LECTURE VIII.THE MODERN LAWS OF WAR.In my last lecture I explained the detestation which newly-invented instruments of war sometimes occasioned in olden days, and of the severity with which soldiers who employed them were sometimes treated. The Manual for the use of officers in the field, on which I am basing these lectures, states the general rule on the subject of new warlike inventions in the following terms: 'With the exception of the means above stated to be prohibited. any instruments of destruction, whether open or concealed, partial or widespread in their effects, shells of any weight, torpedoes, mines, and the like, may legitimately be employed against an enemy; and seeing that the use is legitimate, there is no reason why the officers or soldiers employing them should be refused quarter, or be treated in a manner worse than other combatants.' The means above sta">

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Henry Maine's International Law(4)
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Lecture VIII : The Modern Laws of War

LECTURE VIII.
THE MODERN LAWS OF WAR.
In my last lecture I explained the detestation which newly-invented instruments of war sometimes occasioned in olden days, and of the severity with which soldiers who employed them were sometimes treated. The Manual for the use of officers in the field, on which I am basing these lectures, states the general rule on the subject of new warlike inventions in the following terms:

'With the exception of the means above stated to be prohibited. any instruments of destruction, whether open or concealed, partial or widespread in their effects, shells of any weight, torpedoes, mines, and the like, may legitimately be employed against an enemy; and seeing that the use is legitimate, there is no reason why the officers or soldiers employing them should be refused quarter, or be treated in a manner worse than other combatants.' The means above stated to be prohibited are poisoning water or food, assassination, and the use of explosive bullets above certain weight. It is added that 'a humane commander will, so far as the exigencies war admit, endeavour to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only, but practically no rule can be laid down on the subject.'

The latest instance in which mines of an extent and destructiveness far exceeding the immediate object were used, was one which attracted but little notice in this country owing to the distance of the locality at; which the explosion took place. It happened, however, that in the course of the advance of the Russian armies through the Tartar countries to the frontier of Afghanistan a well-known Russian commander, much beloved and respected, General Skobeleff, found his progress obstructed by a great fortification erected by a large tribe of Tartars. This was the fortress of Akhal Teke, an enormous construction of burnt clay. It would have taken much time, and cost many lives, to attack it by any of the recognised methods of capture. It appeared, however, that the tribe which had erected this fortress had no conception whatever of a mine, and Skobeleff passed several weeks before these walls in excavating mines of an enormous extent. At last, the besieged having no suspicion that they were likely to be attacked in any way except that known to them, the mines were exploded, and the greater part of the fortress and a vast number of persons inside it were at once destroyed. The remainder of the tribe received very severe treatment from the successful besiegers, and but a small portion escaped. It is sad to think that this example of warlike severity was set by the general of the Power which, it would be only just to admit, has done most to mitigate the cruelties of war. Skobeleff defended himself on the ground that what he had done was true humanity rather than severity, and that in no other way could a tribe which was not only formidable in war, but had done much to prevent the even temporary establishment of peace in those countries, be reduced. But, no doubt, in all operations of war which are conducted under the eyes of civilised men, who watch them through the press and the telegraph, the practice is stated in these Manuals, that 'a humane commander will, so far as the exigencies of war admit, endeavour to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only; but practically,' it is cautiously added, 'no rule can be laid down on the subject.' The general principle is -- and this is the conclusion of all these writers -- that in the mode of carrying on the war no greater harm shall be done to the enemy than necessity requires for the purpose of bringing him to terms. This principle excludes gratuitous barbarities, and every description of cruelty and insult that serves only to exasperate the sufferings or to increase the hatred of the enemy without weakening his strength or tending to produce his submission.

