14 MILITARY AID TO THE CIVIL POWER 19. WAR.-The ultimate step by a state to redress its injury is the suspension of all friendly relations with the offending state and a resort to such acts of hostility as are authorized by the laws of war. International law has nothing to do with the inherent rightfulness or wrongfulness of war, or with what constitutes a just cause for war, the only check upon these being international public opinion. It does, however, come within its province to determine how war between civilized states shall be carried on, and with what formalities it shall begin and end. SECTION III Effects of a State of War Effect upon belligerents Effect upon neutrals Effect upon hostile territory occupied by our forces 20. EFFECT UPON BELLIGERENTS. The principal effects of a state of war upon belligerents are as follows: a. The belligerent states and their citizens or subjects are placed in a state of non-intercourse with each other. b. Commercial intercourse between citizens or subjects of the belligerent states becomes illegal. c. Each citizen or subject of one belligerent state becomes the legal enemy of every citizen or subject of the other. d. Legal obligations arising out of contracts with the enemy's citizens or subjects, also partnerships and other business arrangements with them, are suspended during the continuance of hostilities. e. Debts due the enemy's citizens or subjects are suspended during the war, but revive upon its termination. f. Citizens of one belligerent state in the territory of the other may be required to depart or may be allowed to remain. The latter course is usually followed. Those ordered to go are allowed a reasonable time within which to remove their property. Those allowed to remain may be subjected to such special police *The effects of a state of war really pertain to that subdivision of international law known as the Laws of War, a subject which is to be considered more in detail in the next chapter. INTERNATIONAL LAW 15 regulation and supervision as may be deemed necessary. The private property of those remaining is not confiscable so long as they conduct themselves properly. g. Merchant ships of a belligerent in an enemy's port at the outbreak of war become prize. They were formerly allowed to depart with their cargoes and were allowed ample time to arrive at a home port or the port of a neutral. This rule was never followed by the United States, and it has now dropped into general disuse. h. Treaties of alliance, of subsidy (obliging a state to furnish arms, ships, troops, money, or other aid), and of guaranty, made in anticipation of the war, come into effect. 21. EFFECT UPON NEUTRALS.-a. Strictly speaking, the relationship existing between two states at any time must be either that of peace or war. International law recognizes no intermediate condition. Neutrality is of comparatively recent growth. Among the ancients, war was the normal state of mankind. All nations participated in it, either as principals or allies. Had any state at that time attempted to compel respect for neutral rights even remotely resembling those pertaining to the neutrality of today, the belligerent against whom the attempt was made would have regarded it as an act of war. This state of affairs continued until about the close of the Middle Ages, at which time the modern idea of state sovereignty and territorial independence began generally to be recognized. b. Today the status of neutrality is involuntary. It is imposed upon a non-belligerent state by the mere fact that war exists between other states with which it is at peace. Neutrality becomes operative upon the declaration of war or outbreak of hostilities, and is publicly assumed and made known by publication by the neutral of a proclamation enjoining its citizens or subjects from participating in the operations of the war. War used to be declared with great formality in order that neutrals might be advised of its existence. This is not so essential in these days of rapid communication, for the fact that strained relations have arisen between states now becomes known at once throughout the civilized world. It is known when diplomatic intercourse ceases, when ministers are withdrawn, and when the armies and navies of the contending states are being mobilized and 16 MILITARY AID TO THE CIVIL POWER placed upon a war footing. Nevertheless, the rule laid down by the second Hague Conference was that hostilities "must not commence without previous and explicit warning, in the form of either a declaration of war with the reasons assigned for it or of an ultimatum with conditional declaration of war." This rule was violated during the World War by Germany, Austria, Turkey, and Bulgaria. However, regardless of whether a formal declaration of war is necessary between the contending states themselves, each is obliged to give notice of its intentions to its own citizens or subjects, and to neutrals. This notice is usually given by means of a proclamation which announces the date after which hostilities will be considered to exist. c. With respect to the occupations in which the inhabitants of neutral states may be engaged at the outbreak of war, it is to be remembered in connection with the production, manufacture, or distribution of articles designed primarily for war uses that such articles, if found at sea en route to a hostile destination, become contraband and are liable to capture and condemnation by a belligerent. As to trade in articles not designed