117. Duties in times of war.—War having become a sad and unavoidable necessity between nations, and the use of force determined on, it behooves as much as possible to restrict it in its effects, and to reconcile the rights of humanity with those of justice. Hence, certain rules established by jurisconsults who have treated these matters, and notably Grotius, the founder of international law.
The fundamental principle of the right of war is the following: All that has a morally necessary connection with the purpose of the war is allowed, but nothing more. In fact, it would be wholly useless to have the right to do a thing, if, to accomplish it, one could not employ the necessary means thereto; but, on the other hand, it would not be just if, under the pretext of only defending one’s rights, one should believe that everything is permitted, and should resort to the last extremities.
From this general principle are deduced the following consequences, which are only its applications:
1. It is certain that it is lawful to kill the enemy’s soldiers, and, in fact, the purpose of the war being to constrain the enemy to recognize the justice of our cause, it would be vain to take up arms if one could not use them. It is then one of the cases where manslaughter may be considered innocent, and justified by the right of personal self-defense. (See above, Ch. iii., p. 50.)
2. However, the right of death upon the enemy has its limits. As a principle, it only extends to those who carry arms, and not to private individuals who do not defend themselves, arms in hand. Such can only accidentally become the victims of the war: for instance, it is impossible in a battle to protect the inhabitants of a disputed village against the balls of either party; but we should not knowingly strike dead those who do not defend themselves.
3. Strangers should be allowed to quit a country exposed to war; and if obliged to stay, they should be no further exposed than to share its inevitable perils with the other citizens.
4. Prisoners of war should be neither killed nor reduced to slavery, but simply prevented from doing mischief.
As to the means employed to deprive an enemy of his life, humanity, with just reason, interdicts the use of certain cowardly and perfidious means; as, for instance, poisoned bullets, or too cruel means of destruction, or lastly, assassination.
Thus, it would be odious to send traitors secretly charged to kill the hostile general. There is, besides, no example of such attempts in modern wars, and the human conscience would unanimously reprove them.
Thus much concerning the rights war gives over the lives of enemies. Let us consider now the duties regarding property.