Volume Ii Part 10 (1/2)

Writers on the Law of Nations do not agree as regards the position of such individuals; they are not mere private individuals, but, on the other hand, are certainly not combatants, although they may--as, for instance, couriers, doctors, farriers, and veterinary surgeons--have the character of soldiers. They may correctly be said to belong _indirectly_ to the armed forces. Article 3 of the Hague Regulations expressly stipulates that the armed forces of the belligerents may consist of combatants and non-combatants, and that both in case of capture must be treated as prisoners of war, provided[117] they produce a certificate of identification from the military authorities of the army they are accompanying. However, when one speaks of armed forces generally, combatants only are in consideration.

[Footnote 117: See below, -- 127.]

[Sidenote: Irregular Forces.]

-- 80. Very often the armed forces of belligerents consist throughout the war of their regular armies only, but, on the other hand, it happens frequently that irregular forces take part in the war. Of such irregular forces there are two different kinds to be distinguished--first, such as are authorised by the belligerents; and, secondly, such as are acting on their own initiative and their own account without special authorisation. Formerly it was a recognised rule of International Law that only the members of authorised irregular forces enjoyed the privileges due to the members of the armed forces of belligerents, whereas members of unauthorised irregular forces were considered to be war criminals and could be shot when captured. During the Franco-German war in 1870 the Germans acted throughout according to this rule with regard to the so-called ”Franctireurs,” requesting the production of a special authorisation from the French Government from every irregular combatant they captured, failing which he was shot. But according to article 1 of the Hague Regulations this rule is now obsolete, and its place is taken by the rule that irregulars enjoy the privileges due to members of the armed forces of the belligerents, although they do not act under authorisation, provided (1) that they are commanded by a person responsible for his subordinates, (2) that they have a fixed distinctive emblem recognisable at a distance,[118] (3) that they carry arms openly,[119] and (4) that they conduct their operations in accordance with the laws and customs of war. It must, however, be emphasised that this rule applies only to irregulars fighting in bodies, however small. Such individuals as take up arms or commit hostile acts singly and severally are still liable to be treated as war criminals, and shot.[120]

[Footnote 118: The distance at which the emblem should be visible is undetermined. See _Land Warfare_, -- 23, where it is pointed out that it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline should be at once distinguishable from the outline of a peaceable inhabitant, and this by the naked eye of ordinary individuals, at a distance at which the form of an individual can be determined.--See Ariga, p. 87, concerning 120 irregulars who were treated as criminals and shot by the j.a.panese after the occupation of Vladimirowka on the island of Sakhaline.]

[Footnote 119: See _Land Warfare_, -- 26; individuals whose sole arm is a pistol, hand-grenade, a dagger concealed about the person, or a sword-stick, are not such as carry their arms openly.]

[Footnote 120: See below, -- 254.]

[Sidenote: Levies _en ma.s.se_.]

-- 81. It sometimes happens during war that on the approach of the enemy a belligerent calls the whole population of the country to arms and thus makes them a part, although a more or less irregular part, of his armed forces. Provided they receive some organisation and comply with the laws and usages of war, the combatants who take part in such a levy _en ma.s.se_ organised by the State enjoy the privileges due to members of armed forces.

It sometimes happens, further, during wars, that a levy _en ma.s.se_ takes place spontaneously without organisation by a belligerent, and the question arises whether or not those who take part in such levies _en ma.s.se_ belong to the armed forces of the belligerents, and therefore enjoy the privileges due to members of such forces. Article 2 of the Hague Regulations stipulates that the population of a territory not yet occupied who, on the enemy's approach, spontaneously take up arms to resist the invading enemy, without having time to organise themselves under responsible commanders and to procure fixed distinctive emblems recognisable at a distance, shall nevertheless enjoy the privileges due to armed forces, provided that they carry arms openly and act otherwise in conformity with the laws and usages of war. But this case is totally different from a levy _en ma.s.se_ of the population of a territory already invaded by the enemy, for the purpose of freeing the country from the invader. The stipulation of the Hague Regulations quoted above does not cover this case, in which, therefore, the old customary rule of International Law is valid, that those taking part in such a levy _en ma.s.se_, if captured, are liable to be shot.[121]

[Footnote 121: See below, -- 254. Article 85 of the American _Instructions for the Government of Armies in the Field_ of 1863 has enacted this rule as follows: ”War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled Government or not....”]

