The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
General rules to know what is allowable in war.
I. IT is not enough, that a war be undertaken with justice, or for a lawful reason, and that we observe the other conditions hitherto mentioned; but we ought also, in the prosecution of it, to be directed by the principles of justice, and humanity, and not to carry the liberties of hostility beyond those bounds.
II. Grotius, in treating this subject, establishes three general rules, as so many principles, which serve to explain the extent of the rights of war.
III. The first is, that every thing, which has a connexion morally necessary with the end of the war, is permitted, and no more. For it would be to no purpose to have a right to do a thing, if we could not make use of the necessary means to bring it about. But, at the same time, it would not be just, that, under a pretence of defending our right, we should think every thing lawful, and proceed without any manner of necessity, to the last extremity.
IV. The second rule. The right we have against an enemy, and which we pursue by arms, ought not to be considered only with respect to the cause, which gave rise to the war; but also with respect to the fresh causes, which happen afterwards, during the prosecution of hostilities; just as in courts of law, one of the parties often acquires some new right before the end of the suit. This is the foundation of the right we have to act against those, who join our enemy, during the course of the war, whether they be his dependants or not.
V. The third rule, in fine, is, that there are a great many things, which, though otherwise unlawful, are yet permitted in war, because they are inevitable consequences of it, and happen contrary to our intention, otherwise there would never be any way of making war without injustice; and the most innocent actions would be looked upon as criminal, since there are but few, from which some evil may not accidentally arise, contrary to the intention of the agent.
VI. Thus for example, in recovering our own, if just so much, as is precisely our due, cannot be had, we have a right to take more, but under the obligation of returning the value of the overplus. Hence we may attack a ship full of pirates, though there may be women, or children or other innocent persons on board we must needs be exposed to the danger of being involved in the ruin of those, whom we may justly destroy.
VII. This is the extent of the right we have against an enemy, in consequence of a state of war. By a state of war that of society is abolished; so that whoever declares himself my enemy gives me liberty to use violence against him in infinitum, or so far, as I please; and that not only till I have repulsed the danger, that threatened me, or till I have recovered, or forced from him, what he either unjustly deprived me of, or refused to pay me, but till I have further obliged him to give me good security for the future. It is not therefore always unjust to return a greater evil for a less.
VIII. But it is also to be observed, that though these maxims are true according to the strict right of war, yet the law of humanity fixes bounds to this right. That law directs us to consider, not only whether such or such acts of hostility may, without injury, be committed against an enemy; but also whether they are worthy of a humane or generous conqueror. Thus, so far as our own defence and future security will permit, we must moderate the evils, we inflict upon an enemy, by the principles of humanity.
IX. As to the manner of acting lawfully against an enemy, it is evident that violence and terror are the proper characteristics of war, and the method most commonly used. Yet it is also lawful to employ stratagem and artifice, provided it be without treachery, or breach of promise. Thus we may deceive an enemy by false news and fictitious relations, but we ought never to violate our compacts or engagements with him, as we shall show more particularly hereafter.
X. By this we may judge of the right of stratagems; neither is it to be doubted but we may innocently use fraud and artifice, wherever it is lawful to have recourse to violence and force. The former means have even the advantage over the latter in this, that they are attended with less mischief, and preserve the lives of a great many innocent people.
XI. It is true some nations have rejected the use of stratagem and deceit in war; this however was not because they thought them unjust, but from a certain magnanimity, and often from a confidence in their own strength. The Romans, till very near the end of the second Punic war, thought it a point of honor to use no stratagem against their enemies.
XII. These are the principles by which we may judge to what degree the laws of hostility may be carried. To which let us add, that most nations have fixed no bounds to the rights which the law of nature gives us to act against an enemy; and the truth is, it is very difficult to determine precisely how far it is proper to extend acts of hostility even in the most legitimate wars, in defence of our persons, or for the reparation of damages, or for obtaining caution for the future; especially as those, who engage in war, give each other, by a kind of tacit agreement, an entire liberty to moderate or augment the violence of arms, and to exercise all acts of hostility, as each shall think proper.
XIII. And here it is to be observed, that though generals usually punish their soldiers, who have carried acts of hostility beyond the orders prescribed; yet this is not because they suppose the enemy is injured, but because it is necessary the general’s orders should be obeyed, and that military discipline should be strictly observed.
XIV. It is also in consequence of these principles, that those who, in a just and solemn war, have pushed slaughter and plunder beyond what the law of nature permits, are not generally looked upon as murderers or robbers, nor punished as such. The custom of nations is to leave this point to the conscience of the persons engaged in a war, rather than involve themselves in troublesome broils, by taking upon them to condemn either party.
XV. It may be even said, that this custom of nations is founded on the principles of the law of nature. Let us suppose, that, in the independence of the state of nature, thirty heads of families, inhabitants of the same country, should have entered into a league to attack or repulse a body, composed of other heads of families. I say, that neither during that war, nor after it is finished, those of the same country, or elsewhere, who had not joined the league on the either side, ought, or could punish, as murderers or robbers, any of the two parties, who should happen to fall into their hands.
XVI. They could not do it during the war, for that would be espousing the quarrel of one of the parties; and since they continued neuter in the beginning, they had clearly renounced the right of interfering with what should pass in the war. Much less could they intermeddle after the war is over; because, as it could not be ended without some accommodation or treaty of peace, the parties concerned were reciprocally discharged from all the evils, they had done to each other.
XVII. The good of society also requires, that we should follow these maxims. For if those, who continued neuter, had still been authorised to take cognizance of the acts of hostility, exercised in a foreign war, and consequently to punish such, as they believed to have committed any injustice, and to take up arms on that account; instead of one war, several might have arisen, and proved a source of broils and troubles. The more wars became frequent, the more necessary it was, for the tranquillity of mankind, not to espouse rashly other people’s quarrels. The establishment of civil societies only rendered the practice of those rules more necessary; because acts of hostility then became, if not more frequent, at least more extensive, and attended with a greater number of evils.
XVIII. Lastly it is to be observed, that all acts of hostility, which can be lawfully committed against an enemy, may be exercised either in his territories, or in ours, in places subject to no jurisdiction, or at sea.
XIX. This does not hold good in a neutral country; that is to say, whose sovereign has taken no share in the war. In such countries, we cannot lawfully exercise any acts of hostility; neither on the persons of the enemy, nor on their effects; not in virtue of any right of the enemy themselves, but from a just respect to the sovereign, who, having taken neither side, lays us under a necessity of respecting his jurisdiction, and of forbearing to commit any acts of violence in his territories. To this we may add, that the sovereign, by continuing neuter, has tacitly engaged not to suffer either party to commit any hostilities within his dominions.