Frederick William Holls.

The peace conference at The Hague, and its bearings on international law and policy online

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THE WORK OF THE SECOND COMMITTEE 1-J5

one of the belligerents, would be found in a casechapter iv
where secrecy regarding further naval operations
was essential or desirable, and no other effective
o;uarantee ao;ainst unauthorized coniniunieation seems
practicable.

Article 5. The military hospital ships shall be Distinguish-
distinguished by being painted white outside with '^ hospTtai^syps
horizontal band of green about one metre and a half
in width. The shi})s mentioned in Articles 2 and 3
shall be distinguished by being painted white outside
with a horizontal band of red aljout one metre and
a half in breadth. Tbe boats of the ships above
mentioned, as also similar craft, which may be used
for hospital work, shall be distinguished by similar
painting. All hospital ships shall make themselves
known by hoisting, together with their national flag,
a white flag with a red cross provided by the Geneva
Convention.

At the meeting of the full Committee at which
the article was adopted, Mirza Riza Khan, First Dele-
gate of Persia, made the following declaration in
regard to the last paragraph of Article 5 : —

"Pursuant to the instructions which I have just Distinctive
received from my Government, I am directed to i^^. ^^'^s of Persia
form the Committee that the Persian Government
will claim as a distinctive flaii: <^ white flao:: with a
red sun. The adoption of the red cross as the dis-
tinctive flag of hospitals was an act of courtesy on
the part of the Signatory Powers of the Geneva Con-
vention toward the Swiss Government, in that the
national flag of Switzerland was adopted, simply



126 THE PEACE COXFEREXCE AT THE HAGUE

Chapter IV cliaiigiiig the order of the colors. We would be
happy to extend the same courtesy to the honorable
Government of Switzerland, if it were not impossible
on account of objections which would be raised in a
Mohammedan army. I request the Committee to
kindly take notice of this declaration, and to have
the same inserted in the minutes of the meeting."
Similar Official uoticc was taken of this declaration, as

by^stam!"" wcll as of auotlicr made o\\ behalf of the Siamese
Government by M. Rolin, to the effect that the
Royal Government of Siam reserved the right to
change the sign on the Geneva flag to a symbol
sacred in the Buddhistic cult, and calculated to in-
crease the saving authority of the flag.

Neutral ARTICLE 6. Neutral merchantmen, yachts, or

temporarily"^ ^^^^^^'"^ having or taking on board sick, w^ounded,
as hospital or sliipwreckcd of the belligerents, cannot be captured
ships. £^^ ^^ doing, but they shall be liable to capture for

any violation of neutrality which they may have

committed.

It will be seen that in this article no provision is
made for the case of a merchantman belonging to
one of the belligerent parties carrying sick or
wounded. In consequence, such a vessel remains
under the provisions of the common law, and is
liable to capture. This provision would seem to fol-
low logically from all the principles governing the
case.

ofThe'^^taff of Article 7. The religious, medical, or hospital
hospital ships, staff of auy captured ship is inviolable, and its mem-



THE WORK OF THE SECOND COMMITTEE 127

bers cannot be made prisoners of war. On leaving; cimpteriv
the ship they shall take with them the effects and
surgical instruments which are their own private
])roperty. The staff shall continue to discharge its
duties while necessary, and may afterward leave the
ship when the commander-in-chief considers it possi-
ble. The belligerents shall guarantee the payment
of their full salaries to the stall's which shall fall
into their hands.

Akticle 8. Soldiers and sailors who are taken on ah sick and
board when sick or wounded shall be protected and^^'°'""^'",'J''

i be cared for

looked atter l)y the captors, without regard to the aiiko.
nation to which they belong.

Article 9. The shipwrecked, wounded, or sick of status of the
one of the belligerents who fall into the hands of the ^"'^i'^"'"'^'^-
other, shall be prisoners of war. The captor shall
decide, according to circumstances, whether it is best
to detain them or send them to a port of his own
country, to a neutral port, or even to a hostile port.
In the last case, prisoners thus returned to their own
country shall not serve again during the continuance
of the war.

It is, of course, understood that if the shipwrecked,
wounded, or sick who are returned to their own coun-
try are so returned in consequence of an exchange,
they are no longer regarded as prisoners of war under
parole, but regain their own liberty of action.

