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Questions of Guerrilla Warfare in the Law of War†

Published online by Cambridge University Press:  20 April 2017

I. P. Trainin
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Extract

The history of war knows no such brigandage, fanaticism, or such craftiness as the German fascist usurpers practiced from the moment of their attack upon the peoples of other states. The rules and customs relating to the conduct of war, recognized by all civilized peoples, were rejected and trampled under foot by these usurpers. These rules and customs relating to the conduct of war, put together in the course of many centuries, have received the title “the law of war” and constitute an inseparable part of international law.

Type
Research Article
Information
American Journal of International Law , Volume 40 , Issue 3 , July 1946 , pp. 534 - 562
Copyright
Copyright © by the American Society of International Law 1946

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Footnotes

*

Academician; Director, Institute of Law, USSR Academy of Sciences.

†

Translated by Dr. John N. Hazard from original published in Izvestiya Akademii Nauk, S.S.S.R., Otdelenie ekonomiki i prava, No. 4 (1945). Republished by permission.

References

1 Interview of Stalin with the President of the American newspaper combine, the “ Scripps-Howard Newspapers,” Roy Howard.

2 Between 1815 and 1910, that is during a period of 95 years, there were 148 different international meetings. Ten of these were held during the first half of the nineteenth century, and ninety in the first ten years of the twentieth century.

3 F. Martens, Contemporary International Law, 1896, p. 528. Another well-known Russian lawyer, N. Korkunov, wrote against this statement of Martens, as follows: “ Mr. Martens bases his thought upon two arguments as to the nature of war and the uselessness of defense by the people. He argues that war is a relationship between states, the legal organ and representative of the state is the government and only the government. Therefore, only the governments’ troops can be enemies under the law. Professor Martens overlooks the fact that a war takes on the character of a people’s war only when these troops are inadequate. The lack of power in a government is not always the same thing as the lack of power in a state, and it would be strange to contend that a population having enough power to preserve its independence has no right to do so, and, on the contrary, a powerless government is required to forbid it to defend itself. Can we think seriously that such requests have been carried out at anytime by anybody?” (“ International Law,” a lecture given at the Military Juridical Academy named for N. Korkunov, p. 229.)

4 Marx and Engels, Collected Works (Russian Edition), Vol. 23, p. 75.

5 Same, Vol. 13, p. 174.

6 Giuseppe Garibaldi, My Memoirs, 1931, p. 193.

7 Busch, Graf Bismark und seine Leule, cited in F. Martens, Vostochnaya Voina i Bryusselskaya Konferentsiya, 1879, p. 672.

8 The Brussels Conference sat from July 15 to August 15, 1874. It was a conference solely of European governments (15). There were 32 delegates, of whom 18 were military men, 10 diplomats and 4 jurists. Russia was represented by Baron Jomini, Major General Leer, and Professor of Law Martens. Germany was represented by Major General Voigts-Rhetz, Major General Leonrod, Major Baron Welck, Baron Soden, and Professor Bluntschli.

9 See Martens, above, note 7.

10 L. N. Tolstoi in War and Peace, in connection with the popular resistance of 1812 writes, “ It is thanks to this people, who were unlike the French in 1813 who had saluted in accordance with all the rules of art and had tendered the sword by its hilt, graciously and politely handing it to the magnanimous conqueror, and it is thanks to this people which at the minute of trial, without asking how others in such circumstances acted correctly, with simplicity and ease raised the first club which came to hand and struck with it until in its soul the feeling of outrage and revenge had been replaced by contempt and compassion.”

11 Cited in Martens, above, note 7, supplement, p. 35.

12 Some international agreements on specific questions began to be reached at the end of the 18th century. Thus in 1780 there was published the “Act of Armed Neutrality” which established freedom of navigation for neutral vessels, except for contraband, conditions of legality of a blockade. In 1800 there were added to this Act the rules relating to search of vessels suspected of transporting contraband. In 1856 the Paris Declaration on the law of the sea not only affirmed the Acts of 1780 and 1800 but added a declaration on the abolition of letters of marque. In 1864 there was concluded the “ Geneva Convention concerning soldiers wounded on the field of battle.” In 1868 the Petersburgh declaration was published “On the abolition of the use of explosive and incendiary bullets.”

