Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Status of War as Applying to the Belligerents
WE might suppose that enmity and the conditions of war ought to be displayed between the hostile princes for whose interests alone, in most cases, war is carried on, rather than between their subjects, who certainly are not actuated by so hostile a spirit except when their own cause is at stake. However, since enemies must be met with hostile acts, no one would have expected that we would adopt the custom of complimenting and greeting our enemies. Indeed, the majesty and dignity of the Roman people displayed itself in the conduct of Caius Popilius, who although he was saluted by King Antiochus, then his enemy, refused to return the salutation while the war continued. So Plutarch tells the story. Livy and Polybius also relate how Popilius refused to take the proffered hand of Antiochus. Yet Roman consuls also, when it was to the interest of the commonwealth, sent greetings to Pyrrhus, then an enemy, according to a letter found in Aulus Gellius. And so addicted to flattery was the last century and the present one, that princes even in the midst of hostilities resort to adulation; so that now enemies invoice prosperity upon each other, call each other friends, and pretend to be sorry for their mutual losses. There are examples of this in the letters of the States-General addressed to the King of England on July 10, September 16, and November 26, 1666, and in the letters of the King addressed to the States-General on August 4, and October 4, of the same year. Although both nations were at that time bent upon mutual destruction, yet the States-General in the first of the above-cited letters said that there was nothing incompatible between the duties of war and an interchange of civilities. And the King of France, in 1666, who was then at war with the King of England, sent an envoy to him to express his grief over the burning of London. It is noble to practice kindness, mercy, piety, and other virtues of a generous soul in warfare, but it is certainly disgusting to trifle with words, for what else can you call it when you express grief for the burning of a city which you yourself would like to set on fire!
Since the conqueror may do what he likes with the conquered, no one doubts that he also has the power of life and death over him. There are so many records and instances of the exercise of this right among all nations of ancient time, that one thick volume would not contain a full account of them; and writers on public law have already exercised their industry upon this subject. But although the right of executing the vanquished has almost grown obsolete, this fact is to be attributed solely to the voluntary clemency of the victor, and we cannot deny that the right might still be exercised if any one wished to avail himself of it. We can show clearly that there are still remains of this right here and there, for it is in my opinion on the basis of such a survival that we can explain and defend the edict of the States-General of October 1, 1589, by which they proclaimed the death penalty against those who might be found with the traitors of Geertruidenberg, and also their other edict of February 24, 1606, by which they threatened the same penalty upon those who should approach the shore within the navigation marks, or should land on the coast for the sake of plunder. For surely, as far as concerns the laws of war, a man is hardly guilty of crime for being in the company of his fellow soldiers even if these be traitors, nor is it a crime to invade a hostile shore in the hope of making booty. You may drive such an invader off if you can, but if you cannot, why treat him differently from other enemies? It is on the
ground of the same right of life and death that I defend the conduct of the Dutch who, as we are informed sometimes hanged Spaniards who were not ransomed. It is lawful to hang prisoners of war; but if it were not, the failure to procure a ransom would not excuse the act; indeed we shall presently see that such executions are not customary.
To the right of slaying the captured enemy there succeeded the right of making them slaves, which was formerly exercised for a long period. But this custom has also fallen into disuse among nations. To be sure Cujas has written that even among Christians war captives are still enslaved, though their servitude is now milder; but he supports his statement only by reference to the right of ransoming prisoners. But in my opinion, the custom of ransoming prisoners, and the consequent detention until they are ransomed, no more entails servitude than our custom, for instance, of detaining foreign debtors until they pay their debts. For such debtors are never released unless they pay the money due or give security for it, as is also the case with prisoners of war. Even prisoners of war, if they are not redeemed, are very often released without any payment of money. So, for instance, the supreme military council of the United Provinces on December 14, 1602, permitted the release of twenty-four unredeemed prisoners that had been taken at the siege of Bois-le-Duc, lest they should perish by the hardships of imprisonment. It would have been quite unexpected and contrary to prevalent custom if the council had ordered these captives hanged or sent into slavery. Accordingly when the Count of Solms in his Irish campaign in 1690 had ordered the prisoners to be deported to America to become slaves, the Duke of Berwick served notice that if this were done he would send to the galleys in France whatever prisoners he should take. But since slavery has now generally fallen into disuse among Christians, it is no longer employed against war captives. Yet we may make use of it, if we so desire, and indeed at times we do against those who exercise the right against us. For this reason the Dutch usually sell as slaves to the Spaniards the people of Algiers, Tunis, and Tripoli that they capture on the Atlantic or in the Mediterranean, for the Dutch do not use slaves except in Asia, Africa, and America. Indeed, in 1661 and again in 1664 the States-General ordered their admiral to sell into slavery all the pirates he should take.
