

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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BELLIGERENTS, parties actually at war.


—I. Just as, in the eyes of international law, not every armed contest is a war, the quality of belligerents is not recognized as existing in all parties engaged in war. Sovereign states at war are always belligerents. Doubt arises only when one of the parties to the struggle, or both, are not in the enjoyment of political sovereignty. Combatants must therefore be recognized, either implicitly or explicitly, as belligerents. In what case do they enjoy this quality? This depends on circumstances. Generally the quality of belligerents is accorded to members of a confederation which engage in a struggle with each other. The reason of this is, on the one hand, because they are regularly organized and observe the rules of international law; on the other, because the neutral states have neither the wish nor the right to decide which party is in the wrong, the interpretation of a constitutional or federal question being a domestic affair; and finally, for humane reasons, because belligerents are treated more mildly than insurgents. The quality of belligerents is accorded to two parties even in the case when a federal government presents the question as in the nature of an execution, that is to say, as an act of justice or coercion foreseen by the law. This was the case in the struggle of the Sonderbund in Switzerland, in 1847; in that of the United States from 1861 to 1865; and in that of Prussia in 1866 against the majority of the other states of the German Confederation.


—In case of civil war what the custom of nations in the premises is, is not so well defined. Usually, the quality of belligerents is refused to insurgents as long as the government they have rebelled against remains in a condition to subdue them. When insurgents seem about to gain the upper hand, other states consult their own policy and act accordingly. More than one state has come to the assistance of insurgent provinces, and even been seen to foment the rebellion to its own profit; but these acts are not within the domain of international law. Their forum is conscience, public opinion and history.


—Governments do not see with pleasure the quality of belligerents accorded to these whom they look upon as rebels, because this ends the latter a certain moral force: in return, however, it frees such governments from all responsibility for any damage which the insurgents may commit. For example, during the war of secession in the United States, if English or French subjects had suffered a loss by the act of one of the agents of the government of the south, it was to this government of the south only that England or France could turn for redress, and with the fall of the confederacy every chance of remedy was lost. In the case of a Turkish subject it would have been different. Turkey not having recognized the confederates as belligerents, could have had recourse to Washington and said. Your rebels have committed depredations to my loss; I ask to be indemnified.


—Here is a case somewhat older, cited by Mr. Lawrence (Commentary on Wheaton): Mr. Canning wrote to Lord Granville, June 22, 1826, that if the English government admitted with M. de Villèle that the powerlessness of the Greek government to keep its population in order justified an appeal to the English government and reprisals in case of the failure of such an appeal; that if it admitted with Austria (and he feared then with France) that the Greek government itself was only an insurrection, without rights or national duties, then the Turkish government itself was the one to which appeal should be made; that if the Turkish government was rendered responsible for the acts of piracy committed by certain Greek ships, then the Greek government being only a great act of piracy, the porte was responsible for the consequences.


—Moreover, recognition of belligerents is often nothing more than the recognition of a fact, and does not in any was weaken the legal tie which may exist between the combatants (see session of the French senate, Feb. 12, 1864, Rapport sur la pétition des Polonais). In other terms it is recognized that there is war, that is all: no decision is made as to which side is in the right.


—But how if a government at war with insurgents recognizes them as belligerents? Then one should distinguish according as the neutral states have themselves recognized the insurgents as belligerents, or have not recognized them. In the first case they relieve the rightful government of all responsibility for the acts of the de facto government; in the second, it is the government de jure which is responsible. It may happen that the insurrection is so great that a government, while proclaiming the insurgents to be rebels, treats them in fact as belligerents, through humanity or for other reasons, as took place during the war of secession in the United States. As a matter of fact an order of the day issued at Memphis, announced in April, 1865, that, beginning with May 23, confederate soldiers who should not have surrendered by that date should be treated as rebels and not as prisoners of war. This king of recognition has no influence on international law. It is a domestic matter entirely.


—The character of belligerents has never been accorded to pirates, nor to filibusters, nor brigands, not to any of those who commit violence in their own private interest, or even to those who, guilty of violence, have not been duly authorized by their sovereign.


—Thus, in 1866, during the war between Prussia and other German states, and notably Bavaria, a Bavarian collected some men together and made an incursion into a place in the vicinity of the principality of Hohenzollern, of which he took possession in the name of his government, without having been censured for the depredation. He was nevertheless brought before a Bavarian tribunal for this deed and punished for having acted without authorization. For the same reason citizens not forming a part of the army should abstain from taking part in war, for the enemy will not recognize them as belligerents and will punish them severely. All nations are at one on this point.


—II. Having examined the question as to whom the quality of belligerents belongs, we shall set forth in brief what the rights and duties connected with it are.


—These rights, which in ancient times and up to the middle ages were considered without limit, since there was no right for the conquered—vœ victis—became more restricted by degrees since modern usage did not permit more harm to be inflicted on the enemy than was necessary to obtain victory. Even this is enough to make humanity shudder, but once war is admitted, it can not be otherwise. Consequently, combatants have a right to kill the soldiers of the enemy who attack them, but they must spare the wounded and the soldiers who surrender. The lives of non-combatant citizens and, for a greater reason, the lives of women and children, are sacred; for them the law of war does not exist; they remain under the rule of peace, provided, be it well understood, that they commit no warlike act. If non-combatants violate the peace, their punishments is all the greater, as they were not suspected. All civilized nations without exception are agreed on this point.


—Just as the lives of non-combatants are safe, so should their property be. But as the occupation of the enemy's territory brings with it the suspension of the authorities established there who are replaced by those of the enemy, the latter enjoy, provisionally or temporarily, all the rights of sovereignty. The hostile authority, therefore, can demand of the inhabitants of the places occupied all that the national authority might have exacted, notably the maintenance of their troops, of ordinary or extraordinary taxes, requisitions in kind according to regular rule, and by giving receipts, so that if there is a chance the requisitions may be paid for by the country. Requisitions, however, can be levied only in so far as they are unnecessary to the enemy's army. But the single soldier never has the right to use force in his own private interest.


—However, if the established authorities are de jure suspended, the enemy may nevertheless see fit to retain them. He can do so in his own interest as well as through humanity; but I his step is useful to him it is far from being harmful to the country occupied. Governments have seen fit to command their agents to quit their posts under similar circumstances, and the agents may have thought patriotism imposed on them the duty of departing; but we do not know if this way of looking at the question is correct. Their departure causes less harm to the enemy than to the people. On the other hand, if the enemy enjoys de facto all the rights of sovereignty, the sovereignty of the enemy does not go to the length of prescribing constitutional changes. In return he is not limited by the ordinary laws of the country, since he can legislate in virtue of his temporary but de facto sovereignty.


—The powers which the usages of war accord to belligerents are too extensive not to make it their duty to use them moderately. The modern laws of war condemn cruelly and useless devastation, the breaking of one's parole, and everything contrary to honor. They proscribe also the use of barbarous weapons, poison, explosive bullets (but no cannon balls). Happily if war has remained cruel (and it will be so always), no nation has here a right to throw stones at its neighbors—still the horrors so frequent in former times have become rare. Adversaries, it is true, mutually accuse one another of abominable cruelty, but there are generally either exaggerations or disputed facts, more frequently the latter. Lies are always to be regretted, but in this case they are criminal, for they envenom and perpetuate quarrels, and always cause the shedding of innocent blood. The evil is great enough of itself: it is quiet unnecessary to add anything to it. (See WAR; WAR, CIVIL.)


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