EIGHTH MEETING

JUNE 10, 1899

Mr. Martens presiding.

The minutes of the seventh meeting are read and adopted.

General Sir John Ardagh reads the following declaration:

In the speech delivered by his Excellency Mr. BEERNAERT at the sixth meeting, I believe that I discern a conviction or at least a desire that the revision of the Brussels Declaration should end in an international convention, and our PRESIDENT in his statement expressed the wish that this declaration might be more than an international act.

Without seeking to ascertain the motives to which may be attributed the nonadoption of the Declaration of 1874, it is permissible to suppose that the same difficulties may arise at the conclusion of our labors at The Hague.

In order to brush them aside and to avoid the unfruitful results of the last Conference, it seems to me that we had better accept the Declaration only as a general basis for instructions on the laws and customs of war to be given our troops, without any pledge to accept all the articles as voted by the majority.

I believe that my Government is willing to adopt this idea instead of absolutely abstaining according to the communication given to the Imperial Government at the end of the Brussels Conference by Lord DERBY.

Our intention is to embody in our manual of instruction, literally, if possible, all the articles of the Declaration which we deem to be in conformity with the principles of international law in accordance with which we have thus far regulated our acts.

With this reservation we desire that the Conference should pass upon the largest possible number of questions in order to show the opinion of every one one way or the other. It seems to us that the entire elimination of certain

articles, as proposed by his Excellency Mr. BEERNAERT, might be con[99] sidered as an authorization to the belligerents to interpret the laws of war in a way unfavorable to weak States, whereas a full discussion would at least indicate certain restrictions on the unlimited right arising from uncertainty; and, whatever the result may be, it would not bind us to accept the articles.

to us.

This full liberty to accept or modify the articles is of supreme importance

In pursuing this line of ideas, we see not only a possibility but also a certainty of insuring to the labors of the two Conferences a serious result, and we believe that we shall be avoiding the risk of failure presented by a project for an international convention or by the adoption of identical instructions for all armies. At all events, my Government will not be bound by my opinion or my vote and will remain absolutely free.

The President then took the floor as follows:

I deem it my duty to repeat what I have already said on several occasions, both in this assembly and elsewhere. The object of the Imperial Government has steadily been the same, namely, that the Brussels Declaration, revised as far as this Conference may deem necessary, shall form a solid basis for the instructions which the Governments will give to their land armies in case of war. Of course, in order that this basis may be firmly established, an international agreement is necessary similar to that embodied in the St. Petersburg Declaration of 1868. It would be suitable if the signatory and acceding Powers would declare in an article that they are agreed on certain uniform rules which would constitute the subject of these instructions. This is the only way to secure an obligation binding on the signatory Powers. It is well understood that the Brussels Declaration will have this binding force only as far as the contracting or acceding States are concerned.

If, however, in a future war an ally of one of these Powers should not have signed this pledge to wage what would have been called a "fair" war in the middle ages, the rules of the Brussels Declaration would not be applicable to that ally. He would obviously be entitled to give such instructions as he might deem useful and just and he might for this purpose choose from among the doctrines professed by the different jurisconsults who have dealt with the subject.

However, those instructions would lack a solid, uniform, and recognized basis. In order to clearly explain what the purpose of the Conference is in regard to this subject in the opinion of the Russian Government, I can find no better illustration than a "mutual insurance association against the abuses of force in time of war." Now, gentlemen, one is free to join an association or not, but in order that it may exist it must have by-laws. And in insurance companies, for instance those against fire, hail, or other calamities, the by-laws which provide for these disasters do not regulate, but recognize the existing dangers. Thus it is that in organizing by common consent "the mutual insurance association against the abuses of force in time of war" for the purpose of safeguarding the interests of populations against great disasters, we do not legalize those disasters but simply recognize them. On the other hand, it is not against the necessities of war, but solely, I repeat, gentlemen, against the abuses of force that we wish to be guaranteed.

In proposing to the nations of the civilized world to found such a society, Russia not only expressed a desire but thought that she was obeying a duty. It seems to me that the whole world cannot help sharing this view. It is for the Governments to enter the society or not, to accept or reject the hand extended to them. However, only the members will benefit by all the advantages which will be offered by this society in time of war.

