III. Hostilities in arms by persons not of the armed forces: Guerrillas
Hostilities in arms by persons not entitled to be treated as prisoners of war are of tremendously greater practical importance than espionage, but the law applicable to such conduct is, if anything, even less certain. These activities may take the form of individual acts of violence, in which case the expression franc-tireur is normally used, or may with greater probability be carried on by armed bands in guerrilla or partisan warfare. For want of a better term, the expression ‘guerrilla warfare’ will be applied to all such acts, but with the qualification that it is not intended to refer, in the sense in which it is used in military science, to the warfare waged by detached troops of the armed forces, properly so identified, or to armed forces which continue fighting after a surrender, which presents a problem of another nature. The word ‘guerrilla’ is most usefully applied in a legal context to armed hostilities by private persons or groups of persons who do not meet the qualifications established in Article 4 of the Geneva Prisoners of War Convention of 1949 or corresponding provisions of the earlier Conventions.
The tendency of academic lawyers has been to charge guerrillas with acting in contravention of international law. It has been said that such armed bands carry on ‘irregular war’ because they are normally self-constituted, lack permanency, do not wear uniforms, carry on pillage and destruction, and are disposed to take few prisoners and to deny quarter. The principal accusation which has been made against them is that they eventually degenerate into bandits, engaging in murder and robbery in hope of gain. As a consequence, the texts of the nineteenth and twentieth centuries are disposed to stigmatize guerrilla warfare and any private hostilities in arms as ‘war crimes’.
How well this characterization accords with the realities of modern warfare is open to serious question. It must be assumed at the outset that guerrilla activities are an inevitable concomitant of hostilities waged by regularly constituted armed forces. Isolated bodies of regular troops, greatly extended supply lines, and thinly scattered occupation forces offer inviting and advantageous targets to guerrilla columns. By contrast with the armed forces, guerrillas require little logistical support. Their casualties are slight. Above all they have the advantages conferred by the fact that they conceal their character as belligerents and are thus able to exploit to the full the element of surprise.
Strategic and tactical considerations alone do not recruit guerrilla forces, and it must be remembered that the partisan exists in modern warfare because the civilian willingly takes up arms and fights. The guerrilla fighting of today had its forerunners in the resistance of the Spanish Maquis during the Peninsular Campaign and in the hostilities of French civilians in the Franco-Prussian War, which brought the term franc-tireur into an undeserved prominence. Resistance activities were an important instrument in the defeat of the Axis during the Second World War, and it is hardly possible to name an armed conflict which has taken place since the conclusion of those hostilities in which guerrillas have not played an important and often decisive role. Only a rigid legal formalism could lead to the characterization of the resistance conducted against Germany, Italy, and Japan as a violation of international law. Patriotism, nationalism, allegiance to some sort of political authority have replaced the desire for loot, which has traditionally been attributed to the guerrilla, in motivating civilians to take an active part in warfare. And finally, it must not be forgotten that in the Marxist view of the ‘people’s war’, to which a considerable number of important military powers subscribe, popular resistance, including guerrilla warfare, is regarded as a necessary and proper means of defence.
The law of war has had to evolve an uneasy and sometimes unworkable compromise between the legitimate defence of regular belligerent forces and the demands of patriotism. An unwillingness to regard guerrillas as internationally criminal may be discerned at the very threshold of the modern law of war, for the delegations at the Brussels Conference from those countries which had the most often been invaded insisted again and again on the right of the attacked country to call its citizens to arms to resist the enemy. The protected position afforded the members of the levee en masse is a monument to these sentiments, but the spontaneous mass uprising in the face of the enemy has lost any real significance. The levee en masse is actually an anomaly in the law, for its recognition poses threats not only to the country employing it but to the enemy as well. In an area where a levy exists, the enemy is not without basis in looking upon all inhabitants of the invaded area who are capable of bearing arms as potential enemies to be attacked or, if they surrender, to be made prisoners of war. The very considerations which militate against treating all belligerents as prisoners of war apply with equal force to the members of the levee en masse.
The distinction between those forces entitled to be treated as prisoners of war upon capture and those not so qualified which had been worked out at Brussels was preserved in the Hague Regulations of 1899 and 1907. Martens, the president of the 1899 Conference, drew attention to the fact that:
‘The Brussels Conference, therefore, by no means intended to abolish the right of defence, or to create a code which would abolish this right. It was, on the contrary, imbued with the idea that heroes are not created by codes, but that the only code that heroes have is their selfabnegation, their will and their patriotism.
‘The Conference understood that its duty was not to try to formulate a code of cases which cannot be foreseen or codified, such as acts of heroism on the part of populations rising against the enemy.
He went on to assert that the provisions drafted at the Brussels Conference had not been designed to deal with all cases and that they left the door open to ‘the heroic sacrifices which nations might be ready to make in their defence’. ‘It is not our province’, he added, ‘to set limits to patriotism.’