To the custom of enslaving prisoners succeeded the practice of exchanging them according to their respective rank and station, or of detaining them until redeemed. And treaties sometimes make redeeming obligatory and specify a certain amount of ransom money according to the rank of each person that may be captured. When this sum has been paid, that right of life and death which the victor may exercise over the vanquished comes to an end. The Romans also exercised the right of capture against those of the enemy who at the outbreak of the war happened to be within their territory, but in modern times this right is seldom exercised, although it can be. Even Louis XIV of France when on January 26, 1666, he declared war on land and sea against the English and forbade all commerce with the enemy, so that the English who were in France feared for their persons and property, issued on February 15 a second decree declaring that their fears were groundless, for, he added, by the previous edict he had declared war only upon the English who should be found upon the-seas, or who should commit hostile acts within the French Empire, not upon private individuals who had established their domiciles in France. He stated, however, that he would be pleased if the English dwelling in France unnaturalized would depart within three months, going wheresoever they pleased. I have argued in the preceding chapter that such acts are to be attributed solely to generosity, unless there be agreements which suspend the conditions of war. But since there generally exist such agreements, the right of -war is seldom exercised against those who have entered a foreign country in time of peace, and are found there when war suddenly breaks out.. Accordingly, when the time has elapsed which has been granted for departure either by treaty or by special dispensation, those who have remained or who have come without permission may lawfully be arrested. On this principle the States-General on April 4, 1674, issued an edict declaring that if any enemies should remain within the United Provinces or in the dominions of the States-General without permission, they should be duly arrested and should not be liberated until redeemed.
The right to put captives to death has fallen into disuse; there is a question, however, whether we may use this right without the least disgrace against those who defend themselves too obstinately. There are some who believe this, but I hold it is most disgraceful, unless we think worthy of punishment some weak and defenceless maiden who may obstinately defend her chastity against the attack of libertines. Everything is lawful against an enemy, but nothing could be more cruel than to punish him for his courage. Indeed, we ourselves admire courage in our enemies and are indignant at acts of cowardice in them. I remember reading that the corsairs of Algiers heaped with insults and tore to pieces a certain captain simply because he had disgracefully given up an excellently manned vessel after stipulating for the liberty of his own person. Apparently courage is honoured and cowardice held in contempt even with the enemy. If you wish to see what others have written upon this subject you may find pleasure in reading Gentili, Grotius, and Zouche.
We have set forth what it is lawful to do with captives, but what customs obtain in the treatment of the dead? Formerly the bodies were exposed to beasts and birds, but now the victors bury them or permit the vanquished to do so. Sometimes even more is done out of regard for humanity. On September 16, 1666, the States-General had embalmed and sent home the body of the British vice-admiral which had fallen into their power: indeed they had already on July 10, 1666, written to the King of England to inquire whether he wished the body sent to England or buried in Holland, and he had chosen the former. The French did the same thing in 1692.
