a. Different methods of termination Subju. gation CHAPTER XXXV THE TERMINATION OF WAR The termination of war raises a number of questions which have already received incidental treatment among topics relating to the substantive law of peace. In so far, however, as these questions present new aspects when considered in connection with the special problem of the termination of war, writers have found it convenient to assign them a separate treatment and to make them collectively a distinct branch of the law. In the past practice of nations wars have terminated in three different ways: by subjugation or conquest of one of the belligerent states, by simple cessation of hostilities without definite agreement between the parties, and by formal treaty of peace. The last method has been the one most frequently resorted to; and it has become the established practice of recent times where both belligerents survive the conflict. Its use is chiefly due to the growing complexity of the rules of succession between states1 and to the necessity of adjusting the relations of third states to the situation resulting from the settlement. Subjugation consists in the conquest of one belligerent by the other, followed by the formal annexation of the territory of the defeated state and the extinction of its sovereignty and international personality. Such was the method by which the war between Great Britain and the South African Republic was terminated in 1902. Since international law recognizes the right of self-help as a legal remedy for the redress of wrongs, it likewise recognizes that this remedy may result in the legal annihilation of one or other of the belligerents, the decision whether such shall be the outcome of the war being left to the arbitrary will of the successful belligerent. In such cases the termination of the war is marked 1 See above, pp. 117 ff. 2 Some writers, e.g., Oppenheim, International Law, II, § 264, make a distinction between conquest and subjugation, the former being merely the temporary occupation of the enemy territory, and the latter being the extermination of the enemy by the complete annexation of his territory. "In this case annexation, proclaimed in 1900, preceded the final surrender of the Boer forces in 1902. See Phillipson, Termination of War and Treaties of Peace, 23 ff. XXXV by the formal decree of annexation and the actual cessation of CHAP. resistance on the part of the defeated state. The termination of a civil war, in which one of the parties has enjoyed merely a de facto belligerent status, does not call for a decree of annexation,1 Prior to the nineteenth century wars frequently terminated by Simple hostilities a simple cessation of hostilities, without the conclusion of a formal cessation of treaty of peace. In such cases the date of the termination could not be accurately fixed, but was roughly determined by extraneous facts indicating the resumption of friendly relations. The question as to the ownership of property, real or personal, which had changed hands during the course of the war was settled by the application of the rule of uti possidetis, by which each belligerent was regarded as legally entitled to such property as was actually in its possession at the time hostilities ceased. Third states were accordingly justified in maintaining relations with former belligerents on that basis. termination Owing to the refusal of the United States Senate to ratify the Unilateral Treaty of Versailles in the form submitted to it by the executive of war department, the question was presented in 1920 whether the United. States could, as a point of law, put an end to the state of war by its unilateral act. The resumption of hostilities by the enemy was practically out of the question, the armistice having amounted to a virtual surrender. On May 15, 1920, Congress passed a joint resolution repealing the declaration of war of April 6, 1917.3 The resolution was, however, vetoed by the President. It is an open question, therefore, what effect this resolution would have had upon the rights subsequently claimed by the United States, and recognized by Germany, in the separate treaty of peace of August 25, 1921. of peace Formal treaties of peace, the usual method by which wars b. Treaties have been terminated, have as a general rule been preceded by an armistice providing for a temporary suspension of hostilities. On a number of occasions armistices have been followed by agreements known as "preliminaries of peace," which are tentative treaties laying down the broad lines upon which peace is to be reëstablished and regulating the ad interim relations of the belligerents. These As in the case of the Southern Confederacy in 1865. For the attitude of the United States in relation to the cessation of hostilities between Spain and Peru, see Moore, Digest, VII, 336. 'Senator Knox's defense of the resolution before the Senate on May 5, 1920, is quoted by Hyde, International Law, II, § 905. For the text, see Am. Journal, XIV (1920), 419. See above, p. 487. CHAP. Relation of the final to the preliminary treaty c. Effects preliminaries have sometimes played the part of an armistice as well; and again, as between the Allies and Germany in 1918, what is an armistice in name may contain provisions which go much further than a mere suspension of hostilities and be in fact a preliminary treaty.1 Both the preliminaries of peace and the definite treaty of peace have been generally accepted as binding from the date of signature in so far as questions relating to the conduct of hostilities are concerned. Ratification of the treaty has been as a rule automatic, the constitutions of most states down to the nineteenth century conceding absolute powers to the monarch, and later constitutions providing for responsible ministries which might count upon a majority of the national legislature. The refusal of the United States in 1920 to ratify the Treaty of Versailles has raised a number of delicate questions bearing upon the justice of holding Germany to the terms of a treaty signed by that state in the belief that the United States would be one of the executors of the treaty. To these questions international law in its present state can give no definite answer.2 It is a further question whether the terms of the definite treaty of peace must conform to the general principles laid down in the preliminaries of peace or in the armistice. Should one of the belligerents have, in consequence