THE LAW OF WAR.*

THE relations between States in time of war are correctly laid down by Mr. Risley as being divided into two main branches :— "1. The Law of Belligerency, or rules regulating the relations of belligerents inter se.

2. The Law of Neutrality, or rules regulating the relations of belligerents with neutrals."

The distinction between these two branches is sufficiently broad and obvious. As between belligerents and neutrals any act committed by the one State to the prejudice of the other, in contravention of the generally accepted principles of international law, may, if unredressed, be made the subject of war. The penalties thus attaching to any breach of the accepted cnstom of nations lends to international law in this respect a very real force and efficacy.

As between two belligerent States, on the other hand, there can of course be no fear of ultimate recourse to war because a state of war already exists. It is indeed suggested that belligerents might, in certain circumstances, be called to account by general concert of the Powers for violation of the laws of war. It is, however, to be feared that the altruistic spirit is not yet sufficiently developed to have much effect in impelling concerted action on such grounds. The Law of Belligerency is thus practically non-effective, because it cannot be enforced ; but the Law of Neutrality is binding, because a penalty is attached to its violation.

First, then, let us consider what are the laws of war as generally understood. The only international engagements in this respect which are practically binding upon Great Britain are the Geneva Red Cross Convention of 1861 and the Declara- tion of Paris of 1856. The Geneva Convention, which is to all intents and purposes accepted by the civilised world, provides for the protection of hospitals, ambulances, and the attendant doctors and nurses. The Declaration of Paris, 1856, lays down the four following rules :—

1. Privateering is, and remains, abolished. 2. A neutral flag covers enemy's goods, except contraband of war. 3. Neutral goods, except contraband of war, cannot b.! eized under an enemy's flag.

4. Blockades, in order to be valid, must be effective ; that is to say—maintained by a force sufficient to really prevent access to the enemy's coast.

Most countries, excepting the United States, have accepted these rules.

Mr. Risley throughout his work lays great stress on the Brussels Draft Declaration of 1874 as of authority as to the

• The LaT of War. J. M.L., B.C.L. London: A. D. Lineal sod Co.

International Law of Belligerency. It must, however, be recollected that Great Britain, though represented at the Brussels Conference, ultimately declined to enter into further negotiations for the conclusion of any international agree- ment on the subject, on the ground of the impossibility of reconciling the differences of opinion which had been ex- pressed at the Conference. The Draft Articles of Brussels, therefore, cannot be regarded as international law, except in so far as they formulate the general usage of modern war- fare. As a matter of fact, belligerent Powers are practically bound by nothing but the general principles of humanity and fair play, and even treaty engagements may readily be infringed by the effort of self-preservation in a state of war.

Two good illustrations are, however, given in Mr. Risley's book of what may be considered unfair acts in time of war :—

" In 1783, the Sybille,' a French frigate of 38 guns, by flying signals of distress, enticed the British ship 'Hussar' of 20 guns, to approach, intending to rake and board her. The Hussar,' however, succeeded in capturing the ' Sybille,' and her captain publicly broke the French captain's sword for his perfidy."

A further instance is given as follows :—

" So late in civilised times as 1806 a Frenchman proposed to Fox, then Foreign Secretary, a scheme for the assassination of Napoleon. Fox arrested the would-be assassin, and immediately sent warning to M. Talleyrand, the French Foreign Minister. Fox's action, which was universally approved at the time, reflects the modern civilised view as to treacherous methods of warfare."

The same principle applies to the collection of information during war. The spy, who comes with secrecy, disguise, or false pretence, is liable to be shot ; but soldiers openly making observations are, if captured, treated as prisoners of war. A claim made by the Germans in 1870 to treat persons in balloons as spies was generally condemned, on the ground that they exhibited none of the secrecy or disguise which are characteristic of the spy. In fact, however, the only con- clusion which can be reached upon this branch of the question is that in addition to being practically non- effective, owing to lack of penal enforcement, the Law of Belligerency is at present ill-defined and inchoate.

