Frederick William Holls.

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

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mitted to declare, even for a specified time, that no



j^AWS AND CUSTOMS OF WAR 155

flags of truce would be received. The military dele- chapter iv
elates at the Peace Conference all considered that the
point was sufficiently covered by the provision of
Article 33, to the effect that a commander to whom a
flas; of truce is sent is not obliiijed to receive it imder
all circumstances. Accordingly the proposition of the
Brussels Conference was stricken out.

Article 34. The envoy loses his rights of in- Treachery,
violability if it is proved bej^ond doubt that he has
taken advantage of his privileged position to provoke
or commit an act of treachery.

Chapter IV. On Capitulations

Article 35. Capitulations agreed upon between Military
the Contracting Parties must be in accordance with^^°"°^-
the rules of military honor.

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

Chapter V. On Annistices

Article 36. An armistice suspends military opera- Definition
tions by mutual agreement between the belligerent '*"'^'^"^^^'°^'
parties. If its duration is not fixed, the bellig-
erent parties can resume operations at any time,
provided always the enemy is warned within the
time agreed upon, in accordance Avitli the terms of
the armistice.

Article 37. An armistice may be general or General «r
local. The first suspends all military operations of J'.'''"^' '■^""^'^"
the belligerent States ; the second, only those between
certain fractions of the belligerent armies and in a
fixed radius



15G THE PEACE CONFERENCE AT THE HAGUE



Chapter IV

Notification
necessary.



"What com-

nuiuicatioiis

pyrmissible.



Violation by-
one of the
parties.



By private
individuals.



Artk'Lk 38. An armistice must l)e notified offi-
cial!}", and in good time, to the competent authorities
and the troops. Hostilities are suspended immedi-
ately after the notification, or at a fixed date.

Article 39. It is for the Contracting Parties to
settle, in the terms of the armistice, what com-
munications may be held, on the theatre of war,
with the population and with each other.

Article 40. Any serious violation of the armis-
tice by one of the parties gives the other party the
right to denounce it, and even, in case of urgency, to
recommence hostilities at once.

Article 41. A violation of the terms of the
armistice by private individuals acting on their own
initiative, only confers the right of demanding the
punishment of the offenders, and, if necessary,
indemnity for the losses sustained.



What is
occupied
territory.



Order and
safety.



sectiois" iii. ox military authority over hostile
territory

Article 42. Territory is considered occupied,
when it is actually placed under the authority of the
hostile army. The occupation applies only to the
territory where such authority is established, and in
a position to assert itself.

Article 43. The authority of the legitimate
power having actually passed into the hands of the
occupant, the latter shall take all steps in his power
to re-establish and insure, as far as possible, public
order and safety, while respecting, unless absolutely
prevented, tlie laws in force in the country.



LAWS AND CUS7'0}fS OF WAR 157

Article 44. Any compulsion of the population chapter iv
of occupied territory to take part in military opera- xo conscrip-
tions against its own country is prohibited. *'^"-

Article 45. Any pressure on the population of no oath of
occupied territory to take an oath of allegiance to'^ egiance.
the hostile Power is prohibited.

Article 46. Family honor and rights, individual individual
lives and private property, as well as religious con vic-[.2p^^^g^
tions and liberty, must be respected. Private property
cannot be confiscated.

Article 47. Pillage is absolutely prohibited. hibited.^^*''

Article 48. If, in the territory occupied, the Taxation,
occupant collects the taxes, dues, and tolls imposed
for the benefit of the State, he shall do it, as far
as possible, in accordance with the rules in exist-
ence, and the assessment in force, and will in conse-
quence be bound to defray the expenses of the
administration of the occupied territory on the same
scale as that by which the legitimate Government
was bound.

Article 49. If, besides the taxes mentioned in contributions.
the preceding Article, the occupant levies other
money taxes in the occupied territory, this can only
be for military necessities or the administration of
such territory.

Article 50. No general penalty, pecuniary or no general
otherwise, can be inflicted on the iiopulation on P^'l'^l^J ^"'"

« , p . , . . , , r 1 • 1 • individual

account oi the acts ot individuals, tor which it can- acts,
not be regarded as collectively responsible.

Article 51. No tax shall be collected except collection of
under a written order and on the responsibility of a^^^^^'
Commander-in-Chief. This collection shall only take



158 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV placG, as far as possible, in accordance with the rules
in existence and the assessment of taxes in force.
For every payment a receipt shall be given to the
taxpayer.

