_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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