke of Würtemburg, ex-Chancellor Bethmann Hollweg, and a number of admirals, including von Tirpitz.