Frederick William Holls.

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

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submitted.

The action of the Committee having left in an unsatis-
factory state the record, which thus stated that the United
States had pronounced against a proposition of humani-
tarian intent, without indicating that our Government



GENERAL REPORT OF THE COMMISSION 513

not only stood read}^ to support but also proposed by its
representative a formida which was believed to meet the
requirements of humanity much better tlian tlie one
adopted by the Committee, the United States delegate,
with the approval of the Commission and in its name,
proposed to the Conference at its next full session the
above-mentioned formula as an amendment to the one
submitted to the Conference by the First Committee.
In presenting the amendment he stated the objections to
the Committee's proposition to be the following : First,
that it forbade the use of expanding bullets, notwith-
standing the possibility that they might be made to
expand in such regular manner as to assume simply the
form of a larger calibre, which property it might be neces-
sary to take advantage of, if it should in the future be
found desirable to adopt a musket of very much smaller
calibre than any now actually in use. Second, that by
thus prohibiting what might be the most humane method
of increasing the shocking power of a bullet and limiting
the prohibition to expanding and flattening bullets, it
might leitd to the adoption of one of much more cruel
character than that prohibited. Third, that it con-
demned b)^ designed implication, without even the intro-
duction of any evidence against it, the use of a bullet
actually employed by the army of a civilized nation.

I was careful not to defend this bullet, of which I
stated that I had no knowledge other than that derived
from the representations of the delegate of the Power
using it, and also to state that the United States had no
intention of using any bullet of the prohibited class, being
entirely satisfied with the one now employed, which is of
the same class as are those in common use.

The original proposition was, however, maintained by
the Conference, — the only negative votes being those of
Great I>ritian and the United States. It may be stated
2l



514 GENERAL REPORT OF THE COMMISSION

tliiit in taking tlie vote it was decided to vote first upon
the proposition as it came from the Committee, instead of
upon tlie amendment, notwithstanding the strong opposi-
tion of the United States and other Powers totliis method
of procedure as being contrary to ordinary parliamentary
usage and preventing an expression of opinion upon the
amendment submitted in the name of the United States
Commission.

From this rej:)ort results the advice that, of the two
declarations of the Conference originating in the First
Sub-Committee of the First Committee, viz. : that con-
cerning the use of balloons and that concerning the use
of expanding or flattening bullets, the first only be signed
by the United States Commission.

The reports of General den Beer Portugael of the work
of the Sub-Committee, and of M. de Karnebeek of that of
the full First Committee, are hereto annexed and marked
respectively "-A" and " J5."

I am, gentlemen,

Very respectfully, your obedient servant,

William Crozier,

Captain of Ordnance^ U. S. A.

Commissioner.



GENERAL REPORT OF THE COMMISSION 515

E. REPORT OF CAPTAm CROZIER TO THE COM-
MISSION OF THE UNITED STATES OF AMERICA
TO THE INTERNATIONAL CONFERENCE AT THE
HAGUE, REGARDING THE AVORK OF THE SEC-
OND SUB-COMMITTEE OF THE SECOND COMMIT-
TEE OF THE CONFERENCE

The IIaguk, July 31, 1899.
COMMISSIOX OF THE UNITED STATES OF AMERICA TO
THE IXTERNATIOXAL CONFERENCE AT ThE HaGUE

Cientlemen : — I have the honor to submit a summary of
the work appertaining in the first instance to the Second
Sub-Connnittee of the Second Committee of the Confer-
ence. This Sub-Committee was charged with the revision
of the dechiration concerning the hxAvs and customs of war,
prepared in 1874 by the t'Onference of Brussels but never
ratified. It is the subject indicated by article number
scA^en of the circular of Count Mouravieff of December
30, 1808. Although the work of the Conference of
Brussels was mentioned in this circular, previous publica-
tion of a code of what might be called the laws and cus-
toms of war had been made in General Order No. 100,
issued from the Adjutant-General's Office of the United
States Army in 1863, having been prepared by Dr. Francis
Lieber of Columbia University. A graceful allusion to
this publication and acknowledgment of its value was
made by the chairman of the Sub-Committee, JM. de
]\Iartens of Russia, at one of its sessions.

