rded who, ding vith old Eect to of he of defalcation of the expenses of their maintenance. It was rejected by 23 votes against 12. The Japanese delegation proposed to insert after Article 13 a new Article 13a as follows: The ressortissants of a belligerent, inhabiting the territory of the opposing party shall not be interned unless the exigencies of war make it necessary. An Italian amendment, approved by the delegation of Japan, proposed to extend this provision to expulsions in mass. Two important objections were made to these provisions: the first had reference to the very basis of the Japanese text, since it would follow, a contrario, that a non-belligerent population could be interned in mass, without previous trial and without allegation of grievances, under the pretext of the exigencies of war; the second had reference to the Italian addition from which could be deduced the lessening in time of war of the right which each State possesses at all times to expel aliens from its territory. The committee of examination to which the Japanese proposition had been sent was almost unanimously in favor of rejecting it because of the great disadvantage which would be presented by a text which might seem to aggravate the rules sanctioned in 1899. The Japanese delegation nevertheless maintained its amendment before the subcommission, and in consequence a new discussion took place. It was remarked that according to the principles which served as a basis for the Convention of 1899, war is limited to the belligerents and the civil population should not suffer either in its honor or its family rights, in private property, religious convictions or the exercise of worship. Under the appearance, it was said, of a restriction to the rights of belligerents, the Japanese proposition opens these principles to question. To intern an inoffensive inhabitant is to deprive him of his liberty and to strike his interests. Article 5 of the Regulations [22] only provides internment for prisoners and Article 43 assures to the civil population the maintenance of order and of public life by respect for the laws in force, which implies an interdiction of arbitrary measures. The Italian delegation, whose amendment was only subsidiary, insisted that expulsion in mass be forbidden in a case where internment in mass was the consequence of military exigencies; and his Excellency Mr. BEERNAERT, who was supported by General AMOUREL, maintained that the right of expulsion belonging to each particular State; in time of war as well as in time of peace, is for the local legislation to regulate and not for a world conference. No theoretical solution could be given to these questions; nevertheless the Japanese amendment and the Italian subamendment were withdrawn with the understanding that the discussion to which they gave rise should be entered in the minutes. Reservations were also made on the subject by the delegation of Sweden in the minutes of the following meeting. 1 Annex 10. * Annex 11. ARTICLE 14. Japanese and Cuban amendments 1 Article 14 relative to the information bureau for prisoners of war was the subject of two amendments filed by the delegations of Japan and Cuba, which were both adopted by the subcommission unanimously without discussion. The first inserts after the second sentence of the first paragraph the following words: The individual return shall be sent to the Government of the other belligerent after the conclusion of peace; the bureau must state in it the regimental number, name and surname, age, place of origin, rank, unit, date and place of capture, internment, wounding and death, as well as any observations of a special character. The second relates to prisoners released on parole, exchanged or escaped, and is inserted in the final clauses of the first and second paragraphs, which are thus made to read as follows: It is kept informed of internments and transfers, as well as of releases on parole, exchanges, escapes, admissions into hospital and deaths. It is likewise the function of the information bureau to receive and collect all objects of personal use, valuables, letters, etc., found on the field of battle or left by prisoners who have been released on parole, or exchanged, or who have escaped or died in hospitals or ambulances, and to forward them to those concerned. ARTICLE 17. Japanese amendment 2 The amendment proposed by the Japanese delegation was intended to replace Article 17 with the following text: The Government will grant, if necessary, to officers who are prisoners in its hands, a suitable pay, the amount to be refunded by their Government. This change was due to a desire to avoid the different interpretations which could be given to the text in force, and to the necessity of making more precise the definition of the term "full pay" in that text. The new wording, however, could permit a Government either to give nothing or to grant excessive pay; and it was therefore sent to the committee. [23] The committee, after acquainting themselves with the interpretations that the domestic regulations of different countries give to the phrase "full pay," found it indispensable to omit the words "if necessary" in order to make the article obligatory. It was also deemed necessary, for the sake of consistency, to take into account the corresponding article of the Geneva Convention of 1906, dealing with the salaries of the medical personnel when prisoners (Chapter III, Article 13), which secures to them the same pay and allowances from the captor as the latter gives to persons of the same grade in his own army. In consequence, the committee proposed to the subcommission the following formula: The Government will grant to officers who are prisoners in its hands the pay to which officers of the same rank of its army are entitled, the amount to be refunded by their Government. 'Annexes 10 and 5. 2 Annex 10. The Japanese delegation has not concurred in this text, but the subcommission adopted it unanimously with the exception of one vote. ARTICLES 22 and 44. The German proposition. The Austro-Hungarian, Netherland and Belgian amendments 1 1 The amendment offered by the German delegation, especially on account of the Austro-Hungarian amendment attached to it, gave rise to lengthy discussions in the subcommission and in the committee. The German delegation proposed to insert in Chapter I of Section II of the Regulations, between the 22d and 23d articles, a new article worded thus: NEW ARTICLE 22a It is forbidden to compel ressortissants of the hostile party to take part in the operations of war directed against their own country, even if they were enrolled in its service before the commencement of the war. The amendment asked by the delegation of Austria-Hungary consists in inserting after "to take part" the words "as combatants." The new German proposal was a development of the principle accepted in 1899, as regards the forced participation of the population of occupied territory in military operations against their country, by extending to all ressortissants the prohibition of which the Regulations did not give this population the benefit. It extended it even to foreign subjects who might have been in the service of the hostile party before the commencement of the war. It is on account of the