International Law. A Treatise Volume Ii Part 36

[Footnote 491: Belligerents sometimes take hostages to secure compliance with requisitions, contributions, ransom bills, and the like, but such cases have nothing to do with illegitimate warfare: see above, -- 116, p.

153, note 1, and -- 170, p. 213, note 3. The Hague Regulations do not mention the taking of hostages for any purpose.]

VI

COMPENSATION

Bonfils, No. 1026'1--Despagnet, No. 510 _bis_--Lemonon, pp.

344-346--Higgins, pp. 260-261--Scott, _Conferences_, p.

528--Nippold, II. -- 24--Boidin, pp. 83-84--Spaight, p.

462--Holland, _War_, No. 19--_Land Warfare_, -- 436.

[Sidenote: How the Principle of Compensation for Violations of the Laws of War arose.]

-- 259_a_. There is no doubt that, if a belligerent can be made to pay compensation for all damage done by him in violating the laws of war, this will be an indirect means of securing legitimate warfare. In former times no rule existed which stipulated such compensation, although, of course, violation of the laws of war was always an international delinquency. On the contrary, it was an established customary rule[492]

that claims for reparation of damages caused by violations of the rules of legitimate warfare could not be raised after the conclusion of peace, unless the contrary was expressly stipulated. It was not until the Second Hague Peace Conference that matters underwent a change. In revising the Convention concerning the laws and customs of war on land, besides other alterations, a new article (3) was adopted which enacts that a belligerent who violates the provisions of the Hague Regulations, shall, if the case demand, be liable to make compensation, and that he shall be responsible for all acts committed by persons forming part of his armed forces.

[Footnote 492: See below, -- 274, p. 335.]

Attention should be drawn to the fact that Germany, on whose initiative this principle was adopted, proposed two articles concerning the matter, the one dealing with the payment of compensation for violations of the Hague Regulations with regard to subjects of neutral States,[493] and the other for violations of these Regulations with regard to enemy subjects. The conference, however, preferred to make no distinction between the different cases of violation but to adopt the general principle.

[Footnote 493: See below, -- 357.]

[Sidenote: Compensation for Violations of the Hague Regulations.]

-- 259_b_. It is apparent that article 3 of Convention IV. enacts two different rules: firstly, that a belligerent who violates the Hague Regulations shall, if the case demand, pay compensation; and secondly, that a belligerent is responsible for all acts committed by any person forming part of his armed forces.

To take this second rule first, the responsibility of a State for internationally illegal acts on the part of members of its armed forces is, provided the acts have not been committed by the State's command or authorisation, only a vicarious responsibility, but nevertheless the State concerned must, as was pointed out above, Vol. I. -- 163, pay damages for these acts when required. For this reason, article 3 does not create a new rule in so far as it enacts that belligerents must pay for damage caused by members of their forces.

On the other hand, the rule that compensation must be paid by belligerents for damage done through violations of the Hague Regulations, is a new rule, at any rate in so far as it is laid down in a general way. If interpreted according to the letter, article 3 of Convention IV. establishes the rule for payment of compensation for violations of the Hague Regulations only, and not for violations of other rules of International Law concerning land warfare or even concerning sea warfare. I have, however, no doubt that the Powers would recognise that the principle of article 3 must find application to any rule of the laws of war, if by the violation of such rule subjects of the enemy, or of neutral States, suffer damage. For instance, if the commander of a naval force, in contravention of Convention IX. of the Second Peace Conference, were to bombard an undefended place, compensation could be claimed for such subjects of the enemy and subjects of neutral States as suffered damage through the bombardment.

A point, however, to be kept in view is that article 3, although it establishes the obligation to pay compensation, does not stipulate anything concerning the time or the way in which claims for compensation are to be settled. This is clearly a case for arbitration, and it is to be hoped that the Third Peace Conference will make arbitration obligatory in cases of claims for compensation arising from violations, on the part of a belligerent, of the Hague Regulations as well as of other laws of war.

CHAPTER VII

END OF WAR, AND POSTLIMINIUM

I

ON TERMINATION OF WAR IN GENERAL

Hall, -- 197--Lawrence, -- 217--Phillimore, III. -- 510--Taylor, -- 580--Moore, VII. -- 1163--Heffter, -- 176--Kirchenheim in Holtzendorff, IV. pp. 791-792--Ullmann, -- 198--Bonfils, No.

1692--Despagnet, No. 605--Calvo, V. -- 3115--Fiore, III. No.

1693--Martens, II. -- 128--Longuet, -- 155.

[Sidenote: War a Temporary Condition.]

-- 260. The normal condition between two States being peace, war can never be more than a temporary condition; whatever may have been the cause or causes of a war, the latter cannot possibly last for ever. For either the purpose of war will be realised and one belligerent will be overpowered by the other, or both will sooner or later be so exhausted by their exertions that they will desist from the struggle. Nevertheless wars may last for many years, although of late European wars have gradually become shorter. The shortening of European wars in recent times has resulted from several causes, the more important of which are:--conscription, the foundation of the armies of all the great European Powers, Great Britain excepted; the net of railways which extends over all European countries, and which enables a much quicker transport of troops on enemy territory; and lastly, the vast numbers of the opposing forces which usually hasten a decisive battle.

[Sidenote: Three Modes of Termination of War.]

-- 261. Be that as it may, a war may be terminated in three different ways. Belligerents may, first, abstain from further acts of war and glide into peaceful relations without expressly making peace through a special treaty. Or, secondly, belligerents may formally establish the condition of peace through a special treaty of peace. Or, thirdly, a belligerent may end the war through subjugation of his adversary.[494]

[Footnote 494: That a civil war may come to an end through simple cessation of hostilities or through a treaty of peace need hardly be mentioned. But it is of importance to state the fact that there is a difference between civil war and other war concerning the third mode of ending war, namely subjugation. For to terminate a civil war, conquest _and_ annexation, which together make subjugation, is unnecessary (see below, -- 264), but conquest alone is sufficient.]

