general basis for instructions to our troops on the laws and customs of war, without any pledge to accept all the articles as voted by the majority.

According to the opinion of Sir JOHN ARDAGH all Governments would thus, even though adhering to the Declaration, retain "full liberty to accept or modify the articles" of the Declaration.

This communication of the technical delegate of Great Britain led Mr. MARTENS to add some information regarding the view which the Imperial Government of Russia takes on the question.

The object of the Imperial Government (said Mr. MARTENS) has steadily been the same, namely, to see that the Declaration of Brussels, revised in so far as this Conference may deem it necessary, shall stand as a solid basis for the instructions in case of war which the Governments shall issue to their armies on land. Without doubt, to the end that this basis may be firmly established, it is necessary to have a treaty engagement similar to that of the Declaration of St. Petersburg in 1868. It would be necessary that the signatory and acceding Powers should declare in a solemn article that they have reached an understanding as to uniform rules, to be carried over into such instructions. This is the only way of obtaining an obligation binding on the signatory Powers. It is well understood that the Declaration of Brussels will have no binding force except for the contracting or acceding States.

From this last sentence it is seen that according to the views of the Russian Government there could be no other course than to conclude a convention providing that the adopted rules should not be obligatory as such except upon the adhering States. The rules would even cease to be applicable in a war between adhering States if one of them should accept an ally who had not adhered to the Convention.

The delegate of Russia enforced this view by comparing the work to be done with the formation of a "mutual insurance association against the abuse of force in time of war," an association which States should be free to enter or not, but which must have its own by-laws obligatory upon the members among themselves.

In replying to another objection that was made and to which we shall revert later, Mr. MARTENS added that by agreeing to establish a "mutual insurance association against the abuse of force in time of war" for the purpose of protecting the interests of populations against the greatest of disasters, we by no means sanction these disasters, we merely recognize their existence; just as companies that insure against fire, hail or other calamities, merely state existing dangers.

The last part of Mr. MARTENS' speech was in answer to a fundamental objection advanced by his Excellency Mr. BEERNAERT, the first delegate of Belgium, in an address delivered in the meeting of June 6.

It is correct to say that the address of Mr. BEERNAERT was especially devoted to a consideration of Chapters I, II, and IX of the Declaration of Brussels relative to the occupation of hostile territory, the definition of belligerents and the provisions regarding requisitions in kind or of money. Mr. BEERNAERT, apropos of certain clauses in these chapters, put the question whether it is wise "in advance of war and for the case of war, expressly to legalize rights of a victor over the vanquished, and thus organize a régime of defeat." He thought it best to

adopt no provision except such as would admit the fact without recognizing a right in the victor, and would carry a pledge on the part of the latter to be moderate.

[26] As a matter of fact, these remarks of the first delegate of Belgium had a very general bearing for they are more or less applicable to every part of the Declaration concerning the laws and customs of war. Mr. MARTENS in reply energetically insisted upon the necessity of not abandoning the vital interests of peaceable and unarmed populations "to the hazards of warfare and international law."

The question thus raised was really whether the fear of appearing by an international regulation to legalize as a right the actual power exercised through force of arms should be a good reason for abandoning the invaluable advantage in a limitation of this power. Besides, no member of the subcommission had any idea that the legal authority in an invaded country should in advance give anything like sanction to force employed by an invading and occupying army. On the contrary, the adoption of precise rules tending to limit the exercise of this power appeared to be an obvious necessity in the real interests of all peoples whom the fortune of war might in turn betray.

The subcommission took into account the views of Mr. BEERNAERT by adopting as its own a declaration which Mr. MARTENS read in the meeting of June 20. The complete text of this declaration will be found below in the commentary upon Articles 1 and 2 (formerly 9 and 10) to which they particularly relate. It should be remembered that, as the subcommission desired, this document is to be given a place in the records of the Conference. As a consequence, the draft is not to be considered as intended to regulate all cases occurring in practice; the law of nations still has its field. Furthermore, it has been formally said that none of the articles of the draft can be considered as entailing on the part of adhering States the recognition of any right whatever in derogation of the sovereign rights of each of them, and that adhesion to the regulations will simply imply for each State the acceptance of a set of legal rules restricting the exercise of the power that it may through the fortune of war wield over foreign territory or subjects.