Turning now to the Law of Neutrality, we find the con- ditions completely different. Owing to the fact that behind any violations of neutrality there lurks the shadow of war, the tendency has been to crystallise abstract principles into a very well-defined and effective code of international law. The duties of neutrality may be summed up in a very few words, —viz., that a neutral Government should not itself commit, nor suffer its subjects to commit, any act which, by the exercise of reasonable care on the part of such Government, may be prevented, and which would afford material assistance to either belligerent in the conduct of hostilities. The limits within which this principle can fairly be applied are well and clearly laid down in the Foreign Enlistment Act, 1870. A belligerent, on the other hand, is bound to observe, in regard to the territories, vessels, and subjects of a neutral State, all the amenities prescribed by the law of nations ; but two undoubted rights are possessed. First, to forbid access to an enemy's ports by means of effective blockade ; and second, to search for and seize contraband of war, whether it be neutral property or be shipped under a neutral flag.

The most interesting and important part of the ques- tion is, however, discussed in chap. 9 of Mr. Risley's essay, entitled "England and the Declaration of Paris." The rules laid down by the Declaration of Paris have been quoted above. Mr. Risley urges that it is the present duty of her Majesty's Government to denounce that Declaration, upon the following grounds. The very life and existence of England depend, he says, upon the power to import food-supplies. She can- not possibly produce within the limits of the United Kingdom sufficient to feed more than a very small proportion of the population, and she can only import by sea the remaining supplies necessary for the existence of the nation. It is imperative that England should keep in her own hands her carrying trade in time of war, whereas the commerce of the enemy could, without disadvantage, be transferred to a neutral flag. These certainly are strong arguments, but the real pith of the question seems to be that which is alluded to in a footnote to p. 280,—viz., the doctrine of "occasional contraband."

During the Franco-Chinese War in 1885, France claimed the right to seize, as contraband of war, rice conveyed in neutral bottoms, and destined for the non-combatant Chinese popula- tion. The claim was resisted by Great Britain, on the ground that the proper rule of international law upon the subject was that food-supplies were contraband of war only when destined for the use of an army in the field, or for a beleaguered fortress. It is evident, indeed, that under the French doctrine all articles of necessity might be so treated, and the result would be to establish a "paper blockade," and to interdict commercial intercourse with neutrals without the display of sufficient force to render a blockade effective. The question gave rise at the time to much comment and discus- sion throughout Europe, and various opinions were expressed on the merits. As evidence, however, of the line which might possibly be adopted by foreign countries in any future war in which England should be engaged, it is interesting to recall that no less an authority than Prince Bismarck stated his opinion that the French contention was justified, on the ground that seizure of food-supplies for the non-combatant population might tend to reduce the enemy to submission. It is evident that if this view were to be generally accepted, the Declaration of Paris would constitute a vital flaw in Great Britain's panoply of war.

Mr. Risley argues that Great Britain has the right to denounce the Declaration of Paris. The point, no doubt, is open to argument, but is somewhat difficult to resolve with due regard to international law. The Declaration contains no ratification clause, and was consequently never ratified by the British Crown. It has, however, been accepted by her Majesty's Government, and is generally considered to be binding. No period of duration is fixed in the Instrument itself, nor is any precise method of denunciation contained amongst its stipulations. It is obvious that if, under such circumstances, an international engagement can at will be exterminated by any one party to it, it is, in fact, no treaty at all, but only a platonic statement of principles. It is clear, however, that Great Britain is at liberty to seek an authoritative consensus of opinion amongst the States which are parties to the Declara- tion of Paris as to what is, and what is not, contraband of war. If the contracting States cannot be brought into agreement on this point, sufficient reason would exist for withdrawing from a contract which had no longer any definite meaning. This would be a more straightforward policy than the alternative of repudiation which is advocated by Mr. Risley. If, however, an international accord could be secured for the principle that food-supplies for the non-combatant population could not be treated as contraband of war, Great Britain would do well to bold fast to the Declaration of Paris, which might provide for her an invaluable safeguard in the hour of need.