XXVI On the other hand, the term "war" is used to describe the rela- CHAP. tionship set up between the parties at war, the state or condition of things resulting from the resort to forcible procedure.1 This derivative use of the term arises from the fact that international law, while recognizing the right of states to resort to war, has formulated rules governing belligerent procedure which define in detail the respective rights and duties of the contending parties. The state, or status, of war represents, therefore, the new legal relations arising between two or more states engaged in war. The derivative sense of the term "war, "it will be seen, is far more comprehensive than the original sense, since it includes not only the rules governing the actual employment of force but rules affecting the fundamental international rights of the two parties as between themselves, as well as their relations to third states. The distinction between the two senses of the term appears further in the fact that war as a state may exist before any act of force has been committed, and may continue after an armistice has been concluded putting an end to the armed conflict. of war" The rules regulating the procedure of war fill an important The "laws place in the modern development of international law. The devastation and general misery resulting from the Thirty Years' War forced the nations in 1648 to recognize as fundamental principles the territorial independence and legal equality of the members of the family of nations. These principles, it was hoped, might become the basis of a new and more stable international system; and in point of fact it was around them that there grew up by degrees a body of substantive rules defining the rights and duties. of nations within certain restricted spheres.2 This development of the substantive law was accompanied by a corresponding development of the procedure of war. Statesmen and publicists, unwilling or unable to deny to states at variance the right to maintain their claims by force, sought at least to regulate what they could not, or would not, abolish. Thus there grew up a body of restrictions 'Such was the conception of Grotius, who rejected the view, quoted from Cicero, of war as a contention, and held that usage applied the term not to an action but to a status. De Jure Belli et Pacis (Eng. trans.), Bk. I, Chap. I, II. See also Lieber's definition of public war as a state of armed hostility between sovereign nations or governments" in Instructions for the Government of Armies of the United States in the Field, No. 20. The distinction between the two senses in which war is taken is adverted to by Moore, Digest, VII, § 1100. 2 See above, pp. 19 ff. 'Grotius gave as his reason for writing his treatise that he "saw prevailing throughout the Christian world a licence in making war of which even barbarous CHAP. Special aspects of war and limitations upon the methods of warfare, which in their nature and scope reflected at successive periods the parallel growth of the substantive law. The development of these "laws of war" as between the belligerents themselves was, moreover, greatly furthered by the more effective assertion by third parties of their rights of neutrality. Modern international law thus finds itself divided into two separate and distinct branches, the one constructive in character, dealing with the normal rights and duties of states, the other procedural in nature, defining the relations between states which have resorted to force to maintain disputed claims. It has been common with authors to classify the two branches of the law as the "law of peace" and the "law of war.”1 But while this classification represents the fundamentally distinct character of the two branches of the law, it fails to indicate the relations between them, and the fact that the second is a form of procedure for the enforcement of the first. By presenting war side by side with pacific methods of procedure it is possible not only to obtain a more correct understanding of its true nature, but to estimate more accurately the conditions under which pacific methods of procedure have been set aside as inadequate, and the extent to which the abolition of war as procedure is dependent upon the further constructive development of the substantive law of peace. Two important aspects of war as a legal procedure remain to be noticed. In the first place, since international law does not undertake to pass in advance upon the wrongs which constitute a just ground of war, both parties in a particular war are regarded as being in an identical legal position and are held to be possessed of equal rights of belligerency.3 So long as the possible condem nations would have been ashamed; recourse being had to arms for slight reasons or for no reason; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint.' De Jure Belli et Pacis (Whewell's trans.), Prolegomena, § 28. The first two books of the treatise are devoted to a discussion of the substantive rules of law, under the caption of what constitutes a just war''; the last book discusses lawful methods of warfare. 66 1See, for example, the treatises of Westlake, Oppenheim, and Lawrence. 2 The conception of war as procedure is, however, implied by many modern writers even where not explicitly set forth. See, e.g., Hyde, International Law, II, § 596. The rule as stated by Vattel still held good in 1914. "Since, therefore,” he said, "Nations are equal and independent, and can not set themselves up as judges over one another, it follows that in all cases open to doubt the war carried on by both parties must be regarded as equally lawful, at least as re XXVI nation of public opinion does not take the form of actual interven- CHAP. tion in the conflict, the two belligerents not only may claim the same rights in respect to measures directed against each other, but may interfere to an equal degree with the commerce of third states. In the second place, the effects of war frequently transcend the original grounds of the conflict, and involve demands on the part of the victorious state more than commensurate with the redress alleged to be sought. The reason for this is the fact that the procedure of war involves not only a grave risk on the part of the state resorting to it, but such serious loss of life and derangement of domestic conditions that the successful belligerent is justified in making use of the opportunity to prevent a future recurrence of the same necessity. The terms of peace, therefore, bear only such relation to the causes of the war as the victorious state may think expedient in the light of the desirable relations of the two states in the future and the sanction of international public opinion. Speaking strictly, the international law of war holds only Civil war between states that are members of the international community. Consequently, should a part of a state, whether province or colony, arise in rebellion against the existing de jure state organization, the contest between the two bodies need not assume any other aspect than