This is a generally admitted fact. But opinions disagree as to the general position of such private subjects in time of war. The majority of the European continental writers for the last three generations have propagated the doctrine that no relation of enmity exists between belligerents and such private subjects, or between the private subjects of the respective belligerents. This doctrine goes back to Rousseau, Contrat Social, I. c. 4. In 1801, on the occasion of the opening of the French Prize Court, the famous lawyer and statesman Portalis adopted Rousseau's[63] doctrine by declaring that war is a relation between States and not between individuals, and that consequently the subjects of the belligerents are only enemies as soldiers, not as citizens. And although this new doctrine did not, as Hall (§ 18) shows, spread at once, it has since the second half of the nineteenth century been proclaimed on the European continent by the majority of writers. British and American-English writers, however, have never adopted this doctrine, but have always maintained that the relation of enmity between the belligerents extends also to their private citizens.
[63] See Lassudrie-Duchêne, Jean Jacques Rousseau et le droit des gens (1906).
I think, if the facts of war are taken into consideration without prejudice, there ought to be no doubt that the British and American view is correct.[64] It is impossible to sever the citizens from their State, and the outbreak of war between two States cannot but make their citizens enemies. But the point is unworthy of dispute, because it is only one of terms without any material consequences.[65] For, apart from the terminology, the parties agree in substance upon the rules of the Law of Nations regarding such private subjects as do not directly or indirectly belong to the armed forces.[66] Nobody doubts that such private individuals are safe as regards their life and liberty, provided they behave peacefully and loyally; and that, with certain exceptions, their private property must not be touched. On the other hand, nobody doubts that, according to a generally recognised custom of modern warfare, the belligerent who has occupied a part or the whole of his opponent's territory, and who treats such private individuals leniently according to the rules of International Law, may punish them for any hostile act, since they do not enjoy the privileges of members of armed forces. Although, on the one hand, International Law by no means forbids, and, as a law between States, is not competent to forbid, private individuals to take up arms against an enemy, it gives, on the other hand, the right to the enemy to treat hostilities committed by private[67] individuals as acts of illegitimate warfare. A belligerent is under a duty to respect the life and liberty of private enemy individuals, but he can carry out this duty under the condition only that these private individuals abstain from hostilities against himself. Through military occupation in war such private individuals fall under the authority[68] of the occupant, and he may therefore demand that they comply with his orders regarding the safety of his forces. The position of private enemy individuals is made known to them through the proclamations which the commander-in-chief of an army occupying the territory usually publishes. Thus General Sir Redvers Buller, when entering the territory of the South African Republic in 1900, published the following proclamation:
"The troops of Queen Victoria are now passing through the Transvaal. Her Majesty does not make war on individuals, but is, on the contrary, anxious to spare them as far as may be possible the horrors of war. The quarrel England has is with the Government, not with the people, of the Transvaal. Provided they remain neutral, no attempt will be made to interfere with persons living near the line of march; every possible protection will be given them, and any of their property that it may be necessary to take will be paid for. But, on the other hand, those who are thus allowed to remain near the line of march must respect and maintain their neutrality, and the residents of any locality will be held responsible, both in their persons and property, if any damage is done to railway or telegraph, or any violence done to any member of the British forces in the vicinity of their home."
[64] See Boidin, pp. 32-44.
[65] But many continental writers constantly make use of Rousseau's dictum in order to defend untenable positions. See Oppenheim, Die Zukunft des Völkerrechts (1911), pp. 59-61.
[66] See Breton, Les non-belligérants: Leurs devoirs, leurs droits, et la question des otages (1904).
[68] The first edition of this work was wrong in stating that through military occupation private enemy individuals fall under the territorial supremacy of the occupant. Since military occupation by no means vests sovereignty in the occupant, but only actual authority, this authority may not be called territorial supremacy.
It must be emphasised that this position of private individuals of the hostile States renders it inevitable that commanders of armies which have occupied hostile territory should consider and mark as criminals all such private individuals of the enemy as commit hostile acts, although such individuals may act from patriotic motives and may be highly praised for their acts by their compatriots. The high-sounding and well-meant words of Baron Lambermont, one of the Belgian delegates at the Conference of Brussels of 1874—"Il y a des choses qui se font à la guerre, qui se feront toujours, et que l'on doit bien accepter. Mais il s'agit ici de les convertir en lois, en prescriptions positives et internationales. Si les citoyens doivent être conduits au supplice pour avoir tenté de défendre leur pays au péril de leur vie, il ne faut pas qu'ils trouvent inscrits sur le poteau au pied duquel ils seront fusilés l'article d'un traité signé par leur propre gouvernement qui d'avance les condamnait à mort"—have no raison d'être in face of the fact that according to a generally recognised customary rule of International Law hostile acts on the part of private individuals are not acts of legitimate warfare, and the offenders may be treated and punished as war-criminals. Even those writers[69] who object to the term "criminals" do not deny that such hostile acts by private individuals, in contradistinction to hostile acts by members of the armed forces, may be severely punished. The controversy whether or not such acts may be styled "crimes" is again only one of terminology; materially the rule is not at all controverted.[70]