There still remains to be brought to the notice of the Commission a communication of a general nature. At the meeting of June 3 his Excellency Mr. EYSCHEN, the delegate of the Grand Duchy of Luxemburg, called the attention of the subcommission to the importance of a determination of the rights and duties of neutral States. The subcommission was of the opinion that it should confine itself to examining the questions falling within the terms of the Declaration of Brussels, but it recommended the passage of the resolution expressing the hope "that the question regulating the rights and duties of neutral States may be inserted in the program of a conference in the near future."

We now pass to an examination of the text of the draft Declaration, which is divided into four sections.

SECTION 1.-BELLIGERENTS

CHAPTER I. The qualifications of belligerents

(Articles 1 to 3)

The two first articles of this chapter (Articles 1 and 2) were voted unanimously and are word for word the same as Articles 9 and 10 of the Brussels Declaration, with the exception of a purely formal addition to the final paragraph of the first article made on the second reading, in order to include volunteer corps as well as militia within the term army.

When these articles were first submitted to discussion, Mr. MARTENS read the declaration already spoken of and the subcommission immediately adopted it for submission to the Conference. Its text follows:

[27]

The Conference is unanimous in thinking that it is extremely desirable that the usages of war should be defined and regulated. In this spirit it has adopted a great number of provisions which have for their object the determination of the rights and of the duties of belligerents and populations and for their end a softening of the evils of war so far as military necessities permit. It has not, however, been possible to agree forthwith on provisions embracing all the cases which occur in practice.

On the other hand, it could not be intended by the Conference that the cases not provided for should, for want of written provision, be left to the arbitrary judgment of the military commanders.

Until a perfectly complete code of the laws of war is issued, the Conference thinks it right to declare that in cases not included in the present arrangement, 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.

It is in this sense especially that Articles 9 and 10 adopted by the Conference must be understood.

The senior delegate from Belgium, Mr. BEERNAERT, who had previously objected to the adoption of Articles 9 and 10 (1 and 2 of the new draft), immediately announced that he could because of this declaration vote for them.

Unanimity was then obtained on those very important and delicate provisions relating to the fixing of the qualifications of belligerents.

The third and last article of this chapter, which is identical except as to details of form with Article 11 of the Brussels draft, expressly says that noncombatants forming part of an army should also be named belligerents, and that both combatants and non-combatants, that is to say all belligerents, have a right in case of capture by the enemy to be treated as prisoners of war.

There was some thought of transferring this article, or at least its last sentence, to the chapter on prisoners of war. But in the end it appeared useful, after having defined the conditions of belligerency, to state at once this essential right that a belligerent possesses in case of capture by the enemy, to be treated as a prisoner of war. And besides, this gives us a very natural transition to Chapter II, which follows immediately and fixes the condition of prisoners of

war.

Before the above declaration, adopted on the motion of Mr. MARTENS, was communicated to the subcommission General Sir JOHN ARDAGH, technical delegate of Great Britain, proposed to add at the end of the first chapter the following provision:

Nothing in this chapter shall be considered as tending to diminish or suppress the right which belongs to the population of an invaded country to patriotically oppose the most energetic resistance to the invaders by every legitimate means.

From a reading of the minutes of the meeting of June 20, it would seem that most of the members of the subcommission were of opinion that the rule thus formulated added nothing to the declaration which Mr. MARTENS had read at the opening of that meeting. The delegation of Switzerland, nevertheless, appeared to attach great importance to this additional article and went so far as to suggest that its adhesion to Articles 1 and 2 (Brussels 9 and 10) might not be given if the proposal of Sir JOHN ARDAGH was not adopted. Mr. KÜNZLI spoke to that effect. On the other hand, the technical delegate of Germany, Colonel GROSS VON SCHWARZHOFF, emphatically asserted that Article 9 of Brussels (now the first article) makes recognition of belligerent status depend only on conditions that are very easy to fulfill; he said that there was consequently in his view no need of voting for Article 10 (now Article 2), which also recognizes as belligerents the population of territory that is not yet occupied under the sole condition that it respect the laws of war; but that he had nevertheless voted for that article in a spirit of conciliation. 'At this point, however," said the German delegate most emphatically, "my concessions cease; it is absolutely impossible for me to go one step further and follow those who declare for an absolutely unlimited right of defense."

