necessary in order to overpower the enemy; and it is this necessity which justifies all the indescribable horrors of war, the enormous sacrifice of human life and health, and the unavoidable destruction of property and devastation of territory. Apart from restrictions imposed by the Law of Nations upon belligerents, all kinds and all degrees of force may be, and eventually must be, used in war, in order that its purpose may be achieved, in spite of their cruelty 1 and the utter misery they entail. As war is a struggle for existence between States, no amount of individual suffering and misery can be regarded; the national existence and independence of the struggling State is a higher consideration than any individual well-being. § 59. These characteristics of war must help to Civil War. decide whether so-called civil wars are war in the technical meaning of the term. It has already been stated 2 that an armed contention between a Federal State and its member-States, or between a suzerain and its vassal, ought to be considered as war because both parties are real States, although the Federal State and the suzerain may correctly designate it as rebellion. Such armed contentions may be called civil wars in a wider sense of the term. In the proper sense of the term a civil war exists when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or when a large portion of the population of a State rises in arms against the legitimate Government. As war is an armed contention between States, such a civil war need not be war from the beginning, nor become war at all, in the technical sense of the term. But it may become war through the recognition of each of the contending parties, or of the insurgents, 1 To avoid misunderstanding, attention should be drawn to the preamble of Hague Convention (IV.) concerning the Laws and Customs 2 See above, § 56. Guerilla as a belligerent Power.1 Through this recognition a body of individuals receives an international position, in so far as it is for some parts, and in some points, treated as though it were a subject 2 of International Law. Such recognition may be granted by the State within the boundaries of which the civil war broke out, and then other States will in most cases, although they need not, likewise recognise a state of war as existing and bear the duties of neutrality. But it may happen that other States recognise insurgents as a belligerent Power before the State on whose territory the insurrection broke out so recognises them. In such a case the insurrection is war in the eyes of these other States, but not in the eyes of the legitimate Government.3 Be that as it may, although a civil war becomes war in the technical sense of the term by recognition, this recognition has a lasting effect only when the insurgents succeed in getting their independence established through the defeat of the legitimate Government and a consequent treaty of peace which recognises their independence. Moreover, nothing prevents the State concerned, after the defeat of the insurgents and reconquest of the territory which they had occupied, from treating them as rebels according to the Criminal Law of the land, for the character of a belligerent Power received through recognition is lost ipso facto by their defeat and the reoccupation of the territory by the legitimate Government. § 60. The characteristics of war also determine whether so-called guerilla war is real war in the technical sense of the term. Guerilla war must not be confounded with guerilla tactics during a war. During war commanders send small bodies of soldiers wearing uniform to the rear of the enemy for the purpose of destroying bridges 1 See below, $$ 76, 298. 3 See below, § 298. and railways, cutting off communications and supplies, attacking convoys, intercepting despatches, and the like. This is in every way legal, and these parties, when captured, enjoy the treatment due to enemy soldiers. Or again, private individuals take up arms, and devote themselves mainly to similar tactics. According to the former rules of International Law such individuals, when captured, under no condition enjoyed the treatment due to enemy soldiers, but could be treated as criminals and punished with death. However, according to Article 1 of the Regulations concerning War on Land adopted by the Hague Conferences of 1899 and 1907, such guerilla fighters enjoy the treatment of soldiers provided that they (1) do not act individually, but form a body commanded by a person responsible for his subordinates, (2) have a fixed distinctive emblem recognisable at a distance, (3) carry arms openly, and (4) conduct their operations in accordance with the laws of war.1 On the other hand, one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants of the defeated army carry on the contention by mere guerilla tactics. Although hopeless of success in the end, such petty war can go on for a long time, thus preventing the establishment of a state of peace, in spite of the fact that regular war is over and the task of the army of occupation is no longer regular warfare. Now the question whether such guerilla war is real war in the strict sense of the term in International Law must, I think, be answered in the negative, for two reasons. First, there are no longer the forces of two States in the field, because the defeated belligerent State has ceased to exist through the military occupation of its territory, the downfall of its estab1 See also Article 2 of the Hague Regulations. lished Government, the capture of the main part and the routing of the remnant of its forces. And, secondly, there is no longer in progress a contention between armed forces. For although the guerilla bands are still fighting when attacked, or when attacking small bodies of enemy soldiers, they try to avoid a pitched battle, and content themselves with constantly harassing the victorious army, destroying bridges and railways, cutting off communications and supplies, attacking convoys, and the like, always in the hope that some event may occur which will induce the victorious army to withdraw. If, then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers. It is, however, advisable that he should do so, as long as they are under responsible commanders and observe the laws and usages of war. For I can see no advantage or reason why, although in strict law it could be done, those bands should be treated as criminals. Such treatment would only call for acts of revenge on their part, without in the least accelerating the pacification of the country. And it is, after all, to be taken into consideration that those bands act, not out of criminal, but patriotic motives. With patience and firmness, the victor will succeed in pacifying them without recourse to methods of harshness. II CAUSES, KINDS, AND ENDS OF WAR Grotius, i. c. 3; ii. c. 1, c. 22 and c. 23; iii. c. 3-Pufendorf, viii. c. 6, § 9 -Vattel, iii. §§ 2, 5, 24-50, 183-187-Lorimer, ii. pp. 29-49-Phillimore, lii. §§ 33-48-Twiss, ii. §§ 26-30-Halleck, i. pp. 488-520-Taylor, §§ 452454-Wheaton, §§ 295-296-Hershey, Nos. 329-336-Bluntschli, §§ 515520-Heffter, § 113-Lueder in Holtzendorff, iv. pp. 221-236-Klüber, §§ 41, 235, 237-G. F. Martens, §§ 265-266-Ullmann, § 166-Bonfils, Nos. 1002-1005-Despagnet, No. 506-Pradier-Fodéré, vi. Nos. 26612670-Rivier, ii. p. 219-Nys, iii. pp. 13-23-Calvo, iv. §§ 1866-1896Fichte, Ueber den Begriff des wahrhaften Krieges (1815)-Rettich, Zur Theorie und Geschichte des Rechts zum Kriege (1888), pp. 141-291-Peyronnard, Des Causes de la Guerre (1901). 1 Warfare dent of Causes of § 61. Whatever may be the cause of a war that has Rules of broken out, and whether or no the cause be a so-called indepen just cause, the same rules of International Law are valid as to what must not be done, may be done, and War. must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral States. This is so, even if the declaration of war is ipso facto a violation of International Law, as when a belligerent declares war upon a neutral State for refusing passage to its troops. To say 1 that, because such a declaration of war is ipso facto a violation of neutrality and International Law, it is inoperative in law and without any juridical significance' is erroneous. The rules of International Law apply to war from whatever cause it originates. This being the case, the question as to the causes of war is of minor importance for the Law of Nations, although not for international ethics. The matter need not be discussed at all in a treatise on International Law, were it not that many writers maintain that there are rules of International Law which determine and define just causes of war. It must be emphasised that this is by no means the case. All such rules laid down by writers on International Law as recognise certain causes as just and others as unjust are rules of writers, but not rules of International Law based on international custom or international treaties. War. § 62. The causes of war are innumerable. They Causes of are involved in the fact that the development of mankind is indissolubly connected with the national develop 1 See Visscher in the Grotius Society, ii. p. 101, and in Belgium's Case (1916), p. 148. |