CHAPTER I

WHO BELONGS TO THE HOSTILE ARMY?

[Sidenote: Who are Combatants and who are not.]

Since the subjects of enemy States have quite different rights and duties according as they occupy an active or a passive position, the question arises: Who is to be recognized as occupying the active position, or what amounts to the same thing--Who belongs to the hostile army? This is a question of particular importance.

According to the universal usages of war, the following are to be regarded as occupying an active position:

1. The heads of the enemy’s state and its ministers, even though they possess no military rank.

2. The regular army, and it is a matter of indifference whether the army is recruited voluntarily or by conscription; whether the army consists of subjects or aliens (mercenaries); whether it is brought together out of elements which were already in the service in time of peace, or out of such as are enrolled at the moment of mobilization (militia, reserve, national guard and Landsturm).

3. Subject to certain assumptions, irregular combatants, also, _i.e._, such as are not constituent parts of the regular army, but have only taken up arms for the length of the war, or, indeed, for a particular task of the war.

[Sidenote: The Irregular.]

Only the third class of persons need be more closely considered. In their case the question how far the rights of an active position are to be conceded to them has at all times been matter of controversy, and the treatment of irregular troops has in consequence varied considerably. Generally speaking the study of military history leads to the conclusion that the Commanding Officers of regular armies were always inclined to regard irregular troops of the enemy with distrust, and to apply to them the contemporary laws of war with peculiar severity. This unfavorable prejudice is based on the ground that the want of a military education and of stern discipline among irregular troops, easily leads to transgressions and to non-observance of the usages of war, and that the minor skirmishes which they prefer to indulge in, and which by their very nature lead to individual enterprise, open the door to irregularity and savagery, and easily deteriorate into robbery and unauthorized violence, so that in every case the general insecurity which it develops engenders bitterness, fury, and revengeful feelings in the harassed troops, and leads to cruel reprisals. Let any one read the combats of the French troops in the Spanish Peninsula in the years 1808 to 1814, in Tyrol in 1809, in Germany in 1813, and also those of the English in their different Colonial wars, or again the Carlist Wars, the Russo-Turkish War, and the Franco-Prussian War,[41] and one will everywhere find this experience confirmed.

[Sidenote: Each State must decide for itself.]

If these points of view are on the whole decisive against the employment of irregular troops, yet on the other hand, it must be left to each particular State to determine how far it will disregard such considerations; from the point of view of international law no State is compelled to limit the instruments of its military operations to the standing army. It is, on the contrary, completely justified in drawing upon all the inhabitants capable of bearing arms, entirely according to its discretion, and in imparting to them an authorization to participate in the war.

[Sidenote: The necessity of Authorization.]

This public authorization has therefore been until quite recently regarded as the presumed necessary condition of any recognition of combatant rights.

[Sidenote: Exceptions which prove the rule.]

[Sidenote: The Free Lance.]

Of course there are numerous examples in military history in which irregular combatants have been recognized as combatants by the enemy, without any public authorization of the kind; thus in the latest wars of North America, Switzerland, and Italy, and also in the case of the campaign (without any kind of commission from a State) of Garibaldi against Naples and Sicily in the year 1860. But in all these cases the tacitly conceded recognition originated not out of any obligatory principles of international law or of military usage, but simply and solely out of the fear of reprisals. The power to prevent the entrance on the scene of these irregular partizans did not exist, and it was feared that by not recognizing their quality as combatants the war a cruel character might be given, and consequently that more harm than good might result to the parties themselves. On the other hand there has always been a universal consensus of opinion against recognizing irregulars who make their appearance individually or in small bands, and who conduct war in some measure on their own account (auf eigene Faust) detached from the army, and such opinion approves of the punishment of these offenders with death.

This legal attitude which denies every unauthorized rising and identifies it with brigandage was taken up by the revolutionary armies of France towards the insurrection in La Vendée, and again by Napoleon in his proceedings against Schill and Dörnberg in the year 1809, and again by Wellington, Schwarzenberg, and Blücher, in the Proclamations issued by them in France in the year 1814, and the German Army adopted the same standpoint in the year 1870-71, when it demanded that: “Every prisoner who wishes to be treated as a prisoner of war must produce a certificate as to his character as a French soldier, issued by the legal authorities, and addressed to him personally, to the effect that he has been called to the Colors and is borne on the Roll of a corps organized on a military footing by the French Government.”

