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International Law: The Mitigation of War

International Law

by

Henry Maine

LECTURE VII.
THE MITIGATION OF WAR.

The age in which International Law was born was an age of land wars. The wars of succession and of feudal ascendancy had partially died out, but the Reformation brought with it a new fury of fighting, and the wars of religion were among the most ferocious that mankind had waged. Armies did not then so much consist of rival potentates, as of hosts in which each individual detested every man on the generally believed to have culminated in the siege of Magdeburg. There is a famous passage of Grotius about the license of fighting which he saw around him; and though the dates forbid us to see here with solve writers any allusion to the siege of Magdeburg, there seems little doubt that the stories of the horrors which became current gave a new point to the speculations of Grotius and his school.

Until very recent times there is great ground for distrusting the accuracy of the figures which purport to represent the amount of slaughter at battles and sieges. It is said, however, that the population of Magdeburg, which was taken by storm, was reduced from 25,000 to 2,700. The siege is described by an English eyewitness, whose account of it, generally regarded as authentic, constitutes those 'Memoirs of a Cavalier' which are generally embodied in the works of Defoe. The writer states that out of 25,000 men, and some said 30,000, there was not after the storm a soul to be seen alive till the flames drove those that were hid in vaults and secret places to seek death in the streets rather than perish in the fire. Of these miserable creatures too some were killed by the fierce soldiers, but at last they saved the lives of such as came out of their cellars and holes, and so about 2,000 poor desperate creatures were left. There was little shooting. The execution was an cutting of throats and mere house murders. Later historical information tends on the whole to relieve the memory of Count Tilly, the commander of the besiegers, from the infamy which has hitherto attached to it; but all sieges in that day were to the last degree homicidal, and there is a general impression that the peculiar ferocity of the soldiery after the capture of a town by storm was due to the Tartars, who had twice overrun what were then the most fertile and civilized portions of the world, and who never spared the population of the town which had resisted them. They appear to have considered that every stratagem and every degree of bad faith was justifiable for the purpose of inducing the garrison to surrender, but in the long run they never spared any man. Nor have the countries in which these massacres took place ever wholly recovered from them. So far, indeed, as the centre and west of Europe are concerned, there is visible a calming down of these bitter extremities of war as soon as Grotius, with perhaps a few predecessors and a series of successors, began to write. I have already several times referred to his method. He was guided, as it seems, principally by what he supposed to be examples and precedents. He was a man of great learning according to the particular standards of learning which prevailed in that day; but the critical treatment of history had not begun, and the worst of the pile of innumerable examples which are collected in the 'De Jure Belli et Pacis' is that we cannot be sure of the authenticity of the accounts of them which are found in the books of ancient writers. Grotius digested these precedents. He separated the most humane from the most ferocious, performing the function of separation by applying to the mass of matter before him, first of all the test of religious teaching as he found it in the Scriptures, and next the principle of what the Romans called the Law of Nature. The method of his immediate successors has been substantially the same; but in our day some skepticism has arisen, not so much as to the philosophical value of the process as with regard to its practical results. In modern international writings you may sometimes find it said that the softening of the usages of war was not so much due to Grotius, or to writers who came after him, as to the growing humanity of military commanders. It is true that among the successors of Grotius there is a great variety in the degree of humanity which characterizes them. Puffendorf and Bynkershoek are inferior to Vattel in gentleness, and in the wish to prefer the more humane to the queller usage, but beyond comparison the most humane of the publicists is Vattel, a Swiss. There is, however, very good reason to suppose that it was the writings of the publicists which most encouraged the humanity of war. They all followed Grotius in professing unbounded respect for the Roman conception of the Law of Nature. Philosophically that principle is now not much cared for; but the supposed rules of the Law of Nature were applied by another set of writers to another subject matter. There was a gradual growth all over continental Europe in the eighteenth century of respect and reverence, and even enthusiasm, for humanity, and you may perceive that on the whole the persons who experienced, or pretended to experience, this feeling, were: believers in the Law of Nature. The chief of them was that famous man the whole of whose philosophy, political, social, and educational, was based on the Law of Nature, Jean Jacques Rousseau. It seems in truth, apart from what the opinion of scholars may have been, that there was always a close association between the Law of Nature and humanity, and that by their constant profession of applying that law and of easily distinguishing its dictates from one another the international writers did materially increase the gentleness of mankind even when their passions were most excited.

