SECTION 6. _lawful Belligerents_

Lawful Belligerents

GUERILLA WARFARE

Sir,--When Mr. Balfour last night quoted certain articles of the "Instructions for the Government of Armies of the United States in the Field" with reference to guerilla warfare, some observations were made, and questions put, upon which you will perhaps allow me to say a word or two.

1. Mr. Healy seemed to think that something turned upon the date (May, 1898) at which these articles were promulgated. In point of fact they were a mere reissue of articles drawn by the well-known jurist Francis Lieber, and, after revision by a military board, issued in April, 1868 by President Lincoln.

2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer must be in the negative. The traditional policy of our War Office has been to "trust to the good sense of the British officer." This policy, though surprisingly justified by results, is so opposed to modern practice and opinion that, as far back as 1878-80, I endeavoured, without success, to induce the Office to issue to the Army some authoritative, though simple, body of instructions such as have been issued on the Continent of Europe and in America. The War Office was, however, content to include in its "Manual of Military Law," published in 1888, a chapter which is avowedly unauthoritative, and expressly stated to contain only "the opinions of the compiler, as drawn from the authorities cited."

3. The answer to Sir William Harcourt's unanswered question, "Were there no rules settled at the Hague?" must be as follows. The Hague Convention of 1899, upon "the laws and customs of warfare," ratified by this country on September 4 last, binds the contracting parties to give to their respective armies instructions in conformity with the Règlement annexed to the Convention. This Règlement, which is substantially a reproduction of the unratified projet of the Brussels Conference of 1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt highly desirable that, as soon as may be, the drafting of rules in accordance with the Règlement should be seriously taken in hand, our Government having now abandoned its non possumus attitude in the matter. It will, however, be found to be the case, as was pointed out by Mr. Balfour, that the sharp distinction between combatants and non-combatants contemplated by the ordinary laws of war is inapplicable (without the exercise of undue severity) to operations such as those now being carried out in South Africa.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 7 (1900).

"Lieber's Instructions," issued in 1863 and reissued in 1898, will doubtless be superseded, or modified, in consequence of the United States having, on April 9, 1902, ratified the Convention of 1899, and on March 10, 1908, that of 1907, as to the Laws and Customs of War on Land.

The answer to Mr. Morley's enquiry in 1900 would not now be in the negative. The present writer's representations resulted in Mr. Brodrick, when Secretary for War, commissioning him to prepare a Handbook of the Laws and Customs of War on Land, which was issued to the Army by authority in 1904. On the instructions issued by other National Governments, see the author's Laws of War on Land, 1908, pp. 71-73.

The answer, given in the letter, to Sir William Harcourt's question must now be supplemented by a reference to the Handbook above mentioned as having contained rules founded upon the Règlement annexed to the Convention of 1899, and by a statement that that Convention, with its Règlement, is now superseded by Conventions No. iv. (with its Règlement) and No. v. of 1907, of which account has been taken in a new Handbook upon Land Warfare, issued by the War Office in 1913.

As to what is required from a lawful belligerent, see Arts. 1 and 2 of the Règlement of 1899, practically repeated in that of 1907. The substance of Art. 1 is set out in the letter which follows.

Art. 2 grants some indulgence to "the population of a territory which has not been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops, without having had time to organise themselves in accordance with Art. 1." Cf. infra, pp. 76, 79.

THE RUSSIAN USE OF CHINESE CLOTHING

Sir,--If Russian troops have actually attacked while disguised in Chinese costume, they have certainly violated the laws of war. It may, however, be worth while, to point out that the case is not covered, as might be inferred from the telegram forwarded to you from Tokio on Wednesday last, by the text of Art. 23 (f) of the Règlement annexed to The Hague Convention "on the laws and customs of war on land." This article merely prohibits "making improper use of the flag of truce, of the national flag or the military distinguishing marks and the uniform of the enemy, as well as of the distinguishing signs of the Geneva Convention."

Art. 1 of the Règlement is more nearly in point, insisting, as it does, that even bodies not belonging to the regular army, which, it is assumed, would be in uniform (except in the case of a hasty rising to resist invasion), shall, in order to be treated as "lawful belligerents," satisfy the following requirements, viz.:--

"(1) That of being commanded by a person responsible for his subordinates;

"(2) That of having a distinctive mark, recognisable at a distance;

"(3) That of carrying their arms openly; and

"(4) That of conducting their operations in accordance with the laws and customs of war."

The fact that, in special circumstances, as in the Boer war, marks in the nature of uniform have not been insisted upon, has, of course, no bearing upon the complaint now made by the Japanese Government.

All signatories of The Hague Convention are bound to issue to their troops instructions in conformity with the Règlement annexed to it. The only countries which, so far as I am aware, have as yet fulfilled their obligations in this respect are Italy, which has circulated the French text of the Règlement without comment; Russia, which has prepared a little pamphlet of sixteen pages for the use of its armies in the Far East; and Great Britain, which has issued a Handbook, containing explanatory and supplementary matter, besides the text of the relevant diplomatic Acts.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 21 (1904).

