The United States has had experiences with guerrillas during and following the Civil War and in the Philippines. In this century, we have witnessed the use of guerrilla type forces by Lawrence’s Arab troops in World War I, by Tito’s partisans, and the French resistance forces in World War II.
We have seen the deliberate use of guerrilla or irregular forces in open or declared war between nations at war. Guerrilla type forces were used in the Franco-Prussian War, and in World Wars I and II.
More recently we have seen the use of guerrilla forces by a nation to foment insurrection and disorder in another nation. In this type of struggle, there is no declared war, and frequently no real status of insurgency. The sponsor of the conflict acknowledges no responsibility for the forces it has organized and supplied.
The very nature of guerrilla warfare raises a question as to its legal status under international law of captured guerrillas. The object of the regular forces and of counter-guerrillas is to wipe out the guerrillas. This is most easily done by killing them and destroying any base of operations they may have. In fighting guerrillas the use of counter-guerrilla forces who operate in a manner similar to the regular forces is often necessary. Because of the fluidity of guerrilla movements, an organized force finds it difficult to establish contact.
The increased reliance of governments on the use of—or aid to—guerrilla troops as an instrument of warfare, raises a question as to whether a new look at the status of such troops in relation to the conventional rules of warfare is required. Conditions of modern warfare, with its usually indefinite fronts, with detached units operating over a wide area, and with the supply train often separated from the regular troops make guerrilla tactics particularly valuable. Over the horizon is the potential use of tactical atomic weapons. The smaller forces required in the use of such weapons may make units operating apart from the main force particularly vulnerable to guerrilla action.
Unfortunately, bandits and outlaws often take advantage of war conditions to steal, pillage, and kill. Usually they are indiscriminate as to the side they attack, but sometimes they are criminals favoring only one side in the conflict. It is not the purpose of this article to deal with this type of brigand (other than to state that such types are criminals, subject to the usual laws of the nation in which they operate and also punishable under the laws of war by either of the belligerents); but to distinguish between them and guerrilla forces that are instruments of warfare by a recognized belligerent.
It should also be noted that guerrilla warfare should not be confused with “guerrilla tactics” used by formal armed forces. These latter are as members of the armed forces entitled to be treated as prisoners of war. In the U. S. Army General Order No. 100 of 24 April 1863 it was stated:
So soon as a man is armed by a sovereign government, and takes the soldiers’ oath of fidelity, he is a belligerent; his killing, wounding or other warlike acts, are not individual crimes or offenses.
In the 19th century, measures to provide protection for non-combatants and as much humane treatment as possible for prisoners of war were given formal consideration. At the Brussels Conference in 1874, many nations expressed an unwillingness to regard guerrillas as international criminals. Those nations which had been often invaded insisted that the people had a right to take military action against an invader, even in occupied territory. The protected status accorded members of a levee en masse in Article 10 of the Brussels Declaration was a result of these sentiments.
At the conference, it was recognized that population of a state is divided into three categories in time of war: the regular army, the irregular units which have not had time to be assimilated into the army, and the peaceful non-combatants. This conference took place immediately after the Franco- Prussian War, when wars were normally fought in ranks from fixed lines, and by some it was even considered a war crime for an individual, such as a sniper, to kill an enemy unless he was close enough to the regular lines to be considered a part of them. Uniforms were bright and little effort was made to camouflage troops or troop movements. War was regarded as strictly a conflict between armies in the field. Consequently, proposals for the protection of civilians who might rise against the enemy, or for irregulars or guerrillas, were regarded as a barbarous departure from the rules and customs of war. It was said that if these were accorded the rights of prisoners of war there would be no sanctions against anyone fighting and the result would be retrogression to the barbaric age when all enemies were killed. Partisans, considered part of the regular forces, were customarily protected as being part of the army. Their status was stated by Francis Lieber, authority on military law.
Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured they are entitled to all the privileges of the prisoners of war.
In the final draft of the Brussels Declaration, Article 9 stated:
The laws, rights and duties of war are applicable not only to the army, but likewise to militia and corps of volunteers with the following conditions: (1) That they have at their head a person responsible for his subordinates; (2) That they wear some settled distinctive badge recognizable at a distance; (3) That they carry arms openly; and (4) That in their operation they conform to the laws and customs of war. In those countries where the militia form the whole or part of the army, they shall be included under the denomination of “army.”
It is worthy of note that the Brussels Conference also stated:
The population and those who are fighting remain under the protection and influence of international law so long as they adhere to the customs, laws of mankind, and demands of social conscience established among civilized peoples.
While this statement could apply to guerrillas, they have not been accorded a protected status in international law. Yet in no treaty or convention have they been declared criminals under international law. Patriots in their own country are, however, usually treated as criminals rather than as soldiers by the enemy.
In the Hague Regulations of 1899 and 1907, the principles set forth in the Brussels Declaration were substantially adopted in Conventions generally accepted by all nations.
The conditions set for the protected status of “prisoner of war” for combatants were not such as to make it probable that a guerrilla could conform to them. Before he could be even a recognized combatant, there had to be some sort of government for which he was fighting, though Communist countries maintain the right of a “people’s war” without necessity for an organized government. The type of government recognized depends on the whim of the belligerent. The Germans refused to recognize any government as existent in occupied territories. In the Franco-Prussian War, volunteer groups, known as francs-tireurs, harassed the invaders. One corps had papers from the French Government with commissions for their officers. But most of the francs-tireurs had no specific authority from the government, wore no uniform except an easily detached badge of some sort, and their chiefs were not commissioned or responsible to higher authority.
In World War II, Hitler’s government refused to recognize the belligerent status of Tito’s partisans and of the Free French forces and executed many persons as criminals who were certainly regarded as patriots by their countrymen.
In the Boer War, the British in 1900 proclaimed that those resisting the British forces would be treated as rebels. The British acknowledged the belligerency only of forces organized prior to the proclamation. Marauders were declared punishable by death; but it was apparently difficult to distinguish between marauders and burghers fighting for their government, and most punishments consisted of burning farms or banishment.
The Japanese gave guerrillas and popular resistance movements short shrift in World War II. In the Philippines, a captured battle order directed “Shoot guerrillas. All who oppose the Emperor . . . will be killed.” The United States has had experience with guerrillas. In the Civil War distinction was made between partisans and guerrillas. Both the South and the North seem to have given encouragement to some guerrilla bands. There were many instances of guerrillas being sentenced to death when they did not have military orders or status. Lieber’s Code provided:
Men or squads of men who commit hostilities . . . without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits divesting themselves of the character or appearance of soldiers—such men, or squads of men, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
After the surrender of General Lee and General Johnston, those who continued armed resistance were treated as outlaws.
In the Philippine Insurrection following cession of the Islands by Spain, the Aguinaldo government continued in existence and openly sanctioned guerrilla warfare. The United States distinguished between guerrillas who were acting for the government, according such the status of prisoners of war; and guerrillas who engaged in hostilities without sanction, treating the latter as outlaws. One official report of General MacArthur stated:
Of course everything is being done consistent with American civilization and the laws of war to terminate the crisis in its present form. . . . The bands of insurgent guerrillas are not soldiers in the true sense of the word, but it is a mistake to classify them as ladrones or armed robbers. There is considerable evidence of record to the effect that the insurgent leaders have themselves suffered at the hands of the latter, who are outlaws pure and simple.
In the recent revolution in Cuba, Castro demonstrated that guerrilla action can be a holding one until the time is ripe for a strong move against a weak and unpopular government. The pre-existing government treated Castro’s men as outlaws and never recognized them as insurgents.
One recent development in international law is worthy of note. In the war crimes “hostages” trial, guerrillas were likened to spies; and it was stated that the enemy punished such persons not because their activities were illegal under the laws of war but because of the danger that they presented to the success of his cause.
When the Geneva Conference on Prisoners of War met in 1949, the problem on the status of guerrillas and partisans was well known. In the Convention which was adopted, the preexisting rules prerequisite to a prisoner-of-war status were re-affirmed. Article 4 of the Convention states that the following shall be prisoners of war:
(2) Members of other militias and members or other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
Article 5 of the Convention provides that all persons who have committed belligerent acts shall be under the protection of the Convention “until such time as their status is determined by a competent tribunal.” This does not mean they are guaranteed a trial on the merits but only as to their status. While it is generally considered that they should not be condemned without a trial on the merits, such decision is left to the captor and his laws.
Under the laws of war now generally accepted, the status of guerrillas is still what it was under the customary international law. If they can meet the conditions of the Prisoner of War Convention, they are entitled to a protected status. If they cannot, they are subject to the laws of the captor.
It is evident that true guerrillas will seldom be able to meet all the conditions set forth; for they depend largely on the clandestine nature of their operations for success.
Provided they have a government to be responsive to, they may be commanded by a responsible person, acting under authority; and they may comply with all the laws of war, but if they are to survive and succeed, they cannot afford to bear arms openly nor wear a distinctive badge or uniform at all times. In fact, Article 4 of the Prisoner of War Convention does not really establish rules for guerrillas, but rather for volunteers who establish organized resistance to an invader or a conqueror.
All the history of guerrillas indicates their dependence on the ability to disappear and at times merge into the population and appear as peaceful citizens. Guerrilla forces who conform to the requirements of the Geneva Convention would be subject to the same restrictive conditions as conventional forces employing guerrilla tactics—and if conventional troops employ guerrilla practices too far they may lose their protected status.
The same thing may be true of counterguerrillas. Of course, if the instruments of counter-guerrilla action are forces organized as guerrillas, they would have the same status. If they are—as they usually are—regular forces operating to eliminate guerrillas, then they are protected persons under the law, unless their acts are such as to deprive them of that status.
A related problem is that of the status of “volunteer” units of nations other than those at war and of national units of an otherwise neutral nation which fight for one side in a conflict. There seems to be a developing tendency for such actions. In the Spanish Revolution, German and Italian soldiers fought for Franco and some Russian soldiers for the existing government. In the Korean conflict the Chinese “volunteers” were well known. Now in Laos and South Vietnam there are “volunteers” from outside engaged in hostilities.
In all of these cases, the status of such volunteers is that of the forces which they assist, unless their native country openly acknowledges intervention. So long as it does not, “volunteers” are either regular troops of the side they assist or are guerrillas if they cannot meet the conditions of the Geneva Convention.
The conditions and methods of war change. Combat uniforms today are designed to conceal rather than disclose the soldiers. The drawn battle line has disappeared due to the mobility of forces. There is doubt today of the significance of a uniform or even a distinguishing badge as a means of identification from any distance. They only become important to determine status after capture. A card or “dog tag” identification will accomplish the same purpose.
Those countries that follow the Communist ideology openly subscribe to the right of “the people” to wage war. This doctrine apparently extends to the right of the people of one country to intervene in the affairs of another or to aid openly one faction within a country. Unless some form of at least neutralizing action is taken by the democratic countries, nation after nation may be brought into the Communist Camp by forceful subversion from within. No big war is needed. The conflict is kept as an internal affair, with the actors who supply the sinews of insurgency and pull the strings for the puppets remaining neutral and loudly condemning any aid to the side they oppose as “intervention.”
In such situations, it is possible that guerrilla forces, regular forces who operate in the manner of guerrillas, and counter-guerrillas, may be the actual instruments of warfare. A re-evaluation of the laws and customs of war relating to guerrillas becomes important and perhaps necessary to preserve some humanity in armed conflict and prevent a return to barbaric methods. The treatment of guerrillas by one side invites like treatment by the other; and if there are no generally accepted rules, it is likely that the more severe treatment may prevail.
General MacArthur in the Philippines followed a more humane course of treating guerrillas. Many writers on International Law have—while acknowledging the right of the captors to treat guerrillas as they wish—urged a more humane approach. McNair’s edition of Oppenheim’s International Law states:
It is, however, advisable (that the captor should treat true guerrilla forces as soldiers) that he should do so, so long as they are under responsible commanders and observe the laws and usages of war. For I can see no advantage in treating those bands as criminals, and no reason why they should be so treated, although in strict law it could be done.
Many other recognized authorities on international law share this view.
Our Supreme Court in the Prize Cases, in 1862, stated:
The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war.
Should not this philosophy be extended to cover guerrillas if they are instruments of action of a belligerent? Provided there is some sort of government, even if only insurgent or revolutionary, and there is a commander responsible to such authority, guerrillas who carry some identification as a member of such forces, who conform to the laws of war and do not commit war crimes could be safely accorded some protected status. Their status becomes important only after capture, when they are no longer effective. The only reasons for summarily executing them or treating them other than as prisoners of war are to deter others or because of the difficulty of holding them as prisoners. As to the first, history has shown that no practical deterrence exists. The soldier who serves his country risks death in battle; the patriotic guerrilla freely risks death in battle or if captured. The second reason is the more practical one but cannot well stand the test of humane action; for it is no different (except in degree of necessity) from the principle of allowing regular forces to destroy prisoners because holding them is a burden and interferes with operations.
To require that a person carry arms openly and constantly, or wear an identifiable badge or uniform, is to deny the legality of use of guerrilla forces and subject them to possible penalties that today may be considered inhumane and unnecessary and is perhaps unrealistic in the light of the methods and tactics of regular forces acting as rangers or commandos. If guerrillas unnecessarily kill, pillage, rape, and otherwise violate the laws of war, they can be punished as war criminals, just as regular forces may. This would seem to be a sufficient deterrent to illegal acts.
If as individuals or as small groups they act as spies, they may be treated as such. If they act as saboteurs on their own and not as an organized expedition, they can be treated as such.
Nevertheless, there will always be a reluctance to accord any protected status to guerrillas. Such irregular forces are a continual source of harassment to the commander of regular troops. The very difficulty of their detection and capture leads to a desire for summary execution of any who are captured; but in the light of reason and humanity, there seems little justification for such action. Perhaps a compromise which would accord them the general rights of prisoners of war but make them subject to some punishment short ol death and within the bounds of humane treatment, will be the solution of a problem that is almost certain to arise often in armed conflict in this century.