XXVII the proclamation of blockade, on April 19, 1861, marked the com- CHAP. mencement of the American Civil War in respect to third powers and justified the recognition by Great Britain of the Confederate States as belligerents.1 1See above, p. 109. a. Lawful combatants CHAPTER XXVIII THE LAWS OF LAND WARFARE 2 As late as the seventeenth century no clear distinction was recognized in international law between armed combatants and unarmed inhabitants, whether in respect to the rights of the latter to participate in the defense of their country or in respect to their immunity from personal attack. Grotius repeated the doctrine of earlier writers that innocent non-combatants were to be spared,1 but his stand upon the natural law was not supported by the practice of the day. By the close of the century however, it came to be recognized that unarmed citizens should not be attacked, on condition that they themselves should take no part in hostilities. The implications of this latter condition, however, presented serious difficulties. What was the status of bodies of troops operating independently of the main army, and that of groups of citizens who rose en masse to resist an invading enemy? The practice of the states varied widely. The Instructions for the Government of Armies of the United States in the Field, issued during the American Civil War, made a distinction between "partisans," who were soldiers belonging to a corps detached from the main army and acting under the authority of the commander-in-chief, and who were held entitled to be treated as prisoners of war, and on the other hand bodies of men who committed hostilities "without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war," and who were to be treated "summarily as highway robbers or pirates." The latter have sometimes been called "guerrillas," but this term 1 De Jure Belli et Pacis (Eng. trans.), Bk. III, Chap. XI, §§ VIII-XII. 'See Walker, History, 194. General Orders, 100, issued April 24, 1863. The Instructions were prepared by Francis Lieber at the request of President Lincoln. They are frequently referred to as Lieber's Code. For the text, see Wilson and Tucker, International Law, 8th ed., Appendix I. No. 82. For the status of the Confederate Partisan Rangers, see Bordwell, The Law of War between Belligerents, 79. As by General George B. Davis, Elements of International Law, 292. 2 XXVIII is more properly used as synonymous with partisans.1 The In- CHAP. structions further recognized the right of the population of an invaded territory to rise en masse to resist the invader. By contrast, the rules enforced by the German army upon its invasion of France in 1870 were most severe, requiring practically impossible conditions of volunteer corps and local militia (francs-tireurs) and punishing with great severity resistance by unorganized populations.3 of the Hague conventions In 1874 an effort was made at Brussels to formulate a rule Provisions of law upon the subject, but the conference could not reach a decision at once satisfactory to the several states possessing large and small standing armies. Finally in 1899 the Convention respecting the Laws and Customs of War on Land was adopted at the Hague, embodying in an annex a series of provisions "intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants." Article 1 of these Regulations lays down four conditions under which "the laws, rights, and duties of war" may apply to militia and volunteer corps as well as to the "army" proper: (1) that they be commanded by a person responsible for his subordinates; (2) that they have a fixed distinctive emblem recognizable at a distance; (3) that they carry arms openly; (4) that they conduct their operations in accordance with the laws and customs of war. No mention is made in the Regulations of the use of "savage" or "semibarbarous" troops; and, following the rule of the convention that such cases not provided for in the Regulations must be governed by the provisions of the customary law, it would seem that the test of their use, whether Turcos from North Africa or Zulus from South Africa, would be the possibility of their conforming to the condition of conducting operations in accordance with the laws of war.5 Further, the Regulations provide that the inhabitants of a territory which has not been occupied may upon the approach of the enemy spontaneously take up arms to resist the invading troops and must be regarded as belligerents in spite of not conforming to the conditions in respect to organization laid 'See Spaight, Laws of War on Land, 61 ff. 2 Nos. 51, 52. 