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At the end of the debate and in consideration of the declaration adopted on motion of Mr. MARTENS, Sir JOHN ARDAGH withdrew his motion, for the sake of harmony.

CHAPTER II.- Prisoners of war

(Articles 4 to 20)

The chapter on prisoners of war in the Brussels Declaration of 1874 (Articles 23-34) began with a definition forming the first paragraph of Article 23 and couched in the following terms: "Prisoners of war are lawful and dis

armed enemies." This definition was, so to speak, the residuum of another [28] and much longer definition in Article 23 of the first draft submitted to the Brussels Conference by the Imperial Russian Government. Considering the rather vague character of these definitions and the difficulty of finding any other that is more complete and more precise, the subcommission agreed to leave out the definition and to confine itself in this chapter to saying what shall be the treatment of prisoners of war.

It is for these reasons that Article 4, which is the first one under this chapter and corresponds to Article 23 of the Brussels project, begins at once with these words: "Prisoners of war are in the power of the hostile Government, etc."

The paragraph relating to acts of insubordination has also been omitted in this article, but it is to be found farther on in Article 8, where it seems to be better placed.

Most of the other provisions adopted at Brussels concerning this subject of the treatment of prisoners of war have been retained by the subcommission with very slight changes, an explanation of which may be found in the minutes of the meetings of May 27 and 30.

Article 5, respecting internment of prisoners, is an exact copy of Article 24. Article 6 combines the provisions of Articles 25 and 26 of Brussels in a slightly different wording proposed by Mr. BEERNAERT.

Article 7 is almost the same as Article 27, save that it regulates the treatment of prisoners as to quarters as well as to food and clothing.

Article 8, respecting the discipline of prisoners of war, corresponds to Article 28 of the Brussels project, but with a few changes other than of form, especially as regards escapes by prisoners. An analysis of these changes is given below.

Article 9 repeats literally Article 29 on the declaration of name and rank. Article 30 of the Brussels project, respecting the exchange of prisoners, has been omitted as useless, for the reason that the question of exchange cannot be made the subject of a general rule, inasmuch as an exchange can of course always result from an agreement between the belligerents.

Articles 10, 11, and 12 concerning liberation on parole, except as to a few details of wording, the same as Articles 31, 32, and 33 of the Declaration of Brussels.

But the new Article 13 respecting persons to be classed with prisoners of war differs considerably both in form and substance from Article 34 of the Brussels project.

Finally we come to Articles 14 to 20 which are all new and have been adopted on the motion of Mr. BEERNAERT.

On the whole then, it is proper to furnish special explanations with regard to Article 8 (old 28), Article 13 (old 34), and the new Articles 11 to 17.

As has just been said, a long discussion took place on Article 28, now Article 8, especially on the subject of the escape of prisoners of war. Finally it was agreed, as it had been at Brussels in 1874, that an attempt at escape should not go entirely unpunished, but that it is desirable to limit the degree of punishment which it may entail, especially to forestall the temptation with the enemy to regard the act as similar to desertion and therefore punishable with death. Consequently it was decided that "escaped prisoners who are retaken before being able to rejoin their army or before having left the territory occupied by the army that captured them are liable to disciplinary punishment." Nevertheless, it was agreed in the course of the debate that this restriction has no application to cases where the escape of prisoners of war is accompanied by special circumstances amounting, for example, to a plot, a rebellion, or a riot. In such cases, as General vON VOIGTS-RHETZ remarked at Brussels in 1874,1 the prisoners are punishable under the first part of the same article which says that they are "subject to the laws, regulations, and orders in force in the army of the State in whose power they are"; and it is necessary further to supplement this provision with the one which has been taken from the old Article 23 and added to Article 8, laying down, on the subject of prisoners, that "any act of insubordination justifies the adoption towards them of such measures of severity. as may be necessary."

1 Minutes of the meeting of August 6, 1874.