III. War rebellion
The history of ‘war rebellion’ has roughly paralleled that of war treason, but the concept itself has proved to be considerably less controversial. The writings of Francis Lieber similarly constitute a point of departure for the development of this doctrine. The draftsman of General Orders No. 100 claimed,107 and his statement appears to be an accurate one, that he originated the term in his pamphlet on guerrilla parties.108 He defined the war rebel as a ‘renewer of war within an occupied territory’, and it is in this sense that the term continues to be understood. It presumably refers to uprisings in arms by groups ofpersons as distinguished from individual acts of hostility and from such conduct as sabotage committed either by individuals or groups. The latter two categories would probably be referred to as war treason, although the reason for the distinction is obscure.
From Lieber’s pamphlet, the concept of war rebellion found its way into his Instructions109 and the writings of Bluntschli110 and so into European jurisprudence. The necessity oftaking harsh measures against armed resistance in occupied areas has seldom been questioned, and the principal source of controversy has been, as was noted in connexion with the general duty owed to the occupant, whether there is any right to rebel and whether war rebellion constitutes a violation of any moral or legal obligation. The question arose at the Brussels Conference of 1874 and proved to be insoluble. The preliminary draft which had been drawn up by Russia contained an article providing that individuals in an area where the power of the enemy was already established who rose in arms against him might be referred to justice and would not be considered as prisoners of war.111 The proposed article was subjected to criticism by the delegates of several of the smaller countries represented at the Conference, notably the Netherlands, Belgium, and Switzerland, who contended that it would be improper to require a state, the territory of which might thereafter be occupied, to concede to the enemy in advance jurisdiction over war treason in Great Britain. It has been stated that he was so charged because espionage was not at the time a capital offence (Phillipson, International Law and the Great War (1915), pp. 213—17; Morgan, ‘War Treason’, in Transactions of the Grotius Society, 2 (1916), p. 169). One of the charges against the German saboteurs, whose case was reviewed by the United States Supreme Court in Ex parte Quirin (1942), 317 U.S. 1, was violation of the 81st Article of War, which defines the offence of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy. Paras. 205 and 206 of the Rules of Land Warfare express the belief that this article of war defines the offence of ‘war treason’. Whether the military commission which tried Quirin and his fellow agents considered the charge in this light and whether the accused were found guilty thereof cannot be stated at the present date, as the proceedings of the military commission are not to be released until the World War of 1939—45 is officially declared terminated (New York Times newspaper, 9 August 1942, p. 1, col. 4).
- 107 MS. Notebook, supra.
- 108 Guerrilla Parties Considered with Reference to the Laws and Usages of War (1862), p. 13.
- 109 Art. 85 provided that ‘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.’
- 110 Das moderne Volkerrecht der civilisirten Staaten (1868), } 643.
- 111 Projet, Art. 46.
citizens who were responding to the highest sentiments of patriotism and to a positive duty to defend their country. They conceded that the occupant might be forced to take severe measures against those opposing his authority, but were unwilling to make a levee en masse in occupied territory the subject of a blanket prohibition in positive international law. Agreement between the major Powers and these small states having proved impossible, it was decided to omit the draft article and to leave the matter to existing international law, which was at the time itself uncertain. Opposition from several large states defeated a renewed attempt at the Hague Conference of 1899 to reach a modicum of agreement through an ambiguous statement that nothing in the convention was to be construed as precluding ‘the population of an invaded country’ from fulfilling its ‘duty of offering by all lawful means the most energetic patriotic resistance to the invader.’
In the writings of the publicists, varying effects are attributed to revolution by occupied populations. To many it is a violation of international law, which is variously said to produce as its sanction the removal of the occupant’s protection, the termination of the protection of the law of war, the offender’s prosecution as a ‘war criminal’ for ‘illegitimate hostilities in arms’, or his punishment at the unfettered discretion of the occupant. In the opposing camp are to be found authorities such as de Visscher, Calvo, Hannis Taylor, and Hall, who state that there is a ‘right’ to revolt and perhaps even a duty, ofwhich international law must take account, imposed by the continuing allegiance of the citizen to his own state. The conflicting views which are taken are, for the most part, the logical concomitants of the diverse theories which have been adopted concerning the general relationship of the occupied population to the occupant. The doctrine of war rebellion appears, however, to have gained a fairly firm footing in Anglo- American law, for it is referred to in the standard texts ofboth Great Britain and the United States and is described in the military manuals of both countries. It should be noted, however, that whereas war rebellion is recognized as a ‘war crime’ by Oppenheim, his treatise denies that the inhabitant owes any duty of obedience to the occupant under international law.