The wars of the last part of the seventeenth and most of the eighteenth century were naval wars. A great amount of law grew up while they were continuing. One chief reason why, on the whole, naval usages are reasonable and humane is, that the belligerents were checked by the neutrals. In land wars a neutral can only affect proceedings to which he objects by taking part in the strife; but from the very first the belligerent maritime Powers were prevented from going to the full lengths of predatory destructiveness by the authority of prize courts. It is, however, quite true that the commanders of land forces did gradually abandon the ferocity with which Tilly has been reproached. There was no more humane commander on the whole than our own Duke of Wellington. It is singular, at the same time, that he constantly falls into an error with which English lawyers are specially charged, that of confounding military law, which is regulating law, with martial law, which means the will of the officer commanding. He always spoke of the law of war as consisting in the volition of the Commander of the Forces.

The first great attempt which was made after the epoch of Grotius to give general fixity and to humanize the law of land war, was made almost in our day by an unfortunate sovereign to whom justice has never been fully done, Alexander II of Russia. He does seem to have been animated, as were both the statesmen and literary men occasionally in the eighteenth century, by an enthusiasm for humanity. You are all aware that almost immediately after his succession to the Russian throne he abolished serfdom; but his efforts to reform International Law, and specially the usages of war, are less remembered. He joined in promoting the Geneva Convention, of which I shall say much presently; he was the author of the proposal for renouncing the use of certain weapons which caused wounds of unusual painfulness; and he was the sovereign who summoned and who took an unflagging interest in the

Brussels Convention of 1874. The Brussels Convention failed, and we shall find, I think, hereafter that the reasons why it failed are remarkably instructive. I will say that one of the grounds for its not coming to maturity was, that it was commenced too soon after one of the greatest of modern wars, which probably never had a rival in the violence of the passions which it excited. England before the Convention met had stipulated for the omission of all discussion of the rules of naval war. These, I suppose, were considered to have been sufficiently settled for the day by the Declaration of Paris; and at the close of the discussions of the Conference, when even its members admitted that they had been able to agree on a very small part of the matters submitted to them, it was the English Foreign Secretary of State, Lord Derby, who finally gave the Convention its deathblow. Undoubtedly the smaller Powers of Europe, and the Powers which have not yet taken up the system of great armies raised by conscription, had very serious reasons for objecting to many of its suggestions, which had not unnaturally sprung up in the minds of military men who sympathized either with France or with Germany in the war which a few years before had been brought to a conclusion. The Brussels Conference had, however, one result which had great importance and interest. Just at the close of the American War of Secession the United States had prepared a Manual of Rule and Usage for the use of their officers in the field. This example -- the formation of a practical Manual stating for the officers of each nation what contingencies they were to be prepared for in actual contest and how they were to deal with them -- was followed by Germany, by England, and by France? and some of these Manuals have been adopted by smaller Powers. But they were all greatly affected by the recommendations of the Conference of Brussels; and in reality it may be said that wherever there was anything like an approach to unanimity in the decisions and votes of the Conference, it is adopted in this somewhat irregular form by the greater part of the nations of the world.

The Manual prepared for English officers, which was, I believe, chiefly compiled by the present Lord Thring, then the official draftsman of the British Government, is one of the best. Visibly the writer has taken all that he could take from the humaner doctrines of the publicists, more particularly from Vattel, but he never pretends to lay down authoritatively the law, which he nevertheless declares in such a form that it is now possible for a student of law to read it and to gain from it a very vivid notion of what a land war in which England was engaged would be like if unhappily it occurred. I will proceed to read to you certain passages from this Manual, taking portions at the same time from other Manuals, and making some remarks as I go on upon the older history of the customs of war of which it treats. I am sorry to say that the British Government has not thought fit to allow it to be published, and therefore I am afraid it cannot be procured. It begins with a statement of general principles.

