INTRODUCTION
What is a State of War.
The armies of belligerent States on the outbreak of hostilities, or indeed the moment war is declared, enter into a certain relation with one another which is known by the name of “A State of War.” This relationship, which at the beginning only concerns the members of the two armies, is extended, the moment the frontier is crossed, to all inhabitants of the enemy’s State, so far as its territory is occupied; indeed it extends itself ultimately to both the movable and immovable property of the State and its citizens.
Active Persons and Passive.
A distinction is drawn between an “active” and a “passive” state of war. By the first is to be understood the relation to one another of the actual fighting organs of the two belligerents, that is to say, of the persons forming the army, besides that of the representative heads of the State and of the leaders. By the second term, i.e., the “passive” state of war, on the other hand, is to be understood the relationship of the hostile army to those inhabitants of the State, who share in the actual conduct of war only in consequence of their natural association with the army of their own State, and who on that account are only to be regarded as enemies in a passive sense. As occupying an intermediate position, one has often to take into account a number of persons who while belonging to the army do not actually participate in the conduct of hostilities but continue in the field to pursue what is to some extent a peaceful occupation, such as Army Chaplains, Doctors, Medical Officers of Health, Hospital Nurses, Voluntary Nurses, and other Officials, Sutlers, Contractors, Newspaper Correspondents and the like.
That War is no Respecter of Persons.
Now although according to the modern conception of war, it is primarily concerned with the persons belonging to the opposing armies, yet no citizen or inhabitant of a State occupied by a hostile army can altogether escape the burdens, restrictions, sacrifices, and inconveniences which are the natural consequence of a State of War. A war conducted with energy cannot be directed merely against the combatants of the Enemy State and the positions they occupy, but it will and must in like manner seek to destroy the total intellectual[38] and material resources of the latter.[39] Humanitarian claims such as the protection of men and their goods can only be taken into consideration in so far as the nature and object of the war permit.
The Usages of War.
Consequently the “argument of war” permits every belligerent State to have recourse to all means which enable it to attain the object of the war; still, practise has taught the advisability of allowing in one’s own interest the introduction of a limitation in the use of certain methods of war and a total renunciation of the use of others. Chivalrous feelings, Christian thought, higher civilization and, by no means least of all, the recognition of one’s own advantage, have led to a voluntary and self-imposed limitation, the necessity of which is to-day tacitly recognized by all States and their armies. They have led in the course of time, in the simple transmission of knightly usage in the passages of arms, to a series of agreements, hallowed by tradition, and we are accustomed to sum these up in the words “usage of war” (Kriegsbrauch), “custom of war” (Kriegssitte), “or fashion of war” (Kriegsmanier). Customs of this kind have always existed, even in the times of antiquity; they differed according to the civilization of the different nations and their public economy, they were not always identical, even in one and the same conflict, and they have in the course of time often changed; they are older than any scientific law of war, they have come down to us unwritten, and moreover they maintain themselves in full vitality; they have therefore won an assured position in standing armies according as these latter have been introduced into the systems of almost every European State.
Of the futility of Written Agreements as Scraps of Paper.
The fact that such limitations of the unrestricted and reckless application of all the available means for the conduct of war, and thereby the humanization of the customary methods of pursuing war really exist, and are actually observed by the armies of all civilized States, has in the course of the nineteenth century often led to attempts to develop, to extend, and thus to make universally binding these preexisting usages of war; to elevate them to the level of laws binding nations and armies, in other words to create a codex belli; a law of war. All these attempts have hitherto, with some few exceptions to be mentioned later, completely failed. If, therefore, in the following work the expression “the law of war” is used, it must be understood that by it is meant not a lex scripta introduced by international agreements; but only a reciprocity of mutual agreement; a limitation of arbitrary behavior, which custom and conventionality, human friendliness and a calculating egotism have erected, but for the observance of which there exists no express sanction, but only “the fear of reprisals” decides.
The “flabby emotion” of Humanitarianism.
Consequently the usage of war is even now the only means of regulating the relations of belligerent States to one another. But with the idea of the usages of war will always be bound up the character of something transitory, inconstant, something dependent on factors outside the army. Nowadays it is not only the army which influences the spirit of the customs of war and assures recognition of its unwritten laws. Since the almost universal introduction of conscription, the peoples themselves exercise a profound influence upon this spirit. In the modern usages of war one can no longer regard merely the traditional inheritance of the ancient etiquette of the profession of arms, and the professional outlook accompanying it, but there is also the deposit of the currents of thought which agitate our time. But since the tendency of thought of the last century was dominated essentially by humanitarian considerations which not infrequently degenerated into sentimentality and flabby emotion (Sentimentalität und weichlicher Gefühlsschwärmerei) there have not been wanting attempts to influence the development of the usages of war in a way which was in fundamental contradiction with the nature of war and its object. Attempts of this kind will also not be wanting in the future, the more so as these agitations have found a kind of moral recognition in some provisions of the Geneva Convention and the Brussels and Hague Conferences.
