[109] However, these divergent tendencies appear to have subsisted nevertheless, and since there are now perhaps too many texts up for consideration, Mr. ROLIN withdraws his proposition.

Colonel Gross von Schwarzhoff remarks that more than once in this discussion a warning has been given that no backward step should be taken.

It appears to him that there is no danger of this in any event as no step either forward or backward has thus far been taken; the Brussels Declaration, not having been ratified, has remained in the draft stage.

Mr. Léon Bourgeois thinks it is a very good idea to leave to the drafting committee the task of making an effort toward harmonizing the complex principles just set forth. As a matter of fact it seems to him that two fundamental ideas have sprung from this long discussion. On the one hand all the delegates are agreed that they do not wish in any event to assign the character of right to that which is only a fact, the fact of war. On the other hand, all are likewise agreed in seeking the means of diminishing the burdens which this fact of war would impose on the populations.

How shall these two interests be reconciled?

Unanimity appears to have prevailed in regard to one primary point. This is that certain guaranties of form should be established for the levying of contributions, leaving aside their nature and their extent. This is one point settled, which enables a precise provision to be reached. This provision might prescribe that the levies should be paid in consideration of a receipt; that they should be in pursuance of a special order from the military or civil authority, and finally that these levies should be distributed according to the rules in force in time of peace in the occupied territory.

But there is another viewpoint on which the military delegates might agree with his Excellency Mr. BEERNAERT and Mr. ODIER; that is the question of "fines." It will be admitted that the imposition of a fine is not a normal procedure which may be applied in order to weaken resistance, and that it is a vexatious penalty which could only be warranted by a very reprehensible act on the part of the population as a whole.

On these two points no risk would seem to be run of recognizing the occupant as having rights, and in this way the objections of his Excellency Mr. BEERNAERT would be satisfied.

The task of the drafting committee would therefore consist in formulating a definite rule:

1. In regard to the mode of levying contributions, their distribution, and the responsibility of the authority levying them.

2. In regard to the cases in which and the conditions under which the occupant may impose fines.

It would be the duty of the committee to seek such a wording as would plainly appear to have no other purpose than to assert the rights of the occupied populations against the possible abuses of war.

The President believes that it will be very difficult for the committee to perform its task. The wording adopted at Brussels for Articles 41 and 42 is the result of laborious effort to reconcile different opinions. But in the face of the absolutely divergent viewpoints that have been represented here, there remains but one thing to do, and that is to abolish the articles which give rise

to controversy in regard to special rules and to be content with the article which proclaims the general principle.

It will be necessary, then, to leave to the progress of civilization and to the humanitarian sentiments of heads of armies the task of looking after the interests of the inhabitants as far as possible when contributions are to be levied.

His Excellency Mr. Beernaert thinks that, as Mr. BOURGEOIS has pointed out a series of points in regard to which there are hopes of reaching an agreement, the abolition of Articles 41 and 42 would perhaps be premature. He supports the propositions of Messrs. BOURGEOIS and BELDIMAN.

General Zuccari is of opinion that if it is desired to abolish Articles 41 and 42, it will be necessary to consider requisitions and contributions also in Article

40.

Jonkheer van Karnebeek believes that the situation is not well understood. The propositions made do not represent four different systems. There are only three:

1. The system of the Belgian delegates;

2. The system of preparing a provision on the basis of 1874, as suggested by Mr. BOURGEOIS; and

3. His own system, which is more extensive in its scope than that on which the text of 1874 was based.

It does not seem to him that Colonel GROSS VON SCHWARZ HOFF really advocates a different principle, as the explanation given by him relates at [110] bottom only to what is defined in the original Brussels draft and is therefore in accordance with the system of Article 41.

His Excellency Mr. Beernaert observes that not only has the Declaration of Brussels not been ratified, as was remarked by Colonel GROSS VON SCHWARZHOFF, but that there was not even any vote. Belgium, the Netherlands, and still other countries have admitted nothing with regard to contributions and requisitions.

The President deems it useful that the assembly should first make known its desire to abolish Articles 41 and 42, or to preserve them subject to subsequent change of text.

Mr. Bourgeois insists that his proposition be first put to a vote.

Mr. Beldiman also thinks that a vote cannot be taken now on the maintenance of the article, as it might be necessary later on to vote for its abolition in case the form of wording to be found by the drafting committee should appear inadequate.

His Excellency Mr. Beernaert also thinks that the proposition of Mr. BOURGEOIS Constitutes a previous question.

Mr. Bourgeois, summing up, says that the task of the drafting committee will therefore be to gather from the discussion those points in regard to which an agreement might be reached, and to eliminate those in regard to which an understanding will have been recognized as being impossible.

The proposition of Mr. BOURGEOIS is adopted.

Mr. BOURGEOIS, at the request of the PRESIDENT, declares that he is ready to take part in the labors of the committee.

The meeting adjourns.

TENTH MEETING

JUNE 17, 1899

Mr. Martens presiding.

The minutes of the ninth meeting are read and adopted.

The President says that several delegates have expressed a desire to have the minutes printed right now and distributed among the delegates for their personal use. These documents would be very useful to them in preparing the reports which they are to send to their respective Governments.

Mr. Raffalovich remarks that there would be insurmountable difficulties in the way of an immediate publication of these documents. It would be impossible, however willing the Secretariat might be, to properly perform this additional labor. He proposes that it be done after the closing of the Conference.

