Possi bility in contradis Qualifica their neutralisation binds them not to make use of their qualification, except for defence. If they become belligerents because they are attacked, they do not lose their character as neutralised States; but if they become belligerents for offensive purposes, they ipso facto lose this character. § 75. Such States as do not possess the legal qualification to become belligerents are by law prohibited from tinction to offensive or defensive warfare. But the possession of tion to armed forces makes it possible for them in fact to enter become a into war, and to become belligerents. History records gerent. instances enough of such States having actually made Belli war. Thus in 1876 Serbia and Montenegro, although at that time vassal States under Turkish suzerainty, declared war against Turkey, and on February 28, 1877, peace was concluded between Turkey and Serbia.1 And when in April 1877 war broke out between Russia and Turkey, the then Turkish vassal State Roumania joined Russia, and Serbia declared war anew against Turkey in December 1877. Further, in November 1885 a war was waged between Serbia, which had become a full sovereign State, and Bulgaria, which was at the time still a vassal State under Turkish suzerainty. The war lasted actually only a fortnight, but the formal treaty of peace was not signed until March 3, 1886, at Bucharest; 2 and although Turkey was a party to it, Bulgaria appeared as a party thereto independently, and on its own behalf. Whenever a State lacking the legal qualification to make war nevertheless actually makes war, it is a belligerent, the contention is real war, and all the rules of International Law respecting warfare apply to it.3 Therefore, an armed contention between suzerain and 1 See Martens, N. R. G., 2nd Ser. iii. pp. 171-173. 2 See Martens, N. R. G., 2nd Ser. xiv. p. 284. 3 This is quite apparent through the fact that Bulgaria by accession became a party to the Geneva Convention at a time when she was still a vassal State under Turkish suzerainty. vassal, between a full sovereign State and a vassal State under the suzerainty of another State, and, lastly, between a Federal State and one or more of its members, is war 1 in the technical sense of the term according to the Law of Nations. gents a Bel ligerent § 76. The distinction between legal qualification and Insuractual power to make war explains the fact that tas insurgents may become a belligerent Power. It is a Power. customary rule of the Law of Nations that any State may recognise insurgents as a belligerent Power, provided (1) they are in possession of a certain part of the territory of the legitimate Government; (2) they have set up a Government of their own; and (3) they conduct their armed contention with the legitimate Government according to the laws and usages of war.2 Such insurgents in fact, although not in law, form a State-like community, and they are in fact making war, although their contention is by International Law not considered as war in the technical sense of the term, as long as they have not received recognition as a belligerent Power. of § 76a. Different from recognition of insurgents is The Case recognition as a belligerent Power granted by belli-Czechogerents to separate armies comprising subjects of the Slovaks. enemy who are fighting to free their nation from subjection to him. Thus in 1918, during the World War, Great Britain, France, Italy, and the United States. of America, recognised the Czecho - Slovaks as cobelligerents. By a proclamation dated August 13, 1918, Great Britain recognised them as an allied 1 See above, § 56, and Baty, International Law in South Africa (1900), pp. 66-68. 2 See above, § 59. See also Rougier, Les Guerres civiles, etc. (1903), pp. 372-413, and Westlake, i. pp. 50-57. The Institute of International Law, at its meeting at Neuchâtel in 1900, adopted a body of nine articles 3 See Garner, i. § 26. Principal and Accessory Belligerent Parties. nation,' their armies as an allied and belligerent army waging regular warfare against Austria-Hungary and Germany,' and their National Council as the supreme organ of national interests and as the present trustee of the future Czecho-Slovak Government to exercise supreme authority over this allied and belligerent army.' The Government of the United States, by proclamation dated September 3, 1918, recognised a state of belligerency between the organised armies of the Czecho-Slovaks and the German and AustroHungarian empires, and the National Council as 'a de facto belligerent Government clothed with proper authority to direct the military and political affairs of the Czecho-Slovaks.' There is no doubt that the enemy is in law not compelled to grant them similar recognition; he is justified in law in considering the members of such armies as traitors. But humanity ought to