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tional character for the conduct of belligerents. I shall indicate the stages of the road that has been traveled.
To begin with, I shall mention, as the first manifestation in this sense, the celebrated Geneva Convention of August 22, 1864, on the subject of soldiers wounded on the field of battle. Called into being by a great humanitarian impulse, it was drawn up somewhat hastily and was defective in many respects. Signed at the outset by a small number of States, by France among the first-it has been accepted by nearly all the States of the world in turn, and in spite of numerous infringements, it has rendered very great service. It has been replaced by a convention dated June 6, 1906, likewise signed at Geneva, as the result of a conference in which more than thirty States were represented by diplomats, physicians, soldiers, and jurists; that is to say, by men possessing the necessary qualifications to pass upon complicated questions.
Then comes a declaration signed at St. Petersburg on December 11, 1868, which has a limited object but is of interest because of the general ideas formulated in its preamble, and which reads as follows:
Considering that the progress of civilization should have the effect of alleviating as much as possible the calamities of war;
That the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy;
That for this purpose, it is sufficient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable;
That the employment of such arms would therefore be contrary to the laws of humanity;
The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by their military or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances.
This declaration was accepted by a large number of States, which are thus obligated to one another. It is curious to note that the declaration containing the foregoing affirmations was not formulated by jurists or philosophers, but at a conference composed exclusively of military men, at which France was represented by Commander Miribel.
Russia, which had taken the initiative in the revision of the laws of
naval warfare by the famous Declaration of Armed Neutrality of 1780, due to the Great Catherine, who had brought about the signing of the Declaration of which I have just spoken wherein certain general views on war were expressed, also took the initiative on another occasion, with important results. Russia was responsible for the meeting of the conference of 1874 at Brussels, in which all the European States were represented by diplomats, military men, and a few jurists. One of the latter, then at the beginning of his career, was destined to make a brilliant name for himself and to become one of the foreign associate members of our Academy,-the celebrated Professor Frederick de Martens. The memories of the Franco-German War were still fresh and all wished to avoid a repetition of events which had brought forth complaints from all sides. Differences arose, especially between the representatives of large States and those of the smaller States. The only result reached was the "Draft of an international declaration concerning the laws and customs of war." This draft, in nowise obligatory, nevertheless exerted considerable influence upon theory and practice. Upon the outbreak of war with Turkey in 1877, Russia declared that its armies would conform to the prescriptions of this draft. Many of these prescriptions have passed into the military regulations of a certain number of countries.
At the First Peace Conference the rules prepared by the Brussels Conference at 1874 were adopted. After the lapse of twenty-five years ideas had ripened and opposition had been attenuated. I do not believe that I exaggerate when I say that success was in large measure due to the ability of Mr. de Martens.
Twenty-six States were represented at The Hague in June, 1899. A special committee was charged with the preparation of regulations on the laws and customs of war on land, taking the Brussels draft of 1874 as the basis of discussion. An agreement was reached after careful deliberation, in which distinguished general officers-notably of Germany, England, France, and Russia-took part. This agreement was stated in a Convention, to which Regulations are annexed. "The High Contracting Parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the laws and customs of war on land, annexed to the present Convention," says
Article 1 of the Convention. This somewhat complicated form was adopted in order to remove certain scruples; it does not detract in any way from the binding force of the provisions of the Regulations, as follows from the text itself, and, in particular, from the explanations made at the Conference. General Sir John Ardagh had expressed the opinion that the governments, even if they adhered to the projected declaration, would reserve to themselves full liberty to accept or to modify the articles of the declaration, which should only have the force of a recommendation and nothing more. There would not, then, have been any real advance over the Brussels draft. Accordingly, this view was dismissed by President de Martens. It is a question, he said, of forming a mutual insurance society against the abuse of force in time of war, This society nations are free to join or not to join; but it must have laws which its adherents shall observe. He insisted further that the vital interests of peaceful and unarmed peoples must not be abandoned to the chances of war reasons (raison de guerre) and of the law of nations. His conclusion was as follows: "Adhesion to the Regulations implies acceptance by each State of a set of legal rules limiting, with regard to foreign territory or subjects, manifestations of the power that the fortunes of war may have put into its hands."