His Excellency Mr. Beernaert asks that before the printing is done, the proof sheets be given to the members of the subcommission in order that they may review the passages which concern them.

He embraces this opportunity to thank and congratulate the Secretariat for the accuracy and impartiality with which it is performing its arduous task.

It is decided that action shall be taken in accordance with the opinion of the PRESIDENT, Mr. RAFFALOVICH, and his Excellency Mr. BEERNAERT, that is, that the minutes be sent to the printer after the closing of the labors of the Conference and that the proof sheets be delivered to each of the members of the subcommission.

The President says that Mr. ASSER, president of the first subcommission of the Second Commission which has just terminated its labors, asks permission on behalf of his colleagues to submit the report of the first subcommission directly to the Conference assembled in plenary session.

This procedure would enable time to be gained, and the members of the assembly are requested to make known whether they permit its adoption.

Mr. Beldiman asks that no change be made in a procedure which has already been adopted in plenary session. This modification exceeds the jurisdiction of the subcommission. As far as he is concerned, he does not think he can endorse the proposition of Mr. ASSER.

[111] Mr. Bourgeois thinks that Mr. BELDIMAN is actuated by a scruple of form which is justified for that matter in his opinion. In order to take this into account, a meeting of the Commission might be held just before the plenary session at which meeting the report could be read without being discussed.

Baron Bildt, who is ready to endorse any proposition calculated to accelerate the progress of the work, thinks that whenever an objection has been made by one of the delegates it should be taken into account.

But moreover, in the first subcommission a provision was adopted by a majority of one vote. As it was a question of an obligation which some of the delegates considered too onerous for small neutral States, these delegates will probably desire to revert to this point in the plenary session of the Commission in order to reach an understanding without which they will probably not be able to sign except with reservations.

As a discussion on this point is inevitable, it is better for it to take place before the Second Commission than in plenary session of the Conference. Baron BILDT therefore sides with Mr. BELDIMAN.

The President, taking into account the observation of Baron BILDT, which is approved by the subcommission, will reach an understanding on this subject with Mr. ASSER.

The PRESIDENT says that the drafting committee has unanimously agreed to present to the subcommission the text of four articles relating to contributions and requisitions.1 These new texts are preceded by a very slightly revised wording of Article 5, relating to established taxes, which has already been voted at its first reading. They are worded as follows:

ARTICLE 5 (already voted)

If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

ARTICLE A

In addition to the taxes mentioned in the above article, the occupant can levy other money contributions in the occupied territory only for the needs of the army or of the administration of the territory in question.

ARTICLE B

No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

ARTICLE C

No contribution shall be collected except under a written order, and on the responsibility of a commander in chief.

The collection of the said contribution shall only be effected as far as possible in accordance with the rules of assessment and incidence of the taxes in force.

For every contribution a receipt shall be given to the contributors.

ARTICLE D

Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in the operations against their country.

[112] Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

Contributions in kind shall, as far as possible, be paid for in cash, and if not, vouchers shall be given.

1 Sec annex B.

Finally, Mr. Crozier proposed the following articles: "Article 43 (provisional number). Every money contribution or requisition in kind intended to serve in the operations or for the maintenance of the occupant shall be returned or paid for."

The examination of the texts proposed to the subcommission by the drafting committee is now taken up.

Before discussing them, the President wishes to thank warmly the members of this committee, as well as his Excellency Mr. BEERNAERT and Messrs. VAN KARNEBEEK and ODIER, who have kindly lent him their assistance.

In view of these texts, Lieutenant Colonel von Khuepach and Captain Crozier withdraw those which they had proposed.

Mr. Odier, on behalf of the Swiss delegation and in pursuance of orders from his Government, asks that the following declaration be inserted in the minutes:

In taking part in the discussion of the articles of the draft of an international declaration concerning the laws and customs of war, and notably the articles relating to military authority on the territory of the hostile State, the representatives of Switzerland in no wise mean to admit thereby that the territory of the Swiss Confederation may be occupied by a foreign army, for such an occupation could only take place in consequence of a violation of Swiss neutrality, which is recognized by the Powers and always scrupulously observed by Switzerland.

His Excellency Mr. Beernaert states that he has on several occasions made similar observations in regard to Belgium, and also asks that this statement be inserted in the minutes.

His Excellency Mr. Eyschen makes the same request.

The President records the declarations of Mr. ODIER and their Excellencies Messrs. BEERNAERT and EYSCHEN.

Mr. Rolin declares that the spirit of the text as worded by the committee is in accordance with the declarations of the preceding speakers. It has never been a question of recognizing the occupant as having a right, but of limiting the consequences of the fact of occupation.

The new wording of Article 5 (already voted) is unanimously adopted in the terms proposed by the committee.

Article A, proposed by the committee, is now taken up.

Mr. Odier regrets that he cannot accept this wording of Article A, in which he himself had participated, but he has since received different instructions which compel him to propose amendments to Articles A, C and D on behalf of his Government and to propose a new Article E. He proposes the following wording for Article A:

If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall be done only in case of absolute necessity and for the needs of the army or of the administration of the territory in question.

The modification relates to two points:

1. The employment of the doubtful form by adding the word "if" at the beginning of the article.

2. The introduction of the words "in case of absolute necessity."