FIFTH MEETING

JUNE 15, 1899

Mr. Asser presiding.

The minutes of the fourth meeting are read and adopted.

The President states that he has received from its author a recent publication which Mr. FERGUSON, former minister resident of the Netherlands in China, has just published on the subjects which have occupied the Conference and in particular those relating to the adaptation of the principles of the Geneva Convention to maritime war.

[64] Mr. ASSER commends this work to the attention of the subcommission and he places the copy in his possession at its disposal.

The PRESIDENT calls attention to the fact that at the previous meeting the subcommission adopted the final text of Articles 1 to 9, and that the subjectmatter of Article 10 remains to be passed upon.

He thinks that it will be well, before opening up the discussion on this article, to ask the reporter to make known the modifications in wording which he made after the last meeting both in his report and in the text of the proposed articles.

Mr. Renault says that as far as the text of the articles is concerned, it has been amended in accordance with the decisions reached by the subcommission. He will not recall these amendments, which are known, but he will indicate only two modifications, the initiative in making which was taken by the drafting committee:

1. In Article 10 the words "must be guarded" will be substituted in place of "must be guarded there."

2. In Article 6 the words "or taking on board" (sick, wounded, etc.) will be added to the words "merchantmen, etc., etc., having "

As far as the report itself is concerned, Mr. RENAULT says that in order to take into account the wish expressed by Mr. TADEMA the committee decided to insert in the middle of page 3 the following clause:

The notification of the names of military hospital ships concerns first of all the belligerents; it may also concern neutrals, for, as will be explained, these vessels acquire a peculiar status in neutral ports.

It is therefore to be desired that the belligerents make the names of these vessels known to the neutral States, even though it were only by means of an insertion in their official gazette.

In order to satisfy certain doubts which had been expressed in regard to the status of military hospital ships in neutral ports, the following clause was inserted in the report (page 4):

Apart from the considerations just expressed, military hospital ships shall naturally be treated as war vessels, notably as regards the benefits of extraterritoriality.

In order to satisfy the anxiety expressed by Mr. MAHAN in regard to Article 9, and in case the prisoners contemplated should have been exchanged, the report will contain the following clause at the end of page 9:

The sick or wounded who are thus returned to their country shall not be allowed to serve again during the war.

Of course if they should be exchanged, their status as "prisoners of war at liberty on parole" shall cease and they will recover their freedom of action.

The President says that the work of the drafting committee may therefore be considered as being complete.

Mr. Mahan recalls the fact that at the previous meeting he called the attention of the subcommission to the case of a neutral ship other than a hospital ship, which had accidentally gathered up shipwrecked combatants. He would have liked to see a special rule inserted in the convention with a view to this case. He did not succeed in bringing the drafting committee around to this view. In a spirit of conciliation, he does not think that he will have to insist on his proposition, and he is ready to advise his Government to accept the text of the articles which have been proposed. He nevertheless persists in thinking that it would have been well to fill the void which he pointed out.

The President and Mr. Renault remind Mr. MAHAN that Article 6 has been supplemented by a clause the very purpose of which was to meet his observation.

Mr. Mahan answers that it seems to him that the change introduced related to the status of neutral ships but not to that of the shipwrecked persons gathered up. However, he declares again that he does not insist on his proposition.

Mr. Motono makes the following declaration in connection with Article 9: The provisions of the last paragraph of Article 6 of the Geneva Convention of 1864 and those of Article 9 of the draft under discussion are contradictory. In the former, the sick and wounded are covered by neutrality, whereas in the latter they are treated as prisoners of war.

Considering the provisions of Article 9 of the present draft more in accordance with the laws of war, we wished to modify the provisions of Article 6 of the Convention of 1864 along the lines of Article 9, for the purpose of bringing into harmony the provisions of the aforementioned articles. [65] We must add further that in case the two aforementioned provisions should remain unmodified, insular Powers like Japan would be in a manifestly disadvantageous situation with respect to the continental Powers.

