The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of the Right of War, with Regard to Things Belonging to the Enemy
§ 160. Principles of the right over things belonging to the enemy.1
A state taking up arms in a just cause has a double right against her enemy, — 1. a right to obtain possession of her property withheld by the enemy; to which must be added the expenses incurred in the pursuit of that object, the charges of the war, and the reparation of damages: for, were she obliged to bear those expenses and losses, she would not fully recover her property, or obtain her due. 2. She has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence (§ 138) — a right to deprive him of the means of resistance. Hence, as from their source, originate all the rights which war gives us over things belonging to the enemy. I speak of ordinary cases, and of what particularly relates to the enemy’s property. On certain occasions, the right of punishing him produces new rights over the things which belong to him, as it also does over his person. These we shall presently consider.
§ 161. The right of seizing on them.
We have a right to deprive our enemy of his possessions, of every thing which may augment his strength and enable him to make war. This every one endeavors to accomplish in the manner most suitable to him. Whenever we have an opportunity, we seize on the enemy’s property, and convert it to our own use: and thus, besides diminishing the enemy’s power, we augment our own, and obtain at least a partial indemnification or equivalent, either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution: — in a word, we do ourselves justice.
§ 162. What is taken front the enemy by way of penalty.
The right to security often authorizes us to punish injustice or violence. It is an additional plea for depriving an enemy of some part of his possessions. This manner of chastising a nation is more humane than making the penalty to fall on the persons of the citizens. With that view, things of value may be taken from her, such as rights, cities, provinces. But all wars do not afford just grounds for inflicting punishment. A nation that has with upright intentions supported a bad cause, and observed moderation in the prosecution of it, is entitled rather to compassion than resentment from a generous conqueror: and in a doubtful cause we are to suppose that the enemy sincerely thinks himself in the right. (Prelim. § 21); Book III. § 40.) The only circumstance, therefore, which gives an enemy the right to punish his adversaries, is their evident injustice, unsupported even by any plausible pretext, or some heinous outrage in their proceedings: and, on every occasion, he ought to confine the punishment to what his own security and the safety of nations require. As far as consistent with prudence, it is glorious to obey the voice of clemency: that amiable virtue seldom fails of being more useful to the party who exerts it, than inflexible rigor. The clemency of Henry the Great was of singular advantage in co-operating with his valor, when that good prince found himself compelled to conquer his own kingdom. Those who would have continued his enemies if only subdued by arms, were won by his goodness, and became affectionate subjects.
§ 163. What is withheld from him, in order to oblige him to give just satisfaction.
In fine, we seize on the enemy’s property, his towns, his provinces, in order to bring him to reasonable conditions, and compel him to accept of an equitable and solid peace. Thus much more is taken from him than he owes, more than is claimed of him: but this is done with a design of restoring the surplus by a treaty of peace. The king of France2 was, in the last war, known to declare that he aimed at nothing for himself: and by the treaty of Aix-la-Chapelle, he actually restored all his conquests.
§ 164. Booty.
As the towns and lands taken from the enemy are called conquests, all movable property taken from him comes under the denomination of booty. This booty naturally belongs to the sovereign making war, no less than the conquests; for he alone has such claims against the hostile nation as warrant him to seize on her property and convert it to his own use.3 His soldiers, and even his auxiliaries, are only instruments which he employs in asserting his right. He maintains and pays them, Whatever they do is in his name, and for him. Thus, there is no difficulty, even with regard to the auxiliaries. If they are not associates in the war, it is not carried on for their benefit; and they have no more right to the booty than to the conquests. But the sovereign may grant the troops what share of the booty he pleases. At present most nations allow them whatever they can make on certain occasions when the general allows of plundering, — such as the spoil of enemies fallen in the field of battle, the pillage of a camp which has been forced, and sometimes that of a town taken by assault. In several services, the soldier has also the property of what he can take from the enemy’s troops when he is out on a party, or in a detachment, excepting artillery, military stores, magazines, and convoys of provisions and forage, which are applied to the wants and use of the army. This custom being once admitted in an army, it would be injustice to exclude the auxiliaries from the right allowed to the national troops. Among the Romans, the soldier was obliged to bring in to the public stock all the booty he had taken. This the general caused to be sold; and, after distributing a part of the produce among the soldiers, according to rank, he consigned the residue to the public treasury.
§ 165. Contributions.
