The Online Library of Liberty

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• Front Matter: Preface
• List of Cases Cited
• Introduction
• Declaration of Paris, 1856 1
• Déclaration De Paris, 1856.
• The Declaration of Paris, 1856.
• Declaration of St Petersburg, 1868 1
• Geneva Convention, 1864 1
• Convention Pour L’amélioration Du Sort Des Militaires Blessés Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of Soldiers Wounded In Armies In the Field.
• Articles Concerning Naval Warfare ( La Marine ).
• Geneva Convention, 1906 1
• Convention Pour L’amélioration Du Sort Des Blessés Et Malades Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of the Wounded and Sick In Armies In the Field.
• Chapitre Premier. —: Des Blessés Et Malades.
• Chapter I.—: The Wounded and Sick.
• Chapitre II.—: Des Formations Et Établissements Sanitaires.
• Chapter II.—: Medical Units and Establishments.
• Chapitre III.—: Du Personnel.
• Chapter III.—: Personnel.
• Chapitre IV.—: Du Matériel.
• Chapter IV.—: Material.
• Chapitre V.—: Des Convois D’Évacuation.
• Chapter V.—: Convoys of Evacuation.
• Chapter VI.—: Du Signe Distinctif.
• Chapter VI.—: The Distinctive Emblem.
• Chapitre VII.—: De L’application Et De L’exécution De La Convention.
• Chapter VII.—: Application and Carrying Out of the Convention.
• Chapitre VIII.—: De La Répression Des Abus Et Des Infractions.
• Chapter VIII.—: Prevention of Abuses and Infractions.
• Dispositions Générales.
• General Provisions.
• Protocole Final De La Conférence De Revision De La Convention De Genève.
• Final Protocol of the Conference For the Revision of the Geneva Convention.
• The Hague Peace Conferences 1899 and 1907
• The Peace Conference of 1899 1 .
• The Second Peace Conference of 1907 1 .
• Final Acts of the International Peace Conferences.
• The Conventions of the Hague Conferences of 1899 and 1907 1 .
• I.: Convention For the Pacific Settlement of International Disputes.
• 1.: Règlement Pacifique Des Conflits Internationaux.
• 1.: Pacific Settlement of International Disputes
• I.: Convention For the Pacific Settlement of International Disputes 1 .
• II.: The Recovery of Contract Debts.
• II.: Convention Concernant La Limitation De L’emploi De La Force Pour Le Recouvrement De Dettes Contractuelles.
• II.: Convention Respecting the Limitation of the Employment of Force For the Recovery of Contract Debts.
• Convention No. 2. the Limitation of the Employment of Force For the Recovery of Contract Debts 1 .
• III.: Convention Relative to the Commencement of Hostilities.
• III.: Convention Relative à L’ouverture Des Hostilités.
• III.: Convention Relative to the Opening of Hostilities.
• Convention No. 3. The Commencement of Hostilities 1 .
• IV.: Les Lois Et Coutumes De La Guerre Sur Terre.
• II.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• IV.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Règlement Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Section I.: Des Belligérants.
• Section II.: Des Hostilités.
• Section III.: De L’autorité Militaire Sur Le Territoire De L’État Ennemi.
• Section IV.: Des Belligérants Internés Et Des Blessés Soignés Chez Les Neutres.
• IV.: The Laws and Customs of War On Land.
• II.: Convention With Respect to the Laws and Customs of War On Land.
• IV.: Convention Concerning the Laws and Customs of War On Land.
• Regulations Respecting the Laws and Customs of War On Land.
• Section I.: Belligerents.
• Section II. Hostilities.
• Section III.: Military Authority Over the Territory of the Hostile State.
• Convention No. 4. Concerning the Laws and Customs of War On Land 1 .
• Appendix to Note On the Laws and Customs of War On Land. Translation of the Draft of an International Declaration Concerning the Laws and Customs of War Adopted By the Conference of Brussels, 27th August, 1874 1 .
• V.: Neutral Powers and Persons In Land Warfare.
• V.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Et Des Personnes Neutres En Cas De Guerre Sur Terre.
• V.: Convention Respecting the Rights and Duties of Neutral Powers and Persons In War On Land.
• Convention No. 5. Respecting the Rights and Duties of Neutral Powers and Persons In War On Land 1 .
• VI.: Enemy Merchant-ships At the Outbreak of Hostilities.
• VI.: Convention Relative Au Régime Des Navires De Commerce Ennemis Au Début Des Hostilités.
• VI.: Convention Relative to the Status of Enemy Merchantships At the Outbreak of Hostilities.
• Convention No. 6. Relative to the Status of Enemy Merchant-ships At the Outbreak of Hostilities 1 .
• VII.: Conversion of Merchant-ships Into War-ships.
• VII.: Convention Relative à La Transformation Des Navires De Commerce En Bâtiments De Guerre.
• VII.: Convention Relative to the Conversion of Merchantships Into War-ships.
• Convention No. 7. Convention Relative to the Conversion of Merchant-ships Into War-ships 1 .
• VIII.: Automatic Submarine Contact Mines.
• VIII.: Convention Relative à La Pose De Mines Sous-marines Automatiques De Contact.
• VIII.: Convention Relative to the Laying of Automatic Submarine Contact Mines.
• Convention No. 8. Relative to the Laying of Automatic Submarine Contact Mines 1 .
• IX.: Bombardment By Naval Forces In Time of War.
• IX.: Convention Concernant Le Bombardement Par Des Forces Navales En Temps De Guerre.
• IX.: Convention Respecting Bombardment By Naval Forces In Time of War.
• Convention No. 9. Respecting Bombardment By Naval Forces In Time of War 1 .
• X.: Conventions For the Adaptation of the Principles of the Geneva Convention to Maritime War (1899 and 1907)
• X.: La Convention De Genève Et La Guerre Maritime 1 .
• III.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève Du 22 Août, 1864.
• X.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève.
• X.: The Geneva Convention and Maritime Warfare 1 .
• III.: Convention For the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864.
• X.: Convention For the Adaptation of the Principles of the Geneva Convention to Maritime War.
• Convention No. 10. The Adaptation of the Principles of the Geneva Convention to Maritime Warfare 1 .
• A Convention Relating to Hospital Ships, Signed At the Hague, the 21st December, 1904 2 .
• XI.: Restrictions On Capture In Maritime War
• XI.: Convention Relative à Certaines Restrictions à L’exercice Du Droit De Capture Dans La Guerre Maritime.
• XI.: Convention Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• Convention No. 11. Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• XII.: Establishment of an International Prize Court.
• XII.: Convention Relative à L’Établissement D’une Cour Internationale Des Prises.
• XII.: Convention Relative to the Establishment of an International Prize Court.
• Annex to Article 15. Distribution of Judges and Deputy Judges By Countries For Each Year of the Period of Six Years.
• Convention No. 12. Relative to the Establishment of an International Prize Court 1 .
• XIII.: Neutral Rights and Duties In Maritime War.
• XIII.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Neutres En Cas De Guerre Maritime.
• XIII.: Convention Respecting the Rights and Duties of Neutral Powers In Maritime War.
• Convention No. 13. The Rights and Duties of Neutral Powers In Maritime War 1 .
• Declarations (1899 and 1907) Prohibiting Discharge of Projectiles, Etc. From Balloons
• Les Déclarations De 1899 Et 1907.
• Déclaration I.: Des Projectiles Et Des Explosifs Du Haut De Ballons.
• XIV.: Déclaration Relative à L’interdiction De Lancer Des Projectiles Et Des Explosifs Du Haut De Ballons.
• The Declarations of 1899 and 1907.
• Declaration I.: Projectiles and Explosives From Balloons.
• XIV.: Declaration Prohibiting the Discharge of Projectiles and Explosives From Balloons.
• Declaration Ii (1899).
• Des Gaz Asphyxiants Ou Délétères.
• Asphyxiating Or Deleterious Gases.
• II.: Declaration Prohibiting the Use of Asphyxiating Or Deleterious Gases 1 .
• Declaration Iii (1899).
• Des Balles à Enveloppe Dure Etc.
• Bullets With a Hard Envelope Etc.
• III.: Declaration Prohibiting the Use of Expanding Bullets 1 .
• Annexe Au Premier Vœu émis Par La Deuxième Conférence De La Paix 1 .
• Projet D’une Convention Relative à L’Établissement D’une Cour De Justice Arbitrale.
• Draft Convention Relative to the Creation of a Judicial Arbitration Court.
• The Draft Convention Relative to the Creation of a Judicial Arbitration Court 1 .
• The Results of the Second Peace Conference.
• Table of the Deposits of Acts of Ratification and Accessions to the Conventions and Declarations Signed the 29th July, 1899, At the First Peace Conference.
• Table of Signatures.
• Final Protocol of the London Naval Conference.
• Protocole De Clôture.
• Final Protocol.
• The Declaration of London, 1909
• Déclaration Relative Au Droit De La Guerre Maritime.
• Declaration Concerning the Laws of Naval War 1 .
• General Report On the Declaration Presented to the Naval Conference On Behalf of Its Drafting Committee 1 . ( Translation 2 .)
• Appendix. Instructions to British Delegation At the Second Peace Conference.
• Addenda and Errata.

Regulations respecting the Laws and Customs of War on Land.

Section I.

Belligerents.

Chapter I.

The Qualifications of Belligerents.

Art. 1.

The laws, rights, and duties of war apply not only to the army, but also to militia and corps of volunteers, fulfilling the following conditions:—

1. That of being commanded by a person responsible for his subordinates;

2. That of having a distinctive emblem fixed and recognizable at a distance;

3. That of carrying arms openly; and

4. That of conducting their operations in accordance with the laws and customs of war.

In countries where militia or corps of volunteers constitute the army, or form part of it, they are included under the denomination “army.”

Regulations respecting the Laws and Customs of War on Land.

Section I.

Belligerents.

Chapter I.

The Qualifications of Belligerents.

Art. 1.

(No change.)

(Cp. Brussels Draft Declaration, Art. 9.)

Art. 2.

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 had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they respect the laws and customs of war.

Art. 2.

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 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.

(Cp. B. D. Art. 10.)

Art. 3.

The armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy both have a right to be treated as prisoners of war.

Art. 3.

(No change.)

(Cp. B. D. Art. 11.)

Chapter II.

Prisoners of War.

Art. 4.

Prisoners of war are in the power of the hostile Government, but not in that of the individuals or corps who captured them.

