711.00111 Armament Control/944a

Memorandum by the Legal Adviser (Hackworth)63

The following quotation from Oppenheim’s treatise on International Law,63a which represents the consensus of opinion of the authorities, shows the distinction between guerilla warfare and war between “two or more foreign States”, as specified in the resolution of Congress:

“… one speaks of guerilla war or petty war when, after the defeat and the capture of the main part of the enemy forces, the occupation of the enemy territory, and the downfall of the enemy Government, the routed remnants or the defeated army carry on the contention by mere guerilla tactics. Although hopeless of success in the end, such petty war can go on for a long time, thus preventing the establishment of a [Page 212] state of peace, in spite of the fact that regular war is over and the task of the army of occupation is no longer regular warfare. Now, the question whether such guerilla war is real war in the strict sense of the term in International Law must, I think, be answered in the negative, for two reasons. First, there are no longer the forces of the two States in the field, because the defeated belligerent State has ceased to exist through the military occupation of its territory, the downfall of its established Government, the capture of the main part and the routing of the remnant of its forces. And, secondly, there is no longer in progress a contention between armed forces. For although the guerilla bands are still fighting when attacked, or when attacking small bodies of enemy soldiers, they try to avoid a pitched battle, and content themselves with constantly harassing the victorious army, destroying bridges and railways, cutting off communications and supplies, attacking convoys, and the like, always in the hope that some event may occur which will induce the victorious army to withdraw. If, then, guerilla war is not real war, it is obvious that in strict law the victor need no longer treat the guerilla bands as a belligerent Power, and their captured members as soldiers. [He then goes on to state that he sees no advantage in treating them as criminals.]”63b (Ibid. 126.)

It is conceivable that guerilla warfare in Ethiopia may be carried on for some time to come, as in the case of the Philippine Islands, following the Spanish American War and other similar situations.

  1. Evidently this memorandum was supposed to accompany the Secretary of State’s letter to President Roosevelt, June 19, 1936, not printed, which transmitted a draft statement regarding the revocation of his neutrality proclamations.
  2. L. Oppenheim, International Law, A Treatise, vol. ii, 4th ed., p. 126.
  3. Brackets appear in the original memorandum.