civilian population as any longer possible. They have found, to some extent, expression in the following Articles of the Hague War-Regulations:—
“Art. 1. The laws, rights and duties of war apply not only to an army, but also to militia and volunteer corps fulfilling the following conditions: (a) To be commanded by a person responsible for his subordinates; (b) to have a fixed distinctive emblem recognizable at a distance; (c) to carry arms openly; and (d) to conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.’
“Art. 2. The population of a territory not under occupation, who, on the enemy's approach, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerent if they carry arms openly, and if they respect the laws and customs of war.”[1]
The only alteration made by the revised Convention of Nov. 27th, 1907, as compared with that of 1899 is the insertion in Art. 2 of the words in italics.
By these provisions, irregular combatants whom both the government of the United States in the American Civil War and the German government in the Franco-German War refused to regard as legitimate belligerents, are now made legally so.[2]
Connected with the position of private persons in time of war is that of their property in invaded territory, a subject which has often been misunderstood. Assertions Enemy property on invaded territory. as to its immunity from capture in warfare on land have been made which are historically inaccurate and are not borne out by contemporary usage. No doubt contemporary usage is an improvement on older usage. An invading army, before the practice of war became more refined, lived by foraging and pillage in the invaded country; pillage, in fact, being one of the inducements held out to the adventurers who formed part of the fighting forces either as officers or as common soldiers, and this continued down to comparatively recent times. Attenuations followed from the rise of standing and regular armies, and the consequent more marked distinction between soldier and civilian. They have now taken the form of systematic requisitions and contributions, the confining of the right of levying these to generals and commanders-in-chief, the institution of quittance's or bills drawn by the belligerent invader on the invaded power and handed in payment to the private persons whose movable belongings have been appropriated or used, and of war indemnities. These are methods of lessening the hardships of war as regards the private property on land of the subjects of belligerent states. Their object and effect have by no means been to arrive at immunity, but to develop an organized system by which damage and losses to individuals, whom the fortune of war has brought into immediate contact with the enemy, are spread over the whole community. There is thus no immunity of private property in warfare on land, and the Hague War-Regulations, far from declaring the contrary, have ratified the right of appropriation of private property in the following Article:—
“Neither requisitions in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their country.
“These requisitions and services shall only be demanded on the authority of the Commander in the locality occupied.
“The contributions in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged and the payment of the amounts due shall be made as soon as possible” (Article 52).
In another Article provision, moreover, is made for the utilization of property in kind belonging to private persons:—
“An army of occupation can only take possession of the cash, funds and property liable to requisition belonging strictly to the state, depots of arms, means of transport, stores and supplies, and, generally, all movable property of the state which may be used for military operations.
“All appliances, whether on land, at sea, or in the air adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.”
Utilizable neutral rolling-stock is not excepted. Article 19 of the Convention on the rights and duties of neutral powers and persons in war on land only providing that—
“The plant of railways coming from neutral states, whether the property of those states, or of companies, or of private persons, and recognizable as such, shall be sent back as soon as possible to the country of origin.”
Enemy property at sea is subject to different rules from those which govern it on land. It is liable to capture and Enemy property at sea. confiscation wherever found on the high seas or in enemy waters. The United States has made strenuous efforts to get this rule of maritime warfare altered, and immunity from capture accepted as the law of the sea. It has even made this a condition of its accession to the Declaration of Paris (see Neutrality). But thus far other powers have shown no disposition to agree to any alteration. At the Hague Conferences the United States raised the question again, but thus far all that has been done has been to ratify
- ↑
The preamble of the Convention refers specially to Articles 1 and
2 in the following terms: “In the view of the High Contracting
Parties, these provisions, the drafting of which has been inspired by
the desire to diminish the evils of war so far as military necessities
permit, are destined to serve as general rules of conduct for
belligerents in their relations with each other and with populations;
“It has not, however, been possible to agree forthwith on provisions embracing all the circumstances which occur in practice;
“On the other hand, it could not be intended by the High Contracting Parties that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders;
“Until a more complete code of the laws of war is issued, the High Contracting Parties think it expedient to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established among civilized nations, from the laws of humanity, and the requirements of the public conscience;
“They declare that it is in this sense especially that Articles 1 and 2 of the regulations adopted must be understood.”
- ↑
The instructions for the government of armies of the United
States in the field, issued in 1863, provided:—
“Men or squads of men who commit hostilities, whether by fighting or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocation, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers—such men or squads of men are not public enemies, and therefore, if captured, are not entitled to the privilege of prisoners of war, but shall be treated summarily as highway robbers or pirates.”
Germany seven years later declined to recognize the regular bands of francs-tireurs unless each individual member of them had been personally called out by legal authority, and wore a uniform or badge, irremovable and sufficient to distinguish him at a distance. The older publicists were, on the whole, strongly opposed to the legalization of irregular troops. Hallock settles the question in a summary way by calling those who engage in partisan warfare, robbers and murderers, and declaring that when captured they are to be treated as criminals (International Law, chap. xviii. s. 8). It is easy to understand the unfavourable opinion of partisan bands usually expressed by the military authorities when the enormous power for damage of modern arms is considered. At the Brussels Conference of 1874 the representatives of the great military Powers of the Continent naturally desired to keep spontaneous movements within the narrowest possible bounds, while the delegates from the secondary states, who have to rely for their defence chiefly upon the patriotism of their people, endeavoured to widen the right of resistance to an invader. Finally the Conference adopted the provisions which were later formally recognized at the Hague Conference (see British State Papers Miscellaneous, No. 1, 1875, pp. 252-257). It is noteworthy that both at the Brussels and the Hague Conferences the British delegate ranged himself on the side of the smaller states in favour of the recognition of guerrilla bands. At the Hague Conference Sir John Ardagh gave notice of his intention to propose an additional Article, to the effect that nothing in the Regulations should “be considered as tending to diminish or suppress the right which belongs to the population of an invaded country patriotically to oppose the most energetic resistance by every legitimate means.” The upshot of this notice was to cause the insertion of a proviso in the preamble of the Convention denying the right of military commanders to act according to their own arbitrary judgment (Parliamentary Papers, No. 1, 1899, c. 9534).