Requisitions. ARTICLE 52. Neither requisitions in kind, nor
services can be demanded from communes or inhab-
itants, except for the necessities of the army of oc-
cupation. They must be in proportion to the
resources of the country, and of such a nature as not
to involve the population in the obligation of taking
part in military operations against their country.

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

The contributions in kind shall, as far as possible,
be paid for in ready money, if not, their receipt shall
be acknowledg;ed.

Taking of ARTICLE 53. An army of occupation can only

take possession of the cash, funds, and property
liable to requisition belonging strictly to the State,
depots of arms, means of transport, stores, and sup-
plies, and, generally, all movable property of the
State which may be used for military operations.

Railway plant, telegraphs, telephones, steamers,
and other ships, apart from cases governed by mari-
time law, as well as depots of arms and, generally,
all kinds of war material, even though belonging to
Companies or to private persons, are likewise mate-
rial which may serve for military operations, but
they must be restored at the conclusion of peace, and
indemnities paid for them.

Landing con-
nections of M. de Bille of Denmark proposed to add to the

cables. second paragraph of this Article a provision protect-



LAWS AND CUSTOMS OF WAR 159

ing the landing connections of .submarine cables chapter iv
within the maritime territorial limits of the respec-
tive States. The Government of Denmark had made
a similar proposition in the Conference of Brussels of
1874. The Danish delegate declared that he would
have preferred to extend the protection of this Article
to all submarine cables in their full extent, Ijut for
practical reasons he confined his proposition upon
this occasion to the protection of the landing connec-
tions within the limit of one league from the shore,
hoping that the immense importance of the subject
of protecting all submarine cables would cause it
to be referred to a future conference. Lord Paunce-
fote, on behalf of Great Britain, declared that his
Government could not consider this subject as falling
properly within the jurisdiction of a Committee hav-
ing charge of the rules of war on land ; and the
Danish delegate, under these circumstances, with-
drew his proposition.

Article 54. The plant of railways coming from Railway
neutral States, whether the property of those States, plants.
or of Companies, or of private persons, shall be sent
back to them as soon as possible.

Article 55. The occupying State shall only be Trusteeship
reo:arded as administrator and usufructuarv of the C! "/'^"^^^"'^

'^, ^. I ., ^. P y . state.

public buildnigs, real property, forests, and agricul-
tural works belonging to the hostile State, and situ-
ated in the occupied country. It must protect the
capital of these properties, and administer it accord-
ing to the rules of trusteeship.



1(50 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV AiiTiCLE 50. Tlio pr(iperty of tlie municipalities,

No damage that of I'digioiis, cliaritablc, and educational institu-
permitted to tions, and tliose of arts and science, even when State
property. property, shall be treated as private property.

AH seizure, destruction, or intentional damage done
to such institutions, to historical monuments, works of
art or science, is prohibited, and should be made the
subject of civil and criminal proceedings.



Duty of
neutrals as to
belligereut
troops.



Their deten-
tion.



SECTION IV. ON THE DETENTION OF BELLIGERENTS AND
THE CARE OF THE WOUNDED, IN NEUTRAL COUNTRIES

Article 57. A neutral State which receives in
its territory troops belonging to the belligerent armies
shall detain them, if possible, at some distance from
the theatre of war.

It can keep them in camps, and even confine them
in fortresses or localities assigned for this purpose.
It shall decide whether officers may be left at liberty,
on giving their parole that they will not leave the
neutral territory without authorization.

Article 58. Failing a special Convention, the
neutral State shall supply the detained with food,
clothing, and relief required by humanity. At the
conclusion of peace, the expenses caused by the de-
tention shall 1)6 repaid.

Passage of ARTICLE 59. A ucutral State may authorize the

si^klf nl'T^'i. Passage, through its territory, of wounded or sick
Its through belonging to the belligerent armies, on condition
that the trains bringing them shall carry neither
combatants nor war material. In such a case, the
neutral State is bound to adopt such measures of
safety and control as may be necessary for the
purpose.



Supplies.



neutral
territory.



LAWS AND CUSTOMS OF WAR 161

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



Article GO. The Geneva Convention applies to Application of
sick and wounded detained in neutral territory.



Geneva Con-
vention.



Upon the general value of the two treaties set forth The value of
in this chapter, the judgment of two of the most emi-
nent international lawyers of the Conference, may be
quoted.