They must be humanely treated.

All their personal belongings, except arms, horses, and military papers, remain their property.

Chapter II.

Prisoners of War.

Art. 4.

(No change.)

(Cp. B. D. Art. 23.)

Art. 5.

Prisoners of war may be interned in a town, fortress, camp, or any other locality, and are bound not to go beyond certain fixed limits; but they can only be confined as an indispensable measure of safety.

Art. 5.

Prisoners of war may be interned in a town, fortress, camp, or any other locality, and are bound not to go beyond certain fixed limits; but they can only be confined as an indispensable measure of safety, and only whilethe circumstances which necessitate the measure continue to exist.

(Cp. B. D. Art. 24.)

Art. 6.

The State may utilize the labour of prisoners of war according to their rank and capacities. Their tasks shall not be excessive, and shall have nothing to do with the operations of war.

Prisoners may be authorized to work for the public service, for private persons, or on their own account.

Work done for the State shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks.

When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military authorities.

The earnings of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance.

Art. 6.

The State may utilize the labour of prisoners of war, other than officers, according to their rank and capacities. Their tasks shall not be excessive and shall have nothing to do with the operations of the war.

Prisoners may be authorized to work for the public service, for private persons, or on their own account.

Work done for the State shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks, or, if there are no such tariffs in force, at rates proportional to the work executed.

When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military authorities.

The earnings of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance.

(Cp. B. D. Arts. 25, 26.)

Art. 7.

The Government into whose hands prisoners of war have fallen is bound to maintain them.

Failing a special agreement between the belligerents, prisoners of war shall be treated as regards food, quarters, and clothing, on the same footing as the troops of the Government which has captured them.

Art. 7.

(No change.)

(Cp. B. D. Art. 27.)

Art. 8.

Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen.

Any act of insubordination warrants the adoption, as regards them, of such measures of severity as may be necessary.

Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment.

Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment for the previous flight.

Art. 8.

(No change.)

(Cp. B. D. Art. 28.)

Art. 9.

Every prisoner of war, if questioned, is bound to declare his true name and rank, and if he disregards this rule, he is liable to a curtailment of the advantages accorded to the prisoners of war of his class.

Art. 9.

(No change.)

(Cp. B. D. Art. 29.)

Art. 10.

Prisoners of war may be set at liberty on parole if the laws of their country authorize it, and, in such a case, they are bound, on their personal honour, scrupulously to fulfil, both as regards their own Government and the Government by which they were made prisoners, the engagements they have contracted.

In such cases, their own Government is bound not to require of nor to accept from them any service incompatible with the parole given.

Art. 10.

(No change.)

(Cp. B. D. Art. 31.)

Art. 11.

A prisoner of war cannot be forced to accept his liberty on parole; similarly the hostile Government is not obliged to assent to the prisoner’s request to be set at liberty on parole.

Art. 11.

(No change.)

(Cp. B. D. Art. 32.)

Art. 12.

Any prisoner of war, who is liberated on parole and recaptured bearing arms against the Government to which he had pledged his honour, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be brought before the Courts.

Art. 12.

(No change.)

(Cp. B. D. Art. 33.)

Art. 13.

Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers, contractors, who fall into the enemy’s hands, and whom the latter thinks fit to detain, have a right to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying.

Art. 13.

(No change.)

(Cp. B. D. Art. 34.)

Art. 14.

A Bureau for information relative to prisoners of war is instituted, on the commencement of hostilities, in each of the belligerent States and, should it so happen, in the neutral countries in whose territory belligerents have been received. The duty of this Bureau is to answer all inquiries about prisoners of war, it is furnished by the various services concerned with all the information to enable it to keep an individual return for each prisoner of war. It is kept informed of internments and changes, as well as of admissions into hospital and deaths.

It is also the duty of the Information Bureau to gather and keep together all objects of personal use, valuables, letters, &c., found on the battlefields or left by prisoners who have died in hospitals or ambulances, and to forward them to those interested.

Art. 14.

A bureau for information relative to prisoners of war is instituted on the commencement of hostilities in each of the belligerent States, and, should it so happen, in the neutral countries in whose territory belligerents have been received. The duty of this bureau is to answer all inquiries about prisoners of war, it is furnished by the various services concerned with all the information respecting internments and transfers, releases on parole, exchanges, escapes, admissions into hospital, deaths, as well as all other information necessary to enable it to make out and keep up to date an individual return for each prisoner of war. The bureau must state in this return the regimental number, surname and name, age, place of origin, rank, unit, wounds, date and place of capture, of internment, the wounds, and the death, as well as any observations of a special character. The individual return shall be sent to the Government of the other belligerent after the conclusion of peace.

It is also the duty of the Information Bureau to gather and keep together all objects of personal use, valuables, letters, &c., found on the battlefields or left by prisoners who have been released on parole, or exchanged, or who have escaped, or died in hospitals or ambulances, and to forward them to those interested.

Art. 15.

Relief Societies for prisoners of war, regularly constituted in accordance with the law of their country with the object of serving as the intermediaries for charity, shall receive from the belligerents, for themselves and their duly accredited agents, every facility, within the bounds of military necessities and administrative regulations, for the effective accomplishment of their humane task. Delegates of these Societies may be admitted to distribute relief at the places of internment, as also at the halting places of repatriated prisoners, if furnished with a personal permit by the military authorities, and on giving an engagement in writing to comply with all regulations for order and police which the latter may prescribe.

Art. 15.

(No change.)

Art. 16.

The Information Bureaux shall have the privilege of free postage. Letters, money orders, and valuables, as well as postal parcels destined for the prisoners of war or dispatched by them, shall be free of all postal rates, alike in the countries of origin and destination, as well as in those they pass through.

Gifts and relief in kind for prisoners of war shall be admitted free of all duties of entry and others, as well as of payments for carriage by the Government railways.

Art. 16.

(No change.)

Art. 17.

Officers taken prisoners shall receive, in proper cases, the full pay allowed them in this position by their country’s regulations, the amount to be repaid by their Government.

Art. 17.

Officers taken prisoners shall receive the same pay as officers of corresponding rank in the country where they are detained; the amount shall be repaid by their Government.

Art. 18.

Prisoners of war shall enjoy every latitude for the exercise of their religion, including attendance at their own church services, provided only they comply with the regulations for order and police issued by the military authority.

Art. 18.

(No change.)

Art. 19.

The wills of prisoners of war are received or drawn up on the same conditions as for soldiers of the national army.

The same rules shall be observed regarding certificates of death, as well as for the burial of prisoners of war, due regard being paid to their grade and rank.

Art. 19.

(No change.)

Art. 20.

After the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible.

Art. 20.

(No change.)

Chapter III.

The Sick and Wounded.

Art. 21.

The obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention of the 22nd August, 1864, subject to any modifications which may be introduced into it.

Chapter III.

The Sick and Wounded.

Art. 21.

The obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention.

(Cp. B. D. Art. 35.)

Section II.

Hostilities.

Chapter I.

The means of injuring the Enemy, Sieges and Bombardments.

Art. 22.

The right of belligerents to adopt means of injuring the enemy is not unlimited.

Section II.

Hostilities.

Chapter I.

The means of injuring the Enemy, Sieges and Bombardments.

Art. 22.

(No change.)

(Cp. B. D. Art. 12.)

Art. 23.

Besides the prohibitions provided by special Conventions, it is especially forbidden:—

(a) To employ poison or poisoned arms;

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion;

(d) To declare that no quarter will be given;

(e) To employ arms, projectiles, or material of a nature to cause superfluous injury;

(f) To make improper use of a flag of truce, the national flag, or military ensigns and the enemy’s uniform, as well as the distinctive badges of the Geneva Convention;

(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.

Art. 23.

Besides the prohibitions provided by special Conventions, it is especially forbidden—

(a) To employ poison or poisoned arms;

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;

(d) To declare that no quarter will be given;

(e) To employ arms, projectiles, or material of a nature to cause superfluous injury;

(f) To make improper use of a flag of truce, the national flag, or military ensigns and the enemy’s uniform, as well as the distinctive badges of the Geneva Convention;

(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war;

(h)To declare extinguished, suspended, or unenforceable in a court of law the rights and rights of action of the nationals of the adverse party.

A belligerent is likewise forbidden to compel the nationals of the adverse party to take part in the operations of war directed against their country, even when they have been in his service before the commencement of the war.

(Cp. B. D. Art. 13.)

Art. 24.

Ruses of war and the employment of methods necessary to obtain information about the enemy and the country, are considered lawful.

Art. 24.

(No change.)

(Cp. B. D. Art. 14.)

Art. 25.

The attack or bombardment of towns, villages, habitations or buildings which are not defended, is forbidden.

Art. 25

The attack or bombardment, by any means whatever, of towns, villages, habitations, or buildings which are not defended is forbidden.

(Cp. B. D. Art. 15; see also 9 H. C. 1907, Art. 1.)

Art. 26.

The Commander of an attacking force, before commencing a bombardment, except in the case of an assault, should do all he can to warn the authorities of it.

Art. 26.

(No change.)

(Cp. B. D. Art. 16.)

Art. 27.

In sieges and bombardments all necessary steps should be taken to spare, as far as possible, buildings devoted to religion, art, science and charity, hospitals and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.

The besieged should indicate these buildings or places by some special visible signs, which shall previously be notified to the assailants.

Art. 27.

In sieges and bombardments all necessary steps should be taken to spare, as far as possible, buildings devoted to religion, art, science and charity, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.

The besieged should indicate these buildings or places by some special visible signs, which shall previously be notified to the assailants.

(Cp. B. D. Art. 17; see also 9 H. C. 1907, Arts. 3 and 5.)

Art. 28.

The giving up to pillage of a town or place, even when taken by assault, is forbidden.

Art. 28.

(No change.)

(Cp. B. D. Art. 18; see also 9 H. C. 1907, Art. 7.)

Chapter II.

Spies.

Art. 29.

An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory.

Chapter II.

Spies.

Art. 29.

(No change.)

(Cp. B. D. Arts. 19, 22.)

Art. 30.

A spy taken in the act cannot be punished without previous trial.

Art. 30.

(No change.)

(Cp. B. D. Art. 20.)

Art. 31.

A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

Art. 31.

(No change.)

(Cp. B. D. Art. 21.)

Chapter III.

Flags of Truce.

Art. 32.

