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THE HAGUE, July 31, 1899.
To THE COMMISSION OF THE UNITED STATES on AMERICA TO THE INTERNATIONAL CONFERENCE AT THE HAGUE
Gentlemen: I have the honor to submit to the Commission the following report, which I believe to be in sufficient detail, of the general proceedings, and of the conclusions reached by the Second Committee of the Conference, in relation to Articles 5 and 6 of the Russian Circular Letter of December 30, 1898.
In the original distribution of labor of the Conference, Articles 5, 6, and 7, of the said letter, were attributed to the Second Committee. The latter was divided into two Sub-Committees, to one of which was assigned the Articles 5 and 6, as both related to naval matters. Of this Sub-Committee I was a member, and it has fallen to me especially, among the United States Delegates, to follow the fortunes of the two articles named in their progress through the Sub-Committee, and through the full Committee; but not through the smaller special Committee, the Comite de Redaction, to which the Sub-Committee intrusted the formulation of its views. Of that Comite de Redaction I was not a member.
These two articles are as follows:
5. Adaptation to naval war of the stipulations of the Geneva Convention of 1864, on the base of the Additional Articles of 1868.
6. Neutralization, for the same reason, of boats or launches employed in the rescue of the shipwrecked during or after naval battles.
The general desirability of giving to hospital vessels the utmost immunity, consistent with the vigorous prosecution of war, was generally conceded, and met, in fact, with no opposition; but it was justly remarked at the outset that measures must be taken to put under efficient control of the belligerents all hospitals ships fitted out by private benevolence, or by neutrals, whether associations or individuals. It is evident that unless such control is explicitly affirmed, and unless the various cases that may arise, in which it may be needed, are, as far as possible, foreseen and provided for, incidents may well occur which will bring into inevitable discredit the whole system of neutral vessels, hospital or others, devoted to the benevolent assistance of the sufferers in war.
The first suggestion, offered almost immediately, was that the simplest method of avoiding such inconvenience would be for the said neutral vessels, being engaged in service identical with that of belligerent hospital vessels to which it was proposed to extend the utmost possible immunity, should frankly enter the belligerent service by hoisting the flag of the belligerent to which it offered its services. This being permitted by general consent, and for purposes purely humanitarian, would constitute no breach of neutrality, while the control of either belligerent, when in presence, could be exercised without raising those vexed questions of neutral rights which the experience of maritime warfare shows to be among the most difficult and delicate problems that belligerents have to encounter.
This proposition was supported by me, as being the surest mode of avoiding difficulties easy to be foreseen, and which in my judgment are wholly unprovided for by the articles adopted by the Conference. The neutral ship is, by common consent, permitted to identify itself with the belligerent and his operations for certain laudable purposes: why not for the time assume the belligerent's flag? The reasoning of the opposition was that such vessels should be considered in the same light as national vessels, and that to require them to hoist a foreign flag would be derogatory (porterait atteinte) to the sovereignty of the State to which they belonged. This view prevailed.
The first three meetings of the Sub-Committee, May 25, 30 and June 1, were occupied in a general discussion of the Additional Articles of 1868, suggested by the Russian letter of December 30, 1898, as the basis of the adaptation to naval wars of the Geneva Convention of 1864. In this discussion was also embraced Article 6 of the Russian letter, relating to the neutralization of boats engaged in rescuing the shipwrecked (naufrages) that is, men overboard for any cause during, or after, naval battles.
At the close of the second meeting it was decided that the president of the Sub-Committee should appoint the Comite de Redaction before mentioned. As finally constituted, this Comite de Redaction contained a representative from Great Britain, from Germany, from Russia, and from France. At the close of its third session the Sub-Committee was adjourned to await the report of the Comite de Redaction. It again assembled and received the reportof June 13; this beingthe fourth meeting of the Sub-Committee.
The Comite de Redaction embodied in ten articles the conclusions of the Sub-Committee. The articles were preceded by a lucid or comprehensive report, the work chiefly of M. Renault, the French member of the Comite de Redaction. This report embraces the reasoning upon which the adoption of the articles is supported. A copy of the report and of the articles (marked A) accompanies this letter.
Upon receiving the report and the articles, I pointed out to one of the members of the Comite de Redaction, that no adequate provision was made to meet the case of men who by accident connected with a naval engagement, such, for instance, as the sinking of their ship, were picked up by a neutral vessel. The omission was one likely to occur to an American, old enough to remember the very concrete and pertinent instance of the British yacht Deerhound saving the men of the Alabama, including her captain, who were then held to be under the protection of the neutral flag. It requires no flight of imagination to realize that a hostile commander-in-chief, whom it has always been a chief object of naval warfare to capture, as well as other valuable officers, might thus escape the hands of a victor.
