International Law. A Treatise
Chapter 89 : Writers on the Law of Nations do not agree as regards the position of such individuals;

Writers on the Law of Nations do not agree as regards the position of such individuals; they are not mere private individuals, but, on the other hand, are certainly not combatants, although they may--as, for instance, couriers, doctors, farriers, and veterinary surgeons--have the character of soldiers. They may correctly be said to belong _indirectly_ to the armed forces. Article 3 of the Hague Regulations expressly stipulates that the armed forces of the belligerents may consist of combatants and non-combatants, and that both in case of capture must be treated as prisoners of war, provided[117] they produce a certificate of identification from the military authorities of the army they are accompanying. However, when one speaks of armed forces generally, combatants only are in consideration.

[Footnote 117: See below, -- 127.]

[Sidenote: Irregular Forces.]

-- 80. Very often the armed forces of belligerents consist throughout the war of their regular armies only, but, on the other hand, it happens frequently that irregular forces take part in the war. Of such irregular forces there are two different kinds to be distinguished--first, such as are authorised by the belligerents; and, secondly, such as are acting on their own initiative and their own account without special authorisation. Formerly it was a recognised rule of International Law that only the members of authorised irregular forces enjoyed the privileges due to the members of the armed forces of belligerents, whereas members of unauthorised irregular forces were considered to be war criminals and could be shot when captured. During the Franco-German war in 1870 the Germans acted throughout according to this rule with regard to the so-called "Franctireurs," requesting the production of a special authorisation from the French Government from every irregular combatant they captured, failing which he was shot. But according to article 1 of the Hague Regulations this rule is now obsolete, and its place is taken by the rule that irregulars enjoy the privileges due to members of the armed forces of the belligerents, although they do not act under authorisation, provided (1) that they are commanded by a person responsible for his subordinates, (2) that they have a fixed distinctive emblem recognisable at a distance,[118] (3) that they carry arms openly,[119] and (4) that they conduct their operations in accordance with the laws and customs of war. It must, however, be emphasised that this rule applies only to irregulars fighting in bodies, however small. Such individuals as take up arms or commit hostile acts singly and severally are still liable to be treated as war criminals, and shot.[120]

[Footnote 118: The distance at which the emblem should be visible is undetermined. See _Land Warfare_, -- 23, where it is pointed out that it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline should be at once distinguishable from the outline of a peaceable inhabitant, and this by the naked eye of ordinary individuals, at a distance at which the form of an individual can be determined.--See Ariga, p. 87, concerning 120 irregulars who were treated as criminals and shot by the j.a.panese after the occupation of Vladimirowka on the island of Sakhaline.]

[Footnote 119: See _Land Warfare_, -- 26; individuals whose sole arm is a pistol, hand-grenade, a dagger concealed about the person, or a sword-stick, are not such as carry their arms openly.]

[Footnote 120: See below, -- 254.]

[Sidenote: Levies _en ma.s.se_.]

-- 81. It sometimes happens during war that on the approach of the enemy a belligerent calls the whole population of the country to arms and thus makes them a part, although a more or less irregular part, of his armed forces. Provided they receive some organisation and comply with the laws and usages of war, the combatants who take part in such a levy _en ma.s.se_ organised by the State enjoy the privileges due to members of armed forces.

It sometimes happens, further, during wars, that a levy _en ma.s.se_ takes place spontaneously without organisation by a belligerent, and the question arises whether or not those who take part in such levies _en ma.s.se_ belong to the armed forces of the belligerents, and therefore enjoy the privileges due to members of such forces. Article 2 of the Hague Regulations stipulates that the population of a territory not yet occupied who, on the enemy's approach, spontaneously take up arms to resist the invading enemy, without having time to organise themselves under responsible commanders and to procure fixed distinctive emblems recognisable at a distance, shall nevertheless enjoy the privileges due to armed forces, provided that they carry arms openly and act otherwise in conformity with the laws and usages of war. But this case is totally different from a levy _en ma.s.se_ of the population of a territory already invaded by the enemy, for the purpose of freeing the country from the invader. The stipulation of the Hague Regulations quoted above does not cover this case, in which, therefore, the old customary rule of International Law is valid, that those taking part in such a levy _en ma.s.se_, if captured, are liable to be shot.[121]

[Footnote 121: See below, -- 254. Article 85 of the American _Instructions for the Government of Armies in the Field_ of 1863 has enacted this rule as follows: "War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled Government or not...."]