[Article K). The shipwrecked, wounded, or sick Disposition of
who shall be landed at a neutral port, with the con-'^'''i'''r':''^'^'

J,,,, ,.. -ii f wounded, or

sent 01 the local authorities, must, m the absence oi asickjande.i
contrary arrangement between the neutral State and '"^^ '"^ '"^"'^'^^

. ~ port.

the belligerents, be guarded by the neutral State so



1-28 THE PEACE CONFERENCE AT THE HAGUE

ciiapter IV that tliGV caimot again take part in the military oper-
ations. The expense of entertainment and detention
shall he home hy the State to which the wounded,
shipwrecked, or sick shall belong.]

Discussion of The provisions of this article led to lively discus-
sions. It was finally adopted by a bare majority, as
follows : —

Ayes : Germany, Austria-Hungary, France, Great
Britain, Italy, Netherlands, Portugal, Rou mania,
Russia, and Turkey, (10).

Noes : United States of America, Belgium, China,
Denmark, Spain, Japan, Siam, Sweden and Norway^
and Switzerland, (9).

According to Professor Zorn [Deutsche Rundschau,
January, 1900, p. 136): "It is still questionable
whether the true solution has been found." Accord-
ing to Article 10 a neutral State certainly would have
the right to receive wounded and shipwrecked with-
out violating its duties as a neutral, provided only
that both belligerents were treated alike, but Pro-
fessor Zorn calls attention to the possibility of a war
between Russia and France on the one side and
Germany on the other, with the Baltic Sea as the
scene of the naval operations. Denmark being a neu-
tral State and receiving shipwrecked and wounded,
might by that very act confer upon Russia and France
an advantage which might conceivably be of deter-
mining importance. Germany, in signing the treaty,
reserved special liberty of action under this Article,
and the same course was taken by the United States,
Great Britain, and Turkey.



THE WORK OF THE SECOND COMMITTEE 12!J

In view of these facts, the Netherhmcls Govern- ciiapter iv
ment, on January 29, 1900, addressed an identical
note to all tlie Signatory Powers, stating that the
Convention had been signed with this reservation by
these four Powers, and going on to say : " Under the
circumstances, and also b}- reason of the desirability
that there should be a uniformity established in the
respective obligations resulting from this Convention
for the Contracting Powers — a uniformity which
would be endangered by the reservations of four of
them, the Government of Her Majesty the Queen of
the Netherlands deems that there should be a means
of excluding the ratification of the said Article 10,
which of itself, otherwise, is only of secondary interest.
It is to be hoped that if this proposal is accepted, —
and I am happy to be able to inform you that the
Imperial Russian Government agrees with us in our
views on this, — the subject of the exclusion of the
above-mentioned Article — the ratification can be
made with no further difficulty of internal form in
the different countries, and it could be effected with
little delay, which would be highly desirable." ^

On April 30, 1900, the Minister of the Netherlands Exclusion of
in Washington informed the State Department that
" the proposition of the Government of the Nether-
lands, which formed the subject of M. de Beaufort's
communication of January 29, suggesting the exclu-
sion of the ratification of Article 10 of the Convention,
has received the assent of all the States which up to

* Note by M. de Beaufort to Minister Newel. ]Mss. State Depart-
ment.



l;]() THE PEACE CONFERENCE AT THE HAGUE



Chapter IV tliG present time had made known their views, —
these Powers Ijeing in the majority, and the adoption
of the proposition by the other interested States being
probable, it is important that, with a view of expedit-
ing the filing of these acts of ratification, a uniform
method for emxphasizing this exclusion should be
established now. The Cabinet of St. Petersburg
suggests for the purpose a combination which consists
in inserting in the act of Ratification a copy of the
Convention in which the text of Article 10 would be
replaced by the word " EXCLU " (excluded), while
still preserving the proper numbering of the Articles.
Copies prepared in conformity with the method above
indicated will be placed at the disposal of these Gov-
ernments who wish them." ^

On May 1, 1900, the United States Government
made known its acquiescence in this proposition of
the Russian and Netherlands Governments, and the
Convention with the word "EXCLU" inserted in the
place of Article 10 was duly ratified, and as ratified
duly proclaimed by the United States on August 3,
1900.

Article 11. The rules contained in the above
articles shall be binding only upon the Contracting
Powers in case of war between two or more of them.
Such rules shall cease to be Ijinding from the time
when in a war between Contracting Powers one of
the belligerents is joined by a non-adhering Power.

Ratiticatiou. Article 12. The prcscut Convention shall be
ratified as soon as follows.