As regards the by-laws of the society, they can be none other than the Declaration of Brussels, modified by your deliberations. But do not lose sight of the fact that none of its articles sanctions the disasters of war which do and always will exist. What the provisions have in view is to bear relief to peaceable and unarmed populations during the calamities of war.

Here, gentlemen, is the standpoint once more explained which in my opinion ought to dominate our common efforts.

I hope that the result of them will be to form a society such as that whose mission and purpose I have set forth to you.

At the proposition of Messrs. Motono and Bille it is decided that the declaration of Sir JOHN ARDAGH and the explanation of Mr. MARTENS shall be printed and appended to the summary account.

Mr. Veljkovitch observes that in his opinion the subcommission is compe[100] tent only to examine the draft Declaration of Brussels. It will be for the plenary conference to decide whether the results of these labors are to

be given the form of a convention.

The President remarks that there is no reason for entering into a discussion of the declaration of Sir JOHN ARDAGH.

At the end of the deliberations the Governments will have to decide as to the suitability of concluding a convention on this subject.

General Sir John Ardagh says that his declaration is personal in character and does not come from his Government.

His Excellency Count Nigra says that it would be important to know whether the English Government shares the view of Sir JOHN ARDAGH.

His Excellency Sir Julian Pauncefote declares that it is a question here of a personal opinion in regard to which the British Government will be consulted and reach a decision in due time and place.

His Excellency Mr. Beernaert thinks that he misunderstood Sir JOHN ARDAGH. He highly appreciates the humanitarian purpose had in view by the Russian Government and states that an agreement has already been reached on many points and often with the concurrence of the English delegate. However, in the very interests of the cause, he deemed it his duty to point out the difficulties which would be encountered by an attempt to solve certain questions by means of a convention. Nevertheless, he endorsed the proposition of Mr. ODIER to insert in the minutes as a recommendation that which could not be embodied in a convention, even in necessarily vague terms. If it is desired only to impose restrictions upon the victor, it may be done in this manner. He has, moreover, described the situation of Belgium, which is permanently neutral and consequently very much disinterested in law in the question of belligerents.

The President says that note will be taken of the declarations of Sir JOHN ARDAGH and his Excellency Mr. BEERNAERT.

He announces :

1. That Mr. ODIER has proposed the following wording for Article 3:

With this object he shall maintain the laws which were in force in the country in time of peace. He may only suspend their enforcement to the extent and for the time that may be necessary for the purpose of maintaining order.

2. That Mr. ROLIN has proposed the following amendment to Article 3:1

1

The existing laws remain in force in the occupied territory, and if the occupant is induced, owing to the necessities of the war, to modify, suspend, or replace them, these measures shall be only of a purely provisional character, limited according to the extent and duration of the occupation.

The PRESIDENT asks the delegates who have proposed amendments in regard to Article 3, the maintenance of which has been provisionally adopted, to kindly give explanations regarding their propositions.

1 See annex A.

Mr. Rolin recalls that the first draft of his amendment has been distributed. It was couched in the following terms:

The existing laws remain in force in the occupied territory, and if the occupant is induced, owing to the necessities of war, to modify, suspend, or replace them, the effect of these measures shall be limited to the extent and duration of the occupation.

To take into account the remarks of Mr. LAMMASCH at the close of the previous meeting, the end of the article was changed in the text now submitted to the subcommission. Apart from this explanation, Mr. ROLIN has nothing to add to what he said in the meeting of June 8 in support of his amendment to Article 3.

Mr. Odier recalls the fact that he favored the abolition of Article 3 and that he had proposed his wording in case it should be decided to maintain this article. He would like to have the text of the article in question submitted to a preliminary vote, whereupon a vote could be taken on the question of its main

tenance.

Baron Bildt proposed the following amendment, the text of which is distributed during the meeting: Omit from Article 3 the words "and shall not modify, suspend, or replace them unless necessary"; and from Article 5, the words" as far as is possible."

Baron BILDT observes that opinions were divided at the last meeting. On the one hand guaranties were desired; on the other, objections were made to defining the limits of the rights of the victor, for by this act the Governments would be recognizing the belligerents in advance as having rights over their subjects.

