Frederick William Holls.

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

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written notification addressed to the Netherlands
Government, and by it communicated to all the other
Contracting Powers.

Article 5. In the event of one of tlie Hisj-li Con-
tracting Parties denouncing the present Convention,
such denunciation would not take effect until a year
after the written notification made to the Netherlands
Government, and l)y it at once communicated to all
the other Contracting Powers.

Tills denunciation shall effect only the notifying
Power.

In faitli of which the ])lenipotentiaries have signed
the present Convention and affixed their seals thereto.

Done at Hague, the 29th of July, 1899, in a single
copy, which shall be kept in the archives of the
Netherlands Government, and copies of which, duly
certified, shall be delivered to the Contracting Powers
through the diplomatic channel.

This treaty has since been approved by all the
Powers represented at the Peace Conference, with
the exception of China and Switzerland, the hesi-
tation of the latter country Ijeing founded on her
careful regard for tlie right of levee en masse to
repel an invasion.

In the United States the ratification of the treaty
by the Senate has been delayed, notwithstanding
a favorable report on the Regulations from the
Judge-Advocate-General of the army.



LAWS AND CUSTOMS OF WAR lil

Regulations Respecting the Laws and Customs of chapter iv
Wak on Land

section i. ox belligerents

Chapter I. What constitutes a Belligerent?

Article 1. The laws, rights, and duties of war wim entitled
apply not only to armies, but also to militia and J° ^|^^^ J'®"®^*
volunteer corps, fulfilling the following conditions : — and customs

1. To be commanded by a person responsible for °^ '^^^'■•
his subordinates ;

2. To have a fixed distinctive emblem recognizable
at a distance ;

3. To carry arms openly ; and

4. To conduct their operations in accordance with
the laws and customs of war.

In countries where militia or volunteer corps con-
stitute the army, or form part of it, they are included
under the denomination '• army."

Article 2. The population of a territory which Resistance to
has not been occupied, who, on the enemy's approach, ^" ^°"^^*^''''-
spontaneously take up arms to resist the invading
troops without having time to organize themselves
in accordance with Article 1, shall be regarded as
belligerent, if they respect the laws and customs of
war.

Article 3. The armed forces of the belligerent Both comba-
parties may consist of combatants and non-comba- ^^^j^^fj^^^ll^tT""
tants. In case of capture l)y the enemy both have a recognized.
right to be treated as prisoners of war.

When these Articles were discussed for the first
time, M. de Martens read the following declaration,
above referred to, which the sub-committee adopted



142 77//; PEACE CONFERENCE AT THE HAGUE.



Chapter IV



DechiiMtioii
of the suh-
cominittee.



Withdrawal
of M.

Beernaert's
objections.



immediately, and of which the text, as siiljmitted to
the Conference, is as follows : —

" The Conference is unanimous in thinking that
it is extremely desirable that the usages of war
should be defined and regulated. In this spirit it
has adopted a great number of provisions which
have for their object the determination of the rights
and of the duties of belligerents and of populations,
and for their end the reduction and softening of the
evils of war, so far as military necessities permit.
It has not always been possible to come to an agree-
ment that henceforth all these stipulations should
apply to all practical cases. On the other hand,
it could not possibly be the intention of the Con-
ference that unforeseen cases should, in the absence
of written stipulations, be left to the arbitrary deci-
sion of those wdio commanded the army. In aw^ait-
ing the time when a complete code of the laws of
war may be elaborated and proclaimed, the Confer-
ence considers it opportune to state that in cases not
provided for in the Articles of this date, populations
and belligerents remain under the safeguards and
government of the principles of international law,
resulting from the customs established between civil-
ized nations, the laws of humanity, and the demands
of public conscience. It is in this sense that espe-
cially Articles 2 and 3 adopted by the Conference
should be clearly understood."

