THE HAGUE, July 31, 1899.

COMMISSION OF THE UNITED STATES OF AMERICA TO THE INTERNATIONAL CONFERENCE AT THE HAGUE

Gentlemen: I have the honor to submit a summary of the work appertaining in the first instance to the Second Sub-Committee of the Second Committee of the Conference. This Sub-Committee was charged with the revision of the declaration concerning the laws and customs of war, prepared in 1874 by the Conference of Brussels but never ratified. It is the subject indicated by article number seven of the circular of Count Mouravieff of December 30, 1898. Although the work of the Conference of Brussels was mentioned in this circular, previous publication of a code of what might be called the laws and customs 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, M. de Martens of Russia, at one of its sessions.

A code of the "Laws and Customs of War on Land,"(1) comprising sixty articles, was elaborated by the Sub-Committee and by the Conference. This code, if accepted by the United States, would take the place of those portions of the present instructions for the Government of its armies in the field which are covered by its sixty articles. It would not completely take the place of these instructions for the reasons that certain subjects relating to hostilities are omitted therefrom, some because of their delicacy, such as retaliation, and reprisals, etc., others because they relate to the 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 represents the extreme concession to unorganized resistance in prescribing as the sole condition of treatment as legitimate combatants of populations of an unoccupied country suddenly invaded, without time for organization, and taking up arms in its defense, 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 Britain, to the effect that nothing in it should be understood as tending to diminish or suppress the right of the population of an invaded country to fulfill it 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 decidedly opposed by the representative of Germany. The proposed article was withdrawn by its author, under appeals from delegates favoring its spirit but 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 withdrawal was wise, in view of the concession in Article 2 of all that is covered by the one proposed.

Chapter II, Articles 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 6 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 pay.

Article 77 of General Order No. 100, which provides for severe penalty, 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 counterpart in the new code. Article 12 of the new code provides that in case of breach of parole the offender shall be brought to trial, but it does not prescribe the death penalty 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 information 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 prisoners' aid societies; for franking privileges for the 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 bombardments.

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 71 of the Order, for killing or wounding a disabled 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 prohibition 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 declaration 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 decision of the chairman that the Sub-Committee was not competent to consider it, because 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.

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 Belgium, 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 provisions were retained upon the theory that, while not acknowledging the right, the possible fact had 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 populations.

Articles 48 to 54 refer to contributions and requisitions in money and kind; they are more detailed in their provisions than the articles of General Order No. 100 referring 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 damages regulated at the conclusion of peace, after having at first found entry into the code, was afterward stricken out at the instance of the British representative.

Article 46 forbids the seizure or destruction of works of art or similar objects, and is in this respect more restrictive 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 obligation is imposed upon the neutral to see that such persons 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 demanded 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 representative 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 conference.

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 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 relations 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. The 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.

Notes:

(1). The links in this document refer to the Code as Completed. Captain Crozier in his discussion of the Code and his comparison of it to General Order No. 100 is using it in its proposed form. [Note added by the Avalon Project]. Back