CHAPTER XXVI. GENERAL OBSERVATIONS WITH REGARD TO PRINCIPLES OF THE LAWS OF WAR. social condition § 169. War between civilized Nations is that The abnormal abnormal social condition which is produced by of war. the temporary degeneration of the respective International Spirit of Law (§§ 14 & 155), the latter having ceased to be susceptible of conceiving the practicability of any means of settling differences otherwise than by force. Laws of war. Degeneration or retrogression of the moral-origin of the mental organism of man is a condition he plainly feels to be contrary to his nature and he strives therefore hard to raise himself above it, into his normal state of existence, in harmony with the Moral Law of Nature, which is perpetually urging the moral-mental organism to complete this harmony. Hence the strange phenomenon that, in the midst of the uncontrollable passions of their brutish propensities, civilized human beings, i. e., those which have reached the stage in creation called the moral-mental organism (§ 1), are imbued with a longing, an innate desire to bridle these passions. This is the manifestation of the influence which the Moral Law of Nature exercises on the moral-mental organism of man and this influence is the origin of the usages which are called Rules or Laws of War (comp. § 155). Thus war, though being a state of litigation between Nations in which the force of arms must act as judge and decide, is yet subject to rules which prevent it from degenerating into indis Origin of the obligations of neutrals and of the belligerent right of search and adjudication. . XXVI criminate massacres of human beings on either side, to end, as in the barbarian ages, with the extermination of one of the contending parties. It is due to the influence of the Moral Law of Nature on the human organism, which causes the development of civilization, that Justice and Benevolence, the two elements of that Law of Nature, though far from being as yet predominant in the human mind, are becoming more and more conspicuous in the present stage of creation on earth (§1). Hence the possibility of laws between Nations, in warfare as well as in peaceable mutual intercourse. Whilst in this condition of carrying on litigation by force of arms, the parties acquire, through the Laws of War, certain accidental rights ($26) called belligerent rights, which impose also certain obligations on third parties, called obligations of neutrality. These obligations of neutrality are based on the principle of strict impartiality towards parties in litigation and impose on neutrals the obligation,-when called upon in certain doubtful cases to prove their impartiality, -of granting belligerents, in special cases, the right of investigation and adjudication in matters, which, in a normal state of affairs, would be entirely outside their jurisdiction. Among the rights granted to belligerents, is that to visit and search neutral vessels or conveyances, which are suspected to be in unfair relation with an enemy, provided these proceedings take place in conformity with the generally acknowledged rules, which we termed above the Laws of War. The investigation of the condition, rights and obligations of belligerents towards each other, as well as towards neutrals, form the subjectmatter of the present fifth Part of this work. CHAPTER XXVII. THE CONDITION OF WAR AND ITS EFFECT ON PRIVATE INDIVIDUALS. $170. In paragraph 155 we have noted the relation in which war stands with regard to civilized societies, or rather to the natural laws governing these societies or States, and in paragraph 169 we stated our views with regard to the origin of those restraints placed by civilization on the ravages of war, which are called the Laws of War. We must now proceed to note the status which the condition of war is apt to create for the contending as well as for third parties. War is a relation between States alone, and States being the only subjects of International Law, that Law takes cognizance of the individual solely through his State and as belonging to it, so that, except as a member of his State, the private individual has, in the eye of International Law, neither personal nor propriety rights. From this principle,-which is acknowledged by almost all writers on the Laws of War,-it naturally follows that where neither personal nor property rights are acknowledged, there can neither exist any personal obligations nor any responsibility. War affects, in a direct manner, States only, not individuals, for States are the sole international units. "The community and its members,' says Mr. Hall, "except in their State form, being internationally unrecognized, any rights which way affects in States only, not a direct manner individuals. belong to them must be clothed in the garb of State rights, before they can be put forward internationally.' If this is the case with rights, it is a natural consequence that such must be also the case with obligations. As individual members of a State have no recognized international rights, the private individual cannot be involved in the international obligations of his State. The state of war entails no jus in personam against every private individual in the State, for whose liabilities any human creature belonging to the Nation indiscriminately,-widows and minors and their properties not excepted, may be sued in solidum and compelled ad dandum aut facien dum. The principle of the jus in personam is founded on the free will of men and results especially from the power which every individual has over his own acts, and nobody can ever possess such power over the acts of any body else so as to bind the latter to any obligations without his free consent, -for no one can acquire through another a jus in personam without distinct transfer. Thus the private individual can, per se, never be identified with the international acts for which his State as body politic and its agents of all descriptions are solely responsible, in conformity with the principle of International Law, consequently in war, there exists a relation of a State to a State and not of individuals versus individuals. The savage maxim that when war is declared between the two Nations, every individual member of the one is on the warpath against every person belonging to the other, is happily banished from the usages of warfare between civilized States and what is still * W. E. HALL. Intern. Law. Edit. 1880, p. 39. |