It was from this standpoint that his Excellency Mr. BEERNAERT asked [101] that the article be abolished. The speaker expressed an opinion to the

contrary, but in order to attain a real result, he proposed his amendment, which consequently is in the nature of a compromise. He hopes to receive the consent of all, unanimity being very desirable for the resolutions of this subcommission. Personally, he would not be opposed to maintaining the article.

Colonel Gross von Schwarzhoff remarks that it seems inadmissible to him to omit the last words of the article, which, without this restriction, forbids making any change whatever in the state of affairs in the invaded territory. The Occupant would not even be allowed to declare martial law and would have for instance to respect the laws on recruiting, etc. In his personal opinion, the acceptance either of the amendment of Mr. ODIER or that of Baron BILDT gives rise to many obstacles to the ratification of this act, not only on the part of Germany but elsewhere.

Mr. Bihourd, in order to bring together the different opinions as far as possible on this humane provision, proposes to omit Article 3 but to preserve its spirit by adding the following phrase to Article 2: "while respecting unless absolutely prevented the laws in force in the country."

His Excellency Mr. Beernaert endorses this proposition.

Baron Bildt and Messrs. Odier and Rolin endorse the amendment of Mr. BIHOURD.

On motion of Jonkheer van Karnebeek a vote is first taken on this amendmert, the decision on this subject implying likewise that regarding the maintenance or abolition of Article 3.

The amendment of Mr. BIHOURD is adopted by 23 votes against 1 (Japan).

Mr. Motono explains that he voted against the amendment for the following reason: The phrase added to Article 2 has in view only laws relating to public order and safety, whereas Article 3 seems to him to be more general in scope.

Mr. Beldiman, having made an appeal to the Japanese delegate in order to secure the desired unanimity, Mr. Motono modified his negative vote after some explanations had been made by Messrs. BELDIMAN and BOURGEOIS regarding the purport of the phrase added to Article 2 by Mr. BIHOURD.

The amendment of Mr. BIHOURD is therefore unanimously adopted by twenty-four votes, the delegate from Greece not being present.

The President thanks Mr. MOTONO for the spirit of conciliation which he was pleased to show.

The discussion of Article 4 of the Brussels draft is now taken up:

The functionaries and employees of every class who consent, on his invitation, to continue their functions, shall enjoy his protection. They shall not be dismissed or subjected to disciplinary punishment unless they fail in fulfilling the obligations undertaken by them, and they shall not be prosecuted unless they betray their trust.

Captain Crozier declares that, although he tentatively voted to abolish Article 4, inasmuch as this provision is of no use to his country because it runs no risk of being invaded, he will nevertheless now express himself in favor of maintaining Article 4, since the spirit thereof has been preserved by the vote just taken.

His Excllency Mr. Beernaert points out that it is impossible for a State to authorize its officials in advance to pass into the service of its adversary.

Jonkheer van Karnebeek says that in his opinion the substance of the provision is not that a right is given to the invader; restrictions are rather placed on his actual authority. However, he sees something else in the article: not an "authorization" but a sort of "invitation." which he would never like to see inserted in a convention. In many cases it would be a patriotic duty of the highest importance to remain to the end the most determined and resolute opponents and enemies of the invader.

For this reason he sees a difference between Article 4 and the other articles which it is proposed to abolish. As far as he is concerned, he asks that Article 4 be dropped.

Mr. Lammasch asks whether it would not be possible to maintain it with a slight modification of the text by adopting the conditional form which Mr. ROLIN used in drafting Articles 5 and 5 a proposed by him.

His Excellency Mr. Beernaert remarks that, even with the wording proposed by Mr. LAMMASCH, the authorization would still exist.

Mr. Lammasch thinks then that the words "with the consent of their country" should be added.

His Excellency Mr. Beernaert says that in this way the article would lose its reason for existence.

Colonel Gross von Schwarzhoff says that it is not a question here of political functionaries alone, but also of those of all other categories, including those elected by the inhabitants. The inhabitants have a right to have the mayors and municipal employees remain in their places.

Moreover, it is in the interest of the occupant himself to retain some of [102] these functionaries. It is not solely a question of permission to remain in the service of the enemy, but the presence of certain functionaries is in the interest of both parties.