SECTION 6

_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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Letters to "The Times" upon War and Neutrality (1881-1920) · 第 6 / 17 章