the Laws war are to be traced back to practices of belligerents Origin of which arose, and grew gradually, during the latter part of War. of the Middle Ages. The unsparing cruelty of the war practices during the greater part of the Middle Ages began gradually to be modified through the influence of Christianity and chivalry; and although these practices were cruel enough during the fifteenth, sixteenth, and seventeenth centuries, they were mild compared with those of still earlier times. Decided progress was made during the eighteenth century, and again after the close of the Napoleonic wars, especially in the years from 1850 to the outbreak of the World War. The laws of war evolved in this way: isolated milder practices by and by became usages, so-called usus in bello, manner of warfare, Kriegs-Manier, and these usages through custom and treaties turned into legal rules. And this evolution is constantly going on, for, besides the recognised laws of war, there are usages in existence, which have a tendency to become gradually legal rules of warfare. The whole growth of the laws and usages of war is determined by three principles. There is, first, the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realisation of the purpose of war-namely, the overpowering of the opponent. There is, secondly, the principle of humanity at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to a belligerent. And, thirdly and lastly, there is at work the principle of chivalry, which arose in the Middle Ages, and introduced a certain amount of fairness in offence and defence, and a certain mutual respect. And, in contradistinction to the savage cruelty of former times, belligerents in the era preceding the World War reached the conviction that the realisation of the purpose of war was in no way The most Develop hampered by indulgence shown to the wounded, to prisoners, and to private individuals who do not take part in the fighting. Thus the influence of the principle of humanity has been enormous upon the practice of warfare, and its methods, although by the nature of war to a certain degree cruel and unsparing, became less cruel and more humane. But the evolution of the laws and usages of war could not have taken place at all, but for the institution of standing armies, which dates from the fifteenth century. The humanising of the practices of war would have been impossible without the discipline of standing armies; and without them the important distinction between members of armed forces 1 and private individuals could not have arisen. But there is no doubt-the World War has made it obvious that this distinction, and also the moderating influences of chivalry and humanity, again threaten to disappear. Conscription, with its consequences that wars are fought by whole nations in arms, and war passions infect all belligerent subjects, threatens to overthrow the barriers against excesses which the professional soldiery of the eighteenth and nineteenth centuries, and the Hague Peace Conferences of 1899 and 1907, attempted to erect. § 68. The most important developments of the laws important of war took place through the following general treaments of ties concluded between the majority of States after 1850: the Laws of War. (1) The Declaration of Paris of April 16, 1856, respecting warfare on sea. It abolished privateering, recognised the principles that the neutral flag covers enemy goods, and that neutral goods under an enemy flag cannot be seized, and enacted the rule that a blockade in order to be binding, must be effective. The declara1 See above, § 57. tion was signed by seven States, but almost all other maritime Powers acceded in course of time.1 (2) The Geneva Convention of August 22, 1864, for the amelioration of the condition of wounded soldiers in armies in the field, which was originally signed by only nine States, but to which in course of time almost all the civilised States acceded. A treaty containing a number of additional articles to the convention was signed at Geneva on October 20, 1868, but was never ratified. A new Geneva Convention was signed on July 6, 1906, by thirty-five States, and several others acceded. Its principles were adapted to maritime warfare by conventions 2 of the First and Second Hague Peace Conferences. (3) The Declaration of St. Petersburg of December 11, 1868, respecting the prohibition of the use in war of projectiles under 400 grammes (14 ounces) which are either explosive, or charged with inflammable substances. It was signed by seventeen States. (4) The convention enacting regulations respecting the Laws of War on Land agreed upon at the First Peace Conference of 1899. The history of this convention may be traced back to the Instructions for the Government of Armies of the United States in the Field which the United States published on April 24, 1863, during the War of Secession. These instructions, which were drafted by Professor Francis Lieber,3 of the Columbia College of New York, represented the first endeavour to codify the laws of war, and they are even nowadays of great value and importance. In 1874 an international conference, invited by the Emperor Alexander II. of Russia, met at Brussels to discuss a draft code of the Laws of War 1 See above, vol. i. § 47, and Garner, i. § 11. 2 See below, § 204. 3 See Root in A.J., vii. (1913), pp. 453-469. 6 on Land prepared by Russia. The body of the articles agreed upon at this conference, and known as the Brussels Declarations,' have, however, never become law, as ratification was never given by the Powers. But they were made the basis of deliberations on the part of the Institute of International Law, which at its meeting at Oxford in 1880 adopted a Manual1 of the Laws of War consisting of a body of eighty-six rules under the title, Les Lois de la Guerre sur Terre, and a copy of this draft code was sent to all the Governments of Europe and America. It was, however, not until the Hague Peace Conference of 1899 that the Powers reassembled to discuss again the codification of the laws of war. At this conference the Brussels Declarations were taken as the basis of the deliberations; but although the bulk of its articles were taken over, several important modifications were introduced in the convention, which was finally agreed upon and ratified, only a few Powers abstaining from ratification. The Second Peace Conference of 1907 revised this convention, and its place is now taken by Convention IV. of the Second Peace Conference. Convention IV.,2 as the preamble expressly states, does not aim at giving 1 See Annuaire, v. pp. 157-174. For brevity Convention IV. will be referred to in the following pages as the Hague Regulations. These Regulations, although they are intended to be binding upon the belligerents, are only the basis upon which the signatory Powers have to frame instructions for their forces. Article 1 declares: 'The High Contracting Parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land annexed to the present Convention.' The British War Office, therefore, published in 1912 a guide, Land Warfare: an Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty's Army, written by order of the Secretary of State for War by Colonel Edmonds and Professor Oppenheim. In it the Hague Regulations are systematically set out, and their full text is published in an Appendix. This guide was in 1914 embodied in a new edition of the official Manual of Military Law. The British War Office had already in 1903 published a manual, drafted with great precision and clearness by Professor Holland, for the information of the British forces, comprising 'The Laws and Customs of War on Land, as defined by the Hague Convention of 1899.' See also Holland, The Laws of War on Land (Written and Unwritten) (1908). Germany had in 1902 issued for the guidance of officers Kriegsbrauch im Landkriege. Be a complete code of the laws of war on land, and cases beyond its scope still remain the subject of customary rules and usages. Further, it does not create universal International Law, as Article 2 of the convention expressly stipulates that the Regulations shall be binding upon the contracting Powers only in case of war between two or more of them, and shall cease to be binding in case a non-contracting Power takes part in the war. But, in spite of this express stipulation, there can be no doubt that in time the Regulations will become universal International Law, since all the Powers represented at the Second Peace Conference signed the convention except three, although some States made certain reservations.1 (5) The declaration concerning expanding (dumdum) bullets.2 (6) The declaration concerning projectiles and explosives launched from balloons.3 (7) The declaration concerning projectiles diffusing asphyxiating or deleterious gases.4 5 (8) The convention for the adaptation to sea warfare of the principles of the Geneva Convention, produced by the First and revised by the Second Peace Conference." (9) The Hague Convention of 1907 concerning the opening of hostilities. (10) The Hague Convention of 1907 concerning the fore the outbreak of the World War many other States had issued manuals: e.g. the French Les Lois de la Guerre Continentale (4th ed. 1913), and the United States Rules of Land Warfare (1914). See details in Garner, i. §§ 3-6. 1 This was the author's opinion before the World War. But when it came, this convention had not been ratified by all the belligerents, and its binding force was controversial. Garner, i. §§ 16-18, collects the material, and concludes that the corresponding convention of 1899, which had been so ratified, was 2 See below, § 112. |