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HUMANIZING THE LAWS OF WAR
This page intentionally left blank
Humanizing the Laws
of War
Selected Writings of Richard Baxter

R I C H AR D B A X T E R
Edited by
DETLEV F. VAGTS
THEODOR MERON
S T E P H E N M. SC H W E B E L
and
CHARLES KEEVER

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Richard Baxter, 1950–1977; Introduction, Detlev F. Vagts, 2013;
Biographical Note, Stephen M. Schwebel, 2013
The moral rights of the authors have been asserted
First Edition published in 2013
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2013938187
ISBN 978–0–19–968025–2
Printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 Contents

The Selected Writings of Richard Baxter vii

Introduction and Biographical Note

Detlev F. Vagts and Stephen M. Schwebel 1
1. The Duty of Obedience to the Belligerent Occupant 7
2. So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas,
and Saboteurs 37
3. The Municipal and International Law Basis of Jurisdiction
Over War Crimes 59
4. Constitutional Forms and Some Legal Problems of International
Military Command 73
5. The Geneva Conventions of 1949 107
6. The First Modern Codification of the Law of War 121
7. Forces for Compliance with the Law of War 149
8. Legal Aspects of the Geneva Protocol of 1925
(with Thomas Buergenthal) 167
9. The Law of War in the Arab-Israeli Conflict: On Water and on Land 195
10. A Skeptical Look at the Concept of Terrorism 211
11. Legal Aspects of Arms Control Measures Concerning the
Missile Carrying Submarines and Anti-Submarine Warfare 219
12. The Law of War 233
13. Perspective—The Evolving Laws of Armed Conflicts 249
14. Ius in Bello Interno: The Present and Future Law 259
15. The Geneva Conventions of 1949 and Wars of National Liberation 277
16. Humanitarian Law or Humanitarian Politics? The 1974
Diplomatic Conference on Humanitarian Law 287
17. Armistices and Other Forms of Suspension of Hostilities 309
18. Human Rights in War 341
19. Modernizing the Law of War 347

Index 363
This page intentionally left blank
 The Selected Writings of Richard Baxter
The editors and publisher gratefully acknowledge permission for the use of Richard
R. Baxter’s writings in the following:
‘The Duty of Obedience to the Belligerent Occupant’ first appeared in The British
Year Book of International Law, Vol. 27, 1950, pp. 235–266. Permission for republi-
cation granted by Chatham House, also known as the Royal Institute for Inter-
national Affairs.
‘So-Called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs’ first appeared
in The British Year Book of International Law, Vol. 28, 1951, pp. 323–345. Permission
for republication granted by Chatham House, also known as the Royal Institute for
International Affairs.
‘The Municipal and International Law Basis of Jurisdiction Over War Crimes’ first
appeared in The British Year Book of International Law, Vol. 28, 1951, pp. 382–393.
Permission for republication granted by Chatham House, also known as the Royal
Institute for International Affairs.
‘Constitutional Forms and Some Legal Problems of International Military Com-
mand’ first appeared in The British Year Book of International Law, Vol. 29, 1952,
pp. 325–359. Permission for republication granted by Chatham House, also
known as the Royal Institute for International Affairs.
‘The Geneva Conventions of 1949’ first appeared in Naval War College Review,
Vol. VIII No. 5, January 1956, pp. 59–82.
‘The First Modern Codification of the Law of War: Francis Lieber and General
Order No. 100’ first appeared in International Review of the Red Cross, Vol. 3,
No. 25, April 1963, pp. 171–189 and International Review of the Red Cross,
Vol. 3, No. 26, May 1963, pp. 234–250. Permission for republication granted
by Cambridge University Press.
‘Forces for Compliance with the Law of War’ first appeared in Proceedings of the
American Society of International Law at Its Annual Meeting (1921–1969), Vol. 58,
‘Causing Compliance with International Law’, April 23–25, 1964, pp. 82–99.
‘Legal Aspects of the Geneva Protocol of 1925’ (with Thomas Buergenthal) first
appeared in the American Journal of International Law, Vol. 64, 1970, pp. 853–879.
‘The Law of War in the Arab-Israeli Conflict: On Water and on Land’ first
appeared in Towson State Journal of International Affairs, Vol. VI, No.1, Fall
1971, pp. 1–15. Permission for republication granted by Towson State Journal of
International Affairs.
‘A Skeptical Look at the Concept of Terrorism’ first appeared in Akrom Law
Review, Vol. 7:3, Spring, 1974, pp. 380–387. Permission for republication granted
by Estate of Richard R. Baxter.
viii The Selected Writings of Richard Baxter
‘Legal Aspects of Arms Control Measures Concerning the Missile Carrying Sub-
marines and Anti-Submarine Warfare’ first appeared in The Future of the Sea- Based
Deterrent, edited by Kosta Tsipis, Anne H. Cahn, and Bernard T. Field, Cam-
bridge, MA: The MIT Press, 1974, pp. 213–232. Permission for republication
granted by The MIT Press.
‘The Law of War’ first appeared in The Present State of International Law and Other
Essays: Written in Honour of the Centenary Celebration of the International Law
Association 1873–1973, edited by Maarten Bos, The Netherlands: Kluwer, 1973,
pp. 107–124. Permission for republication granted by the International Law
Association.
‘Perspective—The Evolving Laws of Armed Conflicts’ first appeared in Military Law
Review, Vol. 60, 1973, pp. 99–111. Department of the Army Pamphlet 27-100-60,
p. 99 [with opinions and conclusions not necessarily representing the views of The
Judge Advocate’s Legal Center and School, the United States Army, or any other
government agency].
‘Ius in Bello Interno: The Present and Future Law’ first appeared in Law and Civil
War in the Modern World, edited by John Norton Moore, Baltimore: The John
Hopkins University Press, 1974, pp. 518–536. Reprinted with permission of The
Johns Hopkins University Press.
‘The Geneva Conventions of 1949 and Wars of National Liberation’ first appeared
in International Terrorism and Political Crimes, edited by M. Cherif Bassiouni, New
York: Thomas Publishing, 1975, pp. 120–132. Permission for republication granted
by Charles C. Thomas.
‘Humanitarian Law or Humanitarian Politics? The 1974 Diplomatic Conference
on Humanitarian Law’ first appeared in Harvard International Law Journal,
Vol. 16, 1975, pp. 1–26. With permission of Harvard University/Law School
and conveyed through Copyright Clearance Center, Inc.
‘Armistices and Other Forms of Suspensions of Hostilities’ first appeared in
Collected Courses of the Hague Academy of International Law, Vol. 149, 1976,
pp. 355–398. Permission for republication granted by The Hague Academy of
International Law.
‘Human Rights in War’ first appeared in Bulletin of the American Academy of Arts
and Sciences, Vol. 31, No. 2 (Nov., 1977), pp. 4–13. Permission for republication
granted by Estate of Richard R. Baxter.
‘Modernizing the Law of War’ first appeared in Military Law Review, Vol. 78,
1977, pp. 165–183 [with opinions and conclusions not necessarily representing the
views of The Judge Advocate General’s Legal Center and School, the United States
Army, or any other government agency.]
 Introduction