It was not, however, until the conclusion of the Second World War that judicial consideration was given to the status of persons falling outside the class of so-called ‘lawful belligerents’. In the Hostages Trial,71 guerrillas were actually said, in legal intendment, to resemble spies in that the enemy punished such activities not because of their illegality in an international sense but because of the danger they presented to him. The prevailing view in the trials involving resistance in arms, whether in occupied or other than occupied territory, appears to be in conformity with that expressed in the Hostages case. It was also made plain that guerrillas, like spies, may not be punished without trial.
The Geneva Conference of 1949 was well aware of the problem implicit in the existence of guerrilla and partisan warfare and seemed to be under the impression that it had dealt with it in satisfactory fashion. Members of resistance movements who comply with the conditions that they be commanded by a responsible person, wear a fixed distinctive sign, carry arms openly, and comply with the laws of war are, even in occupied areas, entitled to be treated as prisoners of war upon capture. But because guerrilla warfare is in essence secret warfare, it is improbable that the majority of guerrillas will comply with these conditions, particularly those which relate to the wearing of distinctive insignia and the open carrying of arms. If this is so, the problem of the guerrilla fighter is still one of customary international law. The fact that such persons are still left, subject to the procedural and general safeguards afforded by the Geneva Conventions of 1949, to the mercy of the enemy will in strict law lead to the extreme penalty of death. It may be expected, however, that more favourable treatment, specifically in the form of recognition as prisoners of war, will be held out as an inducement to persuade guerrillas to surrender. The listing of those persons who are entitled as a matter of law to be treated as prisoners cannot reasonably be construed as prohibiting a belligerent from granting that status to persons having no legal right thereto.
When resistance activities in the form of guerrilla warfare are carried out in occupied areas, it would appear, in the light of prosecutions for war crimes and the Geneva Conventions of 1949, that they constitute no violation of any duty imposed by international law and cannot therefore be stigmatized as violative of international law. As guerrilla activities in occupied areas during the Second World War proved to be of considerably greater consequence than those in the face of the enemy, there is reason to suppose that the law applicable to unoccupied areas should correspond to that to be invoked elsewhere, unless some distinction between the two which is of legal significance may be ascertained. But if such warfare within occupied areas, where the power of the enemy is already established, is not in contravention of the law of nations, how much less can similar activities in unoccupied zones, where the fortunes of battle are still in doubt, be said to have that character. Nor can it be argued that a state has no obligation to suppress guerrilla activities on its behalf in that portion of its territory which is occupied but that such a duty does arise where active hostilities are in progress in the face of the enemy. As long as partisan warfare is inspired by genuine allegiance rather than a desire for pillage and as long as guerrilla activities are looked upon as licit and laudable by the state on whose behalf they are undertaken and by third parties to the conflict, it is highly unreal to regard them as internationally criminal.
Although guerrilla warfare and private hostilities in arms should not be regarded as violative of international law, this does not necessarily mean that persons carrying on such activities may not be guilty of war crimes in their strict sense. To apply the doctrine of membership in criminal organizations80 to membership in any guerrilla band because of fears concerning their lawlessness would, of course, constitute an unwarranted extension of the principle, by a legislative rather than a judicial process, from individual organizations within a state to all groups of a specified type. The notion of complicity81 may, however, involve the responsibility of persons associated with an individual organization of guerrillas members of which have committed criminal acts. Should members of such groups pillage, loot the dead and wounded in the area of battle, refuse to give quarter, or murder prisoners, they would, like members of the regular armed forces, be similarly accountable for their criminal acts.82
The guerrilla thus appears, like the spy, to be a belligerent who has failed to meet the conditions established by law for favoured treatment upon capture. The judicial proceeding to which a suspect is subjected is accordingly a determination whether or not he meets the qualifications prescribed for treatment as a prisoner of war or as a peaceful civilian. What formulation of law is necessary to permit his ‘punishment’ if he fails so to qualify is essentially a matter of domestic law or practice. In Germany, guerrilla warfare against the Reich was defined as a crime by German law.83 In other countries a purported prosecution for acting in ‘violation of the laws and customs of war’ is probably to be construed as directed against an offence in violation of the military common law of the state concerned. In any case, the protection of international law, in the sense in which that law safeguards prisoners of war and peaceful civilians, terminates when the judicial proceeding reveals that the individual does not qualify for protected status.
-  Concerning which see Nurick and Barrett, ‘Legality of Guerrilla Forces under the Laws of War’,in American Journal of International Law, 40 (1946), p. 563.
-  Article 1, Hague Regulations of 1907; Article 1, Geneva Prisoners of War Convention of 1929.
-  Hyde, op. cit., vol. iii, p. 1797; Hyde’s sentiments are those of Lieber in Guerrilla Partiesconsidered with Reference to the Laws and Usages of War (1862), p. 7.