In modern warfare, the levee en masse, or a general uprising of the populace, has been supplanted by the more subtle tactics of the resistance movement and the underground, which, while generally enlisting the sympathies of a large proportion of the population, are actively conducted by a minority of that group. The occupant is less likely to be faced by open rebellion than he is by guerilla warfare, sabotage, individual armed attacks, and other more refined acts of defiance. Having lost its utility, the conventional concept of war rebellion has, like war treason, passed into desuetude both in the practice ofbelligerents and in the substantive law applied by war crimes tribunals.
Axis occupation practices exhibited such a callous contempt for the limitations imposed by international law on the conduct of the belligerent occupant that during the last five years courts have been called upon in relatively few instances to consider the conformity of resistance activities with the law of nations. More often cases dealing with the punishment of acts hostile to the occupant were decided on the issue whether the occupation authorities ought to have afforded, and did afford, a fair trial to the accused before his execution. It was sufficient in several other instances to decide that reprisals against resistance activities were excessive or had been taken prematurely. As the result of the prohibition of reprisals and collective punishments and the detailed provisions concerning judicial proceedings in the courts of the occupant which have been incorporated in the recent Geneva Civilians Convention, the pronouncements of war crimes tribunals on these matters have become of diminished practical importance. Nevertheless, those cases in which the propriety of resistance activities has been considered have almost universally reached the conclusion that such acts are not in violation of international law. In the Trial ofHansAlbin Rauter, who had been a German police official in the Netherlands, the Dutch Special Court of Cassation went so far as to state that resistance is a ‘permissible weapon’ to use against the occupant. A Norwegian court of appeals rejected the defence raised by German police officials for their conduct in Norway that the activities of the underground movement were acts of illegitimate warfare and therefore might be made the subject of reprisals, which in this case took the form of torture. In the opinion of the Court the underground movement did not constitute a violation of international law, although the activities of members of the movement were presumably violations of a body of local law enforced by the German authorities.126 This issue was not discussed by the Supreme Court in affirming the decision of the court of first instance, but in the Trial ofFlesch on similar charges, the Supreme Court affirmed the holding of the court of appeals that underground activities, even in the form of guerilla warfare, were not, in the circumstances, in violation of international law.127 The military tribunal which tried Wilhelm List did not specifically discuss whether resistance is lawful under international law.128 It did, however, state that persons guilty of acts of resistance to the occupation forces become ‘war criminals in the eyes of the enemy129 and ‘must accept the increased risks involved in this mode of fighting’ because it is only in this fashion that the occupant may protect himself against what the Court called ‘the gadfly tactics of armed resistance’. The Tribunal concluded that ‘We think the rule is established that a civilian who aids, abets or participates in the fighting is liable to punishment as a war criminal under the laws of war.’130 The language is more suggestive on the whole of a punishment permitted by international law than it is of a punishment imposed by international law.
The larger question of the obligation of inhabitants to obey the measures taken by the occupant for his security was considered by Dutch courts in connexion with the prosecution of collaborationists. Several contractors and police officials raised the defence that they had been legally obligated to obey what they contended to be the lawful commands of the German occupation authorities. The Dutch criminal courts and the Special Court of Cassation held, on the contrary, that the only effective defence to a charge of collaboration was one of force majeure and that the mere fact that the Hague Regulations sanctioned the requisitioning of services and the enactment of legislation designed to assure order and protect the occupant created no compulsion for individuals to render services in conformity therewith. The Hague Regulations were not intended to create rights against the population of an occupied territory; they merely limit the de facto authority of the occupant. Accordingly, they do not create legal obligations in conscience binding upon the inhabitants.131
The Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 has removed any lingering doubts about the status of certain organized resistance forces by providing that members of ‘volunteer corps’, including ‘organized resistance movements’ operating even in occupied territory, are entitled to be treated as prisoners of war upon capture, if they are commanded by a responsible person, have a fixed distinctive sign, carry arms openly, and conduct their operations in conformity with the laws of war.132 This provision has been rendered necessary by war-time difficulties in securing recognition as prisoners of      
war for partisans who had conducted their activities in conformity with international law. Underground movements carrying on clandestine activities and persons who individually make armed attacks on occupying military forces are presumably left to the common law of war, subject to the protection afforded by the Geneva Civilians Convention. For the activities of such persons, the appellation of ‘war rebellion’ hardly seems appropriate.