13 The Brussels Declaration is set forth in its essential parts in the French Manuel de droit international à l’usage des offisers de l’armée de terre.

14 In addition to the European powers there were invited the U.S.A., Mexico, Brazil, China, Japan, Persia, and Siam. Brazil refused to partake in the conference, on the grounds that she had already anticipated the objective of the conference, having reduced the quantity of her armaments and having included in her constitution an article concerning compulsory arbitration. Other American Republics, except for those named, were not invited.

15 Conférence Internationale de Paix, Netherlands Ministry of Foreign Affairs.

16 The Conference declared that the Russian draft required further study.

17 The eminent German military writer, General von Bernhard, wrote in 1912: “Arbitration treaties are especially disastrous for a people which is developing and has not yet achieved the peak of its political and national development, which has to give attention to the expansion of its power in order to perform its cultural tasks.

“Every arbitration tribunal inevitably bases its work on a given political situation, which contemporary law recognizes, and any change, even the most necessary, on which all contracting parties do not agree is looked upon as a violation of law. By means of this impediment to every progressive change a legal position is created which could easily conflict with the development of relations which already exist in fact and block the expansion of the power of a virile state in the interests of a culturally weak state doomed to decadence.”

18 The Declaration in its basic points comes to the following: “Article 1. The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.’

“Article 2. The population of a territory which has not been occupied who, on the enemy’s approach, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerent if they carry arms openly and if they respect the laws and customs of war.

“Article 3. The armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy both have a right to be treated as prisoners of war.”

19 Bluntschli, Gesammelte kleine Schriften, Bd. II, p. 273.

20 In the introduction to the Hague Convention it is said, “It has not, however, been found possible at present to concert regulations covering all the circumstances which occur in practice. On the other hand, it could not be intended by the High Contracting Parties that the unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military Commanders. Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

21 Christian Meurer, Das Kriegsreeht der Haagen konferem, 1907, p. 111.

22 Lenin, Collected Works, 1932 (Russian edition), Vol. 22, p. 18.

23 The USSR once offered for discussion by the powers a draft of a proposal for complete disarmament. After its rejection, the USSR offered a draft of a proposal for partial limitation of armaments (1927–1932), it signed the Kellogg Pact for the outlawry of war (1928), put it into effect with certain western neighbors ahead of its general effective date and concluded non-aggression pacts with several states.

24 Lieber, who demanded in his code that uniforms be worn in order to obtain recognition of belligerents by combatants had to admit that the absence of a uniform in the event of a general uprising was not an excuse to exact punishment: “There are actually cases when the absence of a uniform can be taken as serious prima facie evidence against the captured enemy, but one must remember that uniform clothing is impossible in a general uprising and that there are cases when regular soldiers are left without uniforms at least for an appreciable period. I have seen prisoners, captured at Fort Donaldson: They had no uniforms. It is true that they were dressed in almost similar clothes but these were similar to the clothes of the local village inhabitants. We, however, conducted ourselves with respect to them as with prisoners of war and even very indulgently. ” (Lieber, On guerrillas and guerrilla parties, 1882, p. 15.)

At the Brussels Conference of 1874 the Belgian delegate, Lambremon, found it impossible to demand that a population, rising at a moment of danger to defend the fatherland, should think of supplying itself with distinctive markings.

25 Marx, and Engels, , Vol. 5, p. 12 Google Scholar.

26 Hitler tried to dramatize the “Volkssturm.”

27 Engels, P., Remarks on War, 1941, (Russian edition), p. 178 Google Scholar.

28 Saltikov-Schedrin, , Collected Works (Russian edition), Vol. 14, p. 105 Google Scholar.

29 Marx, and Engels, , Vol. 24, p. 390 Google Scholar.

30 Declaration of the leaders of the three Allied Powers at the Crimea Conference, February, 1945.