An interesting question for us to ask ourselves is, whether in the future history of warfare there is likely to be any such proscription of weapons through sheer dislike or horror as was common in the Middle Ages. I am myself not convinced but that hereafter there may be a very serious movement in the world on the subject of some parts of the newly-invented armament. Let us just take into our consideration two new inventions, which have shown themselves capable of causing terrific destruction -- two new implements of naval warfare, the Ram and the Torpedo. Neither has been extensively tried at present -- one hardly at all. At the battle of Lissa in the Adriatic, on the coast of North America during the War of Secession, and also on the western coast of South America, the ram has been tried, and has proved to be an instrument whose effects can hardly be measured. Ships have been sunk in a moment or two by its use. Of the use of the torpedo, however, we have hardly any example. Among military and naval men there is still great controversy as to its effectiveness. Torpedoes during the Russo-Turkish war were laid down in the mouths of the Danube in great quantities, but the Russians had no difficulty in removing them without injury to themselves; and all over the World it is still a question whether the defence or the attack, as these writers put it, is the stronger in their case. In this country, I think, which is confident of the possession of the most formidable forms of this implement, there is at present considerable belief in its effectiveness in war; but in France, on the other hand, the opinion on the whole tends in the other direction. French naval writers maintain emphatically that, as yet, it has not been proved that the torpedo is a weapon which can be used on a large scale with safety by a naval combatant; but these French writers have raised a question which is extremely interesting, to us with regard to the discussion which I am just closing. 'You must remember,' says one of them, a celebrated French admiral, 'that a torpedo is used under water and in the dark. Now, are you quite sure that you will always aim your attack against the ship which you intend to destroy? Suppose that the commander of a torpedo fleet makes his way to a force of ships lying off a particular coast, and one of his torpedoes is successfully fixed to the vulnerable parts of one of them. The electric spark is applied, and the ship and everybody on board it is blown into the air or sent into the depths of the sea! Supposing, however, immediately afterwards it is discovered that the ship which has been destroyed is a neutral, perhaps one of the finest vessels of a friendly Power! Do not you think that there would be a thrill of horror through the civilized world, and are you sure teat a combination of civilised nations will not be formed which will condemn the torpedo to the same proscription, and perhaps by the same means, as far more merciful weapons were condemned in the Middle Ages?' For my part, I think this reasoning exceedingly strong, and I am not yet convinced that warlike invention may not reach some point at which the natural feelings of humanity will cause it to be arrested.

I pass now briefly to a portion of these Manuals which in spirit is a good deal connected with that which I am placing before you. It is the chapter which they contain on 'Spies and Stratagems.' A spy, they all say, in a military sense is a person who is found in a district occupied by the enemy collecting secretly, and in disguise, information respecting his condition and designs, with a view of communicating such information to the opposing force. Secrecy and disguise are the essential characteristics of a spy in the military sense. An officer in uniform, however nearly he approaches to the enemy, or however closely he observes his motions, is not a spy, and if taken must be treated as a prisoner of war. Spies when taken are punishable with death, either by hanging or shooting. The services of spies must be secured by rewards, as no one can be called upon to undertake the office of spy as a matter of duty or against his will. A commander may, course, avail himself of information if given by a traitor. How far he is justified in endeavouring to suborn treachery, is a more difficult question. Such transactions are spill by Vattel to be not uncommon, though never boasted of by those who have entered on them. An officer may feign to be a traitor for the purpose of ensnaring an enemy who attempts to corrupt his fidelity; but if he voluntarily makes overtures to the enemy under presence of being a traitor, and then deceives the enemy with false information, his conduct is dishonourable, and contrary to the customs of war. Prisoners of war cannot be punished or ill treated for refusing to disclose the number or condition of the body to which they belong. False attacks, the dissemination of false information or pass-words when not perfidious, are permissible by the customs of war. Indeed, to take a town by surprise, or to turn a position by a stratagem, is more glorious nowadays to a General than to effect the object by force, in proportion as to win a great battle with little slaughter is more creditable to the skill of the General than to gain a bloody victory. It must, however, be observed that no deceit is allowable where no express or implied engagement exists that the truth should be acted or spoken. To violate such an engagement is perfidy, and contrary alike to the customs of war and the dictates of honour. For example, it is a gross breach of faith and an outrage against the customs of war to hoist a Hospital flag on buildings not appropriated to the wounded, or to use a place protected by a Hospital flag for any other purpose than a Hospital.