Richard Baxter was the preeminent figure in the field of the law of war during the
period 1950 to 1980. He was an outstanding scholar as is evident from the articles
republished here. But he was also active in a variety of other ways. He participated
in the redrafting of FM 27–10, the U.S. Army’s field manual on the Law of Land
Warfare in 1956. He took part in diplomatic conferences and negotiations. He
urged Congress to act to curb poisonous weapons. As Counselor on International
Law in the Department of State he was active in the formulation of the Foreign
Sovereign Immunities Act of 1976. He left no doubt about his convictions. He
consistently favored moves that would enhance the protections afforded to those
injured or threatened by armed conflict. An outstanding example was his reaction to
the position advanced by a group of scholars that the law of war was not applicable
to the United Nations.
How can the view that the law of war is not applicable to a United Nations action be
reconciled with the humanitarian inspiration of the law of war? The Committee’s conclu-
sion would seem to suggest that the laws relating to prisoners of war, the sick and wounded,
belligerent occupation, are not of their own force applicable to the United Nations forces. If
these bodies of law are set aside, one can only conclude that the United Nations forces are
not to be influenced by humanitarian considerations in the conduct of hostilities. It must be
that the United Nations will be guided by some new standard of humanity, yet unknown to
us when it starts the selective process of deciding what principles will guide its conduct.
Fortunately the Baxter view prevailed and UN forces are subject to humanitarian
law.1

A Biography of Richard Baxter

Stephen M. Schwebel
Richard R. Baxter was born in New York City in 1921 and died in Cambridge,
Massachusetts in 1980, at the age of 59. His death was tragically premature, not
only because of his age but because it cut short, at its outset, his service as a Judge of
the International Court of Justice. He sat from February 1979 to September 1980,

