PART IV WAR-RELATIONS OF BELLIGERENTS CHAPTER XVII GENERAL QUESTIONS AS TO WAR. OUTBREAK OF WAR. ARMED FORCES OF THE STATE 134. General Questions as to War.-In Doctor Francis Lieber's code for the instructions for the government of armies of the United States in the field will be found the following definition of public war, which remains, to my belief, the best definition extant. "Public war is a state of armed hostilities between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy and suffer, advance and retrograde together, in peace and in war. "The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war. "Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." 1 Lieber's "Instructions," etc., found in Appendix A, Davis, "Int. Law." To this may be added the following: that "the general object of war is to procure the complete submission of the enemy at the earliest possible period with the least expenditure of life and property."1 The cause of war may be, in general, defined as the result of a conflict of wills between two or more states or governments. War, it has been well said, is a political fact rather than a legal right and is a high exercise of the sovereignty of the state and an essential right inherent in such sovereignty.2 War changes the relations of all states. The relations of the contending parties, who become known as the belligerents, are at once directly affected by this change from a normal to an abnormal state of affairs, and indirectly the relations of the states which take no part in the war become changed toward the belligerents as they now assume the position of neutrals. In the eyes of international law all wars are just, in so far as the belligerent rights of the parties are concerned. That is to say, third states or neutrals are not permitted to hold that one of the parties is wrong and hence not entitled to the rights of war.3 There is an important distinction between war upon the land and that upon the sea, and a growing distinction still further between maritime and land warfare and that known as aerial warfare. These differences are not only due to the difference of the theatre of action but also to the instruments of warfare and the methods of combat. In addition, there is the difference in the judicial application bearing upon one as distinguished from the other and the codes of laws pertaining to each. A close discussion of these differences with the accompanying codes of law will be found in future chapters. 135. Outbreak of War.-The most recent and definite contribution to this subject is found in the Convention III of 1 "Laws and Usages of War at Sea," Stockton, p. 5. p. 349. Snow's "Int. Law," ed. by Stockton, 2d ed., p. 76. the second Hague conference relative to the commencement of hostilities. This has been ratified by the United States and signed by almost all of the nations composing the second Hague conference. Article I of this convention contains the following words: "The contracting powers recognize that hostilities between them must not commence without a previous and unequivocal warning, which shall take the form either of a declaration of war, giving reasons, or of an ultimatum with a conditional declaration of war." Article II continues: "The state of war should be notified to the neutral powers without delay and shall not take effect in regard to them until after the receipt of a notification, which may even be made by telegraph. Nevertheless, neutral powers cannot plead the absence of notification if it be established beyond doubt that they were in fact aware of the state of war.' The period of time between the declaration of war and the commencement of hostilities is left by this convention undetermined. "The use of a declaration does not, of course," as Hall says, "exclude surprise, but it at least provides that notice shall be served an infinitesimal space of time before a blow is struck."1 An amendment was proposed by the Dutch delegation at The Hague providing that hostilities should not commence until the lapse of twenty-four hours from the time of the definite declaration of war. This was rejected, but if adopted might have important consequences with respect to possible changes of position of naval forces and military transports with resulting grave effects in the early stages of a maritime campaign. Italy, since the adoption of The Hague convention in 1911, allowed no period of time after the ultimatum was delivered to Turkey, but commenced hostilities strictly without delay. The declarations of war and the recognition of its existence was very much complicated in the present European 1 Hall, "Int. Law," 6th ed., p. 378. war by the vast area of the war and the number of states engaged and the alliances formed by circumstances. It is too early to discuss this matter intelligently. The convention just referred to applies, of course, only to the signers of the convention but it may be said to be established with respect to all wars between states. In cases of civil war no declaration or ultimatum is used, but an act by which belligerency is recognized either by the titular government or external powers converts it into war with a more or less definite date for its commencement and conclusion. The government against which the insurrection or rebellion is directed, should, especially if the rebel forces have a real government at their head, recognize the state of war as a matter of humanity. In regard to armed interventions which become war, Westlake says that "what has been said about the commencement of war will not in general apply to those armed contests which arise out of the intervention of a state in the internal dissensions of another state. Such interventions are usually undertaken by stronger powers in the affairs of weaker ones or by a coalition in the affairs of a single power and are, therefore, usually successful for the time, although the resentment they cause may aid in producing a reaction later. Consequently, if the party intervened against is not in possession of the government, it will probably be put down without a state of war having existed between the two powers, although the laws of war ought to be and probably will have been observed in the fighting. There will have been no declaration of war nor any occasion for one. If, on the other hand, the party intervened against is in possession of the government, as Napoleon was in possession of that of France in 1815 and the Constitutionalists of that of Spain in 1823, there will still be no declaration of war, because the interveners, not recognizing the actual government as legitimate, will not admit that their quarrel with it is a quarrel with the state which it claims to represent. Here also, therefore, there will not be a state of war with the usual abrogation or suspension of treaties as its effect, and yet the struggle may be such that at its close some new arrangements between the de facto belligerents may be desirable. Thus, in 1815 the allies did not declare war, and they allowed the representatives of Louis XVIII to sign on behalf of France their manifesto of 13th March against Napoleon and on 9th June the final act of the congress of Vienna, while de facto hostilities were onward between them and the actual government of that country. The struggle was closed by the treaty of 20th November, 1815, which was not nominally one of peace, but in Article 10 of which 'the hostilities' are mentioned; and that treaty was described as one of peace in the protocol and declaration of Aix-la-Chapelle, 15th November, 1818. Similarly the French invasion of Spain in 1823 produced no technical state of war and was followed by a convention, 5th January, 1824, about the maritime prizes taken."1 The commencement of war affects very seriously other states than those engaged in hostilities. They become neutrals, keeping friendly relations with both belligerents but having restricted intercourse so as to be impartial parties so far as the contest is concerned. The rules of international law create certain rights and conditions to neutral states which only exist in a state of war. These limitations and duties begin at once with the existence of war, and hence the immediate knowledge of the declaration or commencement of war is a matter of importance to neutrals. This knowledge must be made public, as the subjects also of a state are affected with their government in the changed relations resulting from war. The status of enemy merchant ships at the outbreak of hostilities will be discussed under the head of maritime warfare. This discussion will include the question of the days of grace, so-called, as a reasonable period to allow a belligerent merchant vessel to load and depart from the port of an enemy. The allowance of the days of grace under current opinion is rather a favor than an obligation. 1 Westlake, "Int. Law," 2d ed., vol. 2, pp. 28-29. |