[11] ARTICLES 22 and 44. German proposal and Austro-Hungarian amendment.1 Belgian and Netherland proposals 2 Before summing up the long discussions that took place both in the subcommission and the committee of examination on the German, Austro-Hungarian, Belgian and Netherland proposals relative to Articles 22 and 44, the PRESIDENT points out the importance of the questions raised on this subject. "Here we have," said he, "in substance the way in which they have been presented." The text of Article 44 at present in force is worded thus: "it is forbidden to force the population of occupied territory to take part in military operations against its own country." This text is absolute and makes no distinction. However, in 1899 a question was touched on without being clearly solved; may a belligerent require the inhabitants of occupied territory to serve as guides for his troops or furnish them with information looking toward military operations? The question was put before the subcommission on the occasion of the German proposal already cited: "It is forbidden to force the ressortissants of the adverse party to take part in operations of war directed against their own country even in case they have been enrolled in its service before the beginning of the war"; a proposition having to have as a consequence the suppression of Article 44 at present in force which in itself has raised no objection. But the Austro-Hungarian delegation introduced an amendment of quite a different tenor which permitted the obliging of inhabitants of occupied territory to give their assistance in matters that do not relate to the fighting itself. To this amendment the Netherland delegation opposed another in the following words: "It is forbidden to force the population of an occupied territory to give information concerning their own army or the means of defense of their country." This is to solve the question in a humanitarian sense and to respect the conscience of the inhabitants of occupied territories as is intended by the Convention of 1899. Two discussions took place on this subject in the subcommission and in the committee. In order to arrive at an agreement the German proposal for 22a and the Netherland proposal for 44a were combined by the delegation of Belgium in a single text and the subcommission adopted it by a majority of 3 votes (18 against 15). By reason of the smallness of this majority and with a view to reach a more complete accord, the committee abandoned this text and again took up the two separate amendments of the delegations of Germany and the Netherlands (Articles 22a and 44a), the place to be assigned them being left to be fixed later by the drafting committee. It is in these circumstances that the question is reopened in its double aspect before the Commission. Must it be solved in the sense of the AustroHungarian delegation or in conformity with the diametrically opposite tendencies of the Netherland text? It is for the Commission to decide. Major General Yermolow reads the following declaration: Mr. PRESIDENT: With respect to Articles 22a and 44 the Russian delegation has the honor to declare that it cannot accept any amendment or any addition to Article 44 of the 1899 Regulations concerning the question of laws and customs of war on land. Annexes 2 and 3. 'Annexes 14 and 4. Nevertheless, the delegation is disposed to accept the first proposal of the German delegation, that is to add to the above-mentioned Regulations a new Article 22a, under the condition, in that case, that Article 44 be wholly suppressed and any amendment thereof and addition thereto. [12] Major General Baron Giesl von Gieslingen declares that he gives full support to the proposal originating with the delegation of Russia, which Major General YERMOLOW has just read. The President remarks that this proposal is beside the question of the use of guides and of exacted information, without solving it either affirmatively or negatively. Major General von Gündell declares in his turn that he has the same view as Major General YERMOLOW as to maintaining the original text of the German proposal. His Excellency Lieutenant General Jonkheer den Beer Poortugael pronounces the following address: GENTLEMEN: After two favorable votes, I would not have believed it necessary again to defend my proposal, which seems to me a very fair one; it provides that it should be forbidden to force the inhabitants of an occupied territory to give information about the hostile army, i.e., hostile to the occupying army, therefore, about that of their compatriots, or about the means of defense of their country. It does not appear to me fitting to repeat here the arguments that I have already had the honor to submit to you on this subject. It would, it seems to me, be unworthy of the high intelligence and generous sentiments of this select assembly. But you will permit me, I hope, to remind you that General YERMOLOW himself has declared it would only be very exceptionally that recourse would be had to the extreme means of forcing the inhabitants to serve as guides and to give the desired information, and that Captain STURDZA said in our fourth meeting that what can be done in Belgium, in Switzerland, and in the Scandanavian kingdoms could not be done in other countries. As General AMOUREL has supported the same thesis as myself, we may add France to the countries where it would not be permitted to force the inhabitants to betray their country. According to my honorable colleague from France, as well as myself, there will happily never be any need to do so. If in the occupying army, the information and spy service is well regulated, it will find many cosmopolitans, individuals without heart and without country, Judases who would betray even the Messiah for a sequin. If this service is not well regulated, whose is the fault? Should the inhabitants who must remain apart from the struggle be forced to supply the lack of instruction and foresight of the invader? If a State has not sufficient means to make war let it keep the peace or make peace. It is not for us to make war easy. The best means the belligerent has to obtain his end in the minimum of time is to prevent the inhabitants of an occupied territory from going to join the armed forces of the adversary. To that end there is no more efficacious means than to pay in cash for everything that one takes and never to force the inhabitants to commit villainies. The armies of the Duke of WELLINGTON which acted in this way in the Spanish Peninsula did not want for anything, according to the report of Commissary PELLOT to Marshal SOULT. You know, gentlemen, that to force the inhabitants means nothing but threatening them with death, and that the threat in a war is followed very closely by execution. Now, I permit myself to draw your attention to the fact that in Section 4 of the project for an international convention presented in 1874 by the Russian Government it is stated: The necessities of the war cannot justify: treason with regard to the enemy, declaring him outside the law, or authorization to employ violence and cruelty against him. [13] To threaten with death one who does not wish