of the earlier agreement, placed itself in a position in which it is unable to resume hostilities, whatever be the final terms imposed upon it, the question of good faith would be involved if the final treaty exceeded in severity the promise of the preliminary treaty. Such has been the contention of Germany with respect to the Treaty of Versailles as compared with the provisions of the armistice of November 11, 1918.3 The general effects of the termination of war are the restoration of friendly relations between the former belligerents, the subsequent renewal of diplomatic intercourse, the revival of such treaties as have been merely suspended by the war, and the change in the status of enemy aliens by the removal of such legal and other disabilities as they have been subjected to. With respect to the rights of the former belligerents to movable or immovable See above, p. 489. Compare the provisions of the protocol of August 12, 1898, between the United States and Spain. For a study of the negotiation of the Treaty of Versailles, see Hyde, International Law, II, §§ 917-920, and references there given. 'See above, p. 489. The application of the rule of good faith to treaties of peace in general has been discussed above, p. 327. 'See above, pp. 440 ff. XXXV property which may temporarily have passed from the possession CHAP. of one belligerent to that of the other, the terms of the treaty are the primary evidence of title. Where the terms of the treaty fail to make provision, the rule of uti possidetis has been applied, as in the case of the cessation of hostilities without formal agreement.1 2 As between the belligerents themselves, the stipulations of the treaty dispose of any claims to damages that might otherwise be brought by one party for losses due to the destruction of property wrought by the other party. The Hague Convention (1907) respecting the Laws and Customs of War on Land undertook to create a sanction for the observance of the convention by making belligerents who violated the regulations laid down liable, if the case demanded, to pay compensation, and also "responsible for all acts committed by persons forming part of its armed forces"; " but this provision in its bare form cannot be regarded as creating responsibility in excess of the terms of the treaty. Acts of hostility committed subsequently to the treaty of peace, in ignorance of its conclusion, are null and void, and, where possible, compensation must be made for them as for any other illegal act. It is obvious that the problems presented in former wars in consequence of the delay in transmitting notice of the termination of hostilities to remote parts of the world have now practically ceased to exist. 3 Jus post In order to describe the status of public or private property which has been temporarily in the possession of the enemy, and liminii is returned to a belligerent in consequence of the terms of peace, many of the older writers adopted a rule of the Roman law known as jus postliminii. In accordance with this rule, property transferred by the treaty of peace, as well as property reconquered by the legitimate sovereign from the enemy, regained automatically its former status. The doctrine was further extended to cover not only the revival of rights of territorial sovereignty but the revival of the laws of the original sovereign, subject, however, to such vested private rights as had been legitimately created by the temporary occupant. While international law has never given formal sanction to the doctrine, the rules drawn from it have For an instance, see the case of the Mentor, 1 C. Rob., 179 (1799). Scott, For the origin of the rule, see Phillipson, Termination of War, 230 ff. CHAP. Amnesty Proposed Trial of other military offenders received more or less practical recognition in the law of state succession.1 Prior to the World War it was the custom for belligerents to insert in their treaties of peace an amnesty clause creating an immunity in relation to one belligerent for all persons who had committed wrongful acts on behalf of or in the service of the other belligerent during the course of the war. Even in the absence of treaty stipulation, an amnesty was one of the legal effects of the termination of war. The immunity granted did not, however, extend to civil suit or criminal prosecution in respect to matters not connected with the war. By the Treaty of Versailles a striking exception to the customary law was made in the clauses providing for the trial and punishment of the German kaiser and of individual members of the German armed forces. In the case of the kaiser, the treaty provided that he should be tried "for a supreme offense against international morality and the sanctity of treaties. The offense was thus not one cognizable in accordance with the existing law. A special tribunal, appointed by the five leading powers, was to be constituted to try the accused, and was to be guided in its decision "by the highest motives of international policy." 3 In the case of other offenders, the measures provided for were legal rather than political. The German Government recognized the right of the Allied and Associated Powers "to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.' 294 Such persons were, if found guilty, to be sentenced to punishments laid down by law. In order to make possible these trials the German Government on its part agreed to hand over to the Allied and Associated Powers all persons accused of the acts in question. In addition the German Government agreed to furnish the documents and information "necessary to insure the full knowledge of the incriminating 5 See above, p. 117. It should be noted that the application of the rule of postliminium by writers to the relations between belligerents differs from its application to the personal and property rights of citizens under national law. It is a municipal, not an international, question whether when private property is recaptured it shall revert ipso facto to its former owner, whether sentences passed by a military occupant hold good upon the restoration of the legitimate sovereign, etc. See Oppenheim, International Law, II, § 280. * Art. 227. See above, p. 216. Ibid. Since these "motives" could not be defined on the basis of past practice, it would have been necessary for the court first to formulate the principles by which the accused was to be judged and then to try him according to them. 'Art. 228. 5 Ibid. |