1 Frederic Kirgis, The American Society of International Law 248 (2006).

2 Humanizing the Laws of War
and fell gravely ill during the spring of 1980. He took part only in the momentous
case of United States Diplomatic and Consular Staff in Tehran.
Judge Baxter was graduated from Brown University summa cum laude in 1942
and received an LL.B from Harvard Law School in 1948. Following wartime
service as an enlisted man and officer, Baxter was in the Regular Army from
1947 to 1954. At the time of his resignation from the Army, he was Chief of the
International Law Branch in the Office of the Judge Advocate General.
The Army sent Captain (shortly, Major) Baxter to Cambridge University in
1950 to work for a year with Professor H. Lauterpacht, Whewell Professor of
International Law, who was widely acknowledged to be the world’s leading inter-
national legal scholar. Lauterpacht had recently revised the British Manual of
Military Law while Baxter was engaged in the revision of the United States Rules
of Land Warfare made necessary by the adoption of the Geneva Conventions of
1949 and developments in the law of war that flowed from World War II and the
Korean conflict. Baxter’s year in Cambridge was a turning point in his career.
Lauterpacht became a patron of Baxter’s career as Arnold McNair had been a
patron of his. He was instrumental in Baxter being appointed in 1954 to a research
and teaching position at Harvard Law School which ripened into an appointment
as a professor of law and the first holder of the Manley Hudson Chair of Inter-
national Law. Baxter’s early articles on the law of war were published in The British
Year Book of International Law, then edited by Lauterpacht.
A product of Baxter’s research period at Harvard Law School was the preparation
of his monograph on The Law of International Waterways. In the latter part of his
twenty years of teaching at Harvard Law School, he devoted a great deal of time and
effort to the writing, together with Professor Louis B. Sohn, of a study on State
responsibility for the U.N. International Law Commission. Baxter’s widely pub-
lished articles, comments and book reviews, not only on the law of war but also on
other topics of international law such as the relationship between treaties and
customary international law, were of exceptional quality.
Baxter devoted as much care to the preparation and conduct of his classes, and to
the mentoring of his students, as he did to his scholarship. He taught torts and
criminal law as well as international law in order to burnish his credentials both
with professors and students, some of whom tended to treat international law as a
subject removed from the mainstream of Harvard Law School’s concerns.
Baxter was a member of the board of editors of the American Journal of
International Law for many years, and the Journal ’s editor-in-chief from 1970 to
1978. He was a superb editor. He worked at it relentlessly like a jovial demon.
His comments on prospective manuscripts were detailed and constructive, or
dispositive, as the manuscript merited. Many an author could have listed him as
a co-author, so extensive and excellent were his annotations. The meetings of
the board of editors, under his cheery chairmanship, were a delight. He would
distribute a list of articles he had not thought worthy of submission to other editors
for analysis but had rejected on his own authority; he disposed of a hundred or
more each year, in addition to his other editing work. Each entry was accompanied
 Introduction 3

by a pithy dispositive comment worthy of The New Yorker magazine. The list was
destroyed at the end of the meeting to avoid embarrassing those whose submis-
sions had been rejected—an act characteristic of Baxter’s concern for the feelings of
others.
For two years, while editor-in-chief of the Journal, Baxter concurrently served as
President of the American Society of International Law. Among his many contri-
butions to the Society was the lead he took in organizing a student branch of the
Society. That led to the creation of the Association of Student International Law
Societies, which in turn has contributed to the proliferation of the publication of
student international law journals.
Baxter was the first to propose and put into operation a moot court devoted to an
international legal problem. That Harvard Law School experiment was the seed of
what became the Jessup Competition (named by him). He played a primary role in
the conception and launching of International Legal Materials. He was a regular
contributor to International Law Reports, under the editorship of Professor
H. Lauterpacht and subsequently, Eli Lauterpacht. While serving as Counselor
on International Law of the State Department, he was influential in the establish-
ment of the annual Digest of United States Practice in International Law. Earlier
Baxter conducted a recurrent, short and intensive course on international law for
mid-level officers at the Naval War College at Newport. He assembled a band of
experts from the United States and abroad, such as his great friend from his
Cambridge days, Eli Lauterpacht. The seminar problems Baxter skillfully devised
were demanding and the faculty and officers who participated in the Baxter short
course enjoyed a stimulating intellectual experience.
Baxter distinguished himself during his year of State Department service as
Counselor on International Law, and was a leading representative of the United
States in the Geneva conferences that concluded the Protocols to the Geneva
Conventions on the Law of War.
Baxter’s nomination in 1978 for election to the International Court of Justice
was universally supported in the international law community. But it was a close
thing, because President Carter, unaware of the nominating procedures prescribed
by the Statute of the Court, had promised the nomination to a former Justice of the
Supreme Court of the United States. The then Legal Adviser of the State Depart-
ment made strenuous efforts to persuade the U.S. National Group to give effect to
President Carter’s commitment, but the Group, responsive to the overwhelming
support for Baxter in the international law community, stood firm for Baxter’s
nomination. Once nominated, he was handily elected.
Had Baxter not been struck down by cancer in his 59th year, he would
have served as a judge of the International Court of Justice with the distinction
that had marked every phase of his career. His bitterly premature death grieved his
legions of friends and admirers and deprived the Court of a great mind and great
heart.
4 Humanizing the Laws of War

