The determination of what constitutes right in war, is the most difficult problem of the right of nations and international law.It is very difficult even to form a conception of such a right, or to think of any law in this lawless state without falling into a contradiction.Inter arma silent leges.* It must then be just the right to carry on war according to such principles as render it always still possible to pass out of that natural condition of the states in their external relations to each other, and to enter into a condition of right.
*["In the midst of arms the laws are silent." Cicero.]
No war of independent states against each other can rightly be a war of punishment (bellum punitivum).For punishment is only in place under the relation of a superior (imperantis) to a subject (subditum);and this is not the relation of the states to one another.Neither can an international war be "a war of extermination" (bellum internicinum), nor even "a war of subjugation" (bellum subjugatorium);for this would issue in the moral extinction of a state by its people being either fused into one mass with the conquering state, or being reduced to slavery.Not that this necessary means of attaining to a condition of peace is itself contradictory to the right of a state; but because the idea of the right of nations includes merely the conception of an antagonism that is in accordance with principles of external freedom, in order that the state may maintain what is properly its own, but not that it may acquire a condition which, from the aggrandizement of its power, might become threatening to other states.
Defensive measures and means of all kinds are allowable to a state that is forced to war, except such as by their use would make the subjects using them unfit to be citizens; for the state would thus make itself unfit to be regarded as a person capable of participating in equal rights in the international relations according to the right of nations.Among these forbidden means are to be reckoned the appointment of subjects to act as spies, or engaging subjects or even strangers to act as assassins, or poisoners (in which class might well be included the so called sharpshooters who lurk in ambush for individuals), or even employing agents to spread false news.In a word, it is forbidden to use any such malignant and perfidious means as would destroy the confidence which would be requisite to establish a lasting peace thereafter.
It is permissible in war to impose exactions and contributions upon a conquered enemy; but it is not legitimate to plunder the people in the way of forcibly depriving individuals of their property.For this would be robbery, seeing it was not the conquered people but the state under whose government they were placed that carried on the war by means of them.All exactions should be raised by regular requisition, and receipts ought to be given for them, in order that when peace is restored the burden imposed on the country or the province may be proportionately borne.
58.Right after War.
The right that follows after war, begins at the moment of the treaty of peace and refers to the consequences of the war.The conqueror lays down the conditions under which he will agree with the conquered power to form the conclusion of peace.Treaties are drawn up; not indeed according to any right that it pertains to him to protect, on account of an alleged lesion by his opponent, but as taking this question upon himself, he bases the right to decide it upon his own power.Hence the conqueror may not demand restitution of the cost of the war; because he would then have to declare the war of his opponent to be unjust.And even although he should adopt such an argument, he is not entitled to apply it; because he would have to declare the war to be punitive, and he would thus in turn inflict an injury.To this right belongs also the exchange of prisoners, which is to be carried out without ransom and without regard to equality of numbers.
Neither the conquered state nor its subjects lose their political liberty by conquest of the country, so as that the former should be degraded to a colony, or the latter to slaves; for otherwise it would have been a penal war, which is contradictory in itself.Acolony or a province is constituted by a people which has its own constitution, legislation, and territory, where persons belonging to another state are merely strangers, but which is nevertheless subject to the supreme executive power of another state.This other state is called the mother-country.It is ruled as a daughter, but has at the same time its own form of government, as in a separate parliament under the presidency of a viceroy (civitas hybrida).Such was Athens in relation to different islands; and such is at present (1796) the relation of Great Britain to Ireland.
Still less can slavery be deduced as a rightful institution, from the conquest of a people in war; for this would assume that the war was of a punitive nature.And least of all can a basis be found in war for a hereditary slavery, which is absurd in itself, since guilt cannot be inherited from the criminality of another.
Further, that an amnesty is involved in the conclusion of a treaty of peace is already implied in the very idea of a peace.
59.The Rights of Peace.
The rights of peace are:
1.The right to be in peace when war is in the neighbourhood, or the right of neutrality.
2.The right to have peace secured so that it may continue when it has been concluded, that is, the right of guarantee.
3.The right of the several states to enter into a mutual alliance, so as to defend themselves in common against all external or even internal attacks.This right of federation, however, does not extend to the formation of any league for external aggression or internal aggrandizement.
60.Right as against an Unjust Enemy.
