This public authorization has therefore been until quite recently regarded as the presumed necessary condition of any recognition of combatant rights.
Exceptions which prove the rule.
The Free Lance.
Of course there are numerous examples in military history in which irregular combatants have been recognized as combatants by the enemy, without any public authorization of the kind; thus in the latest wars of North America, Switzerland, and Italy, and also in the case of the campaign (without any kind of commission from a State) of Garibaldi against Naples and Sicily in the year 1860. But in all these cases the tacitly conceded recognition originated not out of any obligatory principles of international law or of military usage, but simply and solely out of the fear of reprisals. The power to prevent the entrance on the scene of these irregular partizans did not exist, and it was feared that by not recognizing their quality as combatants the war a cruel character might be given, and consequently that more harm than good might result to the parties themselves. On the other hand there has always been a universal consensus of opinion against recognizing irregulars who make their appearance individually or in small bands, and who conduct war in some measure on their own account (auf eigene Faust) detached from the army, and such opinion approves of the punishment of these offenders with death.
This legal attitude which denies every unauthorized rising and identifies it with brigandage was taken up by the revolutionary armies of France towards the insurrection in La Vendée, and again by Napoleon in his proceedings against Schill and Dörnberg in the year 1809, and again by Wellington, Schwarzenberg, and Blücher, in the Proclamations issued by them in France in the year 1814, and the German Army adopted the same standpoint in the year 1870–71, when it demanded that: “Every prisoner who wishes to be treated as a prisoner of war must produce a certificate as to his character as a French soldier, issued by the legal authorities, and addressed to him personally, to the effect that he has been called to the Colors and is borne on the Roll of a corps organized on a military footing by the French Government.”
Modern views.
In the controversies which have arisen since the war of 1870–71 over the different questions of international law and the laws of war, decisive emphasis has no longer been placed upon the question of public authorization, and it has been proposed, on grounds of expediency, to recognize as combatants such irregulars as are indeed without an express and immediate public authorization, but who are organized in military fashion and are under a responsible leader. The view here taken was that by a recognition of these kind of irregular troops the dangers and horrors of war would be diminished, and that a substitute for the legal authorization lacking in the case of individuals offers itself in the military organization and in the existence of a leader responsible to his own State.
Moreover the Brussels Declaration of August 27, 1874, and in consonance with it the Manual of the Institute of International Law, desire as the first condition of recognition as combatants “that they have at their head a personality who is responsible for the behavior of those under him to his own Government.”[42]
The German Military View.
Considered from the military point of view there is not much objection to the omission of the demand for public authorization, so soon as it becomes a question of organized detachments of troops, but in the case of hostile individuals who appear on the scene we shall none the less be unable to dispense with the certificate of membership of an organized band, if such individuals are to be regarded and treated as lawful belligerents.