Professor Zorn ^ declares the treaty on the exten- Professor
sion of the Geneva rules to naval warfare to be " a opi'^nion.
work which can and will receive the grateful appro-
bation of all civilized States," and he considers the
treaty on the laws of war to deserve equal commen-
dation. '' This work alone," he continues, " would
suffice to give the lie to the ignorant and frivolous
critics who endeavor to characterize the labors of The
Hague with the words ' threshing out Russian straw.' "

Professor de Martens of Russia, in an article in the Professor de
North Aiiierican Revieic, for November, 1899, says : — optniom

" The treaty on the laws and customs of war will
certainly be as notable as the treaty on arbitration.
By reason of this treaty the peaceful and unarmed
inhabitants of the territory of belligerents will have

^ Deutsche Rundschau, January, 1900, p. 136.

M



ir,2 THE PEACE CONFERENCE AT THE HAGUE

Chapter IV the right to demand that tlieir lives, their rehgious

Professor de convictioiis, aiid their private property shall be re-
Martens' ,^. , . . p . ,
opinion. spected. i hrougli it prisoners or war will be treated,

not as enemies, but as disarmed and honorable adver-
saries, worthy of respect. Throngh it social institu-
tions, beneficiary establishments, religious, scientific,
and otherwise, which find themselves on disputed
territory, shall have the right to demand and to
exact of the enemy respect for the inviolability of
their property and their interests.

" Finally, the Red Cross treaty for times of naval
warfare, signed by the Conference at The Hague,
is the happy solution of the question which the
Powers of Europe have been studying for thirty
years. Since 18G8 the 'Additional Articles' to the
Treaty of Geneva have existed, whereby the benefi-
cent influence of the treaty of Geneva on wounded
and sick soldiers was also extended to sea combats.
For thirty-one years diplomatic negotiations have
been carried on on this question ; all the Red Cross
conferences wdiich have taken place in the last
twenty years have proclaimed the necessity of rec-
ognizing the Red Cross treaty for the sick and
wounded in naval warfare. But nothing; effectual
was accomplished np to the Conference at The
Hague. It was this Conference that caused the
final adoption by (twenty-six) Powers of the prin-
ciple whereby the wounded in times of naval war-
fare shall have the same right to have their person,
their life, their health, and their property respected
as the wounded in case of warfare on land."



LAWS AND CUSTOMS OF WAR 163

Although of secondary importance when compared Chapter iv
to the chief work of the Conference, it is certainly
a mistake for so-called ''friends of Peace" to dis-
parage the value and significance of these treaties. Their value
The humanizing of war, while not as inspiring an cance should
object as the peaceful adjustment of international ""^i,^,',^^""''^'''
differences, is a step in the same direction ; for it
tends, on a comparatively small scale, but still most
effectively, to alleviate suffering and to save human
lives. The argument that war should be made as FiUiaoious
terrible as possible, in order to prevent it, logically Jega^ding
leads to savagery, no quarter, and the raising of the ^^'^•
black flag. It is cpiite as illogical as the exploded
theory of criminal law, according to which severity
of punishment, torture, and corruption of blood were
regarded as ordinary deterrent agencies, with the
result of a frightful increase of the most heinous
crimes, since the punishment for them was hardly
more severe than for minor offences. The Con-
ference has kept as closely as possible to the
golden mean between the sentimentality which
would impair the efficiency of National Power at
a supreme crisis, and the demands of unbridled
military license. Its work in this direction may
confidently await the verdict of history.



CHAPTER V



Diplomatic
character of
the Avork of
the Third
Committee.



Analogy with
Constitutional
Conventions.



The President
and honorary
Presidents.



THE WORK OF THE THIRD COMMITTEE: GOOD OF-
FICES, MEDIATION, INTERNATIONAL COMMISSIONS
OF INQUIRY AND ARBITRATION

The deliberations of the First and Second Com-
mittees were largely, if not wholly, of a technical,
military, or naval character, and the results obtained
could, perhaps, have been accomplished by a meeting
of experts, corresponding to the famous assemblies
of Geneva and Brussels or to the Postal and Marine
Conferences of a later date. The task allotted to
the Third Committee, on the other hand, w^as essen-
tially diplomatic in its nature, touching the sov-
ereignty of States most directly, and comprising
possibilities of great and serious danger. The anal-
ogy between this endeavor and the work of Ameri-
can Constitutional Conventions — notably the great
Convention of 1787 — is not as remote as it may
perhaps appear at first sight. A general code or
Magna Charta, guaranteeing rights and imposing
duties, even in the most indefinite manner, after
all resembles a constitution rather than a treaty,
and constructiveness is quite as essential to its prep-
aration as the spirit of compromise.

