CHAPTER II. Rights of war against an enemy. Limits to the rights of war against the person of an enemy. RIGHTS OF WAR AS BETWEEN ENEMIES-LAND WARFARE. IN general it may be stated that the rights of war, in respect to the enemy, are to be measured by the object of the war. Until that object is attained, the belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms, so long as the means adopted is not contrary to existing law or repugnant to the general sense of mankind. We have already seen that the practice of the ancient world, and even the opinion of some modern writers on public law, made no distinction as to the means to be employed for this purpose. Even such institutional writers as Bynkershoek and Wolf, who lived in the most learned and not least civilized countries of Europe, at the commencement of the eighteenth century, assert the broad principle, that everything done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, and even poison, may be employed against him; and that an unlimited right is acquired by the victor to his person and property. Such, however, was not the sentiment and practice of enlightened Europe at the period when they wrote, since Grotius had long before inculcated milder and more humane principles, which Vattel subsequently enforced and illustrated, and which are adopted by the unanimous concurrence of all the public jurists of the present age (a). The law of nature has not precisely determined how far an individual is allowed to make use of force, either to defend himself against an attempted injury, or to obtain reparation when refused by the aggressor, or to bring an offender to punishment. We can only collect, from this law, the general rule, that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign States existing in a state of natural independence with respect to each other. No (a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. Wolfius, Jus. Gent. § 878. Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 4, §§ 5-7. Vattel, Droit des Gens, liv. iii. ch. 8. A bel use of force is lawful, except so far as it is necessary. modern From the immense armies at present maintained by most Tendency in European States, there seems to be little prospect of their resorting warfare. to anything but hostilities for the settlement of their differences. But there is a very widespread desire to alleviate the horrors of war as much as possible, and to confine its operation to disabling the enemy without inflicting unnecessary suffering upon him. Civilization has a double effect upon war. It tends to make men more humane, but it also enables them to devise more terrible engines of destruction. The result is that while civilized nations are continually adopting more and more terrible weapons for defending themselves or attacking others, they are at the same time endeavouring to establish rules of international law which shall make the use of their weapons as consistent with humanity as the nature of things will permit. War is an abnormal condition of States, but it is not, for that Fundamental reason, a condition of unrestrained lawlessness and license. Not principles. everything may be done that impetuous fury may dictate. War is primarily a relation between States and Governments, represented in the conflict by definite military and naval forces; it is only secondarily a relation between the respective subjects individually. Peaceable and inoffensive inhabitants taking no part in the contest should be immune from attack. Neither person nor property should be injured or damaged, if the legitimate purpose of the belligerent is not thereby clearly promoted, and the overcoming of (b) Rutherforth, Inst. b. ii. ch. 9, § 15. See post, pp. 476 seq. When reprisals justifiable. his enemy not facilitated. The instruments of warfare should be such as do not inflict unnecessary or superfluous injury or damage. The object of a belligerent is obviously attained if he puts hors de combat the adversary; the infliction of unnecessary suffering is not indispensable to achieve this object. The principle of humanity condemns all instruments and methods of warfare that involve gratuitous cruelty, savagery, or treachery; it reprobates, therefore, the ill-treatment of the helpless and the disarmed, including the wounded and prisoners, the aged and feeble, women and children. The principle of chivalry calls for the maintenance of pledged faith, the fulfilment of promises and engagements, the manifestation of generosity at a moment of triumph. Where, however, one of the belligerents persistently disregards the principles and prescriptions of the laws and usages of war, the other is then entitled to adopt measures of reprisal, to compel the law-breaking combatant to discontinue his conduct, and to exact reparation. Such measures of retaliation may be proceedings that are either different in kind from or more severe than those sanctioned by law and custom for regular and legitimate warfare. They should be resorted to only on the authority of the Government or the commander after the truth of the enemy's guilt has been established, and after the enemy has been called upon to put a stop to his misconduct. They should not be applied merely in a spirit of vindictiveness; for their purpose is to obtain redress or ensure compliance with established rules. They ought not to be widely disproportionate to the