Guide to Baxter’s Scholarship on Humanitarian Law

Detlev F. Vagts
A full listing of Richard Baxter’s writings would cover a broad range of international
law, including such basic topics as treaties and the formation of customary law. They
appeared in a wide variety of places—in law journals, popular magazines, congres-
sional hearings, lectures at the Naval War College, the Harvard Law School and the
Hague Academy. Many of his works are difficult to access at this time.
One of Baxter’s achievements is not reproduced here. He made a major contri-
bution to the 1956 revision of FM 27–10, the Army manual on the Law of Land
Warfare. However, that was an institutional publication and Baxter, one infers, did
not agree with all of it.2 He played a significant role in getting the 1956 project
under way. The then extant version of the Manual dated to 1940 and had been
overtaken by events in many respects. Baxter attended a conference in Cambridge,
England and spurred on the American Society of International Law to support the
project.3 Though amended, the 1956 version guided many American officers over
the years and remains the basic text.
As one turns one’s focus to his oeuvre on humanitarian law we find such wide-
ranging pieces as his classic article on the life and work of Francis Lieber, the
progenitor of modern humanitarian international law.4 Much of his work can be
grouped around two problem areas. The first was the issue of the applicability of
humanitarian law during conflicts involving combatants who do not belong to a
nation state. The other was the need to protect non-combatant civilians from death
and injury during conflicts, an issue of critical importance during World War II
that remains undeniably significant.
Despite the hope that World War II had been the war to end wars, a hope that
discouraged many from studying the laws of war, conflicts persisted. In the Baxter
period non-state conflicts arose in the context of what were called wars of national
liberation.5 The peoples of Dutch, English, French, and Portuguese colonies were
rising to claim independence and nationhood. Their fighters did not operate like
regular armies. They struck at moments of opportunity and then disappeared into
the jungle or the forest or into the mass of the peaceful population. They wore no
uniform and had no commanders who could be held responsible for violations of
the laws of war. They committed acts regarded as treachery by orthodox observers

2 We have on file an early typewritten draft dated March 1, 1954, which we could furnish to any

interested scholar.
3 On this history see Donald A. Wells, The Laws of Land Warfare: A Guide to the U.S. Army

Manuals 11, 18–20,176–78 (1992).

4 “The First Modern Codification of the Law of War; Francis Lieber and General Order No. 100”.

The works and legacy of Francis Lieber have recently been re-examined in John Fabian Witt, Lincoln’s
Code: The Laws of War in American History (2012).
5 “The Geneva Conventions of 1949 and Wars of National Liberation” (Chapter 15); The Geneva

Conventions of 1949 and Wars of National Liberation, International Terrorism and Political Crimes
(Item 187).
 Introduction 5

and were ruthless about the losses suffered by their non-combatant fellow citizens.
The long struggle of Algeria for independence from France incorporated all of these
elements. Such fighters were basically guerillas, labeled by Baxter as “unprivileged
combatants” not entitled to prisoner-of-war status if captured.6
Somewhat similar to those clashes was the long war in Vietnam which could be
classified in various ways—as an interstate clash between the United States and
Vietnam, as an uprising by the Viet Cong against the Western-oriented govern-
ment of the Republic of Vietnam in Saigon, or as a mixture of the two. The United
States and Republic of Vietnam armies fought against both uniformed regulars
from the North and non-uninformed guerillas indigenous to the South. The other
protracted struggle involving the United States was the Korean War of 1950–53,
which was a confrontation between the armed forces of two states and entailed the
establishment of a United Nations Command comprising large American forces
and lesser but significant contributions by more than a dozen other countries as
well as the army of the Republic of Korea. It terminated without a peace treaty.7
The United States avoided direct participation in the long lasting wars between
Israel, the Arab states, and the population of the territories occupied by Israel.8
Other hostilities did not involve the United States, such as those between India and
Pakistan, between Iran and Iraq, and between the Communist and Nationalist
armies of China. More complications were introduced by the new phenomenon of
conflicts in which United Nations forces participated. Forces for Compliance with
the Law of War (Chapter 7). As noted above, Baxter reacted forcefully to the idea
that they are somehow exempt from compliance with law.
As of 2012 learning about the comparable set of issues is concentrated on
“terrorism” and the battles waged by the United States to repel it. The concept
of terrorism is difficult to define and one sees why Baxter took a skeptical look at
terrorism (Chapter 10). Al Qaeda is an even stranger foe than guerillas since it often
operates without appearing in public. Who is a member may be quite unclear and
people may commit terrorist acts without being in any way organizationally
connected with it. U.S. courts have treated the battle against Al Qaeda as a “war”
for various purposes.9 We have established military commissions designed after a
World War II model.10 The rules establishing them were hastily drafted and
unclear in a manner that would have exasperated Baxter’s orderly mind. One of
the puzzles they create is the question of what constitutes a violation of the laws of
war, a prerequisite for a military prosecution.11 Does conspiring to aid a terrorist

6 “So-Called ‘Unprivileged Belligerency’ Spies, Guerrillas and Saboteurs” (Chapter 2).