primarily for war uses, if carried on with certain ports against which a belligerent decides to exercise the right of blockade, any attempt to continue such trade after such right has been exercised would constitute a violation of the blockade, with attendant liabilities and penalties as prescribed by the law of nations or as stipulated in particular treaties. In all other cases, the undertakings of the inhabitants of neutral states are not legally affected or interrupted by the fact of war. With reference to the manufacture of contraband articles within neutral jurisdiction, Thomas Jefferson, then Secretary of State, made use of the following language in a statement to the British Minister on May 15, 1793 (III Jefferson's Works, pp. 558-560): "Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings the only means, perhaps, of their subsistence-because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in prac INTERNATIONAL LAW 17 tice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement of their occupations. It is satisfied with the external penalty pronounced in the President's proclamation-that of confiscation of such portion of these arms as shall fall into the hands of the belligerent powers on their way to the ports of their enemies." The Supreme Court of the United States, in the case of The Bermuda (3 Wallace, 514), announced that "Neutrals in their own country may sell to the belligerents whatever belligerents may choose to buy. The principal exceptions to this rule are that neutrals must not sell to one belligerent what they refuse to sell to the other, and must not furnish soldiers or sailors to either; nor prepare, nor suffer to be prepared, within their territory, armed ships or military or naval expeditions against either. So, too, except goods contraband of war, or conveyed with intent to violate a blockade, neutrals may transport to belligerents whatever belligerents may agree to take. And so, again, neutrals may convey, in neutral ships, from one neutral port to another, any goods, whether contraband of war or not, if intended for actual delivery at the port of destination and to become part of the common stock of the country or of the port." d. The practice and attitude of nations is not to enact legislation prohibiting their citizens or subjects from trafficking in articles which may become contraband of war, but simply to regard such trade as carried on at the risk of those engaged in it. The law of nations exposes contraband-carrying ships and their cargoes to seizure and confiscation, and deprives persons engaged in such traffic of the right to look to their home governments for protection. Some continental writers claim that a certain amount of governmental regulation and interference in this respect is necessary, but the rule adopted by the Second Peace Conference at The Hague was that "a neutral power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which can be of use to an army or fleet." A similar rule was adopted respecting undertakings on land. 22. EFFECT UPON HOSTILE TERRITORY OCCUPIED BY OUR FORCES.-a. We have seen that international law has to do with the events leading up to war, with the manner in which the war shall be conducted once it is under way, and with 18 MILITARY AID TO THE CIVIL POWER the formalities with which it shall come to an end. When hostilities cease, it is usually the case that at least one of the belligerents will be in possession of hostile territory which he may intend to hold either temporarily or permanently. The holding of the conquered territory pending the determination of its fate at the peace table, and thereafter as may be necessary to the proper disposition of such territory, is regarded as mere military occupation. Castine and Tampico have already been cited as examples of temporary occupation. A case of permanent occupation is that of California, with reference to which the authority and jurisdiction of Mexican officials terminated on July 7, 1846. On that day the United States forces took possession of Monterey, the capital of California, and soon afterwards occupied the principal portions of the country. The military occupation continued until after the treaty of peace (Guadalupe Hidalgo) in 1848. b. The fact of military occupation causes the old civil government to cease, and it is not only the right but the duty of the conqueror to put a government in its place that will provide for the maintenance of civil order and for the protection of the rights of the inhabitants. He may put back practically the same old civil government, with such modifications as the military situation demands, or he may establish a new and completely different system. Just what would be appropriate under different situations will be taken up later in the chapter on military government. It should be emphasized at this time, however, that whatever form of government is established is that of the conquering state. In appearance, and for all practical purposes, the old government may be continued, but, in theory and in fact, there is an absolute break which transfers the source of the government to the conqueror. He merely adopts and imposes it as his own. During such period as may intervene before he announces his intention in this respect, the old municipal laws of the conquered territory, such as affect the private rights of persons and property and provide for the punishment of crime, are regarded as adopted and continuing in force until suspended or superseded. |