War & gerents who do not directly or indirectly belong to the tion armed forces do not take part in it: they do not attack between and defend; and no attack ought therefore to be made States Armed through upon them. This is the result of an evolution of practices Forces. 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 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 discriminating 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, and, with certain exceptions, their private property, ought to be safe. This is generally admitted. But opinions disagree as to the general position of such private subjects in time of war. The majority of the European Continental writers for three generations before the World War propagated the doctrine that no relation of enmity existed between belligerents and such private subjects, or between the private subjects of the respective belligerents. This doctrine went back to Rousseau.1 In 1801, at the opening of the French Prize Court, the famous lawyer and statesman Portalis adopted Rousseau's 2 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. Although this new doctrine did not 3 spread at once, from the second half of the nineteenth century it was proclaimed on 1 Contrat Social, i. o. 4. See Lassudrie Duchêne, Jean Jacques Rousseau et le Droit des Gens (1906). 3 As Hall (§ 18) shows. the European Continent by the majority of writers. British and American-English writers, however, never adopted it, but always maintained that the relation of enmity between the belligerents extends also to their private citizens. 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.1 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.2 For, apart from 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.3 Nobody doubts that they ought to be safe as regards their life and liberty, provided they behave peacefully and loyally; and that, with certain exceptions, their private property should not be touched. On the other hand, nobody 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 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 International Law by no means forbids, and, as a law between States, is not competent to forbid, private individuals from taking up arms against an enemy, it does give a right to the enemy to treat hostilities committed by them as acts of illegitimate warfare. 4 1 See Boidin, pp. 32-44. But many Continental writers constantly make use of Rousseau's dictum in order to defend untenable positions. See Oppenheim, Die A belligerent is under a duty to respect the life and liberty of private enemy individuals, which he can carry out only on condition that they abstain from hostilities against him. Through military occupation in war they fall under the military authority 1 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 commanderin-chief of an army occupying the territory usually publishes. Owing to their position it is inevitable that he should consider and mark as criminals such of them as commit hostile acts, although they may act from patriotic motives, and may be highly praised for their acts by their compatriots. The high-sounding and well-meant words of Baron Lambermont, one of the Belgian delegates at the Conference of Brussels of 1874-‘Il y a des choses qui se font à la guerre, qui se feront toujours, et que l'on doit bien accepter. Mais il s'agit ici de les convertir en lois, en prescriptions positives et internationales. Si les citoyens doivent être conduits au supplice pour avoir tenté de défendre leur pays au péril de leur vie, il ne faut pas qu'ils trouvent inscrits sur le poteau au pied duquel ils seront fusillés l'article d'un traité signé par leur propre gouvernement qui d'avance les condamnait à mort '-have no raison d'être in face of the fact that, according to a generally recognised customary rule of International Law, hostile acts on the part of private individuals are not acts of legitimate warfare, and the offenders may be treated and punished as war criminals. Even those writers 2 who object to 1 The first edition of this work was wrong in stating that through military occupation private enemy individuals fall under the territorial supremacy of the occupant. Since military occupation by no means vests sovereignty in the occupant, but only actual authority, this authority may not be called territorial supremacy. See, for instance, Hall, § 18, p. 71, and Westlake, Papers, p. 268. the term 'criminals' do not deny that such hostile acts by private individuals, in contradistinction to hostile acts by members of the armed forces, may be severely punished. The controversy whether or not such acts may be styled 'crimes' is again only one of terminology; materially the rule is not at all controverted.1 Develop the Dis between and § 57a. The time-honoured distinction between members Recent of the armed forces and civilians is threatened by four ments developments which appeared during the World War. affecting (1) Wars are nowadays fought by whole nations in tinction Not only has conscription carried the day, the Armed whole male population of military age being enrolled Forces in the fighting forces; all other men and all fit women Civilians. are asked, or even compelled, to assist the fighting forces as workers in munition factories, and to undertake all kinds of other work, so as to release fit men of military age for the armies. During the World War, thousands of women were enrolled and sent to the front as cooks, drivers, store-keepers, etc., for the army, to take the place of soldiers previously so employed. Russia even admitted women into the ranks as soldiers. (2) The development of aerial warfare. The fact that it has been considered legitimate for air vessels to bombard, outside the theatre of war, munition factories, bridges, railway stations, and other objects of value for military communication and preparation, must necessarily blur, or even efface, the distinction between members of the armed forces and civilians. Air vessels cannot aim with any precision at their direct objects; and, if they undertake bombardment by night, such aim would seem to be entirely impossible. (3) Democracy has for the most part conquered the world, so that wars are no longer dynastic but national. 1 See below, § 251, and Articles 20-26 of the Instructions for the Government of Armies of the United States in the Field, published in War a Contention States for pose of over each Governments are supposed to be representative, nations are supposed to be responsible for their Governments, and wars have therefore become wars between all the individuals of the warring nations. (4) The enormous development of international means of communication for commerce and industry. To put economic pressure upon the enemy has always been legitimate; but, whereas in previous wars it only played a secondary part, during the World War it became of primary importance. The consequence is that, although war still is in the main a contention between States by their armed forces, the civilian population nowadays is exposed to extreme suffering in health and property. § 58. The last, and not the least important, characteristic of war is its purpose. It is a contention between between States for the purpose of overpowering each other. the pur. This purpose of war is not to be confounded with the ends 1 of war, for, whatever the ends of war may be, powering they can only be realised by one belligerent overpowerother. ing the other. Such a defeat as compels the vanquished to comply with any demand the victor may choose to make is the purpose of war. Therefore war calls into existence the display of the greatest possible power and force on the part of the belligerents, rouses the passion of the nations in conflict to the highest possible degree, and endangers the welfare, the honour, and eventually the very existence of both belligerents. Nobody can predict with certainty the result of a war, however insignificant one side may seem to be. Every war is a risk and a venture. Every State which goes to war knows beforehand what is at stake; and it would never go to war were it not for its firm, though very often illusory, conviction of its superiority in strength over its opponent. Victory is 1 See below, § 66. |