that of a domestic insurrection, to be put down by the de jure government in such manner as seems best under the circumstances. When, however, the contest assumes such proportions that third states are necessarily affected, the community in revolt may be recognized as a belligerent and thereby become entitled to the rights, as well as obligated to the duties, of a belligerent state. The same is true of a body of insurgents who, without seeking to break up the territorial organization of the state, attempt to overthrow the de jure government. When recognition of the belligerency of the rebels is given by the de jure government, third states as a rule accept the situation with its resulting inconvenience to themselves. On the other hand, third states will at gards its exterior effects and until the cause is decided." Droit des Gens (Eng. trans.), Bk. III, § 40. For the effect of the Covenant of the League of Nations upon the old rule, see above, p. 381. "If war has once broken out, says Oppenheim, "the very national existence of the belligerents is more or less at stake. The risk the belligerents run, the exertion they make, the blood and wealth they sacrifice, the reputation they gain or lose through the changing fortune and chances of war-all these and many other factors work or may work together to influence the ends of a war so that eventually there is scarcely any longer a relation between them and the causes of war." International Law, II, § 66. See above, p. 108. CHAP. Sources of custom Limited force of conventions times themselves grant recognition of belligerency as in the case of Great Britain with respect to the Confederate States in 1861when the measures taken by the de jure government encroach upon their normal rights of commerce.1 The sources of the law of war are, as in the case of the substantive part of international law, on the one hand the customary principles announced by states and the conduct actually practised by them, and on the other hand the several international conventions that have been adopted covering special fields of belligerent relations. In two respects, however, custom and convention have a more limited application as sources of the law of war than as sources of the substantive law. In the first place, it is in many cases difficult to judge what practices have received the approval of the international community as a whole. In respect to general principles it may be possible to register a fairly definite customary agreement. But owing to the restricted area of war, involving as a rule only two contending parties, the application of general principles to concrete situations leaves wide room for controversy. Moreover, the external conditions of warfare have changed so rapidly in modern times that rules accepted in one generation may be repudiated in the next, and a valid defense offered upon the principle, rebus non sic stantibus. In a number of cases new rules of law have been born of violations of existing custom, which, when the war was at an end, commended themselves as reasonable extensions of the law to meet new circumstances.2 In the second place the binding force of the various conventions adopted within recent years regulating the conduct of hostilities. and the relations between belligerents and neutrals has been modified in each case by the provision that the particular convention shall be binding upon the signatory powers only if all the belligerents are parties to the convention. The effect of these provisions has been that if, in a war between a large number of states, a single belligerent, as, for example, Serbia in 1914, has failed to sign or, having signed, has failed to ratify, a convention, the entire agreement falls to the ground. In this connection, however, it is important to note that many of the conventions adopted 1 See above, p. 109. See, in illustration, the rules of contraband and blockade enforced by the United States against neutrals in 1861. Below, p. 540. Compare, however, the attitude taken by the United States and Great Britain toward submarines, below, pp. 512-517. See, for example, Article 2 of the Convention Respecting the Laws and Customs of War on Land, adopted at the Hague, 1899 and 1907. XXVI at the two Hague conferences codify to a greater or lesser extent CHAP. existing rules of customary law; so that even should the convention as such cease to be binding, many of its specific provisions will continue to possess the force they originally had as customary law. Thus the whole conduct of belligerent operations during the World War must be judged by a standard determined by what was believed to be already obligatory in 1907 and 1908 when the new codifications of the laws of war were being drawn up. It may be observed that the discussions attending the drafting of these codifications throw valuable light upon the content of the customary law as understood at the time. Owing, however, to the uncertainty attending the rules of customary law, and to the difficulty of sifting custom from unratified and non-obligatory convention, the whole international law of war remains in a state of flux, and the attempted definition of it in the following pages will be accompanied by qualifications and restrictive conditions which will appear little consistent with the term "law.' Sanctions of war The sanction of the laws of war is similar in most respects to the sanction applicable to the substantive rules of international of the laws law. In so far as concerns the general conduct of the belligerents, respect for the law is maintained by their regard for neutral public opinion, which in time of war is generally more watchful and acute than in time of peace. When, however, one of the belligerents resorts to practises which the other believes to be flagrantly illegal and neutral public opinion is of no avail as a present remedy, the second belligerent may resort to reprisals as a means of bringing pressure upon the offending state to discontinue its illegal conduct. The separate rules dealing with the relations of belligerent and neutral states is specially sanctioned by the active interest which neutral states have in resisting any extensions by the belligerents of their acknowledged right to interfere with neutral commerce. While, therefore, the history of international relations · records the constant tendency of belligerents to overleap the restrictions placed upon them, it also records the restraining influence on the one hand of the fear of reprisals and on the other hand The inconsistencies, both logical and moral, of the laws of war, have led many publicists to denounce the attempt to define these laws or to be concerned with their application in the future. Niemeyer, for example, in his recent handbook, relegates the law of war to an appendix. Völkerrecht (1923). It is the function, however, of a treatise on positive law to set forth existing rules irrespective of considerations bearing upon their moral or social value. 'For a discussion of the nature and scope of reprisals, see below, p. 489. "See below, p. 528. |