-  Actes de la Conference de Bruxelles (1874), pp. 158—65. 113 Actes, p. 165.
-  114 Graber, The Development of the Law of Belligerent Occupation 1863—1914 (1949), p. 85.
-  115 The provision was proposed by the British technical delegate and was withdrawn in the face ofstrenuous objection from Russia and Germany (The Proceedings of the Hague Peace Conferences. The
-  Conference of1899 (ed. by Scott, 1920), pp. 550—5).
-  Halleck suggests that the right of an occupied population to revolt rests on the same principle asthe right of revolution against any government (op. cit., pp. 792—5). See also Bordwell, op. cit., p. 302;Nys, op. cit., vol. iii, p. 108; Fauchille, op. cit., vol. ii, pp. 210—11; Rolin-Jaequemyns, op. cit.,pp. 667—8; Kriegsbrauch im Landkriege (1902), p. 50.
-  De Visscher, loc. cit., pp. 76—77; Calvo, op. cit., vol. iv, p. 218; Taylor, op. cit., p. 592; Hall,op. cit., p. 498.
-  Oppenheim, International Law (6th ed. by Lauterpacht, 1944), vol. ii, p. 456; Hyde, op. cit.,vol. iii, p. 1794 (citing Lieber but not employing the term ‘war rebellion’).
-  Manual of Military Law (1929), Amendments No. 12 (1936), p. 83, which characterizes warrebellion as ‘illegitimate hostilities in arms’; United States Rules of Land Warfare, para. 349.
-  Op. cit. (6th ed. by Lauterpacht, 1944), vol. ii, p. 343.
-  For an isolated example ofthe use of the term see In re Ohashi etal. (1946), War Crimes Reports,vol. v, p. 25.
-  In re Von Leeb et al. (High Command Trial) (1948), War Crimes Reports, vol. xii, p. 1; In re Bucket al. (1946), ibid., vol. v, p. 39; In reKato (1946), ibid., vol. v, p. 37; In re Yamashita (1945—6), ibid.,vol. iv, p. 1; and In re Wagner et al. (1946), ibid., vol. iii, p. 23, are typical examples.
-  In re Von Mackensen and Maelzer (1945), War Crimes Reports, vol. viii, p. 1; In re Flesch(1946—8), ibid., vol. vi, p. 111.
-  Arts. 33, 64—78. 125 In re Rauter (1948), War Crimes Reports, vol. xiv, pp. 127—9.
-  126 In re Bruns et al. (1946), War Crimes Reports, vol. iii, p. 17.
-  In re Flesch (1946—8), War Crimes Reports, vol. vi, pp. 115, 119.
-  In re List et al. (Hostages Trial) (1948), War Crimes Reports, vol. viii, p. 34.
-  Emphasis supplied. 130 War Crimes Reports, vol. viii, p. 58.
-  131 In re Contractor Worp (1946), Na-oorlogse Rechtspraak, Tribunalen in Nederland, 2nd Year,
-  1946, No. 519; In re Van Huis (1946), ibid., 2nd Year, 1946, No. 605; In re Heinemann (1946), ibid.,3rd Year, 1947, No. 763. In In re Van Huis, the Special Criminal Court of The Hague, in a distinctionreminiscent of Bordwell, conceded that measures designed exclusively for the benefit of the occupiedcountry might create legal obligations for individuals.
-  Art. 4 a (2). This principle had already been anticipated in previous writings, which hadspecified that members of a levee en masse in occupied territory who were taken prisoner by theenemy were not thereby deprived of all legal protection (Westlake, op. cit., Part ii, p. 100; Grob, TheRelativity of War and Peace (1949), p. 268).
-  Report on the Work of the Conference of Government Experts for the Study ofthe Conventionsfor theProtection of War Victims, International Committee of the Red Cross (1947), pp. 107—10.