to become a traitor is at the same time violence and cruelty. Let us not forget that Section 20 contains the following provision: "Any inhabitant of the territory occupied by the enemy who communicates information to the hostile party is likewise given up to justice." I have also the honor to call to your attention the proclamation which the King of Prussia, afterwards the Emperor of Germany, addressed to the French people at Saarbrücken August 11, 1870. The King of Prussia said: "Military events have led me to cross the frontiers of France. I am making war on the soldiers, not on the citizens of France. They will, therefore, enjoy entire security in their persons and in their property, so long as they do not deprive me of the right of giving them my protection by hostile acts against the German troops." This is quite different, gentlemen, from threatening with death peaceable inhabitants who have done no wrong and forcing them to treason. War is made by State upon State and not upon individuals, private persons, inhabitants of the country. This is the fundamental principle of the law of war that we find repeatedly throughout the minutes of our Conferences. What should we think of all that? Shall they be but phrases, but empty words? No, gentlemen, we wish to be true; far from wishing to make dupes, we are unwilling to come with the palm branch in one hand and a sword in the other. If it is true that war is made by State upon State, let us not force inhabitants to mingle in the struggle; above all let us not force them to commit villanies. (Loud applause.) General Amourel says that it would be impossible to add to the forceful argument of the military Dean of the Assembly without risking an anti-climax. He announces that the French delegation entirely supports the thesis so eloquently maintained by his Excellency General DEN BEER POORTUGAEL. Colonel Sapountzakis makes a like declaration. His Excellency Mr. Carlin announces that the delegation of Switzerland will also vote for the Netherland proposal in conformity with the attitude that the delegation has taken in the subcommission and in the committee. Colonel Ting declares that the delegation of China, although disposed to maintain Article 44 of the Convention of 1899, accepts the Netherland amend ment. Colonel Jofre Montojo expresses himself in the name of the delegation of Spain in the sense of the Netherland proposal. The discussion having come to an end, the President puts to vote the propo sition accepted by the subcommission, pointing out that the delegations having a contrary opinion should vote no. Thirty-three delegations took part in the vote. The following voted yes: Belgium, Brazil, China, Cuba, Denmark, Dominican Republic, France, Greece, Haiti, Italy, Luxemburg, Mexico, Norway, Panama, Paraguay, Netherlands, Persia, Serbia, Siam, Sweden, Switzerland, Spain, Turkey. The following voted no: Austria-Hungary, Bulgaria, Germany, Great Britain, Montenegro, Portugal, Roumania, Russia, United States of America. Japan abstained. [14] In consequence the solution adopted by the Committee is reproduced in the report of Major General Baron GIESL VON GIESLINGEN1 and is declared admitted by the Commission by 23 votes against 9 and 1 abstention. ARTICLE 23. German proposal 2 The German amendment relating to Article 23 was accepted without discussion. ARTICLE 27. Greek proposal Unanimous approval was also given to a suggestion of the delegation of Greece to include historic monuments in the list which, by the terms of Article 27, should be spared so far as possible by bombardment. ARTICLES 35 AND 45. Netherland proposal 3 The Netherland amendment relating to Articles 35 and 45 were withdrawn by the Netherland delegation with the consent of the committee. ARTICLE 46. Austro-Hungarian proposal The Austro-Hungarian delegation declares that it does not resume its amendment relating to Article 46, which consisted in placing the words in principle at the beginning of the clause relating to respect for private rights. ARTICLE 52. Russian proposal 5 The President invites the Commission to express itself on the Russian amendment relating to Article 52. The text accepted by the committee is worded as follows: Contributions in kind shall, as far as possible, be paid for in cash; if not, a receipt shall be given, and payment shall be arranged as soon as possible, before the end of hostilities in so far as the military authority of the belligerent shall have at his disposal the necessary funds. Major General von Gündell thinks that the text should end with the words "as soon as possible." 1 Adoption of the German and Netherland proposals in the form of two distinct Articles, 22 a and 44 a. Annex 2. Annexes 9 and 4. Annex 7. Annex 15. The President replies that these last remarks will be brought to the attention of the drafting committee which is to decide the final wording. ARTICLE 53. Danish and Austro-Hungarian proposals, Russian amendment' The subcommission next adopted the formula proposed by the committee respecting seizure of means of transportation and communication, worded as follows: All means of communication and of transport operated on land, at sea, and in the air for the transmission of persons, things, and news, as well as depots of arms and, generally, all kinds of munitions, even though belonging to companies or to private persons, are likewise material which may serve for military operations, but they must be restored and compensation fixed when peace is made. [15] The President recalls on the subject of this article a remark of the first delegate of Switzerland asking if these provisions can be applied to the property of neutral persons in the territory of the belligerents. He adds that the committee considered this question as falling within the program of the second subcommission. The amendment of the delegation of Denmark is thus worded: Submarine cables connecting an occupied or enemy territory with a neutral territory shall not be seized nor destroyed except when absolute necessity requires. They must likewise be restored and compensation fixed when peace is made. Mr. Louis Renault observes that this amendment has reference only to what takes place on land, without touching the question of seizure or destruction of submarine cables in the open sea. The President thanks him for having given the text an interpretation that leaves no room for doubt. INDEMNIFICATION FOR VIOLATION OF THE REGULATIONS OF After the President read a new German proposal 2 relating to the penalty for violations of the Regulations of 1899, which the subcommission approves, but which it believed it could not accept as drafted, Major General VON GÜNDELL declares that he accepts the wording decided on by the committee, which combines the two articles into a single one without establishing any difference in principle between neutral persons and others. This wording is as follows: A belligerent party which shall violate the provisions of the present Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. In the name of the British delegation, Major General Sir Edmond R. Elles makes reservations on this subject. Annexes 12, 7 and 8. * Annex 13. |