Volume Ii Part 6 (1/2)
18-28--Manning, pp. 131-133--Phillimore, III. -- 49--Twiss, II. ---- 22-29--Taylor, ---- 449-451--Wheaton, -- 295--Bluntschli, ---- 510-514--Heffter, ---- 113-114--Lueder in Holtzendorff, IV. pp.
175-198--Kluber, ---- 235-237--G. F. Martens, II. -- 263--Ullmann, -- 165--Bonfils, Nos. 1000-1001--Despagnet, Nos.
499-505--Pradier-Fodere, VI. Nos. 2650-2660--Rivier, II. -- 61--Nys, III. pp. 95-117--Calvo, IV. ---- 1860-1864--Fiore, III.
Nos. 1232-1268--Martens, II. -- 106--Westlake, _Chapters_, pp.
258-264--Heilborn, _System_, pp. 321-332--Rettich, _Zur Theorie und Geschichte des Rechts zum Kriege_ (1888), pp. 3-140--Wiesse, _Le Droit international applique aux guerres civiles_ (1898)--Rougier, _Les guerres civiles et le droit des gens_ (1903)--Higgins, _War and the Private Citizen_ (1912), pp. 3-72.
[Sidenote: War no illegality.]
-- 53. As within the boundaries of the modern State an armed contention between two or more citizens is illegal, public opinion has become convinced that armed contests between citizens are inconsistent with Munic.i.p.al Law. Influenced by this fact, impatient pacifists, as well as those innumerable individuals who cannot grasp the idea of a law between Sovereign States, frequently consider war and law inconsistent. They quote the fact that wars are frequently waged by States as a proof against the very existence of an International Law. It is not difficult to show the absurdity of this opinion. As States are Sovereign, and as consequently no central authority can exist above them able to enforce compliance with its demands, war cannot, under the existing conditions and circ.u.mstances of the Family of Nations, always be avoided.
International Law recognises this fact, but at the same time provides regulations with which belligerents have to comply. Although with the outbreak of war peaceable relations between the belligerents cease, there remain certain mutual legal obligations and duties. Thus war is not inconsistent with, but a condition regulated by, International Law.
The latter at present cannot and does not object to States which are in conflict waging war upon each other instead of peaceably settling their difference. But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations between belligerents and neutral States. That International Law, if it could forbid war altogether, would be a more perfect law than it is at present there is no doubt. Yet eternal peace is an impossibility in the conditions and circ.u.mstances under which mankind at present live and will have to live for a long time to come, although eternal peace is certainly an ideal of civilisation which will slowly and gradually be realised.
[Sidenote: Conception of War.]
-- 54. War is the contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. War is a fact recognised, and with regard to many points regulated, but not established, by International Law. Those writers[58] who define war as the legal remedy of self-help to obtain satisfaction for a wrong sustained from another State, forget that wars have often been waged by both parties engaged for political reasons only; they confound a possible but not at all necessary cause of war with the conception of war. A State may be driven into war because it cannot otherwise get reparation for an international delinquency, and such State may then maintain that it exercises by war nothing else than legally recognised self-help. But when States are driven into or deliberately wage war for political reasons, no legally recognised act of self-help is in such case performed by the war. And the same laws of war are valid, whether wars are waged on account of legal or of political differences.
[Footnote 58: See, for instance, Vattel, III. -- 1; Phillimore, III. -- 49; Twiss, II. -- 26; Bluntschli, -- 510; Bulmerincq, -- 92.]
[Sidenote: War a contention.]
-- 55. In any case, it is universally recognised that war is a _contention_, which means, _a violent struggle through the application of armed force_. For a war to be in existence, two or more States must actually have their armed forces fighting against each other, although the commencement of a war may date back to its declaration or some other unilateral initiative act. Unilateral acts of force performed by one State against another without a previous declaration of war may be a cause of the outbreak of war, but are not war in themselves, as long as they are not answered by similar hostile acts by the other side, or at least by a declaration of the other side that it considers the particular acts as acts of war. Thus it comes about that acts of force performed by one State against another by way of reprisal or during a pacific blockade in the case of an intervention are not necessarily initiative acts of war. And even acts of force illegally performed by one State against another, such, for instance, as occupation of a part of its territory, are not acts of war so long as they are not met with acts of force from the other side, or at least with a declaration from the latter that it considers the particular acts as acts of war. Thus, when Louis XIV. of France, after the Peace of Nimeguen, inst.i.tuted the so-called Chambers of Reunion and in 1680 and 1681 seized the territory of the then Free Town of Stra.s.sburg and other parts of the German Empire without the latter's offering armed resistance, these acts of force, although doubtless illegal, were not acts of war.
[Sidenote: War a contention between States.]
