independence of the struggling State is a higher consideration than any individual well-being. 59. The characteristics of war as developed Civil War. above must help to decide the question whether so-called civil wars are war in the technical meaning of the term. It has already been stated above (in § 56) that an armed contention between memberStates of a Federal State and the latter and between a suzerain and its vassal ought to be considered as war because both parties are real States, although the Federal State as well as the suzerain may correctly designate it as a 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 fraction 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 from the beginning, nor become at all, war 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, as the case may be, as a belligerent Power.1 Through this recognition a body of individuals receives in so far an international position 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 very State within the boundaries of which the civil war broke out, and then other States will likewise in most cases, although they need not, 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 1 See below, §§ 76 and 298. VOL. II. 2 See above, Vol. I. § 63. F Guerilla Power before the State on whose territory the insurrection broke out so recognises them. In such case the insurrection is war in the eyes of these other States, but not in the eyes of the legitimate Government.1 Be that as it may, it must be specially observed that, 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. Nothing, however, 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 re-occupation by the legitimate Government of the territory occupied by them. $60. The characteristics of war as developed above are also decisive for the answer to the question whether so-called guerilla war is real war in the technical sense of the term. Such guerilla war must not be confounded with guerilla tactics during a war. It happens during war that the commanders send small bodies of soldiers wearing their uniform to the rear of the enemy for the purpose of destroying bridges and railways, cutting off communications and supplies, attacking convoys, intercepting despatches, and the like. This is in every way legal, and the members of such bodies, when captured, enjoy the treatment due to enemy soldiers. It happens, further, that hitherto private individuals who did not 1 See below, § 298.} take part in the armed contention 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. According to article 1 of the Regulations adopted in 1899 by the Hague Conference, such guerilla fighters enjoy the treatment of soldiers under the four conditions 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. 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 established Government, the capture of the main part and the routing of the remnant of its forces. And, secondly, there is no longer a contention between armed forces in progress. 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 the constant harassing of the victorious army, the destroying of bridges and railways, cutting off communications and supplies, attacking convoys, and the like, always in the hope that some event or events may occur which will induce the victorious army to withdraw from the conquered territory. But if 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 the captured members of those bands as soldiers. It is, however, not advisable that the victor should cease such treatment as long as those bands are under responsible commanders and observe themselves 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 these bands act not out of criminal but patriotic motives. With patience and firmness the victor will succeed in pacifying these bands without recourse to methods of harshness. II CAUSES, KINDS, AND ENDS OF WAR Grotius, I. c. 3; II. c. 1; III. c. 3-Pufendorf, VIII. c. 6, 9-Vattel, III. §§ 2, 5, 24-50, 183-187-Lorimer, II. pp. 29–48—Phillimore, III. §§ 33-48-Twiss, II. §§ 26-30-Halleck, I. pp. 488-519-Taylor, §§ 452-454-Wheaton, §§ 295-296-Bluntschli, §§ 515-521-Heffter, § 113-Lueder in Holtzendorff, IV. pp. 221-236-Klüber, §§ 41, 235, 237-G. F. Martens, §§ 265-266-Ullmann, § 141-Bonfils, Nos. 1002-1005-Pradier-Fodéré, VI. Nos. 2661–2670-Rivier, II. p. 219-Calvo, IV. §§ 1866-1896-Fichte, "Ueber den Begriff des wahrhaften Krieges (1815)-Rettich, "Zur Theorie und Geschichte des Rechts zum Kriege" (1888), pp. 141-292-Peyronnard, "Des causes de la guerre " (1901). Warfare Causes of § 61. Whatever may be the cause of a war that Rules of has broken out, and whether or not the cause be a indepenso-called just cause, the same rules of International dent of Law are valid as to what must not be done, may be War. done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and the neutral States. 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 for the fact that many writers maintain that there are rules of International Law in existence which determine 'and define just causes of war. It must, however, 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. § 62. The causes of war are innumerable. They Causes of are involved in the fact that the development of War. |