Binding

clause.



^ Baron de Gevers to Secretary Ilay. Mss. State Department.



rilK WORK OF THE SECOND COMMITTEE 1:51

The ratifications shall be deposited at The Hague, ciiapteriv
On the receipt of each ratilication a pnx-es verbal
shall be drawn uji, a copy of which, dnly certified,
shall be sent through the diplomatic channel to all
the Contracting Powers.

Article 13. The non-signatory Powers who have Adherence,
accepted the Geneva Convention of August 22, 1864,
shall be allowed to adhere to the present Convention.
For this purpose they shall make their adhesion
known to the Contracting Powers by means of a
written communication addressed to the Netherlands
Government, and by it communicated to all the other
Contracting Powers.

Article 14. In the event of one of the High Con- Denunciation,
tracting Powers denouncing the present Convention,
such denunciation shall not take effect until a year
after the notification made in writing to the Nether-
lands Government, and forthwith communicated by
it to the other Contracting Powers. This notification
shall only affect the notifying Power.

The treaty embodying these Articles has since been
ratified by all the Powers represented at the Peace
Conference.

At a meeting of the full Committee, on June 20, Additional

. articles

Captain Mahan, on behalf of the United States of proposed by
America, proposed the adoption of the following three ^ahan.
additional Articles : —

"•1. In the case of neutral vessels of any kind,
hospital ships, or others, being on the scene of a
naval engagement, which may as an act of humanity
save men in peril from drowning from the results of
the engagement, such neutral vessels shall not be



132 THE PEACE CONFERENCE AT THE HAGUE



Chapter IV



Their with-
drawal.



Resolution
favoring the
revision of
the Geneva
Rules.



considered as having violated their neutrality by that
fact alone. They will, however, in so doing, act at
their own risk and peril.

" 2. Men thus rescued shall not he considered
under the cover of a neutral flag, in case a demand
for their surrender is made by a ship of war of either
belligerent. They are open thus to capture or re-
capture. If such demand is made, the men so res-
cued must be given up, and shall then have the same
status as if they had not been under a neutral flag.

"3. In case no such demand is made by a bellig-
erent ship, the men so rescued having been delivered
from the consequences of the fight by neutral inter-
position, are to be considered Jiors de cojnbat, not to
serve for the rest of the war unless duly exchanged.
The Contracting Governments engage to prevent, as
far as possible, such persons from serving until dis-
charged."

These Articles were subsequently, on July 18,
withdrawn by Captain Mahan, with the approval of
the American Commission, for reasons which are fully
stated in his report in the Appendix, to which special
reference is hereby made.

At the same meeting M. Asser of the Netherlands
moved the adoption of the following wish, to be
expressed by the Conference : —

'"' The Conference at The Hague, taking into con-
sideration the preliminary steps taken by the Federal
Government of Switzerland for the revision of the
Geneva Convention, expresses the wish that after a
brief delay there should be a meeting of a special



THE WORK OF THE SECOND COMMITTEE liW

conference, having as its object the revision of the Chapter iv
said Convention."

M. Beldiman, of Roiimania, moved as an amend-
ment to insert after the words, " after a brief delay,"
the words, "under the auspices of the Swiss Federal
Council."

When this amendment was first put to a vote the
result was as follows : Ayes — Germany, Austria-
Hungary, China, Denmark, Spain, Italy, Japan,
Luxemljurg, Paris, Roumania, Servia, Siam, and
Switzerland, (13); noes — The United States of
America, (1); abstentions — Belgium, France, Great
Britain, Greece, Mexico, Montenegro, Netherlands,
Portugal, Russia, Sweden and Norway, and Bulgaria,
(12). .

By the ruling of the chairman of the Committee,
M. de Martens, the amendment, not having received
a clear majority of all the countries represented at
the Conference, was considered lost.

It soon appeared, however, that the vote of the a misunder-
United States of America on this amendment was ^ *° ^°^'
cast under a misapprehension, and the American
Connuission to the Conference cordially and unani-
mously joined in the hope expressed by the Delegate
from Roumania, that the Swiss Federal Government
should continue to enjoy the well-merited honor of
leadership in all matters pertaining to the Geneva
Convention. After a brief interchange of views, it
was decided that the best manner of correcting the
unfortunate error, and of giving expression to this
general desire, would be to have a special additional



131 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV resolutioii Oil the subject adopted by the Second Com-
mittee and reported by it to the Conference. This
resohition was as follows : —
A second " I^ cxprcsslng the wish relative to the Geneva

the'sanu" ^*" Convcntion, the Second Committee cordially endorses
suijjwt. ^\^Q declaration made by M. Asser, chairman of the
First Sub-Committee, at the meeting of June 20, at
which the Delegate of the Netherlands stated that
all of the States represented at The Hague would be
happy to see the Federal Council of Switzerland take
the initiative, after a brief delay, in calling a con-
ference with the view to a revision of the Geneva
Convention."

