PART V THE LAW OF WAR CHAPTER XXIII THE CAUSES, CHARACTERISTICS, AND FUNDAMENTAL 329. Definition of War. War, in a material sense, is a struggle or contention between States and belligerent or insurgent communities through organized armed forces. In a legal sense, war is the status or condition under which such a contest is carried on, and consists of the rules by which it is regulated.1 330. War a Political Fact rather than a Legal Right. - War is a political fact recognized and, to a certain extent, regulated by the Law of Nations; but, though the source of legal rights and duties, it is not a right in the ordinary legal sense of this term. Like intervention, for example, war is an exercise of sovereign or high political power-a right inherent in sovereignty itself. The State which goes to war performs a political act, whether from pure political motives or as a means of self-help, after all attempts to arrive at an amicable mode of settlement have failed.3 4 331. Causes of War. - Wars have been due to various and manifold causes. They are partly psychological and in part 1 For various definitions of war, see 4 Calvo, § 1864; and 6 P.-Fodéré, No. 2650. Ever since the days of Gentilis (who defined war as a "contention") and Grotius (who described it as a "condition"), authorities have differed on this point. As in the case of some other controversies of a similar nature, the truth is that both sides are in the right. War is not a mere means of execution or self-help, as claimed by some publicists, 2 Cf. supra, § 145. though a particular war may possibly have these motives. however, to be more of a pretense than a reality. Such a claim is likely, As a means of execution or self help, the remedy is entirely too dangerous and drastic. With modern facilities for settling international differences, it is seldom that nations need have recourse to war in order to settle their legal controversies. *In his history of the Hannibalic War, Polybius (III, 6) carefully distinguishes social, economic, or political in origin. "They have their root in human nature, in the passions, appetites, aversions, and ambitions of mankind; and in the economic, political, or social conditions under which men seek for the means of existence and enjoyment. On the one hand, we have to reckon with certain human factors, such as hunger, greed, national jealousy, racial aversion, love of glory or national vanity, and a desire to gratify these passions; and on the other hand, man is often confronted with conditions in his physical, political, or social environment which make it difficult to gratify these desires without a resort to violence. ..."5 "Modern wars seem to be due mainly to eight causes: (1) The desire for commercial and colonial expansion (examples: the recent struggle in the Far East between Japan and Russia for the control of Manchuria and Korea, and most of the petty wars which Great Britain has waged in Asia and Africa during the past century). (2) The desire to secure or maintain political or racial supremacy in certain quarters of the globe (examples: the Spanish-American War on the part of Spain, and the British-Boer War in South Africa). (3) Motives of humanity mixed with considerations of political and commercial interest (examples: the Spanish-American War on the part of the United States, and the Russo-Turkish War of 1877 on the part of Russia). (4) The desire for the realization of a between the real or fundamental causes of the struggle and the overt acts or events leading up to that great conflict. He justly remarks that we should look for real causes in the "motives which suggested such action and the policy which dictated it." The latter are apt to be mere irritants or pretexts. We should perhaps distinguish between: (a) the real or fundamental causes of a war; (b) its immediate causes; (c) the occasion or pretext. 5 From an article by the writer, in the N. Y. Independent for November 4, 1899 (Vol. 57: 1036). Cf. The Reader, Vol. X, No. 4 (Sept., 1907). The "Causes of War" is, properly speaking, not a topic with which International Law is concerned. But, owing to its great interest and importance, it has been deemed advisable to include some discussion of it in this text. On the Causes of War, see especially: * Amos, Remedies for War, 57-130; Anitchkow, War and Labor (1900), Pt. II; Blutarsch, Die Ursache der Völkerkriege, etc., (1905); D'Eichthal, Guerre et paix int. (1909); Faguet, Le pacifisme (1908); Kamarowski, in 20 R. D. I. (1888), 132 ff.; *Lagorgette, Le rôle de la guerre (1906); Latourneau, La guerre dans les diverses races humaines (1895); Laveleye, Des causes actuelles de la guerre en Europe et de l'arbitrage (1873); Peyronnard, Des causes de la guerre (1901); Richet, Le passé de la guerre et l'avenir de la paix (1907); Saliéres, La guerre, ses causes et ses resultats. 351 more perfect nationality (examples: the Franco-German War of 1870 and the Prusso-Austrian War in 1866 for the unification of Germany, and the French-Italian War of 1859 against Austria for the union of Italy). (5) Wars of conquest or aggression (examples: most of the wars of the Revolutionary and Napoleonic period between 1792 and 1815 on the part of France, and the war of the United States against Mexico in 1846). (6) The suppression of revolutionary and democratic movements (examples: the invasion of Spain by France in 1823, and the suppression of the Hungarian revolt by Russia and Austria in 1849). (7) Wars of self-preservation (examples: the British-Boer War of 1900 on the part of the Boers, and the Russo-Japanese War on the part of Japan)." (8) Wars for political independence (examples: our Revolutionary War and the Hungarian revolt of 1848). 