The first delegate from Belgium, M. Beernaert, wdio
had previously objected to the adoption of Articles
2 and 3, immediately announced that he would with-



LAWS AND CUSTOMS OF WAR 143

drcaw his objections on account of this dechiration, chapter iv
and unanimity was thereby established on an impor-
tant and delicate question, relating to the fixing of
the status of a belligerent, and giving the right to
non-combatants forming })art of the aruiy to be con-
sidered belligerents, so that both combatants and
non-combatants would have the right, in case of
their capture by the enemy, to be treated as pris-
oners of war. Before the above declaration, adopted
on the motion of M. de Martens, had been communi-
cated to the sub-committee, General Sir John Ardagli
of Great Britain })roposed to add at the end of the
first chapter the following provision : —

"Nothing in this chapter shall be construed as Amendments
diminishing or denying the right belonging to thesirjoim
people of an invaded country to fulfil their duty of '^''*^^^^
opposing the invaders by the most energetic patriotic
resistance, and by all permitted means."

The idea expressed in this proposition was warmly
advocated by M. Beernaert, who claimed that too great
a limitation of the term helVujerent would practically
mean the prohibition of patriotism. The first duty
of every citizen was to defend his own country, and
national uprisings against invaders form the grandest
episodes of history. Colonel Kuenzli of Switzerland and Coionei
supported this view, and proposed to add to the article "''"^ ''
of Sir John Ardagh the further provision : '^ Reprisals
are prohibited against any population which has openly
taken arms to resist the invasion of its territory."

General Den Beer Poortugael of the Netherlands
also supported this view, although he called atten-



144 THE PEACE COXFEIIENCE AT THE HAGUE

Chapter IV tioii to tliG fact that Operations on the part of an
Opposition by imdrillecl population against an army had become
sehwarzhoff niore and more hopeless. On the other hand, General
Giiluskv"^^ Gross von Schwarzhoff of Germany, who was warmly
supported by Colonel Gil ins ky of Russia, protested
against the proposition, which in his opinion would
wipe out the distinction between a popular uprising
or levee en masse in a country which was in danger
of invasion, and a similar uprising in a district which
had already l^een invaded by a hostile army. He
claimed that he was the last to deny the rights and
duties of patriotism ; every one must be free to
enter the army, and even civilians could organize
independently. The most informal organization
would suffice, as well as the simplest distinctive
emblem. He considered that Article 2 in its pres-
ent form was not without its dangerous omissions,
in that the open carrying of arms and the having
of a fixed distinctive emblem recognizable at a dis-
tance should also be required. While he had resolved
to vote for the Article in a spirit of conciliation, " at
this point, however," said the German Delegate, most
emphatically, " my concessions must cease ; it is
absolutely impossible for me to go one step further,
to follow those who speak of an absolute unlimited
right of defence."
Humanity to Mucli was Said ou tlic subjcct of liumauity, but in

soldiers

his opinion it was time to remember that soldiers
too were human beings, and that tired and exhausted
soldiers approaching their quarters after heavy
combats and lono; marches had a rio-ht to feel sure



LAWS AXD CUSTOMS OF WAR 145

that apparently peaceable inhabitants should not Chapter iv
suddenly prove to be wild and merciless enemies.
Finally, the propositions of Sir John Ardagli and witiKir.uvai
Colonel Kuenzli were both withdrawn, and themeuts.
declaration proposed by M. de Martens was adopted
unanimonsh-, both as a compromise and as a sub-
stitute.

Chapter J I. On Prisoners of Wt/r

Article 4. Prisoners of war are in the power of status of tiie
the hostile Government, but not in that of the indi- Jlropelty of
viduals or corps who captured them. They nuist be prisoners of
humanely treated. All their personal belongings/^ '^'^^
except arms, horses, and military papers, remain
their property.

Article 5. Prisoners of war may be detained in Their deten-
a town, camp, or any other locality, and bound not*^*^"-
to go beyond certain fixed limits ; but they can only
be confined as an indispensable measure of safety.

Article C. The State may utilize the labor of Their lahor
prisoners of war according; to their rank and apti- ^°'" *'?*^ ^^'^^'^

-L ^ cj ^ ^ or pri\'Rtc

tude. Their tasks shall not be excessive, and shall individuals.
have nothing to do with military operations.