The opinion here expressed, that successes gained through a spy are more creditable to the skill of a commander than successes in drawn battles, was very largely held in the last century, and military writers of great celebrity have left accounts of the successful use which they made of spies and their services. Frederick the Great of Prussia, in November 1760, published Military Instructions for the use of his Generals, which were based on a wide practical knowledge of the matter. He classed spies as 'ordinary spies,' 'double spies,' 'spies of distinction,' and 'spies by compulsion.' By 'double spies' he meant spies who also pretended to be in the service of the side they betrayed; by ' spies of distinction' he meant officers of Hussars whose services he found useful under the peculiar circumstances of an Austrian campaign. When he could not procure himself spies among the Austrians owing to the careful guard which their light troops kept around their camp, the idea occurred to him, and he acted on it with success, of utilizing the suspension of arms that was customary after a skirmish between Hussars, to make those officers the means of conducting epistolary correspondence with the officers on the other aide. 'Spies of compulsion' he explained in this way. When you wish to convey false information to an enemy, you take a trustworthy soldier and compel him to pass to the enemy's camp to represent there all that you wish the enemy to believe. You also send by him letters to excite the troops to desertion; and in the event of its being impossible to obtain information about the enemy, Frederick prescribes the following: choose some rich citizen who has land and a wife and children, and another man, disguised as his servant or coachman, who understands the enemy's language. Force the former to take the latter with him to the enemy's camp to complain of injuries sustained, threatening him that if he fails to bring the man back with him after having stayed long enough for the desired object his wife and children shall be hanged and his house burnt. 'I was myself,' he adds, 'constrained to have recourse to this method, and it succeeded.' The humanity and good faith of Frederick the Great have never been celebrated; but how much of these principles survive to our own times we can gather from Lord Wolseley's 'Soldier's Pocket Book.' 'The best way,' he suggests, 'to send out a spy is to send a peasant with a letter written on very thin paper, which maybe rolled up so tightly as to be portable in a quill an inch and a half long, and this precious quill may be hidden in the hair or beard, or in a hollow at then end of a walking stick. It is also a good plan to write secret correspondence in lemon juice across a newspaper or the leaves of the New Testament. It is then safe against discovery, and will become legible when held before a fire or near a red-hot iron. As a nation,' adds Lord Wolseley, 'we are brought up to feel it a disgrace even to succeed by falsehood. The word "spy" conveys something as repulsive as "slave." We keep hammering along with the conviction that "honesty is the best policy," and that truth always wins in the long run. These sentiments do well for a copy-book, but a man who acts upon them had better sheath his sword for ever.'

One of the most important subjects of which the new Manuals treat is the person of the enemy. The enemy, it is laid down, consists of armed forces and of the unarmed population. The first principle of war is that armed forces as long as they resist may be destroyed by any legitimate means. The right of killing an armed man exists only so long as he resists. As soon as he submits, he is entitled to be treated as a prisoner of war. Quarter should never be refused to men who surrender, unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death; and when so guilty they should, whenever practicable, be taken prisoners and put upon their trial before being executed, as it is seldom justifiable in a combatant to take the law into his own hands against an unresisting enemy. Most of you, I imagine, are aware that this principle, stated in this broad way, is quite modern. Most of us have learnt, when children, touching stories of the refusal of quarter to garrisons that had surrendered in our avers of succession with France. Many of us remember Froissart's story of six citizens of Calais whom Edward III was with difficulty restrained from hanging for the obstinate resistance they had made to the siege of their town. In point of fact, during this war, and the later war of Henry V against France, even when the successful General was disposed to be merciful, he generally reserved a certain number of the besieged, though a small number, for execution. When Rouen surrendered to Henry V the latter stipulated for three of the citizens to be left at his disposal, of whom two purchased their lives, but the third was beheaded. When the same king, the year following, was besieging the castle of Montereau, he sent twenty prisoners to treat with the Governor for a surrender; but when the Governor refused to treat even to save their lives, and when, after taking leave of their wives and families, they were escorted back to the English army, the King of England ordered erected, and had them all hanged in sight of those within the castle. When Meaux surrendered to the same king, it was stipulated that six of the bravest defenders should be delivered up to justice, four of whom were beheaded at Paris, and its commander at once hanged on a tree outside the walls of the city. No doubt this severity was due in a great degree to the hard measure which in those days was always dealt out to a force which had resisted an attack when there was no chance of success. And this is one ground on which the savage practices which accompanied storms and sieges were explained; but it is always to be recollected that in these French and English wars there was another cause of extreme truculence. In the minds of those who waged them they were wars of succession, and questions therefore of the faith and submission due to a sovereign mixed themselves up with the ordinary considerations of the field. On reading the accounts of them carefully, the special severities of our Edward III and our Henry V may be seen to be constantly explained by the successful king's belief that he was dealing with traitors who had surrendered themselves; and in fact it appears to have been the conviction that the population attacked owed legally fealty to the General of the army attacking them, which led specially to the cruelties of these wars, just as a conviction of the lawfulness of the severest punishment for heresy and infidelity led to the savageness of the wars of religion. There is no doubt that at present the Manuals state the practice correctly, that quarter ought never to be refused to men who surrender, unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death, and when so guilty they should whenever practicable be taken prisoners and put upon their trial before they are executed, for it is seldom justifiable for a combatant to take the law into his own hands against an unresisting enemy. The point was one which was largely discussed at the Conference of Brussels, and it was proposed by some of the delegates that even spies should be no longer executed when taken, but should always be treated as prisoners of war.

