Page:EB1911 - Volume 28.djvu/328

Rh

The law of war, in strict usage, does not apply to all armed conflicts, but only to such conflicts as, by the usage 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. If the disaffected forces are in a state of flagrant inferiority in comparison with those of the existing government there is not a state of war but of rebellion. The combatants in civil war are entitled to treatment in accordance with the law of war. Rebels, as outlaws, have no rights. In the South African campaign (1899-1902) the question arose whether the manifest inferiority of the Boer forces, the possession by the British forces of the seats of government, and their practical occupation of the whole country, did not put an end to the state of war and constitute the Boer fighting forces rebels against a new existing government which had proclaimed annexation of the conquered states. The action of the British commanders is a precedent in favour of the view that the fighting forces of an invaded state are entitled to belligerent rights, though in a state of hopeless inferiority, so long as they remain in the field in organized bands. In this, as in many cases which have formed international usage, the danger of reprisals more than the logic of principles has dictated a different line of conduct from that which the strict principles of law suggested. A somewhat similar, but more complicated situation, arose out of the cession by Spain to the United States of the Philippine Islands. The insurgents being in possession of them at the time, Spain ceded what she did not in fact possess. Thus it has been contended that the position of the insurgents became that of belligerents defending their country against conquest by invading forces.

Wars have been classed in different ways—wars of intervention, wars of conquest, wars of defence, wars of independence, just

wars, unjust wars, and so on; but the law of war applies to them all without distinction. States do not sit as judges over each other, but treat war, subject to their own interest, as a fact. Interest, however, with the increasing development of international relations is becoming a more important factor in the determination of the attitude of the neutral onlooker (see ).

In the Chino-Japanese War (1894-95) the Japanese had to decide whether the Chinese were entitled to treatment under

the European law of war. Japan had acceded to the Geneva Convention (see below) in 1886, and to the Declaration of Paris (see below) in 1887. China was a party to neither, and observed the provisions of neither. Japan, nevertheless, as related by her learned judicial advisers, Professors Ariga and Takahashi, observed towards the Chinese forces, combatant and non-combatant, all the rules of European International Law without resorting to the reprisals to which Chinese barbarities provoked her.

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 responsibility, or it may recognize the belligerent character of the insurgents. If, however, it does not, the insurgent forces cannot exercise 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 connexion with a then pending revolution in Hayti. A German cruiser, the “Panther,” treated an insurgent gunboat, the “Crête-à-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” on the ground that they were contraband destined for the armed forces of the existing Haytian government. The “Crête-à-Pierrot” had for some years formed part of the Haytian navy, and was commanded by Admiral Killick, who had been an admiral of that navy. There had been no recognition of the belligerency of the insurgents. No state seems to have made any observations on the incident, which may be taken to be in accordance with current international usage.

A well-known instance of a neutral government recognizing insurgent forces as belligerent, in spite of the denial of that

character to them by the state against which they are carrying on hostilities, occurred 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 commercial interests were very largely affected by the blockade of the Southern ports. It is agreed, however, among jurists that, where the interests of neighbouring states are not affected, the recognition of an insurgent's belligerency is needless interference. 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 sanctioned 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 government of New Granada, during a civil war, announced that certain ports would be closed, not by blockade, but by order, Lord John Russell said that “it was perfectly competent to the government of a country in a state of tranquillity to say which ports should be open to trade, and which should be closed; but in the event of insurrection, or civil war in that country, it was not competent for its government to close ports which were de facto in the hands of the insurgents; and that such a proceeding would be an invasion of international law relating to blockade” (Hansard, clxiii., 1846). Subsequently the government of the United States proposed to adopt the same measure against the ports of the Southern States, upon which Lord John Russell wrote to Lord Lyons that “Her Majesty's government entirely concur with the French government in the opinion that a decree closing the Southern ports would be entirely illegal, and would be an evasion of that recognized maxim of the law of nations that the ports of a belligerent can only be closed by an effective blockade” (State Papers, North America, No. 1, 1862). 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, Mr T. F. Bayard, Secretary of State of the United States, in a despatch of 24th April of that year, fully acknowledged the principle of this contention by refusing to acknowledge the closure.

The recognition of belligerency does not entail recognition of the belligerent as a sovereign state. It goes no farther

than its immediate purpose. The belligerent armies are lawful combatants, not bandits. Supplies taken from invaded territory are requisitions, not robbery. The belligerent ships of war are lawful cruisers, not pirates; and their captures, made in accordance with maritime law, are good prize; and their blockades, if effectual, must be respected by neutrals. 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.

The position of a vassal state or a colony carrying on foreign war without the consent of the suzerain or parent state might involve still more complicated issues.

Civilized warfare, the textbooks tell us, is confined, as far as possible, to disablement of the armed forces of the enemy;

otherwise war would continue till one of the parties was exterminated. “It is with good reason,” observes Vattel, “that this practice has grown into a custom with the nations of Europe, at least with those that keep up regular standing armies or bodies of militia. The troops alone carry on war, while the rest of the nation remain in peace” (Law of Nations, iii. 226). Modern notions of patriotism do not, however, view this total and unconditional abstention of the