It is of particular importance not to confound invasion with occupation in this matter. Article 2 distinctly speaks of the _approach_ of the enemy, and thereby sanctions only such a levy _en ma.s.se_ as takes place in territory not yet _invaded_ by the enemy. Once the territory is invaded, although the invasion has not yet ripened into occupation,[122]

a levy _en ma.s.se_ is no longer legitimate. But, of course, the term _territory_, as used by article 2, is not intended to mean[123] the whole extent of the State of a belligerent, but refers only to such parts of it as are not yet invaded. For this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on the approach of the enemy, legitimately rise _en ma.s.se_.

And it matters not whether the individuals taking part in the levy _en ma.s.se_ are acting in immediate combination with a regular army or separately from it.[124]

[Footnote 122: Concerning the difference between invasion and occupation, see below, -- 167.]

[Footnote 123: See _Land Warfare_, ---- 31-32.]

[Footnote 124: See _Land Warfare_, -- 34.]

[Sidenote: Barbarous Forces.]

-- 82. As International Law grew up amongst the States of Christendom, and as the circle of the members of the Family of Nations includes only civilised, although not necessarily Christian, States, all writers on International Law agree that in wars between themselves the members of the Family of Nations should not make use of barbarous forces--that is, troops consisting of individuals belonging to savage tribes and barbarous races. But it can hardly be maintained that a rule of this kind has customarily grown up in practice, nor has it been stipulated by treaties, and the Hague Regulations overlook this point. This being the fact, it is difficult to say whether the members of such barbarous forces, if employed in a war between members of the Family of Nations, would enjoy the privileges due to members of armed forces generally. I see no reason why they should not, provided such barbarous forces would or could comply with the laws and usages of war prevalent according to International Law. But the very fact that they are barbarians makes it probable that they could or would not do so, and then it would be unreasonable to grant them the privileges generally due to members of armed forces, and it would be necessary to treat them according to discretion.[125] But it must be specially observed that the employment of barbarous forces must not be confounded with the enrolling of coloured individuals into the regular army and the employment of regiments consisting of disciplined coloured soldiers. There is no reason whatever why, for instance, the members of a regiment eventually formed by the United States of America out of negroes bred and educated in America, or why members of Indian regiments under English commanders, if employed in wars between members of the Family of Nations, should not enjoy the privileges due to the members of armed forces according to International Law.

[Footnote 125: As regards the limited use made of armed natives as scouts, and the like, on the part of the British commanders during the South-African War, see _The Times' History of the War in South Africa_, pp. 249-251. The Boers refused quarter to any such armed natives as fell into their hands.]

[Sidenote: Privateers.]

-- 83. Formerly privateers were a generally recognised part of the armed forces of the belligerents, private vessels being commissioned by the belligerents through Letters of Marque to carry on hostilities at sea, and particularly to capture enemy merchantmen.[126] From the fifteenth century, when privateering began to grow up, down to the eighteenth century, belligerents used to grant such Letters of Marque to private s.h.i.+ps owned by their subjects and by the subjects of neutral States. But during the eighteenth century the practice grew up that belligerents granted Letters of Marque to private s.h.i.+ps of their own subjects only.[127] However, privateering was abolished by the Declaration of Paris in 1856 as between the signatory Powers and others who joined it later. And although privateering would still be legal as between other Powers, it will in future scarcely be made use of. In all the wars that occurred after 1856 between such Powers, no Letters of Marque were granted to private s.h.i.+ps.[128]

[Footnote 126: See Martens, _Essai concernant les armateurs, les prises, et surtout les reprises_ (1795).]

[Footnote 127: Many publicists maintain that nowadays a privateer commissioned by another State than that of which he is a subject is liable to be treated as a pirate when captured. With this, however, I cannot agree; see above, vol. I. -- 273, Hall, -- 81, and below, -- 330.]

[Footnote 128: See below, -- 177. It is confidently to be hoped that the great progress made by the abolition of privateering through the Declaration of Paris will never be undone. But it is of importance to note the fact that up to the present day endeavours have been made on the part of freelances to win public opinion for a retrograde step. See, for instance, Munro-Butler Johnstone, _Handbook of Maritime Rights; and the Declaration of Paris Considered_ (1876), and Gibson Bowles, _The Declaration of Paris of 1856_ (1900); see also Perels, pp. 177-179. The Declaration of Paris being a law-making treaty which does not provide the right of the several signatory Powers to give notice of withdrawal, a signatory Power is not at liberty to give such notice, although Mr.

