das hat Tradition, vom Lieber Code, über die Deklaration von Brüssel 1874 zu Haag.
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. Further modifications of Articles 45 and 46 met with resistance from the Dutch, Belgian, and Swiss delegates, and it seemed as if no agreement would be reached. Ultimately, following additional redrafting, 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.
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.
Bereits hier schon die zeitliche Limitierung, gemäß Lieber Code.
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, or criminals or francs-tireurs and subject to execution, as the larger European states preferred. The impasse was overcome when the Conference agreed to divide the question into two categories. 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’.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.
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. His clause was an attempt, successful as it turned out, to avoid another Brussels-like failure to adopt a binding instrument.
Quelle:
Crawford, Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict, Journal of the history of International Law (2017) Seite 329–361
