A different question arises when the ordinary untrained inhabitants of a non-occupied district rise at the approach of an invader, and either alone or in conjunction with regular troops endeavor to beat him off. This is the commonest case and that about which the most marked difference of opinion exists. At the Conference of 1874 the smaller powers contended almost passionately for its legality. The Delegate of Belgium declared that to the patriotism which inspired such risings "all the states here represented owe those pages of their history of which they are most proud." After long discussion it was agreed that "the population of a non-occupied territory, who on the approach of the enemy, of their own accord take up arms to resist the invading troops, . . . shall be considered as belligerents if they respect the laws and customs of war." These words form part of Article 10 of the Code which received the assent of the Conference.1 It was rightly deemed that the masses of a popular levy would be sufficient evidence of their own hostile character, even though no badges were worn by the individuals of whom they were composed. A case apart from all the others, and least likely of any to be treated with leniency, occurs when the inhabitants of occupied districts break out into a general insurrection against the invaders. The army of occupation is obliged for the sake of its own safety to treat such insurgents with the utmost severity. The Code of the Brussels Conference is silent on the subject of the fate in store for them, and so is the Manual of the Institute of International Law, while Article 85 of the Instructions for the Armies of the United States renders them liable to the death penalty under the name of "war-rebels." At Brussels the constant conflict between the views of the great military powers and the secondary states became more marked than usual when their treatment was discussed. The German Delegate wished to subject them by express enactment "to the laws of war in 1 British State Papers, Miscellaneous, No. 1 (1875), pp. 255, 321. force in the occupying army." But the representative of the Netherlands stoutly objected on the ground that "to deliver over in advance to the justice of the enemy those men who from patriotic motives and at the risk of their lives expose themselves to all the dangers consequent upon a rising, would be an act which no government would dare to bring forward." In consequence of this disagreement no mention was made of the case in the projected military code; but there can be no doubt that the invader is allowed by the laws of war to treat all concerned in such risings as unauthorized combatants. Indeed this proposition was not seriously controverted. The objections raised were directed against any verbal recognition of it which would seem tantamount to a surrender of high-souled patriots by their own government to the enemy's executioners. § 221. We pass on to deal with the employment of Savage troops. They may be embodied, drilled and disciplined, as soldiers in the regular armies of civilized powers, or they may be used as allies and auxiliaries, organized in their own way and under the command of their own chiefs. In the latter case the amount of control which can be exercised over them is very small; and it is much to be wished that International Law could prohibit the acceptance of assistance from such unsatisfactory allies. But nothing of the kind has been done. Civilized states receive without scruple the aid of savage tribes in their warfare with barbarous or semi-barbarous foes. In their Tonquin expedition of 1883-1884 the French employed "Yellow Flags" against the hostile "Black Flags." In the numerous "little wars' carried on by the British in Africa the proceedings of “friend1 British State Papers, Miscellaneous, No. 1 (1875), p. 263. lies" form an almost invariable incident of every struggle, and the United States are glad to accept the services of Indians who will fight against their brothers in the fierce warfare of the Western plains. Even when both the principal belligerents are civilized, they have sometimes made use of barbarian auxiliaries in their struggles. Throughout the last century the English and French habitually employed Red Indian Tribes in their North American wars. The British let them loose against the revolted Colonists, and the Colonists did their best to turn them against Great Britain. The Russians sent Circassians into Hungary in 1848, and the Turks flooded Bulgaria with Bashi-Bazooks in the war of 1877. Each of these instances gave a greater shock to the civilized world than its predecessor; and we may perhaps venture to hope that the force of enlightened opinion will before long compel the leading members of the family of nations to refrain from putting savages or semi-savages into the field, unless their foes themselves are barbarians.1 For the disuse of savage allies in these latter cases we shall probably have to wait till the feeling of human brotherhood has grown much stronger than it is to-day. There can be no doubt about the legality of taking recruits from barbarous races and forming them into troops and regiments. If they are placed under military discipline, organized as part of the army of a civilized state, and led by civilized officers, they may be used without the slightest violation of the laws of war. The United States have their red-skinned cavalry, the French their Turco brigades, the British their Indian army. There is hardly a power possessed of a colonial empire, or ruling over martial races, which does not enrol native troops. International Law neither forbids their enlistment nor places limitations upon their employment. It would certainly be humane to reserve them for use against border tribes and in warfare with people of the same degree of civilization as themselves. But no such restraints at present exist, and Europe may yet have to pay the penalty 1 In the South African war of 1899-1900, both sides abstained from using the various native tribes who were anxious to take part in the conflict. for its remissness by suffering the horrors of a struggle for the Empire of the East, in which Hillmen from the Himalayas, Usbegs from Central Asia, and Arabs from Algeria work their will upon its brightest provinces and most defenceless populations. § 222. We must now consider the legality of Spies. They are defined in Article 19 of the Brussels Code as "those who acting secretly or under false pretences, collect or try to collect information in districts occuSpies, pied by the enemy with the intention of communicating it to the opposing force." Article 22 declares that soldiers who have penetrated within the enemy's lines without concealing or disguising their military character are not to be considered as spies, neither are "military men (and also non-military persons carrying out their mission openly) charged with the transmission of despatches either to their own army or to that of the enemy.' It also excludes individuals sent in balloons to carry despatches or perform other services. Article 20 lays down that "a spy, if taken in the act, shall be tried and treated according to the laws in force in the army which captures him," and Article 21 adds that the treatment of a prisoner of war is to be accorded to the spy who, after carrying out his mission, and rejoining the army to which he belongs, is subsequently captured by the enemy. These rules embody the best and most humane modern practice, and indeed go somewhat beyond it in insisting upon a trial of the captured spy, who is often shot or hanged on the spot with scant ceremony. They further mark the definite abandonment of the strange theory adopted by the Germans during the siege of Paris in 18701871, that those who reconnoitred from balloons were guilty of espionage and therefore liable to the penalty of death. The law on the subject of spies is clear and undisputed. They may be used, but they take their lives in their hands when they venture upon their secret missions. Here we might leave the subject, were it not that certain statements found in the works of many text-writers cannot be allowed to pass without challenge. Their authors seem to imagine that to be a spy is necessarily dishonorable. They, therefore, assert that a sovereign has no right to require or even to ask for such a service from his subjects, though he may accept it if voluntarily offered; and some of them doubt whether he is not tainted with dishonor if he holds out inducements and rewards in order to encourage people to obtain for him secret information.1 These statements show great confusion of thought and judgment. Some spies are double traitors who sell their own side to the enemy for money, and then in turn sell the enemy by giving him false intelligence. They are among the vilest of mankind; and only slightly below them in villainy come those who keep their disgraceful bargain, and are content to be guilty of treachery without the addition of fraud. But there are others who risk their lives in order to obtain by secret means information of the greatest value to their own side; and they are perfectly honorable as well as courageous men. What moral obliquity can there be in penetrating within the enemy's lines disguised as a pedler, and furtively sketching his batteries? Military men know well enough that there are spies and spies; and when they stop to think they soon perceive that some kinds of spy-service deserve to be regarded as highly meritorious. This point is brought out in a significant passage in Napier's Peninsula War.2 The author, in describing how admirably Wellington was served in the matter of information, says: "He had a number of spies among the Spaniards who were living within the French lines; a British officer in disguise constantly visited 1 e.g. Vattel, Droit des Gens, Liv. III., § 179; Halleck, International Law, Ch. XVIII., §§ 26, 28. 2 Vol. IV., Bk. XIV., pp. 220–221. |