2. Postliminy with regard to personal status and rights 3. Postliminy in regard to things 4. Right of postliminy belongs exclusively to a state of war INTERNATIONAL LAW CHAPTER XIX THE ENEMY AND HIS ALLIES 1. Character of public enemies-2. Limits to hostility between public enemies-3. With regard to persons and property-4. Allies not necessarily associates in a war-5. How distinguished-6. Hostile alliances-7. The casus fœderis of an alliance.-8. Offensive alliances -9. Defensive alliances-10. Remarks on character and effect of such alliances-11. General presumption in favour of cause of ally12. Treaties of succour, if the war be unjust—13. If unable to furnish the promised aid-14. Subsidy and succour not necessarily causes of war-15. Capitulations for mercenaries-16. Limited assistance to an enemy-17. Effect of treaties on guarantee-18. Conflicting alliances-19. A warlike association-20. Vattel's opinion-21. Declaration of war unnecessary against enemy's associates-22. Policy of treating enemy's allies as friends. § I. IT has already been stated that a war, duly commenced Difference and ratified, is not confined to the Governments or authorities between public and of the belligerent State, but that it makes all the subjects of private the one State the legal enemies of each and every subject of enemies the other. This hostile character results from political ties, and not from personal feelings or personal antipathies; their status is that of legal hostility, and not of personal enmity, So long as these political ties continue, or so long as the individual continues to be the citizen or subject of one of the belligerent States, just so long does he continue in legal hostility towards all the citizens and subjects of the opposing belligerent; such are public enemies, whatever may be their Occupation, and in whatever country they may be found. The Romans had a particular term (Hostis) to denote a public enemy, and to distinguish him from a private enemy, whom they called Inimicus. The distinction is a marked one, and should never be lost sight of. Private enemies have VOL. II. ༦. B Status of legal hostility Difference of treatment hatred and rancour in their hearts, and seek to do each other personal injury. Not so with public enemies. They do not, as individuals, seek to do each other personal harm. And even where brought into actual conflict, as armed belligerents, there is usually no personal enmity between the individuals of the contending forces. So far from this, when peace is declared, the military forces of the opposing belligerents are usually personal friends, and vie with each other in politeness and mutual kindness. § 2. Moreover, there is a limit to public enmity. The law of nature gives to a belligerent nation the right to use such force as may be necessary, in order to obtain the object for which the war was undertaken. Beyond this, the use of force is unlawful; this necessity forms the limit of hostility between subjects of the belligerent States. They, therefore, have no right to take the lives of non-combatants, or of such public enemies as they can subdue by other means, nor to inflict any injuries upon them or their property, unless the same should be necessary for the object of the war.' § 3. We have already stated the general effect of a declaration of war upon the persons and property of the subjects of an enemy found within our own territory, and, that while, by the strict rights of war, we can retain them all as prisoners or prizes, this right, by modern usage, is only applied to the military and to ships of war, mere residents, merchants, and merchant vessels being allowed a certain time to withdraw themselves from our jurisdiction without molestation. Subjects of a neutral State, resident or domiciled in the enemy's country, are, in many respects, to be regarded as enemies; but, as they are not liable to military duty, in the proper sense of that term, they cannot be treated either as actual combatants or as enemy's subjects, who are liable to be called upon by their own State to oppose us by force. Moreover, our own subjects, resident or domiciled in the enemy's country, are, in certain matters relating to trade and the rights of maritime capture, regarded as legal enemies, but not with 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 138; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 2; Rutherforth, Institutes, b. ii. ch. ix. § 15; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vi. ; Cornu v. Blackburne, Doug. Rep., p. 644; Massé, Droit Commercial, liv. ii. tit. i. ch. ii.; De Félice, Droit de la Nat., &c., tome ii. lec. xxv.; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xii. respect to their personal status and personal duties. Again, as belligerents are not permitted to use force against each other within neutral territory, we cannot exercise there the same rights against the person and property of an enemy as we can