A person is considered as the bearer of a flag of truce who is authorized by one of the belligerents to enter into communication with the other, and who comes with a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag-bearer and the interpreter who may accompany him.

Chapter III.

Flags of Truce.

Art. 32.

(No change.)

(Cp. B. D. Art. 43.)

Art. 33.

The Commander to whom a bearer of a flag of truce is sent is not obliged to receive him in all circumstances.

He can take all steps necessary to prevent the bearer taking advantage of his mission to obtain information.

In case of abuse, he has the right to detain the bearer temporarily.

Art. 33.

(No change.)

(Cp. B. D. Art. 44.)

Art. 34.

The bearer of a flag of truce loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to instigate or commit an act of treachery.

Art. 34.

(No change.)

(Cp. B. D. Art. 45.)

Chapter IV.

Capitulations.

Art. 35.

Capitulations agreed on between the Contracting Parties must be in accordance with the rules of military honour.

When once settled, they must be scrupulously observed by both the parties.

Chapter IV.

Capitulations.

Art. 35.

(No change.)

(Cp. B. D. Art. 46.)

Chapter V.

Armistices.

Art. 36.

An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not fixed, the belligerent parties can resume operations at any time, provided always the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.

Chapter V.

Armistices.

Art. 36.

(No change.)

(Cp. B. D. Art. 47.)

Art. 37.

An armistice may be general or local. The first suspends all military operations of the belligerent States; the second, only those between certain fractions of the belligerent armies and in a fixed radius.

Art. 37.

(No change.)

(Cp. B. D. Art. 48.)

Art. 38.

An armistice must be notified officially, and in good time, to the competent authorities and the troops. Hostilities are suspended immediately after the notification, or at a fixed date.

Art. 38.

(No change.)

(Cp. B. D. Art. 49.)

Art. 39.

It is for the Contracting Parties to settle, in the clauses of the armistice, what relations may be had, within the theatre of war, with the population and with each other.

Art. 39.

(No change.)

(Cp. B. D. Art. 50.)

Art. 40.

Any serious violation of the armistice by one of the parties gives the other party the right to denounce it, and even, in case of urgency, to recommence hostilities at once.

Art. 40.

(No change.)

(Cp. B. D. Art. 51.)

Art. 41.

A violation of the terms of the armistice by individuals acting on their own initiative, only confers the right of demanding the punishment of the offenders, and, if necessary, indemnity for the losses sustained.

Art. 41.

(No change.)

(Cp. B. D. Art. 52.)

Section III.

Military Authority over the Territory of the Hostile State.

Art. 42.

Territory is considered to be occupied when it is actually placed under the authority of the hostile army.

The occupation applies only to the territories where such authority is established, and can be exercised.

Section III.

Military Authority over the Territory of the Hostile State.

Art. 42.

(No change.)

(Cp. B. D. Art. 1.)

Art. 43.

The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Art. 43.

(No change.)

(Cp. B. D. Arts. 2, 3.)

Art. 44.

Any compulsion[ ] on the population of occupied territory to take part in military operations against its own country is forbidden.

Art. 44.

Any compulsion on the population of occupied territory to furnish information about the army of the other belligerent, or about his means of defence is forbidden.

(Cp. B. D. Art. 36.)

Art. 45.

Any compulsion on the population of occupied territory to take the oath to the hostile Power is forbidden.

Art. 45.

(No change.)

(Cp. B. D. Art. 37.)

Art. 46.

Family honour and rights, the lives of individuals and private property, as well as religious convictions and liberty of worship, must be respected.

Private property cannot be confiscated.

Art. 46.

(No change.)

(Cp. B. D. Art. 38.)

Art. 47.

Pillage is formally prohibited.

Art. 47.

(No change.)

(Cp. B. D. Art. 39.)

Art. 48.

If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, as far as possible, in accordance with the rules in existence and the assessment in force, and will in consequence be bound to defray the expenses of the administration of the occupied territory on the same scale as that to which the legitimate Government was bound.

Art. 48.

(No change.)

(Cp. B. D. Art. 5.)

Art. 49.

If, besides the taxes referred to in the preceding Article, the occupant levies other money contributions in the occupied territory, this can only be for military necessities or the administration of such territory.

Art. 49.

(No change.)

(Cp. B. D. Art. 40.)

Art. 50.

No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.

Art. 50.

(No change.)

(Cp. B. D. Arts. 40, 41.)

Art. 51.

No contribution shall be collected except under a written order and on the responsibility of a Commander-in-chief.

This levy shall only take place, as far as possible, in accordance with the rules in existence and the assessment in force for taxes.

For every contribution a receipt shall be given to the payer.

Art. 51.

(No change.)

(Cp. B. D. Art. 41.)

Art. 52.

Neither requisitions in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to imply for the population any obligation to take part in military operations against their country.

These requisitions and services shall only be demanded on the authority of the Commander in the locality occupied.

Supplies in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged.

Art. 52.

Neither requisitions in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to imply for the population any obligation to take part in military operations against their country.

These requisitions and services shall only be demanded on the authority of the Commander in the locality occupied.

Supplies in kind shall as far as possible be paid for in ready money; if not, their receipt shall be acknowledged and the payment of the amount due shall be made as soon as possible.

(Cp. B. D. Art. 42.)

Art. 53.

An army of occupation can only take possession of the cash, funds and realizable securities which are strictly the property of the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for operations of war.

Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depôts of arms and, generally, all kinds of war material, even though belonging to companies or to private persons, are likewise means of a nature to be used in the operations of war, but they must be restored and indemnities for them regulated at the peace.

Art. 53.

An army of occupation can only take possession of cash, funds and realizable securities which are strictly the property of the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for operations of war.

All appliances, whether on land, at sea, or in the air, adapted for the transmission of news or for the transport of persons or goods apart from cases governed by maritime law, depôts of arms, and, generally, all kinds of war material may be seized, even though belonging to private persons, but they must be restored and indemnities for them regulated at the peace.

(Cp. B. D. Art. 6.)

Art. 54.

Railway material coming from neutral States, whether the property of those States, or of companies, or of private persons, shall be sent back to them as soon as possible.

(Cp. B. D. Art. 6.)

Art. 54.

Submarine cables connecting a territory occupied with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They also must be restored and indemnities for them regulated at the peace.

Art. 55.

The occupying State shall regard itself only as administrator and usufructuary of the public buildings, immovable property, forests and agricultural undertakings belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of usufruct.

Art. 55.

(No change.)

(Cp. B. D. Art. 7.)

Art. 56.

The property of the communes, that of institutions dedicated to religious worship, charity, education, art and science, even when belonging to the State, shall be treated as private property.

All seizure of, and destruction, or intentional damage done to such institutions, historical monuments, works of art or science, is forbidden, and should be made the subject of legal proceedings.

Art. 56.

(No change.)

(Cp. B. D. Art. 8.)

Section IV.

The Internment of Belligerents and the Care of the Wounded in Neutral Countries.

Art. 57.

A neutral State which receives in its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.

It can keep them in camps, and even confine them in fortresses or places assigned for this purpose.

It shall decide whether officers may be left at liberty on giving their parole not to leave the neutral territory without permission.

(Cp. B. D. Art. 53.)

(Transferred to 5 H. C. 1907, Art. 11.)¹

Art. 58.

In the absence of a special Convention, the neutral State shall supply the interned with the food, clothing, and relief which the dictates of humanity prescribe.

At the conclusion of peace, the expenses caused by the internment shall be made good.

(Cp. B. D. Art. 54.)

(Transferred to 5 H. C. 1907, Art. 12.)¹

Art. 59.

A neutral State may authorize the passage over its territory of wounded or sick belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor material of war. In such a case, the neutral State is bound to adopt such measures of safety and control as may be necessary for the purpose.

Wounded and sick brought under these conditions into neutral territory by one of the belligerents, and belonging to the adverse party, must be guarded by the neutral State, so as to insure their not taking part again in the operations of war. The same duty shall devolve on the neutral State with regard to wounded or sick of the other army who may be committed to its care.

(Cp. B. D. Art. 55.)

(Transferred to 5 H. C. 1907, Art. 14.)¹

Art. 60.

The Geneva Convention applies to the sick and wounded interned in neutral territory.

(Cp. B. D. Art. 56.)

(Transferred to 5 H. C. 1907, Art. 15.)¹

Convention No. 4. Concerning the laws and customs of war on land¹ .

Codification of laws relating to land warfare.The rules for the conduct of hostilities on land are still in many cases to be sought for in historical treatises, the writings of publicists, and from “unwritten custom and tradition; but within the last forty years, attempts of two kinds have been made to deal with the topic in a more authoritative manner² .” National manuals have been compiled for the use of officers and armies in the field, and international Conventions have produced something like a Code of law which is almost universally accepted.

The starting-point for the codification of the rules of war on land is the “Instructions for the government of armies of the United States in the field” drawn up by Dr Francis Lieber and revised by a Board of officers of the United States Army at the instance of President Lincoln and issued from the office of the Adjutant-General to the army as General Order, No. 100, of 1863³ . It was “a deed of great moment in the history of international law and of civilisation,” and although Dr Lieber’s expectation that it would be adopted as a “basis for similar works by the English, French and Germans⁴ ” was not fully realised, its influence is to be seen in the attempts which ultimately were successful in 1899 in producing a Code acceptable to nearly all the members of the family of nations.

The Brussels draft Declaration¹ .The horror at the treatment to which prisoners of war had in some cases been subjected during the American Civil War, had led to the formation in France, in 1872, of a society for the amelioration of the condition of prisoners of war. In 1874 this society invited the Powers of Europe to send two delegates to a Conference to be held at Paris to endeavour to carry out their objects. Meantime the Tsar, Alexander II, proposed a Conference to consider the wider and more general question of the conduct of war. The first meeting of the Conference was held on the 27th July, 1874, at Brussels, and was attended by delegates of Austria, Belgium, France, Germany, Great Britain, Greece, Italy, the Netherlands, Russia, Spain, Switzerland and Sweden. The Portuguese and Turkish delegates attended the later meetings of the Conference, but did not arrive in time to take part in the earlier meetings.