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 accord-
ing 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 wages of the prisoners shall go towards wages,
improving their position, and the balance shall be



IIG THE PEACE CONFERENCE AT THE HAGUE

Chapter IV paid tlieiii cat the time of their release, after deduct-
iiiiz: the cost of their maintenance.



Their treat
ment as



Article 7. The Government into whose hands
, , prisoners of war have fallen is bound to maintain

regards food, i
(juarters, and tlieni.

clothing. Failing a special agreement between the belliger-

ents, 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.

Discipline. ARTICLE 8. Prisoncrs 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 tliem, of such measures of severity as may
be necessary.

Escaped prisoners, recaptured before they have
succeeded in rejoining the 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 punish-
ment for the previous flight.



Discussion on
attempts to
escape.



Concerning Article 8 a long discussion took place
in the Committee on the subject of the escape
of prisoners of war. Finally it was admitted,
as in the Brussels Convention of 1874, that an
attempt at escape could not remain entirely un-
punished, but that tlie degree of punishment should
be limited, so as to forestall the temptation to regard
such an attempted escape as something similar to
desertion before the enemy, and therefore punishable



LAWS AND CUSTOMS OF WAR 117

b}'' death. In consequence, the restrictive words chapter iv
" disciplinary punishment " were adopted, it benig
understood that this restriction had no application to
cases where the escape or the attempt to escape
was accompanied l)y special circumstances, constitut-
ing, for example, a plot, a rebellion, or a riot. In
such cases the prisoners would bo punishable under
the first paragraph of the Article, declaring them to
be subject to the laws and regulations in force in the
army of the State into whose hands they have fallen.
The proposal of the Brussels Conference contained
the provision that it was permissible, after a
summons to halt, to use arms against an escaping
prisoner of war. This provision was stricken out of
the present Articles. The Committee did not deny
the right to fire on an escaping prisoner of war, if
military regulations so provided, but it did not seem
necessary or proper to provide such formal extreme
measures in the body of these Articles.

Article 9. Every prisoner of war, if questioned, Disclosure of
is bound to declare his true name and rank, and if"a"k!^"'
he disregards this rule, he is liable to a curtailment
of the advantages accorded to the prisoners of war
of his class.

Article 10. Prisoners of war may be set at lib-Paroie.
erty on parole, if tlie laws of their country authorize
it, and, in such a case, they are l)ound, on their per-
sonal honor, scrupulously to fulfil, both as regards
their own Government and the Government by whom
they were made prisoners, the engagements they have
contracted.



148 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV AiiTiCLE 11. A prisoiior of War cannot be forced
Not, obiisa- to accept his li):)erty on parole; similarly the hostile
tory. Government is not obliged to assent to the prisoner's

request to be set at liberty on parole.

Breach of Article 12. Any prisoner of war who is liber-

^*'""'^' ated on parole and recaptured bearing arms against

the Government to whom he had pledged his honor,
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.

Correspon- ARTICLE 13. Individuals who follow an army

'^'^"orters and witliout dircctly belonging to it — such as newspaper

camp- ' correspondents and reporters, sutlers and contractors

followers. — ^^lo fall into the enemy's hands, and whom the

latter see 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

which they were accompanying.

Bureau of Article 14. A Burcau of Information relative

information. ^^ prisoners of war shall be instituted, on the com-
mencement of hostilities, in each of the belligerent
States and, when necessary, in the neutral countries
on whose territory belligerents have been received.
This Bureau is intended to answer all inquiries
about prisoners of w^ar, and shall be furnished, by
the various services concerned, with all the neces-
sary information to enable it to keep an individual
return for each prisoner of war. It shall be kept in-
formed of detainments and changes, as well as of
admissions into hospital, and deaths.

It shall also be the duty of the Bureau of Informa-
tion to I'eceive and collect all objects of personal use,
valuables, letters, etc., found on the battlefields or
left by prisoners who have died in hospital or



LAWS AND CUSTOMS OF WAR U9

ambulance, and to transmit tluMu to those inter- chapter iv
estecl.

