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Extract from WAR RIGHTS ON LAND by J.M. Spaight (London: Macmillan & Co., 1911)

CHAP. III (QUALIFICATIONS OF BELLIGERENTS)

pp. 37-39

. . . sentiment, not only will no harm befall them, but, on the contrary, they will be protected in person and property and allowed the free exercise of their religion. {NOTE: Ariga, op. cit. p. 17.}

The separation of armies and peaceful inhabitants into two distinct classes is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has been incalculable. One must read the history of ancient wars, or savage wars of modern times—such as Chaka's campaigns, by which he made the Zulu name terrible throughout northern Natal—to appreciate the immense gain to the world from the distinction between combatants and non-combatants. But if populations have a war right as against armies, armies have as strict a war right as against them. They must not meddle with fighting. The citizen must be a citizen and not a soldier. Wellington told the inhabitants of southern France in 1814 that he would not allow them to play with impunity the part of peaceful citizens and of soldiers, and bade them go join the ranks of the French armies if they wished to fight. {NOTE: See an admirable paper, On the Relations between an Invading Army and the Inhabitants, etc. by H. R. Droop, in the Papers of the Juridical Society, Vol. III, pp. 712-3. See also the Proclamation of 1st April, 1814, quoted by Sir E. Creasy, First Platform of International Law, p. 480.} It may be said broadly that there is no room in modern war for the resistance of unorganised inhabitants. They have had their chance of joining the armed forces of their country, and if they have not done so, then they must loyally play their part as citizens. For a while their duty to their country must remain in abeyance; with the invader comes the reign of war law, and war law has a short shrift for the non-combatant who violates its principles by taking up arms. "The civilian who kills without being bound to do so, and thereby wipes out the line of demarcation (between soldier and inhabitant), cannot be disarmed except by death. The condition of a prisoner of war does not exist for him: he must be annihilated in the interests of humanity." {NOTE: Moritz Busch, op. cit., Vol. II, p. 207. Professor Holland remarks (Studies in International Law, p. 73) that there are two reasons for not allowing the population of an invaded country to take part in the war: (1) guerilla warfare has an inevitable tendency to develop into cruelty; (2) if a military commander protects the inhabitants he must be assured that they do not cut off his stragglers or fire on his detachments.} Though the sparing of a peaceful population is a fairly modern growth in war usage, the refusal of combatant rights to non-military people is almost as old as history: it is mentioned in the De Officiis. {NOTE: See Boyd's Wheaton, International Law, (2nd edition), p. 428.} The idea may be traced from the existence of a peculiar warrior caste in ancient times, through feudalism, with its men-at-arms, jealous of encroachment on their specialised pursuit, to the modern principle of the division of labour, developing a trade-unionism in fighting which would exclude all but professional or semi-professional forces from interference in war. "It is manifest," says Kipling's Umr Singh, Sikh of the Khalsa, trooper of the Gurgaon Rissala, type and spokesman of a breed of fighters, "it is manifest that he who fights should be hung if he fights with a gun in one hand and a purwana [a permit given to non-combatants for their protection] in the other." There is a whole chapter of war law—its history and its principle—epitomised in his words. To-day the refusal of belligerent rights to unorganised populations has a justification which it lacked in ancient times and those who claim for every citizen the right to take arms at his pleasure against an invader, are really striking at the roots of all clean and civilised war.

The name of the little French town of Bazeilles, south of Sedan on the road to Montmédy, will always be associated with the war law regarding resistance by unorganised populations. There has been much discussion and, no doubt, much false witness as to what happened there on the 1st September, 1870. The German official History of the War states that the inhabitants took an active part in the struggle which raged in and about the village, and that they spared neither the wounded nor the stretcher-bearers, so that "the Bavarians found themselves eventually compelled to cut down all inhabitants found with arms in their hands." {NOTE: German official History (English translation), Part I, Vol. II, p. 316.} Whether, as the Germans alleged, the inhabitants burnt the helpless Bavarian wounded alive, pouring hot oil over them before carrying them into the blazing houses, which had been lighted by the German shells; or whether the Bavarians bayonetted old men and women in their beds and threw infants into the burning houses {NOTE: See Hozier, Franco-Prussian War, Vol. I, pp. 429-31; Cassell's History, Vol. I, pp. 95-8, 154; Vol. II, pp. 561-2; Busch's Bismarck, Vol. I, pp. 168-70}; there can be no doubt of the accuracy of two statements, namely, that the village folk resisted the Bavarians arms in hand, and that the Bavarians exacted a heavy vengeance in consequence. The town was made fuel of fire—reduced to the condition of Pompeii, says Sir Harry Hozier—and the bodies of the dead were left to burn where they lay. General Phil Sheridan saw the black ruins and smelt the odour of the burning flesh next day. {NOTE: Sheridan's Personal Memoirs, Vol. II, pp. 411-12. Bismarck spoke to him of "those burning Frenchmen—ugh!"} The Daily News correspondent relates that he saw "the charred corpses of the women and the tender little ones—a sight I dream of to this day, and wake in a cold sweat of horror." {NOTE: Daily News War Correspondence, p. 190.} To point the moral and make it clear that the destruction was not merely the unconsidered act of a maddened soldiery, a German Proclamation of the 29th September spoke of "the sentence executed against the village in virtue of the law of war." {NOTE: Cassell's History, Vol. I, p. 154.} It is not too much to say that the incident sent a thrill of horror through Europe. But extreme as the punishment was, the inhabitants had undoubtedly broken the law of war in joining in the street fight, and the Bavarians had a clear war right to deal summarily with those taken red-handed in action. Ten years before, a well-informed writer in Blackwood's Magazine {NOTE: Vol. 88, p. 612 (1860)} pointed out that attacks by the inhabitants of an invaded country directed against the hostile troops would recoil with terrible effect upon their own heads. "Men, women and children sacrificed, the innocent as well as the guilty, houses burned and property plundered and devastated—are all considered legitimate retribution for acts of aggression by an unorganised population." When one of Sheridan's officers was murdered, in October, 1864, with the connivance of the inhabitants of the Shenandoah Valley, an invaded territory, he gave orders for all houses within an area of five miles to be burned. {NOTE: Sheridan's Memoirs, Vol. II, pp. 50-2. When a few houses had been burnt, Sheridan ordered the devastating work to be stopped, but he carried away all the able-bodied males as prisoners.} In the . . .

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