Instead of the custom of pillaging the open country and defenseless places, another mode has been substituted, which is at once more humane, and more advantageous to the belligerent sovereign — I mean that of contributions. Whoever carries on a just war has a right to make the enemy’s country contribute to the support of his army, and towards defraying all the charges of the war. Thus, he obtains a part of what is due to him; and the enemy’s subjects, by consenting to pay the sum demanded, have their property secured from pillage, and the country is preserved. But a general who wishes to enjoy an unsullied reputation, must be moderate in his demand of contributions, and proportion them to the abilities of those on whom they are imposed. An excess in this point does not escape the reproach of cruelty and inhumanity: although there is not so great an appearance of ferocity in it as in ravage and destruction, it displays a greater degree of avarice or greediness. Instances of humanity and moderation cannot be too often quoted. A very commendable one occurred during those long wars which France carried on in the reign of Louis XIV. The sovereigns, seeing it was their mutual interest as well as duty to prevent ravage, made it a practice, on the commencement of hostilities, to enter into treaties for regulating the contributions on a supportable footing: they determined the extent of hostile territory in which each might demand contributions, the amount of them, and the manner in which the parties sent to levy them were to behave. In these treaties it was expressed, that no body of men under a certain number should advance into the enemy’s country beyond the limits agreed on, under the penalty of being treated as freebooters. By such steps they prevented a multitude of disorders and enormities, which entail ruin on the people, and generally without the least advantage to the belligerent sovereigns. Whence comes it that so noble an example is not universally imitated?
§ 166. Waste and destruction.
If it is lawful to take away the property of an unjust enemy in order to weaken or punish him, (§§ 161, 162), the same motives justify us in destroying what we cannot conveniently carry away. Thus, we waste a country, and destroy the provisions and forage, that the enemy may not find a subsistence there: we sink his ships when we cannot take them or bring them off. All this tends to promote the main object of the war: but such measures are only to be pursued with moderation, and according to the exigency of the case. Those who tear up the vines and cut down the fruit-trees are looked upon as savage barbarians, unless when they do it with a view to punish the enemy for some gross violation of the law of nations. They desolate a country for many years to come, and beyond what their own safety requires. Such conduct is not dictated by prudence, but by hatred and fury.
§ 167. Ravaging and burning.
On certain occasions, however, matters are carried still farther: a country is totally ravaged, towns and villages are sacked, and delivered up a prey to fire and sword. Dreadful extremities, even when we are forced into them! Savage and monstrous excesses, when committed without necessity! There are two reasons, however, which may authorize them, — 1. the necessity of chastising an unjust and barbarous nation, of checking her brutality, and preserving ourselves from her depredations. Who can doubt that the king of Spain and the powers of Italy have a very good right utterly to destroy those maritime towns of Africa, those nests of pirates, that are continually molesting their commerce and ruining their subjects? But what nation will proceed to such extremities merely for the sake of punishing the hostile sovereign? It is but indirectly that he will feel the punishment: and how great the cruelty, to ruin an innocent people in order to reach him! The same prince whose firmness and just resentment was commended in the bombardment of Algiers, was, after that of Genoa, accused of pride and inhumanity. 2. We ravage a country and render it uninhabitable, in order to make it serve us as a barrier, and to cover our frontier against an enemy whose incursions we are unable to check by any other means. A cruel expedient, it is true: but why should we not be allowed to adopt it at the expense of the enemy, since, with the same view, we readily submit to lay waste our own provinces?
The czar Peter the Great, in his flight before the formidable Charles the Twelfth, ravaged an extent of above fourscore leagues of his own empire, in order to check the impetuosity of a torrent which he was unable to withstand. Thus, the Swedes were worn down with want and fatigue; and the Russian monarch reaped at Pultowa the fruits of his circumspection and sacrifices. But violent remedies are to be sparingly applied: there must be reasons of suitable importance to justify the use of them. A prince who should, without necessity, imitate the czar’s conduct, would be guilty of a crime against his people: and he who does the like in an enemy’s country, when impelled to it by no necessity, or induced by feeble reasons, becomes the scourge of mankind. In the last century, the French ravaged and burnt the Palatinate.4 All Europe resounded with invectives against such a mode of waging war. It was in vain that the court attempted to palliate their conduct, by alleging that this was done only with a view to cover their own frontier: — that was an end to which the ravaging of the Palatinate contributed but little: and the whole proceeding exhibited nothing to the eyes of mankind but the revenge and cruelty of a haughty and unfeeling minister.
§ 168. What things are to be spared.
For whatever cause a country is ravaged, we ought to spare those edifices which do honor to human society, and do not contribute to increase the enemy’s strength, — such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste; and in that light Belisarius represented the matter to Tittila, king of the Goths.5 We still detest those barbarians who destroyed so many wonders of art, when they overran the Roman empire. However just the resentment with which the great Gustavus was animated against Maximilian, duke of Bavaria, he rejected with indignation the advice of those who wished him to demolish the stately palace of Munich, and took particular care to preserve that admirable structure.