The Russian Plenipotentiary, Baron Jomini, was elected President. With the circular addressed to the Powers by the Tsar was enclosed a draft project for the consideration of the Conference, and this was taken as a basis. Dr Bluntschli, one of the German delegates, filled the post of Chairman of the Committee on Condification, and in preparing the final draft, considerable use was made of Dr Lieber’s “Instructions² .” The Conference terminated its labours on the 27th August, 1874, and the delegates signed the Projet de Déclaration merely as a record of the proceedings and without pledging their Governments³ . The Declaration was never ratified. Many causes have been assigned for this failure; among others, the British Government declined to accept the Declaration on the ground that the Articles contained many innovations, while Germany saw in some of its rules, a condemnation of her recent practices in the conduct of the Franco-German war. The Conference was held too soon after this war “which probably never had a rival in the violence of the passions which it excited¹ .” The sections on the occupation of belligerent territory, and the definition of combatants (especially Articles 9 and 10), were fought most keenly, the contest being chiefly between the great military Powers and the smaller ones. Though never forming part of international law, the Declaration has nevertheless had considerable influence, which is reflected in many of the Manuals prepared for the use of armies in the field. But what is even more important, it formed the basis of the “Regulations concerning the laws and customs of war on land” adopted as the annex to the Second Convention of the Hague Conference 1899² .

The Hague Conference 1899.The Circular of Count Mouravieff of 11th January, 1899, enumerated among the subjects for consideration by the Conference “the Declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, which has remained unratified to the present day.” The Brussels Declaration was considered by the Second Sub-Commission of the Second Commission under the presidency of M. de Martens and after a prolonged examination and considerable protests, especially on the part of some of the smaller states, particularly as regards Articles 9, 10 and 11 of the Declaration, the Convention concerning the laws and customs of war on land was agreed to. M. de Martens’ appeal to the Committee at the meeting on the 6th June, 1899, was a masterly summary of the reasons for the acceptance by the Powers of a set of rules for land warfare. He said that if their attempt was again to be unsuccessful the result would be fatal and disastrous in the highest degree to the whole of their work, for belligerent governments and their Generals would say, “Twice, in 1874 and 1899, two great International Conferences composed of the most competent and eminent men in the civilised world in this matter have met. They have not been able to determine the laws and customs of war. They have separated, leaving in absolute vagueness all these questions. These eminent men, in discussing these questions of occupation and the rights and duties over invaded territories, have found no solution but to leave everything vague and within the domain of the law of nations. How shall we, the Commanders-in-Chief of armies, we who are in the midst of action, find time to settle these disputes when they have been unable to do so in time of peace, when a profound calm reigned in the whole world, and when Governments had met to lay the solid foundation for a common life of peace and concord.” At the meeting on the 10th June, Sir John Ardagh on behalf of Great Britain said that in order to avoid a fruitless result of the Conference, it was better to accept the Declaration as a general basis for the instruction of the troops in the laws and customs of war without any express engagement to accept all the Articles which were accepted by the majority. M. de Martens said, “In order to clearly express what is, in the view of the Russian Government, the object of this Conference in this matter, I cannot find a better illustration than that of a ‘Mutual Insurance Society against the abuse of force in time of war.’ Well, gentlemen, one is free to participate or not in a Society, but for its existence Statutes are necessary. In such Insurance Societies as those against fire, hail, or other calamities the Statutes which anticipate such disasters do not legalise them, but state existing dangers. So it is that in founding by common agreement the ‘Society against the abuse of force in time of war’ with the object of safeguarding the interests of populations against the greatest disasters, we do not legalise the disasters: we only state them. It is not against the necessities of war, it is solely against the abuse of force that we wish to provide a guarantee¹ .”

The Conventions.These explanations appear to provide a sufficient reason for the unique character of the Conventions both of 1899 and 1907. Unlike the others, this Convention does not embody the rules of war to be observed by the belligerents, but a detached Règlement contains rules “suitable for communication, disencumbered of alien matter, to troops and others, who have no concern with the mechanism of diplomacy² .”

The object of the Convention is set forth in the preamble, namely “to revise the laws and general customs of war, either with the view of defining them more precisely, or of laying down certain limits for the purpose of modifying their severity as far as possible.” The wording of these provisions was “inspired by the desire to diminish the evils of war so far as military necessities permit” and the Regulations “are intended to serve as general rules of conduct for belligerents in their relations with each other and with populations.” The Règlement is admittedly incomplete, and 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 the rule of the principles of the law of nations, as they result from the usages established between civilised nations, from the laws of humanity, and the requirements of the public conscience.” It is in this sense, especially, that Articles 1 and 2 of the Règlement, over which so much controversy took place, are to be understood. By the Convention (Art. 1) the Parties agree to issue to their armed land forces instructions which shall be in conformity with the “Regulations respecting the laws and customs of war on land” annexed to the Convention¹ . The Regulations are therefore to form the basis of the instructions to be issued to the troops, but it was open to doubt whether they had the same literal binding force as if they had been embodied in a Convention, though the Convention binds the signatory Powers to an essential observance of all these rules² .

Changes in the Convention in 1907.The Convention of 1899 contained five Articles, that of 1907 contains nine. The change in Article 3 (1907) is important, a sanction is now provided for the Regulations. “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” This would appear to determine the obligatory character of the Regulations. This proposition was introduced by the German delegate, but as originally presented it made a distinction between the populations of belligerent states and neutral persons which appeared to be to the advantage of the latter³ , but the Conference recognised that in both cases there was a breach of law and that consequently reparation should as a rule be the same. It will be noticed that it is the government, and not the individual wrongdoer from whom reparation is to be demanded. The German draft fixed the time and mode of the settlement; in the case of violations of the laws of war as against a belligerent the settlement of the question was to be postponed until the conclusion of the war, but in the case of injuries to a neutral, the necessary measures were to be taken to assure the promptest reparation compatible with military necessities¹ .

The other changes in the Convention are in reference to the arrangements for accession and denunciation, and are in accordance with the scheme adopted in most of the other Conventions.

Change in the Regulations in 1907.The Second Committee of the Conference of 1907 was entrusted with the subjects comprised in the second paragraph of the Russian programme; the amelioration of the existing laws and usages of war as embodied in the Convention of the First Conference, together with additions relating thereto, such as questions relating to the commencement of war, rights of neutrals on land etc., and the Declarations of 1899. The work was allotted to two Sub-Committees: the first presided over by M. Beernaert (Belgium) took into consideration the Convention concerning the laws and usages of war of 1899 and the Declarations of 1899; the Reporter was Baron von Gieslingen (Austria-Hungary). The Report was presented to the Fourth Plenary Meeting of the Conference on the 17th August, 1907, when the amendments now to be referred to were adopted with certain reservations which will be mentioned subsequently. As Baron von Gieslingen states in his Report, the revision of the Convention and Regulations was not undertaken with a view of re-casting them but only in order to make amendments in points of detail, and the alterations make no very material changes in the work of the Conference of 1899. It was only at the last moment that amendments were forth-coming; when the Sub-Committee commenced its labours there were none before it. Questions affecting the position of neutral persons were transferred to the Second Sub-Committee, and Articles 57 to 60 (99) now form Articles 11, 12, 14 and 15 of the new Convention (No. 5) with regard to neutrals in land warfare.

Article 2. The amendment in this Article relating to levies en masse requires that in addition to respecting the laws and usages of war such persons as have not had time to organise themselves in accordance with Article 1 “must carry arms openly.” This amendment was inserted on the proposition of the German delegate. This was carried in Committee by 30 to 3, with 2 abstentions.

Article 5 relates to the internment of prisoners. There is a difference between internment and confinement² ; the latter is the more rigorous, and the Cuban amendment which was adopted unanimously¹ now provides that this closer form of detention of prisoners can only be continued so long as the circumstances which necessitate the measure continue to exist.

Article 6. There are two slight changes in this Article. The first proposed by the Spanish delegate exempts officers who are prisoners of war from being compelled to work. The second proposed by the Japanese delegate provided for cases where the laws of states make no provision for payment to prisoners of war, and says that where no schedule of rates of payment exists, the remuneration shall be proportionate to the work done.

Article 14. Articles 14-20 (99) were additions to the Brussels Declaration and made provision for a Bureau for information relative to prisoners of war, and gave relief societies for prisoners facilities to carry out their objects. Certain defects in the working of these Bureaux which both Russia and Japan had established during the war were considered, and especially in the case of Article 14² . The Japanese and Cuban delegates proposed the amendments which were adopted, and which require additional details to be kept regarding prisoners of war, including those who have been released on parole, or exchanged or who have escaped.

Article 17. The alteration in this Article was also the result of a Japanese proposal slightly modified in Committee³ . Article 17 (99) provided that officers who were prisoners might receive, in proper cases, the full pay allowed them while in this position by the regulations of their own country, the amount to be repaid by their Government. There appear to have been doubts as to the actual meaning of this Article and some Governments, e.g. the United States, make no provision for such a case⁴ . The original Japanese draft left the matter in a very equivocal condition and the Sub-Committee, having referred to the corresponding Article in the Geneva Convention of 1906 as regards the pay of the personnel of the Medical Service in the enemy’s hands (Chapter iii. Art. 13)⁵ , proposed the Article in the form in which it now stands, so that officers taken prisoner receive the pay allowed to officers of the same rank of the country whose prisoners they are, the amount to be repaid by their Government.

Article 23 (paragraph h). This addition to Article 23 of the Regulations of 1899 which contains a list of seven acts a belligerent is forbidden to perform was made on the proposition of the German delegate. The meaning to be attributed to this clause is open to doubt. At the meeting of the Comité de rédaction of the First Sub-Committee of the Second Committee on the 3rd July the President asked for further information with reference to the proposal. Herr Göppert, the German delegate, explained that the proposal was intended not to confine the inviolability of enemy property to corporeal property and that it had in view the whole domain of obligations by prohibiting all legislative measures which, in time of war, would place the subject of an enemy state in a position of being unable to prosecute the execution of a contract before the courts of the adverse party. On the 13th July, in the First Sub-Committee, General Yermolow (Russian) proposed to introduce an amendment to the German proposition allowing in certain cases during the war the seizure of debts or documents (de saisir des créances ou des titres) belonging to the enemy which might assist in the continuance of the hostilities. This proposal was not accepted, and the text as it now stands was adopted. In the Report of Baron von Gieslingen to the Fourth Plenary Meeting of the Conference he states that “this addition [i.e. paragraph h] was considered to define in felicitous terms one of the consequences of the principles admitted in 1899¹ .” The introduction to the German Weissbuch states that by this paragraph “the principle of the inviolability in the department of justice is recognised. According to the legislation of some states the consequences of war are that the claims of states or their subjects against the nationals of the enemy are extinguished or suspended or inadmissible in a Court of Law. Such provisions are henceforth by Article 23 (h) declared to be invalid² .”

