Volume Ii Part 7 (2/2)

[Footnote 80: See above, -- 54.]

III

THE LAWS OF WAR

Hall, -- 17--Westlake, _Chapters_, pp. 232-235--Maine, pp.

122-159--Phillimore, III. -- 50--Taylor, -- 470--Walker, _History_, I. ---- 106-108--Heffter, -- 119--Lueder in Holtzendorff, IV. pp.

253-333--Ullmann, ---- 167 and 170--Bonfils, Nos.

1006-1013--Despagnet, Nos. 508-510--Pradier-Fodere, VIII. Nos.

3212-3213--Rivier, II. pp. 238-242--Nys, III. pp. 160-164--Calvo, IV. ---- 1897-1898--Fiore, III. Nos. 1244-1260--Martens, II. -- 107--Longuet, p. 12--Bordwell, pp. 100-196--Spaight, pp.

1-19--_Kriegsbrauch_, p. 2--_Land Warfare_, ---- 1-7--Holland, _Studies_, pp. 40-96.

[Sidenote: Origin of the Laws of War.]

-- 67. Laws of War are the rules of the Law of Nations respecting warfare. The roots of the present Laws of War are to be traced back to practices of belligerents which arose and grew gradually during the latter part of the Middle Ages. The unsparing cruelty of the war practices during the greater part of the Middle Ages began gradually to be modified through the influence of Christianity and chivalry. And although these practices were cruel enough during the fifteenth, sixteenth, and seventeenth centuries, they were mild compared with those of still earlier times. Decided progress was made during the eighteenth, and again during the nineteenth century, after the close of the Napoleonic wars, especially in the years from 1850 to 1900. The laws of war evolved in this way: isolated milder practices became by-and-by usages, so-called _usus in bello_, manner of warfare, _Kriegs-Manier_, and these usages through custom and treaties turned into legal rules.

And this evolution is constantly going on, for, besides the recognised Laws of War, there are usages in existence which have a tendency to become gradually legal rules of warfare. The whole growth of the laws and usages of war is determined by three principles. There is, first, the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realisation of the purpose of war--namely, the overpowering of the opponent. There is, secondly, the principle of humanity at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to a belligerent. And, thirdly and lastly, there is at work the principle of chivalry which arose in the Middle Ages and introduced a certain amount of fairness in offence and defence, and a certain mutual respect. And, in contradistinction to the savage cruelty of former times, belligerents have in modern times come to the conviction that the realisation of the purpose of war is in no way hampered by indulgence shown to the wounded, the prisoners, and the private individuals who do not take part in the fighting. Thus the influence of the principle of humanity has been and is still enormous upon the practice of warfare. And the methods of warfare, although by the nature of war to a certain degree cruel and unsparing, become less cruel and more humane every day. But it must be emphasised that the whole evolution of the laws and usages of war could not have taken place but for the inst.i.tution of standing armies, which dates from the fifteenth century. The humanising of the practices of war would have been impossible without the discipline of standing armies; and the important distinction between members of armed forces and private individuals could not have arisen without the existence of standing armies.

[Sidenote: The latest Development of the Laws of War.]

-- 68. The latest and the most important development of the Laws of War was produced through general treaties concluded between the majority of States since the beginning of the second part of the nineteenth century.

The following are the treaties concerned:--

(1) The Declaration of Paris of April 16, 1856, respecting warfare on sea. It abolishes privateering, recognises the principles that the neutral flag covers enemy goods and that neutral goods under an enemy flag cannot be seized, and enacts the rule that a blockade in order to be binding must be effective. The Declaration is signed by seven States, but eighteen others acceded in course of time.

(2) The Geneva Convention of August 22, 1864, for the amelioration of the condition of wounded soldiers in armies in the field, which originally was signed by only nine States, but to which in course of time all the civilised States--except Costa-Rica, Lichtenstein, and Monaco!--have acceded. A treaty containing a number of additional articles to the Convention was signed at Geneva on October 20, 1868, but was never ratified. A new Geneva Convention was signed on July 6, 1906, by thirty-five States, and several others have already acceded. There is no doubt that the whole civilised world will soon be a party to this new Geneva Convention. The principles of the Geneva Convention were adapted to maritime warfare by Conventions (see below, No. 8) of the First and Second Hague Peace Conferences.

