CHAPTER VI MEANS OF SECURING LEGITIMATE WARFARE
I ON MEANS IN GENERAL OF SECURING LEGITIMATE WARFARE
Bonfils, Nos. 1014-1017—Spaight, p. 460—Land Warfare, §§ 435-438.
Legitimate and Illegitimate Warfare.
§ 241. Since war is not a condition of anarchy and lawlessness, International Law requires that belligerents shall comply with its rules in carrying on their military and naval operations. So long and in so far as belligerents do this, their warfare is legitimate; if they do not comply with the rules, their warfare is illegitimate. Now, illegitimate acts and omissions can be committed by belligerent Governments themselves, by the commanders or members of their forces, and by their subjects not belonging to the forces. Experience teaches that, on the whole, omissions and the committal of illegitimate acts on the part of individual soldiers are unavoidable during war, since the passions which are aroused by and during war will always carry away some individuals. But belligerents bear a vicarious responsibility for internationally illegal acts of their soldiers, which turns into original responsibility if they refuse to repair the wrong done by punishing the offenders and, if necessary, indemnifying the sufferers.[464] Cases in which belligerent Governments themselves commit illegitimate acts, as well as cases in which they refuse to punish their soldiers for illegitimate acts constitute international delinquencies.[465] Now, if in time of peace an international delinquency is committed, the offended State can, if the worst comes to the worst, make war against the offender to compel adequate reparation.[466] But if an international delinquency is committed during warfare itself, no means whatever exist of compelling reparation.
[464] See above, [vol. I. §§ 149]-150.
[465] See above, [vol. I. § 151].
[466] See above, [vol. I. § 156].
How Legitimate Warfare is on the whole secured.