International Law Part 42

150

Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portion of the state are contiguous to those containing the seat of government.

151

The term "rebellion" is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their own.

152

When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no right to make the adoption of the rules of war by the a.s.sailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.

153

Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power.

Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.

154

Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

155

All enemies in regular war are divided into two general cla.s.ses--that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government.

The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be cla.s.sified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto.

156

Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hards.h.i.+ps of the war as much as the common misfortune of all war admits.

The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.

Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has the right to decide.

157

Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason.

APPENDIX II

MANUAL OF THE LAWS OF WAR ON LAND

PREPARED BY THE INSt.i.tUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED AT ITS MEETING AT OXFORD ON SEPTEMBER 9, 1880[496]

PART I. GENERAL PRINCIPLES

1. The state of war admits of the performance of acts of violence on the part only of the armed forces of the belligerent states.

Persons not forming part of a belligerent armed force must abstain from the performance of such acts.

A distinction being implied in the above rule between the individuals of whom the armed force of a state is composed and other subjects of a State, it becomes necessary to define an "armed force."

2. The armed force of a state comprehends--

-- 1. The army properly so called, including militia.

-- 2. National Guards Landsturm, and all corps which satisfy the following requirements:

(_a_) That of being under the direction of a responsible leader.

(_b_) That of wearing a uniform or a distinctive mark, which latter must be fixed, and capable of being recognized at a distance.

(_c_) That of bearing arms openly.

-- 3. Crews of vessels of war, and other members of the naval forces of the country.

-- 4. Inhabitants of a territory not militarily occupied by the enemy, who, on the approach of his army, take up arms spontaneously and openly for the purpose of combating it. Such persons form part of the armed force of the State, even though, owing to want of time, they have not organized themselves militarily.

3. Every belligerent armed force is bound to conform to the laws of war.

The sole object during war to which states can legitimately direct their hostilities being the enfeeblement of the military strength of the enemy. (Declaration of St. Petersburg of the 4/16th November, 1868.)

4. The laws of war do not allow belligerents an unlimited freedom of adopting whatever means they may choose for injuring their enemy.

Especially they must abstain from all useless severity, and from disloyal, unjust, or tyrannical acts.

5. Military conventions made between belligerents during war--such as armistices and capitulations--must be scrupulously observed and respected.

6. No invaded territory is considered to be conquered until war is ended. Until then the occupying state only exercises a _de facto_ control of an essentially provisional nature.

PART II. APPLICATION OF THE GENERAL PRINCIPLES

I. +Of Hostilities+