Distinction between international violence and violence in municipal life.. §603 Power to make war and factors restraining... 8604 Cause, purpose, motives, functions and objects of war.. $605 $600. We now come to the discussion of war, which is the result of two or more states applying force to each other simultaneously.' The discussion in this chapter will be confined to the general principles relating to war, relegating to subsequent chapters the position of neutrals, the means of carrying on the war, and the status of per ons and property in war.2 DEFINITION OF WAR. §601. War is a contention by force between independent states. A number of definitions have been collected in the note, many of which, in the eagerness of the framers to incorporate ethical ideas, go too far and attempt to describe the cause, purpose or object of the war. We are concerned only with the fact that there is a war. War, therefore, is not a means of redress or self-help, as sometimes supposed, but a condition or relation arising from the application 1 Some writers class war as abnormal, and peace as normal; 1 Lorimer, Inst. (1883-4) 5, 6; Wilson & Tucker, Int. L., (1901) 229. It is difficult to understand the distinction. War is fighting, and there is nothing abnormal about a fighting man, so why should men fighting in a body be abnormal? This distinction illustrates the undue emphasis of ethics which pervades the discussion of international law. See $105, ante, on ethics in international law. * See Chapter 12-Neutrality. 13Conduct of hostilities. 14 Property see Walker, Man. Int. L., (1895) 102. "War: A contest as between nations or states carried on by force and with arms; also, the condition of things created by such contest;" Funk & Wagnalls Standard Dictionary. “War, in a material sense, is a struggle or contention between States and belligerent or insurgent communities through organized armed forces. In a legal sense war is the status or condition under which such a contest is carried on, and consists of the rules by which it is regulated;" Hershey, Int. L., (1912) 349. "War has been defined as a contest between States or parts of States, carried on by force;" 1 Halleck, Int. L., 4 ed. (1908) 553. "War may be defined as a contest carried on by public force between states, or between states and communities having with regard to the contest the rights of states, the parties to it having the intention of ending peaceful relations, and substituting for them those of hostility with all the legal incidents thereof;" Lawrence, Int. Law, 5 ed. (1913) 331. "War is described thus: It is a contention arising by reason of something discordant offered to human desire, tending to exclude the discordancy;" Legnano, War, (1360) Carnegie Ed., 216. "War is that state, in which men constantly exercise acts of indeterminate violence against each other;" Martens, G., Law of Nations, (1788) Cobbett's Trans. VI. II. I. "War may, therefore, be defined to be the condition of States between which there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign of the several states;" Manning, Int. L., 2 ed. Amos. (1875) 133. "War is the contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. War is a fact recognized, and with regard to many points regulated but not established by International Law;" 2 Oppenheim, Int. L., 2 ed. (1912) 60. "War is the exercise of the international right of action, to which, from the nature of the thing and the absence of any common superior tribunal, nations are compelled to have recourse in order to assert and vindicate their rights;" 3 Phillimore, Int. L., 3 ed. (1879-1888) 77. "War then may be regarded as an alternative state of international relations which supersedes the relations of Peace, whenever Nations prosecute their Right by force;" Twiss, War, 2 ed. (1875) 49. See discussion of various definitions. Twiss, War, 2 ed. (1875) 43-50. "War is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force; but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it;" Vattel, (1758) Chitty's Trans. Book III. §1. "War may be defined to be an interruption of a state of peace for the purpose of attempting to procure good or prevent evil by force; Woolsey, Int. L., 6 ed. (1897) 176. "A contest by force between independent sovereign States is called a public war;" Wheaton, Elements, Dana's ed. (1866) 373. "War is the state or condition of governments contending by force;" 2 Westlake, Int. L., 2 ed. (1913) 1. "War is, where a sovereign state prosecutes its claim by force of arms;" 2 Wildman, Int. L., (1850) 1. "Broadly defined, war is a properly conducted contest of armed public forces or the legal condition under which such contest would be authorized;" Wilson, Int. L., (1910) 