We come now to portions of these Manuals of warlike customs which are pleasanter reading. 'The wounded must not only be spared, but humanity commands that if they fall into the hands of their opponents the care taken of them should be second only to the care taken of the wounded belonging to the captors. Surgeons and others in attendance on the wounded, though forming part of the armed forces, are exempted from the liability of being attacked unless they divest themselves of their non-combatant character by actually using arms, in which case they may be treated as part of the combatant body. The same amenity and under the same conditions should be extended to camp followers, and other persons in attendance on the army but not bearing arms,'

The first and last parts of this paragraph give the results of the Geneva Convention, the furthest point which has at present been reached by humane doctrine in the actual conduct of war. This Convention was signed on August 22, 1864. It states that it was drawn up for the amelioration of the condition of the wounded of armies in the field. I will read you a few of its principal provisions:

'Ambulance end military Hospitals shall be acknowledged to be neutral, and as such shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or Hospitals should be held by a military force. Persons employed in Hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality while so employed, and so long as there remain any wounded to bring in and to succour.' The persons designated in the preceding article may even after occupation by the enemy continue to fulfil their duty in the Hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Under such circumstances, when those persons shall cease from their functions they shall be delivered by the occupying army to the outposts of the enemy. As the equipment of military Hospitals remains subject to the laws of war, persons attached to such Hospitals cannot on their withdrawing carry away any articles but their own private property; and under the circumstances an ambulance shall, on the contrary, retain its equipment. Inhabitants of the country who may bring help to the wounded shall be respected and remain free. The Generals of the belligerent Powers shall make it their care to inform the inhabitants of the appeal addressed to their humanity, and of the neutrality which shad be the consequence of it. Any wounded when entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders-in-chief shall have the power to delver immediately to the outposts of the enemy soldiers who have been wounded in an engagement, when circumstances permit it to be done, and with the consent of both parties. Those who are recognised, after their wounds are healed, as incapable of serving, shad be sent back to their country. The others may also be sent back on condition of not again bearing arms during the continuance of the war. Evacuations, together with the persons under whose directions they take place, shall be protected by absolute neutrality. A distinctive and uniform dag shall be adopted for Hospitals, ambulances, and evacuations. It must on every occasion be accompanied by the neutral flag. A badge for the arm shall also be allowed for individuals neutralized; but the delivery thereof shall be left to the neutral authority. The flag and the badge shall bear a red cross on a white ground.

The conduct of the Hospitals established under the Geneva Convention has been carried on by surgeons, nurses, and military servants, with the greatest self-sacrifice and with the greatest enthusiasm. Nothing, I hope, will ever occur to provoke retrograde measures with regard to so great a reform. At the same time there are some drawbacks, from a military point of view, to the application of the provisions of the Geneva Convention, on which I will say a few words in conclusion. I am told on very excellent authority that it is very difficult to persuade military commanders in the field of the perfect fairness and good faith with which these provisions are carried into action. You may not fire on a Geneva Hospital or ambulance, and yet the Geneva Hospital, with its ambulances and appurtenances generally kept a good deal in motion, is a very extensive set of structures, and protects a considerable portion of the field from the line of fire. Generals are apt to think, or to persuade themselves, that the Hospital has been put in a locality either expressly designed to cover the fire of one party or another, or to prevent the fire of one party from being as effective as it might be. There is, I am persuaded, a great deal of delusion about these suspicions, delusion unhappily of the nature which is constantly arising in the minds of men actually engaged in a deadly struggle. All that we have a right to say here is, that the most abundant good faith should be. used in the localization and use of these beneficent mitigations of the hardships of war, and that no punishment would be too severe for an officer, no matter his rank, who knowingly used them for the purpose of inflicting warlike injury on an opponent.

