ARTICLE 46. Austro-Hungarian amendment1 The committee considered also as possibly reacting against the rules established in 1899 the amendment relative to Article 45 proposed by the delegation of Austria-Hungary. Its intent was to precede the clause relative to the respect for private property by the words "in principle." This addition did not tend in any way, in the opinion of its authors, to invalidate the intent of the present text, but simply to place its construction in harmony with the restrictions contained in other articles and notably in Article 53. The proposition was nevertheless withdrawn. ARTICLE 52. Russian amendment 2 During the fourth meeting of the subcommission, his Excellency Mr. TCHARYKOW proposed to complete Article 52 by a provision that commanders of military forces, when in occupied territory, should be authorized to provide, as soon as possible during the continuance of hostilities, for the redemption of receipts given for contributions in kind called for by the needs of the army of occupation. This new proposal was sent to the committee, where it was recognized as being within the spirit of Article 52. After a short discussion with a view to avoid the term "redemption," agreement was reached on the following text to become the last paragraph of Article 52: 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. ARTICLE 53. Austro-Hungarian amendment and Russian subamendment 3 The delegation of Austria-Hungary proposed to complete the provisions of Article 53 relative to the seizure of means of transportation and communication by adding the words "on land, at sea, and in the air." The wording proposed was as follows: Railway plant, telegraphs, steamships and other vessels, vehicles of all [27] kinds, in a word, all means of communication 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 of war, 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. The delegation of Russia asked, besides, to add to the enumeration in this text the words "as well as teams, saddle animals, draft and pack animals" after the words "vehicles of all kinds." This addition was suggested as being analogous with Articles 14 and 17 of the new Geneva Convention of 1906, which mentions teams at the same time as vehicles. The delegation of Austria-Hungary accepted this amendment. While fully appreciating the need of defining as precisely as possible the scope of the text, the committee thought that such a nomenclature might cause Annex 7. Annex 15. Annexes 7 and 8. inconvenience, as any enumeration is unsafe because incomplete. It was believed preferable to adopt a general formula not lending itself to any ambiguity, and thus worded: "All means of communication and of transport." The military delegate of Russia himself agreed with this way of looking at the matter, on condition that the text as proposed could not have a restricted meaning, and it was approved unanimously. The second paragraph of Article 53 would commence then with the words: All means of communication and of transport operated on land, at sea and in the air, etc. At this point the military delegate of Japan referred to the reservations which had been stated by his delegation in the subcommission concerning the addition of the words "at sea," as such a provision appeared to him to trench upon the program of the Fourth Commission. However, the committee considered it advisable to retain them, as the right of maritime capture is applicable in land warfare in the case of ships seized in a port by a body of troops, especially as regards those destined for river navigation. The amendment relating to Article 53 led the senior delegate of Switzerland to inquire whether its provisions can be taken to apply to the property of neutral persons domiciled in belligerent territory. The committee was of the opinion that this question was included in the program of the second subcommission; it was already occupied with a German proposal regarding the treatment of neutral persons,1 and the first subcommission. had sent to it all the matters relative to neutrals comprised in the fourth section of the Regulations (Articles 57 to 60), as not being properly placed in instructions intended for troops. ARTICLE 53. Danish amendment 2 A second amendment relating to the same article, and moved by the delegation of Denmark, proposed to insert at the end of the 1899 text the following provisions: 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. When this amendment first came up for discussion, the delegation of Great Britain asked for an adjournment of its discussion, but at a later session disclaimed having any objection to its adoption. It was then carried without any opposition. [28] To the amendments proposed to the Regulations of 1899, within the scope of the program of the first subcommission, there was added a new proposition by the German delegation: 3 INDEMNIFICATION FOR VIOLATION OF THE HAGUE REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND A belligerent party which shall violate the provisions of these Regulations to the prejudice of neutral persons shall be liable to indemnify those 1 Annex 36. 2 Annex 12. a Annex 13. persons for the wrong done them. It shall be responsible for all acts com- ARTICLE 2 In case of violation to the prejudice of the hostile party, the question of indemnity will be settled at the conclusion of peace. This interesting proposition was calculated to give a sanction to the requirements laid down by the First Peace Conference, which it is the duty of the second commission to complete and make precise. As the provisions of the Regulations respecting the laws and customs of war must be observed not only by the commanders of belligerent armies, but, in general, by all officers, commissioned and non-commissioned, and soldiers, the German delegation thought it well to propose that the Convention should extend to the law of nations, in all cases of infraction of the Regulations, the principle of private law according to which the master is responsible for his subordinates or agents. The principle of the German proposition did not meet with objection. But a discussion occurred on the subject of the distinction it made between the populations of belligerent States and those of neutral States. In both cases, it was said, there is a violation of rights and, at least as a rule, the reparation should be the same. Now, with respect to the former, the text proposed limits itself to saying that the "questions" concerning them must be settled when peace is arranged; therefore, no right is recognized in them. The military delegate of Germany declared that he by no means intended to make any difference in legal right between "neutral persons" and "persons of the hostile party," the text proposed having no other purpose than to regulate the method of paying the indemnities. There had therefore been a misunderstanding. The committee came to the conclusion that it was best to retain only the first part of the proposition and to give it the following form: 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.1 The commission will enact in this regard in plenary session, and the new wording decided upon will be revised by the General Drafting Committee. Before the closing of the discussion relative to the regulations of the laws and customs of war, his Excellency Lieutenant General Jonkheer DEN [29] BEER POORTUGAEL Legged to remark that the Netherland delegation had had the intention of proposing an addition to Article 5 to the effect that prisoners of war cannot be put to death: 1. Except in case of resistance or attempt to escape. 