(3) The Declaration of St. Petersburg of December 11, 1868, respecting the prohibition of the use in war of projectiles under 400 grammes (14 ounces) which are either explosive or charged with inflammable substances. It is signed by seventeen States.

(4) The Convention enacting ”Regulations respecting the Laws of War on Land,” agreed upon at the First Peace Conference of 1899.

The history of this Convention may be traced back to the _Instructions for the Government of Armies of the United States in the Field_ which the United States published on April 14, 1863, during the War of Secession. These instructions, which were drafted by Professor Francis Lieber, of the Columbia College of New York, represent the first endeavour to codify the Laws of War, and they are even nowadays of great value and importance. In 1874 an International Conference, invited by the Emperor Alexander II. of Russia, met at Brussels for the purpose of discussing a draft code of the Laws of War on Land as prepared by Russia. The body of the articles agreed upon at this Conference, and known as the ”Brussels Declarations,” have, however, never become law, as ratification was never given by the Powers. But the Brussels Declarations were made the basis of deliberations on the part of the Inst.i.tute of International Law, which at its meeting at Oxford in 1880 adopted a Manual[81] of the Laws of War consisting of a body of 86 rules under the t.i.tle _Les Lois de la Guerre sur Terre_, and a copy of this draft code was sent to all the Governments of Europe and America. It was, however, not until the Hague Peace Conference of 1899 that the Powers rea.s.sembled to discuss again the codification of the Laws of War.

At this Conference the Brussels Declarations were taken as the basis of the deliberations; but although the bulk of its articles was taken over, several important modifications were introduced in the Convention, which was finally agreed upon and ratified, only a few Powers abstaining from ratification.

[Footnote 81: See _Annuaire_, V. pp. 157-174.]

The Second Peace Conference of 1907 has revised this Convention, and its place is now taken by Convention IV. of the Second Peace Conference. The Convention,[82] as the preamble expressly states, does not aim at giving a complete code of the Laws of War on Land, and cases beyond its scope still remain the subject of customary rules and usages. Further, it does not create universal International Law, as article 2 of the Convention expressly stipulates that the Regulations shall be binding upon the contracting Powers only in case of war between two or more of them, and shall cease to be binding in case a non-contracting Power takes part in the war. But, in spite of this express stipulation, there can be no doubt that in time the Regulations will become universal International Law. For all the Powers represented at the Second Peace Conference signed the Convention, except China, Spain, and Nicaragua, although some States made certain reservations. Nicaragua has since acceded, and it is certain that the outstanding States will in time also accede.

[Footnote 82: For brevity's sake the Hague Convention enacting Regulations regarding the laws and customs of war on land will be referred to in the following pages as the _Hague Regulations_. It is, however, of importance to observe that the Hague Regulations, although they are intended to be binding upon the belligerents, are only the basis upon which the signatory Powers have to frame instructions for their forces. Article 1 declares: ”The high contracting parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the Laws of War on Land annexed to the present Convention.” The British War Office, therefore, published in 1912, a guide, _Land Warfare: an Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty's Army_, written by order of His Majesty's Secretary of War by Colonel Edmonds and Professor Oppenheim, in which the Hague Regulations are systematically set out; their full text is published in Appendix 6 of the guide. But it should be mentioned that the British War Office had already in 1903 published a manual, drafted with great precision and clearness by Professor Holland, for the information of the British forces, comprising ”The Laws and Customs of War on Land, as defined by the Hague Convention of 1899.” See also Holland, _The Laws of War on Land (Written and Unwritten)_, Oxford, 1908.]

(5) The Declaration concerning expanding (dumdum) bullets; see below, -- 112.

(6) The Declaration concerning projectiles and explosives launched from balloons; see below, -- 114.

(7) The Declaration concerning projectiles diffusing asphyxiating or deleterious gases; see below, -- 113.

<script>