The spirit of the agreement reached on the subject of the conduct of war is further revealed in the preamble of the Convention, which I deem it advisable to quote here:
The Sovereigns and Heads of States,
Considering that, while seeking means to preserve peace and prevent armed conflicts among nations, it is likewise necessary to have regard to cases where an appeal to arms may be caused by events which their solicitude could not avert;
Animated by the desire to serve, even in this extreme hypothesis, the interests of humanity and the ever increasing requirements of civilization;
Thinking it important, with this object, to revise the laws and general customs of war, either with the view of defining them more precisely, or of laying down certain limits for the purpose of modifying their severity as far as possible;
Inspired by these views which are enjoined at the present day, as they were twenty-five years ago at the time of the Brussels Conference in 1874, by a wise and generous foresight;
Have, in this spirit, adopted a great number of provisions, the object of which is to define and govern the usages of war on land.
The negotiators did not claim to have provided for all contingencies, but "until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience."
I have entered into these details in order to make perfectly clear the circumstances under which the rules were adopted, which should govern belligerents in land warfare, and the care with which they were drawn so as to take into account the various interests at stake. They are not an improvisation passed under the pressure of immediate circumstances; they are the result of slow and patient elaboration, and the presence of delegates representing great military Powers like Germany and Russia is a genuine guarantee that the interests of belligerents were not lost sight of in the pressure of humanitarian motives. There was, therefore, on the part of the States which signed and ratified the Convention, a solemn engagement, made with full knowledge, which is binding, like one's plighted word, upon all those who do not hold that all treaties are mere "scraps of paper."
At the Second Peace Conference in 1907, the Regulations of 1899 were revised. The provisions of the latter were recognized as satisfactory as a whole, and the revisers confined themselves simply to retouching without material changes. The number of signatories increased, for the Conference of 1907 included delegates from forty-four States. The present belligerents are all bound by the Convention and the Regulations of 1907. Germany is therefore obligated, with respect to its enemies, by all the provisions I am about to quote.
In the interval between the two Peace Conferences there had occurred an incident relating to this subject, which ought to be mentioned. In 1902, the General Staff of the German Empire published a pamphlet entitled Kriegsbrauch im Landkriege (which was translated into French under the title of Les lois de la guerre continentale [Laws of Land War
fare], by Paul Carpentier), and there was no little surprise on learning that, in the eyes of the German General Staff, the Hague Regulations appeared to have no binding force, since, if occasion demands, the provisions of these Regulations are put upon the same footing as those of the Brussels draft. After having spoken with scorn of the humanitarian attempts to bring about the evolution of the usages of war in a direction opposite to that of the very object of war, the editor of the Manual said in his Introduction that these efforts had already obtained moral recognition in the Geneva Convention and at the Brussels and Hague Conferences. That remark was hardly in accord with the engagement made by Germany three years before. It could not be overlooked by the delegates to the 1907 Conference, and there was talk of asking the Germans to explain themselves on the tendencies of the Manual, when there occurred a little coup de théâtre. The German Delegation presented a provision, the object of which was to sanction the prescriptions of the Regulations. This provision which, slightly amended, became Article 3 of the Convention, is as follows:
A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
The Regulations are binding, since the party who disregards them is obliged to repair the injury caused by such violation. The Conference took into consideration the fact that the provisions of the Regulations in question must be observed, not only by the commanding officers of belligerent armies, but by all officers, non-commissioned officers, and soldiers in general. That is why the Conference extended to the law of nations, in all cases of infringement, the principle of private law, according to which the principal is responsible for the acts of his representatives and agents. (Art. 1384, French Civil Code).
Such, then, is the origin of the provisions I shall have occasion to bring before you; and if I have entered somewhat into detail, I have done so in order to avoid the necessity of recurring to the authority they must be conceded to possess. They are provisions passed after mature deliberation by the society of civilized peoples, which they have