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WAR AND THE LAW OF NATIONS IN THE TWENTIETH
Gentlemen: The address that I am to make, in response to the gracious invitation of our eminent President, on this too burning and too present subject, will be a very simple and a very modest endeavor. Do not expect a doctrinal study, an exposition, or a critical appreciation of the conduct of the belligerents in the struggle that is being so desperately waged on both sides. The time has not yet come to pass reasoned judgment upon the acts which have been committed by certain belligerents and which are of such a nature as to humiliate us as men and to distress us as Frenchmen. I am speaking here in the name of the Institute as a whole. In addition, the Academy of Moral and Political Sciences, which is particularly well qualified in such matters by reason of the nature of its studies, has expressly commissioned me, as one of its members, to lay before you its protest against these abominable acts. Can it be possible that mankind, whom we have considered civilized through the efforts of many centuries, has come to such a pass? I do not wish to say anything of a polemical nature, which is not in keeping in this place and at this time. I wish to confine myself to statements of a purely legal character. The brevity of the exposition may incline you to excuse its dryness.
War is a series of acts of violence by means of which each belligerent endeavors to subject the other to his will. It is to be noted, moreover, that material force is not alone involved in the struggle; moral and intellectual energy and the spirit of devotion in non-combatants also come into play. The entire nation must in various ways take part in the struggle and exert its influence upon the result.
Are belligerents, when committing acts of violence, subject to laws, and are there legal rules to be observed? For the present purpose it is
1 Translated by George D. Gregory from the French original delivered at a meeting of the Institute of France, October 26, 1914, and published in the Journal Officiel of November 2, 1914.
sufficient to state that such rules exist in fact, without trying to discover their scientific foundation. I merely wish to say that the fact that we are more irritated by an act which we consider unjust and which we do not hesitate to call a crime, than by a normal act of war, even though the latter brings serious consequences in its train for persons and property, proves that we are conscious of the existence of veritable law between peoples, in spite of the violent struggle in which they are engaged. The summary execution of an unoffending citizen by a belligerent moves us more than the death of hundreds of soldiers in a regular engagement. This does honor to human nature.
Little by little a customary law of war has been formed,—that is to say, a series of practices, of rules tacitly accepted by the world in general, constituting rights and obligations for belligerents. Various governments undertook to adopt a certain number of these rules by incorporating them in their military regulations. The provisions were generally few and rather short, because the traditional spirit of professional armies was counted on to complete them. That, however, was not sufficient for improvised armies, which, lacking traditions, needed precise and detailed rules. Without this observation, it would not be understood why it is that we owe the initiative in the drawing up of detailed regulations for guidance in warfare to a country which, though non-military, suddenly found itself engaged in a great war. The Instructions of 1863 for the Armies of the United States in the Field, notwithstanding the just criticisms which may be made with regard to their form and substance, have rendered a great service, by showing that it was possible to subject the conduct of armies to precise rules. But it must be noted that these instructions were issued by a single government, that they bound its armies alone, and that they could, moreover, be modified at any time by the government that promulgated them. If their provisions were disregarded by those to whom they were addressed, the offenders were accountable only to their superiors, and, in the last analysis, to the American Government. There was no international obligation with respect to the other belligerent.
For more than forty years the efforts of the governments, aided by public opinion and by the action of jurists and of learned societies, have been directed toward the establishment of precise rules of a conven