Front Page Titles (by Subject) Convention No. 4. Concerning the laws and customs of war on land 1 . - The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
Return to Title Page for The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Convention No. 4. Concerning the laws and customs of war on land 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.
[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.
[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.
[P. 256, note 1,]add La Deux. Confér. T. iii. pp. 8-15, 101-148, 233-248.
See post, p. 273, for translation of the Brussels draft Declaration.