The presidency of this Committee was conferred
upon M. Leon Bourgeois, the former French Prime

164



THE WORK OF THE rillRD COMMITTEE 105

Minister and Minister of Public Education, eminent Chapter v
both as an orator and as a statesman of practical
judgment, — in other words, a haj)py combination
of idealist and opportunist. The honorary Presi-
dents, Count Nigra and Lord Pauncefote, were both
renowned in diplomacy. Count Nigra had an unpar-
alleled experience at Paris, London, and Vienna.
Lord Pauncefote had won high distinction by his
brilliant service in Washington during a particularly
critical time, and especially by the Pauncefote-Olney
Treaty of Arbitration, between the United States
and Great Britain, which failed of ratification by
the United States Senate.

The Vice-Presidents were M. de Bille of Denmark, The vice-
Baron d'Estournelles de Constant of France, Count
Macedo of Portugal, M. Merey de Kapos-Mere of
Austria-Hungary, M. Pompilj of Italy, and Professor
Zorn of Germany.

The other members of the committee were either
diplomatists or lawyers, Germany alone having added
General von Schwarzhoff and Captain Siegel, — mili-
tary and naval experts, whereas Prince Miinster was
the only chief delegate from any country who was
not a member, it being understood that the reason
was his advanced age.

The complete list of members was as follows : — Members.

Germany : Dr. Zorn, General Gross von Schwarz-
hoff, Captain Siegel.

United States of America: Mr. White, Mr. Low,
and Mr. Holls.



16G THE PEACE CONFERENCE AT THE HAGUE

Chapter V Aiistria-IIuDgarj : Count Welsersheimb, M. Okoli-

Members. scaiiyi voii OkoUsciia, M. (le Merey de Kapos-Mere.

Belgium : Count de Grelle Rogier, Chevalier Des-
camps.

China : Yang Yu, Hoo-Wei-Teh, Lou-Tseng-Tsiang.

Denmark: M. de Bille.

Spain : The Duke of Tetuan, M. de Villa Urrutia.

France : M. Bourgeois, Baron d'Estournelles de
Constant, M. Renault.

Great Britain : Lord Pauncefote, Sir Henry How-
ard.

Greece : M. Delyannis.

Italy : Count Nigra, Count Zannini, M. Pompilj.

Japan : Baron Hayashi, M. Moton, M. Arriga.

Luxemburg : M. Eyschen, Count de Villers.

Mexico : M. de Mier, M. Zenil.

Netherlands : Jonkheer van Karnebeek, M. Asser,
M. Rahusen.

Persia : General Mirza Riza Khan, Arfa-ud-Dovleh.

Portug;al : M. d'Ornellas Vasconcellos.

Roumania : M. Beldiman, M. Papiniu.

Russia : M. Staal, M. de Martens, M. de Easily,
M. Raffalovich.

Servia: M. Mijatovitch, Dr, Veljkovitch.

Siam : M. Pliya Suriya, M. Corragioni d'Orelli,
M. Rolin.

Sweden and Norway : Baron Bildt, M. Konow.

Switzerland : Dr. Roth, Colonel Kuenzli, M.
Odier.

Turkey : Turkhan Pacha, Noury Bey.

Bulgaria : Dr. Standoff.



rilE WORK OF TIIIC TlIUll) COMMrJ'Ti:/-: 1G7

The full Committee held nine meetings, on May 23 Chapter v
and 2G, Jmie 5, and July 7, 17, 11), 2(J, 22, and 25.

At the first meeting on May 23, Baron de Bildtcniimiuiiica-
of Sweden and Norway expressed the hope that the press,
communications to be made to the press, on the sub-
ject of the work of the Committee, should be as full
as possible.

The eminent Scandinavian di})lomatist and scholar
gave expression to a wish which was shared by many
of his colleagues, but which, as it soon became evident,
was utterly incapable of realization. In some respects
this was most regrettable. No important undertak-
ing, it may safely be said, has suffered more from
misunderstanding and hostile or unjust criticism, than
the Peace Conference, and this was largely, if not
wholly, due to the attitude of the daily press during The attitude
the continuance of the sessions. Prominent journal- *^^' ^^^^'^*'®^'
ists from both hemispheres were present in great
number on the day of the opening. Many of them
apparently expected dramatic or even sensational de-
velopments, exuberant oratory, or perhaps interesting
diplomatic combinations and intrigues. The spectacle
of a hundred representative men, avoiding all ostenta-
tion or display, quietly and seriously proceeding to
consider practical questions in a practical manner,
seemed an anticlimax, and the " failure " of the Con-
ference to " decree disarmament " was eaoerlv seized
as a welcome pretext for a dismissal of the subject
of the Conference with a contemptuous smile or a
shrug of the shoulders. Most of the journalists left
The Hague before the end of May.



