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WAR AND THE LAW OF NATIONS IN THE TWENTIETH CENTURY
IN THE TWENTIETH CENTURY 13
International law, therefore, did not fail in foresight here.
To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war. (Art. 23, g)
The same idea constantly recurs, because it is essential: to wit, even in war we must not return evil for evil.
As to treacherous methods, it is forbidden
To kill or wound treacherously individuals belonging to the hostile nation or army. (Art. 23, b)
To make improper use of a flag of truce, of the national flag, or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention. (Art. 23, f)
Everything that involves the breaking of one's word constitutes treachery, which is forbidden, as distinct from ruses of war, which are considered legitimate. (Art. 24).
Perhaps the most delicate matters to regulate are the relations between belligerents and the civil population. They were long left to the will of the victor, and the worst outrages were committed with respect to persons and property. Jean Jacques Rousseau had indeed declared that war was a relation between State and State, and that private persons should, as far as possible, be protected from hostilities. It was a long time before this philosophic conception accomplished practical results. The Hague Regulations take this conception into consideration by means of provisions which would greatly mitigate the evils of war if faithfully observed:
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. (Art. 45)
The fact that a territory is occupied is not in itself sufficient to destroy the sovereignty of the invaded State, and therefore release the inhabitants from their allegiance to their lawful sovereign.
Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.
Private property cannot be confiscated. (Art. 46)
The Powers represented at the Peace Conferences were anxious to proclaim emphatically that private property should be respected in land warfare. Moreover, they were not afraid to repeat themselves. Aside from the last provision, which contemplates above all enemy authority, they declared themselves on the subject of pillage, which is rather the act of individuals:
Pillage is formally forbidden. (Art. 47)
The pillage of a town or place, even when taken by assault, is prohibited. (Art. 28)
(It is forbidden] To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. (Art. 23, b)
The property of the enemy State naturally cannot enjoy the same immunity. This does not, however, mean that all the movable property of the State may be validly seized. Article 53 of the Regulations specifies the right of the belligerent in this respect:
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations. (Art. 53, para. 1)
In this connection we must further call attention to Article 56, which is of particular interest at the present time:
The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings. (Art. 56)
Unfortunately I can only repeat from memory a provision adopted by a large majority of the Conference of 1907, which equity would seem to demand, but which Germany and Austria-Hungary did not support. It is the provision of Article 44, which forbids a belligerent "to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense.”
The military authorities are not always able to procure amicably what is required for the army. They resort to measures of constraint, which are called requisitions, and which are employed in national as well as in enemy territory. The Hague Regulations provide only for the latter, and this is how it tried to curb the exactions of the occupying Power:
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 inhabitants in the obligation of taking part in military operations against their own country.
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; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible. (Art. 52)
In the matter of pecuniary contributions, which have given rise to so many abuses and which in the past were considered as taking the place of pillage, there was likewise an effort to reduce them to an acceptable degree:
If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question. (Art. 49)
The object, therefore, of the provision is to do away with contributions whose purpose is to enrich the occupying Power or to bring pressure to bear upon the inhabitants.
Finally, the Regulations have in view another abuse, which has frequently given rise to the worst kind of outrages. A belligerent has often held municipalities responsible for real or alleged acts committed by individuals, on the ground that the acts had taken place in their territory, or that those guilty of them were natives of these municipalities. As a result of this responsibility, excessive pecuniary contributions have been exacted as fines, and there have even been summary executions of a certain number of inhabitants. This responsibility was especially revolting when the acts had been committed by soldiers of the regular army. It seemed as if the municipalities were expected to protect the enemy of their country against their own nationals. Article 50 was drawn up in such a way as to condemn abuses of this kind and to prevent their recurrence, if honorable enemies keep their word as given at The Hague:
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.
I have thus concluded my review of the prescriptions relating to the conduct of war, which I desired to submit to you.
These texts are impressive by their terseness, because they are based, not upon pure speculations, as is often the case with legal texts, but upon facts, too real, too present, and so terrible that they are unbelievable; and the most conclusive evidence is necessary to convince us of their truth. It is not without a profound feeling of sadness that I have gathered together texts, in the elaboration of which I had the honor to take part, and which recall so many eminent men who felt convinced, as I did, that we had caused civilization to take a real step forward. Our disappointment is too cruel. While we expected and had reason to expect individual violations, no one dreamed of a general and systematic disregard of all the rules solemnly adopted. That is the serious fact from which perhaps there will be occasion later on to draw conclusions.
INTERNATIONAL LAW AS APPLIED BY ENGLAND IN THE
I. MARITIME CAPTURE
International law is at once on its trial and in the moulding as it has never been before. It is just a hundred years since the last world-wide war was fought; and to that period one must go back to trace the source of the principal rules and practices of the law of war, and especially of maritime warfare. In the interval, the form of international law and much of its substance have been entirely changed. From indefinite practice and varying usage, imperfectly systematized by text writers, it has passed into the condition of definite rules and uniform law, formulated by international conventions. But most of this definite law has not yet stood the test of practice. So far as the rules of maritime warfare are concerned, it is largely consolidated in conventions made at international conferences during the last seven years. These conventions have indeed been already applied in the war of Italy and the Balkan Powers against Turkey, but they were not searchingly tried in those contests, which were determined by land operations. Strictly, the conventions are not binding in this war, because they are intended to apply only in wars in which all the belligerents are parties, and Servia and Montenegro have not ratified any of the 1907 agreements; but, in fact, the great Powers are professing to act according to the international legislation.
The substance of the law was less changed by the Hague conventions than by the Declaration made at Paris in 1856 by the signatories of peace at the end of the Crimean War, which has become an integral part of the jus gentium. The four rules of the Declaration abolish privateering, protect neutral goods in enemy vessels and enemy goods in neutral vessels, not being contraband of war, and require blockades to be effective. They are an attempt toward applying to maritime warfare the French Revolution theory of war, that it is a struggle between