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28 Brit. Y.B. Int'l L. 323 (1951)
So-Called Unprivileged Belligerency: Spies, Guerrillas, and Saboteurs

handle is hein.journals/byrint28 and id is 329 raw text is: SO-CALLED 'UNPRIVILEGED BELLIGERENCY':
IN an article in the previous issue of this Year Book2 the duty of the in-
habitant of occupied territory to refrain from conduct hostile to the occu-
pant was assessed in the light of recent developments in the law, notably of
the prosecutions for war crimes following the Second World War and the
Geneva Conventions of 1949. It was suggested there that it is merely the
superior power of the occupant rather than a precept of international law
which forbids the inhabitant to injure the occupying Power. In arriving at
that conclusion it was necessary to assess the roles played in the law of
belligerent occupation by the military power of the occupant, by inter-
national law, and by municipal law. However, the somewhat perplexing
question of the scope to be given to each of these elements is not confined
to the law of belligerent occupation alone. It is present in an equally acute
form in connexion with the problem of spies, guerrillas, saboteurs, secret
agents, and other unlawful belligerents operating in areas which are not
under belligerent occupation.
I. International law applied to war
Essentially, the outbreak of war3 creates an area of anarchy in the world
order, an area in which the normal law applicable to the peaceful intercourse
of states is suspended. The propriety of statements that international law
confers a 'right' to resort to war and to exercise 'belligerent rights'* is highly
questionable, and it is probably more accurate to assert that international
Of the Judge Advocate General's Corps, United States Army. Formerly Fulbright Student
in the University of Cambridge. The opinions expressed in this article are those of the author
and do not necessarily reflect the views of the Secretary of Defence, the Secretary of the Army,
or the Judge Advocate General of the Army.
2 Baxter, 'The Duty of Obedience to the Belligerent Occupant', in this Year Book, 27 (1950),
p. 235.
I The word 'war', as used herein, refers not only to declared war but also to other cases of armed
conflict and to the occupation of another state's territory even if the occupation meets with no
armed resistance. The law of land warfare was apparently applicable to such situations even
before the adoption of the Geneva Conventions of 1949 (see Judgment of the International
Military Tribunal for the Trial of German Major War Criminals (Cmd. 6964, H.M.S.O., 1946),
p. 125, with reference to the occupation of Czechoslovakia), and the Conventions themselves are
expressly made applicable to these various types of employment of armed force (common Article 2).
4 Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War
(x86x), p. 312; Hall, A Treatise on International Law (7th ed. by Higgins, 1917), pp. 389, 411 ;
and see Jessup, A Modern Lazo of Nations(1 948), p. 157. Although the title is somewhat misleading,
Dr. Spaight makes plain early in his War Rights on Land (191 1) that the 'rights' to which he
refers are those of individuals to be protected in certain respects from the rigours of war (pp.

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