-  Oppenheim, op. cit., vol. ii (6th ed. by Lauterpacht, 1944), pp. 451,454; Fauchille, op. cit., vol.ii, pp. 99 ff.; Hyde, op. cit., vol. iii, pp. 1797—8; Halleck, op. cit., p. 386; Spaight, op. cit., p. 63;Waltzog, op. cit., p. 16; see to like effect the British Manual of Military Law (1929), AmendmentsNo. 12 (1936), p. 83, characterizing private hostilities in arms as illegitimate acts ‘from the enemy’sstandpoint’, and United States Rules of Land Warfare (1940), pars. 348, 351, and 352.
-  A related problem is that of the use of force by members of civil defence organizations who havenot been equipped with uniforms or have not had an opportunity to don them (see United States v.Hangobl (1945), War Crimes Reports, xiv (1949), p. 86).
-  Miksche, Secret Forces; The Technique ofUnderground Movements (1950).
-  Napier, History of the War in the Peninsula (1828—40).
-  See Rolin-Jaequemyns, ‘Chronique du droit international; Essai complementaire sur la guerrefranco-allemande dans ses rapports avec le droit international’, in Revue de droit international et de lalegislation comparee, 3 (1871), p. 288.
-  United Nations forces in Korea have, for example, encountered guerrilla bands ranging in sizefrom 50 to 2,000 men (Eighth Report ofthe UnitedNations Command Operations in Korea, for the period16 to 30 October 1950, U.N.Doc. S/1885).
-  Trainin, ‘Questions of Guerrilla Warfare in the Law of War’, in American Journal ofInternationalLaw, 40 (1946), p. 534; Kulski, ‘Some Soviet Comments on International Law’, in American Journal ofInternational Law, 45 (1951), p. 347.
-  The Spanish delegation asserted that defensive war was for Spain a national war to which all theforces of the nation would be directed, regardless of the danger incurred (Actes de la Conference deBruxelles (1874), pp. 138—9). A member of the Italian delegation expressed the view that theConference did not wish to indicate that resistance, other than in the form of the levee en masse,would be illegitimate (Actes, pp. 244—5). General de Leer of Russia expressed his Government’sunderstanding that an attacked state has a right of defence without restriction, so long as it conformsto the law of war (Actes, p. 246).
-  Article 10 of the Brussels Code; Article 2, Hague Regulations of 1907.
-  Manual of Military Law (1929), Amendments No. 12 (1936), p. 11.
-  A proposed Article recognizing the right of the population of invaded territory to offer ‘by alllawful means, the most energetic patriotic resistance against the invaders’ was, however, not favourablyreceived (Minutes of the Second Subcommission, Second Commission, Conference of 1899, EleventhMeeting, 20 June 1899, in The Proceedings of the Hague Peace Conferences; The Conference of1899 (ed.by Scott, 1920), pp. 550—5.
-  Minutes of the Second Subcommission, Second Commission, Conference of 1899, EleventhMeeting, 20 June 1899, in The Proceedings ofthe Hague Peace Conferences; The Conference of1899 (ed.by Scott, 1920), p. 547.
-  United States v. List et Al. (1948), Trials of War Criminals, xi (1950), p. 1245; War CrimesReports, viii (1949), p. 58.
-  United States v. Ohlendorf et Al. (1948), Trials ofWar Criminals, iv (1949), p. 492.
-  United States v. List et Al. (1948), Trials ofWar Criminals, xi (1950), p. 1290; United States v.Von Leeb et Al. (1948), ibid., p. 530; War Crimes Reports, xii (1949), p. 86; see the closing Address forthe Prosecution in United States v. Yamashita (1945), ibid. iv (1948), p. 31. Article 5 of the GenevaPrisoners ofWar Convention of 1949 recognizes the necessity of a trial by providing that persons whohave committed belligerent acts are to be protected by that Convention ‘until such time as their statushas been determined by a competent tribunal’.
-  See Report of Committee II to the Plenary Assembly (CDG/PLEN. 76 Pris, 23 July 1949), p. 7.
-  Article 4.
-  The fear of Strebel that what he characterizes as a legitimation of resistance activities by civilians,particularly those in occupied territory, will put major obstacles in the path of the opposing belligerent(loc. cit., pp. 133 ff.) apparently proceeds from the assumption that large numbers of persons will beaffected by those provisions of Article 4 of the Prisoners of War Convention of 1949 pertaining toresistance movements. It is believed that the disputed clauses of Article 4 represent only a slightderogation from the international common law of war and that the problem of guerrillas who are notentitled to be treated as lawful belligerents is still paramount. See also Brandweiner, ‘Das Partisanen-problem und die Genfer Konventionen vom 12. August 1949', in Juristische Blatter, 72 (1950), p. 261.
-  This was the view taken by the Danish delegate at the Geneva Conference of 1949 (VerbatimReport of the Thirteenth Plenary Meeting, 26 July 1949, CDG/PLEN/CR 13, p. 6).
-  This Year Book, 27 (1950), pp. 253 ff.
-  The assimilation of guerrillas to ‘bandits' and ‘pirates', as proposed by Cowles (‘Universality ofJurisdiction over War Crimes', in California Law Review, 33 (1945), pp. 181—203), is unwarranted.Although some guerrillas may engage in banditry and thereby become guilty of the war crimes of