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The Outlawry of War and the Law of War

Published online by Cambridge University Press:  20 April 2017

Quincy Wright
Quincy Wright*
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Of the Board of Editors
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Extract

This title appears to be self-contradictory. How can there be a law of war if war is outlawed? This apparent contradiction disappears, howover, if the distinction between “ war in the legal sense” and “ war in the material sense” is kept in mind. War in the legal sense has been in large measure “outlawed” ; that is, the international law conventionally accepted by most states no longer recognizes that large-scale hostilities may constitute a “state of war” in which the belligerents are legally equal. Such hostilities may, however, occur constituting war in the material sense, and “laws of war” may regulate such activities. This has, in fact, long been the situation within the state. All states “outlaw” domestic insurrection, rebellion and civil strife, yet if these events occur, they apply the laws of war to the hostilities involved in their efforts at suppression. The first modern codification of the law of war was, in fact, issued by the United States to apply to civil strife. Lieber's Code, however, distinguished the applicability of the rules of land warfare in international war and in civil war:

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…. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules…. Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented a 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.

Type
Research Article
Information
American Journal of International Law , Volume 47 , Issue 3 , July 1953 , pp. 365 - 376
Copyright
Copyright © American Society of International Law 1953

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References

1 The Three Friends (1897), 166 U. S. 1; Nelson, J., dissenting in The Prise Cases (1862), 2 Black 690; Quincy Wright, “The Status of Germany and the Peace Proclamation,” this Journal, Vol. 46 (1952), p. 303.

2 United Nations Charter, Art. 2, pars. 4, 5, 6; Trial of Major War Criminals before the International Military Tribunal, Vol. I (Nuremberg, 1947), pp. 219 ff.

3 Instructions for the Government of the Armies of the United States in the Field, General Order 100, War Department, Adjutant General’s Office (Washington, April 24, 1863) (Lieber’s Code).

4 Ibid., pars. 152, 153, 154. Recognition of the belligerency of the South by the United States protected individuals “levying war” against the United States from prosecution for treason only in respect to acts in the area of rebellion, during the period of rebellion, and within the scope of belligerent rights. U. S. v. Greathousus (1863), 4 Sawyer 457; Francis Wharton, A Treatise on Criminal Law (8th ed., Philadelphia, 1880), sec. 1799.

5 Wright, loc. cit., p. 304.

6 Charles Cheney Hyde, International Law (2nd ed., Boston, Little, Brown, 1945), Vol. I, pp. 356 ff.; George Grafton Wilson, International Law (3rd ed., St. Paul, West, 1939), pp. 307, 442 ff.; Quincy Wright, Legal Problems in the Far Eastern Conflict (New York, Institute of Pacific Relations, 1941), p. 91; H. Lauterpacht, “The Principle of Non-Recognition in International Law,” ibid., pp. 130 ff.; Recognition in International Law (Cambridge, 1947), pp. 410 ff.

7 Lauterpacht, Recognition, p. 427; Q. Wright, Mandates under the League of Nations (University of Chicago Press, 1930), pp. 372, 506; Legal Problems in the Par Eastern Conflict, pp. 7 ff.; A Study of War (University of Chicago Press, 1942), pp. 863 ff.

8 Robert Regout, La Doctrine de la guerre juste (Paris, 1935); John Eppstein, The Catholic Tradition of the Law of Nations (Washington, 1935); Joachim von Elbe, “The Evolution of the Conception of the Just War,” this Journal, Vol. 33 (1939), p. 685; Wright, A Study of War, pp. 885 ff. Lauterpacht considers the maxim, Ex injuria jus non oritur, one of the fundamental maxims of jurisprudence, Recognition, pp. 420 ff.

9 Grotius, De Jure Belli ac Pacis, Bk. II, Ch. 20, sec. 40, pars. 1, 4; Ch. 25, sec. 6; Bk. III, Ch. 17, sec. 3, par. 1; Vattel, Le droit des gens, Bk. II, Ch. 1, sec. 4; Bk. III, Ch. 7, sees. 106, 107; Wright, A Study of War, pp. 333 ff.

10 Wright, ibid., pp. 756 ff.; “International Law and the Balance of Power,” this Journal, Vol. 37 (1943), pp. 97 ff.; “Accomplishments and Expectations of World Organization,” Yale Law Journal, Vol. 45 (1946), pp. 876 ff.

11 Hans Kelsen, Law and Peace in International Relations (Cambridge, Harvard University Press, 1942), p. 52.

12 Ibid., p. 54.

13 Above, note 10.

14 Wright, A Study of War, pp. 891 ff.; above, note 2; Josef Kunz considers the bellum justum an ethical rather than a juridical theory and notes that the medieval concept, which defines just war by its tendency to promote justice, differs from the modern concept, which defines just war by its tendency to preserve international peace and security, thus including only “necessary self-defense” or “international enforcement action” against “aggression.” “Bellum justum and Bellum Legale,” this Journal, Vol. 45 (1951), pp. 528 ff. While this difference in the two conceptions is important and might lead to very different conclusions in determining the just side in particular hostilities (see Q. Wright, “The Test of Aggression in the Italo-Ethiopian War,” this Journal, Vol. 30 (1936), pp. 53 ff.), both conceptions developed from the appreciation that international law cannot exist if there is an unlimited right to make war.

15 The maxim, ex facto jus oritur may conflict with the maxim ex injuria jus non oritur. Lauterpacht, Recognition, p. 427; Wright (ed.), Legal Problems in the Far Eastern Conflict, pp. 7 ff., 143.

16 F. A. Hayek, The Sensory Order (University of Chicago Press, 1952).

17 Q. Wright, “Collective Security in the Light of the Korean Experience,” Proceedings, American Society of International Law, 1951, p. 165.

