L. Oppenheim

“ The argument that it is unjust that private enemy citizens should suffer through having their property seized has no weight in face of the probability that fear of the annihilation of its merchant fleet in case of war may well deter a State intending to go to war from doing so. It is a matter for politicians, not for jurists, to decide whether Great Britain must in the interest of self-preservation oppose the abolition of the rule that sea-borne private enemy property may be confiscated. ”

“ Reasonably no other conditions ought to be laid down as necessary to constitute effective occupation in war than those under which in time of peace a Sovereign is able to assert his authority over a territory. What these conditions are is a question of fact which is to be answered according to the merits of the special case. When the legitimate Sovereign is prevented from exercising his powers and the occupant, being able to assert his authority, actually establishes an administration over a territory, it matters not with what means and in what ways his authority is exercised. ”

“ Even in an extreme case in which the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. ”

“ Ce n'est donc pas la destination du navire qui est décisive, c'est la destination de la marchandise. Celle-ci a beau être à bord d'un navire qui doit la débarquer dans un port neutre; du moment que le capteur est à même d'établir que cette marchandise doit, de là, être transportée en pays ennemi par voie maritime ou terrestre, cela suffit pour justifier la saisie et ensuite la confiscation de la cargaison. C'est le principe même du voyage continu qui est ainsi consacré, pour la contrebande absolue, par l'article 30. On regarde comme ne faisant qu'un tout le trajet suivi par la marchandise. ”

“ But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations between belligerents and neutral States. That International Law, if it could forbid war altogether, would be a more perfect law than it is at present there is no doubt. Yet eternal peace is an impossibility in the conditions and circumstances under which mankind at present live and will have to live for a long time to come, although eternal peace is certainly an ideal of civilisation which will slowly and gradually be realised. ”

“ A blockade instituted by a State against such portions of its own territory as are in revolt is not a blockade for the purpose of settling international differences. It has, therefore, in itself nothing to do with the Law of Nations, but is a matter of internal police. I cannot, therefore, agree with Holland, who, in his Studies in International Law, p. 138, treats it as a pacific blockade sensu generali. Of course, necessity of self-preservation only can justify a State that has blockaded one of its own ports in preventing the egress and ingress of foreign vessels. ”

“ The millions of individuals who as a body are called mankind do not face one another individually and severally, but in groups as races, nations, and States. With the welfare of the races, nations, and States to which they belong the welfare of individuals is more or less identified. And it is the development of races, nations, and States that carries with it the causes of war. A constant increase of population must in the end force upon a State the necessity of acquiring more territory, and if such territory cannot be acquired by peaceable means, acquisition by conquest alone remains. ”

“ On the other hand, one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants of the defeated army carry on the contention by mere guerilla tactics. Although hopeless of success in the end, such petty war can go on for a long time thus preventing the establishment of a state of peace in spite of the fact that regular war is over and the task of the army of occupation is no longer regular warfare. ”

“ If, however, a neutral does not attack a belligerent, but only repulses him by force when he violates or attempts to violate the neutrality of the neutral, such repulse does not comprise hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel in a neutral port and are repulsed by neutral men-of-war, or if belligerent forces try to make their way through neutral territory and are forcibly prevented by neutral troops, no hostilities have been committed by the neutral, who has done nothing else than fulfil his duty of impartiality. ”

“ L'utilité de dégager, à cet égard, des pratiques des différents pays des règles claires et simples n'a, pour ainsi dire, pas besoin d'être démontrée. Pour le commerce, l'incertitude des risques de capture, si elle n'est pas une cause d'arrêt total, est tout au moins la pire des entraves. Le commerçant doit savoir les risques qu'il court en chargeant sur tel ou tel navire; l'assureur, s'il ignore la gravité de ces risques, est forcé d'exiger des primes de guerre souvent exorbitantes ou insuffisantes. ”

“ It can happen during war that war material belonging to one of the belligerents is brought into neutral territory for the purpose of saving it from capture by the enemy. Such war material can be brought by troops crossing the neutral frontier for the purpose of evading captivity, or it can be purposely sent there by order of a commander. Now, a neutral is by no means obliged to admit such material, just as he is not obliged to admit soldiers of belligerents. But if he admits it, his duty of impartiality obliges him to seize and retain it till after the conclusion of peace. ”

“ Nations which have been for years facing each other armed to the teeth, waiting for a convenient moment to engage in hostilities, are only too ready to obliterate the boundary line between legal and political differences. Between such nations a condition of continuous friction prevails which makes it difficult, if not impossible, in every case which arises to distinguish the legal from the political character of the difference. ”

“ Because a number of wars have been fought since the establishment of the Permanent Court, impatient pacifists are in despair and consider the institution of the Court of Arbitration a failure, whereas cynical pessimists triumphantly point to the fact that the millennium would seem to be as far distant as ever. The calm observer of the facts who possesses insight in the process of historical development, has no cause to despair, for, compared with some generations ago, arbitration is an established force which daily gains more power and influence. ”

“ Only such individuals as lack insight into history and human nature can, for instance, defend the opinion that a war is unjust which has been caused by the desire for national unity or by the desire to maintain the balance of power which under the present conditions and circumstances is the basis of all International Law. Necessity for a war implies its justification, whatever may be the cause. ”

“ When war breaks out, even if it be limited to only two members of the Family of Nations, nevertheless the whole Family of Nations is thereby affected, since the rights and duties of neutrality devolve upon such States as are not parties to the war. And the subjects of neutral States may feel the consequences of the outbreak of war in many ways. War is not only a calamity to the commerce and industry of the whole world, but also involves the alteration of the legal position of neutral merchantmen on the Open Sea, and of the subjects of neutral States within the boundaries of the belligerents. ”