General Davis in discussing the meaning of this paragraph states that the purport of the whole Convention was to impose reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. “It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application in certain cases as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well grounded complaints, or declines to receive demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibition of Article 23¹ .”

Professor Holland in commenting on this new prohibition remarks that “if this clause is intended only for the guidance of an invading commander it needs careful re-drafting: if, as would rather appear, it is of general application, besides being quite out of place where it stands, it is so revolutionary of the doctrine which denies to an enemy any persona standi in judicio that although it is included in the ratification of the Convention by the United States on March 10, 1908, and the signature of the same on June 29, 1908, by Great Britain, it can hardly, till its policy has been seriously discussed, be treated as rule of international law² .” In his introductory chapter to “The Laws of War on Land” Professor Holland cites this paragraph as an instance of the inconvenience of intermixing rules relating to the duties of belligerent Governments at home with those intended to serve for the guidance of armies in the field; he adds that the clause seems to require the signatory Powers to legislate for the abolition of an enemy’s disability to sustain a persona standi in judicio³ .

In favour of the view propounded by General Davis it may be pointed out that the instruction is one addressed to commanders of armies in the field, and therefore such a prohibition has only reference to their proceedings in an enemy country. Article 32 of Dr Lieber’s “Instructions for the government of the armies of the United States” provides that “a victorious army, by the martial power inherent in the same, may suspend, change or abolish, as far as the martial power extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject or native of the same to another.” The object of this provision was to enable the Federal Generals to set aside slavery in the Confederate territory occupied, and the Article of the “Instructions” attributed to them a power which was not theirs by the general rules of law. The paragraph under consideration would have the effect of negativing the view contained in the Article of the “Instructions,” but it appears to do more than this. Dr Lieber’s Article refers to “relations...from one citizen, subject or native of the same to another”; Article 23 (h) of the present Convention refers to the “rights...of the adverse party.”

If the view taken by the German Weissbuch be correct, and so far as I have been able to ascertain from the official records of the proceedings at the Conference it was the only view expressed during the discussions, Article 23 (h) constitutes a reversal of a rule of the English and American Common Law that contracts entered into by British subjects and subjects of the belligerent states, before the outbreak of war, become extinguished or suspended according to their nature¹ ; in England it has been stated by writers of great authority that statutes of limitation run during a war as against enemies, though the contrary has been decided in the United States² . According to the strict wording of this paragraph some states may read it either with the restrictive meaning attached to it by General Davis, others with the more extended meaning given by the German Weissbuch³ if the latter view is taken by Great Britain legislation will probably be required to give it effect.

Article 23 (2nd paragraph) and Article 44. The alterations in these two Articles both have relation to the limits of compulsion which an invader may apply to the inhabitants of the invaded territory. They are dealt with together in the Report of Baron von Gieslingen.

The second paragraph of Article 23 is based on a proposal introduced by the German delegate. Originally it was intended to form a new Article between 22 and 23, and to take the place of Article 44; it is throughout the discussion referred to as 22a. As introduced by Germany the proposal was as follows: “A belligerent is also forbidden to compel the subjects (ressortissants)¹ of the enemy to take part in the operations of war directed against their own country (contre leur propre pays) even in cases where they are in the service of the other belligerent before the commencement of the war.” The Austro-Hungarian delegate moved to insert the words “as combatants” after the words “take part.” The Austrian amendment was opposed by the French, Belgian and Swiss delegates as legalising the employment of guides taken from the population of the invaded country.Forced guides. The Austro-Hungarian and Russian delegates supported this amendment on the ground that frequently in mountainous countries, maps were practically valueless, and local guides were essential to an invading army. The Austrian amendment was rejected by 11 to 2, and the German proposal accepted with a slight verbal alteration. The Committee decided to suppress Article 44 (99) and in its place to insert a Dutch proposal moved by General den Beer Poortugael as 44a. This proposal was as follows: “It is forbidden to compel the inhabitants (population) of an occupied territory to give information (éclaircissements) about their own army or the means of defence of their country.”

The German proposal for Article 22a was a development of the principle accepted in 1899, as regards the forced participation of the inhabitants of an occupied territory in military operations against their own country, by extending to all persons therein (ressortissants) the prohibition in which the Regulation did not expressly give them the benefit. It even extended it to foreign subjects who might have been in the service of the other belligerent before the commencement of the war. It was on account of the general application of the Article that the German delegate proposed its insertion in the 2nd section of the Regulations, relating to the means of injuring the enemy. The German proposal had an extensive character; the Austrian had a quite different meaning, as it permitted the compulsion of the inhabitants to render assistance of every kind short of fighting, and especially the employment of forced guides, and the giving of military information. The Austro-Hungarian delegate desired to draw a clear distinction between “operations of war” in which the inhabitants of the enemy state could not be compelled to take part, and “military services” which it was sought in exceptional cases to be able to impose on them² .

At the meeting of the Sub-Committee on the 24th July Baron von Gieslingen presented his report on the foregoing, and the President (M. Beernaert) summarised the position which had been reached. Baron von Gieslingen defended with considerable vehemence the Austrian amendment before mentioned. General Yermolow (Russia) again supported the Austrian view. “The services of the inhabitants,” he said, “are often indispensable to the army in the form of road mending, for camps, hospital trains, etc. Such services are already authorised by Article 52 which provides that they may be required from the inhabitants for the needs of the army. Consequently if the German proposal is accepted without the addition of the Austro-Hungarian amendment, there will be a contradiction to Article 52 and the whole question will be brought into ambiguity, obscurity and confusion. Either maintain the existing rules or accept Article 22a with the Austro-Hungarian amendment.”

General den Beer Poortugael (Holland) supported the recommendation of the Committee, and urged that it was immoral to authorise the practice of exacting the service of guides. General Amourel (France) spoke in the same sense, supporting the German and Dutch proposals, because their objects were to definitely forbid (de consacrer l’interdiction) the use of forced guides. Colonel Borel (Switzerland) also supported the German-Dutch proposal.

M. Beernaert (Belgium) with a view to combine the two proposals moved the following: “To replace Article 44 (or whatever be the number assigned to it) and Article 44a proposed by the Dutch delegate by the following: ‘It is forbidden to force the inhabitants (habitants) of an occupied territory to take part personally either directly or indirectly, collectively or individually in military operations against their country and to demand from them information in view of such operations¹ .’ ” The advantages claimed for this were that the word habitants was less equivocal than populations, and that the words “directly or indirectly, collectively or individually” left no doubt as to the meaning of “military operations.” The Russian delegate proposed to leave Article 44 (99) intact, and to place the German proposition 22a without the Austrian amendment in a chapter by itself headed “Des ressortissants d’un belligérant dans le territoire de la Partie adverse.” Baron von Gieslingen still maintained his point, but professed his willingness to accept the Russian amendment if his own failed to be carried. The Belgian compromise was finally carried by the small majority of 3 (18 for, 15 against), but this was not sufficient and once more the subject was sent to the Comité de rédaction which finally decided to retain the separate propositions 22a and 44a with the two following changes of “contre leur pays” instead of “contre leur propre pays” in Article 22a, and the substitution of the words les habitants for la population in Article 44a. M. Beernaert pointed out that the Russian amendment avoided the question of the employment of guides and forced information without providing a solution either way. General den Beer Poortugael then made an eloquent appeal in support of the proposed alteration. He pleaded that the greatest respect should be shown to the inhabitants of occupied districts, a principle on which Wellington had acted, and which inspired the proclamation of the King of Prussia issued at Saarbrücken in 1870. War was between states and not between individuals, the peaceful inhabitants must not be compelled to take part in it. The German proposition 22a was carried as was also the Dutch 44a, the latter by 23 to 9 with 1 abstention.

The Report came before the Conference at its Fourth Plenary Meeting on the 17th August, 1908, when Article 22a was accepted unanimously, but when Article 44a was reached Baron Marschall (Germany) explained that he was unable to accept it on the ground that it was impossible to specify particular instances of acts already prohibited by Article 22a [i.e. Article 23, par. 2 of the present Regulations]. In endeavouring to do this there was a risk either of unduly limiting the freedom of military action, or of producing an interpretation which according to the maxim “qui dicit de uno, negat de altro” would allow all acts being considered lawful which were not expressly forbidden¹ .

Reservations on Article 44.In signing the Convention, Germany, Austria-Hungary, Japan, Montenegro and Russia made reservations on the subject of this Article. In the introduction to the German Weissbuch the non-acceptance of Article 44 by Germany is explained as being due to the fact that it selects in an undesirable manner single instances from the cases to which the principles contained in Article 23, par. 2, are applicable² .

All the Powers, except China, Spain and Nicaragua, have signed this Convention and the signatory Powers in accepting these two amendments have registered a distinct advance in ameliorating the conditions of the inhabitants of invaded districts. As a result of these two Articles such persons cannot be compelled to take part in “operations of war.” This expression is unsatisfactorily vague, but from the discussions there can be no doubt that it was understood to include the employment of the enemy’s subjects as guides; and Article 44 forbids a belligerent to force the inhabitants of “occupied” territory to furnish information about the army of the other belligerent, or about its means of defence, thus specifying in detail certain of the prohibitions expressed in more general terms in Article 23.

Article 44 (99) was ambiguous, and the employment of guides was by many authorities deemed not to be prohibited. The German General Staff treated their employment as permissible; Professor Holland also considered that their employment was not rendered unlawful by it: the Japanese resorted to this practice in their war against China¹ . Professor Holland considers that the question is still doubtful, but Article 44 of the new Convention is much more definite than the old Article, and the amendment moved by the Austrian delegate, and supported by the Russian, was with the express object of legalising the employment of forced guides which these delegates clearly thought was forbidden² . The new paragraph to Article 23 makes use of the phrase “operations of war” which may be taken to cover a wider range than “military operations.” The same expression is used in Article 52, to which reference was made by the Russian delegate, and it is therein provided that the services permitted to be demanded from localities or inhabitants can only be required for the needs of the army of occupation, and must be of such a nature as not to imply any obligation on the population to take part in “operations of war” against their country.