[Sidenote: Modern views.]

In the controversies which have arisen since the war of 1870-71 over the different questions of international law and the laws of war, decisive emphasis has no longer been placed upon the question of public authorization, and it has been proposed, on grounds of expediency, to recognize as combatants such irregulars as are indeed without an express and immediate public authorization, but who are organized in military fashion and are under a responsible leader. The view here taken was that by a recognition of these kind of irregular troops the dangers and horrors of war would be diminished, and that a substitute for the legal authorization lacking in the case of individuals offers itself in the military organization and in the existence of a leader responsible to his own State.

Moreover the Brussels Declaration of August 27, 1874, and in consonance with it the _Manual of the Institute of International Law_, desire as the first condition of recognition as combatants “that they have at their head a personality who is responsible for the behavior of those under him to his own Government.”[42]

[Sidenote: The German Military View.]

Considered from the military point of view there is not much objection to the omission of the demand for public authorization, so soon as it becomes a question of organized detachments of troops, but in the case of hostile individuals who appear on the scene we shall none the less be unable to dispense with the certificate of membership of an organized band, if such individuals are to be regarded and treated as lawful belligerents.

But the organization of irregulars in military bands and their subjection to a responsible leader are not by themselves sufficient to enable one to grant them the status of belligerents; even more important than these is the necessity of being able to recognize them as such and of their carrying their arms openly. The soldier must know who he has against him as an active opponent, he must be protected against treacherous killing and against any military operation which is prohibited by the usages of war among regular armies. The chivalrous idea which rules in the regular armies of all civilized States always seeks an open profession of one’s belligerent character. The demand must, therefore, be insisted on that irregular troops, although not in uniform, shall at least be distinguishable by visible signs which are recognizable at a distance.[43] Only by such means can the occurrence of misuse in the practise of war on the one side, and the tragic consequences of the non-recognition of combatant status on the other, be made impossible. The Brussels Declarations also therefore recommend, in Art. 9 (2 and 3), that they, _i.e._, the irregular troops, should wear a fixed sign which is visible from a distance, and that they should carry their weapons openly. The Hague Convention adds to these three conditions yet a fourth, “That they observe the laws and usages of war in their military operations.”

[Sidenote: The Levée en masse.]

[Sidenote: The Hague Regulations will not do.]

[Sidenote: A short way with the Defender of his Country.]

This condition must also be maintained if it becomes a question of the _levée en masse_, the arming of the whole population of the country, province, or district; in other words the so-called people’s war or national war.[44] Starting from the view that one can never deny to the population of a country the natural right of defense of one’s fatherland, and that the smaller and consequently less powerful States can only find protection in such _levées en masse_, the majority of authorities on International law have, in their proposals for codification, sought to attain the recognition on principle of the combatant status of all these kinds of people’s champions, and in the Brussels declaration and the Hague Regulations the aforesaid condition[45] is omitted. As against this one may nevertheless remark that the condition requiring a military organization and a clearly recognizable mark of being attached to the enemy’s troops, is not synonymous with a denial of the natural right of defense of one’s country. It is therefore not a question of restraining the population from seizing arms but only of compelling it to do this in an organized manner. Subjection to a responsible leader, a military organization, and clear recognizability cannot be left out of account unless the whole recognized foundation for the admission of irregulars is going to be given up altogether, and a conflict of one private individual against another is to be introduced again, with all its attendant horrors, of which, for example, the proceedings in Bazeilles in the last Franco-Prussian War afford an instance. If the necessary organization does not really become established--a case which is by no means likely to occur often--then nothing remains but a conflict of individuals, and those who conduct it cannot claim the rights of an active military status. The disadvantages and severities inherent in such a state of affairs are more insignificant and less inhuman than those which would result from recognition.[46]