Levée en masse

International Humanitarian Law

Levée En Masse 
• The term applied to 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 into regular armed forces. They must be regarded as 
combatants if they carry arms openly and respect the laws and customs of
armed conflict.
If captured they have a right to be treated as prisoners of war. The levée
en masse should not be confused with resistance movements.
• Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
• RELATED RULE
• Section B. Levée en masse
Treaties
• Hague Regulations (1899)
• Article 2 of the 1899 Hague Regulations provides:
• 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, shall be regarded as
belligerents, if they respect the laws and customs of war.
• Hague Regulations (1907)
• Article 2 of the 1907 Hague Regulations provides:
• 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.
• Geneva Convention III
• Article 4(A)(6) of the 1949 Geneva Convention III grants prisoner-of-
war status to persons taking part in a levée en masse “provided they
carry arms openly and respect the laws and customs of war”
II. Other Instruments

• Lieber Code
• The 1863 Lieber Code states:
• 51. 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.
• 52. 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.
German Invasion of Crete (Example-Case study)
• Judge Rüdel, in charge of investigating allegations about crimes
committed against parachutists, first questioned numerous wounded
soldiers who had been flown to hospitals in Athens. Their testimony
convinced the chief of staff of the 11th Air Corps, Major General Alfred
Schlemm, that a special commission under intelligence officer Major
Johannes Bock should be sent forthwith to Crete to continue on-site
investigations. Rüdel, as a member of the commission, flew to Crete on
May 28, 1941. On 14 July he submitted a long report more favorable to
the British military than to the Cretan civilian population. He summed up:
• On the basis of sworn testimony of German soldiers who participated in
the fighting on Crete, [plus] interrogation of Greek and British soldiers,
and aided by photographic evidence, we could establish the following:
Cont..
• Participation of civilians and policemen in open battle on all battlefields, especially in the western parts
of the island; in some areas civilians offered organized resistance according to military principles. The
civilian population, including youngsters about ten years old, fired with all sorts of weapons, also with
dumdum and hunting ammunition. Bush and tree snipers were repeatedly observed... .
• Dead and wounded soldiers were robbed and deprived of parts of their clothing, primarily by the
civilian population.
• On corpses of German soldiers countless mutilations have been established; some had their genitals
amputated, eyes put out, ears and noses cut off; others had knife wounds in the face, stomach, and
back; throats were slit, and hands chopped off. The majority of these mutilations were probably
defilement of the dead bodies; only in a few cases does the evidence indicate that the victim was
maltreated and tortured to death. A number of corpses were found with hands, arms, or legs tied up; in
one case the corpse had a cord around his neck... .
• On the enemy side the use of German uniforms, especially parachutist combinations and steel helmets,
was observed. Similarly, in order to deceive the other side, they signaled with swastika flags.
• Shipwrecked soldiers of the light squadron “West”... which had been attacked and partly destroyed by
British warships in the night of the 21-22 May, were shot at by the British. Soldiers swimming in the
water with life vests or paddling their lifeboats were fired upon and many killed or wounded... .
Cont..
• From these investigations it appears that the mutilation of corpses and the
maltreatment of soldiers were committed almost exclusively by Cretan
civilians. In some cases survivors observed that civilians fell upon dead
soldiers, robbed them, and cut them with knives. In only one case were
enemy soldiers involved in such acts; on the contrary, the British attached
great importance to the proper treatment of prisoners of war, prevented
abuses by Greek soldiers and civilians, and did all was necessary in the
medical field. On the other hand, the shooting of shipwrecked was carried
out exclusively by British warships.
• It is difficult to determine how it was that the civilian population of Crete
participated in the fighting and committed atrocities; the statements made
by the Cretans and by the British prisoners must be taken cum grano salis,
because they each tend to put the blame on the other.
 Draft articles on
Responsibility of States for Internationally Wrongful Acts,2001

• Article 9
Conduct carried out in the absence or default of the official
authorities
• The conduct of a person or group of persons shall be considered an act
of a State under international law if the person or group of persons is
in fact exercising elements of the governmental authority in the
absence or default of the official authorities and in circumstances such
as to call for the exercise of those elements of authority.
X. International and Mixed Judicial and Q
uasi-judicial Bodies
• International Criminal Tribunal for the former Yugoslavia
• In the Orić case before the ICTY in 2005, the accused, appointed as
commander of the Srebrenica Territorial Defence (TO) Headquarters
in 1992, was charged with several counts of violations of the laws or
customs of war (murder, cruel treatment, wanton destruction of
cities, towns or villages not justified by military necessity), punishable
under Article 3 of the 1993 ICTY Statute, for his alleged role in events
occurring in the Srebrenica enclave in 1992–1993.
• In its judgment in 2006, the ICTY Trial Chamber, analysing the character of the Bosnian Muslim
Forces in the Srebrenica area in and around 1992, stated:
• 133. The definition of a levée en masse is well settled in international law. Article 2 of the 1907
Hague Regulations provides that
• [t]he 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 organise
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.
• Article 1 of the 1907 Hague Regulations requires such belligerents
• 1. to be commanded by a person responsible for his subordinates;
• 2. to have a fixed distinctive emblem recognisable at a distance;
• 3. to carry arms openly; and
• 4. to conduct their operations in accordance with the laws and customs of war.
• From its inception, the ABiH [Army of Bosnia and Herzegovina] sought to
provide its members with means of identification such as uniforms, badges
and insignia. In the Srebrenica area, however, with the exception of the
members of the 16th East Bosnian Muslim Brigade …, very few individuals
possessed a complete uniform in 1992 and 1993. Before and after the arrival
of this brigade in the area in early August 1992, most Bosnian Muslim
fighters wore makeshift or parts of JNA [Yugoslav People’s Army] uniforms.
To make up for the lack of adequate clothing, civilians also sometimes wore
parts of uniforms. There is evidence indicating that during some attacks,
fighters wore coloured ribbons around their heads or arms for identification
purposes amongst themselves. Apart from these disparate uniforms and
ribbons, fighters did not wear fixed distinctive emblems recognisable at a
distance.
• 136. The Trial Chamber comes to the conclusion that while the situation in
Srebrenica may be characterised as a levée en masse at the time of the
Serb takeover and immediately thereafter in April and early May 1992, the
concept by definition excludes its application to long-term situations. Given
the circumstances in the present case, the Trial Chamber does not find the
term levée en masse to be an appropriate characterisation of the
organisational level of the Bosnian Muslim forces at the time and place
relevant to the Indictment.
• The Trial Chamber found the accused guilty of the failure to discharge his
duty as a superior to prevent the occurrence of murder and cruel
treatment from 27 December 1992 to 20 March 1993. He was sentenced
to two years’ imprisonment.
XI. International Red Cross and Red Cresc
ent Movement
• ICRC
• To fulfil its task of disseminating IHL, the ICRC has delegates around
the world teaching armed and security forces that:
• Inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously and in mass take up arms to resist the invading
forces, without having had time to form themselves into organized
armed units, provided they carry arms openly and respect the law of
war, are considered as combatants.
• The term applied to 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 into regular armed forces. They must be
regarded as combatants if they carry arms openly and respect the
laws and customs of armed conflict.
If captured they have a right to be treated as prisoners of war.
The levée en masse should not be confused with resistance
movements.