Under Article 2 of the Convention, the Regulations only apply as between the Contracting Powers, and then only if all the belligerents are parties to the Convention. Germany, Austria, Japan, Montenegro and Russia have expressly refused to accept Article 44, but if the view above expressed is correct they are all now by virtue of their acceptance of the other Articles bound for the future to refrain from forcing inhabitants of an invaded enemy territory to act as guides to their armies.

In another direction, Article 23, par. 2, also makes an important alteration by providing that the subjects of a state in the service of the other belligerent before the outbreak of war cannot be compelled to take part in operations of war directed against their own country³ .

Article 25. The addition to this Article of the words “by any means whatever” was understood to cover the case of bombardment of undefended towns by projectiles from balloons. The first Declaration of 1899 against the discharge of projectiles and explosives from balloons, a Declaration which was not limited to undefended places, was renewed in 1907, but it has not been accepted by many of the great military Powers¹ . The words “by any means whatever” were introduced on the proposition of the French delegate, in order to make clear the illegality of employing such a method of attack against an undefended town. These words take the place of a much more lengthy proposal introduced by the Russian and Italian delegates. The prohibition is therefore of unlimited duration, whereas the Declaration lasts only until the termination of the next Conference, unless it is renewed by it.

Article 27. With a view of bringing the recommendation of the Second Committee into harmony with those of the Third Committee relating to naval bombardments² the Greek delegate suggested the inclusion of “historical monuments” in the list of buildings which are to be spared, as far as possible, in bombardments. This was unanimously accepted.

Article 52. M. Tcharkyow (Russia) proposed to complete this Article by a provision that commanders should be authorised to settle as soon as possible during the continuance of hostilities the receipts given for requisition. The wording of the addition was settled by the Comité de rédaction, leaving the time and mode of payment indefinite (le plus tôt possible).

Article 53, par. 2. This paragraph which deals with the property which an army of occupation may appropriate is based on a proposal made by the Austro-Hungarian delegate. His proposition was to add to the paragraph referring to the means of transport the words “sur terre, sur mer et dans les airs.” The Comité de rédaction proposed a new paragraph enumerating various modes of transport, but the Committee thought it advisable not to make a specific enumeration owing to the dangers of incompleteness. A general formula which did not lend itself to any ambiguity was thought preferable, and this was adopted. The military delegate of Japan raised the question of the appropriateness of including means of transport by sea in regulations for land warfare, but the Committee considered it advisable to retain the words “sur mer” as the right of maritime capture was applicable in land warfare in the case of ships seized in a port by a body of troops, especially as regards those destined for river navigation.

Article 54. This Article was originally proposed by the Danish delegate as a third paragraph to Article 53. It now takes the place of Article 54 (99) which related to neutral railway plant, and which is transferred to the 5th Convention, where it stands, with certain alterations, as Article 19¹ .

Submarine Cables.The subject of submarine cables was introduced at the Conference of 1899, when the Danish delegate proposed to add after the words “télégraphes de terre” the words “y compris les fils d’atterrissage établis dans les limites du territoire maritime de l’État.” This was objected to by the British delegate as involving the discussion of matters relating to maritime warfare, which were outside the scope of Articles dealing exclusively with land warfare. The Article then under discussion (which subsequently became Article 53 (99)) was drafted so as to include “câbles d’atterrissage.” In a Memorandum from the War Office to the Foreign Office of 19th July, 1899, on this subject, it was stated that “Lord Lansdowne does not consider that their exclusion [i.e. the exclusion of the words ‘câbles d’atterrissage’] affects military interests in any way, as the dominant military Power on land would, under any circumstances, have adequate control over the landing places of cables in an occupied territory, whether the words were inserted or not; and he is further of opinion that if submarine cables are dealt with internationally as a whole, the particular case of the ‘câbles d’atterrissage’ should be considered whenever that subject may come under discussion.” The words were subsequently excluded from the Article² .

The question was again raised in 1907 by the Danish delegate, and the proposal was accepted with the omission of the words “ou ennemi” after “occupé.” Submarine cables which connect an occupied territory with a neutral are not to be seized or destroyed except in case of absolute necessity. They must be restored and the compensation to be paid for them is to be arranged for on the conclusion of peace. This is the only international agreement affecting submarine cables in time of war. The Institut de Droit International devoted considerable attention to the subject, and at the meeting at Brussels in 1902 adopted five resolutions for the treatment of cables by belligerents³ . There appears to be a general agreement that cables connecting neutral territory are inviolable, that cables connecting enemy territory may be cut anywhere except in neutral waters, and that under this Article, in case of necessity, cables connecting an occupied enemy territory may be cut within such territory. The foregoing rules were adopted by the United States Naval Code of 1900, which was withdrawn in 1904. The International Convention for the protection of submarine cables of 1884 expressly states that its provisions in no way limit the liberty of actions of belligerents (Art. 15)¹ .

The changes made in the Regulations will be seen to be on the whole slight. The most important, namely, the additions to Article 23 and the alteration in Article 44, are open to different constructions, and the non-acceptance of the latter by several important military Powers prevents it from ranking as a rule of universal international law. The alterations in the other Articles are on points of detail, or are legitimate deductions from admitted principles. The changes are all in the direction of ameliorating the conditions of land warfare, and strengthening the terms of the “Policy of Insurance against the abuse of force in time of war.”

Signatory Powers.All the states present at the Conference have signed the Convention except China, Spain and Nicaragua, and the only reservations of importance made are those already referred to in connection with Article 23, par. 2. Turkey made a reservation as regards Article 3.

Appendix to Note on the Laws and Customs of War on Land.

Translation of the Draft of an International Declaration concerning the Laws and Customs of War adopted by the Conference of Brussels, 27th August, 1874¹ .

Of Military Authority over the Hostile State.

Art. 1. A territory is considered as occupied when it is actually placed under the authority of the hostile army.

The occupation applies only to the territory where such authority is established, and in a position to assert itself. (See Art. 42 of Hague Regulations, No. 3, 1899.)

Art. 2. The authority of the legitimate power being suspended and having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety. (See Art. 43 of H. R., which combines Arts. 2 and 3.)

Art. 3. With this object he will maintain the laws which were in force in the country in time of peace, and will only modify, suspend or replace them by others if necessity obliges him to do so.

Art. 4. The functionaries and officials of every class who at the instance of the occupier consent to continue to perform their duties shall be under his protection. They shall not be dismissed or liable to summary punishment (punis disciplinairement) unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to justice only if they violate those obligations by unfaithfulness. (Omitted from H. R.)

Art. 5. The army of occupation shall only levy such taxes, dues, duties and tolls as are already established for the benefit of the State, or their equivalent, if it be impossible to collect them, and this shall be done so far as possible in the form of and according to existing practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as was obligatory on the legitimate government. (See Art. 48 of H. R.)

Art. 6. The army occupying a territory shall take possession only of the specie, the funds and realisable securities (valeurs exigibles) which are the property of the State in its own right, the depôts of arms, means of transport, magazines and supplies, and, in general, all the personal property of the State which is of a nature to aid in carrying on the war.

Railway plant, land telegraphs, steam and other vessels, not included in cases regulated by maritime law, as well as depôts of arms, and generally every kind of munitions of war, although belonging to companies or to private individuals, are to be considered equally as means of a nature to aid in carrying on war, which cannot be left by the army of occupation at the disposal of the enemy. Railway plant, land telegraphs, as well as the steam and other vessels above mentioned, shall be restored and indemnities be regulated on the conclusion of peace. (See Art. 53 of H. R.)

Art. 7. The occupying State shall only consider itself in the light of an administrator and usufructuary of the public buildings, real property, forests, and agricultural undertakings belonging to the hostile State, and situated in the occupied territory. It should protect the capital of these properties (fonds de ces propriétés), and administer them according to the laws of usufruct. (See Art. 55 of H. R.)

Art. 8. The property of communes, institutions devoted to religion, charity and education, to arts and sciences, even when State property, shall be treated as private property.

All seizure of, and destruction of, or intentional damage to such institutions, to historical monuments, works of art or science, should be made the subject of proceedings by the competent authorities. (See Art. 56 of H. R.)

Of those who are to be recognized as Belligerents; of Combatants and Non-combatants.

Art. 9. The laws, rights and duties of war apply not only to armies, but likewise to militia and corps of volunteers, fulfilling the following conditions:—

• 1. That they have at their head a person responsible for his subordinates;
• 2. That they wear some fixed distinctive badge recognizable at a distance;
• 3. That they carry arms openly; and
• 4. That in their operations they conform to the laws and customs of war.

In those countries where the militia form the whole or part of the army, they shall be included under the denomination of “army.” (See Art. 1 of H. R.)

Art. 10. The population of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9, shall be considered as belligerents, if they respect the laws and customs of war. (See Art. 2 of H. R.)

Art. 11. The armed forces of the belligerents may be composed of combatants and non-combatants. In the event of being captured by the enemy, both shall enjoy the rights of prisoners of war. (See Art. 3 of H. R.)

Of means of Injuring the Enemy.

Art. 12. The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy. (See Art. 22 of H. R.)

Art. 13. According to this principle are strictly forbidden—

• (a) The use of poison or poisoned weapons.
• (b) Murder by treachery of individuals belonging to the hostile nation or army.
• (c) Murder of an enemy, who, having laid down his arms or having no longer the means of defending himself, has surrendered at discretion.
• (d) The declaration that no quarter will be given.
• (e) The use of arms, projectiles or material which may cause unnecessary suffering, as well as the use of the projectiles prohibited by the Declaration of St Petersburg in 1868.
• (f) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Convention.
• (g) All destruction or seizure of the property of the enemy which is not imperatively required by the necessity of war. (See Art. 23 of H. R.)

Art. 14. Ruses of war and the employment of means necessary to procure intelligence respecting the enemy and the country (subject to the provisions of Article 36) are considered as lawful. (See Art. 24 of H. R.)

Of Sieges and Bombardments.

Art. 15. Fortified places are alone liable to be besieged. Towns, agglomerations of houses or open villages which are undefended, cannot be attacked or bombarded. (See Art. 25 of H. R.)

Art. 16. But if a town or fortress, agglomeration of houses, or village, be defended, the commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise (l’attaque de vive force), do all in his power to warn the authorities. (See Art. 26 of H. R.)

Art. 17. In the like case, all necessary steps should be taken to spare, as far as possible, buildings devoted to religion, arts, sciences and charity, hospitals, and places where sick and wounded are collected, on condition that they are not used at the same time for military purposes.