A code of the " Laws and Customs of AVar on Land,"
comprising sixty articles, was elaborated by tlio Sub-
Committee and ])y the Conference. 'J'liis code, if accepted
by the Linited States, woidd take the place of those por-
tions of the present instructions for the Government of its
armies in the field which are covered by its sixty articles.



516 GENERAL REPORT OF 771 E COM MESS I ON

It would not completely take tlic ])lacc of tliese instruc-
tions for the reasons that certain subjects relating to
hostilities are omitted tlierefrom, some because of their
delicacy, such as retaliation, and reprisals, etc., others be-
cause they relate to tlie internal administration of an army
and to the methods to be used to enforce observation of
the code, as by penalties for violations. An important
example of this class of omissions is found in Article 46
of the United States instructions (General Order 100)
which forbids, under severe penalties, officers or soldiers
from making use of their position or power in a hostile
country for private commercial transactions, even of such
nature as would otherwise be legitimate. In regard to
the omitted subjects the declaration is made that while
awaiting the establishment of a more complete code of the
laws of war, populations and combatants remain under the
protection and exactions of the principles of the law of
nations as it results from established usage, from the rules
of humanity, and from the requirements of the public
conscience.

The code in general presents that advance from the
rules of General Order No. 100, in the direction of effort
to spare the sufferings of the populations of invaded and
occupied countries, to limit the acts of invaders to those
required by military necessities, and to diminish what are
ordinarily known as the evils of war, which might be
expected from the progress of nearly forty years' thought
upon the subject. It is divided into four sections and
each of them into several chapters.

Section I, of three chapters, treats of the personnel of
the belligerents.

Chapter I, Articles 1 to 30, prescribes what persons
are legitimate combatants and has particular reference to
levee en masse.

Article 2 rejjresents the extreme concession to unorgan-



GENERAL REPORT OF THE COMMISSION 517

ized resistance in prescribing as the sole condition of treat-
ment as legitimate combatants of populations of an
unoccupied country suddenly invaded, without time for
organization, and taking up arms in its defence, to be that
they shall observe the laws and customs of war. During
the discussion of this chapter an additional article was
proposed for adoption by the representative of Great Brit-
ain, to the effect that nothing in it should be understood
as tending to diminish or suppress the right of the popula-
tion of an invaded country to fulfil its patriotic duty of
offering to the invaders by all legitimate means the most
strenuous resistance. The article was warmly supported
by the representative of Switzerland, but was just as de-
cidedly opposed by the representative of Germany. The
proposed article was withdrawn by its author, under
appeals from delegates favoring its spirit l)ut deeming it
superfluous and calculated to endanger the adoption of
the portion of the code under consideration. It is the
opinion of the United States representative that the with-
drawal was wise, in view of the concession in Article 2 of
all that is covered by the one proposed.

Chapter II, Article 4 to 20, treats of prisoners of war.
Article 4 stipulates that their personal property, with
the exception of arms, horses, and military papers, shall
remain in their possession. The case is not specially
covered of large sums of money which may be found on
the persons of prisoners or in their private luggage, and
referred to in Article 72 of General Order No. 100 in
such way as to throw doubt upon the strictly private
character of such funds.

Article provides, as does Article 76 of General Order
100, that prisoners of war may be required to perform
work, but it goes further, in that it covers the fact and the
determination of the rate of payment for such work and
the disposition to be made of such ])ay.



518 GENERAL REPORT OF THE COMMISSION

Article 77 of Geiierul Order No. 100, wlii(!h pi-ovides
for severe penalt}% even for death, for conspiracy among
prisoners of war to effect a united or general escape or to
revolt against the authority of the captors, has no counter-
part in the new code. Article 12 of the new code pro-
vides that in case of breach of parole the offender shall be
brought to trial, but it does not prescribe the death pen-
alty as does Article 124 of General Order No. 100.

Articles 14, 15, 16, and 17 are quite new in their scope.
They provide for the establishment of a bureau of infor-
mation in regard to prisoners of war and prescribe its
duties ; also for the extension, under necessary guarantees,
of all proper facilities to members of duly organized pris-
oners' aid societies ; for franking privileges for tlie bureau
of information ; for exemption from postal and customs
charges of letters, orders, money, and packages of or for
prisoners of war, and of the possible advance to officers of
the pay allowed by their Government in such situation, to
be afterward repaid by the latter. It will be observed
that in case of adoption of the code by the United States,
enabling legislation by Congress will be required for the
operation of these four articles.