18 Wilson D. Wallis, “Dueling,” Encyclopedia of Social Science.

19 James Fitzjames Stephen, A General View of the Criminal Law of England (London, 1863), p. 120. See also Wharton, Criminal Law, sec. 1767.

20 Salmon O. Levinson, Outlawry of War, 67th Cong., 2nd Sess., Sen. Doc. 115 (Washington, 1922); John Dewey, “If War Were Outlawed,” New Republic, April 25, 1923; John Stoner, S. O. Levinson and the Pact of Paris (University of Chicago Press, 1943), pp. 33, 186 ff.; Wright, A Study of War, pp. 281, 719, 883, 1398.

21 Josef Kunz, “The Chaotic Status of the Laws of War and the Urgent Necessity for Their Eevision,” this Journal, Vol. 45 (1951), pp. 37 ff.; Eeport of Committee on Study of Legal Problems of the United Nations, “Should the Law of War Apply to United Nations Enforcement Action,” Proceedings, American Society of International Law, 1952, pp. 216 ff.

22 United Nations Charter, Art. 51. In the Nuremberg Trial certain defendants made the plea of necessary self-defense to justify the German invasion of Norway, but the Tribunal found that any possible intention of the Allies to invade Norway was unknown to Germany until after its decision to invade. 1 Trial of Major War Criminals 206 ff.

23 U.N. Charter, Arts. 42, 43, 106.

24 Certain defendants at the Nuremberg Trial pleaded that the invasion of Austria was not aggression because the Austrian Government had agreed to it, but the Tribunal found there was no such agreement. 1 Trial of Major War Criminals 193.

25 U.N. Charter, Art. 2, par. 4.

26 Lauterpacht, Eecognition, pp. 410 ff.; Wright, Legal Problems in the Par Eastern Conflict, pp. 92 ff.; “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), pp. 403 ff.; “Some Thoughts about Recognition,” ibid., Vol. 44 (1950), p. 557.

27 Jus ex injuria non oritur. Lauterpacht, Recognition, p. 421; Wright (ed.), Legal Problems in the Far Eastern Conflict, pp. 91, 140; Harvard Eesearch in International Law, Draft Convention on Eights and Duties of States in Case of Aggression, Arts. 2, 3, this Journal, Supp., Vol. 33 (1939), pp. 828, 886.

28 The United States Eules of Land Warfare (Basic Field Manual, FM 27–10, Washington, 1940) assert: “The object of war is to bring about the complete submission of the enemy as soon as possible by means of regulated violence. Military necessity justifies a resort to all the measures which are indispensable for securing this object and which are not forbidden by the modern laws and customs of war.” (Arts. 22, 23.) Since this object is only permissible in lawful war, an aggressor has no right to pursue it, and consequently cannot justify measures by their necessity to achieve that unlawful object. See below, note 41.

29 Harvard Research Draft on Aggression, Art. 6, loc. cit., pp. 828, 898.

30 U.N. Charter, Art. 2, par. 5.

31 Ibid., Art. 2, par. 6.

32 Ibid., Arts. 41, 42.

33 Ibid., Art. 2, par. 6, has been invoked in the United Nations in connection with charges of activities endangering international peace by Spain, Albania, and Bulgaria, not Members of the United Nations. Leiand Goodrich and Edvard Hambro, Charter of the United Nations, Commentary and Documents (Boston, World Peace Foundation, 1949), pp. 109–110. See also Report of Committee on Study of Legal Problems of the United Nations (above, note 21), p. 220.

34 Harvard Research Draft Convention on Responsibility of States, Arts. 1, 2, this Journal, Supp., Vol. 23 (1929), pp. 133, 140, 142.

35 Art. 3.

36 Wright, A Study of War, pp. 341 ff., 891 ff.; “War Claims, What of the Future,” Law and Contemporary Problems (Summer, 1951), p. 549; below, note 41.

37 Goodrich and Hambro, op. cit., p. 118.

38 Harvard Eesearch Draft on Aggression, Art. 14; Budapest, “Articles of Interpretation,” Art. 7, this Journal, Supp., Vol. 33 (1939), pp. 830, 905. The United Nations has contended in connection with Korean armistice negotiations that the repatriation of prisoners of war required by the Prisoners of War Convention of 1949 is a right of the prisoner, not of his state, and therefore applies only to those prisoners who desire repatriation.

39 The principle of superior orders was recognized as a mitigation by the Nuremberg Charter (Art. 8) and the principle of reprisals was accepted as justification for unlimited submarine warfare in the cases of Donitz and Raeder. 1 Trial of Major War Criminals 312, 317.

40 Nuremberg Charter, Arts. 7, 8; 1 Trial of Major War Criminals 223–234; Q. Wright, “The Law of the Nuremberg Trial,” this Journal, Vol. 41 (1947), p. 70; “Legal Positivism and the Nuremberg Judgment,” ibid., Vol. 42 (1948), pp. 409 ff.

41 Grotius asserts that the permission to harm the enemy given by the law of war applies equally to the just and unjust sides in a war because of the difficulty of determining which is which (Bk. Ill, Ch. 4, sees. 3, 4), but he believes the unjust side should make good the expenses and losses incurred “because through their guilt they caused the loss” (Ibid., Ch. 1, sec. 3; Ch. 10). Vattel similarly holds the sovereign who wages an unjust war responsible for all the losses (Bk. III, Ch. 11, sec. 183), but he considers that only the just side is permitted to exercise belligerent rights (Ibid., Ch. 8, sec. 136). Lauterpacht agrees with Grotius that unjust war brings into operation the law of war for both belligerents, thus constituting an exception to the principle, ex injuria jus non oritur (Becognition, p. 423).

42 Above, note 4.