'War, properly so called, is an armed contest between independent nations, and can only be made by the sovereign power of the State. In this country a formal announcement of war is made by a proclamation issued by her Majesty and posted in the City of London. The first consequence of this existence of a state of war between two nations is, that every subject of the one nation becomes in the eye of the law an enemy to every subject of the other nation; for as every subject is politically a party to the act of his own Government, a war between the Governments of two nations is a war between all the individuals of each nation. This principle carried to its extreme limits would authorize the detention, as prisoners of war, of subjects of one of the hostile parties traveling or resident in the country of the other at the time of the outbreak of war, and the confiscation of their goods. The exercise, however, of such a right is contrary to the practice of modern warfare, and the conduct of Napoleon cannot be justified, who on the outbreak of the war with England in 1803 seized all the English traveling in France between eighteen and sixty years of age, and detained 10,000 of them in prison, where they remained till the peace of 1814. The usage with respect to goods is to allow the owners to dispose of them, or leave them to be claimed by the owners on the restoration of peace. The expulsion of subjects of the enemy from the territory of the opposing state is justifiable, and may be exercised or not according to circumstances. During the Crimean war Russians were allowed to reside quietly both in England and France. In the Franco-German war of 1870 hostile strangers revere required to quit the soil of France within a few days after they had received notice to quit. On the other hand, war is not a relation of man to man, but of state to state, and in itself implies no private hostility between the individuals by whom it is carried on. They are enemies only in their character of soldiers, and not as men. The object of war, politically speaking, is the redress by force of a national injury. The object of war in a military point of view is to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money.' 'Wars,' says Lord Bacon, 'are no massacres and confusions, but they are the highest trial of right, when princes and states, that acknowledge no superior on earth, shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give to either side.'

Going back upon this list of general principles, I must call your attention to the contrast between the statement that the first consequence of the existence of a state of war between two nations is that every subject of the one becomes in the eye of the law an enemy to every subject of the other nation, and the proposition that war is not a relation of man to man, but of state to state, and of itself implies no private hostility between the individuals by whom it is carried on, that they are enemies only in their character of soldiers, and not as men. Several critics in European countries have remarked on this, that the two propositions do not fall in with one another; that the first of them would authorize the killing of women and children, whereas the second reduces war to a contest between professional soldiers. I think there is some justice in this criticism, that the two propositions belong to different periods of history. The first represents what might have been the theory of law if an attempt had been made to express it at the period of Greek classical antiquity, while the second proposition represents a new theory to which the world has generally advanced. Many passages which meet us in Thucydides show that in point of fact in the view of the Greeks war must have been thought (if anybody theorized about it) to be waged between the whole of the subjects of one state and the whole of the subjects of another. There is a passage that recurs frequently, that they killed the men, and the women and children they reduced to slavery. The women and children were in fact considered, as well as the men, to be in a state of enmity to the other belligerent state. I remark here, what many have remarked as well, that one consequence of the decay and abolition of slavery was an increase of bloodshed. Women and children and occasionally grown men had a value of their own which supplied a motive for keeping them alive, and at a later date bloodshed was, to a certain extent, diminished by the practice of ransoming; and there were no bloodier wars than those which occurred when the practice of ransoming had just died out.

The next portion of the Manual has for a title: 'The means by which war should be carried on' -- that is to say, the means by which war is as a fact carried on among civilized and relatively humane enemies. The writer says: 'The poisoning of water or food is a mode of warfare absolutely forbidden; but the turning off the supply by stopping convoys of food to the enemy is one of the usual methods of reducing them to submission. The use of poisoned weapons and of weapons calculated to produce unnecessary pain or misery is prohibited, on the ground that, as the object of war is confined to disabling the enemy, the infliction of any injury beyond that which is required to produce disability is needless cruelty.'