332. The So-called Justice or Injustice of War. Earlier publicists usually devoted considerable space to the discussion of the conditions under which wars may be considered just or unjust. "The justice of war in general or of a certain war in particular, are questions of the gravest importance and of the From an article by the writer, in The Reader for Sept., 1907 (Vol. X, 340–341). "It may be noted that several prolific causes of war have almost ceased to operate in modern times. Religious wars have almost disappeared from the pages of European history, and for nearly a century there have been no wars in Europe for the sake of dynastic interests or to maintain the Balance of Power. For the latter there has been substituted a system of alliances and the Concert of Europedevelopment which has given to international relations a much firmer basis. a "On the other hand, we have several new causes of war or sources of international friction which can scarcely be said to have operated on a large scale before the nineteenth century. The remarkable development of the twin ideas of democracy and nationality have brought into existence new and mighty forces which may ultimately insure peace, but which nevertheless increase the possibility of armed conflicts between modern nations. “Commerce, like democracy, is Janus-like, facing both ways. believed that in the main modern industrial conditions make for peace, many soAlthough it is called political wars have really been commercial wars in disguise, and the present struggle for economic supremacy has given rise to a new doctrine of commercial imperialism which is a serious menace to the peace of the world." The Reader, cited above, 341-432. It may be added that "if religious and dynastic wars are a thing of the past, recent contact between Orientals and Occidentals seems to indicate that there is a serious danger of a recrudescence of racial antipathies which, if they continue to grow, may furnish us with a new casus belli to which it will be extremely difficult to apply the principle of arbitration." See article in Independent, op. cit. most vital interest, but they belong to the domain of International Ethics or Morality rather than to that of International Law." 7 333. Classification of Wars. - Wars have been variously classified as public or private, international or civil, perfect or imperfect, principal and auxiliary, general or limited, just or unjust, offensive and defensive, wars of conquest, of intervention, etc., etc. The only distinctions which appear to bave any value from a legal standpoint are those between (a) war in a material and legal sense, and (b) between war on land and maritime warfare. 8 334. The Purpose of War. A war has usually both a military and a political purpose. The military purpose is to overpower the enemy, i.e. to force his submission with the least possible sacrifice of life and property on both sides. The political purpose is to obtain that result for which the war was undertaken. This political purpose may change during the course of hostilities. --- 335. The Area or Region of War. The area or region of war is "that part of the surface of the earth in which the belligerents can prepare and execute hostilities against each other." 7 Hershey, Int. Law and Diplomacy of the Russo-Japanese War, 67. On Causes of War, with reference to their justice or injustice, see: Bluntschli, Arts. 515-521; Bonfils, Nos. 1002-1005; 4 Calvo, §§ 1884-1896; Despagnet, Nos. 509-511; 3 Fiore, Nos. 1269 ff.; *Grotius, lib. I, c. 2 and lib. II, cc. 1, 22-26; * 1 Halleck, ch. 15; Heffter, § 113; 1 Klüber, §§ 41, 237 ; Lueder, in 4 Holtzendorff, 221-228; 2 G. F. de Martens, §§ 265-266; 2 Oppenheim, § 63; * 2 Piédelièvre, Nos. 798-803; 3 Phillimore, §§ 33-48; *6 P.-Fodéré, Nos. 2663-2670; 2 Rivier, 202-205; Taylor, § 452; *Vattel, liv. III, §§ 24-50, 183-187. The prevailing tendency among the best publicists is to justify war solely on the grounds of defense or necessity. It is the opinion of the writer that there are only two kinds of war which may be justified: (1) wars for the sake of defense or selfpreservation; (2) struggles for liberty or freedom from oppression. 8 For this distinction, see Chief Justice Fuller in the case of The "Three Friends" (1896), 166 U. S. 1, and Scott, 748, 578; and Wilson, § 96 (see the authorities cited on p. 243 n.). See also Wilson, Art. on War," in 40 Cyc. of Law and Procedure (1912). 66 On the effects of a recognition of insurgency, or war in a material sense, see supra, §8 113-114. Some of the Continental publicists maintain that a civil war has no international character. This view is incorrect. The same rules apply to a civil as to any other On the conditions essential for the recognition of belligerency, see supra, §§ war. 115-116. 2 Oppenheim, § 70. Oppenheim adds: The "region of war ought to be distinguished from the theater of war," i.e. the area or theater of actual hostilities. In general, this embraces all land and water outside of neutral jurisdiction,10 including the open sea and the corresponding aërial space. The possible war area of a belligerent State includes its colonies, protectorates, and regions or districts under disguised forms of occupation or cession." But it does not ordinarily include neutralized States or those portions of a State's territory, rivers, straits, canals, etc., which may have been neutralized.12 There are 336. The Fundamental Principles of Warfare. several fundamental or underlying principles which may be said to govern modern warfare in a general way: (1) The principle of military necessity, but the kind and degree of force to be applied must be limited to the specific military end in view, and no more violence may be used at a given time than is necessary under the circumstances.1 13 (2) The principle of humanity, viz. that certain practices, such as the use of poison and submarine mines, are either wholly prohibited or limited because repugnant to the modern sense of humanity, honor, or fair play. (3) War is a relation between States, or between a State and the subjects of the enemy State in so far as the latter are identified with the State for military purposes, not a relation between individuals.14 10 It may include neutral territory in exceptional instances where the neutral State or territory is the main object of contention, as in the case of Korea and Manchuria during the Russo-Japanese War. 11 See supra, §§ 105-106, 178, 185. 12 See supra, §§ 109, 196 (note on p. 202), 201 (note on p. 211). 13 As, for example, in case of bombardment and devastation, infra, 399–400 n., 402-403. The principle of military necessity is thus modified by considerations of enlightened self-interest as well as of humanity. It must not be confounded with the false doctrine of military necessity (Kriegsraison) maintained by some German authorities. See Westlake's criticism of the views of Lueder, in Chapters, 238 ff. and 2 Int. Law, 115-117. Military necessity does not justify a violation of the rules of civilized warfare. For more recent criticisms and expressions of the German view, see Carpentier, Les lois de la guerre continental, passim; Kriegsgebrauch im Landkriege (1902); Mérignhac, in 14 R. D. I. G. (1907), 197-239. "I have adopted the compromise views of Westlake (see Chapters, 258–264, or 2 Int. Law, 32-38) on this much controverted subject. The controversy goes back to Portalis, who (in 1801) adopted Rousseau's doctrine that war is not a relation between individuals, but between States — a doctrine usually denied by Continental and supported by Anglo-American publicists. |