At a meeting of the full Conference on July 5,
this resolution was unanimously adopted, and the
Swiss Federal Council may be counted upon to take
all necessary further steps in due season.

II. The Laws and Customs or War

The second suljject assigned to the Second Com-
mittee, and l)y this latter referred to a sub-com-
mittee, was the revision of the Declaration concerning
the laws and customs of war, adopted in 1874 by
the Conference of Brussels, but never ratilied. This
is the question referred to in the seventh paragraph
of the circular of Count Mouravieff, of December oO,
1898.
War on land. It sliould bc remarked that the committee regarded
the report of the Conference of Brussels as being
concerned exclusivelv witli the laws and customs of



LA U'S AND CL'STOMS OF WAR V.io

war on land. Consequently the sub-committee of the Chapter iv
Second Committee limited its own competence in a
similar manner. In virtue of this decision the sub-
committee simply entered the proposition of Captain
Crozier of the United States of America upon the
record, reii^ardino: the extension of the rules with
respect to private i)roperty on land to the same prop-
erty on the ocean. ^ For the same reason the com-
mittee referred the question of bombardments by
naval vessels to a separate sub-committee, as a
special question, not necessarily implied in the gen-
eral subject referred to it.

The sub-committee which prepared the code of Members of
laws of war subsequently adopted by the Conference niutlVwhicii
was presided over by M. de Martens of Russia, p^'^p^^^^^ ^^^

i '^ code.

The other members were M. Beldinian of Rouinania,
Colonel a Court of Great Britain, Colonel Gilinsky
of Russia, Major-General Gross von Schwarzhoff of
Germany, Professor Lammasch of Austria, Professor
Renault of France, General Zuccari of Italy, and
M. Rolin of Siam, the latter being at the same time
reporter of the committee. Professor Renault of
France not being able to attend all meetings was
occasionally represented by General ^lounier. In the
beginning of the discussion M. de Martens of Russia
announced the purpose of the Imperial Government
of Russia as follows : —

"The object of the Imperial Government has Speech of m.
steadily been the same, namely, to see that the dec- Russia,
laration of Brussels, revised so far as this Conference

^ Fui' a further discussion of this proiiosition, see Chapter VI.



130 THE rEACE COyFEllENCE AT THE HAUUE

Chapter IV may deem it necessary, should form the solid basis
Speech of M. for the instructions which the Governments should

de Martens of . „ . . .

Russia. hereaiter, ni case oi war, issue to their armies on

land. Without doubt, to the end that this basis
should be firmly established, it is necessary to have
a treaty engagement similar to that of the Declara-
tion of St. Petersburg in 18G8. It will be necessary
that in a solemn article the Signatory Powers, who
signify their adlierence, should declare that they are
in accord on the subject of uniform rules, which
should be embodied in these instructions. This is
the only manner of obtaining an obligation binding
upon the Signatory Powers. It is well understood
that the Declaration of Brussels shall have no obli-
gatory force except for the Signatory States which
declare their adherence."

According to these views of the Russian Govern-
ment there could be no other question or object than
that of entering into a treaty, providing that the
adopted rules should not be obligatory as such, ex-
cept upon the Signatory States. They would cease
to be applicable even in the case where, in a war
between Signatory Powers, one of the latter accepted
the alliance of a Power not adhering to the treaty.
The delegate from Russia enforced this view by
comjoaring the work which was to be done with the
formation or establishment of a mutual insurance
company against the abuse of force in time of war, —
a company to which States should be free to enter
or not, but which must have its own by-laws obliga-
tory upon the members among themselves. At the



LAWS AXD CUSTOMS OF WAR 137

same time, said M. de Martens, the founding of a Chapter iv
mutual insurance company against the abuse of
force in time of war, with the object of safeguarding
the interests of popuhitions, by no means legalized
these disasters, but simply took account of the fact
that they existed, just the same as insurance com-
panies against fire, hail, or other calamities bj* their
by-laws by no means legalize them, but simply take
account of existing dangers.

