CHAPTER I ON WAR IN GENERAL I CHARACTERISTICS OF WAR Grotius, I. c. 1, § 2-Vattel, III. §§ 1-4, 69-72-Hall, §§ 15-18— 53. As within the boundaries of the modern War no State an armed contention between two or more illegality. citizens is illegal, public opinion has become convinced that armed contests between citizens are inconsistent with Municipal Law. Influenced by this fact, fanatics of international peace, as well as those innumerable individuals who cannot grasp the idea of a law between Sovereign States, frequently consider war and law inconsistent. 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 Concep tion of War. central authority can exist above them able to enforce compliance with its demands, war cannot always be avoided. International Law recognises this fact, but at the same time provides regulations with which the belligerents have to comply. Although with the outbreak of war all 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. The latter cannot and does not object to the States which are in conflict waging war upon each other instead of peaceably settling their difference. But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations between the belligerents and neutral States. That International Law, if it could forbid war altogether, would be a more perfect law than it is at present there is no doubt. Yet eternal peace is an impossibility in the conditions and circumstances under which mankind live and perhaps will have to live for ever, although eternal peace is certainly an ideal of civilisation. § 54. 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 recognised, and with regard to many points regulated, but not established, by International Law. Those writers who define war as the legal remedy of selfhelp 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 con 1 1 See, for instance, Vattel, III. § 1; Phillimore, III. § 49; Twiss, II. 26; Bluntschli, § 510; Bulmerincq, § 92. found 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 such State may then maintain that it exercises by the 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 in such case performed by the war. And the same laws of war are valid, whether wars are waged on account of legal or of political differences. conten. § 55. In any case, it is universally recognised War a that war is a contention, which means, a violent tion. 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 the commencement of a war may date back to its declaration or some other unilateral initiative act. Unilateral acts of force performed by one State against another 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 the particular acts as acts of war. Thus it comes about that acts of force performed by one State against another by way of reprisals or during a pacific blockade in the case of an intervention are not necessarily initiative acts of And even acts of force illegally performed by one State against another, such, for instance, as occupation of a part of its territory, are not acts of war as long as they are not met with acts of force from the other side, or at least with a declaration from the latter that it considers the particular acts as acts of war. Thus, when Louis XIV. of France, after war. War a contention between States. the Peace of Nimeguen, instituted the so-called Chambers of Reunion and in 1680 and 1681 seized the territory of the then Free Town of Strassburg and other parts of the German Empire without the latter's offering armed resistance, these acts of force, although doubtless illegal, were not acts of war. § 56. To be considered war, the contention must be going on between States. In the Middle Ages wars were known between private individuals, so-called private wars, and wars between corporations, as the Hansa for instance, and between States. But such wars have totally disappeared in modern times. It may, of course, happen that a contention arises between the armed forces of a State and a body of armed individuals, but such contention1 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 war. And a so-called civil war 2 need not be from the beginning nor become at all a war in the technical sense of the term according to International Law. On the other hand, to an armed contention between a suzerain and its vassal 3 State the character of war ought not to be denied, for both parties are States, although the fact that the vassal makes war against the suzerain may, from the standpoint of Constitutional Law, be considered rebellion. And likewise an armed contention between a full Sovereign State and a State under the suzerainty of another State, as, for instance, the contention between Servia and Bulgaria in 1885, is war. 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, § 113, and 2 See below, § 59. Again, an armed contention between one or more member-States of a Federal State and the latter ought to be considered as war in the technical sense of the term, according to 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 the recourse to arms by a member-State may therefore correctly, from the standpoint of the constitution, be called a rebellion. Thus the War of Secession within the United States between the Northern and the Southern member-States in 18611865 was real war. conten tion States armed forces. § 57. It must be emphasised that war nowadays War a is a contention of States through their armed forces. Those private subjects of the belligerents who do not between directly or indirectly belong to the armed forces do through not take part in the armed contention: they do not attack and defend, and no attack is therefore made upon them. This fact is the result of an evolution of practices which were totally different in former times. During antiquity and the greater part of the Middle Ages war was a contention between the whole of the 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 discriminative 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 are safe, as is also, with certain exceptions, their private property. This is a generally admitted fact. But opinions disagree as to the general position of such private |