It is of particular importance not to confound invasion with occupation in this matter. Article 2 distinctly speaks of the _approach_ of the enemy, and thereby sanctions only such a levy _en ma.s.se_ as takes place in territory not yet _invaded_ by the enemy. Once the territory is invaded, although the invasion has not yet ripened into occupation,[122]

a levy _en ma.s.se_ is no longer legitimate. But, of course, the term _territory_, as used by article 2, is not intended to mean[123] the whole extent of the State of a belligerent, but refers only to such parts of it as are not yet invaded. For this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on the approach of the enemy, legitimately rise _en ma.s.se_.

And it matters not whether the individuals taking part in the levy _en ma.s.se_ are acting in immediate combination with a regular army or separately from it.[124]

[Footnote 122: Concerning the difference between invasion and occupation, see below, -- 167.]

[Footnote 123: See _Land Warfare_, ---- 31-32.]

[Footnote 124: See _Land Warfare_, -- 34.]

[Sidenote: Barbarous Forces.]

-- 82. As International Law grew up amongst the States of Christendom, and as the circle of the members of the Family of Nations includes only civilised, although not necessarily Christian, States, all writers on International Law agree that in wars between themselves the members of the Family of Nations should not make use of barbarous forces--that is, troops consisting of individuals belonging to savage tribes and barbarous races. But it can hardly be maintained that a rule of this kind has customarily grown up in practice, nor has it been stipulated by treaties, and the Hague Regulations overlook this point. This being the fact, it is difficult to say whether the members of such barbarous forces, if employed in a war between members of the Family of Nations, would enjoy the privileges due to members of armed forces generally. I see no reason why they should not, provided such barbarous forces would or could comply with the laws and usages of war prevalent according to International Law. But the very fact that they are barbarians makes it probable that they could or would not do so, and then it would be unreasonable to grant them the privileges generally due to members of armed forces, and it would be necessary to treat them according to discretion.[125] But it must be specially observed that the employment of barbarous forces must not be confounded with the enrolling of coloured individuals into the regular army and the employment of regiments consisting of disciplined coloured soldiers. There is no reason whatever why, for instance, the members of a regiment eventually formed by the United States of America out of negroes bred and educated in America, or why members of Indian regiments under English commanders, if employed in wars between members of the Family of Nations, should not enjoy the privileges due to the members of armed forces according to International Law.

[Footnote 125: As regards the limited use made of armed natives as scouts, and the like, on the part of the British commanders during the South-African War, see _The Times' History of the War in South Africa_, pp. 249-251. The Boers refused quarter to any such armed natives as fell into their hands.]

[Sidenote: Privateers.]

-- 83. Formerly privateers were a generally recognised part of the armed forces of the belligerents, private vessels being commissioned by the belligerents through Letters of Marque to carry on hostilities at sea, and particularly to capture enemy merchantmen.[126] From the fifteenth century, when privateering began to grow up, down to the eighteenth century, belligerents used to grant such Letters of Marque to private s.h.i.+ps owned by their subjects and by the subjects of neutral States. But during the eighteenth century the practice grew up that belligerents granted Letters of Marque to private s.h.i.+ps of their own subjects only.[127] However, privateering was abolished by the Declaration of Paris in 1856 as between the signatory Powers and others who joined it later. And although privateering would still be legal as between other Powers, it will in future scarcely be made use of. In all the wars that occurred after 1856 between such Powers, no Letters of Marque were granted to private s.h.i.+ps.[128]

[Footnote 126: See Martens, _Essai concernant les armateurs, les prises, et surtout les reprises_ (1795).]

[Footnote 127: Many publicists maintain that nowadays a privateer commissioned by another State than that of which he is a subject is liable to be treated as a pirate when captured. With this, however, I cannot agree; see above, vol. I. -- 273, Hall, -- 81, and below, -- 330.]

[Footnote 128: See below, -- 177. It is confidently to be hoped that the great progress made by the abolition of privateering through the Declaration of Paris will never be undone. But it is of importance to note the fact that up to the present day endeavours have been made on the part of freelances to win public opinion for a retrograde step. See, for instance, Munro-Butler Johnstone, _Handbook of Maritime Rights; and the Declaration of Paris Considered_ (1876), and Gibson Bowles, _The Declaration of Paris of 1856_ (1900); see also Perels, pp. 177-179. The Declaration of Paris being a law-making treaty which does not provide the right of the several signatory Powers to give notice of withdrawal, a signatory Power is not at liberty to give such notice, although Mr.

Gibson Bowles (_op. cit._ pp. 169-179) a.s.serts that this could be done.

See above, vol. I. -- 12.]