3 For details, see Spaight, op. cit., 41 ff. For the text of the convention, see Malloy, Treaties, II, 2269; Hague Conventions, 100. * For the controversy over the use of such troops, see Spaight, op. cit., 65-72. "savages" СНАР. Status of war rebels German practice in 1914 down for volunteer corps, provided that they conform to the conditions of carrying arms openly and respecting the laws and customs of war.1 The Regulations are silent with respect to the status of levies en masse in territory already occupied by the invader. Such persons, known as "war rebels," were, under the United States Instructions of 1863, subject to the penalty of death irrespective of their numbers or of their authorization by their own expelled government. It was contended at the Hague by the smaller states that such uprisings should be treated as similar uprisings upon the approach of the enemy. But certain of the larger states with powerful standing armies were unwilling to agree, and the question was left as it stood under the customary law. On the whole, the provisions of the Hague Regulations left the law in an obscure condition, since the concession to levies en masse in Article 2 conflicts with the conditions laid down for volunteer corps in Article 1, unless a very narrow interpretation is to be given to the phrase, "approach of the enemy." The provisions of Article 2 of the Hague Regulations were put to a severe test in the German invasion of Belgium in August, 1914. Once the decision was taken to violate the neutrality of Belgium, military necessity made it imperative for the German army to overcome the resistance of the inhabitants both to the passage of troops and to the permanent occupation of the territory. Since Article 2 of the Hague Regulations was not technically binding upon Germany, the German interpretation of the usage with respect to levies en masse was applied, and unauthorized acts of hostility committed upon the approach of the enemy by the inhabitants of towns and villages were punished with great severity. Sniping, whether on the part of individuals or of groups, was repressed, not only by the execution of the offenders, but by the burning of houses and the execution of hostages taken as a rule from among the older and more important personages of the district.R On occasion hostages were used as a screen to protect the Art 2. Compare Instructions, No. 51. 2 No. 85. For details of the several points of view, see Spaight, op. cit., 53-54. The unsatisfactory nature of the compromise is discussed by Spaight, op. cit., 54 ff. See German War Book, Morgan's trans., Chap. I. The German requirements were that levies en masse should be organized in the same manner as volunteer corps and wear a distinctive mark visible at a distance. For details and references, see Garner, International Law and the World War, I, Chap. XII. XXVIII ments of column of the enemy as it entered a new village. It would appear CHAP. that, in consequence of a circular issued by the Belgian minister of the interior on August 4, calling upon the local authorities to warn the inhabitants against committing acts of hostility, such sniping as was done and such resistance as was offered were the result rather of irresponsible individual than of concerted group action. The attempt to hold the community responsible for the isolated acts of individuals was in violation of the rule laid down in the Hague Regulations, to the effect that "no general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible."" Whether, however, this principle expressed a rule of customary law is open to question. With a few exceptions, the question of restrictions upon the b. Instruuse of particular instruments of warfare is a modern one. The warfare prohibition of the use of poisoned weapons is as old as the Code of Manu, and was approved by the ancient Greeks and Romans as well as by medieval writers, although practice often failed to conform to principle. The Second Lateran Council, meeting in 1139, issued a prohibition of the use of the crossbow and the arbalist, though the injunction proved ineffective. Again, the harquebus was condemned, but without effect upon international practice. The attempt of chivalry to bar the newer inventions of science, as unworthy of brave men, failed, apparently on grounds similar to those advanced in more modern times. The Instructions of 1863 forbade the use of poison in any manner, "be it to poison wells or food or arms. It remains, however, an open question whether the pollution of drinking-waters by methods which involve no deception, such as the contamination of a well or stream by dead cattle, is in violation of customary law.5 3 In 1868 a conference of European military delegates met at St. Petersburg to take action with regard to the new explosive bullets, and a declaration was adopted containing both a statement of general principles and a specific agreement forbidding the use of 'any projectile of a weight below 400 grammes (about fourteen 1 Art. 50, 'See Walker, History of the Law of Nations, I, 42, 56, 72. 'The student may be reminded of the classic words of the Chevalier Bayard who, when dying in 1524 of a wound inflicted by a harquebus, thanked God he had never shown mercy to a musketeer. Art. 70. 5 For a discussion of instances occurring during the American Civil War and the Boer War of 1899-1902, see Spaight, Laws of War on Land, 84. |