Article 15. Relief Societies for prisoners of RiKiitsami
war, which are regularly constituted in accordance J^gjlgj ^'^^j^,
with the law of the country, with the object of serv- tics ami their
ing as an intermediary for charity, shall receive ^^^"'■^'
from the belligerents, for themselves and their duly
accredited agents, every facility, within the bounds
of military requirements and administrative regu-
lations, for the effective accomplishment of their
liumane task. Delegates of these Societies may be
admitted to the places of detention, for the distribu-
tion of relief, as also to the stopping places of re-
patriated prisoners, if furnished with a personal
permit by the military authorities, and on giving
an engagement in writing to comply with all their
regulations for order, and police ordinances.

Article 1G. The Bureau of Information shall Free postage
have the privilege of free postage. Letters, money ^"^^Jjj^p^"^*^,^
orders, and valuables, as well as postal parcels des- for prisoners
fined for the prisoners of war or despatched by them, °^ ^^'''
shall be free from all postal duties, both in the coun-
tries of origin and destination, as well as in those
through which they pass.

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.

Article IT. Officers taken prisoners may receive. Pay of
if necessary, the full pay allowed them in this l>osi-|",^'^g^g^^
tion by their country's regulations, the amount to
be repaid by their Government.

Article IS. Prisoners of war shall enjoy every Religious
latitude in the exercise of their religion, including "*^'^'*"^^'



150 Till': PEACE CONFERENCE AT THE HAGUE



Chapter IV



Wills, death
certificates,
aud burials.



Repatriation.



Suggestions
of M. Roni-
berg-Nisard.



Francis
Lieber's Code
of the laws of
war.



attendance at their own (;liurcli service, provided
only they comply witli the regulations for order and
police ordinances issued by the military authorities.

Article 19. The wills of prisoners of war shall
be received or drawn u[) on the same coiiditions as
for soldiers of the national army.

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

Article 20. After the conclusion of peace, the
repatriation of prisoners of war shall take place as
speedily as possible.

M. Beernaert of Belgium most properly called the
attention of the Committee and of the Conference
to the fact that the humane provisions contained in
Articles XI to XX were first suggested by M. Rom-
berg-Nisard, the Belgian philanthropist, who, after
having been particularly active in relieving the suffer-
ings of prisoners of war during the war of 1870, never
ceased to agitate in favor of more humane treatment
of the sick, w^ounded, and prisoners in wars of the
future. At the Conference of Brussels of 1874, the
Belgian Government, through Baron Lamberinont,
officially proposed the adoption of six iVrticles regard-
ing societies for the relief of prisoners of war, and
all of these suggestions are contained in the Articles
as adopted at the Peace Conference.

The idea of codifying the laws of war in their
entirety originated with the late Francis Lieber,
Professor of Political Science and International Law
at Columbia University, New York. He was also the



LAWS AND CUSTOMS OF WAR 151

author of the code approved by President Lincohi and chapter iv

formulated in 18G3 as General Order No. lUU for the

government of the United States armies in the field

by General Ilalleck. This Order, as was said by M.

de Martens at The Hague, has remained the basis of

all subsequent efforts in the direction of human ization

of war.

Chapter' III. Of the Sick and Wounded

Article 21. The obligations of belligerents with Application
retrard to the sick and wounded are o-overned by the''/ ^iic (ient-va
Geneva Convention or August ZZ, 1854, subject to
any modifications which may be introduced into it.



SECTIOX II. ON HOSTILITIES

Chaj)tcr I. Of Means of injuring the Enemy, Sieges,
and Bomhai'duients

Article 22. The right of 1)elligerents to adopt Limitations.
means of injuring the enemy is not unlimited.

Article 23. Besides the prohibitions provided by special
special Conventions, it is especially prohibited : — prohibitions.

