Questions of Public Law (1737)
Cornelius van Bynkershoek
The Definition of War and an Explanation of the Definition
WHEN Cicero said that there are ‘two kinds of contests, one by means of discussion, the other by means of referee’, he had reference in the latter case to ‘war’. However, he did not in this way intend to define war, as Grotius thought, for such a definition would be incomplete. Equally imperfect is the definition of Alberico Gentili, who says that war is ‘a just contest carried on by the state’s armed forces’. Although the former of these two definitions is approved by Grotius, both will appear to be incomplete from the one which I add, a definition which, if I mistake not, embraces all the conditions of war: ‘War is a contest of independent persons carried on by force or fraud for the sake of asserting their rights.’ Let us now examine this in detail.
Our definition specifies ‘independent persons’. This applies of course to nations, but also to individuals not living in an organized state; for both may be independent. Furthermore though the war be between individuals it cannot be called a private war, since the term ‘private’ has no meaning except with reference to the term ‘public’, and this does not apply where there is no state. This war of individuals can no longer exist when the individuals form a state. So, for instance, if I extort from my debtor the ten pieces he owes me I incur the penalty of the ‘Julian law against private force’, since the extortion of debts through illegal means constitutes ‘force’ as defined by law quite as much as the infliction of wounds.
The definition also specifies ‘for the sake of asserting their rights’. In other words, the only correct ground for war is the defence or recovery of one’s own. However, I do not hold this to be the sole object of war. It is the accepted view that a nation which injures another is, together with its realm, forfeited to the injured nation; and if the injured nation so desires it may make the confiscation the object of the war. Certainly the war does not and ought not to end” upon the reparation of the injury suffered. And since the whole state, including persons as well as things, belongs to the sovereign, we seize in war the person of the hostile sovereign together with the whole commonwealth, just as in the case of a debt we seize our debtor and all his property. To be sure, we do not exact from a debtor more than he owes us; but in war all social obligations are in a measure severed. We attempt therefore to subjugate the enemy and all that he has by seizing all the power that the sovereign has over the state, that is to say, by exercising complete dominion over all persons and all things contained in that state. Indeed war is by its very nature so general that it cannot be waged within set limits. By defining war as a ‘contest’ I did not mean to express merely the act of fighting, but also the state of things obtaining during war, for the definition of the thing implies the inherent conditions. Thus, in defining slavery we have in mind not only the act by which free men are subjected to the control of others but also the state and condition of servitude. Grotius has also made this distinction in the definition of war which he adopted from Cicero.
In defining war as a contest ‘by force’, I did not say ‘lawful force’; for in my opinion every force is lawful in war. So true is this that we may destroy an enemy though he be unarmed, and for this purpose we may employ poison, an assassin, or incendiary bombs, though he is not provided with such things: in short everything is legitimate against an enemy. I know that Grotius is opposed to the use of poison, and lays down various distinctions regarding the employment of assassins. I know that Zouche, who seldom reaches a decision, is in doubt upon this question also. But if we follow reason, who is the teacher of the law of nations, we must grant that everything is lawful against enemies as such. We make war because we think that our enemy, by the injury done us, has merited the destruction of himself and his people. As this is the object of our welfare, does it matter what means we employ to accomplish it? We do not call a judge unjust for ordering a convicted criminal to be put to death by the executioner’s sword, though the victim be bound and unarmed; for if we should unbind and arm him we should no longer have the punishment of a crime, but a trial of courage and good fortune. Indeed, if you hold that you may employ only such means of compulsion as your enemy uses, you must also hold that his cause is as good as yours despite the fact that you have decided to vanquish him because of the injuries he has done you. With respect to you, your enemy bears the relation of a condemned criminal, as you do with respect to him, while in the eyes of a third person who is a friend of both, the cause of both is equally good and you are both equally in the right.
In my definition I was not even willing to omit ‘fraud’, since it is immaterial whether we employ strategy or courage against the enemy. Opinions differ, to be sure, and Grotius offers a great number of authorities and precedents on both sides. I would permit every kind of deceit with the sole exception of perfidy, and I make this exception not because anything is illegitimate against an enemy, but because when an engagement has been made the enemy ceases to be an enemy as far as regards the engagement. And indeed, since the reason that justifies war justifies every method of destroying the enemy, I find but one way of explaining why so many authorities and precedents oppose the employment of deceit. This opposition is clearly due to the fact that writers, as well as military leaders, improperly confuse justice, which is the subject of our present inquiry, with generosity, a sentiment that often appears in warfare. Justice is indispensable in war, while generosity is wholly voluntary. The former permits the destruction of the enemy by whatsoever means, the latter grants to the enemy whatever we should like to claim for ourselves in our own misfortune, and it desires that wars be waged according to the rules of the duel which was formerly admissible in some states. Considerations of justice permit us to have larger forces than the enemy, and to use firearms and other devices that differ from theirs, while generosity forbids this. Justice permits every manner of deceit except perfidy, as I have said; generosity does not permit it even, apparently, when the enemy employs it; for cunning is a work of fear. The words of St. Augustine concern justice, indeed, justice is the subject under discussion: ‘When a righteous war is undertaken it is immaterial to the claims of justice whether we contend with open force or with strategy.’ But I attribute to generosity the deed of the Roman consuls when they wrote to King Pyrrhus: ‘It is not our intention to contend with you by means of bribery, head money or fraud.’ Many nations have often preferred generosity to justice, or vice versa; even the Romans have varied in their preference. Accordingly, if you explain the authorities and precedents in the manner I have just indicated, we need not disagree concerning the means to be used in warfare. We need only remember that justice may always be insisted upon, while generosity may not.’