7 “Armistices and Other Forms of Suspensions of Hostilities” (Chapter 17). For a recent study of
the end of wars see Note, “The End of Al Qaeda? Rethinking the End of the War on Terror”, 110
Colum. L. Rev. 1865 (2010).
8 “The Law of War in the Arab-Israeli Conflict: On Water and on Land” (Chapter 9).
9 Hamdan v. Rumsfeld, 553 U.S. 557 (2006); compare Boumediene v. Bush, 553 U.S. 773 (2008)

(detention of “terrorist” suspects).

10 Ex parte Quirin, 317 U.S. 1 (1942).
11 To extend military jurisdiction to other crimes would violate the constitutional guarantees of the

right to trial by jury. See Detlev Vagts, “Military Commissions: Constitutional Limits on their Role in
the War on Terror”, 102 Am. J. Int’l L. 573 (2008).
6 Humanizing the Laws of War
amount to such an act? Baxter with his proclivity to adhere to established rules
would probably not have thought so. We have denied terrorists prisoner of war
status. Baxter would have been aghast at the cruelties inflicted by our agents at Abu
Ghraib, Guantanamo, and elsewhere, as aghast as he was at the atrocities at My Lai
in Vietnam.
Baxter took a deep interest in weaponry, old and new, and in the ways it could be
controlled so as to minimize injury to non-combatants. He wrote about poison gas,
its use during World War I and the 1925 Geneva Convention that outlawed its
use.12 Nuclear warfare also drew his attention. He addressed the devastation of
civilian homelands during World War II, in particular through area bombing, that
caused demands for a revisiting of those issues. Meeting in Geneva the nations
produced Additional Protocols to the 1949 Geneva Conventions in 1977. Along
with George Aldrich, Baxter participated actively in the negotiations.13 Although
the United States did not ratify them it has regarded important portions of them as
representing customary international law binding on all nations. As a result Air
Force operations during the two Gulf wars were carefully planned and monitored
so as to minimize civilian losses. Technical advances making weaponry more precise
helped. Baxter would have been gratified to see the intense involvement of lawyers
in the targeting process in those wars and in the fighting in Afghanistan.
At the end of his career Baxter took part in creating a collective writing—the
judgment in the Tehran Embassy case in the World Court.14 The opinion was
joined by all the Western judges. Baxter must have been embarrassed by the failure
of the clumsy American attempt to rescue the hostages by force.
In all of his writings Baxter displayed a straightforward, economical style. He was
always realistic and unsentimental in appraising the claims of contending parties.
He could sense what restrictions different countries and armies could be persuaded
to accept. He drew upon an intimate knowledge of military affairs built upon his
service in the United States Army. Although he could not predict developments any
more than the rest of us he was constantly aware of change as in his “Perspective—
The Evolving Laws of Armed Conflicts” (Chapter 13). This volume constitutes the
only published collection of Baxter’s writings on the law of war available to the
armed forces, government leaders, scholars, and the public. They are as important
and timely now as when they were written.

12 “Legal Aspects of the Geneva Protocol of 1925” (with Thomas Buergenthal) (Chapter 8); “Legal

Aspects of the Geneva Protocol of 1925 in The Control of Chemical and Biological Weapons” (Item
137). The United States is now committed by treaty to destroying all of its stock of such weapons.
13 See George Aldrich, “The Laws of Land Warfare”, 94 Am J. Int’l L. 42 (1980).
14 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.C.J.