“ Again, war is actually in existence if the other party forcibly resists acts of force undertaken by a State by way of reprisals, or during a pacific blockade or an intervention. Now in all these and similar cases, although war has broken out without a previous declaration or qualified ultimatum, all the laws of warfare must find application, for a war is still war in the eyes of International Law even though it has been illegally commenced, or has automatically arisen from acts of force which were not intended to be acts of war. ”

“ But reprisals cannot be dispensed with, because without them illegitimate acts of warfare would be innumerable. As matters stand, every belligerent and every member of his forces knows for certain that reprisals are to be expected in case they violate the rules of legitimate warfare. And when nevertheless an illegal act occurs and is promptly met with reprisals as a retaliation, human nature would not be what it is if such retaliation did not act as a deterrent against a repetition of illegitimate acts. ”

“ Since International Law is a law between States only and exclusively, no rules of International Law can exist which prohibit private individuals from taking up arms and committing hostilities against the enemy. ”

“ If war has once broken out the very national existence of the belligerents is more or less at stake. The risk the belligerents run, the exertion they make, the blood and wealth they sacrifice, the reputation they gain or lose through the changing fortune and chances of war—all these and many other factors work or may work together to influence the ends of a war so that eventually there is scarcely any longer a relation between them and the causes of the war. ”

“ A war may be just or unjust from the standpoint of both belligerents, or just from the standpoint of one and utterly unjust from the standpoint of the other. The assertion that whereas all wars waged for political causes are unjust, all wars waged for international delinquencies are just, if there be no other way of getting reparation and satisfaction, is certainly incorrect because too sweeping. The evils of war are so great that, even when caused by an international delinquency, [76] war cannot be justified if the delinquency be comparatively unimportant and trifling. ”

“ Occupation is invasion plus taking possession of enemy country for the purpose of holding it, at any rate temporarily. The difference between mere invasion and occupation becomes apparent by the fact that an occupant sets up some kind of administration, whereas the mere invader does not. A small belligerent force can raid enemy territory without establishing any administration, but quickly rush on to some place in the interior for the purpose of reconnoitring, of destroying a bridge or depôt of munitions and provisions, and the like, and quickly withdraw after having realised its purpose. ”

“ A plus d'un point de vue, ils ont une sorte d'individualité; notamment ils ont une nationalité, un caractère national. Cette nationalité est manifestée par le droit de pavillon; elle place les navires sous la protection et le contrôle de l'État dont ils relèvent; elle les soumet à la souveraineté et aux lois de cet État et, le cas échéant, à ses réquisitions. C'est là le critérium le plus sûr que le navire est bien un des éléments de la force maritime marchande d'un pays et, par conséquent, le meilleur critérium pour déterminer s'il est neutre ou ennemi. ”

“ War is not a condition of anarchy, indifferent or hostile to law, but a condition recognised and ruled by International Law, although it involves a rupture of peaceful relations between the belligerents. ”

“ There is no doubt that a foreign State commits an international delinquency by assisting insurgents in spite of its being at peace with the legitimate Government. But matters are different after recognition. The insurgents are now a belligerent Power, and the civil war is now real war. Foreign States can either become a party to the war or remain neutral, and in the latter case all duties and rights of neutrality devolve upon them. ”

“ In time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminative practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or indirectly belong to their armed forces are safe, as is also, with certain exceptions, their private property. ”

“ If two States are convinced that war between them is inevitable, and if consequently they face each other armed to the teeth, they will find at the suitable time many a so-called just cause plausible and calculated to serve as a pretext for the outbreak of the war which was planned and resolved upon long ago. The skill of politics and diplomacy are nowhere more needed than on the occasion of a State's conviction that it must go to war for one reason or another. ”

“ Nevertheless, as civilisation has advanced during the last centuries, so has likewise advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit. ”

“ Il est évident qu'un blocus ne sera pas établi de la même façon pour une côte sans défense et pour une côte possédant tous les moyens modernes de défense. Il ne saurait être question dans ce dernier cas d'appliquer une règle telle que celle qui exigeait autrefois des vaisseaux arrêtés et suffisamment proches des points bloqués; la situation serait trop dangereuse pour les navires de la force bloquante qui, par ailleurs, possèdent aujourd'hui des moyens plus puissants leur permettant de surveiller d'une façon effective une zone beaucoup plus étendue que jadis. ”

“ Requisitions and contributions in war are the outcome of the eternal principle that war must support war. [286] This means that every belligerent may make his enemy pay as far as possible for the continuation of the war. But this principle, though it is as old as war and will only die with war itself, has not the same effect in modern times on the actions of belligerents as it formerly had. For thousands of years belligerents used to appropriate all private and public enemy property they could obtain, and, when modern International Law grew up, this practice found legal sanction. ”

“ As war is a contention between States for the purpose of overpowering each other, violence consisting of different sorts of force applied against enemy persons is the chief and decisive means of warfare. These different sorts of force are used against combatants as well as non-combatants, but with discrimination and differentiation. The purpose of the application of violence against combatants is their disablement so that they can no longer take part in the fighting. ”

“ Since war is not a condition of anarchy and lawlessness, International Law requires that belligerents shall comply with its rules in carrying on their military and naval operations. So long and in so far as belligerents do this, their warfare is legitimate; if they do not comply with the rules, their warfare is illegitimate. ”

“ Whenever a case arises in which a State lacking the legal qualification to make war nevertheless actually makes war, such State is a belligerent, the contention is real war and all the rules of International Law respecting warfare apply to it. ”