Grotius. Private Peace in with Public War. special cognisance of the incidents of international life in time of war. "Let it be granted," says Grotius, "that Laws must be silent in the midst of arms, provided they are only those laws which are civil and judicial, and proper for times of war; but not those which are of perpetual obligation, and are equally suited to all times: for it was excellently said by Dion Prusæensis, "that between enemies written law, that is, civil laws, are not in force; but unwritten laws are in force, that is, such laws as Nature dictates, or the consent of Nations has established"." § 28. Private War being thus inconsistent with consistent Public Peace, it follows that Private Peace is equally inconsistent with Public War. Peace may be defined to be that state or condition of things in which men adjust their differences on questions of Right by Reason. It would be an error to suppose that the absence of all differences on the subject of Right is the true test of that state or condition of international relations, which is termed Peace, as contrasted with War. Differences as to mutual Right must arise in the most elementary stages of human society; for the fundamental condition of Natural Society is, that each individual member of a community shall do for the other members everything which their welfare requires, and which he can perform, without neglecting the duty which he owes to himself. Social Right accordingly consists in the correct adjustment of the balance of duty between a man and his neighbour, in other words, between men living in society. When men unite themselves in Civil Society, the adjustment of the balance of duty between a man and his neighbour, when they differ as to their respective obligations, is ascertained by 8 De Jure Belli et Pacis, Prolegomena, § 27. discussion before a third party, who is authorised by the Sovereign power of the civil community to decide all differences between its members, and may invoke the aid of the whole community to carry his decision into effect, When Nations, however, unite themselves in International Society, the adjustment of the balance of duty between them respectively, when they differ, cannot be effected by discussion before a common judge; for the community of Nations has never yet consented to authorise any international tribunal to decide such differences, and to invoke the aid of the whole community to carry its decisions into effect. In the absence of any common judge or arbiter between the members of different Nations, a citizen of one Nation, who conceives himself wrongfully prejudiced by the conduct of the citizen of another Nation, has no other resource than to invoke the aid of the entire Nation, of which he is a member, to enforce an adjustment of the balance of duty between him and the wrong-doer. The only mode, whereby that adjustment can be effected against the will of the wrong-doer, is by setting in motion against the Nation itself, of which the wrong-doer is a member, the united force of all the members of the political community of which the party wronged is a member, in order to constrain the former to exert its sovereign power over the wrong-doer, and compel him to make redress. It is the exercise of the united force of all the members of an independent political community for this object, which is properly termed War in the juridical sense of the term. "Cum sint duo genera decertandi, unum per disceptationem, alterum per vim, cumque illud proprium sit hominis, hoc belluarum, confugiendum est ad posterius, si uti non licet superiori. Quare suscipienda quidem bella sunt ob eam causam, ut sine injuria in pace Lawful recourse to War.' vivatur." It is the paramount duty of every independent political community to protect its members from suffering wrong, either at the hands of other members of the same community, or at the hands of members of other communities; and as it is a maxim of political law that no citizen can stand aloof and claim to be neutrarum partium in cases of civil tumult, so it is, by parity of reasoning, an axiom of international law, that no member of an independent political community can be at peace with any member of another independent political community, when the communities themselves are at war. For an individual citizen to stand aloof, when the united force of all the members of a political community is to be put forth against the members of another political community, would be to betray a primary duty of Civil Society, which is constituted after the fashion of a State, with the express design of the Sovereign Power enforcing the co-operation of all its subjects, at the proper times and places, in the business of mutual assistance and mutual defence. § 29. An appeal to the united force of all the members of a political community to procure Right to be done to one of its members on the part of a member of another political community, in other words a recourse to War, becomes lawful only when it becomes necessary 10, and it becomes necessary only when amicable negotiation has been tried and failed, or when it is morally certain to fail, if it should be tried, or when it cannot be tried without certain danger. According to the Fetial Law of the Romans no war was just which had not been preceded either 9 Cic. Off. L. I. c. 11. 10 Justum est bellum quibus necessarium, et pia arma, quibus nulla nisi in armis relinquitur spes. Livii Hist. L. IX. c. 1. by a formal demand of redress, or by declaration and proclamation of war. Ex quo intelligi potest, nullum bellum esse justum, nisi quod aut rebus repetitis geratur, aut denuntiatum ante sit et indictum". A Nation may with good cause have recourse to war, either to procure reparation for injury done, or to obtain security against injury threatened; in other words, a Nation may lawfully make war upon another Nation which has violated, or threatened to violate its rights. But if a Nation takes up arms, when she has not received any injury, nor is menaced with any injury, she has recourse to force without lawful cause. When an injury has been inflicted upon a Nation, it is right that reparation should be made to it if the injury be of a nature to be repaired, or in case that the mischief resulting from it be irreparable, then that compensation should be made, and further that securities should be taken by the Nation that the injury should not be repeated. Again, if an injury should be threatened, it is right that a Nation should protect itself and take securities for its future safety. Hence arises a distinction between wars which are made to redress injury, and wars which are undertaken to prevent injury. When war is undertaken to enforce the reparation of an injury, and to exact satisfaction for it, it is termed an offensive war; when it is undertaken to repel actual or threatened attack, it is called a defensive war. The latter, however, is not necessarily a just war; for if a Nation, which wages an offensive war, has justice on its side, its adversary has no right to make forcible opposition; and a defensive war will be in such a case an unjust war, for it is an act of injustice to resist any person who is asserting a lawful 11 Cic. Off. L. I. c. 11. Offensive and defen Vattel. right 12. But if the Nation which has been originally in the wrong offers to make restitution or reasonable satisfaction, and the other Nation is not content to accept it, the balance of right will incline in favour of the Nation which has offered satisfaction, and a defensive war on its part will be a just war. § 30. The distinction between an offensive and a sive War. defensive war in the sense in which these terms are employed by Wolff and Vattel, is not unimportant in its bearings upon the question, whether a Nation may have recourse to arms in the prosecution of Right against another Nation without previous notice. War," says Vattel 13, "is either offensive or defensive. The Power which takes up arms to repel the attack of an enemy, carries on a defensive war; the Power which is first to take up arms and attack a Nation which is living at peace with it, wages an offensive war. The object of a defensive war is simple; it is self defence. The object of an offensive war varies with the various affairs of Nations, but in general it has regard either to the prosecution of rights, or to security. In the case of a defensive war, when a Nation takes up arms to repel attack; the reason of the thing dispenses with any previous notice. By the Law of Nature," writes Grotius, "where either force is repelled by force, or punishment is inflicted upon him who is the offender, there no denunciation is required." It is otherwise, however, in the case of an offensive war. "But as often," continues Grotius," as one thing is to be taken for another, or the goods of a debtor to be seized for a debt, a formal demand is requisite, and still more Grotius. 66 12 Klüber, § 235, founds his distinction between a defensive and an offensive war on the circumstance of its justice or injustice. 13 Droit des Gens. L. III. c. 1. § 5. Wolff. Jus Gentium, § 615. |