Laws of War

LAWS OF WAR. The law of war, in strict usage, does not apply to all armed conflicts, but only to such conflicts as, by the custom of states, constitute war. War exists when the organized armed forces of one state are opposed to the organized armed forces of another state. War also exists within the bounds of a single state when organized armed forces of sufficient power to make the issue doubtful, place themselves in opposition to the armed forces of the existing government.

Neutral Attitude Toward Insurgents.

The position of neutral governments towards insurgent forces is always a delicate one. If they are not recognized as belligerents by the state against which they are arrayed, the state in question theoretically accepts responsibility for the consequences of their acts in respect of neutral states. A neutral state may be satisfied with this responsi bility, or it may recognize the belligerent character of the insur gents. If, however, it does not, the insurgent forces cannot exer cise rights of war against neutral property without exposing themselves to treatment as outlaws and pirates. A case of such treatment occurred in September 1902 in connection with a then pending revolution in Hayti. A German cruiser, the "Panther," treated an insurgent gunboat, the "Crete-a-Pierrot," as a pirate vessel, and sank her for having stopped and confiscated arms and ammunition found among the cargo of the German steamer "Markomannia." In the North American Civil War, the right asserted by Great Britain to recognize the belligerency of the Confederate forces was based on the contention that British com mercial interests were very largely affected by the blockade of the Southern ports.

It is also agreed that, as the existence of belligerency imposes burdens and liabilities upon neutral subjects, a state engaged in civil war has no right, in endeavouring to effect its warlike objects, to employ measures against foreign vessels, which, though sanc tioned in time of peace, are not recognized in time of war. In other words, it cannot enjoy at one and the same moment the rights of both peace and war. Thus, in 1861, when the govern ment of New Granada, during a civil war, announced that certain ports would be closed, subsequently the government of the United States proposed to adopt the same measure against the ports of the Southern States. In each case the United Kingdom protested and in neither case was the order carried out. When in 1885 the President of Colombia, during the existence of civil war, declared several ports to be closed without instituting a blockade, the Secretary of State of the United States, in a despatch of April 24th of that year, refused to acknowledge the closure.

The recognition of belligerency goes no farther than its im mediate purpose. But this does not suffice to invest the belligerent with the attributes of independent sovereignty for such objects as negotiation of treaties, and the accrediting of diplomatic and consular agents. This was the attitude of Great Britain and France towards the Confederates in the American Civil War.

Regular Forces and Civilians.

Civilized warfare is con fined, as far as possible, to disablement of the armed forces of the enemy; otherwise war would continue till one of the parties was exterminated. "The troops alone carry on war, while the rest of the nation remain in peace" (Vattel's Law of Nations, iii. 226).

Modern notions of patriotism do not, however, view this total and unconditional abstention of the civilian population as any longer possible. They have found, to some extent, expression in the following Articles of the Hague War-Regulations of 1899 as amended in 1907 :— "Art. 1. The laws, rights and duties of war apply not only to an army, but also to militia and volunteer corps fulfilling the following conditions : (a) To be commanded by a person respon sible for his subordinates; (b) to have a fixed distinctive emblem recognizable at a distance; (c) to carry arms openly; and (d) to conduct their operations in accordance with the laws and cus toms of war. In countries where militia or volunteer corps con

stitute the army, or form part of it, they are included under the denomination 'army.' "Art 2. The population of a territory not under occupation, who, on the enemy's approach, spontaneously take up arms to re sist the invading troops without having had time to organize them selves in accordance with Article 1, shall be regarded as belligerent if they carry arms openly, and if they respect the laws and customs of war." The preamble of the Convention refers specially to Articles 1 and 2 in the following terms inter alia: "Until a more complete code of the laws of war is issued, the High Contracting Parties think it expedient to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and control of the princi ples of international law, as they result from the usages estab lished among civilized nations, from the laws of humanity, and the requirements of the public conscience." By these provisions, irregular combatants whom both the gov ernment of the United States in the American Civil War and the German government in the Franco-German War refused to regard as legitimate belligerents, are now made legally so. It is note worthy that both at the Brussels Conference of 1874 and the Hague Conference the British delegate ranged himself on the side of the smaller states in favour of the recognition of guerrilla bands. At the Hague Conference Sir John Ardagh gave notice of his intention to propose an additional Article, to the effect that nothing in the Regulations should "be considered as tending to diminish or suppress the right which belongs to the population of an invaded country patriotically to oppose the most energetic re sistance by every legitimate means." The upshot of this notice was to cause the insertion of a proviso in the preamble of the Convention denying the right of military commanders to act according to their own arbitrary judgment (Parliamentary Papers, No. 1, 1899, c. 9534) Before the practice of war became more refined, an invading army lived by foraging and pillage in the invaded country; pillage, in fact, being one of the inducements held out to the adventurers who formed part of the fighting forces and this continued down to comparatively recent times. Attenuations followed from the rise of standing and regular armies, and the consequent more marked distinction between soldier and civilian. They have now taken the form of systematic requisitions and contributions, the confining of the right of levying these to generals and command ers-in-chief, the institution of quittances or bills drawn by the belligerent invader on the invaded power and handed in pay ment to the private persons whose movable belongings have been appropriated or used. There is thus no immunity of private prop erty in warfare on land, and the Hague War-Regulations ratified the right of appropriation of private property in the following Article : "Neither requisitions in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the popula tion in the obligation of taking part in military operations against their country.