Chapter III, Article 21, treats of the sick and wounded,
and it contains only a reference to the Geneva Convention.

Section II, of five chapters, treats of acts of war.
Chapter I, Articles 22 and 23, refers to legitimate means
of injuring the enemy, to sieges and to bom])ardments.

Article 23 prohibits the issue of the declaration that
no quarter will be given, not making allowance for the
special case contemplated in Article 60 of General Order
No. 100, of a commander in great straits, such that his
own salvation makes it impossible for him to encumber
himself with prisoners, nor for the retaliatory measures
contemplated by Articles 61, 62, 63, and 66 of General
Order No. 100. The death penalty prescribed by Article



GENERAL REPORT OF THE COMMISSION 519

71 of the Order, for killing or wounding a disubled enemy,
is not found among the provisions of the code.

Article 23 also forbids the destruction or seizure of
private property except when imperiously required by the
necessities of war. During the discussion of this prohibi-
tion the United States representative stated the desire of
his Government that it should extend to private property
both upon land and sea, and that the revision of the dec-
laration of the Conference of Brussels which the Powers
had been invited to make, had been understood to properly
include this extension, that he could not accept the de-
cision of the chairman that the Sub-Committee was not
competent to consider it, l)ecause of the limitation of the
revision strictly to the subject of land warfare, although
he would not insist upon an immediate decision as to such
competence, asking simply that the subject be left open
for further treatment by the full Committee and by the
Conference. The method of after-treatment, by which
the subject was relegated to the consideration of a future
Conference, is familiar to the Commission.

Article 25 forbids the bombardment of unprotected
cities. It was proposed by the Italian representative that
the interdiction should extend to bombardment from the
sea as well as from the land, but upon the manifestation
of opposition to this extension action was limited to the
expression of a hope that the subject would be considered
by a future conference ; the representative of Great
Britain abstaining from this expression because of lack of
instruction upon the subject.

Chapter II, Articles 29 to 31, treats of spies. It does
not prescribe the punishment to be inflicted in case of
capture.

Chapter III, Articles 32 to 34, refers to flags of truce.

Chapter IV, Article 35, to capitulations.

Chapter V, Articles 36 to 41, to armistices.



520 GENERAL REPORT OF THE COMMISSION

Section III, of a single chapter, Articles 43 to 46, treats
of the delicate subject of military authority upon hostile
territory. The omission of some of its provisions was
urged by the representatives of IJelgium, upon the ground
that they had the character of sanctioning in advance
rights of an invader upon the soil and of thus organizing
the regime of defeat ; that rather than to do this it would
be better for the population of such territory to rest under
the general principle of the law of nations. The pro-
visions were retained upon the theory that, while not ac-
knowledging the right, tlie possible fact liad to be admitted
and that wise provision required that proper measures
of protection for the population and of restrictions upon
the occupying force should be taken in advance.

Article 43 is stronger in its terms than Article 3 of
General Order No. 100, in requiring respect by the
occupying force, unless absolutely prevented, of the laws
in force in the occupied territory.

Article 26 of General Order No. 100, in regard to an
oath of allegiance and fidelity on the part of magistrates
and other civil officers, may require modification in view
of Article 45 of the new code, although this may possibly
not be necessary as the latter article mentions only popu-
lations.

Articles 48 to 54 refer to contributions and requisitions
in money and kind ; they are more detailed in their pro-
visions than the articles of General Order No. 100 refer-
ring to the same subject, but they do not differ therefrom
in spirit and general purport. They express the idea that
such contributions are not to be made for the purpose of
increasing the wealth of the invader. The provision that
the shore-ends of submarine cables might be treated in
accordance with the necessities of the occupying force and
that restitution should be made and damagfes recjulated at
the conclusion of peace, after having at first found entry



GENERAL REPORT OF THE COMMISSION 521

into tlie code, was afterward stricken out at the instance
of the British representative.