Cruelty is often “the truest humanity.”
The perfect Officer.
Moreover the officer is a child of his time. He is subject to the intellectual[40] tendencies which influence his own nation; the more educated he is the more will this be the case. The danger that, in this way, he will arrive at false views about the essential character of war must not be lost sight of. The danger can only be met by a thorough study of war itself. By steeping himself in military history an officer will be able to guard himself against excessive humanitarian notions, it will teach him that certain severities are indispensable to war, nay more, that the only true humanity very often lies in a ruthless application of them. It will also teach him how the rules of belligerent intercourse in war have developed, how in the course of time they have solidified into general usages of war, and finally it will teach him whether the governing usages of war are justified or not, whether they are to be modified or whether they are to be observed. But for a study of military history in this light, knowledge of the fundamental conceptions of modern international and military movements is certainly necessary. To present this is the main purpose of the following work.
PART I
THE USAGES OF WAR IN REGARD TO THE HOSTILE ARMY
CHAPTER I
WHO BELONGS TO THE HOSTILE ARMY?
Who are Combatants and who are not.
Since the subjects of enemy States have quite different rights and duties according as they occupy an active or a passive position, the question arises: Who is to be recognized as occupying the active position, or what amounts to the same thing—Who belongs to the hostile army? This is a question of particular importance.
According to the universal usages of war, the following are to be regarded as occupying an active position:
1. The heads of the enemy’s state and its ministers, even though they possess no military rank.
2. The regular army, and it is a matter of indifference whether the army is recruited voluntarily or by conscription; whether the army consists of subjects or aliens (mercenaries); whether it is brought together out of elements which were already in the service in time of peace, or out of such as are enrolled at the moment of mobilization (militia, reserve, national guard and Landsturm).
3. Subject to certain assumptions, irregular combatants, also, i.e., such as are not constituent parts of the regular army, but have only taken up arms for the length of the war, or, indeed, for a particular task of the war.
The Irregular.
Only the third class of persons need be more closely considered. In their case the question how far the rights of an active position are to be conceded to them has at all times been matter of controversy, and the treatment of irregular troops has in consequence varied considerably. Generally speaking the study of military history leads to the conclusion that the Commanding Officers of regular armies were always inclined to regard irregular troops of the enemy with distrust, and to apply to them the contemporary laws of war with peculiar severity. This unfavorable prejudice is based on the ground that the want of a military education and of stern discipline among irregular troops, easily leads to transgressions and to non-observance of the usages of war, and that the minor skirmishes which they prefer to indulge in, and which by their very nature lead to individual enterprise, open the door to irregularity and savagery, and easily deteriorate into robbery and unauthorized violence, so that in every case the general insecurity which it develops engenders bitterness, fury, and revengeful feelings in the harassed troops, and leads to cruel reprisals. Let any one read the combats of the French troops in the Spanish Peninsula in the years 1808 to 1814, in Tyrol in 1809, in Germany in 1813, and also those of the English in their different Colonial wars, or again the Carlist Wars, the Russo-Turkish War, and the Franco-Prussian War,[41] and one will everywhere find this experience confirmed.
Each State must decide for itself.
If these points of view are on the whole decisive against the employment of irregular troops, yet on the other hand, it must be left to each particular State to determine how far it will disregard such considerations; from the point of view of international law no State is compelled to limit the instruments of its military operations to the standing army. It is, on the contrary, completely justified in drawing upon all the inhabitants capable of bearing arms, entirely according to its discretion, and in imparting to them an authorization to participate in the war.
The necessity of Authorization.
This public authorization has therefore been until quite recently regarded as the presumed necessary condition of any recognition of combatant rights.
Exceptions which prove the rule.
The Free Lance.
Of course there are numerous examples in military history in which irregular combatants have been recognized as combatants by the enemy, without any public authorization of the kind; thus in the latest wars of North America, Switzerland, and Italy, and also in the case of the campaign (without any kind of commission from a State) of Garibaldi against Naples and Sicily in the year 1860. But in all these cases the tacitly conceded recognition originated not out of any obligatory principles of international law or of military usage, but simply and solely out of the fear of reprisals. The power to prevent the entrance on the scene of these irregular partizans did not exist, and it was feared that by not recognizing their quality as combatants the war a cruel character might be given, and consequently that more harm than good might result to the parties themselves. On the other hand there has always been a universal consensus of opinion against recognizing irregulars who make their appearance individually or in small bands, and who conduct war in some measure on their own account (auf eigene Faust) detached from the army, and such opinion approves of the punishment of these offenders with death.