Rep. 3.
 1
The Duty of Obedience to the
Belligerent Occupant*

When enemy territory has been subjected to belligerent occupation, the inhabitants
of that area are commonly said to be under a duty not to commit acts which would
jeopardize the security of the occupant. Violations of this duty of obedience are
often described in terms of ‘war treason’ and ‘war rebellion’. However, there has
been no agreement on the questions whether the juridical basis for this obligation
is to be sought in international law, in the municipal law of the occupied state, or
merely in the superior force of the occupant and whether its violations may
accurately be described in terms borrowed from municipal law. The ruthless-
ness and disregard for international law which have characterized the conduct of
belligerent occupations during two world wars have raised these questions in a
particularly acute form. Although the Geneva Convention relative to the Protection
of Civilian Persons in Time of War of 12 August 1949 profited from experience
gained since the adoption of Hague Convention No. IV of 1907, it did not
purport to be a complete recodification of the law of belligerent occupation.1
The fundamental question of the relationship existing between the inhabitant
and the occupying Power remains for the most part a problem of the common
law of war and is illuminated only fitfully by explicit provisions of the new Geneva
Convention.
The protection of the civilian population of occupied areas against oppression by
the occupant has consistently been a guiding principle of the law of belligerent
occupation. In the changing tides of warfare it is essential that, to the maximum
extent compatible with the conduct of hostilities, the civilian non-combatant
should be safeguarded in his person, his property, his loyalties, and in the legal
order to which he is subject. It is inevitable, however, that the inhabitants of an
occupied area will chafe under enemy rule and under the restrictions placed upon
them in the interest of the occupant’s security and that they will in numerous
instances, acting either singly or in concert, commit acts inconsistent with the
security of the occupying forces. The occupant must undoubtedly have the means

* This article first appeared in The British Year Book of International Law, Vol. 27, 1950,
pp. 235–266. This article originally featured footnote numbering which restarted at each new page.
For this republication the footnotes now run sequentially.
1 Art. 154. See Gutteridge, ‘The Geneva Conventions of 1949’, in this Year Book, 26 (1949),

pp. 318–19.
8 Humanizing the Laws of War
of dealing, and dealing severely, with such acts, whether or not they arise from
hostile intent. It must be recognized, on the other hand, that there is a tendency for
the occupant to project his anger indiscriminately upon the guilty and innocent
alike and to impose excessive penalties on the wrongdoers when he is exposed to
conduct prejudicial to his safety. On what juridical basis the legitimate protection
of the occupant against hostile or dangerous acts may best be reconciled with the
protection of civilians against arbitrary and unwarranted penalties and punishments
is the problem to which this article is directed. To this end it will be necessary to
consider the nature of the duty which the inhabitant owes to the occupant and the
propriety of describing acts of resistance as ‘war treason’ or as ‘war rebellion’.

I. The inhabitant’s duty to the occupant

As the law of belligerent occupation developed out of the law which was at one time
applicable to conquered territory and ultimately attained an independent status,
theories of the nature of the duty owed to the occupant by the inhabitants of the
area he occupies have undergone a corresponding change.

1. Allegiance
Prior to the emergence of a distinct law of belligerent occupation during the second
half of the eighteenth century and the early nineteenth century, enemy territory
occupied by armed forces immediately became part of the territory of the occupying
state.2 The unqualified allegiance of the inhabitants of the area was, as a matter of
course, demanded by the occupant, and their relationship to the occupant was left
entirely to municipal law.3 Thus when Louis XIV took Namur in 1692, the
magistrates of the city came to him the next day to render him homage as his loyal
subjects.4 Although there were intimations in the great texts of the seventeenth
century that mere belligerent occupation of territory is precarious and that the very
uncertainty of the fortunes of war demands restraint in the exercise of belligerent
‘rights’,5 it remained for Vattel and for Klüber and Heffter in the nineteenth century
to assert that sovereignty over an occupied area does not pass to the occupant while
hostilities are still in progress. Until a debellatio, normally in the form of a peace
treaty, which determines the disposition to be made of the territory, the state whose
territory it is is deprived only of the exercise of certain attributes of sovereignty.6

2Nys, Le Droit international. Les principes, les théories, les faits, vol. iii (1912), p. 223.
3See, e.g., Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764), } 892; Heffter, Das
europäische Völkerrecht der Gegenwart (1st ed., 1884), } 132.
4 Van Nispen tot Sevenaer, L’Occupation allemande pendant la dernière guerre mondiale (1946),

p. 157.
5 Grotius, De Jure Belli ac Pacis (1625), Book iii, Ch. vi, iv. 1; Pufendorf, De Jure Naturae et

Gentium Libri Octo (1688), Book viii, Ch. vi, } 7.

6 Vattel, Le Droit des gens (1758), Book iii, Ch. xiii; Klüber, Droit des gens moderne de l’Europe

(1831), } 256; Heffter, op. cit., }} 131–3.

 The Duty of Obedience to the Belligerent Occupant 9

The theory that an occupied territory immediately becomes part of the occupy-
ing state was slow to die. An English court could state in 1814 that: ‘No point is
more clearly settled in the Courts of Common Law than that a conquered country
forms immediately part of the King’s dominions.’7 In 1875 Sir Travers Twiss still
maintained that a belligerent nation taking possession of an enemy’s territory
acquires sovereignty over it.8 A revision of de Martens’ text which was published
a decade earlier contains a statement that a state which makes itself master of an
enemy province may demand homage from the inhabitants.9 During the war
between the United States and Mexico, General Kearney issued a proclamation
absolving all persons residing in the occupied portion of Mexico from their
allegiance to that republic and claiming them as citizens of the United States—an
act which did not pass without criticism in Congress.10 However, these are but
isolated instances during a period of change. Already, during several wars of the
eighteenth century, new theories of belligerent occupation had been given applica-
tion.11 A demand by the occupant for unqualified and permanent allegiance
gradually ceased to have the sanction of law or of general practice.