Article 46 forbids the seizure or destruction of works
of art or siniihir objects, and is in this res})ect more re-
strictive than Article 36 of General Order No. 100, which
permits the removal of such articles for the benefit of
the Government of the occupying army and relegates the
ultimate settlement of their ownership to the treaty of
peace.

Section IV, of a single chapter. Articles 57 to 60, treats
of belligerents confined, and of sick and wounded cared
for, upon neutral territory, a subject not referred to in
General Order No. 100. It provides generally that obli-
gation is imposed upon the neutral to see that such per-
sons shall not take further part in the war, but attention
was invited by the United States representative to the
fact that for sick and wounded simply passing through
neutral territory on their way to their own country, no
such provision is made. Because of anticipated difficulty
in securing harmony or for other reasons the Committee
did not decide the question, and a decision was not de-
manded by the United States representative, who could
see no direct interest of the United States in question,
which he had raised only in the interest of good work.
During the progress of the work of the; Sub-Committee
expression was made, upon the initiative of the repre-
sentative of Luxemburg, of the hope that the question
of the regulation of the rights and duties of neutrals
would form part of the programme of an early confer-
ence.

Foreign ambassadors, ministers, other diplomatic agents
and consuls, whose treatment is regulated by Articles
8, 9, and 87 of General Order No. 100, are not mentioned
in the new code. It is also silent upon the subject of
guerillas, armed prowlers, war rebels, treachery, war



522 GENERAL REPORT OF THE COMMISSION

traitors and guides, treated in Sections 4 and 5 of General
Order No. 100.

It is not attempted to make this report a full digest
of the proposed code or a complete exposition of its rela-
tions with the existing instructions for the government of
the armies of the United States in the field, — the object
is to present such general summary as may indicate that
the Convention containing the code is a proper one for
the Commission to recommend the acceptance of by the
Government of the United States, and also that because of
the extent and importance of the subject such acceptance
should be preceded by a careful examination of the code
by the department of Military Law. Tlie agreement in
the Convention to issue to the armies of the Signatory
Powers instructions in conformity with the code, is not
understood to mean that such instructions shall contain
nothing more than is found in the code itself, but that all
the provisions of the code shall be met and none of them
violated in such instructions. A very complete discussion
of the articles of the code is contained in the report of
Mr. Rolin, the official reporter of the sub-committee, which
is hereto annexed and marked C.

William Crozier,
Captain of Ordnance, U. S. A.
Cominissioner .



GENERAL REPORT OF THE COMMISSION 523

F. REPORT OF MR. WHITE, MR. LOW, AND MR.
HOLLS, TO THE AMERICAN COMMISSION TO
THE INTERNATIONAL CONFERENCE AT THE
HAGUE, REGARDING THE WORK OF THE
THIRD COMMITTEE OF THE CONFERENCE

The IIaguk, July ol, 1899.

Commission of the United States of America
TO THE International Conference at The
Hague

Grentlemen : — - The undersigned members of the Third
Commission of the Conference, to which was referred the
matter of Arbitration and INIediation, have the honor of
submitting the following report regarding the work of
that Committee : —

The Committee on Arbitration was apj^ointed at the
second session of the Conference, held May 20, 1899 ;
and on Tuesday, May 23, the Committee met for the
first time under the chairmanship of M. Leon Bourgeois
of France. It then discussed merely routine business and
adjourned until Friday, May 25. At this meeting it
was decided to appoint a sub-committee called the Comite
tVExamen, to consist of eight members, for the purpose
of drafting a plan for International Arbitration and
Mediation. The membership of the Comite (TExamen
was proposed by the so-called Bureau of the Full Com-
mittee, consisting of the President, Honorary Presi-
dents, and the Vice-President, as follows : j\L Chevalier
Descamps of Belgium, M. Asser of the Netherlands, M.
de Martens of Russia, Professor Zorn of Germany, Pro-
fessor Lammasch of Austria, M. Odier of Switzerland,
Baron d'Estournelles de Constant of France, and Mr.
Holls of the United States of Americao The Honorar}^
Presidents of the Committee, Sir Julian Pauncefote of



.524 GENERAL UEPORT OF THE COMMISSION

England, Count Nigra of Italy, also took part in the
work of the Comite cV Examen, as well as the President
of the Conference, lUiron de Staal of Ivussia. The
Comite d'Examcn held eighteen working sessions, all of
its members being present at every session, with two
exceptions caused by tlie absence of M. de Martens at
the Venezuelan Arbitration in Paris.