Lecture IX : Rules as to Prisoners and Quarter

LECTURE IX.
RULES AS TO PRISONERS AND QUARTER.
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 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 Chellerault 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.

Lecture X : Mentions of Belligerents on Land

LECTURE X.
MENTIONS OF BELLIGERENTS ON LAND.
The Brussels Conference failed to solve a number of questions of modern origin which have arisen as to the status of the civil population of a country when, by rising en masse, they take upon themselves military duty in resistance to an invader. The trenchant German scheme, which was submitted to the Conference, failed to command support, and a number of rules, which were not open to the same objections as those which the German delegate proposed, were not universally acceptable. But, as in the case of many other recommendations emanating from the Conference, a large number of their proposals are found in the Manuals of warfare which so many civilised Governments have now placed in the hands of their officers. As regards the most important point which had to be settled, there is a general tendency to advise that a uniform of some kind shall be adopted by the non-military population, and that the corps which they form shall be treated with humanity, and not shot or hanged as mere marauders.

These questions do not become of much practical importance till a large part of the invaded country has been occupied by the forces of the invader. In the former lecture I took the investment of Paris by the German troops as exemplifying the point of a war at which this branch of law assumes a new importance. We have now to consider the legal position of that part of the invaded country which is under military occupation by the enemy. The view of a country in such a position has much changed in modern tinges. Of old the theory of the position of an invaded country was much affected by the Roman Law. Land, like everything else, might be captured by occupancy (occupatio) subject to what the Romans called post-liminium, a legal rule which is generally described as embodying a legal fiction under which a citizen who should after captivity return to his country, or property which after capture should fall again into the hands of the restored owner, reverts to his or its antecedent position. Thus territory militarily occupied was regarded as passing to the occupant subject to the ill-defined risks arising from the return of the former sovereign. Frederick the Great, when he had invaded a country, usually compelled the population to supply him with recruits; and there is one instance in which the King of Denmark sold what were then two Swedish provinces -- Bremen and Verden -- to Hanover. The inconvenience of this condition of the law was much felt after the close of the Seven Years' War, and the position of a country once invaded, from which the enemy has retired, was always settled by particular treaty. Manifold as have been the variations of boundary in Europe, they are now always regulated by treaty at the end of a war, and even in the East it is now not easy to find territory held by the rights arising from simple conquest. The only instance of a new province held on the mere title of conquest, and incorporated with the other territories of the conquering country, is the Indian province long known as Lower Burmah. The King, who still retained a part of his territories, which he reigned over at Mandalay, refused, even though utterly defeated, to enter into any treaty of cession, and after the second war Lower Burmah was treated as already part of the general Indian territory.

I have said that the most critical moment in great wars of invasion is that at which a large part of the territory is militarily occupied. There is very much on the subject in the modern Manuals of war. The following is a summary of the law.