As to the poisoning of water and food, the best explanation of its prohibition is that it seems to have existed from very earliest times. It is quite certain that both Greeks and Romans thought that the poisoning of water and food was worthy only of barbarians. What was the origin of this feeling? has been asked by writers of modern days. It may have been that the poisoning of water and food was thought a peculiarly painful mode of inflicting death. The only poison of great efficacy which seems to have been known to antiquity, and which indeed was the base of the subtle poisons employed in the Middle Ages by the Italians, was arsenic, which no doubt causes death coupled with the extremist pain. Or it may have been the idea that poison was not fair fighting -- and this shows itself as a very strong feeling in very ancient days -- that on the whole each combatant ought to have the means of employing his skill in resistance.

On the subject of the use of poisoned weapons, and weapons calculated to produce unnecessary pain or injury, one of the chief modern reforms of the law of war has been attempted, and with as much success as it was possible for it to command. By the Declaration of St. Petersburg, proposed by the Emperor Alexander II and signed in 1868 by all the civilized Powers, the contracting parties agreed to renounce the use by their forces on land or sea of an explosive projectile of a weight below 400 grammes -- a little more than fourteen ounces -- charged with fulminating or inflammable matter. I have heard that this provision in the Declaration of St. Petersburg has no longer its humane effect in consequence of the progress of science, which, I am sorry to say, has often had the effect of defeating attempts to increase the area of humanity. It is alleged that the conical bullets which are universal in modern armament do in fact cause pain as severe and wounds as incurable as ever did the explosive bullets which were just coming in about the year 1868. I am myself incompetent to meet the objection, but at all events we must mark that the Declaration of St. Petersburg, expressing the opinion of the whole civilized world, declares that the object of war is confined to disabling the enemy, and lawful usage does not warrant any state in causing injuries which give more pain than is necessary for that comparatively humane object.

A further universally accepted rule is as follows: 'Assassination is against the customs of war. Assassination is the murder by treachery of individuals of the hostile forces. The essence of the crime is treachery, as a surprise is always allowable, and a small force may penetrate into the enemy's camp, despatch the sentinels, take the general officer prisoner or kill him, without infringing any of the customs of war or subjecting themselves, if taken, to be treated otherwise than as prisoners of war. It is the duty of the enemy to be prepared against a military surprise, but not to guard himself against the treacherous attacks of individuals introduced in disguise into the camp.'

Assassination began to be regarded with peculiar horror immediately after the Reformation. No doubt it was the murder of William of Orange, more than suspected of having been prompted by the Spaniards, which brought about the fierce denunciations of which it is the subject. There will always, of course, be some danger of this crime being resorted to when a war, as is sometimes the case, appears to depend entirely on the life of one individual -- a great statesman or a great general. That was the position of William of Orange, in the opinion of all his Catholic enemies. But it has often been noted that a new feeling had arisen in the interval between the wars of the Reformation and the progress of the greatest war in which this country has ever been engaged. Many writers quote with the strongest approval the action of Mr. Fox when Foreign Secretary. A promising scheme for the murder of the great Napoleon was communicated to him, and he at once made it known in Paris and informed the Emperor of the danger which threatened him. The feeling elicited by this proceeding of the English Foreign Secretary was so strong and has so little decayed, that I think with the writer of the Manual we may safely lay down that assassination is against the customs of war.

He proceeds: 'With the exception of the means above stated to be prohibited, any instruments of destruction, whether open or concealed, partial or widespread in their effects, shells of any weight, torpedoes, mines, and the like, may legitimately be employed against any enemy; and seeing that the use is legitimate, there is no reason why the officers or soldiers employing them should be refused quarter or be treated in a worse manner than other combatants. A humane commander will, no doubt, so far as the exigencies of war admit, endeavor to provide that the effect of the explosion of a mine or torpedo should extend to combatants only, but practically no rule can be laid down on the subject. The general principle is, that in the mode of carrying on war no greater harm shall be done to the enemy than necessity requires for the purpose of bringing him to terms. This principle excludes gratuitous barbarities, and every description of cruelty and insult that serves only to exasperate the sufferings or to increase the hatred of the enemy without weakening his strength or tending to procure his submission.'