within our own or enemy's territory, or upon the high seas. The treatment of an enemy, therefore, depends in a measure upon the place in which he may be found.1 neces in a war §4. It has already been remarked, that we have the same Allies not rights of war against the co-allies or associates of an enemy sarily as against the principal belligerent. It must, however, be associates observed that general allies are not necessarily associates in a war. The allies of our enemy, therefore, may, or may not, themselves become our enemies, according to the character of the alliance which they have formed with that enemy, the time of making it, and the circumstances under which it was entered into. We must, therefore, distinguish between the general allies of an enemy and his associates in a war.2 of the § 5. But the question here arises, how are we to know If an ally whether an enemy's ally is himself to be regarded as an enemy enemy, and to be treated in the same manner as the principal engage in hostilities belligerent? In the first place, if he has made common cause with our enemy in beginning or carrying on hostilities against us, we have toward him the same belligerent rights as toward the principal in the war, for both are equally our enemies. There is no need of proving him an enemy, for his own conduct has made him such. Again, even where there are no obligations of treaty, if he freely and voluntarily declares in favour of his ally and against us, he, of his own accord, becomes our enemy, and is to be treated in every respect as the principal. But the simple fact of there being an alliance between our enemy and other nations would not justify us in treating such nations as belligerents.3 made § 6. Alliances, for warlike purposes, are divided into two warlike classes, offensive and defensive. In the former, the State unites alliance with its ally for the purpose of jointly waging war against a during a third party; but in the latter, the State engages to defend its 1 Burlamaqui, Droit de la Nat., &c., tome v. pt. iv. ch. vi.; Bynkershoek, Quæst. jur. Pub., lib. i. ch. viii.; Ragnenal, Droit de la Nat., &c., liv. iii. ch. v. 4; Bello, Derecho Internacional, pt. ii. cap. ii. § 2. 2 Heffter, Droit International, §§ 115-7; Wheaton, Elem. Int. Law, pt. iii. ch. ii. §§ 13, 14. 'Vattel, Droit des Gens, liv. iii. ch. vi. §§ 96-8. war Status of legal hostility Difference of treatment hatred and rancour in their hearts, and seek to do each other personal injury. Not so with public enemies. They do not, as individuals, seek to do each other personal harm. And even where brought into actual conflict, as armed belligerents, there is usually no personal enmity between the individuals of the contending forces. So far from this, when peace is declared, the military forces of the opposing belligerents are usually personal friends, and vie with each other in politeness and mutual kindness. § 2. Moreover, there is a limit to public enmity. The law of nature gives to a belligerent nation the right to use such force as may be necessary, in order to obtain the object for which the war was undertaken. Beyond this, the use of force is unlawful; this necessity forms the limit of hostility between subjects of the belligerent States. They, therefore, have no right to take the lives of non-combatants, or of such public enemies as they can subdue by other means, nor to inflict any injuries upon them or their property, unless the same should be necessary for the object of the war.' § 3. We have already stated the general effect of a declaration of war upon the persons and property of the subjects of an enemy found within our own territory, and, that while, by the strict rights of war, we can retain them all as prisoners or prizes, this right, by modern usage, is only applied to the military and to ships of war, mere residents, merchants, and merchant vessels being allowed a certain time to withdraw themselves from our jurisdiction without molestation. Subjects of a neutral State, resident or domiciled in the enemy's country, are, in many respects, to be regarded as enemies; but, as they are not liable to military duty, in the proper sense of that term, they cannot be treated either as actual combatants or as enemy's subjects, who are liable to be called upon by their own State to oppose us by force. Moreover, our own subjects, resident or domiciled in the enemy's country, are, in certain matters relating to trade and the rights of maritime capture, regarded as legal enemies, but not with 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 138; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 2; Rutherforth, Institutes, b. ii. ch. ix. § 15; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vi. ; Cornu z. Blackburne, Doug. Rep., p. 644; Massé, Droit Commercial, liv. ii. tit. i. ch. ii.; De Félice, Droit de la Nat., &c., tome ii. lec. xxv.; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xii. |