Page images
PDF
EPUB

subjects in time of war. The majority of the European continental writers for the last two generations have propagated the doctrine that no relation of enmity exists between belligerents and such private subjects, or between the private subjects of both belligerents. This doctrine goes back to Rousseau, "Contrat Social," I. c. 4. In 1801, on the occasion of the opening of the French Prize Court, the celebrated lawyer and statesman Portalis adopted Rousseau's 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. And although this new doctrine did not, as Hall (§ 18) shows, spread at once, it has since the second half of the nineteenth century been proclaimed on the European continent by the majority of writers. English and American-English writers have, however, never adopted this doctrine, but have 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 Anglo-American view is correct. 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, on the other hand, the whole controversy is unworthy of dispute, because it is only a terminological controversy without any material consequences. For, apart from the 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. Nobody doubts that such private individuals are safe as regards their life and liberty, provided

they behave peacefully and loyally, and that, with certain exceptions, their private property must 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 who treats such private individuals leniently according to the rule of International Law, can punish them for any hostile act, since they do not enjoy the privileges of members of armed forces. Although, on the one hand, International Law does by no means forbid, and, as a law between States, is not competent to forbid, private individuals to take up arms against an enemy, it gives, on the other hand, the right to the enemy to treat hostilities committed by private individuals as acts of illegitimate warfare. A belligerent is under a duty to respect the life and liberty of private enemy individuals, but he can carry out this duty under the condition only that these private individuals abstain from hostilities against himself. Through military occupation in war such private individuals fall under the territorial supremacy of the belligerent, and he can 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 commanders-in-chief of an army occupying the territory usually publish. Thus General Sir Redvers Buller, when entering the territory of the South African Republic in 1900, published the following proclamation:

"The troops of Queen Victoria are now passing through the Transvaal. Her Majesty does not make war on individuals, but is, on the contrary, anxious

1 See below, § 254.

to spare them as far as may be possible the horrors of war. The quarrel England has is with the Government, not with the people, of the Transvaal. Provided they remain neutral, no attempt will be made to interfere with persons living near the line of march; every possible protection will be given them, and any of their property that it may be necessary to take will be paid for. But, on the other hand, those who are thus allowed to remain near the line of march must respect and maintain their neutrality, and the residents of any locality will be held responsible, both in their persons and property, if any damage is done to railway or telegraph, or any violence done to any member of the British forces in the vicinity of their home."

It must be emphasised that this position of private individuals of the hostile States renders it inevitable that commanders of armies which have occupied hostile territory should consider and mark as criminals all such private individuals of the enemy as commit hostile acts, although such individuals 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 fusilés 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 can be treated and punished as warcriminals. Even those writers who object to 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.2

1 See, for instance, Hall, § 18, p. 74, and Westlake, Chapters, p. 262.

2 It is of value to quote articles 20-26 of the "Instructions for the Government of Armies of the United States in the Field," which the War Department of the United States published in 1863 during the War of Secession with the Southern member-States:

(20) "Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civil existence that men live in political, continuous societies, forming organised units, called States or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war."

46

(21) The citizen or native of a hostile country is thus an enemy as one of the constituents of the hostile State or nation, and as such is subjected to the hardships of war."

(22) "Nevertheless, as civilisation has advanced during the last centuries, so has likewise advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person,

property, and honour as much as
the exigencies of war will admit.”

(23) "Private citizens are no
longer murdered, enslaved, or
carried off to distant parts, and the
inoffensive individual is as little
disturbed in his private relations
as the commander of the hostile
troops can afford to grant in the
overruling demands of a vigorous
war."

(24) "The almost universal rule in remote times was . . . that the private individual of the hostile country is destined to suffer every privation of liberty and protection and every disruption of family ties. Protection was . . . the exception."

(25) "In modern regular wars

protection of the inoffensive citizens of the hostile country is the rule; privation and disturbance of private relations are the exceptions."

generals

(26) "Commanding
may cause the magistrates and
civil officers of the hostile country
to take the oath of temporary alle-
giance or an oath of fidelity to their
own victorious Government or
rulers, and they may expel every
one who declines to do so. But,
whether they do so or not, the
people and their civil officers owe
strict obedience to them as long as
they hold sway over the district or
country, at the peril of their lives."

| Belgium Belgium ???

War a conten

tion between

States for the purpose of over

each

other.

§ 58. The last, and not the least important, characteristic of war is its purpose. It is a contention between States for the purpose of overpowering each other. This purpose of war is not to be confounded with the ends1 of war, for, whatever the ends of war powering may be, they can only be realised by one belligerent overpowering 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 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 special restrictions imposed by the Law of Nations upon belligerents, all kinds and all degrees of force may be, and eventually must be, made use of in war in the interest and under the compulsion of its purpose and in spite of their cruelty 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 1 See below, § 66.

« EelmineJätka »