2. Except after a sentence for crimes or acts punishable by death in virtue of the civil or military laws of the country that has made them prisoners. This amendment was abandoned because the prohibition which it had in view 1 Annex 16. was already contained in Article 4, the second paragraph of which required that 'prisoners of war must be humanely treated." The last meeting of the first subcommission was devoted to the second question contained on its program. DECLARATION OF 1899. RENEWAL OF THE DECLARATION ON This declaration, which was made only for a period of five years, having expired, the delegation of Belgium, which undertook to move its readoption 1 stated it in the same terms as in 1899: 1 The contracting Powers agree, for a term of five years, to forbid the throwing of projectiles and explosives from balloons or by other new methods of similar nature. The present Declaration is only binding on the contracting Powers in case of war between two or more of them. It shall cease to be binding from the time when, in a war between the contracting Powers, one of the belligerents is joined by a non-contracting Power. Non-signatory Powers may adhere to the present Declaration. For this purpose they must make their adhesion known to the contracting Powers by means of a written notification addressed to the Netherland Government, and by it communicated to all the other contracting Powers. In the event of one of the high contracting Parties denouncing the present Declaration, such denunciation shall not take effect until a year after the notification made in writing to the Netherland Government, and by it forthwith communicated to all the other contracting Powers. This denunciation shall have effect only in regard to the notifying Power. Besides, the subcommission had before it two subsidiary amendments proposed by the delegations of Russia and Italy in case the main proposition should not be adopted. The Russian amendment was to replace the general and temporary prohibition formulated in the above text by a certain number of permanent restrictions, prohibiting the throwing of projectiles or explosives from balloons against undefended towns, villages, houses or buildings. That prohibition, as it relates to means of injuring the enemy, would properly be inserted where these matters are dealt with in the first chapter of the second section of the Regulations of 1899, and it would suffice to complete Article 25 by wording it as follows: It is forbidden to attack or bombard, by artillery or by throwing pro[30] jectiles or explosives from balloons or by the aid of other new methods of a similar nature, towns, villages, dwellings or buildings that are not defended and do not contain establishments or depots that can be utilized by the enemy for purposes of the war. The amendment proposed by the Italian delegation was to the same effect as the Russian, and its provisions were intended to be permanent, whereas the main proposition carried a time limit of five years. It further required that a 1 1 Annex 18. balloon, if employed in operations of war, must be dirigible and manned by a military crew. It was thus worded: 1 It is forbidden to throw projectiles and explosives from balloons that are not dirigible and manned by a military crew. 2 Bombardment by military balloons is subject to the same restrictions. accepted for land and sea warfare, in so far as this is compatible with the new method of fighting. The discussion first centered on the text proposed by the delegation of Belgium. The delegations of Austria-Hungary, China, Great Britain, Greece, Portugal and Turkey declared themselves in favor of it, while the French delegation felt obliged to withhold its support. This delegation said that in its opinion the humanitarian provisions advocated by the Belgian delegation were already contained in Articles 25 and 27 of the Regulations of 1899 on the laws and customs of war on land, which forbid "to attack or bombard towns, villages, dwellings or buildings that are not defended" and require that in sieges and bombardments all necessary steps must be taken to spare as far as possible the localities and edifices that it is particularly desired to protect. It is because of the essential idea that it is necessary above all to assure their protection, without having any question as to the mode of discharging projectiles enter into the matter, that the French delegation thought it could not support a renewal of the Declaration of 1899. The Belgian proposal was carried by 29 votes, 2 of these being conditional on unanimity, to 6; 10 countries not being represented. On the request of the delegation of Italy, its subsidiary amendment, which was supported by the Russian delegation, was also put to vote under reserve of the vote already taken. On account of the distinct character of its two articles, the German delegation asked that they be separated, observing, as regards the first, that it was possible to throw projectiles from non-dirigible balloons, and further, that there was no connection between the power to direct balloons and that of throwing projectiles from them. The first article of the Italian amendment was carried by 21 votes to 8, with 6 abstentions. After this vote, a remark was made with a view to establish that it was not to be taken as filling a gap in the old Article 25, as the prohibitions already contained in that article apply generally to throwing projectiles in any manner whatever against undefended towns, villages, etc. After an exchange of views on this subject, it was recognized that the second provision related to Article 25 and that it should be inserted there, while the main declaration should be preserved in the form in which it was voted. [31] Article 2 of the Italian amendment was then put to vote and carried by 31 votes to 1, with 3 not voting. The Convention of 1899 and the Regulations with respect to the laws and customs of war on land were also supplemented by two other Declarations-one prohibiting "the use of bullets which expand or flatten easily in the human body," and the other "the use of projectiles that have for their sole object the diffusion of asphyxiating or deleterious gases." |