An invader is said to be in military occupation of so much of a country as is wholly abandoned by the forces of the enemy. The occupation must be real and not nominal, and it is laid down that a 'paper' occupation is even more objectionable in its character and effects than a 'paper' blockade On the other hand, the occupation of part of a district from the whole of which the enemy has retired, is necessarily an occupation of that district, as it is impossible in any other way to occupy any considerable extent of territory. The true test of military occupation is exclusive possession. For example, the reduction of a fortress which dominates the surrounding country gives military possession of the country dominated, but not of any other fortress which does not submit to the invader. Military occupation ceases as soon as the forces of the invader retreat or advance in such a manner as to quit their hold on the occupied territory. In the event of a military occupation the authority of the regular Government is supplanted by that of the invading army. The rule imposed by the invader is the law of war. It is not the law of the invading state nor the law of the invaded territory. It may in its character be either civil or military, or partly one and partly the other. In every case the source from which it derives its authority is the same, namely the customs of war, and not any municipal law; and the General enforcing the rule is responsible only to his own Government and not to the invaded people. The rule of military occupation has relation only to the inhabitants of the invaded country. The troops and camp followers in a foreign country which has been occupied let us say by the English army remain under English military law, and are in no respects amenable to the rule of military occupation. As a general rule, military occupation extends only to such matters as concern the safety of the army, the invader usually permitting the ordinary civil tribunals of the country to deal with ordinary crimes committed by the inhabitants. The course, however, to be adopted in such a case is at the discretion of the invader. He may abrogate any law in the country, and substitute other rules for it. He may create special tribunals, or he may leave the native tribunals to exercise their usual jurisdiction. The special tribunals created by an invader for carrying into effect the rule of military occupation in the case of individual offenders are usually military courts, framed on the model and carrying on their proceedings after the manner of courts-martial; but of course, technically, courts so established by an English General would not be courts-martial within the meaning of our Army Acts. The courts would be regulated only by the will of the General. The most important power exercised by an invader occupying a territory is that of punishing, in such manner as he thinks expedient, the inhabitants guilty of breaking the rules laid down by him for securing the safety of the army. The right of inflicting such punishment in case of necessity is undoubted; but the interest of the invader no less than the dictates of humanity demand that inhabitants who have been guilty of an act which is only a crime in consequence of its being injurious to the enemy, should be treated with the greatest leniency consistent with the safety and well-being of the invading army.

The American rules on the subject of the government of armies in the field say; Martial law, or in other words the law of military occupation, should be less stringent in places and countries fully occupied and fairly conquered. Greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed even in the commander's own country when face to face with an enemy, because of the absolute necessities of the case and of the paramount duty of defending the country against invasion. To save the country is of course paramount to all other considerations.

In conclusion, it must be borne in mind that an invader cannot, according to the customs of war, call on the inhabitants to enlist as soldiers or to engage actively in military operations against their own country. The theory in its full sway is this. In a country militarily occupied all executive and legislative power passes to the invader. It does not follow that he exercises these powers, but theoretically they belong to him. The Duke of Wellington made some observations in the English Parliament which are recognized as authoritative in all the modern Manuals. 'Martial law,' he said, 'is neither more nor less than the will of the General who commands the army; in fact, martial law means no law at all. Therefore the General who declares martial law and commands that it shall be carried into execution is bound to lay down distinctly the regulations and rules according to which his will is to be carried out. Now, I have in no country carried out martial law; that is to say, I have not governed a large proportion of a country by my own will. But then what did I do? I declared that the country should be governed according to its own national law, and I carried into execution my so declared will.' Comparing this state of the law with that from which we started, it is evident that the ancient practice and theory of occupation have much changed. They have not now any connection with Roman Law, nor would any one nowadays think of borrowing the Roman Law for their rules. The modern practice rests, in fact, upon military necessity, and is circumscribed by the military necessity. An invading General can do certain things because, by the hypothesis, there is no one else to do them. In England the legal rule is the same in peace as in war. The soldiery can always be employed in our own country when sufficient necessity can be shown for using them through the temporary or local abeyance of civil authority.

This state of things comes to an end with the cessation of war. Wars do not in our day linger on, as did the old wars of succession and the old wars of religion. There is always within some moderate time a treaty of peace. Indeed, the modern difficulty in closing a war is, sometimes, to find an authority capable of making peace. This difficulty was much felt by the Germans after they had proceeded a great length in their conquest of France in the last war. They made up their minds that the only authority which could make a treaty on the part of France which Frenchmen would respect was a National Assembly, and therefore before making peace they insisted that such an Assembly should be elected.

I think it may be useful to say a few words on the treaties of peace by which war is nowadays brought to an end. In modern times a peace is always preceded by an armistice, and an armistice by a suspension of arms, which is only a shorter armistice. The rule laid down by the international lawyers is that a state of war is brought to an end by a treaty of peace or by a general truce. A treaty of peace puts an end to the war and absolutely abolishes the subject of it; a general truce puts an end to the war, but leaves undecided the question which gave occasion to it. In modern times these general truces have fallen out of use. They were common enough in the Middle Ages, especially between the Turks and their Christian enemies, because the religion of neither party permitted the combatants to conclude a definite treaty of peace. It has always been laid down that treaties and general truces can only be concluded by the sovereign power of a state, and not that of any other authority. An armistice is defined as a partial truce. The power to conclude an armistice is essential to the fulfilment by the commanding officer of his official duties, and therefore he is presumed to have such power delegated to him by his sovereign without any special command. This presumption of authority is held to be so strong that it cannot be rebutted by any act of the sovereign. If an officer makes an armistice in disobedience to orders received from his sovereign, he is punishable by that sovereign; but the sovereign is bound by the armistice, inasmuch as the enemy could not be supposed to have known of the limitation of authority imposed on the officer.