This legal attitude which denies every unauthorized rising and identifies it with brigandage was taken up by the revolutionary armies of France towards the insurrection in La Vendée, and again by Napoleon in his proceedings against Schill and Dörnberg in the year 1809, and again by Wellington, Schwarzenberg, and Blücher, in the Proclamations issued by them in France in the year 1814, and the German Army adopted the same standpoint in the year 1870–71, when it demanded that: “Every prisoner who wishes to be treated as a prisoner of war must produce a certificate as to his character as a French soldier, issued by the legal authorities, and addressed to him personally, to the effect that he has been called to the Colors and is borne on the Roll of a corps organized on a military footing by the French Government.”
Modern views.
In the controversies which have arisen since the war of 1870–71 over the different questions of international law and the laws of war, decisive emphasis has no longer been placed upon the question of public authorization, and it has been proposed, on grounds of expediency, to recognize as combatants such irregulars as are indeed without an express and immediate public authorization, but who are organized in military fashion and are under a responsible leader. The view here taken was that by a recognition of these kind of irregular troops the dangers and horrors of war would be diminished, and that a substitute for the legal authorization lacking in the case of individuals offers itself in the military organization and in the existence of a leader responsible to his own State.
Moreover the Brussels Declaration of August 27, 1874, and in consonance with it the Manual of the Institute of International Law, desire as the first condition of recognition as combatants “that they have at their head a personality who is responsible for the behavior of those under him to his own Government.”[42]
The German Military View.
Considered from the military point of view there is not much objection to the omission of the demand for public authorization, so soon as it becomes a question of organized detachments of troops, but in the case of hostile individuals who appear on the scene we shall none the less be unable to dispense with the certificate of membership of an organized band, if such individuals are to be regarded and treated as lawful belligerents.
But the organization of irregulars in military bands and their subjection to a responsible leader are not by themselves sufficient to enable one to grant them the status of belligerents; even more important than these is the necessity of being able to recognize them as such and of their carrying their arms openly. The soldier must know who he has against him as an active opponent, he must be protected against treacherous killing and against any military operation which is prohibited by the usages of war among regular armies. The chivalrous idea which rules in the regular armies of all civilized States always seeks an open profession of one’s belligerent character. The demand must, therefore, be insisted on that irregular troops, although not in uniform, shall at least be distinguishable by visible signs which are recognizable at a distance.[43] Only by such means can the occurrence of misuse in the practise of war on the one side, and the tragic consequences of the non-recognition of combatant status on the other, be made impossible. The Brussels Declarations also therefore recommend, in Art. 9 (2 and 3), that they, i.e., the irregular troops, should wear a fixed sign which is visible from a distance, and that they should carry their weapons openly. The Hague Convention adds to these three conditions yet a fourth, “That they observe the laws and usages of war in their military operations.”
The Levée en masse.
The Hague Regulations will not do.
A short way with the Defender of his Country.
This condition must also be maintained if it becomes a question of the levée en masse, the arming of the whole population of the country, province, or district; in other words the so-called people’s war or national war.[44] Starting from the view that one can never deny to the population of a country the natural right of defense of one’s fatherland, and that the smaller and consequently less powerful States can only find protection in such levées en masse, the majority of authorities on International law have, in their proposals for codification, sought to attain the recognition on principle of the combatant status of all these kinds of people’s champions, and in the Brussels declaration and the Hague Regulations the aforesaid condition[45] is omitted. As against this one may nevertheless remark that the condition requiring a military organization and a clearly recognizable mark of being attached to the enemy’s troops, is not synonymous with a denial of the natural right of defense of one’s country. It is therefore not a question of restraining the population from seizing arms but only of compelling it to do this in an organized manner. Subjection to a responsible leader, a military organization, and clear recognizability cannot be left out of account unless the whole recognized foundation for the admission of irregulars is going to be given up altogether, and a conflict of one private individual against another is to be introduced again, with all its attendant horrors, of which, for example, the proceedings in Bazeilles in the last Franco-Prussian War afford an instance. If the necessary organization does not really become established—a case which is by no means likely to occur often—then nothing remains but a conflict of individuals, and those who conduct it cannot claim the rights of an active military status. The disadvantages and severities inherent in such a state of affairs are more insignificant and less inhuman than those which would result from recognition.[46]
CHAPTER II
THE MEANS OF CONDUCTING WAR
Violence and Cunning.
By the means of conducting war is to be understood all those measures which can be taken by one State against the other in order to attain the object of the war, to compel one’s opponent to submit to one’s will; they may be summarized in the two ideas of Violence and Cunning, and judgment as to their applicability may be embodied in the following proposition:
What is permissible includes every means of war without which the object of the war cannot be obtained; what is reprehensible on the other hand includes every act of violence and destruction which is not demanded by the object of war.
It follows from these universally valid principles that wide limits are set to the subjective freedom and arbitrary judgment of the Commanding Officer; the precepts of civilization, freedom and honor, the traditions prevalent in the army, and the general usages of war, will have to guide his decisions.