The remarks of M. de Martens were in answer Speech of m.

iSt^GnitiGrt of

especially to a most able and interesting speech Belgium,
of M. Beernaert, the first Delegate of Belgium,
made in the meeting of June 6. This speech of
M. Beernaert was especially devoted to a considera-
tion of Chapters 1, 2, and 5 of the Declaration of
Brussels, relative to the occupation of hostile terri-
tory, the definition of belligerents, and the provisions
regarding contributions either in kind or in money.
M. Beernaert asked the question whether it was wise,
in advance of war or in case of war, to legalize by
law the right of the victor over the vanquished, and
thus organize a regime of defeat. He was opposed
to the adoption of any provision except such as would
admit the fact, without recognizing the right of the
victor, and which would imply an agreement on the
part of the latter to be moderate in the exercise of
his right. As a matter of fact, these observations of
the Belgian Delegate had a very general bearing, being
applicable really to all parts of the treaty or declara-
tion which applies to the laws and customs of war.
M. de Martens in response insisted very urgently



lOS Till': J'EACE COXFEUEXCE AT THE lIAfU'E

("iiaptor i\- Upon the necessit}' of not abandoning to the mere
Reply oiM., If cliaiice of Warfare and international law the vital

Martens. . i i i i i • mi

interests oi peaceable and unarmed populations. Ihe
question really was whether the fear of appearing to
leo-alize as a risrht, 1)V an international rule, the exer-
cise of brute force by the force of arms, should be a
reason for abandoning the great advantage of a lim-
itation of this very power, — besides, no member of
the sub-committee had the idea that tlie Govern-
ment of an invaded country should be asked to give
in advance a sort of sanction to the brute force exer-
cised by an invading and occupying army. On the
contrary, the adoption of precise rules tending to
limit the exercise of brute force appeared as a self-
evident necessity in the higher interest of all peoples
— for all might in turn be exposed to the fortunes
of warfare. The sub-committee took account of the
views and observations of M. Beernaert in adopting
and making its own the declaration wliich M. de
Martens read in the meeting of June 20. This
declaration will be found below in the commentary
upon Articles 1 and 2.
Resniutinn At tlic meeting of June 3, the First Delegate of

tile wish For a the Grand Duchy of Luxemburg, M. Eyschen, made
cmiference on ^'' uiotiou that tlic sub-committce should be re-
diTties"or ^°'^ ^^^^^^®^^ ^'^ examine into the question of determining
Neutrals. the ritrlits and duties of neutral States. The sub-

o

committee decided that this subject hardly came
under the terms of the Declaration of Brussels, but
it recommended the passage of a resolution which
was subsequently adopted by the full Conference, ex-



LAWS AND CUSTOMS OF WAIt 139

pressing the hope that the question of tlie rights chapter iv
and duties of neutral States should be made the
programme of a later Conference.

The following are the Convention and tlie articles
upon the Laws and Customs of War finally adopted
by the Conference, together with such commentaries,
based to some extent upon the admirable report of
M. Rolin, as seem useful for an elucidation of the
text and an explanation of the reasons for the action
of the Conference.

Convention with Respect to the Laws and Customs

OF Waii

Akticle 1. The High Contracting Powers shall instructions
issue instructions to their armed land forces, which ^° ^^"*^ ^"^*^^^'
shall be in conformity with the " Regulations respect-
ing the Laws and Customs of War on Land" annexed
to the present Convention.

Article 2. The provisions contained in the Regu- Binding
lations mentioned in Article 1 are binding only on"^'^"^^-
the Contracting Powers, in case of war between two
or more of them.

These provisions shall cease to be binding from
the time when, in a war between Contracting Powers,
a Non-Contracting Power joins one of the belligerents.

Article 3. The present Convention shall 1)e ratified itatiiication.
as speedily as possible.

The ratifications shall be deposited at The Hague.

A proces verbal shall be drawn up recording the
receipt of each ratification, and a copy, duly certified,
shall be sent through the diplomatic channel, to all
the Contractin<>: Powers.



110 Till-: PEACE CONFERENCE AT THE HAGUE



Chapter IV
Adherence.



Treaty
approved
l)y nearly
all ijowers.



Article 4. Non-Signatory Powers are allowed to
adhere to the present Convention.

For this purpose they must make their adhesion
known to the Contracting Powers by means of a



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 10 of 39)