THE RIGHTS OF ARMED CIVILIANS

Sir,--It is interesting to be reminded by Sir Edward Ridley of the view taken by Sir Walter Scott of the right and duty of civilians to defend themselves against an invading enemy. International law is, however, made neither by the ruling of an "impartial historian," on the one hand, nor by the ipse dixit of an Emperor, on the other.

In point of fact, the question raised by Sir Edward is not an open one, and, even in our own favoured country, it is most desirable that every one should know exactly how matters stand. The universally accepted rules as to the persons who alone can claim to act with impunity as belligerents are set forth in that well-known "scrap of paper" The Hague Convention No. iv. of 1907; to the effect that members of "an army" (in which term militia and bodies of volunteers are included) must (1) be responsibly commanded, (2) bear distinctive marks, visible at a distance, (3) carry their arms openly, and (4) conform to the laws of war. By way of concession, inhabitants of a district not yet "occupied" who spontaneously rise to resist invasion, without having had time to become organised, will be privileged if they conform to requirements (3) and (4). These rules are practically a republication of those of The Hague Convention of 1899, which again were founded upon the recommendations of the Brussels Conference of 1874, although, at the Conference, Baron Lambermont regretted that "si les citoyens doivent être conduits au supplice pour avoir tenté de défendre leur pays, au péril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel ils seront fusillés, l'article d'un Traité signé par leur propre gouvernement qui d'avance les condamnait à mort."

An Englishman's Home was a play accurately representing the accepted practice, shocking as it must be. I remember the strength of an epithet which was launched from the gallery at the German officer on his ordering the shooting of the offending householder. It may be hardly necessary to add that nothing in international usage justifies execution of innocent wives and children.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, September 17 (1914).

This letter was, it seems, perverted in the Kreuz Zeitung.

CIVILIANS IN WARFARE

THE RIGHT TO TAKE UP ARMS

Sir,--I have read with some surprise so much of Sir Ronald Ross's letter of to-day as states that "the issue still remains dark" as to the right of civilians to bear arms in case of invasion. It has long been settled that non-molestation of civilians by an invader is only possible upon the understanding that they abstain from acts of violence against him. Modern written international law has defined, with increasing liberality, by the draft Declaration of 1874 and the Conventions of 1899 and 1907, the persons who will be treated as lawful belligerents. Art. 1 of The Hague Regulations of 1907 recognises as such, not only the regular army, but also militia and volunteers. Art. 2 grants indulgence to a levée en masse of "la population" (officially mistranslated "the inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir Ronald, has no bearing upon the question.

The rules are, I submit, as clear as they could well be made, and are decisive against the legality of resistance by individual civilians, the sad, but inevitable consequence of which was, as I pointed out in The Times of September 19 last, truthfully represented on the stage in An Englishman's Home.

In the same letter I wrote that "even in our own favoured country it is most desirable that every one should know exactly how matters stand." There are, however, obvious objections, possibly not insuperable, to this result being brought about, as is proposed by Sir Ronald Ross, by Government action.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 26 (1914).

CIVILIANS AND A RAID

Sir,--It is satisfactory to learn, from Mr. McKenna's answer to a question last night, that the duty of the civilian population, at any rate in certain counties, is engaging the attention of Government. I confess, however, to having read with surprise Mr. Tennant's announcement that "it was provided by The Hague Convention that the wearing of a brassard ensured that the wearer would be regarded as a belligerent." It ought surely to be now generally known that, among the four conditions imposed by the Convention upon Militia and bodies of Volunteers, in order to their being treated as belligerents, the third is "that they shall bear a distinctive mark, fixed and recognisable at a distance." Whether an enemy would accept the mere wearing of a brassard as fulfilling this condition is perhaps an open question upon which some light may be thrown by the controversies of 1871 with reference to francs-tireurs.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 24 (1914).

MISS CAVELL'S CASE

Sir,--The world-wide abhorrence of the execution of Miss Cavell, aggravated as it was by the indecent and stealthy haste with which it was carried out, is in no need of enhancement by questionable arguments, such as, I venture to say, are those addressed to you by Sir James Swettenham.

It is, of course, the case that Germany is in Belgium only as the result of her deliberate violation of solemnly contracted treaties, but she is in military "occupation" of the territory. From such "occupation" it cannot be disputed that there flow certain rights of self-defence. No one, for instance, would have complained of her stern repression of civilian attacks upon her troops, so long as it was confined to actual offenders. The passages quoted by Sir James from Hague Convention v., and from the Kriegsbrauch, relate entirely to the rights and duties of Governments, and have no bearing upon the tragical abuse of jurisdiction which is occupying the minds of all of us.

May I take this opportunity of calling attention to the fresh evidence afforded by the new Order in Council of our good fortune in not being bound by the Declaration of London, which erroneously professed to "correspond in substance with the generally recognised principles of International Law"? Is it too late, even now, to announce, by a comprehensive Order in Council, any relaxations which we and our Allies think proper to make of well-established rules of Prize Law, without any reference to the more and more discredited provisions of the Declaration, the partial and provisional adoption of which seems, at the outbreak of the war, to have been thought likely to save trouble?

Your obedient servant, T. E. HOLLAND. Oxford, October 26 (1915).

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