At the meeting of the Sub-Committee on June 16, I drew attention to this omission when the vote was reached on Article 6, which provides that neutral vessels of various classes, carrying sick, wounded, or shipwrecked (naufrages) belligerents, cannot be captured for the mere fact of this transportation; but that they do remain exposed to capture for violation of neutrality which they may have committed. I had then-unaccountably now to myself-overlooked the fact that there was an equal lack of satisfactory provision in the case of the hospital ships under neutral flags, whose presence on a scene of naval warfare is contemplated and authorized by Article 3. It was agreed that I should appear before the Comite de Redaction, prior to their final revision of the report and articles. This I did; but after two hours, more or less, of discussion, I failed to obtain any modification in the report or the articles. When, therefore, on the 15th of June, the matter came before the full Second Commission, I contented myself-as the articles were voted only ad referendum-subject to the approval of the Governments- with registering our regret that no suitable provision of the kind advocated had been made.
The matter was yet to come before the full Committee. Before it did so, I had recognized that the difficulty I had noted concerning neutral vessels other than hospital ships might arise equally as regards the latter, the presence of which was contemplated and authorized, whereas that of other neutral ships might very well be merely accidental. I accordingly drew up and submitted to the United States Commission, three additional articles, preceding these with a brief summary of the conditions which might readily occasion the contingency against which I sought to provide. This paper (annexed and marked B) having received the approval of the Delegation, was read, and the articles submitted to the Second Committee in a full session, held June 20, immediately prior to the session of the Conference, at 4 p.m. the same day, to ratify the work of the Committee. The three additional articles were referred to the Comite de Redaction with instructions to report to the full Committee. The ten articles were then reported to the Conference and passed without opposition, under the reserve that the articles submitted by the United States Delegation were still to be considered.
Here matters rested for some time, owing, as I understand to certain doubtful points arising in connection with the three proposed articles, which necessitated reference to home governments by one or more of the delegations. Finally, I was informed that not only was there no possibility of a favorable report, nor, consequently, of the three proposed articles passing, but also that, if pressed to a full discussion, there could scarcely fail to be developed such difference of opinion upon the construction of the ten articles already adopted as would imperil the unanimity with which they had before been received. This information was conveyed by me to the United States Commission, and after full consideration I was by it instructed to withdraw the articles. This was accordingly done immediately by letter, on July 18, to Vice-Admiral Sir John Fisher, Chairman of the Comite de Redaction, and through him to the President of the Second Commission.
At the subsequent meeting of the full Conference, July 20, the withdrawal being communicated by the President of the Second Committee, it was explained that this Commission, while accepting the ten articles, and withdrawing its own suggested additions, must be understood to do so, not because of any change of opinion as to the necessity of the latter, but in order to facilitate the conclusion of the labors of the Conference; that the Commission were so seriously impressed with the defects of the ten articles, in the respects indicated, that it could sign them only with the most explicit understanding that the doubts expressed before the Second Committee would be fully conveyed to the United States Government, and the liberty of action of the latter wholly reserved, as to accepting the ten articles.
By this course the ten articles, which else might ultimately have failed of unanimous adoption, have been preserved intact, with several valuable stipulations embodied in them. But while there is much that is valuable, it seems necessary to point out to the Commission that to the hospital ships under neutral flags, mentioned in Article 3, and to neutral vessels in certain employments, under Article 6, are conceded a status and immunities hitherto unknown. While this is the case, there is not, in my opinion, in the articles any clear and adequate provision to meet such cases as were meant to be met by the three articles proposed by the Commission, and which are perfectly conceivable and possible. Upon resection I am satisfied that no necessity exists for the authorization of hospital vessels under a neutral flag upon the scene of naval war, and that the adhesion of our Government to such a scheme may be withheld without injury to any one. As regards Article 6, conceding immunities heretofore not allowed to neutral vessels-for the transport of belligerents has heretofore been a violation of neutrality, without reservation in favor of the sick and wounded-it appears to me objectionable and premature, unless accompanied by reservations in favor of the belligerent rights of capture and recapture. These the articles fail to provide explicitly. For these reasons it is my personal opinion that Articles 3 and 6 should not be accepted by the Government of the United States. If the Delegation concur in this view, I recommend that such opinion be expressed in the general report.
The Hague Peace Conferences of 1899 and 1907
A Series of Lectures Delivered before the Johns Hopkins University in the Year 1908
By James Brown Scott
Technical delegate of the United States to the Second Peace Conference at the Hague
In two Volumes
Volume II - Documents
Baltimore, MD : The Johns Hopkins Press, 1909.