Nevertheless, if we find it necessary to destroy edifices of that nature in order to carry on the operations of war, or to advance the works in a siege, we have an undoubted right to take such a step. The sovereign of the country, or his general, makes no scruple to destroy them, when necessity or the maxims of war require it. The governor of a besieged town sets fire to the suburbs, that they may not afford a lodgment to the besiegers. Nobody presumes to blame a general who lays waste gardens, vineyards, or orchards, for the purpose of encamping on the ground, and throwing up an entrenchment. If any beautiful production of art be thereby destroyed, it is an accident, an unhappy consequence of the war; and the general will not be blamed, except in those cases when he might have pitched his camp elsewhere without the smallest inconvenience to himself.
§ 169. Bombarding towns.
In bombarding towns, it is difficult to spare the finest edifices. At present we generally content ourselves with battering the ramparts and defenses of a place. To destroy a town with bombs and red-hot balls, is an extremity to which we do not proceed without cogent reasons. But it is nevertheless warranted by the laws of war, when we are unable by any other mode to reduce an important post, on which the success of the war may depend, or which enables the enemy to annoy us in a dangerous manner. It is also sometimes practiced when we have no other means of forcing an enemy to make war with humanity, or punishing him for some instance of outrageous conduct. But it is only in cases of the last extremity, and with reluctance, that good princes exert a right of so rigorous a nature. In the year 1694, the English bombarded several maritime towns of France, on account of the great injury done to the British trade by their privateers. But the virtuous and noble-minded consort of William the Third did not receive the news of these exploits with real satisfaction. She expressed a sensible concern that war should render such acts of hostility necessary, — adding that she hoped such operations would be viewed in so odious a light, as to induce both parties to desist from them in future.6
§ 170. Demolition of fortresses.
Fortresses, ramparts, and every kind of fortification are solely appropriated to the purposes of war: and in a just war, nothing is more natural, nothing more justifiable, than to demolish those which we do not intend to retain in our own possession. We so far weaken the enemy, and do not involve an innocent multitude in the losses which we cause him. This was the grand advantage that France derived from her victories in a war in which she did not aim at making conquests.
§ 171. Safe guards.
Safe-guards are granted to lands and houses intended to be spared, whether from pure favor, or with the proviso of a contribution. These consist of soldiers, who protect them against parties, by producing the general’s orders. The persons of these soldiers must be considered by the enemy as sacred: he cannot commit any hostilities against them, since they have taken their station there as benefactors, and for the safety of his subjects. They are to be respected in the same manner as an escort appointed to a garrison, or to prisoners of war, on their return to their own country.
§ 172. General rule of moderation respecting the evil which may be done to an enemy.
What we have advanced is sufficient to give an idea of the moderation which we ought to observe, even in the most just war, in exerting our right to pillage and ravage the enemy’s country. Except the single case in which there is question of punishing an enemy, the whole is reducible to this general rule, — All damage done to the enemy unnecessarily, every act of hostility which does not tend to procure victory and bring the war to a conclusion, is a licentiousness condemned by the law of nature.
§ 173. Rule of the voluntary law of nations on the same subject.
But this licentiousness is unavoidably suffered to pass with impunity, and to a certain degree, tolerated, between nation and nation. How then shall we, in particular cases, determine with precision to what lengths it was necessary to carry hostilities, in order to bring the war to a happy conclusion? And even if the point could be exactly ascertained, nations acknowledge no common judge: each forms her own judgment of the conduct she is to pursue in fulfilling her duties. If you once open a door for continual accusations of outrageous excess in hostilities, you will only augment the number of complaints, and inflame the minds of the contending parties with increasing animosity; fresh injuries will be perpetually springing up; and the sword will never be sheathed till one of the parties be utterly destroyed. The whole, therefore, should, between nation and nation, be confined to general rules, independent of circumstances, and sure and easy in the application. Now the rules cannot answer this description, unless they teach us to view things in an absolute sense, — to consider them in themselves and in their own nature. As, therefore, with respect to hostilities against the enemy’s person, the voluntary law of nations only prohibits those measures which are in themselves unlawful and odious, such as poisoning, assassination, treachery, the massacre of an enemy who has surrendered and from whom we have nothing to fear; — so the same law, in the question now before us, condemns every act of hostility which, of its own nature, and independently of circumstances, contributes nothing to the success of our arms, and does not increase our strength or weaken that of the enemy: and, on the other hand, it permits or tolerates every act which in itself is naturally adapted to promote the object of the war, without considering whether such act of hostility was unnecessary, useless, or superfluous, in that particular instance, unless there be the clearest evidence to prove that an exception ought to have been made in the case in question: for where there is positive evidence, the freedom of judgment no longer exists. Hence, the pillaging of a country, or ravaging it with fire, is not, in a general view of the matter, a violation of the laws of war: but if an enemy of much superior strength treats in this manner a town or province which he might easily keep in his possession as a means of obtaining an equitable and advantageous peace, he is universally accused of making war like a furious barbarian. Thus the wanton destruction of public monuments, temples, tombs, statues, paintings, etc., is absolutely condemned, even by the voluntary law of nations, as never being conducive to the lawful object of war. The pillage and destruction of towns, the devastation of the open country, ravaging, setting fire to houses, are measures no less odious and detestable on every occasion when they are evidently put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, — be it here observed, that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offences against the law of nations: and even then, it is glorious to listen to the voice of humanity and clemency, when rigor is not absolutely necessary. Cicero condemns the conduct of his countrymen in destroying Corinth to avenge the unworthy treatment offered to the Roman ambassadors, because Rome was able to assert the dignity of her ministers without proceeding to such extreme rigor.