Consequently, if our subcommission is competent to modify Article 6 of the Geneva Convention of 1864, we propose to submit to its examination an amendment along the lines indicated.

In case our subcommission should declare itself incompetent, we reserve the right to propose this amendment upon the first favorable opportunity.

We have the honor to request the PRESIDENT to mention the present declaration in the minutes.

The President says that this will be done.

He proposes to go on to Article 10, and reads it:

ARTICLE 10

The shipwrecked, wounded, or sick who are landed at a neutral port with the consent of the local authorities, must be guarded by the latter so as to prevent their again taking part in the operations of the war.

The expenses of hospital care and internment shall be borne by the State to which the sick, wounded, and shipwrecked persons belong.

The PRESIDENT recalls the fact that the wording of this article was the subject of propositions and amendments presented by Count DE GRELLE Rogier and Mr. ROLIN.

He asks the reporter to state the views of the drafting committee on this subject.

Mr. Renault says that the committee examined at length and conscientiously Article 10 which was referred to it together with the aforementioned amendments, and that as a result of this examination it was led to unanimously maintain the text which it had proposed before.

It seemed to it that the subcommission had no business to combine Article 10 with Articles 53 and 55 of the Brussels Declaration.

As a matter of fact these texts provide for two different situations which should in consequence be examined and regulated separately. The rules of continental war cannot be applied by way of assimilation to maritime war, and there are particularly other things to be considered in regulating the conditions of access to a neutral port than to neutral territory.

The committee deemed it necessary, with a view to rendering the part played by the neutral as clear as possible and to preventing international difficulties, to compel him to keep the wounded, sick, and shipwrecked persons landed in one of his ports. It will be permissible for him not to admit them, but once he has admitted them it will be necessary for him to keep guard over them.

As to the burdens falling on the neutral State on this account, they will not be so great as supposed, and the evacuation of wounded after a naval combat can never be compared with the affluence of wounded which a land battle might bring about on the neutral territory situated near the operations of the war.

At all events the neutral, if he consents to receive in his port a vessel laden with wounded, will be indemnified by the State to which these wounded belong for all the expenses caused by their hospital care and internment.

Count de Grelle Rogier does not very well understand the necessity for the drafting committee's insisting on the maintenance of Article 10 intact.

He has already pointed out the discrepancy existing between Article 55 of the Brussels Act and this Article 10. Article 9 provided much more advantageous rules. What the drafting committee desires is that the wounded, sick and shipwrecked shall be declared incapable of serving. This is not a reason for keeping them indefinitely on the neutral territory.

Count DE GRELLE ROGIER consequently proposes that Article 10 be given the following form:

The shipwrecked, wounded, or sick who are landed at a neutral port with the consent of the local authorities shall not be sent back to any but their country of origin and they shall in this case be declared incapable of serving again during the continuance of the operations of the war.

The expenses of tending them in hospital shall be borne by the State to which they belong.

Mr. Renault remarks that Articles 9 and 10 should not be compared. In Article 9 it is the belligerent that sends the sick and wounded back to their original country on condition that they shall not serve again during the war. As to the case contemplated in Article 10, it has not been admitted, as in 1868, [66] that in granting the power to leave the sick and wounded at liberty on parole the provision contained a sufficient guaranty.

The drafting committee insists on the maintenance of the text which it proposed.

Baron Bildt seconds the motion of Count De Grelle RogiER on the score of other considerations. It would be imposing too onerous a duty on neutrals to compel them to keep the shipwrecked, wounded, and sick throughout the duration of the war. It would be necessary to find sufficient guaranties in order to demand this sacrifice of neutral Powers.

Mr. Renault having observed that this is nevertheless what happens in a continental war when a beaten army corps enters neutral territory and is interned there, Count de Grelle Rogier answers that it is then a question of combatants.

The President observes again, in reply to Baron BILDT, that the landing in the neutral port always depends on the consent of the local authority.

Mr. Odier suggests that, in order to satisfy Count DE GRELLE ROGIER, they say that the sick, wounded, and shipwrecked who are recognized as being incapable of serving may, after being cured, be sent back to their country.