induce him to treat them, when captured, as prisoners of war, and not as criminals. § 77. War occurs usually between two States, one on each side. But in some wars there are on one or on both sides several parties, and then principal and accessory belligerents are sometimes to be distinguished. Principal belligerents are those parties to a war who wage it on the basis of a treaty of alliance, whether concluded before or during the war. Accessory belligerents are such States as provide help and succour only in a limited way to a principal belligerent; for instance, by paying subsidies, sending a certain number of troops or men-of-war, granting a coaling station to the men-of-war of a principal party, allowing his troops a passage through their territory, and the like. Such accessory party becomes a belligerent through rendering help. The matter need hardly be mentioned at all, were it 1 not that publicists formerly discussed whether or not a neutral State which fulfilled in time of war a treaty concluded in time of peace, by the terms of which it had to grant a coaling station, the passage of troops through its territory, and the like, to one of the belligerents, violated its neutrality. This question is identical with the question whether a qualified neutrality, in contradistinction to a perfect neutrality, is admissible. Since the answer to this question is in the negative, such State as fulfils a treaty obligation of this kind in time of war may be considered by the other side to be an accessory belligerent. All doubt in the matter ought to have been removed, since Article 22 of Hague Convention v. categorically enacted that belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies.' VI THE ARMED FORCES OF THE BELLIGERENTS Vattel, iii. §§ 223-231-Hall, §§ 177-181-Lawrence, §§ 148-150-Westlake, ii. pp. 64-67-Manning, pp. 206-209-Phillimore, iii. § 94-Twiss, ii. § 45-Halleck, i. pp. 555-562-Hershey, Nos. 352-354, 403-Taylor, $$ 471-476-Moore, vii. § 1109-Wheaton, §§ 356-358-Bluntschli, §§ 569-572-Heffter, §§ 124-124"-Lueder in Holtzendorff, iv. pp. 371-387 -Klüber, § 267-G. F. Martens, ii. § 271-Gareis, § 83-Ullmann, § 175 -Liszt, § 40, ii.-Bonfils, Nos. 1088-1098-Despagnet, Nos. 520-523— Mérignhac, iiia. pp. 139-155—Pradier-Fodéré, vi. Nos. 2721-2732, and viii. Nos. 3091-3103-Nys, iii. pp. 85-134-Rivier, ii. pp. 242-259Calvo, iv. §§ 2044-2065-Fiore, iii. Nos. 1303-1316, and Code, Nos. 1460-1480-Martens, ii. § 112-Longuet, §§ 26-36-Pillet, pp. 35-59Kriegsbrauch, pp. 4-8-Perels, § 34-Boeck, Nos. 209-213-Dupuis, Nos. 74-91-Lawrence, War, pp. 195-218-Zorn, pp. 36-73-Bordwell, pp. 228-236-Land Warfare, § 17-38-Meurer, ii. §§ 11-20-Spaight, pp. 45-72—Ariga, pp. 74-91—Takahashi, pp. 89-93—Schramm, §§ 12, 16 -Wehberg, § 4—Garner, i. §§ 245, 250-264. § 78. The chief part of the armed forces of the belligerents are their regular armies and navies. What 1 See below, § 305. See also Article 3 of Convention v. Armies and Navies. Regular kinds of forces constitute a regular army and a regular navy is not for International Law to determine, but a matter of Municipal Law exclusively. Whether or not so-called militia and volunteer corps belong to armies rests entirely with the Municipal Law of the belligerents; and there are several States whose armies consist of militia and volunteer corps exclusively, no standing army being provided for. The Hague Regulations expressly stipulate that in countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination army.' It is likewise irrelevant to consider the composition of a regular army, whether it is based on conscription or not, whether foreigners as well as subjects are enrolled, and the like. batant Non-Com- § 79. In the main, armed forces consist of comMembers batants; but no army in the field consists of combatants of Armed exclusively. There are always several kinds of other Forces. individuals, such as couriers, doctors, farriers, veterinary surgeons, chaplains, nurses, official and voluntary ambulance men, contractors, canteen-caterers, newspaper correspondents, civil servants, diplomatists, and foreign military attachés3 in the suite of the commander-in-chief. 2 Writers on the Law of Nations do not agree as regards the position of these non-combatants; they are not mere private individuals, yet are certainly not combatants, although they may-as, for instance, couriers, doctors, farriers, and veterinary surgeons-have the character of soldiers. They may correctly be said to belong indirectly to the armed forces. Article 3 of the Hague Regulations expressly stipulates that the armed forces of the belligerents may consist of combatants and non-combatants, and that both, in case of capture, 1 Article 1. 2 See Rey in R. G., xvii. (1910), pp. 73-102, and Higgins, War and the Private Citizen (1912), pp. 91-112. 3 See Rey in R. G., xvii. (1910), pp. 63-73. |