(a) To employ poison or poisoned arms ;

(6) To treacherously kill or wound individuals be-
longing to tlie hostile nation or army ;

(c) To kill or wound an enemy who, having laid
down arms, or having no longer any 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



152 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV Uniform, as well as the distinctive badges of the
Geneva Convention ;

{g) To destroy or seize the enemy's property, un-
less such destruction or seizure be imperatively de-
manded by the necessities of war.

Ruses per- ARTICLE 24. Kuscs of war and the employment of

iiiitted. methods necessary to obtain information about the

enemy and the country are considered allowable.

Prohibition of ARTICLE 25. The attack or bombardment of towns,
mKTefe^uded" villagcs, habitations, or buildings which are not de-
piaces. fended, is prohibited.

The Articles adopted in the Brussels Conference of
1874 contained the provision: "Only fortified places
can be besieged." This provision was stricken out
upon the motion of General Gross von Schwarzhoff
of Germany, for the reason that on the one hand
it was superfluous, and on the other hand it seemed
to leave out all account of temporary fortifications,
which experience has shown to be of great impor-
tance. The German representative instanced the case
of Plevna in the Russo-Turkish War, and soon after
the adjournment of the Conference, his views upon
this subject received very striking confirmation in
the notable defences of Ladysmith, Kimberley, and
Mafeking.

Upon the motion of the same delegate, it was
expressly noted in the report of the Committee that
this article by no means prohibited the destruction
of any buildings, when required by military neces-
sities.



LAW.S AND CUSTOMS OF WAR 153

Article 26. The Commander of an attacking chapter iv^
force, before commencing a bombardment, except in warning of
the case of an assault, should do all he can to warn ^'ombard-
the authorities. "^^" '

Article 27. In sieo-es and bombardments, ain™"''""*^ ^°''

ccrtiiiii

necessary steps should ])e taken to spare as far as edifices and
possible edifices devoted to religion, art, science, i^^''^''^'^-
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 particular and visible signs, of which
the assailants should previously be notified.

Article 28. The pillage of a town or place, even pniage pro-
when taken by assault, is prohibited. hibited.

Chcqjter II. On Spies

Article 29. An individual can only be consid-"^^'Jioisaspy,
ered a spy if, acting clandestinely, or under false
pretences, he obtains, or seems to obtain, infor-
mation in the zone of operations of a belligerent,
with the intention of communicating: it to the hostile
pj^rty.

Thus, soldiers not in disguise who have penetrated ^^'^^^ '^ "^t a
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 civil-
ians, 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 communi-
cation between the various parts of an army or a
territory.



154 THE J'KACI-J CONFEllENCE AT THE HAGUE

Chapter IV Ahticle oO. A s})y taken in tlie act cannot l)e

Rijiht to trial, punished M'itliout previous trial.

No piuiisii- Article 31. A spy, who after rejoining the army

iiient on sub- ^q which he bclono-s is subsequently captured by the
capture. eueuiy, is treated as a pi'isoner of war, and incurs
no responsibility for his previous acts of espionage.

Cliaj)ter III. On Flags of Truce

Definition ARTICLE 32. An individual is considered as bear-

andconmiu- i^n- g, flag of trucc who is autlioi'ized by one of the

nity oi tlags o o _ . r .

of truce. bellisierents to enter into communication with the
other, and who carries a white flag : he has a right
to inviolability, as well as tlie trumpeter, bugler, or
drummer, the flag-bearer, and the interpreter who
may accompany liiin.

No obligation ARTICLE 33. The Chief to whom a flag of truce
to receive it jg ^g^^ jg j^qj- obliged to reccive it under all cir-

under all cir- ~

cumstances. cumstauces. He can take all steps necessary to
prevent the envoy taking advantage of his mission
to obtain information. In case of abuse he has the
right to detain the envoy temporarily.

The Brussels Conference had proposed an express
declaration that a belligerent was permitted to declare
that he would not receive a flag of truce during a
specified time, and adding that the bearers of a flag
of truce who should present themselves after such a
declaration, should lose their right of inviolability.

The Committee, on motion of Count Nigra of Italy,
refused to admit that according to the principles of
International Law a belligerent could ever be per-



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 11 of 39)