-- 56. To be considered war, the contention must be going on _between States_. In the Middle Ages wars were known between private individuals, so-called private wars, and wars between corporations, as the Hansa for instance, and between States. But such wars have totally disappeared in modern times. It may, of course, happen that a contention arises between the armed forces of a State and a body of armed individuals, but such contention[59] is not war. Thus the contention between the Raiders under Dr. Jameson and the former South African Republic in January 1896 was not war. Nor is a contention with insurgents or with pirates a war. And a so-called civil war[60] need not be from the beginning nor become at all a war in the technical sense of the term according to International Law. On the other hand, to an armed contention between a suzerain and its va.s.sal[61] State the character of war ought not to be denied, for both parties are States, although the fact that the va.s.sal makes war against the suzerain may, from the standpoint of Const.i.tutional Law, be considered rebellion. And likewise an armed contention between a full Sovereign State and a State under the suzerainty of another State, as, for instance, the contention between Servia and Bulgaria[62] in 1885, is war. Again, an armed contention between one or more member-States of a Federal State and the latter ought to be considered as war in the technical sense of the term, according to International Law, although, according to the const.i.tution of Federal States, war between the member-States as well as between any member-State and the Federal State itself is illegal, and recourse to arms by a member-State may therefore correctly, from the standpoint of the const.i.tution, be called rebellion.
Thus the War of Secession within the United States between the Northern and the Southern member-States in 1861-1865 was real war.
[Footnote 59: Some publicists maintain, however, that a contention between a State and the armed forces of a party fighting for public rights must be considered as war. See, for instance, Bluntschli, -- 113, and Fiore, III. -- 1265.]
[Footnote 60: See below, -- 59.]
[Footnote 61: See below, -- 75.]
[Footnote 62: Bulgaria was at that time still a va.s.sal State under Turkish suzerainty.]
[Sidenote: War a contention between States through armed forces.]
-- 57. It must be emphasised that war nowadays is a contention of States _through their armed forces_. Those private subjects of the belligerents who do not directly or indirectly belong to the armed forces do not take part in the armed contention: they do not attack and defend, and no attack is therefore made upon them. This fact is the result of an evolution of practices totally different from those in vogue in former times. During antiquity and the greater part of the Middle Ages war was a contention between the whole of the populations of the belligerent States. In time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will.
But gradually a milder and more discriminative practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or indirectly belong to their armed forces are safe, as is also, with certain exceptions, their private property.
This is a generally admitted fact. But opinions disagree as to the general position of such private subjects in time of war. The majority of the European continental writers for the last three generations have propagated the doctrine that no relation of enmity exists between belligerents and such private subjects, or between the private subjects of the respective belligerents. This doctrine goes back to Rousseau, _Contrat Social_, I. c. 4. In 1801, on the occasion of the opening of the French Prize Court, the famous lawyer and statesman Portalis adopted Rousseau's[63] doctrine by declaring that war is a relation between States and not between individuals, and that consequently the subjects of the belligerents are only enemies as soldiers, not as citizens. And although this new doctrine did not, as Hall (-- 18) shows, spread at once, it has since the second half of the nineteenth century been proclaimed on the European continent by the majority of writers. British and American-English writers, however, have never adopted this doctrine, but have always maintained that the relation of enmity between the belligerents extends also to their private citizens.
[Footnote 63: See La.s.sudrie-d.u.c.h.ene, _Jean Jacques Rousseau et le droit des gens_ (1906).]
I think, if the facts of war are taken into consideration without prejudice, there ought to be no doubt that the British and American view is correct.[64] It is impossible to sever the citizens from their State, and the outbreak of war between two States cannot but make their citizens enemies. But the point is unworthy of dispute, because it is only one of terms without any material consequences.[65] For, apart from the terminology, the parties agree in substance upon the rules of the Law of Nations regarding such private subjects as do not directly or indirectly belong to the armed forces.[66] n.o.body doubts that such private individuals are safe as regards their life and liberty, provided they behave peacefully and loyally; and that, with certain exceptions, their private property must not be touched. On the other hand, n.o.body doubts that, according to a generally recognised custom of modern warfare, the belligerent who has occupied a part or the whole of his opponent's territory, and who treats such private individuals leniently according to the rules of International Law, may punish them for any hostile act, since they do not enjoy the privileges of members of armed forces. Although, on the one hand, International Law by no means forbids, and, as a law between States, is not competent to forbid, private individuals to take up arms against an enemy, it gives, on the other hand, the right to the enemy to treat hostilities committed by private[67] individuals as acts of illegitimate warfare. A belligerent is under a duty to respect the life and liberty of private enemy individuals, but he can carry out this duty under the condition only that these private individuals abstain from hostilities against himself.
Through military occupation in war such private individuals fall under the authority[68] of the occupant, and he may therefore demand that they comply with his orders regarding the safety of his forces. The position of private enemy individuals is made known to them through the proclamations which the commander-in-chief of an army occupying the territory usually publishes. Thus General Sir Redvers Buller, when entering the territory of the South African Republic in 1900, published the following proclamation:
”The troops of Queen Victoria are now pa.s.sing through the Transvaal. Her Majesty does not make war on individuals, but is, on the contrary, anxious to spare them as far as may be possible the horrors of war. The quarrel England has is with the Government, not with the people, of the Transvaal. Provided they remain neutral, no attempt will be made to interfere with persons living near the line of march; every possible protection will be given them, and any of their property that it may be necessary to take will be paid for. But, on the other hand, those who are thus allowed to remain near the line of march must respect and maintain their neutrality, and the residents of any locality will be held responsible, both in their persons and property, if any damage is done to railway or telegraph, or any violence done to any member of the British forces in the vicinity of their home.”