2. Temporary allegiance
In Anglo-American law, as distinguished from that of the Continent, the relation-
ship of the population of an occupied area to the occupant was, during a large
portion of the nineteenth century, described in terms of temporary allegiance. This
view is particularly apparent in the American jurisprudence of the period. It
received its first statement in United States v. Hayward,12 in which Mr. Justice
Story made his celebrated statement that by the military occupation of Castine,
Maine, by British forces, the inhabitants thereof passed under a temporary alle-
giance to the British Government. Subsequent opinions of the United States
Supreme Court adopted this principle,13 but in 1830 the Court tempered its
holding by suggesting that the occupation of James Island and Charleston by the
British in 1780, while causing the inhabitants to owe temporary allegiance to Great
Britain, did not ‘annihilate their allegiance to the state of South Carolina’.14 This
judicial characterization of the effect of belligerent occupation represented the state

7 The Foltina (1814), 1 Dods. 450, 451, 165 E.R. 1374, 1375. Cf. The Gerasimo (1857), 11 Moo.

P.C. 88, 14 E.R. 628, which indicates that, at least with respect to the question of the enemy character
of occupied territory, the principle enunciated in The Foltina had by 1857 ceased to prevail.
8 The Law of Nations Considered as Independent Political Communities. On the Rights and Duties of

Nations in Time of War (2nd ed., 1875), } 64.

9 Précis du droit des gens moderne de l’Europe (2nd ed. by Vergé, 1864), } 280.
10 House Executive Document No. 19, 29th Congress, 2nd Session, pp. 20 ff., cited in Thomas,

A History of Military Government in Newly Acquired Territory of the United States (1904), p. 104. For a
criticism of General Kearney’s conduct, see the remarks of Mr. Holmes in Congressional Globe, 29th
Congress, 2nd Session, p. 18.
11 Nys, op. cit., vol. iii, p. 223. A number of historical instances are collected at pp. 227–33.
12 (C.C. Mass. 1815), F. Cas. No. 15,336, 2 Gall. 485.
13 United States v. Rice (1819), 4 Wheat. 246; Fleming et al. v. Page (1850), 9 How. 603; Thorington v.

Smith (1868), 8 Wall. 1.

14 Shanks v. Dupont (1830), 3 Pet. 242.
10 Humanizing the Laws of War
of the law during the war with Mexico and formed the basis of political pronounce-
ments of the time.15
Repeated judicial affirmations of this principle left little room for dissent upon
the part of American international lawyers. The duty of allegiance is, according to
Halleck, writing in 1861, reciprocal to the duty of protection which rests on the
occupant, but because of the incompleteness and instability of occupation, the
allegiance is only a temporary or qualified one.16 In fact, the civilian inhabitants of a
place taken by the enemy who are allowed to lay down their arms and return to
their peaceful pursuits are ‘virtually in the condition of prisoners of war on
parole’.17 Other authors, in extending this characterization to the inhabitants of
occupied areas generally, overlooked the fact that Halleck had been speaking of
members of defending armed forces who had surrendered and been allowed to
assume peaceful occupations.18 The American writers often speak of an ‘implied
covenant’ or an ‘implied parole’ to remain quiescent which is imputed to the
inhabitants and forms the basis of their allegiance to the occupant.19 During the
nineteenth century Mr. Justice Story’s remarks in United States v. Hayward were
also quoted and approved by a number of British writers on the subject.20
The adoption of Article 45 of the Regulations annexed to Convention No. IV of
The Hague of 1907, which forbade compelling the population of occupied terri-
tory to swear allegiance to the hostile Power, eventually made this theory untenable.
The question of the exaction of an oath of allegiance had previously attracted
relatively little attention. The United States Instructions for the Government of
Armies of the United States in the Field, which came into use during the Civil
War, had stated no more than that an oath of fidelity or temporary allegiance might
be administered to civil officers in the occupied territory,21 but Bluntschli’s
paraphrase of this provision carried an annotation to the effect that an ‘oath of
citizenship’ could not be demanded in occupied territory until the conclusion of