It is suggested by several of the international writers, and it is probable, that armistices first arose from the truce or truces of God which were repeatedly proclaimed by the Church. These truces took many and very singular forms. Thus one famous truce of God was to begin every Wednesday at sunset, and last till the following Monday at sunrise. It was to continue from Advent to the octaves of Epiphany, and from Quinquagesima Sunday to the octaves of Easter. If any person broke the truce and refused to give satisfaction he was excommunicated, and after the third admonition the bishop who excommunicated him was not to admit him into communion under the penalty of deprivation. The truce was confirmed at many councils, and especially at the Lateran Council of 1179. Some of the regulations were extended into England, and Wednesday and Friday were set apart as days for keeping peace. It is exceedingly likely that these temporary and limited truces accustomed the warlike communities of those days to temporary suspensions of hostilities, and armistices manifestly grew into considerable favour. But they also gave rise, and indeed they give rise still, to a number of rather difficult questions. We find a greet number of rules laid down as to what belligerent parties might do or might not do during an armistice. The views taken of these duties in modern times are decidedly contradictory. On the one side it is held that all equivocal acts of hostility should be abstained from during an armistice whether they come, or do not, within the description of acts capable of being interrupted by the enemy; while on the other hand it is contended that, according to the practice of modern warfare, belligerents have a perfect right to alter the disposition of their troops, construct entrenchments, repair breaches, or do any acts by which they may think fit to prepare themselves for the resumption of hostilities. The violation of an armistice by either of the contending parties gives to the other the right to put an end to it; but its violation by private individuals only confers the right to demand the punishment of the guilty persons. The question is one of great practical difficulty, and in all the Manuals the advice is given that the greatest caution should be observed in the case of an armistice to specify the acts which are or are not to be permitted during its continuance.

Another question which, evidently, was thought to present great difficulties, was the date of the commencement and the time of the termination of an armistice. Supposing it to be made for a certain number of days -- that is, from the 1st of May to the 1st of August -- questions have been raised whether the days named are both included or excluded. The usual mode of reckoning in England as legal time is to include the first day and exclude the last. (consequently, in the above-mentioned case, according to English law, the truce begins at the moment on which the 30th of April ends and ceases at the moment at which the 31st of July ends. To avoid difficulties, it should be stated from the 1st of May inclusive to the 1st of August inclusive, if it is intended to include the 1st of August; or better still to begin at a certain hour on one day, and to end at a certain hour on another. In the case of a short armistice the number of hours should be stated; and it is advisable in all cases where an armistice has been arranged, to agree to indicate by some signal for example, the hoisting of a flag or the firing of a cannon -- both the commencement and the termination of the armistice. An armistice, it is to be remembered, is only a qualified peace, and the state of war continues, though active hostilities are suspended. This anomalous state of things leads, in the absence of express stipulation, to considerable difficulty in ascertaining what is allowed to be done or continued to be done. Apart from particular stipulation, the general rule seems to be that a belligerent cannot take advantage of an armistice to do any aggressive act which but for the armistice he could not have done without danger to himself. For example, in the case of an armistice between a besieging army and a besieged town, the besiegers must not continue their works against the town, and the besieged are forbidden to repair their walls, raise fresh fortifications, or introduce succours or reinforcements into the town. The last dangerous question which arose in Europe, arose on one of the class of terms which I have been examining.