On July 7, 1899, the Comite (T Era men presented to
the full Committee the project for the peaceable settle-
ment of international disputes, which, after discussion in
the full Committee and in the Conference, was, on the
25th of Jvdy, luianimously adopted. A copy of this con-
vention is annexed to this report. It consists of sixty-
one articles, of which the first contains a general declaration
regarding the maintenance of peace. Articles 2 to 8
inclusive relate to good olfices and mediation ; Articles 9
to 14, to international commissions of inquiry ; Articles
15 to 20, to arbitral justice in general; Articles 30 to 57,
to the procedure 'before the said court ; and Articles 58
to 61, to the ratification of tlie convention and the like.
All of these articles and the considerations which led to
their adoption have been carefully discussed, on behalf of
the Committee, by its reporter, M. Descamps, whose
report is annexed hereto.

At the opening of the first meeting of the Third Com-
mittee of the Conference the Pussians proposed a carefully-
worked-out scheme : —

1. For Good Offices and Mediation.

2. For Arbitrations ad lioc, to which was annexed a
code for arbitral procedure.

3. For International Inquiries.

Sir Julian Pauncefote having been given the floor as
one of the Vice-Presidents of the Conference, at once sug-
gested a vote upon the principle of a Permanent Tribunal
for International Arbitrations.



GENERAL REPORT OF THE COMMISSION 525

The Russians, thereupon, instantly gave notice that
they also had a plan for a permanent Court which would
be submitted in due course. It was thought best to dis-
cuss the principle of a permanent court only in connection
with a careful discussion of definite plans, and it was there-
fore then resolved to send all plans bearing on tliis sub-
ject to the Comite d'Examen, together with the Russian
proposals for (lood Offices and Mediation.

At the meeting of the Committee, held Wednesday,
May 31, the American project for an international tril)U-
nal of arbitration was presented, through the President of
the Conference, M. de Staal. At about the same time, or
just before, the English and the Russian plans for a per-
manent tribunal were also submitted. In the Comite
d'Examen tlie plan proposed by Sir Jvdian Pauncefote
was taken, by the consent of the Russians and Ameri-
cans, as the basis of the Committee's work. This plan,
however, has been greatly modified and enlarged, by pro-
visions from both the American and the Russian plans,
and also by suggestions made in Committee. The plan
adopted by the Conference, therefore, while founded on
the British proposals so far as the form of the Permanent
Court is concerned, is really the work of the Comite
d' Exa7nen.

Compared with the original American project, it differs
from it essentially in the following particulars. The fun-
damental idea of the American plan was a court which
should not only be permanent but continuous in its func-
tions, consisting of not less than nine judges, from whose
number special benches might be chosen by the litigants;
provision was also expressly made for the possibility of a
session of tlie entire tribunal at one time. The latter
idea was absolutely unacceptable to most of the Conti-
nental States. One objection raised to it was that there
had not yet been sufficient experience in arbitrations to



52G GENERAL REPORT OF THE COMMISSION

warrant a eontiiiiiously sitting tribunal, so that if one were
provided it would probably liave nothing to do during the
greater portion of the year, and thus become an object of
criticism, if not of ridicule. Another objection found
expression in the fear that such a tribunal would assume
a dignity and importance for which the nations were not
yet prepared. The expense involved in the payment of
salaries to judges whose time would be taken, was also a
consideration of no little importance, and the payment of
permanent salaries was looked upon as being likely to
emphasize the undesirable spectacle of an international
court with perhaps little to do. The plan of Sir Julian
Pauncefote happily avoided these difficulties, while it yet
provided a permanent court not altogether unlike the
Supreme Court of the State of New York, which consists
of a comparatively large number of judges who never sit
as a body but who are constantly exercising judicial func-
tions, either alone or in separate tribunals made up from
among their number. This organization appears in the
perfected plan adopted by the Conference.

The American plan further proposed that the tribunal



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 35 of 39)