1. See, in general, Grotius, ch. 5; Home on Captures; Marten’s L. Nat. 287; and the modern decisions, 1 Chitty’s Commercial Law, 377-437; and Chitty’s Law of Nations, per tot. And as to the legal right of embargo and capture, as it affects commerce, and exceptions, as respects small fishing vessels, 1 Chitty’s C.L. 426. But, that exemption is matter of forbearance, rather than of right, and seems analogous to husbandmen and cultivators of land being usually spared, see Vattel § 147, ante 352; and see Young, Jacob, and Johorea, 1 Rob. Rep. 19. as to fishing-boats and fishermen, per Sir W. Scott.
Questions respecting captures and prices, or even imprisonment of the person incident to the seizure as prize, cannot in general become the subject of litigation, directly, in any of the municipal courts of this country, but must be investigated in a prize court, which, in this country, is holden under a distinct authority from that of the court of Admiralty, viz. under a special commission from the king, who would otherwise preside in person over prize questions: and from such commission there is usually an appeal to the king in council; see cases in note 3, below. — C.
2. The peace was become absolutely necessary to him; and he had, in return for his few conquests, Louisbourg, with all its dependencies, which were of more importance to him. [Note by the former translator.] 3. That they belong to the king., unless delegated to a subject, see further, post, § 202, page 391. But to the king for the benefit of the community, and not as his own private property. Id. Ibid. In case a territory of a foreign sovereign, or a part of it, be captured. the sovereign of the conquering state is entitled to all the property there of the conquered sovereign; Advocate General v. Amerchuynd, Knapp’s Rep. of Cases before the Privy Council, 329; and the same case establishes that there is no distinction, in this respect, between the public and private property of an absolute monarch; and that, therefore, money in the hands of the banker of a prince, whose territories have been conquered by the British, may be recovered on an information by the English attorney-general from the banker. Decided in Privy Council, reversing the judgment of the court below at Bombay. See Holt’s case, Ni. Pri. 113; Lindo v. Rodney, Douglas, 313; Cauxx v. Eden, Douglas, 594; Elphinstone v. Bedreechund, Knapp’s Rep. 316; Chitty’s Gen. Practice, 2. n. (b), 16 n. (e), Id. 818. But to this rule there is an exception, as regards any trust which may be enforced in a court of equity; Pearson v. Belcher, 4 Ves. 627; Chaloner v. Samson, 1 Bro. pl. 149; and see Hill v. Reardon, 2 Russell’s Rep. 608, qualifying 2 Sim. & Stu. Rep. 437-451; Chitty’s Gen. Practice, 818. When the property seized is under £100, the claim may be settled in the prize court, summarily, and without a formal suit; but not so, if it be even a trifle above that amount. The Mercurius, 5 Rob. 127.
In the case of Elphinstone v. Bedreechund, Knapp’s Rep. 316, where the members of the provisional government of a recently conquered country had seized the property of a native, who had been refused the benefit of the articles of capitulation of a fortress, of which he was the governor, but who had been permitted to reside under military surveillance in his own house in the city, in which the seizure was made, and which was at a distance from the scene of actual hostilities, it was held that such seizure must be regarded in the light of a hostile seizure, and that, therefore, a municipal court had no jurisdiction on the subject. And it was further considered, in the same case, that the circumstance that, at the time of the seizure, the city where it was made had been, for some months previously, in the undisturbed possession of the provisional government, and that courts of justice, under the authority of that government, were sitting in it for the administration of justice, did not alter the character of the transaction; and that, consequently, whatever might be the legality of the capture, or hostile seizure, still the party had mistaken his remedy in prosecuting it in the supreme court of Bombay. — C.
4. In 1674, and a second time, much more dreadfully, in 1689.
5. See his letter in Procopius. It is quoted by Grotius, lib. iii. cap. xxii. § ii. note xi.
6. Histoire de Guillaume III. liv. vi. tom. ii. p. 66.