241. See other definitions collected in Ibid. 241n'. "War is a lawful contention, that is, a contention moved by legitimate authority, and for a lawful cause;" Zouche, L. of Nations (1650), Carnegie ed., Part I. VI. I. Municipal and International Violence. §§602, 603 of force by way of self-help by one state to another, and this distinction is of importance, because, as we have seen, the application of force may not result in war.1 A difference of opinion has developed as to whether war is a condition or a relation. The controversy is unimportant. War is a condition, in so far as it is a state or a mode, in which the states which are contending exist for the time being, and a relation in so far as it is the bearing of the states upon one another. War, therefore, is both and no useful purpose is served by regarding the controversy from one point of view or the other because no question whatever turns upon the distinction. UNLITERAL ACTS OF FORCE DISTINGUISHED from War. §602. Unilateral acts of force commonly referred to as acts of force not resulting in war do not constitute a war unless the state against which they are applied resists by acts of force. In short, war is simply bilateral force. This distinction has given some trouble." The question of intention is immaterial,' as no intention by one party to begin a war would have any effect unless the other side resists and they join in forcible contention and there is in fact a war.s DISTINCTION BETWEEN MUNICIPAL VIOLENCE AND INTERNATIONAL VIOLENCE. §603. The distinction, between violence in municipal life and violence in the international world is that the former is subject to political restraint and the latter is not. When therefore, a municipal he seized the free town of Strassburg and other parts of the German Empire without the latter offering any armed resistance. 'Although so supposed by Lawrence, Int. Law, 5 ed. (1913) 331. See Martens, G., Law of Nations, (1788) Cobbett's Trans. VI. II. 7. As to distinction between unilateral act and war, see Vattel, (1758) Chitty's Trans. Book II. §354; 2 Westlake, Int. L., 2 ed. (1913) 2; 2 Wildman, Int.. L., (1850) 2. 9 Vattel, (1758) Chitty's Trans. Book III. §4. court decides that a certain act is jure belli and not within its jurisdiction, it simply recognizes that it is confronted with a case of violence which is beyond the political power of the state of which it is a part. The question whether that violence is beyond the power of the state is for the executive department to decide, and such decision is binding upon the court.10 When, therefore, there is a recognition of belligerency," the state recognizing it admits that the violence of the insurgency is outside the municipal power of the parent state from which it is revolting and beyond the municipal power of any state recognizing the belligerency. International violence or war, therefore, is violence permitted or suffered by independent states for the reason that there is no way to stop it, as there is no political power superior to them. As it is commonly said, war is lawful according to international law.12 The more accurate statement is that it is not unlawful because the power to make war is not restrained except to a small degree by the international factors of conduct. POWER TO MAKE WAR AND FACTORS RESTRAINING. §604. It is perfectly obvious that since there is no political power superior to the independent states of the world, every such independent state has full and unrestrained power to engage in a contest by force with any other state whenever it sees fit. It is a matter entirely within its own discretion as to how far it will proceed in such a case. The writers sometimes say that independent states have a right to engage in war.13 In this case the word is obviously used in the sense of power. 14 The power to make war is restrained by the international factors of conduct and at the same time the self-interest of a state will sometimes powerfully impel engaging in a war. In modern times popular feeling is an important factor, sometimes forcing the government of a state into a war to be condemned on ethical and practical grounds. 10 See §76, ante, on municipal effect of state act. "See §84, ante, on recognition of belligerency. 12 Grotius, Belli. ac. Pacis (1625), Whewell's Trans. I. II.; Hall, Int. Law, 6 ed. (1909) 60; 2 Oppenheim, Int. L., 2 ed. (1912) 59, 60; Twiss, War, 2 ed. (1875) 51 et seq.; Zouche, L. of Nations (1650), Carnegie ed., Part II. 13 1 Halleck, Int. L., 4 ed. (1908) 574; Manning, Int. L., 2 ed. Amos. (1875) 13.1; 2 Oppenheim, Int. L., 2 ed. (1912) 91, distinguish between legal qualification and power. 14 See $115, ante, on rights in international life. |