offences committed; and, in general, they should not be incompatible with the conceptions of justice and humanity (c). Some of the fundamental principles of warfare set forth above were recognised by the Declaration of St. Petersburg, 1868. It observed, in its preamble, that the progress of civilization should have the effect of alleviating as much as possible the calamities of war, and laid down that the only legitimate object which States should endeavour to accomplish during war is to weaken the military power of the enemy. In the last quarter of the nineteenth century the movement for mitigating the severities of warfare and regularizing its proceedings by way of establishing a written code of law gathered force. (c) Cf. the rules of the Instit. of Int. Law drawn up at Oxford, 1880, Arts. 85, 86; in Annuaire de l'Instit. de Droit Int. vol. v. p. 174. In 1874, a Conference, attended by delegates from all the coun- The Brussels Conference, tries of Europe, assembled at Brussels, on the invitation of the 1874. Emperor of Russia, for the purpose of discussing a project of international rules on the laws and usages of war. A series of rules on warfare on land was agreed to, but no international compact was entered into. "A careful consideration of the whole matter," wrote Lord Derby, "has convinced Her Majesty's Government that it is their duty firmly to repudiate, on behalf of Great Britain and her allies in any future war, any project for altering the principles of international law upon which this country has hitherto acted, and above all to refuse to be a party to any agreement the effect of which would be to facilitate aggressive wars, and to paralyse the patriotic efforts of an invaded people” (d). Nevertheless, though not absolutely binding, the rules were of great value in exhibiting the prevailing ideas in a definite form (e); and many of them found a place in the Manuals of War issued by most civilized Governments for the instruction of their officers in the field (f). 1899, 1907. At the Hague Peace Conference of 1899, the representatives of Hague Conall the States there assembled, with the exception of China, signed ventions of a Convention concerning the laws and customs of land warfare, which was based to a large extent on the Declaration of Brussels. It allowed the adhesion of non-signatory Powers and denunciation by any one of the signatories on a year's notice to the Netherlands Government (g). The Convention comprised a systematized body of regulations, and required the parties thereto to issue instructions to their land forces in conformity with these regulations. The Second Hague Conference, 1907, reaffirmed this requirement, and re-established the Regulations (incorporating in them various improvements and additions) in its Fourth Convention, of which the preliminary Articles are as follows: 1. The contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land, annexed to the present Convention. 2. The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention. (d) Lord Derby to Lord A. Loftus, 20th January, 1875. Hertslet, Map of Europe, vol. iii. p. 1976. (e) The whole of the proceedings of the Conference will be found in Parl. Papers, Miscellaneous (No. 1), 1875. Persons exempt from acts of hostility. 3. A belligerent party that violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 4. The present Convention, duly ratified, shall replace, as between the contracting Powers, the Convention of the 29th July, 1899, respecting the Laws and Customs of War on Land. The Convention of 1899 remains in force as between the Powers which signed it, but which do not ratify the present Convention (h). All the members of the enemy State may lawfully be treated as enemies in a public war; but it does not therefore follow, that all these enemies may be lawfully treated alike; though we may lawfully destroy some of them, it does not therefore follow, that we may lawfully destroy all. For the general rule, derived from the natural law, is still the same, that no use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government (though modern views would sanction the capture of the latter and their treatment as prisoners of war, inasmuch as the administration of the enemy State would be disorganized, and its military capacity indirectly diminished), women and children, cultivators of the earth, artisans, labourers, merchants, men of science and letters, and, generally, all other public or private individuals engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war, by which they forfeit their immunity (i). In earlier times the unarmed inhabitants of an invaded country were liable to be treated very much like the armed combatants; practices varied according as the commanders were chivalrous or ferocious and cruel. Mitigations were repeatedly urged by councils and writers; thus it was urged that ecclesiastics, merchants, farmers, shepherds, and all peaceful inhabitants should not be attacked, and that the women and children of even infidel nations should not be subjected to violence. In the Thirty Years' War the belligerent proceedings were marked by an atrocious and retro (h) Hague Conf. (1907), 4th Convent. Arts. 1-4. (i) Rutherforth, Inst. b. ii. ch. 9, § 15. Vattel, Droit des Gens, liv. iii. ch. 8, §§ 145-147, 159. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, sect. 2, ch. 1, §§ 245-247. |