It is the duty of the besieged to indicate these buildings by special visible signs, to be notified beforehand by the besieged. (See Art. 27 of H. R.)

Art. 18. A town taken by storm shall not be given up to the victorious troops to plunder. (See Art. 28 of H. R.)

Of Spies.

Art. 19. An individual shall be considered as a spy if, acting secretly or under false pretences, he collects, or tries to collect, information in districts occupied by the enemy, with the intention of communicating it to the hostile party. (See Art. 29 of H. R.)

Art. 20. A spy, if taken in the act, shall be tried and treated according to the laws in force in the army which captures him. (See Art. 30 of H. R.)

Art. 21. A spy who rejoins the army to which he belongs and who is subsequently captured by the enemy is to be treated as a prisoner of war, and incurs no responsibility for his previous acts. (See Art. 31 of H. R.)

Art. 22. Soldiers (les militaires) not in disguise who have penetrated within the zone of operations of the enemy’s army, with the intention of collecting information, are not considered as spies.

In like manner, soldiers (and also non-military persons carrying out their mission openly) charged with the transmission of despatches, either to their own army or to that of the enemy, shall not be considered as spies if captured by the enemy.

To this class belong also, if captured, individuals sent in balloons to carry despatches, and generally to keep up communications between the different parts of an army or of a territory. (See Art. 29 of H. R.)

Of Prisoners of War.

Art. 23. Prisoners of war are lawful and disarmed enemies. They are in the power of the enemy’s Government, but not of the individuals or of the corps who made them prisoners.

They should be treated with humanity.

Every act of insubordination authorizes the necessary measures of severity to be taken with regard to them.

All their personal effects except their arms are considered to be their own property. (See Art. 4 of H. R.)

Art. 24. Prisoners of war are liable to internment in a town, fortress, camp, or any locality whatever, under an obligation not to go beyond certain fixed limits; but they may not be placed in confinement (enfermés) unless absolutely necessary as a measure of security. (See Art. 5 of H. R.)

Art. 25. Prisoners of war may be employed on certain public works which have no immediate connection with the operations on the theatre of war, provided the employment be not excessive, nor humiliating to their military rank if they belong to the army, or to their official or social position if they do not belong to it.

They may also, subject to such regulations as may be drawn up by the military authorities, undertake private work.

The pay they receive will go towards ameliorating their position, or will be paid to them at the time of their release. In this case the cost of their maintenance may be deducted from their pay. (See Art. 6 of H. R.)

Art. 26. Prisoners of war cannot be compelled in any way to take any part whatever in carrying on the operations of war. (See Art. 6 of H. R.)

Art. 27. The Government, in whose power are the prisoners of war, undertakes to provide for their maintenance.

The conditions of such maintenance may be settled by a mutual understanding between the belligerents.

In default of such an understanding, and as a general principle, prisoners of war shall be treated, as regards food and clothing, on the same footing as the troops of the Government who made them prisoners. (See Art. 7 of H. R.)

Art. 28. Prisoners of war are subject to the laws and regulations in force in the army in whose power they are.

Arms may be used, after summoning, against a prisoner attempting to escape. If retaken, he is subject to summary punishment (peines disciplinaires), or to a stricter surveillance.

If, after having succeeded in making his escape, he is again made prisoner, he is not liable to any punishment for his previous escape. (See Art. 8 of H. R.)

Art. 29. Every prisoner is bound to declare, if questioned on the point, his true names and rank, and in the case of his infringing this rule he will incur a restriction of the advantages granted to the prisoners of the class to which he belongs. (See Art. 9 of H. R.)

Art. 30. The exchange of prisoners of war is regulated by mutual agreement between the belligerents. (Omitted from H. R.)

Art. 31. Prisoners of war may be released on parole if the laws of their country allow of it, and in such a case they are bound on their personal honour to fulfil scrupulously, as regards their own Government as well as that which made them prisoners, the engagements they have undertaken.

In the same case their own Government should neither demand nor accept from them any service contrary to their parole. (See Art. 10 of H. R.)

Art. 32. A prisoner of war cannot be forced to accept release on parole, nor is the enemy’s Government obliged to comply with the request of a prisoner claiming to be released on parole. (See Art. 11 of H. R.)

Art. 33. Every prisoner of war liberated on parole, and retaken carrying arms against the Government to which he had pledged his honour, may be deprived of the rights accorded to prisoners of war, and may be brought before the courts. (See Art. 12 of H. R.)

Art. 34. Persons who are with armies, but who do not directly form part of them, such as correspondents, newspaper reporters, sutlers, contractors, &c., may also be made prisoners of war.

These persons should, however, be furnished with a permit issued by a competent authority, as well as with a certificate of identity. (See Art. 13 of H. R.)

Of the Sick and Wounded.

Art. 35. The duties of belligerents with regard to the treatment of sick and wounded are regulated by the Convention of Geneva of the 22nd August, 1864, subject to the modifications which may be introduced into that Convention. (See Art. 21 of H. R.)

Of the Military Power with respect to Private Individuals.

Art. 36. The population of an occupied territory cannot be compelled to take part in military operations against its own country. (See Art. 44 of H. R.)

Art. 37. The population of occupied territories cannot be compelled to swear allegiance to the enemy Power. (See Art. 45 of H. R.)

Art. 38. The honour and rights of the family, the life and property of individuals, as well as their religious convictions and the exercise of their religion, should be respected.

Private property cannot be confiscated. (See Art. 46 of H. R.)

Art. 39. Pillage is formally forbidden. (See Art. 47 of H. R.)

Of Contributions and Requisitions.

Art. 40. As private property should be respected, the enemy will demand from parishes (communes), or the inhabitants, only such payments and services as are connected with the necessities of war generally acknowledged, in proportion to the resources of the country, and which do not imply, with regard to the inhabitants, the obligation of taking part in the operations of war against their own country. (Arts. 49-52 of H. R. are new, and deal with the subjects of Arts. 40-42.)

Art. 41. The enemy, in levying contributions, whether as equivalents for taxes (see Art. 5) or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and assessment of the taxes in force in the occupied territory.

The civil authorities of the legal government shall afford their assistance, if they have remained in office.

Contributions can be imposed only on the order and on the responsibility of the general-in-chief, or of the superior civil authority established by the enemy in the occupied territory.

For every contribution a receipt shall be given to the person furnishing it.

Art. 42. Requisitions shall be made only by the authority of the commander of the locality occupied.

For every requisition an indemnity shall be granted or a receipt given.

Of Flags of Truce.

Art. 43. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to confer with the other, on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer. He shall have the right to inviolability as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompany him. (See Art. 32 of H. R.)

Art. 44. The commander to whom a bearer of a flag of truce is despatched is not obliged to receive him under all circumstances and conditions.

It is lawful for him to take all measures necessary for preventing the bearer of the flag of truce taking advantage of his stay within the radius of the enemy’s position, to the prejudice of the latter; and if the bearer of the flag of truce is found guilty of such a breach of confidence, he has the right to detain him temporarily. (See Art. 33 of H. R.)

He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. Envoys presenting themselves after such a notification from the side to which it has been given forfeit their right to inviolability. (Omitted from H. R.¹ )

Art. 45. The bearer of a flag of truce forfeits his right of inviolability if it be proved in a positive and irrefutable manner that he has taken advantage of his privileged position to provoke or commit an act of treachery. (See Art. 34 of H. R.)

Of Capitulations.

Art. 46. The conditions of capitulations shall be discussed by the contracting parties.

These conditions should not be contrary to military honour.

When once settled by a convention they shall be scrupulously observed by both sides. (See Art. 35 of H. R.)

Of Armistices.

Art. 47. An armistice suspends warlike operations by a mutual agreement between the belligerents. Should the duration thereof not be fixed, the belligerents may resume operations at any moment; provided, however, that proper warning be given to the enemy in accordance with the conditions of the armistice. (See Art. 36 of H. R.)

Art. 48. An armistice may be general or local. The former suspends all warlike operations between the belligerents; the latter only those between certain portions of the belligerent armies, and within a fixed radius. (See Art. 37 of H. R.)

Art. 49. An armistice should be notified officially and without delay to the competent authorities and to the troops. Hostilities are suspended immediately after the notification. (See Art. 38 of H. R.)

Art. 50. It rests with the contracting parties to define in the clauses of the armistice the relations which shall exist between the populations. (See Art. 39 of H. R.)

Art. 51. The violation of the armistice by either of the parties gives to the other the right of terminating it (le dénoncer). (See Art. 40 of H. R.)

Art. 52. The violation of the clauses of an armistice by private individuals, on their own initiative, only affords the right of demanding the punishment of the guilty persons, and, if there is occasion for it, an indemnity for losses sustained. (See Art. 41 of H. R.)

Of Belligerents interned, and of Wounded interned, in Neutral Territory.

Art. 53. The neutral State which receives on its territory troops belonging to the belligerent armies shall intern them, so far as possible, away from the theatre of war.

It may keep them in camps, or even confine them in fortresses or in places appropriated to this purpose.

It will decide whether the officers may be left at liberty on giving their parole not to quit the neutral territory without authority. (See Art. 57 of H. R.)

Art. 54. In default of a special convention, the neutral State shall furnish the interned with provisions, clothing, and relief which the dictates of humanity prescribe.

The expenses incurred by the internment shall be made good at the conclusion of peace. (See Art. 58 of H. R.)

Art. 55. The neutral State may authorize the transport across its territory of the wounded and sick belonging to the belligerent armies, provided that the trains which convey them do not carry either the personnel or matériel of war.

In this case the neutral State is bound to take the measures necessary for the safety and control of the operation. (See Art. 59 of H. R.)

Art. 56. The Convention of Geneva applies to the sick and wounded interned on neutral territory. (See Art. 60 of H. R.)

[1 ]See post, p. 284.

[1 ]See post, p. 285.

[1 ]See post, p. 285.