II

SIMPLE CESSATION OF HOSTILITIES

Hall, -- 203--Phillimore, III. -- 511--Halleck, II. p. 468--Taylor, -- 584--Bluntschli, -- 700--Heffter, -- 177--Kirchenheim in Holtzendorff, IV. p. 793--Ullmann, -- 198--Bonfils, No.

1693--Despagnet, No. 605--Rivier, II. pp. 435-436--Calvo, V. -- 3116--Fiore, III. No. 1693--Martens, II. -- 128--Longuet, -- 155--Merignhac, p. 323--Pillet, p. 370.

[Sidenote: Exceptional Occurrence of simple Cessation of Hostilities.]

-- 262. The regular modes of termination of war are treaties of peace or subjugation, but cases have occurred in which simple cessation of all acts of war on the part of both belligerents has actually and informally brought the war to an end. Thus ended in 1716 the war between Sweden and Poland, in 1720 the war between Spain and France, in 1801 the war between Russia and Persia, in 1867 the war between France and Mexico.

And it may also be mentioned that, whereas the war between Prussia and several German States in 1866 came to an end through subjugation of some States and through treaties of peace with others, Prussia has never concluded a treaty of peace with the Princ.i.p.ality of Lichtenstein, which was also a party to the war. Although such termination of war through simple cessation of hostilities is for many reasons inconvenient, and is, therefore, as a rule avoided, it may nevertheless in the future as in the past occasionally occur.

[Sidenote: Effect of Termination of War through simple Cessation of Hostilities.]

-- 263. Since in the case of termination of war through simple cessation of hostilities no treaty of peace embodies the conditions of peace between the former belligerents, the question arises whether the _status_ which existed between the parties before the outbreak of war, the _status quo ante bellum_, should be revived, or the _status_ which exists between the parties at the time when they simply ceased hostilities, the _status quo post bellum_ (the _uti possidetis_), can be upheld. The majority of publicists[495] correctly maintain that the _status_ which exists at the time of cessation of hostilities becomes silently recognised through such cessation, and is, therefore, the basis of the future relations of the parties. This question is of the greatest importance regarding enemy territory militarily occupied by a belligerent at the time hostilities cease. According to the correct opinion such territory can be annexed by the occupier, the adversary through the cessation of hostilities having dropped all rights he possessed over such territory. On the other hand, this termination of war through cessation of hostilities contains no decision regarding such claims of the parties as have not been settled by the actual position of affairs at the termination of hostilities, and it remains for the parties to settle them by special agreement or to let them stand over.

[Footnote 495: See, however, Phillimore, III. -- 511, who maintains that the _status quo ante bellum_ has to be revived.]

III

SUBJUGATION

Vattel, III. ---- 199-203--Hall, ---- 204-205--Lawrence, -- 77--Phillimore, III. -- 512--Halleck, I. pp. 467-498--Taylor, ---- 220, 585-588--Moore, I. -- 87--Walker, -- 11--Wheaton, -- 165--Bluntschli, ---- 287-289, 701-702--Heffter, -- 178--Kirchenheim in Holtzendorff, IV. p. 792--Liszt, -- 10--Ullmann, ---- 92, 97, and 197--Bonfils, Nos. 535 and 1694--Despagnet, Nos. 387-390, 605--Rivier, II. pp. 436-441--Calvo, V. ---- 3117-3118--Fiore, II.

Nos. 863, III. No. 1693, and Code, Nos. 1078-1089--Martens. I. -- 91, II. -- 128--Longuet, -- 155--Merignhac, p. 324--Pillet, p.

371--Holtzendorff, _Eroberung und Eroberungsrecht_ (1871)--Heimburger, _Der Erwerb der Gebietshoheit_ (1888), pp.

121-132--Westlake, in _The Law Quarterly Review_, XVII. (1901), p.

392.

[Sidenote: Subjugation in contradistinction to Conquest.]

-- 264. Subjugation must not be confounded with conquest, although there can be no subjugation without conquest. Conquest is taking possession of enemy territory by military force. Conquest is completed as soon as the territory concerned is effectively[496] occupied. Now it is obvious that conquest of a part of enemy territory has nothing to do with subjugation, because the enemy may well reconquer it. But even the conquest of the whole of the enemy territory need not necessarily include subjugation. For, first, in a war between more than two belligerents the troops of one of them may evacuate their country and join the army of allies, so that the armed contention is continued, although the territory of one of the allies is completely conquered.

Again, a belligerent, although he has annihilated the forces, conquered the whole of the territory of his adversary, and thereby actually brought the armed contention to an end,[497] may nevertheless not choose to exterminate the enemy State by annexing the conquered territory, but may conclude a treaty of peace with the expelled or imprisoned head of the defeated State, re-establish the latter's Government, and hand the whole or a part of the conquered territory over to it. Subjugation takes place only when a belligerent, after having annihilated the forces and conquered the territory of his adversary, destroys his existence by annexing the conquered territory. Subjugation may, therefore, correctly be defined as _extermination in war of one belligerent by another through annexation_[498] _of the former's territory after conquest, the enemy forces having been annihilated_.[499]

[Footnote 496: The conditions of effective occupation have been discussed above in -- 167. Regarding subjugation as a mode of acquisition of territory, see above, vol. I. ---- 236-241.]

[Footnote 497: The continuation of guerilla war after the termination of a real war is discussed above in -- 60.]

[Footnote 498: That conquest alone is sufficient for the termination of civil wars has been pointed out above, -- 261, p. 323, note 1.]