general application of this article that the German delegation believed it incumbent upon it to propose its insertion in Section II of the Regulations, relating to the means of injuring the enemy, and the omission of the present Article 44 in Section III under the heading of "Military authority over the territory of the hostile State." The committee of examination, to which the amendment was sent after a debate in the subcommission, accepted the German text without objection, saving a slight correction of form at the end of the article, replacing "if they were enrolled in its service" by the wording "if they were in its serv ice. . . [24] The question of the place to be given to this new article was reserved for the drafting committee as being more especially within its competence. The German proposition had an extensive character; the Austro-Hungarian amendment had quite a different meaning; it permitted the compulsion of the population to render every assistance except actual fighting. Its aim was the employment of forced guides and the obligation of furnishing military information to the enemy. The delegation of Austria-Hungary, which had taken the initiative in this addition, desired to draw a clear distinction between “operations of war," properly so called, in which the population of the hostile State cannot be compelled to take part, and certain "military services" which, according to it, in certain cases, a belligerent should be free to impose on the inhabitants. It is on this subject that differences arose and led to lengthy debates both in the subcommission and in the committee. The Austro-Hungarian point of view was not shared by the majority. The 1 committee reported, on the contrary, a vote favoring in principle a Netherland amendment of an opposite tendency on the same subject. This amendment was worded thus: ARTICLE 44a It is forbidden to force the population of occupied territory to give information concerning their own army or the means of defense of their country. These two amendments came again before the subcommission simultaneously and general discussion was renewed. It entered a new phase following a proposal of the delegation of Russia suggesting acceptance of the German text of Article 22a, without the AustroHungarian addition, and placing it to itself in a new chapter under Section II. This proposal was made on condition that the old text of Article 44 be preserved, instead of being suppressed as the German delegation had proposed, or replaced by the new Article 44a as proposed by the Netherland delegation. This proposition was consented to by the German and Austro-Hungarian delegations. On the other hand, another attempt at agreement combined the German proposal 22a and the Netherland proposal 44a in a single text as follows: Replace Article 44 (whatever the place to which it may be assigned) and Article 44a proposed by the Netherland delegation by the following text: It is forbidden to force the inhabitants of occupied territory to take part personally either directly or indirectly, collectively or individually, in military operations against their country and to demand of them information in view of such operations. After a long discussion, this rendition, which was proposed by the Belgian delegation, was adopted by the subcommission by a majority of 3 votes (18 against 15). This small majority and a desire to reach a more complete agreement led the bureau to refer the question to the committee a second time. After a new examination, the question was raised whether it would not be best to testify to the almost unanimous agreement that had been reached on the German proposal by withdrawing the Belgian amendment that combined it with the Netherland amendment. As the delegation of Belgium did not object to this, the committee found two alternatives before it; on the one hand, the adoption pure and simple of Article 22a, with or without addition and suppression of the Article 44 now [25] in force; on the other, the adoption of the German and Netherland amendments as two distinct articles-22a and 44a. The latter solution has appeared the better, with two changes in wording, to wit: against their country" in place of "against their own country," in Article 22a, and "the inhabitants" in place of "the population" in Article 44a, which would then read: “It is forbidden to force the inhabitants of occupied territory to furnish information about the hostile army or its means of defense." As to the place for these two articles in the Regulations, the committee thought that Article 22a might be placed in Article 23 as a last paragraph; but that it was for the drafting committee to decide that point. Before closing the discussion relative to these two articles the President recalled that the divergent opinions might be expressed again in the plenary session of the Commission at the time of the definitive vote. ARTICLE 23. German amendment.1 The German delegation has proposed to add to Article 23, as now in force, a new paragraph thus worded: (It is especially forbidden) " to declare abolished, suspended, or inadmissible the private claims of the ressortissants of the hostile party." This addition was considered as defining in very felicitous terms one of the consequences of the principles admitted in 1899. It was approved unanimously, with a slight change in the text by inserting the words "in a court of law" after the word "inadmissible." The subcommission did not admit a subsidiary Russian proposition permitting in certain cases, during war, the seizure of credits or documents belonging to the enemy which might enable him to continue hostilities. ARTICLE 27. Greek amendment. In order to bring the recommendations of the Second Commission into harmony with those of the Third Commission relating to naval bombardments, the delegation of Greece took the initiative in proposing the inclusion in Article 27 of "historic monuments" in the list of buildings that should be spared as far as possible in case of bombardment. This amendment was carried unanimously. ARTICLE 35. Netherland amendment 2 The delegation of the Netherlands had proposed to add to Article 35 a new paragraph worded as follows: The capitulation to the enemy of an armed force is not obligatory for the detachments of that armed force which are separated from it by such a distance that they have preserved a liberty of action sufficient to continue the struggle independently of the main body. This amendment was withdrawn in the first meeting of the committee. It was recognized that this was for each State and in each case a question of internal regulation. [26] ARTICLE 45a. Netherland amendment 3 There was withdrawn also after discussion, as superfluous, another Netherland amendment to follow Article 45 by a new article worded as follows: It is forbidden to punish an inhabitant of an occupied territory by death without a sentence of a war council. This sentence must be sanctioned before it is executed by the commander in chief of the army. The committee believes that this new text might be considered as restrictive of the principles admitted in 1899, according to which the lives of the inhabitants must always be respected, and non-belligerents are guaranteed against all abuse by other more extensive provisions. |