Gibson Bowles (_op. cit._ pp. 169-179) a.s.serts that this could be done.

See above, vol. I. -- 12.]

[Sidenote: Converted Merchantmen.]

-- 84. A case which happened in 1870, soon after the outbreak of the Franco-German war, gave occasion for the question whether converted merchantmen could be considered a part of the armed naval forces of a belligerent. As the North-German Confederation owned only a few men-of-war, the creation of a volunteer fleet was intended. The King of Prussia, as President of the Confederation, invited the owners of private German vessels to make them a part of the German navy under the following conditions: Every s.h.i.+p should be a.s.sessed as to her value, and 10 per cent. of such value should at once be paid in cash to the owner as a price for the charter of the s.h.i.+p. The owner should engage the crew himself, but the latter should become for the time of the war members of the German navy, wear the German naval uniform, and the s.h.i.+p should sail under the German war flag and be armed and adapted for her purpose by the German naval authorities. Should the s.h.i.+p be captured or destroyed by the enemy, the a.s.sessed value should be paid to her owners in full; but should it be restored after the war undamaged, the owner should retain the 10 per cent. received as charter price. All such vessels should only try to capture or destroy French men-of-war, and if successful the owner should receive a sum between 1500 and 7500 as premium. The French Government considered this scheme a disguised evasion of the Declaration of Paris which abolished privateering, and requested the intervention of Great Britain. The British Government brought the case before the Law Officers of the Crown, who declared the German scheme to be substantially different from the revival of privateering, and consequently the British Government refused to object to it. The scheme, however, was never put into practice.[129]

[Footnote 129: See Perels, -- 34; Hall, -- 182; Boeck, No. 211; Dupuis, Nos. 81-84.]

Now, in spite of the opinion of the British Law Officers, writers on International Law differ as to the legality of the above scheme; but, on the other hand, they are unanimous that not every scheme for a voluntary fleet is to be rejected. Russia,[130] in fact, since 1877, has possessed a voluntary fleet. France[131] has made arrangements with certain steams.h.i.+p companies according to which their mail-boats have to be constructed on plans approved by the Government, have to be commanded by officers of the French navy, and have to be incorporated in the French navy at the outbreak of war. Great Britain from 1887 onwards has entered into agreements with several powerful British steams.h.i.+p companies for the purpose of securing their vessels at the outbreak of hostilities; and the United States of America in 1892 made similar arrangements with the American Line.[132]

[Footnote 130: See Dupuis, No. 85.]

[Footnote 131: See Dupuis, No. 86.]

[Footnote 132: See Lawrence, -- 201, and Dupuis, Nos. 87-88. On the whole question see Pradier-Fodere, VIII. Nos. 3102-3103.]

Matters were brought to a climax in 1904, during the Russo-j.a.panese War, through the cases of the _Peterburg_ and the _Smolensk_.[133] On July 4 and 6 of that year, these vessels, which belonged to the Russian volunteer fleet in the Black Sea, were allowed to pa.s.s the Bosphorus and the Dardanelles, which are closed[134] to men-of-war of all nations, because they were flying the Russian commercial flag. They likewise pa.s.sed the Suez Ca.n.a.l under their commercial flag, but after leaving Suez they converted themselves into men-of-war by hoisting the Russian war flag, and began to exercise over neutral merchantmen all rights of supervision which belligerents can claim for their cruisers in time of war. On July 13 the _Peterburg_ captured the British P. & O. steamer _Malacca_ for alleged carriage of contraband, and put a prize-crew on board for the purpose of navigating her to Libau. But the British Government protested; the _Malacca_ was released at Algiers on her way to Libau on July 27, and Russia agreed that the _Peterburg_ and the _Smolensk_ should no longer act as cruisers, and that all neutral vessels captured by them should be released.

[Footnote 133: See the details of the career of these vessels in Lawrence, _War_, pp. 205 _seq._]

[Footnote 134: See above, vol. I. -- 197.]

