Levies en masse.
§ 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 masse organised by the State enjoy the privileges due to members of armed forces.
It sometimes happens, further, during wars, that a levy en masse takes place spontaneously without organisation by a belligerent, and the question arises whether or not those who take part in such levies en masse 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 masse 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 masse, if captured, are liable to be shot.[121]
[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 masse 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 masse 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 masse. And it matters not whether the individuals taking part in the levy en masse are acting in immediate combination with a regular army or separately from it.[124]
[122] Concerning the difference between invasion and occupation, see below, § [167].
[123] See Land Warfare, §§ 31-32.
[124] See Land Warfare, § 34.
Barbarous Forces.