Mr. Motono supports the wording of Mr. ODIER.

Captain Siegel would like to be enlightened as to how it will be possible to recognize that the cure of the sick and wounded is effected and to distinguish between those who may be returned and those who ought to be kept; he declares himself in favor of maintaining the text proposed.

Mr. Corragioni d'Orelli is of opinion that the requirement of Article 10 is excessive. It is necessary to anticipate the case of an epidemic in the port or city of internment, and allow the neutral State, for sanitary reasons, the privilege of sending the shipwrecked, wounded and sick back to their original country.

Mr. Scheine insists on the difficulty of distinguishing between the sick who are capable of serving and the others. It is not service as a combatant alone that can be provided for. Wholeness of limbs is not necessary, for instance, for the service of semaphores, the adjustment of torpedoes, etc.

The President adds that it might be possible to call in the local authorities of the country where the sick and wounded are interned, by adding the words "recognized incapable of serving by the neutral medical authorities."

Mr. Odier states that this system is already put into practice by the Geneva Convention, and he reads Article 6 of that Convention.

Mr. Scheine observes that this article contemplates land warfare, the conditions of which are very different from those of naval warfare.

Admiral Fisher is in favor of maintaining integrally the text of Article 10 as adopted by the drafting committee.

Baron Bildt thinks the proposition of Mr. DE GRelle Rogier all the more acceptable because this wording proposes for Article 10 a condition which has been accepted for Article 9.

Mr. Scheine is not of this opinion. According to one of the articles, the prisoners are returned at the will of the belligerents; according to the other they are placed in the hands of the neutral, who is less competent to decide as to their fate than the belligerent.

After an exchange of views as to the position of the question, the President puts to a vote the maintenance of Article 10 intact.

Ten States vote in favor of such maintenance, viz.: Germany, AustriaHungary, France, Great Britain, Italy, Netherlands, Portugal, Roumania, Russia, and Turkey.

The following voted against it: The United States of America, Belgium, China, Denmark, Spain, Japan, Siam, Sweden and Norway, and Switzerland. The President states that the assembly adopts the whole wording as proposed by the committee for Article 10.

The PRESIDENT congratulates the subcommission on the results of its labors, which may be considered as very satisfactory.

He says that it is now necessary to consider the procedure according to which this work shall be submitted to the Conference.

Should the usual course be followed, that is, to present a report to the second plenary Commission, which will have to ratify by a vote the decisions of the subcommission; or will it be suitable, in order to gain time, to avoid this formality and take the result of the labors of the subcommission directly before the plenary session of the Conference?

The PRESIDENT thinks that this latter suggestion will receive all the votes and he asks the subcommission to give him formal instructions to ask the [67] President of the Conference and the President of the Second Commission for permission to present to the Conference the report of the subcommission and the text of the articles adopted.

Mr. ASSER adds that in his opinion the vote of ratification which is to be given by the Conference ought to be less platonic in character than a mere vau; it would be desirable, if possible, to cause the work of the subcommission to enter without waiting into the body of positive international law by embodying it in a convention. This convention might be signed right at The Hague, by the plenipotentiaries of the Powers represented and under the same conditions as to form, in regard to ratification and going into force, as those observed at the time of the conclusion in this city, on November 14, 1896, of the Convention on private international law.

The Reporter of the drafting committee, who shares this view, has already prepared the preamble which is eventually to precede the convention and which might be drawn up in the following terms:

His Majesty the Emperor of Germany, etc., etc.,

being alike animated by the desire of mitigating, as far as within their power, the incomparable evils of war by adapting for this purpose to maritime war the principles of the Geneva Convention of August 22, 1864, have resolved to conclude a convention for this purpose: etc., etc.,

Mr. Motono proposes to supersede in this preamble the words "adapting to maritime war" by "supplement the principles of the Geneva Convention," which appear to him broader and more general in application.

Baron Bildt asks whether any thought has been given to the wording of