This case was the cause of the question of the conversion of merchantmen into men-of-war being taken up by the Second Peace Conference in 1907, which produced Convention VII. on the matter.[135] This Convention, which is signed by all the States represented at the Conference except the United States of America, China, San Domingo, Nicaragua, and Uruguay--but Nicaragua acceded later--comprises twelve articles; its more important stipulations are the following: No converted vessel can have the status of a wars.h.i.+p unless she is placed under the direct authority, immediate control, and responsibility of the Power whose flag she flies (article 1). Such a vessel must, therefore, bear the external marks which distinguish the wars.h.i.+ps of her nationality (article 2); the commander must be in the service of the State concerned, must be duly commissioned, and his name must figure on the list of the officers of the military fleet (article 3); and the crew must be subject to the rules of military discipline (article 4). A converted vessel must observe the laws and usages of war (article 5) and her conversion must as soon as possible be announced by the belligerent concerned in the list of the s.h.i.+ps of his military fleet (article 6).

[Footnote 135: See Wilson in _A.J._ II. (1908), pp. 271-275; Lemonon, pp. 607-622; Higgins, pp. 312-321; Dupuis, Nos. 48-58; Nippold, II. pp.

73-84; Scott, _Conferences_, pp. 568-576; Higgins, _War and the Private Citizen_ (1912), pp. 115-168.]

The opinion, which largely prevails, that through this admittance of the conversion of merchantmen into men-of-war privateering has been revived, is absolutely unfounded, for the rules stipulated by Convention VII. in no way abrogate the rule of the Declaration of Paris that privateering is and remains abolished. But the Convention does not give satisfaction in so far as it does not settle the questions where the conversion of a vessel may be performed, and whether it is permitted to reconvert, before the termination of the war, into a merchantman a vessel which during the war had been converted into a wars.h.i.+p. The fact is, the Powers could not come to an agreement on these two points, the one party claiming that conversion could only be performed within a harbour of the converting Power, or an enemy harbour occupied by it, the other party defending the claim to convert likewise on the High Seas. One must look to the future for a compromise that will settle this vexed controversy.

It is, however, important to notice the fact that the preamble of Convention VII. states expressly that the question of the place where a conversion may be performed remains open. Those Powers which claim that conversions[136] must not take place on the High Seas are not, therefore, prevented from refusing to acknowledge the public character of any vessel which had been converted on the High Seas, and from upholding their view that a converted vessel may not alternately claim the character and the privileges of a belligerent man-of-war and a merchantman.

[Footnote 136: Concerning the question whether an enemy merchantman, captured on the High Seas, may at once be converted into a wars.h.i.+p, see below, p. 231, _note_ 2.]

[Sidenote: The Crews of Merchantmen.]

-- 85. In a sense the crews of merchantmen owned by subjects of the belligerents belong to the latter's armed forces. For those vessels are liable to be seized by enemy men-of-war, and if attacked for that purpose they may defend themselves, may return the attack, and eventually seize the attacking men-of-war. The crews of merchantmen become in such cases combatants, and enjoy all the privileges of the members of armed forces. But unless attacked they must not commit hostilities, and if they do so they are liable to be treated as criminals just as are private individuals who commit hostilities in land warfare. Some writers[137] a.s.sert that, although merchantmen of the belligerents are not competent to exercise the right of visit, search, and capture towards neutral vessels, they may attack enemy vessels--merchantmen as well as public vessels--not merely in self-defence but even without having been previously attacked, and that, consequently, the crews must in such case enjoy the privileges due to members of the armed forces. But this opinion is absolutely without foundation nowadays,[138] even in former times it was not generally recognised.[139]

[Footnote 137: See Wheaton, -- 357; Taylor, -- 496; Walker, p. 135, and _Science_, p. 268.]

[Footnote 138: See below, -- 181, and Hall, -- 183.]

[Footnote 139: See Vattel, III. -- 226, and G. F. Martens, II. -- 289.]

It should be mentioned in regard to the fate of the crews of captured merchantmen that a distinction is to be made according as to whether or no a vessel has defended herself against a legitimate attack. In the first case the members of the crew become prisoners of war, for by legitimately taking part in the fighting they have become members of the armed forces of the enemy.[140] In the second case, articles 5 to 7 of Convention XI. of the Second Peace Conference enact the following rules:[141]--

(1) Such members of the crew as are subjects of neutral States may not be made prisoners of war.

(2) The captain and the officers who are subjects of neutral States may only be made prisoners if they refuse to give a promise in writing not to serve on an enemy s.h.i.+p while the war lasts.

(3) The captain, officers, and such members of the crew who are enemy subjects may only be made prisoners if they refuse to give a written promise not to engage, while hostilities last, in any service connected with the operations of war.

(4) The names of all the individuals retaining their liberty under parole must be notified by the captor to the enemy, and the latter is forbidden knowingly to employ the individuals concerned in any service prohibited by the parole.