But the organization of irregulars in military bands and their subjection to a responsible leader are not by themselves sufficient to enable one to grant them the status of belligerents; even more important than these is the necessity of being able to recognize them as such and of their carrying their arms openly. The soldier must know who he has against him as an active opponent, he must be protected against treacherous killing and against any military operation which is prohibited by the usages of war among regular armies. The chivalrous idea which rules in the regular armies of all civilized States always seeks an open profession of one’s belligerent character. The demand must, therefore, be insisted on that irregular troops, although not in uniform, shall at least be distinguishable by visible signs which are recognizable at a distance.[43] Only by such means can the occurrence of misuse in the practise of war on the one side, and the tragic consequences of the non-recognition of combatant status on the other, be made impossible. The Brussels Declarations also therefore recommend, in Art. 9 (2 and 3), that they, i.e., the irregular troops, should wear a fixed sign which is visible from a distance, and that they should carry their weapons openly. The Hague Convention adds to these three conditions yet a fourth, “That they observe the laws and usages of war in their military operations.”
The Levée en masse.
The Hague Regulations will not do.
A short way with the Defender of his Country.
This condition must also be maintained if it becomes a question of the levée en masse, the arming of the whole population of the country, province, or district; in other words the so-called people’s war or national war.[44] Starting from the view that one can never deny to the population of a country the natural right of defense of one’s fatherland, and that the smaller and consequently less powerful States can only find protection in such levées en masse, the majority of authorities on International law have, in their proposals for codification, sought to attain the recognition on principle of the combatant status of all these kinds of people’s champions, and in the Brussels declaration and the Hague Regulations the aforesaid condition[45] is omitted. As against this one may nevertheless remark that the condition requiring a military organization and a clearly recognizable mark of being attached to the enemy’s troops, is not synonymous with a denial of the natural right of defense of one’s country. It is therefore not a question of restraining the population from seizing arms but only of compelling it to do this in an organized manner. Subjection to a responsible leader, a military organization, and clear recognizability cannot be left out of account unless the whole recognized foundation for the admission of irregulars is going to be given up altogether, and a conflict of one private individual against another is to be introduced again, with all its attendant horrors, of which, for example, the proceedings in Bazeilles in the last Franco-Prussian War afford an instance. If the necessary organization does not really become established—a case which is by no means likely to occur often—then nothing remains but a conflict of individuals, and those who conduct it cannot claim the rights of an active military status. The disadvantages and severities inherent in such a state of affairs are more insignificant and less inhuman than those which would result from recognition.[46]
CHAPTER II
THE MEANS OF CONDUCTING WAR
Violence and Cunning.
By the means of conducting war is to be understood all those measures which can be taken by one State against the other in order to attain the object of the war, to compel one’s opponent to submit to one’s will; they may be summarized in the two ideas of Violence and Cunning, and judgment as to their applicability may be embodied in the following proposition: