Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict

in Journal of the History of International Law / Revue d'histoire du droit international

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

Abstract

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

1 Introduction

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The levée en masse crystallised as a concept during the French Revolution and was a political and pragmatic tool, intended as a call to arms, both literally and metaphorically, to rally the spirits of the French populace who were facing invasion by anti-Revolutionary European armies, and, more pressingly, to forcibly recruit men to the diminished ranks of the French armed forces in order to repel the impending invasions.

The idea of the levée en masse became hugely influential in European military doctrine in the 1800s, so much so that when Francis Lieber was called upon to codify the customary rules of the law of armed conflict for use by the Union Army during the American Civil War,1 he included participants in a levée en masse as a category of lawful combatant entitled to prisoner of war status. Under the Lieber Code, the participant in a levée en masse was not a brigand or criminal, but in reality closer to a soldier undertaking his patriotic duty to defend his homeland from invaders. Participants in levées en masse were thus entitled to combatant status and to treatment as a prisoner of war (pow); they could expect specific protections if captured by the enemy, and could not be prosecuted for their war-like acts.

After inclusion in the Lieber Code, levées en masse continued to be incorporated in the major international documents on the law of armed conflict, including The Hague Regulations of 18992 and 19073 and the Geneva Conventions of 1949,4 with each iteration including more specific and detailed requirements for the raising of a lawful levée. By the time of the Geneva Conventions, the French Revolutionary call to arms to rise in national defence had been transformed into a strict legal category providing combatant rights and responsibilities to inhabitants of a ‘non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war’.5

As the twentieth century unfolded, instances of levée en masse, as defined by the legal instruments, became increasingly rarer. Indeed, since the adoption of the Geneva Conventions, there have been few examples of levée en masse in the twentieth century, and the levée en masse has, in practice, essentially fallen into desuetude. This article will explore the historical development of the concept of levée en masse, how it came to be ‘legalised’ in the international law documents of the late nineteenth century, and examine State practice since its codification. In undertaking this historical survey of the origins and development of the levée en masse, this article seeks to account for how and why the levée en masse came to be conceptualised in the modern law of armed conflict, transformed from a political rallying-call to a strictly regulated legal category.

1 The Origins of Levée en Masse – the American Revolutionary War, the French Revolution, and the Citizen-Soldier

The levée en masse is traditionally associated with the French Revolution: the rising up of the French citizenry to defend their homeland from enemies both within and without.6 However, the levée en masse as decreed by the French likely had its origins, at least conceptually, in the American Revolutionary War against the British nearly 20 years prior. When the war between the British and the American colonists broke out in 1775, American colonists took up arms to defend themselves against British soldiers.7 These ‘citizen soldiers’8 comprised the bulk of the American Continental Army – they were ‘farmers, tradesmen, mechanics, and planters – not soldiers’,9 who expected to return to civilian life once the war was over, rather than make a career in the armed forces.

The American ‘ideal’ of the citizen-soldier was much lauded in contemporary French newspaper publications, which extolled the noble and honourable American citizen-soldier as the defender of liberty and freedom, and opined that the defence of one’s homeland was a patriotic responsibility, a necessary duty of citizenship.10 However, it was in Revolutionary France that the first levée en masse so-called originated.

In order to understand how the first levée came about, it is necessary to understand, even if only in the most basic sense, something of the political and social environment that led to the formation of the levée. Prior to its overthrow during the French Revolution, the Ancien Régime – the aristocracy-based Valois and Bourbon rule of fifteenth to eighteenth century France – maintained its national defence through the French Army. A professional force, the army was not held in particularly high regard by the French populace. Soldiers were generally considered to be of lower social standing, and while the army provided them with a career, there were few prospects for advancement or promotion, especially if they were not from the higher social classes.11 The Army was an unpopular career choice; as such, the Ancien Régime frequently needed to resort to forcible means of supplementing its armed forces, which it achieved through conscription of citizens to the national militia or milice.12 However, the peasantry, from whom the conscription ballot was primarily drawn, resented this forced enlistment,13 especially as the wealthy and privileged were frequently able to buy their way out of national service.14 Upon the outbreak of the French Revolution in 1789, one of the first acts of the new government of the National Assembly was to abolish the milice.15

However, the National Assembly would soon be faced with new crises regarding the armed forces. In the years following the Revolution, the French armed forces experienced a severe diminution in numbers, which could be ascribed primarily to two factors. Firstly, a considerable cohort of the French officer corps remained loyal to the ousted King Louis xvi; some because they were persons of noble status,16 while other officers were loyal to the King (rather than France), as their rank had been acquired (or bought) through royal patronage.17 Secondly, many of the enlisted and lower-ranking men had, in the immediate aftermath of the overthrow of the Ancien Régime, effectively deserted, returning to their homes and farms,18 hoping to somehow counteract the lingering deleterious effects of poor harvests in 1788 and 1789.19 Thus, due to these factors – the loss of the milice, the depletion of officer ranks, and the widespread desertion of the lower ranked and enlisted men – the French armed forces, and thus the French national defence, was in an exceptionally vulnerable position.

This diminution in defence capability was notably problematic for the new French government. In the years following the overthrow of the Ancien Régime, tensions arose both within and outside of France, highlighting the necessity for a strong and cohesive defence force. Within France, political tensions between rival factions within the government threatened to erupt in civil war.20 Externally, France’s royalist neighbours, including Austria, Prussia, Spain, and Britain, hoped to overthrow the revolutionary government and reinstate the monarchy.21 The Republic thus faced powerful and determined enemies, and needed to increase the ranks of the army quickly but had little to offer by way of incentive.

An obvious solution was to reintroduce compulsory national service. However, as noted above, one of the first acts of the National Assembly had been to rescind the unpopular Ancien Régime law conscripting citizens to the milice; the Assembly were thus understandably wary of reinstating such a disliked law. The Assembly therefore had to reposition national service in such a way as to make the populace want to fight. The solution was for the Assembly to call upon able-bodied men to volunteer for the army, situating the call to arms as part of a patriotic, civic duty, rather than a coerced submission to monarchical domination. This was the levée en masse, as outlined in the Decree of 23 August 1793:

. . . from this moment until the enemies are driven out from the territory of the Republic, all Frenchmen are in permanent requisition for service in the army. Young people will go to combat; married men will forge weapons and transport supplies; women will make tents and clothes and serve in hospitals; children will shred old clothes; the elderly will get themselves carried to public squares in order to excite the courage of the warriors, to preach hate of the kings and unity of the Republic.22

This call to arms was a form of total mobilisation of the populace. Though there had been a previous levée that year – the levée des 300,00023 – this levée had the aim of swelling army numbers to 750,000, and was directed at the entire population of France. The public rhetoric surrounding this new conscription utilised the ‘high moral fervour’24 of revolutionary ideology. Joining the armed forces was represented, and largely accepted, as ‘an expression of individual freedom, an internalised social obligation linked to the new ideal of citizenship that the Revolution has also advanced’.25 No longer were France and her people the property of the King and the embodiment of his power: France was instead ‘a community of all people, and the defence of such community was looked upon as a responsibility of all’.26

Public edicts and declarations about the defence of the new republic emphasised the connection between civic responsibility and military service. For example, the Parisian newspaper Révolutions de Paris repeatedly drew the distinction between the revolutionary citizen soldier and the traditional enlisted soldier, imbuing the revolutionary solider with honour and nobility:

[h]ave you forgotten that a man is a citizen who carries his arms only to defend himself, while a soldier sells his liberty to become a slave of those who pay for him? … we don’t need to build up regiments, only a civil guard; we don’t need to create soldiers, only free persons, citizens.27

In positioning the levée en masse in such a way, the Republic managed to invert the idea of military service as an onerous duty imposed from above; instead, it became a communal expression of national identity.28 As such, levée en masse, in its “original” form, was as much a political concept as it was a military strategy. The levée en masse was a significant development in French military history to that point: it was a ‘breaking with centuries of tradition’,29 it transformed the French army from a professional endeavour to a volunteer organisation, and it was so successful that additional recruitment to the armed forces was not needed until the end of the 1790s.30

The levée en masse was to have considerable impact on how other European States devised and implemented military strategy. European leaders, witnessing the ability of France to populate an army with its citizens seemingly in a matter of weeks, also began to draw on the idea of the nation at total war as embodied in the levée en masse. The notion that the army was the site of national identity, and that citizenship was connected to the defence of the nation, were concepts that began to embed themselves in European military strategy. This can be seen in declarations made by European leaders during conflicts in the 1800s – for example, Russian Tsar Alexander i, facing invasion by Napoleonic armies, issued a statement declaring:

The enemy has crossed our frontiers and is continuing to carry his arms into Russia, seeking to shake the foundations of this great power by his might and seductions … We now appeal to all our loyal subjects, to all estates and conditions both spiritual and temporal, to rise up with us in a united and universal stand against the enemy’s schemes and endeavours …31

The levée en masse thus became a part of political and military rhetoric in nineteenth century Europe. Its influence began to spread throughout the Western world, and found its way into the emerging field of codified rules governing the conduct of armed conflicts, discussed in this next section.

3 The Historical Development of Levée en Masse in the International Law of War

By the middle of the nineteenth century, a discernible ‘law of nations’ was developing, one defined by, among other things, multi-lateral agreements and conventions, born out of international diplomacy and conferences.32 States were more frequently coming together to agree on common rules for inter-State interactions. In one particular area was the legal development particularly notable – the law of armed conflict.33 States began to debate the possibility of adopting international laws regulating conduct in armed conflicts, as well as looking to develop and adopt domestic legal codes for their own armed forces. Added to these binding international and domestic legal instruments, non-binding documents such as manuals of instruction were also being produced by interested parties, including academics, practitioners, and legal institutes, who produced such works in the hope of contributing to this further development and codification of the law of armed conflict. It was in these instruments, both binding and non-binding, that the political concept of levée en masse began its incorporation and transformation into the legal principle of granting combatants and prisoner of war rights to civilians who take up arms to resist a foreign army on the brink of invading their homeland. The first document to contribute to this process of “legalising” the levée en masse was the Lieber Code.

3.1 The Lieber Code

The first attempt to codify the laws of armed conflict – at least on a purely domestic level – came about during the American Civil War, as a result of legal advocacy undertaken by American political science professor Francis Lieber. Lieber had lobbied the us Government to implement a set of rules regarding the conduct of the us Union Army during the American Civil War, culminating in his being called to Washington to head up a board of lawyers and military officers, to draft a ‘Code of Regulations for the government of armies in their field, as authorised by the laws and usages of war’.34 The result was the Instructions for the Government of Armies of the United States in the Field, promulgated as General Order No. 100, which would come to be known as the Lieber Code.

The Lieber Code contained 157 articles covering the protection of civilians, treatment of prisoners of war, and rules regarding the public and private property of the enemy. Also included in the Code, in Articles 49, 52, and 53, was recognition of levée en masse. The Lieber Code recognised that the population of a country being invaded by a foreign aggressor had the right to take up arms to defend their homeland and resist the invasion. However, the levée en masse, as envisaged in the Lieber Code, was not a form of public conscription, nor a call to total war for the entire populace. Rather, levée en masse in the Lieber Code provides that:

If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy “en masse” to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.35

Article 52 goes on to state that belligerents are not permitted to deny participants in a levée of the rights that normally accompany prisoners of war.36 However, Article 52 makes it clear that recognition of the levée en masse, and its rights to prisoner of war status, only applies when such levées are raised in unoccupied territory, that the territory under threat remains unoccupied by the enemy, and that those rising up in defence do so ‘on approach of [the] hostile army’.37 Provided these requirements were met, persons participating in a levée en masse could expect to be treated with the full combatant rights and privileges afforded to all soldiers, including the right to treatment as a prisoner of war upon capture. By avoiding characterisation as a “brigand” or “bandit”, a person in a levée en masse would thus be afforded considerable legal protections.38

In granting these rights to participants in levées en masse, Lieber explicitly drew on European history and practice in relation to conflicts. He noted that it was traditional to treat the conquered nation and its people as the property of the conqueror,39 but that since the French Revolution, more States were beginning to acknowledge the right of the people to take up arms to defend their homeland.40 Lieber stated that there seemed to be agreement in the international law literature that ‘the rising of the people to repel invasion entitles them to the full benefits of the law of war … so long as they openly oppose him in respectable numbers, and have risen in the yet uninvaded or unconquered portions of the hostile country’.41 Lieber went on to note that the absence of a uniform should not be considered problematic for participants in a levée en masse; indeed, uniform dress ‘is a matter of impossibility in a levy en masse’.42

Though drafted in the context of a civil war, Lieber was of the belief that his work would be ‘adopted as a basis for similar works by the English, French and Germans’43 in the conduct of their own armed conflicts. His belief was soon affirmed: the Lieber Code was considered ‘so consistent with accepted practice’44 that in the years that followed the end of the American Civil War, a number of States adopted Lieber-style codes for their own armed forces, including Prussia,45 the Netherlands,46 France,47 Russia,48 Serbia,49 Argentina,50 the uk,51 and Spain.52

3.2 The Brussels Declaration of 1874

The decades following Lieber’s Code saw a proliferation of rules and documents regarding the regulation of armed conflicts. One of the first of these came in 1874, when on the initiative of Tsar Alexander ii of Russia, delegates from fifteen European States met in Brussels to discuss the draft of an international agreement concerning the laws and customs of war.53

The question of recognising levée en masse as a form of lawful participation in armed conflict was included in the draft agreement, and was the subject of notable debate during the Conference.54 The initial Russian Draft Declaration included proposed sections on the ‘Rights of Belligerents with reference to Private Individuals’,55 and the relevant provisions relating to levée en masse were first outlined in Articles 45 and 46.56 Article 45 stated that ‘the inhabitants of a district not already occupied by the enemy, who shall take up arms in the defence of their country, ought to be regarded as belligerents, and if captured should be considered as prisoners of war’.57 This provision was essentially in keeping with the Lieber Code and the national military codes previously adopted.

However, the Draft Declaration went further, and outlined in Article 46 that ‘individuals belonging to the population of a country, in which the enemy’s power is already established, who shall rise in arms against them, may be handed over to justice, and are not regarded as prisoners of war’.58 In drawing the distinction between occupied and unoccupied territory and the rights to rise en masse, the Draft Declaration proved notably contentious. Debate between the States was divided between the larger European nations who felt that private citizens should only be safeguarded by the law of war when defending their homeland from imminent invasion, and the smaller European nations who did not, as a rule, maintain large standing armies, and who felt that citizens under belligerent occupation must still lawfully be allowed to rise en masse against their occupiers. For example, the Swiss delegate was concerned that placing restrictions of the rights of peoples to defend their homelands would amount to ‘a kind of moral disarmament proclaimed in advance; it would be a true injustice to citizens’59 and would place the smaller European States, the ones more likely to have to fight defensive wars, at a significant disadvantage.60 However, this was countered by arguments from the German delegate who, while not wishing to curtail absolutely the rights of States to national defence, nonetheless felt that such broad rights of levée would encourage bands of brigands and marauders to operate without sanction or control in territories engaged in armed conflict.61

Progress on the issue stalled during the Conference; indeed, towards the end of the Conference, the Belgian delegate stated that he considered it necessary to have recorded in the written account of the Conference that no conclusion could be reached on the question of whether levée en masse could exist in occupied territory, and thus it must still be governed by the unwritten law of nations.62 Further modifications of Articles 45 and 46 met with resistance63 from the Dutch, Belgian, and Swiss delegates, and it seemed as if no agreement would be reached. Ultimately, following additional redrafting,64 the provision first outlined in Article 45 was moved, and become Article 10, which stated that:

the population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having has the time to organise themselves in accordance with Article 9, shall be regarded as belligerents if they respect the laws and customs of war.65

Other additional elements for a lawful levée were added, building on the Lieber requirements. Firstly, persons participating in a levée must do so “spontaneously” on the approach of the enemy. The requirement of spontaneity entrenched the idea that the levée must originate among the people, rather than on the instigation of the authorities in the territory under threat of invasion. This requirement thus distinguished the “new” conceptualisation of levée en masse from its French revolutionary predecessor. Furthermore, civilians raising a levée en masse must not have had time to organise themselves as a militia or volunteer corps. This requirement placed a time limitation on levées en masse, providing a brief window of opportunity for those who wished to “legitimately” defend their homeland. Again, this restriction further distanced modern levées en masse from being a mobilisation of the populace for war, and entrenched the notion of mass levies as temporary phenomena. This was a direct reflection of contemporary State concerns that to give too wide a definitional scope to levée en masse was to legitimise resistance fighters and rebellion.66 The time limitation placed on levées en masse ensured that should an individual wish to defend his homeland beyond the initial stages of invasion, he would have to do so through appropriate channels, by either enlisting in his country’s armed forces, or volunteering for another authorised force such as a militia, or else risk denial of combatant and prisoner of war status.67 Finally, the Brussels rules added a new element to the levée en masse, namely that participants in a levée en masse must ‘respect the laws and customs of war’. In this way, participants in a mass levy were to be held to the same standards as regular combatants.68

As for Article 46, it would not, at least as first proposed, end up in the final instrument; vestiges of the provision and the debate it sparked found enunciation in Articles 36–39, outlining specific rights and protections for persons in occupied territory. However, there was no specific prohibition adopted regarding the raising of a levée in occupied territory.

As it was, the declaration as finally drafted proved unacceptable to the Conference as a whole, and the Conference closed without adopting a binding instrument. The declaration would, however, go on to have an impact on future parties interested in developing the law of armed conflict. Indeed, less than a decade later, the Brussels Declaration would find new life in a different form – that of the Oxford Manual of the Laws of War on Land.

3.3 The 1880 Oxford Manual on the Laws of War on Land

In the years following the failure to adopt the Brussels Declaration as a binding instrument, the Institute of International Law, an independent, non-governmental scientific instituted dedicated to progressive development of international law,69 continued to examine the laws of armed conflict, in the hope that it might contribute to efforts to further clarify and hopefully codify the law in a binding instrument.70 To that end, in 1880 the Institute adopted and published its Manual of the Laws of War on Land, a codification of the extant rules of international law relating to the conduct of armed conflicts. The Oxford Manual was not intended to be adopted as a treaty,71 but rather an instrument that might serve as a basis for national legislation. Indeed, the stated aim of the Manual was not to propose ‘rash or extreme rules’72 or to put forward ‘innovations’73 in the law, but rather ‘stating clearly and codifying the accepted ideas of our age’.74 In doing so, the Institute made it clear that it was taking into account the passage of six years since the Brussels process, and that ‘since 1874 ideas, aided by reflection and experience, have had time to mature, and because it seems less difficult than it did then to trace rules which would be acceptable to all peoples’.75

The Manual built on the work of the Brussels process, and in Article 2, recognised participants in a levée en masse as lawful belligerents: ‘The inhabitants of non-occupied territory, who, on the approach of the enemy, take up arms spontaneously and openly to resist the invading troops, even if they have not had time to organize themselves’.76 The Oxford definition of levée en masse essentially repeated the terminology used in the Brussels Declaration (non-occupied territory, spontaneity of taking up arms), but introduced a new element to the rule – that those taking up arms must do so ‘openly’.77 Thus, participants in a levée cannot conceal their weaponry, and feign non-participant status.

This requirement of open carriage of arms was a departure from both the Brussels and the Lieber rules – neither instrument explicitly stated that participants in a levée en masse must openly carry arms. However, both the Lieber Code78 and the Brussels Declaration79 (and the Oxford Manual itself)80 prohibit perfidy – through acts such as feigning surrender then attacking once surrender has been accepted, or attacking the enemy ‘while concealing the distinctive signs of an armed force’.81 As such, it is possible to see that the inclusion of open carriage of arms was a logical extension of the requirement that regular armed forces not engage in perfidious acts, or feign a status to which they were not entitled, for the purpose of launching treacherous attacks.

Much like the Brussels Declaration, the Oxford Manual did not outright prohibit the raising of a levée in occupied territory. In the section on the rules regarding occupied territory, the Oxford Manual covers similar territory to that outlined in Articles 36–39 of the Brussels Declaration, affirming the obligations of occupying authorities to maintain the laws in force in the occupied territory82 and affirming, as the Brussels Manual did, that the population of the occupied territory cannot be compelled to swear allegiance to the occupying authority.83 Thus, the question of whether a levée must be limited to non-occupied territory remained unsettled, and would fuel debates on the permissible scope of levée en masse in the next iteration of the law of armed conflict – The Hague Regulations.84

3.4 The Hague Regulations of 1899 and 1907

By the time the Hague Peace Conference was convened in 1899, including levée en masse in regulations regarding armed conflict seemed a given. However, during the Conference, the diplomatic stalemate that was already a feature of the Brussels process also emerged over the issue of persons who resisted an occupying army. Argument was again divided over whether those who used force to resist an invading or occupying army should be treated as legitimate combatants, as the smaller European States desired,85 or criminals or francs-tireurs86 and subject to execution, as the larger European states preferred.87 The impasse was overcome when the Conference agreed to divide the question into two categories.88 Persons participating in a levée en masse were granted legitimacy as combatants in Article 2, which stated that combatant rights would be given to ‘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 time to organize themselves in accordance with Article 1’.89 Persons participating in resistance war in already-occupied territory were not explicitly denied combatant status, but neither were they automatically granted it – the Hague Conference seeming to take the position eventually adopted by the Brussels process, choosing to remain silent on the question of the legality (or otherwise) of an uprising in occupied territory.

However, the Hague Conference did not leave the contentious issue of resistance warfare in occupied territory completely unregulated. Though agreement could not be reached on the question of the status of persons who forcibly resist an occupying army, it was agreed that such persons would not fall outside the scope of international law entirely, but rather that their treatment should be guided by existing international law principles. Thus, in the preamble to the 1899 Convention, it was stated that

It has not … been possible to agree forthwith on provisions embracing all the circumstances which occur in practice … on the other hand, it could not be intended by the High Contracting Parties that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders. Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.90

This preambular clause would come to be known as the Martens Clause, named for its drafter, the Russian delegate to the 1899 Conference, Fyodor von Martens. Martens was concerned that the stalemate over the question of civilian participation in mass levies and resistance warfare could derail the Conference, and result in the failure to adopt any conventions.91 His clause was an attempt, successful as it turned out, to avoid another Brussels-like failure to adopt a binding instrument.

The levée en masse was again included in the Hague Regulations when the second Hague Peace Conference met in 1907. However, in this iteration, Article 2 of Convention (iv) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land seemingly added an additional requirement; that

The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, 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 belligerents if they carry arms openly and if they respect the laws and customs of war.92

Express reference to open carriage of arms had not been included in the 1899 Hague Regulations. As such, it could seem that the 1907 formulation of the levée en masse imposed additional criteria on the category. However, reference to carrying arms openly had been a part of the Oxford Manual relating to levée en masse, and, indeed, the discussions at the 1907 Conference essentially indicate that States at The Hague in 1907, in adopting an amendment to include the term ‘if they carry arms openly’, were merely making explicit what they believed to already be a part of custom to date.93

3.5 The Geneva Conventions of 1949

When the laws of armed conflict were revisited and reassessed in the wake of the Second World War, there was little controversy over including levée en masse in the categories of legitimate combatant – indeed, levée en masse had been included in the 1929 Geneva Conventions,94 which the 1949 Conventions were intended to replace.95 The Conference of Government Experts that met in 1947 to put together draft conventions for consideration at the Diplomatic Conference acknowledged Article 2 of the Hague Regulations of 1907, and remarked that even though levée en masse had ‘almost never occurred during the last war’,96 it was felt that levée en masse should be included in any revision of the law of armed conflict.97

When the draft provision on levée en masse went to the States’ delegates at Geneva in 1949, discussion of levées en masse became connected with the discussion on granting combatant rights to partisan and resistance fighters in occupied territory. One of the delegates from Italy, Adolfo Maresca, argued for an extension of definition of levée en masse, to incorporate situations where a population would rise against ‘the Occupying Power without being organised as a resistance movement’.98 These sentiments were echoed in later meetings by another Italian delegate, Ettore Baistrocchi, who wanted to amend the provision to allow levées to be raised both on the approach of, and ‘in the presence’ of the enemy. Such an amendment would allow for civilians in both occupied and non-occupied territory to resist enemy armed forces. The Italian delegation was concerned that such persons, engaging in armed resistance against an occupier, who had not the time to organise themselves into a properly constituted resistance force, would fall between the protections relating to levée en masse, and those protections being debated regarding resistance fighters (which required a level of organisation among the resistance fighters not required for participants in a mass levy).99

The Italian position was notably similar to a proposed amendment forwarded by the Israeli delegation. The Israeli delegate, Major Arieh Steinberg, suggested extension of the levée en masse definition to include situations where inhabitants, who have taken up arms according to the Article 2 Hague rules on levée en masse, and who continue to resist ‘during the first period of occupation’100 without having had the possibility to organise according to the rules on resistance fighters, should nevertheless continue to be recognised as combatants.

Both amendments were rejected. For both the us and uk, the Italian amendment proved unacceptable, with the us delegate arguing that The Hague Rules, at least in relation to levées, had ‘proved their effectiveness during the last two wars’101 and should thus be retained and not amended, while the uk delegate went further, arguing that to change the parameters for a lawful levée en masse would be to amend the rules accepted at The Hague in 1907 and thus be ‘contrary to the aims which the Committee, entrusted with studying the Civilians Convention, was trying to achieve’,102 namely, the protection of the civilian population and ensuring respect for the rules of war. The Israeli amendment was likewise rejected, with the us voicing concerns about the difficulty of putting ‘time-limits to “the period of occupation” ’.103

Ultimately, the 1949 Geneva Conventions outlined levée en masse104 in the same terms as the Hague Regulations of 1907: that a levée relates to inhabitants of non-occupied territory who spontaneously take up arms to resist an invading enemy, who carry their arms openly and respect the laws and customs of war.105

4 The Scope of Levée en Masse and Its Legal Significance under the Modern Laws of Armed Conflict

The 1949 Geneva Conventions remain the most recent codification of the concept of levée en masse. With this in mind, does this mean that the Geneva Conventions finally settled the question of whether a levée must only occur in non-occupied territory? Did the provisions on partisan and resistance warfare in effect amount to recognition of levée en masse in occupied territory or were they in fact a rejection of an absolute and unfettered right to rise in national defence against an existing occupier? What can we say is the current scope and effect of the category of levée en masse in the law of armed conflict?

The Geneva Conventions reaffirm the notion that participants in a levée en masse are entitled to combatant status, with the attendant pow rights if captured. As a lawful combatant, a participant in a levée en masse is entitled to what is known as the combatant’s privilege, the benefits of which include the right to take direct part in the hostilities, combatant immunity for their warlike acts if undertaken in compliance with the laws of armed conflict, and prisoner of war (pow) rights if captured.106 In affirming these rights, the Geneva Conventions were simply reaffirming provisions that had been part of the law of armed conflict for decades.

The Geneva Conventions set out the most comprehensive criteria adopted thus far for the existence of levée en masse. With this in mind, we can see that the levée under modern international law has become a far narrower concept than originally espoused during the French Revolution. At the core of the levée en masse in international law are the dual notions of spontaneity and brevity. The permissible window of opportunity for the raising of and participation in a levée is extremely narrow. Levées may only take place ‘on the approach of the enemy … to resist the invading troops without [participants] having had time to form themselves into armed units’.107 Given the 1949 Geneva formulation, does this mean that the question of whether a levée can lawfully occur in occupied territory has finally be settled in the negative? Is it that the moment the territory in question is occupied, the levée is illegal and participants lose their combatant status? The Commentary to the Geneva Conventions would seem to support such an interpretation:

it should … be emphasised that a mass levy can only be considered to exist during a very short period, i.e. during the actual invasion period. If resistance continues, the authority commanding the inhabitants who have taken up arms, or the authority to which they profess allegiance, must either replace them by sending regular units, or must incorporate them in its regular forces.108

Indeed, the inclusion of specific provisions on resistance warfare in Article 4A(2) of the gciii and Article 13(2) of gci and gcii would seem to support such a conclusion – that levée en masse was intended to be limited to popular, but spontaneous and unorganised resistance to an imminent invasion of non-occupied territory, while in situations of actual occupation, resistance to such an occupier was to be treated as a distinct legal phenomenon, one requiring of a measure of organisation. For surely, if the delegates at Geneva in 1949 considered that resistance to an occupier was merely a protracted version of a levée en masse, they would have stated as such in Article 4A(6), and not bothered adopting an entirely separate article outlining different and more detailed rules on resistance and partisan warfare.

Moreover, the repeated comments made a number of delegates during the Diplomatic Conference – that they could not recall instances of any levées en masse during the Second World War,109 despite the fact that that conflict had seen a considerable number of countries subject to invasion by Axis powers – also suggests that delegates were not of a mind to consider the resistance warfare that followed such invasions as being merely levées en masse by any other name, but rather an entirely new form of warfare, necessitating a new category of combatant under international law.110

Finally, the Commentary makes it clear that the fact of occupation – of an organised occupying power exerting actual control over territory – is, fundamentally, incompatible with a levée en masse, for purely humanitarian reasons; that to continue to allow and encourage unorganised and ad hoc civilian resistance to an organised occupier would be potentially devastating. As noted in the Commentary to the Conventions, ‘a mass levy could not survive the total occupation of the territory which it has tried in vain to defend’.111 Thus, despite the silences at Brussels in 1874 and The Hague in 1899 that kept open the option of resistance to occupation being considered a form of levée en masse, it seems clear that the Conference at Geneva finally excluded the possibility.

Given the notable number of limitations on the raising of a levée, it seems highly unlikely that the circumstances that would give rise to the existence of a levée en masse would ever eventuate. Indeed, the modern history of the levée en masse in practice, examined in this next section, demonstrates the infrequency of its occurrence, despite its centrality to the law on combatant status.

5 The Modern History of Levée en masse in Practice

The category of levée en masse occupies an unusual position in modern international humanitarian law: it defines a situation that almost never happens. Indeed, at the 1949 Geneva Conventions Diplomatic Conference, while there was no argument for excluding the category of levée en masse from the final draft of the Conventions, delegates were nevertheless at a loss to name any modern examples of levées en masse. This on-going diminution of the levée en masse as a viable category of combatant has been noted by academics and practitioners,112 with few, if any, examples of levée en masse considered as having occurred in the years since the Geneva Conventions. Of the relevant case law, one of the few domestic law cases to consider the possibility of the existence of a levée en masse (for the purposes of determining possible combatant/pow status), the Israeli case of Kassem, did not find that a levée en masse existed.113 More recently, the International Criminal Tribunal for the former Yugoslavia (icty) examined the question of whether Bosnian Muslim forces operating in and around the enclave of Srebrenica in 1992 were participating in a levée en masse. In the 2006 case of Orić,114 the icty noted the definition of levée en masse as outlined in the Hague Regulations,115 and went on to analyse whether the situation in Srebrenica could have been characterised as such.116 They came to the conclusion that for a period of approximately six weeks from April to May 1992, a levée en masse could have existed in Srebrenica, but the organisational structure of the Bosnian Muslim forces ‘at the time and place relevant to the indictment’117 prevented the qualification of the situation as a levée en masse.

However, despite the practice of levée en masse seemingly falling into desuetude, it continues to have a place in modern international law. Levée en masse partially underpins Article 9 of the Draft Articles on State Responsibility, that of ‘conduct carried out in the absence or default of the official authorities’.118 A considerable number of States have included (and continue to include) levée en masse in their domestic military manuals, including Argentina,119 Australia,120 Belgium,121 Benin,122 Burundi,123 Cameroon,124 Canada,125 the Central African Republic,126 Chad,127 Colombia,128 Germany,129 Italy,130 Kenya,131 Madagascar,132 Mexico,133 the Netherlands,134 New Zealand,135 Nigeria,136 Peru,137 the Philippines,138 Poland,139 the Russian Federation,140 South Africa,141 Spain,142 Switzerland,143 Togo,144 Ukraine,145 the United Kingdom,146 and the United States147 (though ironically, France does not include levée en masse in its military manuals).148 The icrc also affirmed the customary status of the principle of levée en masse in the Study into Customary International Humanitarian Law, acknowledging that, ‘despite its limited current application’149 it remains the only exception to Rule 5, which states that ‘civilians are persons who are not members of the armed forces’.150

Some countries have also reaffirmed the importance of levée en masse in their domestic legal systems. For example, a 1991 Belgian parliamentary report affirmed that participants in a levée en masse are protected by law, and that ‘actions in defence of the territory are permitted and justified by law even if they are not ordered by a proper authority’.151 The former Yugoslavia, prior to its break-up in the 1990s, also included levée en masse in its national defence law152 of 1969; this was a reaffirmation of the philosophy unpinning Amendment 39 of the 1963 Yugoslav Constitution, which expressly forbids military capitulation or surrender of territory under any circumstances. The 1969 National Defence Law provides that it is the right and duty of every citizen to participate in national defence and the right and duty of the local political authorities to organise total national defence and to command the battle directly.153

Given the limited examples of levée en masse in modern history, how then do we account for how comparatively quickly this long-established principle fell into desuetude? Is it possible that the law of armed conflict has itself contributed to the demise of the levée en masse? In enshrining increasingly strict rules for when a levée could exist, has the law effectively regulated levées en masse out of existence? Or are more quotidian factors, such as the changes in available means and methods of warfare that would make resisting an invading army a logistical impossibility for most, if not all, civilians, the more likely reason for the demise of the levée en masse? These questions will be explored in the last section of this article.

6 Accounting for the Levée en Masse in the Law of Armed Conflict: Why Did it Develop in Such a Manner and Why Has it Diminished in Practice?

As has been noted above, levée en masse started out as a political call to arms for the entire population of a nation, and was transformed into a narrow legal concept allowing for civilians to lawfully take active part in an armed conflict, but only in certain highly circumscribed situations. In examining why the legal constraints on levée en masse developed as they did, one must first understand how the law of armed conflict came to conceptualise who was, and was not, permitted to take part in hostilities.

From the earliest codification of the laws of armed conflict in the 1800s, the participation of civilians in armed conflict was discouraged, and ‘regular’ participation – that is, participation as a member of the armed forces – was incentivised.154 This was achieved by affording certain rights and protections to regular participants, and denying other rights and protections to irregular civilian participants. Thus, as noted in the Lieber Code, lawful combatants were entitled to pow rights and protections,155 as well as to what is known as the ‘combatants privilege’ – the right to take direct part in hostilities, and immunity under domestic law for their warlike acts, provided such acts were carried out in accordance with the law of armed conflict.156 These rights and protections were included in all the major instruments on the law of armed conflict from then on, including The Hague Regulations and the Geneva Conventions.157

That civilians should not take direct part in hostilities was never explicitly stated in the early laws of armed conflict, but could be inferred: in conjunction with the fact that only regular combatants were granted combatants and pow rights, the early laws of armed conflict affirmed that civilians would be spared from direct attack so long as they remained civilians. That is to say, any special consideration afforded to civilians under the law of armed conflict was only provided so long as civilians did not undertake any hostile military acts against the enemy. The instruments affirmed the hostile nature of the enemy military, and the immunity of the civilian – for instance, Article 22 of the Lieber Code outlines that:

as civilisation has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property and honour as much as the exigencies of war will admit.158

This notion was reaffirmed in the St Petersburg Declaration of 1868, which states that ‘the progress of civilization should have the effect of alleviating as much as possible the calamities of war; [t]hat the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’.159

As the law of armed conflict developed throughout the twentieth century, the rules aimed at discouraging civilian participation in armed conflict became more explicit, by clearly stating that civilians who take part in hostilities will lose their immunity from targeting. Thus, as noted in Article 51 of Protocol I:

1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.

. . .

3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.160

The law of armed conflict thus sought to dis-incentivise civilian participation in armed conflicts, by granting immunity from direct targeting, but making that immunity contingent on civilians refraining from taking a direct part in the hostilities. Civilians who did choose to take direct part in hostilities would not enjoy any combatant rights or privileges, and would lose their immunity from direct targeting for as long as they took direct part in hostilities. Civilian participation in armed conflicts was not prohibited under the law of armed conflicts,161 but such participation did not bring any special rights or protections, like those afforded to regular combatants.

The levée en masse was therefore a problematic category for the law of armed conflict – it is a law which essentially sanctions civilian participation in armed conflict. States, when developing and codifying the law of armed conflict, were thus faced with a conundrum: how to acknowledge a long-standing accepted concept in military practice while ensuring that it was not seen as an unrestricted incitement to take up arms. As such, as noted above, the introduction of increasingly restrictive terms on the levée en masse ensured that this historically important provision remained recognised in the law of armed conflict, while at the same time limiting the opportunities for such an event to take place. This reflected the general trend of the law of armed conflict throughout its development over the decades – a law which has increasingly sought to place more (and stricter) limitations on exactly how armed conflicts are conducted. Given this trend, and despite the continued inclusion of the category of levée en masse in law of armed conflict treaties and national military manuals, the law of armed conflict, as applied by States, has essentially consigned the levée en masse to the proverbial history books, much like the doctrine of recognition of belligerency – a well-established but effectively defunct category in the law of armed conflict.162

However, to say that the law has been solely responsible for bringing about the end of the very situation it sought to regulate is to overlook one very significant fact: the levée en masse, both as a political concept and a legal category, developed at a time in history when it was conceivable, albeit difficult, for civilians to actively resist an invading force. A regular army from the 1800s, equipped with sabres and muskets, could in theory be resisted by civilians likewise armed with swords and pistols; today’s civilian could not possibly hope to defend against aerial bombardment, high-powered weaponry, and armoured vehicles. As noted by Ipsen:

in modern-day armed conflicts the levée en masse has become less significant because, as a rule, the regular armed forces of an attacking party are armed to a degree that simply cannot be countered with the weapons available to a spontaneous resistance (such as hunting weapons).163

Thus, while the diminution of the levée en masse can be partly ascribed to the limitations imposed by the law, it is more likely to be largely, if not completely, due to the changing means and methods available to modern day State armed forces. Civilians might well be able to acquire more complex and effective weapons such as rocket-propelled grenade launchers, but such weaponry is still no match for an armed unmanned aerial vehicle, or any high-powered long-range weaponry currently used by many State armed forces.164

7 Conclusions

The levée en masse has been a consistent feature in the law of armed conflict since its first codification in the 1800s. Drawing on the political idea popularised during the French Revolution of mobilising the entire nation to defend their homeland against invaders, the levée en masse was adapted to fit the particular aims and objectives of international humanitarian law – that of ensuring that participation in the hostilities is limited to categories of persons compliant with the law, and of protecting the vulnerable in situations of armed conflict. However, as new technologies developed, changing the ways in which wars were fought, the ability of civilians to resist an invading force was increasingly limited. As such, the category of levée en masse has fallen into disuse. In examining the historical origins and development of the category, it is interesting to see how such an intrinsically practical and political concept was given legal form, and how enduring a concept it remained in the law of armed conflict, long after it was no longer a practical eventuality.

1 Instructions for the Government of Armies of the us in the Field, General Orders, 24 April 1863; promulgated as General Orders No. 100 (hereinafter the Lieber Code).

2 Hague Convention ii with Respect to the Laws and Customs of War on Land, 29 July 1899, 32 Stat. 1803, 1 Bevans 247, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol. T.S. 429.

3 Hague Convention iv on the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277, 1 Bevans 631, 3 Martens Nouveau Recueil (ser. 3) 461, 205 Consol. T.S. 277.

4 Comprising Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (Geneva Convention I or gci) 75 unts 31 (1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Geneva Convention ii or gcii) 75 unts 85 (1950); Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (Geneva Convention iii or gciii) 75 unts 135 (1950); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Geneva Convention iv or gciv) 75 unts 287 (1950). Article 4A of Geneva Convention iii outlines the provisions for combatant status.

5 Article 4A(6), gciii.

6 Alan Forrest calls the French call for mass uprising of 1793 the ‘first levée en masse’ (in ‘La Patrie en Danger: The French Revolution and the First Levée en Masse’, in Daniel Moran and Arthur Waldron (eds.), The People in Arms: Military Myth and National Mobilisation since the French Revolution (Cambridge: Cambridge University Press 2003), 8–32, 9.

7 Reports of the day recount instances of, for example, Bostonian farmers taking up arms to repel British soldiers who had advanced in the Boston countryside and wilfully killed several colonists ‘without being provoked’ (Letter from an American colonist to the French news sheet Gazette de Leyde, on 10 August 1779 cited in Orville Murphy, ‘The American Revolutionary Army and Concept of Levée en Masse’, Military Affairs 23 (1959), 13–20, 13).

8 See generally Charles Royster, A Revolutionary People at War: The Continental Army and American Character, 1775–1783 (Chapel Hill: University of North Carolina Press 1979), 38–42.

9 Ibid., 11.

10 Murphy recounts a number of letters, newspaper columns, and polemical essays, published in France between 1771 and 1779, that spoke highly of the American civilian army; see further Murphy, ‘The American Revolutionary Army and Concept of Levée en Masse’ 1959 (n. 7), 13–19, doi: 10.2307/1985248.

11 Officer positions tended to be reserved for those of aristocratic standing – see Forrest, ‘La Patrie en Danger’, in Moran and Waldron, The People in Arms 2003 (n. 6), 9.

12 See generally Peter Paret, ‘Conscription and the End of the Ancien Régime in France and Prussia’, in Paret (ed.), Understanding War: Essays on Clausewitz and the History of Military Power (Princeton: Princeton University Press 1992), 53–74.

13 David Andress, The French Revolution and the People (London: Hambledon and London, 2004), 18.

14 Norman Hampson, A Social History of the French Revolution (New York: Routledge, 2nd edition 2007), 121–122.

15 Ibid.

16 This status was entrenched by law: the 1781 Ségur Ordinance decreed that army officers must prove four degrees of nobility for promotion. A survey undertaken in 1781 found that only five percent of the office corps were from non-noble origins; see further David Bien, ‘La réaction aristocratique avant 1789: l’exemple de l’armée’, Annales: Economies, Sociétiés, Civilisations 29 (1974), 23–48, 35; Samuel Scott, The Response of the Royal Army to the French Revolution: The Role and Development of the Line Army, 1787–93 (Oxford: Oxford University Press 1978), 182–190.

17 See William Doyle, Venality: The Sale of Offices in Eighteenth-Century France (Oxford: Oxford University Press 1996), 134–136.

18 See Samuel Scott, ‘The Regeneration of the Line Army during the French Revolution’, Journal of Modern History 42 (1970), 307–330, 314–315.

19 Eric Hobsbawm, The Age of Revolution 1789–1848 (London: Weidenfeld and Nicholson 1962), 82; see also Thomas Hippler, Citizens, Soldiers, and National Armies: Military Service in France and Germany, 1789–1830 (New York: Routledge 2008) 56–57.

20 See William Doyle, The Oxford History of the French Revolution (Oxford: Oxford University Press, 2nd edition 2002), specifically Chapter 6 – ‘The Breakdown of the Revolutionary Consensus, 1790–1791’.

21 By 1793, Austrian and Prussian forces had invaded France in the northeast; Britain blockaded French ports, and the Spanish were advancing over the Pyrenees. See further Wolfgang Kruse, ‘Revolutionary France and the Meaning of Levée en Masse’, in Roger Chickering and Stig Förster (eds.), War in an Age of Revolution, 1775–1815 (Cambridge: Cambridge University Press 2010), 299–312, 300, and Hobsbawm, The Age of Revolution 1962 (n. 19), 90.

22 Archives parlementaires de 1787 à 1860, 1st ser., 1787–99 (82 vols; Paris, 1867–1914), lxxii (23 August 1793), 674.

23 See Alan Forrest, Conscripts and Deserters: The Army and French Society During the Revolution and Empire (Oxford: Oxford University Press 1989), 26–32.

24 Ibid., 32.

25 Daniel Moran, ‘The Legend of the Levée en Masse’, in Moran and Waldron 2003 (n. 6), 2.

26 Natali Gak, ‘The Distinction Between Levée en Masse and Wars of National Liberation’, Slovenian Law Review 5 (2008), 115–129, 116.

27 Révolutions de Paris, 26 July – 1 August 1789.

28 Hippler, Citizens, Soldiers and National Armies 2008 (n. 19), 46.

29 Forrest, ‘La Patrie en Danger’ 2003 (n. 6), 8.

30 Forrest, Conscripts and Deserters 1989 (n. 23), 34.

31 Dominic Lieven, Russia Against Napoleon: The Battle for Europe 1807 to 1814 (London: Penguin 2009), 217. See also similar comments made by Prussian King Friedrich Wilhelm iii (Friedrich Wilhelm iii, ‘An Mein Volk’, in James Harvey Robinson (ed.), Readings in European History: A Collection of Extracts from the Sources Chosen with the Purpose of Illustrating the Progress of Culture in Western Europe since the German Invasions, Volume 2 (Boston: Ginn and Co 1906), 522–523.

32 See further Arthur Eyffinger, ‘Diplomacy’, in Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press 2012), 817–830. For an analysis and critique of historical assessments of the origins of the modern international law system, see further Martti Koskenniemi, ‘A History of International Law Histories’, in Fassbender/Peters (eds.), ibid., 943–971.

33 Trainin notes that between 1815 and 1901, 148 different international meetings regarding codifying the law of armed conflict were convened, with nearly 50 of those taking place in the last half of the nineteenth century; I.P. Trainin, ‘Questions of Guerrilla Warfare in the Law of War’, ajil 40 (1946), 534–562, 536, doi: 10.2307/2193929.

34 See Richard Baxter, ‘The First Modern Codification of the Law of War’, irrc 3 (1963), 171–189, 171.

35 Article 51, Lieber Code; Article 49 of the Code includes ‘all men who belong to the rising en masse of the hostile country’ as entitled to prisoner of war status.

36 Such as being ‘fed … plain and wholesome food, whenever practicable, and treated with humanity’ (Article 76); protected from the ‘use of any violence … in order to extort the desired information or to punish them for having given false information’ (Article 80); and protected from ‘appropriation of … valuables or money’ upon capture (Article 72).

37 ‘No belligerent has the right to declare that he will treat every captured man in arms of a levy “en masse” as a brigand or bandit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection’.

38 See generally Emily Crawford, The Treatment of Combatants and Insurgents under the Law of Armed Conflict (Oxford: Oxford University Press 2010), 19–21.

39 Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War, Written at the Request of Major-General Henry W. Halleck, General-in-Chief of the Army of the United States (New York: D. Van Nostrand 1862), 14.

40 Ibid., 15.

41 Ibid.

42 Ibid., 16.

43 Francis Lieber, letter to General Halleck, 20 May 1863, reprinted in Thomas Sargeant Perry (ed.), The Life and Letters of Francis Lieber (New York: Osgood and Company 1882), 333–334.

44 Lindsay Green, The Contemporary Law of Armed Conflict (Manchester: Juris 2008), 37.

45 In 1870.

46 In 1871.

47 In 1877.

48 1877; revised in 1904.

49 In 1878.

50 In 1881.

51 In 1883; revised in 1904.

52 In 1893; for comments on the above noted military codes, see further Thomas Erskine Holland, The Laws of War on Land: Written and Unwritten (Oxford: Clarendon 1908), 72–73.

53 The draft was submitted to the States by the Russian Government; see Dietrich Schindler/Jiri Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents (Leiden: Martinus Nijhoff, 4th edition 2004), 21.

54 Actes de la Conférence de Bruxelles de 1874: sur le projet d’une convention internationale concernant la guerre: protocoles des séances plénières, protocoles de la Commission déleguée par la Conférence, annexes (Paris: Librairie des publications législatives 1874), 28, 32–34, 50.

55 Draft Project of an International Declaration Concerning the Laws and Customs of War, reprinted in James Lorimer, The Institutes of the Law of Nations: A Treatise on the Jural Relations of Separate Political Communities, Volume 2 (Edinburgh: Blackwood 1884), 337 ff.

56 The Draft Declaration used section numbers (§) to indicate each provision; for convenience, the term ‘Article’ will be used when referring to provisions in the Draft Declaration.

57 Draft Declaration, Article 45, reprinted in Lorimer, The Institutes of the Law of Nations 1884 (n. 55), 377.

58 Ibid., 378.

59 Ibid., 32 (‘ce serait une sorte de désarmement moral proclamé d’avance; ce serait une veritable injustice envers les citoyens’).

60 See similar comments expressed by the delegate of the Netherlands M. de Lansberge (ibid., 33: ‘Mais livrer d’avance à la justice de l’ennemi des hommes qu’, par patriotisme et à leurs risques et périls, s’exposent à tous les dangers qu’entraîne un soulèvement, serait un acte qu’aucun gouvernement n’oserait poser’) and the delegate of Belgium, Baron Lambermont (ibid., ‘Il y a des choses qui se font a la guerre qui se feront toujours et que l’on doit bien accepter. Mais il s’agit ici de les convertir en lois, en prescriptions positives et internationales. Si des citoyens doivent etre conduits au supplice pour avoir tente de defendre leur pays au péril de leur vie, il ne faut pas qu’ils trouvent inscrit sur le poteau au pied duquel ils seront fusillés, l’article d’un traité signé par leur propre gouvernement, qui, d’avance, les condamnait à mort’).

61 See for example comments by the German delegate General Voigts-Rhetz: ‘Mais supposons une force de ce genre sans organisation et sans discipline? Qu’arrivera-t-il? N’est-il pas à craindre que ces hommes, au lieu de marcher contre l’ennemi, ne se tournent contre les habitants? Il est reconnu que les mauvais sujets profitent de la guerre pour rançonner leurs compatriotes et évitent de rencontrer l’étranger. On peut dès lors se demander si un pays aurait intérêt à s’appuyer sur le Landsturm, lequel, s’il n’est pas organisé et contenu, aboutirait en peu de temps à la marauile et au pillage’ (ibid., 28).

62 ‘M. le baron Lambermont constate de son côté que, l’accord n’existant pas sur ce point, l’accord n’existant pas sur ce point, la question de savoir si et sous quelles conditions les populations pourront prendre les armes dans le territoire occupé doit rester entière. Le protocole pourra mentionner que la question n’est tranchée ni dans un sens ni dans un autre. Si une guerre éclate, personne ne sera lié par un texte; on suivra les règles habituelles du droit des gens; rien ne sera préjugé ni pour ni contre par la convention projetée’ (ibid., 34).

63 See the report of the delegate of Great Britain, reprinted in Lorimer, The Institutes of the Law of Nations, 1884 (n. 55), 378–380.

64 See further comments by the Russian delegate General Leer, in which he outlined what he considered an appropriate compromise solution (Actes de la Conférence de Bruxelles de 1874, 50, comments beginning ‘M. le général de Leer s’exprime, au sujet de cet article, dans les termes suivants …’).

65 Project of an International Declaration Concerning the Laws and Customs of War, 27 August 1874.

66 As Jean De Breucker noted, the larger European powers were of the opinion that ‘without rules war would spell ruin for the countries invaded, since a people who wanted to defend itself should have the pluck to organise in peace time’; thus, civilians should be discouraged from engaging in armed conflict, beyond the strictures of organised military units (Jean De Breucker, ‘La Déclaration de Bruxelles de 1874 concernant les lois et coutumes de la guerre’, Chronique de politique étrangère, xxvii, Institut royal des relations internationals, Brussels, 1974, cited in J. De Breucker, ‘The Brussels International Declaration of 1874 concerning the Laws and Customs of War’, irrc 14 (1974), 616–620, doi: 10.1017/S002086040001860X. Indeed, the proposed restrictions on national defence suggested by the Russians were considered so onerous on the smaller European powers that they dubbed the Russian draft instrument the ‘Code of Conquest’ – see further Karma Nabulsi, Traditions of War: Occupation, Resistance and the Law (Oxford: Oxford University Press 1999), 6.

67 Knut Ipsen, ‘Combatants and Non-Combatants’, in Dieter Fleck (ed.), The Handbook of Humanitarian Law (Oxford: Oxford University Press, 3rd edition 2013), 92–93.

68 While this requirement was implied in the Lieber Code (by equating mass levies as similar to organised armed forces) it was never expressly stated.

70 As noted in the Preface to the Oxford Manual on the Laws of War on Land (Oxford: Institute of International Law, 1880); reprinted in Schindler/Toman, The Laws of Armed Conflicts 2004 (n. 53), 29–40.

71 Preface, Oxford Manual.

72 Ibid.

73 Ibid.

74 Ibid.

75 Ibid.

76 Article 2, Oxford Manual.

77 Ibid.

78 In Article 16.

79 In Article 13.

80 In Articles 4 and 8.

81 Article 8(c), Oxford Manual.

82 Article 44, Oxford Manual.

83 Article 47, Oxford Manual (see also Article 37, Brussels Declaration).

84 Indeed, the Brussels Declaration was used the reference paper from which discussions originated during the 1899 Diplomatic Conference; see the Report to the Hague Conferences of 1899 and 1907, James Scott (ed.) (Oxford: Clarendon 1917), 137.

85 Ibid., 141.

86 Translated literally as ‘free shooters’; the francs-tireurs were irregular French forces who had operated during the Franco-Prussian War of 1870; see generally Walter Laqueur, ‘The Origins of Guerrilla Doctrine’, Journal of Contemporary History 10 (1975) 341–382, 357–358, doi:10.1177/002200947501000301.

87 See Scott, Report to the Hague Conferences 1917 (n. 84), 139–142.

88 Ibid.

89 Article 2, 1899 Hague Convention ii.

90 For a more detailed analysis of the Martens Clause, see Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’, ejil 11 (2000) 187–216; and Theodor Meron, ‘The Martens Clause, Principles of Humanity, and the Dictates of Public Conscience’, ajil 94 (2000), 78–89, doi: 10.2307/2555232.

91 See further Scott, Report to the Hague Conferences, 1917 (n. 84), 140–142.

92 Emphasis added; Hague Convention iv Respecting the Laws and Customs of War on Land 1907, 205 cts 227; see also James Scott (ed.), The Proceedings of the Hague Peace Conference: The Conference of 1907, Volume i (Oxford: Oxford University Press 1920), 623.

93 See the comments made when adopting the 1907 provision on levée en masse, which noted the addition of the phrase ‘carry arms openly’, but went on to state that ‘it seems to the subcommission that this amendment had no other effect than to make the original text more definite without modifying its meaning to the prejudice of the population concerned’ (‘Il a paru à la Sous-Commission que cette condition n’avait d’autre portée que de préciser ce qui se trouve déjà dans le texte primitif sans en modifier le sens au préjudice de la population intéressée): Deuxième Conférence Internationale de la Paix, La Haye 15 juin–18 octobre 1907, actes et documents, tome Première (Paris: Imprimerie Nationale 1908), 97. The amendment was accepted 30 votes to 3, with Switzerland and Montenegro abstaining (see also similar discussion in Deuxième Conférence Internationale de la Paix, Actes et Documents, tome troisième, 106). See also Scott, Report to the Hague Conferences, 1917 (n. 84), 522, 528–529.

94 Geneva Convention Relative to the Treatment of Prisoners of War 1929, 118 lnts 343.

95 Article 1 of the 1929 Geneva Convention stated its applicability ‘to all persons mentioned in Articles 1, 2 and 3 of the Regulations annexed to the Hague Convention respecting the laws and customs of war on land, of October 18, 1907, and captured by the enemy’.

96 Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14–26 April 1947 (Geneva: icrc 1947), 107.

97 Ibid.

98 Final Record of the Diplomatic Conference of Geneva of 1949, Volume iia (Geneva: icrc 1949), 239.

99 Final Record iia 1949 (n. 98), 420.

100 Ibid., 422.

101 Comments by General Joseph Dillon, Final Record iia, ibid., 421.

102 Comments by William Gardiner, ibid.

103 Comments by Raymund Yingling, Final Record iia, ibid., 422.

104 In Article 13(6) of Convention I, Article 13(6) of Convention ii, and Article 4(A)(6) of Convention iii.

105 It is interesting to note that in the Commentary to the Geneva Conventions, it is stated that despite the requirement that the levée be raised spontaneously by the people, the levée may nonetheless have a degree of authorisation to it; that is to say, the government can legally order or encourage the populace to raise a levée; such acts do not delegitimise the levee. Jean Pictet (ed.), Commentary to the Third Geneva Convention Relative to the Treatment of Prisoners of War (Geneva: icrc 1960), 67–68 (gciii Commentary). See also Albert Mechelynck, La Convention de La Haye concernant les lois et coutumes de la guerre sur terre (Ghent: Ad. Hoste 1915), 120.

106 See Crawford, The Treatment of Combatants and Insurgents 2010 (n. 38), specifically Chapter 2 on combatant and pow rights under the law of armed conflict.

107 Article 4A(6), Geneva Convention iii.

108 gciii Commentary 1960 (n. 105), 68.

109 Indeed, even the Observer from the International Committee of the Red Cross, René Wilhelm, could only vaguely note that ‘he thought that there had been an isolated case of a levée en masse in France which had been brought before a tribunal’ – but he could not recall specifics. It was only a passing comment by the Greek delegate, Michel Pesmazoglou, that reminded Committee ii of the Conference of the levée on Crete during the German invasion of that island, where local inhabitants, some fighting with rifles not used since Ottoman time, others using kitchen knives and farming tools, held off the German paratroop invasion force for nearly ten days – see further Final Record of the Diplomatic Conference of Geneva of 1949, Volume iia 1949 (n. 98), 239.

110 See further wg Rabus, ‘A New Definition of the “Levée en Masse”?’, nilr 24 (1977), 232–241, doi: 10.1017/S0165070X00016259.

111 gciii Commentary 1960 (n. 105), 68.

112 See Rabus, ‘A New Definition of the “Levée en Masse”?’ 1977 (n. 110), 23,7 who argued that the current legal definition of levée en masse renders it ‘a reminiscence of the last century’ (referring to the nineteenth century).

113 Military Prosecutor v Omar Mahmud Kassem and Others, Israel Military Court sitting in Ramallah, 13 April 1969, reprinted in Elihu Lauterpacht (ed.), International Law Reports, Volume 42 (Cambridge: Grotius 1971), 470–483.

114 Prosecutor v Naser Orić, Judgment, Case No. it-03-68-t, 30 June 2006.

115 Ibid., para. 133.

116 It was the Defence submission that ‘the ‘island of resistance’ of Bosnian Muslims in Srebrenica against Serb attacks was in fact a levée en masse composed of local groups of fighters acting independent of one another and lacking the essential features of an army, including an organised structure with a proper command, uniforms, weapons and headquarters. More specifically, the Defence contends that because the actions of Bosnian Muslim fighters in Srebrenica amounted to a levée en masse, they were, by definition, not organised under a responsible commander’ (ibid., para. 131).

117 Ibid., para. 136.

118 See James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press 2002), 114.

119 Argentina, Leyes de Guerra, rc-46-1, Público, ii Edición 1969 (Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 1967), § 2.002(6).

120 Australia, Manual on Law of Armed Conflict (Canberra: Australian Defence Force Publication, Operations Series, adfp 37 – Interim Edition, 1994), § 514; Law of Armed Conflict, Commanders’ Guide (Canberra: Australian Defence Force Publication, Operations Series, adfp 37 Supplement 1 – Interim Edition, 1994), § 612; The Manual of the Law of Armed Conflict (Canberra: Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 2006), § 5.14.

121 Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre (Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983), 20.

122 Benin, Le Droit de la Guerre, iii fascicules (Forces Armées du Bénin, Ministère de la Défense nationale, 1995), Fascicule i, 12.

123 Burundi, Règlement n° 98 sur le droit international humanitaire (Ministère de la Défense Nationale et des Anciens Combattants, Projet ‘Moralisation’ (bdi/b-05) 2007), Part i bis, 53; see also Part i bis, 16 and 31.

124 Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées (Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992), 35; see also 20 and 143; and Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense (Ministère de la Défense, Présidence de la République, Etat-major des Armées 2006), §§ 111, 211, 301, 381, 441, and 491.A. See also § 352.28 and § 412.281.

125 Canada, The Law of Armed Conflict at the Operational and Tactical Level (Washington, dc: Office of the Judge Advocate General 1999), § 13; see also The Law of Armed Conflict at the Operational and Tactical Levels (Washington, dc: Office of the Judge Advocate General 2001), § 306; and Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations (b-gj-005-110/fp-020, National Defence Headquarters, 2004), § 109.1.g.

126 Central African Republic, Le Droit de la Guerre, Fascicule No. 1: Formation élémentaire toutes armés (feta), formation commune de base (fcb), certificat d’aptitude technique No. 1 (Chef d’équipe) (Ministère de la Défense, Forces Armées Centrafricaines, 1999), Chapter ii, Section i, § 2.

127 Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité (Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006), 55.

128 Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina (Santafé de Bogotá: Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, 1999), 16; see also 28.

129 Germany, Humanitarian Law in Armed Conflicts – Manual, dsk vv207320067 (edited by The Federal Ministry of Defence of the Federal Republic of Germany, vr ii 3, 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, 1992), § 310.

130 Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, Volume I (Roma: smd-g-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, 1991), § 4(c).

131 Kenya, Law of Armed Conflict, Military Basic Course (ors), 4 Précis (The School of Military Police, 1997), Précis No. 2, 8.

132 Madagascar, Le Droit des Conflits Armés (Ministère des Forces Armées, 1994), Fiche No. 2-so, § A.

133 Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos (Ministry of National Defence 2009), § 145(A); and Cartilla de Derecho Internacional Humanitario (Ministry of National Defence, 2009), § 3.

134 The Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27–412/1 (Koninklijke Landmacht, Ministerie van Defensie, 1993), at iii–1 and iii–2; and Humanitair Oorlogsrecht: Handleiding (Voorschift No. 27–412, Koninklijke Landmacht, Militair Juridische Dienst, 2005), § 0304.

135 New Zealand, Interim Law of Armed Conflict Manual, dm 112, New Zealand Defence Force (Wellington: Directorate of Legal Services 1992), §§ 803(2) and 806(4).

136 Nigeria, The Laws of War, by Lt. Col. L. Ode psc (Lagos: Nigerian Army, undated), § 33(f).

137 Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394–2004-de/ccffaa/cdih-ffaa, Lima, 1 December 2004, Annex 9, Glossary of Terms; and Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas (Lima: Resolución Ministerial No. 049–2010/de/vpd, 2010), 408; see also § 35(b)(5).

138 The Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (A Practical Guide for Internal Security Operations, 2006), 67, Glossary.

139 Poland, Norma Obronna no-02-A020:2000, Procedury postępowania z jeńcami wojennymi (enacted by decision No. 134/mon related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, 2009), Section 1.3.1.

140 The Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the ussr (Appendix to Order of the ussr Defence Minister No. 75, 1990), § 13; and Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation (Moscow: Ministry of Defence of the Russian Federation 2001), § 1.

141 South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), (National Defence Force, 1996), § 24(b) and Revised Civic Education Manual (South African National Defence Force, 2004), Chapter 4, § 47(b).

142 Spain, Orientaciones. El Derecho de los Conflictos Armados, Volume i (Publicación or7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones 1996), § 1.3.a(1); and Orientaciones. El Derecho de los Conflictos Armados, Tomo 1 (Publicación or7-004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2007), § 1.3.a(1).

143 Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), (Règlement 51.7/ii f, Armée Suisse, 1987), Article 26(3) and 65.

144 Togo, Le Droit de la Guerre, iii fascicules (Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996), Fascicule i, 13.

145 Ukraine, Manual on the Application of ihl Rules (Ministry of Defence, 2004), § 1.2.31.

146 United Kingdom, The Law of War on Land being Part iii of the Manual of Military Law (London: The War Office, hmso 1958), § 97; see also The Law of Armed Conflict (D/dat/13/35/66, Army Code 71130, London: Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981), Section 3, 8–9, § 1(c); and The Manual of the Law of Armed Conflict (London: Ministry of Defence 2004, as amended by Amendment 3, Ministry of Defence, 2010), § 4.2.2 and § 4.8.

147 United States of America, Air Force Pamphlet 110–31, International Law – The Conduct of Armed Conflict and Air Operations (Washington, dc: us Department of the Air Force, 1976), § 3–2(b)(5); see also Field Manual 27–10, The Law of Land Warfare (Washington, dc: us Department of the Army, 1956, as modified by Change No. 1, 1976), § 65; and The Commander’s Handbook on the Law of Naval Operations (nwp 1–14M/mcwp 5–12.1/comdtpub P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, us Marine Corps, and Department of Homeland Security, us Coast Guard, 2007), § 5.4.1.1.

148 In 1996, then President Jacques Chirac announced that the levée en masse would be abolished (‘Napoleon Needs You! French to do Away with its Universal Military Draft’, Pittsburgh Post-Gazette, 28 February 1996); the National Service Law was amended in 1997 (Loi n° 97-1019 du 28 octobre 1997 portant réforme du service national, http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FC3459C64D252FD0848FB4EA22AF1B89.tpdjo11v_1?cidTexte=JORFTEXT000000368950&dateTexte=19971109), resulting in the abolition of national service in 2001 (‘France Salutes End of Military Service’, bbc News Service, 29 November 2001, http://news.bbc.co.uk/2/hi/europe/1682777.stm).

149 icrc, ‘Study on Customary International Humanitarian Law’, Rule 5, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule5.

150 Ibid.

151 Belgian Senate, Report, Enquête parlementaire sur l’existence en Belgique d’un réseau de renseignements clandestin international, 1990–1991 Session, Doc. 1117-4, 1 October 1991, § 24.Belgium, Senate, Report, Enquête parlementaire sur l’existence en Belgique d’un réseau de renseignements clandestin international, 1990–1991, Session, Doc. 1117-4, 1 October 1991, § 24.

152 Known as opštenarodna odbrana – total national defence, devised in response to concerns regarding a possible Soviet invasion; see further A. Ross Johnson, ‘Yugoslav Total National Defence’, Survival 15 (1973), 54–58; and Rabus, ‘A New Definition’ 1977 (n. 110), 239–240.

153 Ibid.

154 As stated by French jurist Brenet, regarding the aims and objectives of the modern law of warfare ‘our goal here is to humanise war, by which we mean that it must be regularised’. Guerrilla and partisan warfare was ‘a certain atrocity … the most terrible aggravation of war’ (Amédée Brenet, La France et l’Allemagne devant le droit international pendant les opérations militaires de la guerre de 1870–71 (Paris: Rousseau 1902), 26.

155 Lieber Code, Articles 56, 58, 59, 60, 68, 72–78, 80.

156 Ibid., Article 57.

157 See Articles 4–21 of The Hague Regulations of 1907, and Geneva Convention iii in its entirety.

158 Article 22, Lieber Code.

159 Emphasis added. See also Article 25 of the Hague Regulations of 1899 (annexed to Convention (ii) with Respect to the Laws and Customs of War on Land (187 cts 429)) and the Hague Regulations of 1907 (annexed to Convention iv Respecting the Laws and Customs of War on Land (205 cts 277)), which prohibits ‘the attack or bombardment of towns, villages, habitations or buildings with are not defended’. The 1907 Regulations add ‘by whatever means’ after the words ‘attack or bombardment’ to the prohibition. Though the Regulations do not expressly prohibit attacking civilians, the principle can be inferred from the instruments; the Commentary to the Protocols supports such an inference (see Yves Sandoz/Christophe Swinarski/Bruno Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: icrc 1987), 598, paras. 1863–64 (ap Commentary)) which states that the ‘entire system established in The Hague in 1899 and 1907 and in Geneva from 1864 to 1977 is founded’ on the principle of distinction between civilian and military, and that attacks should only be directed against military objectives.

160 Article 51(1)-(3), api.

161 Except in the case of mercenaries – see further Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 3rd edition 2016), 67–69.

162 The doctrine of recognition of belligerency allowed a State to recognise an armed opposition group in a civil war as belligerents, thus bringing the full scope of the international laws of armed conflict into play, even in a non-international armed conflict. Though a well-established principle, it was seldom applied in practice, and was considered to have fallen into desuetude by the Second World War. See further Robert Wilson, ‘Recognition of Insurgency and Belligerency’, asil Proceedings 31 (1937), 136–144; Hersh Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press 1947), specifically Chapters 12–17. Indeed, the report into the Mavi Marmara incident – the Turkel Report – concludes that the doctrine of belligerency is ‘almost irrelevant’, in contemporary international humanitarian law. See The Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission Report (23 January 2011), online at http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/TurkelCommission.pdf, para. 39.

163 Ipsen, ‘Combatants and Non-Combatants’ 2013 (n. 67), 93.

164 However, see further Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2nd edition 2016), 216, where he discusses the example of two young Georgian men who took up arms to resist the invading Russian Army in 2008; Solis uses this example to suggest that ‘levées en masse are not as improbable on today’s battlefields as believed’.

  • 9

    Ibid.11.

  • 13

    David AndressThe French Revolution and the People (London: Hambledon and London2004) 18.

  • 18

    See Samuel Scott‘The Regeneration of the Line Army during the French Revolution’Journal of Modern History 42 (1970) 307–330314–315.

  • 21

    By 1793Austrian and Prussian forces had invaded France in the northeast; Britain blockaded French ports and the Spanish were advancing over the Pyrenees. See further Wolfgang Kruse ‘Revolutionary France and the Meaning of Levée en Masse’ in Roger Chickering and Stig Förster (eds.) War in an Age of Revolution 1775–1815 (Cambridge: Cambridge University Press 2010) 299–312 300 and Hobsbawm The Age of Revolution 1962 (n. 19) 90.

  • 24

    Ibid.32.

  • 33

    Trainin notes that between 1815 and 1901148 different international meetings regarding codifying the law of armed conflict were convened with nearly 50 of those taking place in the last half of the nineteenth century; I.P. Trainin ‘Questions of Guerrilla Warfare in the Law of War’ ajil 40 (1946) 534–562 536 doi: 10.2307/2193929.

  • 40

    Ibid.15.

  • 42

    Ibid.16.

  • 45

    In 1870.

  • 46

    In 1871.

  • 47

    In 1877.

  • 48

    1877; revised in 1904.

  • 49

    In 1878.

  • 50

    In 1881.

  • 51

    In 1883; revised in 1904.

  • 58

    Ibid.378.

  • 59

    Ibid.32 (‘ce serait une sorte de désarmement moral proclamé d’avance; ce serait une veritable injustice envers les citoyens’).

  • 85

    Ibid.141.

  • 100

    Ibid.422.

  • 128

    ColombiaDerechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina (Santafé de Bogotá: Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia1999) 16; see also 28.

  • 148

    In 1996then President Jacques Chirac announced that the levée en masse would be abolished (‘Napoleon Needs You! French to do Away with its Universal Military Draft’ Pittsburgh Post-Gazette 28 February 1996); the National Service Law was amended in 1997 (Loi n° 97-1019 du 28 octobre 1997 portant réforme du service national http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FC3459C64D252FD0848FB4EA22AF1B89.tpdjo11v_1?cidTexte=JORFTEXT000000368950&dateTexte=19971109) resulting in the abolition of national service in 2001 (‘France Salutes End of Military Service’ bbc News Service 29 November 2001 http://news.bbc.co.uk/2/hi/europe/1682777.stm).

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Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict

in Journal of the History of International Law / Revue d'histoire du droit international

Sections

References

9

Ibid.11.

13

David AndressThe French Revolution and the People (London: Hambledon and London2004) 18.

18

See Samuel Scott‘The Regeneration of the Line Army during the French Revolution’Journal of Modern History 42 (1970) 307–330314–315.

21

By 1793Austrian and Prussian forces had invaded France in the northeast; Britain blockaded French ports and the Spanish were advancing over the Pyrenees. See further Wolfgang Kruse ‘Revolutionary France and the Meaning of Levée en Masse’ in Roger Chickering and Stig Förster (eds.) War in an Age of Revolution 1775–1815 (Cambridge: Cambridge University Press 2010) 299–312 300 and Hobsbawm The Age of Revolution 1962 (n. 19) 90.

24

Ibid.32.

33

Trainin notes that between 1815 and 1901148 different international meetings regarding codifying the law of armed conflict were convened with nearly 50 of those taking place in the last half of the nineteenth century; I.P. Trainin ‘Questions of Guerrilla Warfare in the Law of War’ ajil 40 (1946) 534–562 536 doi: 10.2307/2193929.

40

Ibid.15.

42

Ibid.16.

45

In 1870.

46

In 1871.

47

In 1877.

48

1877; revised in 1904.

49

In 1878.

50

In 1881.

51

In 1883; revised in 1904.

58

Ibid.378.

59

Ibid.32 (‘ce serait une sorte de désarmement moral proclamé d’avance; ce serait une veritable injustice envers les citoyens’).

85

Ibid.141.

100

Ibid.422.

128

ColombiaDerechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina (Santafé de Bogotá: Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia1999) 16; see also 28.

148

In 1996then President Jacques Chirac announced that the levée en masse would be abolished (‘Napoleon Needs You! French to do Away with its Universal Military Draft’ Pittsburgh Post-Gazette 28 February 1996); the National Service Law was amended in 1997 (Loi n° 97-1019 du 28 octobre 1997 portant réforme du service national http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FC3459C64D252FD0848FB4EA22AF1B89.tpdjo11v_1?cidTexte=JORFTEXT000000368950&dateTexte=19971109) resulting in the abolition of national service in 2001 (‘France Salutes End of Military Service’ bbc News Service 29 November 2001 http://news.bbc.co.uk/2/hi/europe/1682777.stm).

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