§5. It is a question of some interest how far such regulations as I have sketched out are applicable to civil war. Let us consider first the relation between the belligerents---though it is not strictly an ``external'' relation. It is clear that the reasons above given for limiting the mischief of war in various ways, so far as it falls on combatants, apply equally where the war is between two parts of the same community, except in the one case of the treatment of prisoners. In this case the rule that restricts a belligerent's right over his captives, to that of detention for the purpose of disablement during the war, comes into conflict with the right of a government to treat rebels as criminals. It is admitted by all reasonable persons that it is the imperative duty of every government to punish wrongful violence directed against itself like other wrongful violence---and even with peculiar severity, on account of the widespread evils resulting from anarchy: and so long as other States are not prepared to intervene in a hostile way, they must allow a government contending against an insurrection to assume the right to treat the insurgents as criminals. I conceive, however, that the mere extent and strength of an insurrection may be reasonable grounds for condemning the exercise of this right; partly because they afford a presumption that the insurgents have grievances justifying a forcible attempt at redress; partly because of the danger of provoking reprisals; and of causing intense and widespread bitterness that would long outlive the war.
No general rule, however can be laid down for determining exactly when a government is wrong in refusing to insurgents, if captured, the full rights of prisoners of war. It is somewhat easier to define the point at which they are entitled to the privileges of belligerents at the hands of neutrals; since in this latter case the question is simply one of military fact, and as such it is not unlikely to be implicitly decided by the established government of the divided community, before neutrals have occasion to consider it. For if this government claims the right to take any war-measure injuriously affecting the interests of neutrals---such as blockading ports or capturing contraband of war---it cannot reasonably complain that the insurgents, whom it has thus by implication declared to be belligerents, should be recognised as such by other States. It is, indeed, possible that the government, to avoid this implication, may try to throw what is substantially a war-measure into a non-warlike form; for instance, instead of proclaiming the blockade of certain ports, it may simply declare them closed against trade. Such a measure would, on the principle applied in the preceding chapter, be within the strict international right of the government adopting it in time of peace though it would be unfriendly unless justified by grave emergency; but if it were adopted in time of civil war, it would force neutrals to examine whether the ports in question were de facto under the control of the government claiming to close them; and if they were actually in the hands of the insurgents, the measure would justify neutrals in recognizing the latter as belligerents, no less than if it had been openly a proclamation of blockade.[Back to:]