I have further to remark on these portions of the Manuals before us, that one of the most curious passages of the history of armament is the strong detestation which certain inventions of warlike implements have in all centuries provoked, and the repeated attempts to throw them out of use by denying quarter to the soldiers who use them. The most unpopular and detested of weapons was once the crossbow, which was really a very ingenious scientific invention. The crossbow had an anathema put on it, in 1139, by the Lateran Council, which anathematized artem illam mortiferam et Leo odibilem. The anathema was not without effect. Many princes ceased to give the crossbow to their soldiers, and it is said that our Richard I. revived its use with the result that his death by a crossbow bolt was regarded by a great part of Europe as a judgment. It seems quite certain that the condemnation of the weapon by the Lateran Council had much to do with the continued English employment of the older weapon, the longbow, and thus to the English successes in the wars with France. But both crossbow and longbow were before long driven out of employment by the musket, which is in reality a smaller and much improved form of the cannon that at an earlier date were used against fortified walls. During two or three centuries all musketeers were most severely, and as we should now think most unjustly, treated. The Chevalier Bayard thanked God in his last days that he had ordered all musketeers who fell into his hands to be slain without mercy. He states expressly that he held the introduction of firearms to be an unfair innovation on the rules of lawful war. Red-hot shot was also at first objected to, but it was long doubtful whether infantry soldiers carrying the musket were entitled to quarter. Marshal Mont Luc, who has left Memoirs behind him, expressly declares that it was the usage of his day that no musketeer should be spared.

The bayonet also has a curious history. No doubt it must be connected by origin in some way with the town of Bayonne, but the stories ordinarily told about its invention and early use seem to be merely fables. No invention added more to the destructiveness of war, as the bayonet turns the musket into a weapon which is at once a firearm and a lance. The remarkable thing about it is, that though known it remained for so long unused. It was Frederick the Great who is said first to have used it generally or even universally among his soldiers. The probability is that the fear of exposing infantry to deprivation of quarter if taken prisoners caused this hesitation in using it. In our own army we have an example of the feeling which the old usage of war on the subject of certain weapons created, in the green uniform of the Rifle Brigade. It seems to have been long doubted whether foot soldiers armed with the early form of rifle would have their lives granted to them if they were taken prisoners; and the green uniform, first used among the olive foliage of Spain and Portugal, was supposed, it is now said untruly, to give a greater protection than clothes of any other colour at a longer distance.

Looking back on this long-continued state of feeling on the subjects of new and destructive inventions, one may perhaps wonder that mines and torpedoes, and particularly the torpedo of our day, have not met with harsher feeling. But the reason why no such attempts as were formerly tried to drive out of use especial weapons are likely hereafter to be seen, is that, in the first place, any art, and especially an art of destruction, is in our day likely to see rapid improvements. We know of no limit to the power of destroying human life; and when the extension of the area of this power by a professional class has once set in, it is impossible for us to lay down to what lengths it may go or over what time it may extend. The invention proceeds so rapidly that a peculiarly objectionable form of it can rarely be noted and specified. On the other hand, it is a more satisfactory reflection that wars have on the whole become less frequent, and they have also become shorter. Hence the opportunities of observing the widespread and cruel destruction caused by the most formidable class of new warlike inventions are much rarer than they were.

I will proceed to say something on the history of the torpedoes which occupy so much of our attention. I may remark that when it was first invented the torpedo was received with downright execration. It first made its appearance in the war between the revolted colonies, now forming the United States, and the mother country, and it was then known as the 'American Turtle.' Many attempts to obtain an improved form of it were made during the war between England and France, when Napoleon and his armies were hanging on the coast. The principle of using clockwork had already been invented, but the peace of 1814 put an end for the time to that method of invention, and it was long before the world heard again of the catamaran, as the torpedo was next called.

The epochs in the period of humanitarian progress and voluntary codification which deserve to be identified with the name of the Emperor Alexander II of Russia are: the Convention of Geneva as to wounded, acceded to by all the European Powers in the course of the years 1864, 1865, and 1866; the Declaration of St. Petersburg in 1868; and the Conference at Brussels, which filled the greater part of the year 1874. I refer you for the results of both to Halleck's excellent book.