Before closing this lecture it win be useful to note the substance of the statements made in the modern Manuals in respect to a number of terms which are in much use in this part of military operations, but which are very loosely employed by civilians and even by historical writers. First as to what is called a Capitulation. A capitulation is an agreement for the delivery of a besieged place or forces divided in the field into the hands of the enemy. The commanders on either side are invested with popover to agree to the terms of a capitulation, inasmuch as the possession of such powers is necessary to the proper exercise of their functions. On the other hand, the extent of their powers is limited by the necessity for their exercise. In the surrender of a place the questions at issue are the immediate possession of the place itself, and the fate of the garrison. A capitulation, therefore, must be limited to these questions. It may declare that the garrison is to surrender unconditionally as prisoners of war, or to be entitled to march out with all the honours of war. It may also provide that the soldiers comprising the garrison are not to serve again during the war. Further conditions for the protection of the inhabitants and of their privileges, and for their immunity from pillage or contribution, may fairly be put into a capitulation. A stipulation in a capitulation to the effect that the garrison should never again bear arms against the forces of the conquering state, or that the sovereignty of the town should change hands, would be invalid, inasmuch as powers for such extensive purposes belong only to the sovereign power of the State, and cannot ever be presumed to be delegated to inferior officers.

A few words will not be thrown away on Flags of Truce. Such a flag can only be used legitimately for the purpose of entering into some arrangement with the enemy. If adopted with a view surreptitiously to obtain information as to the enemy's forces, it loses its character of a flag of truce and exposes its bearer to the punishment of a spy. Great caution, however, and the most conclusive evidence are held to be necessary before the bearer of such a flag can be convicted as a spy. The bearer of a flag of truce, at the same time, should not be allowed without permission to approach sufficiently near to secure any useful information. When an army is in position, the bearer of a flag of truce should not, without leave, be permitted to pass the outer line of signals, or even to approach within the range of their guns.

When a flag of truce is sent from a detachment during an engagement, the troop from which it is sent should halt and cease firing. The troop to which it is sent should, if the commander is willing to receive it, signal to that effect and also cease firing; but it must be understood that firing during an engagement does not necessarily cease on the appearance of a flag of truce, and that the parties communicating with such flags cannot complain if those who sent them should carry on the firing. When it is intended to refuse admission to a flag of truce, the bearer should, as soon as possible, be signalled to retire; and if he do not obey the signal, he may be fired upon.

A few words may be usefully added on other terms of the art of war which are allied to those which I have been defining. A Cartel is an engagement for the exchange of prisoners of war. A cartel ship is a ship commissioned for the exchange of prisoners. She is considered a neutral ship, and must not engage in any hostilities or carry implements of war except a signal gun. A Safe-conduct or Passport is a document given by the commander of a belligerent force enabling certain persons to pass, either alone or with servants and effects, within the limits occupied by the force of such commanding officer. In the so-called Schnabele case which arose on the frontier of France and Germany, you may remember, it was decided there might be an implied safe-conduct. The expression 'passport' is usually applied to persons, and 'safe-conduct' both to persons and things. A safe-conduct for a person is not transferable, and comes to an end at the date stated, unless the bearer is detained by sickness or other unavoidable cause, in which case it terminates on the cessation of the cause. A safe-conduct may be revoked if it is injurious to the State; that is, an officer preparing for a great expedition may revoke the safe-conduct of a person who would by means of such safe-conduct be able to carry information to the enemy. In such case, however, he must give time and opportunity to the bearer to withdraw in safety. A safe-conduct, however, for goods admits of their being removed by some person other than the owner, unless there is some specific objection against the person employed. A Safe-guard is a guard posted by a commanding officer for the purpose of protecting property or persons against the operations of his own troops. To force such a guard is by English law a military offense of the gravest character, and our Army Act makes it punishable by death.

You may remember that not many months ago serious uneasiness was felt throughout Europe on account of an incident on the new French and German frontier. A French official, belonging by birth to the former German population of provinces now French, was found on territory now German, under circumstances which made him liable to arrest under a German law. His defence was, that on that and several past occasions he had been invited by the German frontier officials to help in settling border questions. The German officials asserted that, however that might be, he was on the present occasion engaged in acts of hostility to Germany. After some diplomatic correspondence, the German Government laid down that, if German officials invited a French functionary to cross the frontier into German territory for any reason, he enjoyed an implied safe-conduct to his home in France, and therefore M. Schnabele was released. The controversy, therefore, ended in the establishment of the point that a safe-conduct may be not only express but implied.

 
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