15 In replying to Congressional inquiries concerning the administration of the occupied portion of

Mexico, President Polk, in a message to the House of Representatives on 24 July 1848, stated that the
inhabitants of this area owed a temporary allegiance to the United States. He quoted extensively from
United States v. Rice (Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897
(1897), vol. iv, p. 595).
16 International Law; or, Rules Regulating the Intercourse of States in Peace and War (1861), p. 791.
17 Ibid., p. 793.
18 See, e.g., Rolin-Jaequemyns, ‘Chronique du droit international. Essai complémentaire sur la

guerre franco-allemande dans ses rapports avec le droit international’, in Revue de droit international et
de législation comparée, 3 (1871), p. 312.
19 Field, Draft Outlines of an International Code (1872), vol. ii, p. 482; Birkhimer, Military

Government and Martial Law (1892), pp. 38–41. Dana’s notes in his edition of Wheaton state that
the occupying forces have ‘a right to require of the inhabitants an oath or parole, not inconsistent with
their general and ultimate allegiance to their own state’ to remain quiet and submit to the occupant’s
authority (Wheaton, Elements of International Law (8th ed. by Dana, 1866)), p. 436, note. Although
Hannis Taylor believed that temporary or qualified allegiance is owed to the occupant, he adopted the
view that there is no legal or moral impediment to insurrection by the inhabitants if they are willing to
undergo the perils of such an enterprise (A Treatise on International Public Law (1901), pp. 585–92).
20 Phillimore, Commentaries upon International Law (3rd ed., 1885), vol. iii, p. 869; Creasy, First

Platform of International Law (1876), p. 512; Wheaton, op. cit. (3rd English ed. by Boyd, 1889),
p. 469.
21 Art. 26, General Orders No. 100, War Department, Adjutant General’s Office, 24 April 1863.
 The Duty of Obedience to the Belligerent Occupant 11

peace.22 A provision substantially similar to Article 45 had originally been drafted at

the Brussels Conference of 187423 and was repeated in the Oxford Manual
prepared by the Institute of International Law in 1880.24 With the unequivocal
statement of the 1899 Regulations, which was repeated without further discussion
in 1907,25 it was hardly possible to argue that an inhabitant owed any duty of
allegiance to the occupant. More recently, the Geneva Civilians Convention of
1949 has called attention to the fact that an individual in occupied territory who
has committed an offence against the occupying Power is not to be considered as
bound to the occupant by any duty of allegiance.26

3. A duty of obedience created by international law

A third theory of the duty of the inhabitant to the occupant, which stands in
roughly chronological succession to the view just described, is cast in terms of a duty
of obedience imposed by the law of nations. Although this view of the relationship
of persons involved in belligerent occupation would certainly not create any greater
latitude to commit acts hostile to the occupant, the difference in terminology is
nevertheless significant. It suggests forcefully that the relationship of the inhabitant
to the occupant is quite different in nature from the relationship of a citizen to his
own country, and correspondingly that acts inconsistent with the security of the
occupant and offences against the integrity of the state must belong to two separate
bodies of law. In practical terms, it indicates moreover that the inhabitant may not
be called upon to do certain acts, such as performing military service or forced
labour or furnishing information on hostile activities, which might properly be
expected of one owing allegiance.
Those who adopt the view that a duty of obedience is created by international
law assert that the rationale of this principle lies in the consideration that a duty of
obedience and submission is owed in return for the protection the inhabitant
receives. A number of continental writers find a jurisprudential basis for this duty
in what is variously described by Guelle as une espèce de quasi-contrat, by Loening as
a communauté de droit, and by Fiore and Calvo as une sorte de contrat moral between
occupant and occupied.27 If an inhabitant breaches this social contract, which

22 Das moderne Völkerrecht der civilisirten Staaten (1868), } 551.

23 Art. 37. The provision in the projet submitted to the Conference by the Russian Government had
been that the occupied population could not be required to submit to a ‘serment de sujétion
perpetuelle’ to the enemy (see Art. 49, Projet, in Actes de la Conférence de Bruxelles (1874)).
24 Art. 47, ‘Manuel des lois de la guerre’, in Annuaire de l’Institut de droit international, 5 (1881–2),

p. 167. In a penal code of war prepared by de Landa in 1878, the requiring of an oath (of apparently
any nature) of the population of occupied territory rendered the occupant guilty of an abus d’autorité
(‘Droit pénal de la guerre. Projet de classification des crimes et délits contre les lois de la guerre’, in
Revue de droit international et de législation comparée, 10 (1878), p. 183).
25 See The Proceedings of the Hague Peace Conferences. The Conference of 1899 (ed. by Scott, 1920),

pp. 63, 428, 487, 557.

26 Art. 68. See also Art. 67, which provides in part that ‘They [the courts of the occupant] shall take

into consideration the fact that the accused is not a national of the Occupying Power.’
27 Guelle, Précis des lois de la guerre sur terre (1884), vol. i, p. 130; Loening, ‘L’Administration du

gouvernement-général de l’Alsace durant la guerre de 1870–1871’, in Revue de droit international et de

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