Law of war

“ Indeed, apart from certain restrictions, everything may eventually be the object of a means of warfare, provided the means are legitimate in themselves and are capable of fostering the realisation of the purpose of war. ”

“ This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law [12] that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. ”

“ I say it is a War Power; and when your country is actually in war, whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on according to the Laws of War; and by the Laws of War an invaded country has all its laws and municipal institutions swept by the board, and Martial Law takes the place of them. ”

“ The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.
Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, War has come to be acknowledged not to be its own end, 3but the means to obtain great ends of state, or to consist in defence against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor. ”

“ Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral States. ”

“ And he shall judge among the nations, and shall rebuke many people: and they shall beat their swords into plowshares, and their spears into pruning-hooks: nation shall not lift up sword against nation, neither shall they learn war any more. ”

“ In any case, it is universally recognised that war is a contention, which means, a violent struggle through the application of armed force. For a war to be in existence, two or more States must actually have their armed forces fighting against each other, although the commencement of a war may date back to its declaration or some other unilateral initiative act. ”

“ 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. ”

“ But this conflict must be one which will be recognized in the sense of international law as war. Belligerence, too, is a fact. The mere existence of contending armed bodies and their occasional conflicts do not constitute war in the sense referred to. ”

“ The insurgents being in possession of them at the time, Spain ceded what she did not in fact possess. Thus it has been contended that the position of the insurgents became that of belligerents defending their country against conquest by invading forces.
Wars have been classed in different ways—wars of intervention, wars of conquest, wars of defence, wars of independence, just Neutral interest. wars, unjust wars, and so on; but the law of war applies to them all without distinction. States do not sit as judges over each other, but treat war, subject to their own interest, as a fact. ”

“ Such case of extreme necessity is said to have arisen when violation of the laws of war alone offers either a means of escape from extreme danger or the realisation of the purpose of war—namely, the overpowering of the opponent. ”

“ Another extraordinary moral consequence flows from this insufficiency of defence: “If the enemy fails to defend his country, we may rightfully appropriate what we want.” Here, now, is a nice question of martial law or casuistry, solved with the simplicity of an ancient Roman. In other words, when in the enemy’s country, the army shall be strictly careful not to seize, capture or appropriate to military or private uses, any property—that it cannot get.
“They (the Southern people) have lost all title to property, and can lose nothing not already forfeited.” ”

“ 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. ”

“ If two nations are at war and a nation supposed to be friendly to each should send arms and ammunition to one or the other, it would be a violation of international law, and would be looked upon as an act of war on the part of the friendly nation. ”

“ The declaration of a state of war is an enactment by the legislative branch of the government; the creation of laws is a function that belongs exclusively to the same department;—but when a law exists, or the state of war exists, it is for the President, by virtue of his executive office, and of his position as commander-in-chief, to employ the army and navy, and the militia actually called into the service of the United States, in the execution of the law, or the prosecution of hostilities, in such a manner as he may think proper. ”

“ War is the contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. War is a fact recognised, and with regard to many points regulated, but not established, by International Law. ”

“ Since the belligerents, for the realisation of the purpose of war, are entitled to many kinds of measures against enemy persons and enemy property, the question must be settled as to what persons and what property are vested with enemy character. ”

“ But the Law of Nations,—and here is a point of infinite importance to the clear understanding of the subject,—while anticipating and providing for controversies between nations, recognizes and establishes War as final Arbiter. It distinctly says to nations, "If you cannot agree together, then stake your cause upon Trial by Battle." ”

“ And even acts of force illegally performed by one State against another, such, for instance, as occupation of a part of its territory, are not acts of war so long as they are not met with acts of force from the other side, or at least with a declaration from the latter that it considers the particular acts as acts of war. ”

“ The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. ”

“ Self-imposed restrictions, almost imperceptible, and hardly worth mentioning, termed usages of International Law, accompany it without essentially impairing its power.
"Violence, that is to say physical force, is therefore the Means; the compulsory submission of the enemy to our will is the ultimate object. ”

“ Yet legitimate warfare is, on the whole at any rate, secured through several means recognised by International Law. These means of securing legitimate warfare may be divided into three classes. The first class comprises measures of self-help:—reprisals; punishment of war crimes committed by enemy soldiers and other enemy subjects ”

“ Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. ”

“ Among these, my impression is that a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government to extend certain rights of war, not only over his camp, but its environs and the near field of his military operations. ”

“ It must first be pointed out that the principles of international law, which have the function to regulate legal issues during war, make no distinction between an aggressive war, a defensive war, or a justified war. ”

“ These gentlemen are authorities which show that, when two belligerents are carrying on a war, a neutral power may supply, without any breach of international law and without a breach of the Foreign Enlistment Act, munitions of war—gunpowder, every description of arms, in fact, that can be used for the destruction of human beings. ”

“ A war is practically at an end when the position of the one belligerent renders the contest manifestly hopeless for the other belligerent.” [2] From that moment it is the duty of the conqueror to organize the regular government of the conquered territory on a footing of peace. As soon as this regular government has been established, to take human life, destroy property or otherwise disturb public order entails the penalties of the criminal law. ”

“ Ordinarily, only the sovereign power—that is, the person or body in whom the chief authority is vested according to the constitution of the nation—can make war. War is an act of the nation, and hence only the authority that represents the nation can make war. Subordinate bodies in a confederation or union of states have the right to make war, if custom or law allows it. ”

“ Why, even then you will find that law implies force to compel obedience, and that force in the last analysis of things means armies, navies—war! So that when the world shall be removed from the possibilities of war, I do not know. ”

“ All foreign writers on international law concur in the opinion that the immediate and necessary consequence of a declaration of war is to interdict all intercourse or dealings between the subjects of the belligerent states. ”

“ On no subject connected with the operations of war has International Law come as yet to lamer conclusions than concerning Military Reprisals, or the revenge that may be fairly exacted by one belligerent from the other for violation of the canons of honourable warfare. ”

“ Finally, war must be violent. According to the law of modern states, all the way from Iceland to the Yemen, economic, political, or moral [Pg 29] pressure is not war; war is the legalization, in behalf of the state, of things which no individual may lawfully do in time of peace. ”

“ Such [Pg 93] insurgents in fact, although not in law, form a State-like community, and practically they are making war, although their contention is by International Law not considered as war in the technical sense of the term as long as they have not received recognition as a belligerent Power. ”

“ The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. ”

“ War, in one form or another, appeared with the first man. At the dawn of history, its morality was not questioned; it was simply a fact, like drought or disease -- the manner in which tribes and then civilizations sought power and settled their differences.
Over time, as codes of law sought to control violence within groups, so did philosophers, clerics and statesmen seek to regulate the destructive power of war. The concept of a "just war" emerged, suggesting that war is justified only when it meets certain preconditions: If it is waged as a last resort or in self-defense; ”

“ The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the Government and of all the citizens or subjects of the other, applies equally to civil and to international wars. ”

“ As soon therefore as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, for the purpose of bringing him to reason, and obtaining justice and security from him. ”

“ Our arms having been everywhere victorious, having subjected to our military occupation a large portion of the enemy's country, including his capital, and negotiations for peace having failed, the important questions arise, in what manner the war ought to be prosecuted and what should be our future policy. ”

“ ARTICLE 5.—In the absence of a state of war, measures of force by land, by sea or in the air taken by one State against another and not taken for the purpose of defense against aggression or for the protection of human life shall be deemed to be acts of aggression. ”

“ Every nation is fighting in self-defence, every nation is fighting to destroy the tyranny of armaments, every nation is fighting to show that unprovoked aggression cannot be practised with impunity. Every nation pays homage to peace by maintaining that its enemies began the war. ”

“ The question of the rights and wrongs of a particular war is generally considered from a juridical or quasijuridical standpoint: A certain country broke a certain treaty, crossed a certain frontier, committed certain technically unfriendly acts, and, therefore, by the rules, it is permissible to kill as many of the soldiers of that country as modern armaments render possible. ”

“ And if in fact, or under any colour, we should endeavour to seize the said kingdom by force of arms, by making, or moving war, offensive or defensive, from this time for ever, that is to be held, judged, and declared, for an unlawful, unjust, and wrongfully undertaken war, and for violence, invasion, and usurpation, done against reason and conscience ”