CHAPTER I ON WAR IN GENERAL I CHARACTERISTICS OF WAR 1 Grotius, i. c. 1, § 2-Vattel, iii. §§ 1-4, 69-72-Hall, §§ 15-18-Westlake, ii. pp. 1-5-Lawrence, § 135-Lorimer, ii. pp. 18-29-Manning, pp. 131-133-Phillimore, iii. § 49-Twiss, ii. §§ 22-29-Taylor, §§ 449-451Hershey, Nos. 326-336-Wheaton, § 295-Bluntschli, §§ 510-514Heffter, §§ 113-114-Lueder in Holtzendorff, iv. pp. 175-198-Heilborn in Stier-Somlo, i. pp. 22-25 — Klüber, §§ 235-237—G. F. Martens, ii. § 263-Ullmann, § 165-Bonfils, Nos. 1000-1001-Despagnet, Nos. 499505-Pradier-Fodéré, vi. Nos. 2650-2660-Mérignhac, iii". pp. 9-19Rivier, ii. § 61-Nys, iii. pp. 1-28-Calvo, iv. §§ 1860-1864-Fiore, iii. Nos. 1232-1268-Martens, ii. § 106-Westlake, Chapters, pp. 258-264Heilborn, System, pp. 321-332-Rettich, Zur Theorie und Geschichte des Rechts zum Kriege (1888), pp. 3-141-Wiesse, Le Droit international appliqué aux Guerres civiles (1898)-Rougier, Les Guerres civiles et le Droit des Gens (1903)-Higgins, War and the Private Citizen (1912), pp. 3-70-Grosch, Der Zwang im Völkerrecht (1912), passim, especially p. 63-Lammasch, Das Völkerrecht nach dem Kriege (1917), pp. 174-187Jerusalem, Kriegsrecht und Kodification (1918). § 53. As within the boundaries of the modern State War no an armed contention between two or more citizens Illegality. is illegal, public opinion has become convinced that armed contests between citizens are inconsistent with Municipal 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. 1 Many statements in §§ 53-66 of this chapter have been the object of such violent criticism and attack that I consider it advisable to point out that my assertions concerning the characteristics of war, as well as VOL. II. E the causes, kinds, and ends of war, 65 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 exists above them, able to enforce compliance with its demands, war cannot, under the existing conditions and circumstances of the Family of Nations, always be avoided. International Law recognises this fact, but at the same time provides regulations with which belligerents have customarily, or by special conventions, agreed 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. It does not object to States which are in conflict waging war upon each other, provided they have-in compliance with the Covenant of the League of Nations -previously submitted the dispute to an inquiry by the Council of the League. Whenever they choose to go to war, they have agreed to comply with the rules laid down by International Law regarding the conduct of war, and the relations between belligerent and neutral States. It is maintained 1 that this conception of war as lacking illegality includes an absolute right of every State to make war, whenever, and for whatever reason, it chooses; but this view is based on a misunderstanding. The assertion that war is no illegality is only directed against those who maintain that war and law are inconsistent, an opinion which overlooks the facts mentioned above. That International Law, if it could forbid war altogether, or permit it only under certain circumstances, would be a more perfect law than it is at present, there is no doubt. Yet eternal peace is an 1 See Hill, World Organisation (1911), pp. 178-186. impossibility in the conditions and circumstances under which mankind at present lives, although it is certainly an ideal of civilisation which will slowly and gradually be realised. The same factors make it at present impossible to prevent the outbreak of war for any other purpose than the recognition of a right denied, or to redress a wrong inflicted.' tion of § 54. War is the contention between two or more ConcepStates through their armed forces, for the purpose of War. 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 2 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 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 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 performed by the war; and the same laws of war are valid, whether wars are waged on account of legal differences or political differences. Conten tion. § 55. In any case, it is universally recognised that War a war is a contention, i.e. 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 its commencement may date back to a declaration of war, 1 As will be shown below, §§ 62, 63. See, for instance, Vattel, iii. §1; Phillimore, iii. § 49; Twiss, ii. § 92. War & Contention 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 them to be 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 acts initiating war. And even acts of force illegally performed by one State against another-for instance, 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 that it considers them to be acts of war. Thus, when Louis XIV. of France, after the Peace of Nymeguen, instituted the so-called Chambers of Reunion, and in 1680 and 1681 seized the territory of the then Free Town of Strasburg, and other parts of the German Empire, without meeting with armed resistance, these acts of force, although doubtless illegal, were not acts of war. Though war is a contention, a violent struggle through the application of armed force, other measures may be incidentally applied in connection therewith. This appears from the institution of blockade, the prohibition of the carriage of contraband, or trading with the enemy, or from the capture of sea-borne enemy property. The object of all these measures is the weakening, or destruction, of the economic power of resistance of the enemy; but it could not be achieved without application of armed force. § 56. To be war, the contention must be between States. In the Middle Ages wars between private between individuals, so-called private wars, were known, and wars between corporations, as the Hansa for instance, States. war. 1 and States. But such wars have totally disappeared in modern times. A contention may, of course, arise between the armed forces of a State and a body of armed individuals, but this 1 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 And a so-called civil war 2 need not be war from the beginning, and may not become war at all, in the technical sense of the term in International Law. On the other hand, to an armed contention between a suzerain and its vassal State the character of war ought not to be denied, for both parties are States, although the action of the vassal may, from the standpoint of Constitutional Law, be rebellion. And likewise an armed contention between a full sovereign State and a State under the suzerainty of another State, as, for instance, that between Serbia and Bulgaria 4 in 1885, is war. Again, an armed contention between one or more member-States of a Federal State and the Federal State itself ought to be considered as war in International Law, although, according to the constitution 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 memberState may therefore, from the standpoint of the constitution, correctly be called rebellion. Thus the War of Secession within the United States between the Northern and the Southern member-States in 18611865 was real war. § 57. War nowadays is a contention of States through their armed forces.5 Those private subjects of the belli 1 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, §512, and Fiore, iii. § 1265. 2 See below, § 59. See below, § 75. 4 Bulgaria was at that time still & vassal State under Turkish suzerainty. See, however, below, § 57a. |