108 THE PEACE CONFERENCE AT TJJJC IIACUE

Chapter V Possibly fuller reports of the discussions, even in

the Committees, would have sufficed to change the
attitude of the press, — but it may well be doubted.
On the other hand, there can be no question that but

Necessity of for the SGcrecj surrounding the deliberations, espe-
cially of the Cornite cVExamen, it would have been
impossible to remove some of the more serious diffi-
culties, and the Conference would have broken up
without, perhaps, accomplishing anything, and hav-
ing by its very failure done immense and irreparable
damage to every peaceful, progressive, and civilizing
interest in the world.

As it was, votes of no significance whatever, on
purely routine questions, which leaked out, were
magnified into alliances, and various myths about
the attempts of this or that Power to " sow discord "
or to " thwart the objects of the Conference " obtained
currency and belief, which lingered after the adjourn-
ment of the Conference.

A departure for any reason from the safe rule of
privacy during the continuance of the work would
have done irreparable damage at The Hague, and the
same is likely to remain true in future Conferences.
That this need not imply the slightest neglect of
the tremendous power of the press is shown by the
fact that a thoughtful and thoroughly competent
journalist, such as the correspondent of the London
Times, found no difficulty in furnishing reports which,
while violating no confidence, still kept his constitu-
ency fully and accurately informed of the general
progress of the work of the Conference.



THE WORK OF THE THIRD COMMITTEE 109

As in the case of the discussion of the work of the chapter v
First and Second Committees, repetition lias been
avoided by describing the action both of the various
Committees and of the Conference under the; head of
the appropriate articles of the proposed treaties. A
separate account of the consecutive meetings of the
Third Committee is thereby rendered unnecessary.

The Comite d'Examen

At the session of the Third Committee on May
26, the Chairman, M. Bourgeois, suggested that all
propositions on the subject of Good Offices, Media-
tion, and Arbitration should be first referred to a
Special Committee of Examination [Comite cV Examen)
which should be directed to report the text of a pro-
posed treaty to the full Committee. Count Nigra
of Italy made a formal motion to this effect, which
was unanimously adopted.

On motion of Chevalier Descamps of Belgium the Mode of
appointment of this Special Committee was left to
the '^ Bureau " of the Committee : viz., the Honorary
Presidents, President, and Vice-Presidents, subject to
the ratification of the full Committee. A recess
was taken for the purpose of giving these officers
an opportunity to confer.

Upon the reassembling of the Committee, the Member.shii).
following members were appointed on the Comite
cCExmnen : Messrs. Asser of Holland, Descamps of
Belgium, Baron d'Estournelles de Constant of France,
Holls of the United States of America, Lammasch of
Austria-Hungary, De Martens of Russia, Odier of



170 77/a; pi: ace coxficiience at the iiacue

I'hnpter V Switzerland, tiiid Zorn of Gorinany. The Chairman
Membership, of the Third Committee, M. Bourgeois, usually pre-
sided at tlie meetings of the Coiulte d" Examen, and
the Honorary Presidents, Count Nigra and Lord
Pauncefote, were regular and active attendants.
The President of the Conference, M. de Staal, M.
Easily of Russia, and Jonklieer van Karnebeek of
Holland, also attended with more or less regularity.
Chevalier Descamps was chosen reporter of the Com-
mittee, and Baron d'Estournelles, secretary. The
latter was ably assisted by M. Jarousse de Sillac,
one of the secretaries of the Conference. Besides
the members, various delegates attended particular
meetings by invitation, notably Baron de Bildt of
Sweden, Count Macedo of Portugal, Messrs. Beldi-
man and Papiniu of Roumania, Delyannis of Greece,
Professor Renault of France, M. Rolin of Siam, and
Messrs. Mijatovich and Veljkovicli of Servia.
Importance The Comite cV Exmiien rapidly and quite unexpect-
of the com- g^j^jy bccame the centre of interest in the entire Con-



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