Judging from the nature of war we can hardly doubt that all commercial intercourse ceases between enemies. Of what value, pray, are commercial rights if, as is clearly the case, the goods of the enemy that are brought in or that are found in the country are confiscate? But so long as the right of slaying an enemy obtains, would you approve that men might go to the enemy’s country with merchandise only to have some enemy cut them down in the midst of the trading? Certainly all commercial intercourse must cease. Hence commerce is generally prohibited in declarations of war, and also in subsequent edicts. According to Article 11 of the edict of the Earl of Leicester, dated April 4, 1586, prohibiting trade with the Spaniards, it was enacted that subjects engaged in commerce with the enemy contrary to that law should be hanged, and their ships and goods employed in the unlawful commerce should be confiscated, while foreigners engaged in this trade should have their ships and cargoes confiscated. The same penalties were announced by the Earl in Article 12 of the edict of August 4, 1586. Furthermore, by Article 13 of the former edict and by Article 14 of the latter the intention of carrying on commerce with the enemy was declared punishable to the same extent as the act itself, and indeed the Estates of Holland had already so enacted on July 27, 1584. It was, furthermore, added in all these edicts that indictments for these crimes, whether the culprits were taken in the act or not, should not be annulled by any statutes of limitation. Furthermore, by the last-mentioned edict of the Estates of Holland the pecuniary penalties imposed upon the delinquent should be recoverable even from his heirs. But I must add that this last point does not seem to me to conform to Roman law, for, to be candid, the crime, against which these edicts are directed, cannot be classed with treason, but is rather of a peculiar land that springs not from treasonable intent but from greed.
Moreover, even when there is no specific prohibition of commerce, it is made impossible by the very laws of war, as the phrasing of the formal declaration proves; for every man is ordered to attack the subjects of the hostile prince, to seize their goods, and to do them all possible harm. But the interests of the mercantile class and the mutual needs of peoples have almost annulled the laws of war relating to commerce. Hence prohibitions are made and permissions granted that vary with each war, according as sovereigns think it most to their own advantage and the interest of their subjects. A commercial people is anxious to trade, and accommodates the laws of war to its varying power of doing without the merchandise of the other nation. Thus sometimes a mutual permission to engage in general commerce is given, sometimes a partial permission with respect to certain articles, sometimes it is prohibited altogether. But in whatever manner we permit it, whether generally or specifically, a permission is always in my opinion to that extent a suspension of the laws of war, and in that case there is in part war, in part peace, between the subjects of the two sovereigns. The herring fishery was permitted on both sides by the edicts of the French and Dutch in 1536, and by the Decree of December 22, 1552, commercial intercourse was partly permitted but under certain restrictions. To this you may add what was done during the whole of the Spanish, Portuguese, and English war in the years 1653, 1665, and 1672, as well as in the French war in 1672,, and 1702, for it would require too much space to tell it.
One might question whether friends are to be treated as enemies if they have been captured and are found among the enemy. Pierino Belli does not think they are, while Zouche reaches no decision. I should consider them as such, at least so far as concerns their goods which they possess within the hostile territory, and I should hold that such goods could with entire propriety be seized by us according to the laws of war, if the enemy has already taken them from our friends. We may lawfully seize whatever belongs to the enemy, and such goods are a part of the hostile power, which can be of use to them and hence harmful to us. If, however, the property of our friends be within our own domain, even though they themselves are with the enemy, detained as prisoners of war, the case would be wholly different, since the property would then not be in the possession of, nor serviceable to, the enemy. Furthermore, as the exigencies of war demand that we should do all possible harm to our enemies, why should we not take from them goods which they have seized by the law of war and from which they derive advantage? I know the arguments by which some writers support the contrary opinion, for they argue that though our friends are in the enemy’s country they are not themselves hostile to us, nor are they there from free choice, while the matter must be decided from the viewpoint of motive and animus. However, in my opinion the decision does not rest wholly upon motive, since even among the subjects of our enemy there are some, be they ever so few, who are not hostilely inclined towards us; the matter, indeed, rests upon the point of law that the property is in the hands of the enemy, and the material fact that they provide aid to the enemy for our destruction.