[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 24-26, 100-112; La Deux. Confér. T. i. pp. 85-7, 96-110; Livre Jaune, pp. 75-7; Weissbuch, No. 527 (1907), pp. 6-7; J. B. Atlay, Legitimate modes of warfare, Journal of the Soc. of Comp. Legislation, New Series, No. xiii. p. 10; Sir T. Barclay, Problems, etc. p. 51; G. B. Davis, The amelioration of the rules of war on land, Am. Journ. of Int. Law, Vol. ii. p. 63; Idem, Elements of International Law, pp. 573-584; T. E. Holland, The laws and customs of war on land (1904); Idem, The laws of war on land (1908); Idem, Studies in international law, Nos. 2, 3 and 4; F. W. Holls, The Peace Conference, etc. Chapters iii. and iv.; E. Lémonon, La seconde Conférence de la Paix, pp. 341-381; A. Merignhac, Les lois et coutumes de la guerre sur terre; Idem, Les théories du grand état-major allemand sur les lois de la guerre continentale, Rev. gén. de Dr. inter. Vol. xiv. p. 197; L. Oppenheim, Inter. Law, Vol. ii. §§ 67, 97, 103-172 (with bibliography); A. Pillet, Les lois actuelles de la guerre; J. Westlake, War, pp. 60-119, 268-270; Les lois de la guerre continentale (publication de la section historique du grand état-major allemand, 1902) traduites et annotées par Paul Carpentier (1904).[ ]

[2 ]T. E. Holland, The laws of war on land, p. 1. Professor Holland’s work contains a lucid and concise exposition of the Articles in the Convention and Regulations dealt with in this Section. I have therefore confined my observations to the changes made in 1907.

[3 ]See G. B. Davis, Doctor Francis Lieber’s Instructions, Am. Journ. of Int. Law, Vol. i. p. 13. The full text of the instructions will be found in Vol. ii. of The Institutes of the Law of Nations, by J. Lorimer, pp. 303-336; G. B. Davis, Elements of International Law, Appendix A; J. B. Scott, Texts of the Peace Conferences, p. 350.

[4 ]“Doctor Lieber’s rules were also adopted by the German government with a view to regulating the conduct of its armies in the field during the war of 1870,” G. B. Davis, Am. Journ. of Int. Law, p. 22.

The French Government issued in 1877 a Manuel de Droit International à l’usage des officiers de l’armée de Terre; Russia issued a similar set of instructions in 1877; the Netherlands in 1871 issued a Manual prepared by General den Beer Poortugael. At a Congress held at Madrid in 1892, representatives of Spain, Portugal and the Latin American states prepared regulations for their armies; Spain in 1893 adopted a Manual based on this draft. The British Manual of Military Law, issued in 1883, contained a Chapter on “The customs of war” prepared by Lord Thring. (F. Despagnet, Cours de Droit International Public, p. 545; Sir H. Maine, Int. Law, Lectures vii. and viii.; A. Merignhac, Les lois et coutumes de la guerre sur terre, p. 24; T. E. Holland, The laws of war on land, p. 72.)

[2 ]G. B. Davis, Am. Journ. of Int. Law, Vol. i. p. 22.

[3 ]For text, see Parl. Papers, 1875, lxxii. [c. 1120]; and for other information as to the Conference, Parl. Papers, 1874, lxxvi. [c. 1010], 1875 [c. 1129, 1136]; T. E. Holland, Studies in International Law, pp. 59-95; J. Lorimer, Institutes of the Law of Nations, Vol. ii. pp. 337-402; J. Westlake, Chapters on International Law, Chap. xi.; Sir H. Maine, Int. Law, Chaps. vii.-xi.; Holtsendorff, § 80, and (for history of attempts at condification), §§ 70-3; Bluntschli, pp. 303, 529 et seq.

[1 ]Sir H. Maine, Int. Law, p. 128.

[2 ]The Institut de Droit International at its meeting at Oxford in 1890 prepared a Manual of the laws of war, a Spanish edition of which was adopted by the Argentine Republic in 1881 for its army (T. E. Holland, The laws of war on land, p. 73).

[1 ]Parl. Papers, Misc. No. 1 (1899), pp. 56-8.

[2 ]T. E. Holland, The laws of war on land, p. 5.

[1 ]T. E. Holland, op. cit., Appendix i. gives a list of countries which have published Regulations for their armies: they include Great Britain (Handbook of the laws and customs of war on land prepared by Professor Holland in 1904), France and Italy. For Russian and Japanese Rules of Warfare see A. S. Hershey, International law and diplomacy of the Russo-Japanese War, Chapter x.

[2 ]See on this subject, F. Despagnet, Droit International, § 510; T. E. Holland, op. cit. p. 6; L. Oppenheim, Int. Law, Vol. ii. p. 77 (note 2); E. A. Whittuck, International documents, p. xviii.; J. Westlake, War, p. 57.

[3 ]For original German proposal see Parl. Papers, Misc. No. 4 (1908), p. 105; La Deux. Confér. T. i. p. 103. The German military delegate explained that the distinction drawn had reference only to the settlement of the mode of payment of indemnities.

[1 ]Livre Jaune, p. 77; E. Lémonon, La seconde Conférence de la Paix, p. 381.

[2 ]See G. B. Davis, Am. Journ. of Int. Law, Vol. ii. p. 68; T. E. Holland, Laws of war on land, p. 21.

[1 ]In La Deux. Confér. T. i. p. 97; Parl. Papers, Misc. No. 4 (1908), p. 101. E. Lémonon, op. cit. p. 349, states that the United States Delegation voted against the alteration.

[2 ]For text of Imperial Japanese Ordinance relating to the Burean of information see A. S. Hershey, International law and diplomacy, etc. p. 289; see also S. Takahashi, International law applied to the Russo-Japanese War, pp. 94-146.

[3 ]The original Japanese proposal was as follows: “Le Gouvernement accorders, s’il y a lieu, aux officiers prisonniers entre ses mains une solde convenable, à charge de remboursement par leur Gouvernement.” Parl. Papers, Misc. No. 4 (1908), p. 101; La Deux. Confér. T. i. p. 98.

[4 ]G. B. Davis, Am. Journ. of Int. Law, Vol. ii. p. 69.

[5 ]See supra, p. 25.

[1 ]Parl. Papers, Misc. No. 4 (1907), p. 104; La Deux. Confér. T. i. p. 101.

[2 ]Weissbuch, p. 7.

[1 ]Am. Journ. of Int. Law, Vol. ii. p. 70; also Elements of International Law (1908), p. 578. The Report in The Times of the 1st Aug. 1907 is as follows, “The Committee adopted unanimously without a vote a German proposal imposing upon belligerents the duty to respect contractual obligations in an enemy’s country.”

[2 ]The laws of war on land, p. 44.

[3 ]Op. cit. p. 5.

[1 ]W. E. Hall, Int. Law, p. 393; T. J. Lawrence, Int. Law, § 165; H. Taylor, Int. Law, § 465; J. Westlake, War, p. 44; Wheaton, Int. Law, § 305; J. B. Scott, Leading Cases in Int. Law, pp. 498-554. L. Oppenheim, Int. Law, Vol. ii. § 101, considers the rules of the English and American Courts are merely rules of municipal law and not of international law, and that such a rule of international law as that prohibiting peaceful intercourse between subjects of the belligerent states does not exist, and never has existed, but he appears to be almost alone in this opinion among British writers. See F. Despagnet, Droit inter. p. 631, who states the rule of non-intercourse as one generally admitted.

[2 ]See authorities cited by J. Westlake, War, p. 49.

[3 ]M. Fauchille appears to understand the paragraph in the latter sense (Bonfils-Fauchille, Droit international (5th ed.), § 1065).

[1 ]The word ressortissant appears to have a wider meaning than subject, and to include all over whom a state claims to exercise jurisdiction either by virtue of allegiance or domicile.

[2 ]Parl. Papers, Misc. No. 4 (1908), p. 102; La Deux. Confér. T. i. p. 99.

[1 ]E. Lémonon, op. cit. p. 361.

[1 ]Parl. Papers, Misc. No. 4 (1908), p. 24; La Deux. Confér. T. i. p. 86.

[2 ]See Weissbuch, p. 7.

[1 ]See J. Westlake, War, p. 91; T. E. Holland, The laws and customs of war on land (1904), p. 34; L. Oppenheim, Int. Law, Vol. ii. p. 175.

[2 ]“Par l’article 44 notamment une des pratiques les plus odieuses de la guerre, l’emploi des guides forcés et la contrainte exercée sur les populations envahies pour en obtenir des renseignements militaires, a été solennellement interdite.” (Report of French Delegation, Livre Jaune, p. 107.)

[3 ]I desire to acknowledge my indebtedness to the work of M. Lémonon already cited; the account of the discussions on this subject are extremely valuable (see pp. 358-364). See also Parl. Papers, Misc. No. 4 (1908), pp. 24, 102; La Deux. Confér. T. i. pp. 86, 99-101; Livre Jaune, p. 76; Weissbuch, p. 7.

[1 ]See post, p. 491.

[2 ]See Convention No. 9, Art. 5, post, p. 348.

[1 ]See post, p. 286.

[2 ]Parl. Papers, Misc. No. 1 (1899), pp. 83, 178.

[3 ]Annuaire, Vol. xix. p. 331. 1. A submarine cable connecting neutral territories is inviolable. 2. A cable connecting the territories of the two belligerents or two parts of the territory of one of the belligerents may be cut anywhere except in territorial waters or the neutralised waters of a neutral. 3. A cable connecting the territories of a neutral may in no case be cut in neutral waters, and only in the high seas if there is an effective blockade, subject to the duty of its being re-established within the shortest possible time. A cable can always be cut within enemy territory or territorial waters. 4. A neutral state must only allow the transmission of despatches which clearly do not lend assistance to one of the belligerents. 5. In applying the above rules, no difference is to be made between cables owned by the state and private individuals, nor between cables which are enemy and neutral property.

[1 ]De Martens, Nouveau Recueil Général (2nd series), Vol. xi. p. 281; 48 and 49 Vic., c. 49. For a further discussion of this topic see J. Westlake, War, p. 280; A. S. Hershey, International law and diplomacy, etc. p. 122; C. Phillipson, Two studies in international law, pp. 55-116; also the report of the discussions at the Institut de Droit International, Annuaire, Vol. xix.

[1 ]See ante, p. 257.

[1 ]This paragraph was omitted from the Regulations adopted at the Hague Conference of 1899 as being contrary to the principles of international law. (See Parl. Papers, Misc. No. 1 (1899), p. 147.

[P. 245, Art. 44, 1907,]insert “by a belligerent” after “any compulsion.”

[P. 247, Art. 49, 1899,]for “military necessities” read “the needs of the army.”

[P. 256, note 1,]add La Deux. Confér. T. iii. pp. 8-15, 101-148, 233-248.

[¹]See post, p. 273, for translation of the Brussels draft Declaration.