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V

FURTHER CODIFICATION OF THE LAW AND
CUSTOMS OF WAR GENERALLY

THE Convention on the Laws and Customs of War states in the Preamble that the object of the Contracting Powers had been to revise and give precision to the existing laws and customs of war; that it had not been possible to deal with all the matters which arise in practice; and that "until a more complete code of such laws and customs had been adopted," the rules followed among civilised nations would continue to be applied by the signatories.

The Russian Government, in the invitation to the second. Hague Conference, includes among the matters which come under the designation of "law and customs of war," rules relating to declarations of war, the subjects of the "declarations " adopted in 1899 on the launching of projectiles and explosives from balloons, the use of projectiles for diffusing asphyxiating or deleterious gases, and of dum-dum bullets, the bombardment of towns, etc., floating mines, and transformation of commercial into war ships.

As regards the bombardment of open towns, Article XXV of The Hague Regulations respecting the Laws and Customs of War prohibits the "attack or bombardment of towns, villages, habitations, or buildings which are not defended." The Conference also adopted a vau2 that "the proposal to settle the question of the bombardment of ports, towns, and villages by a naval force may be referred to a subsequent Conference for consideration." The British delegates abstained from voting for it on the ground that the British Government on a previous occasion (Brussels Conference of 1874) had made the exclusion of naval questions a condition of their taking part in an International Conference; they added that this abstention was not to be construed as in any way touching the merits of the question.

The bombardment of open towns by naval forces was considered by the Institute of International Law at the Cambridge meeting in 1895, and at that at Venice in 1896. At the latter session a number of rules were adopted which might very well serve as a basis for discussion. They were as follows:

Art. I.-There is no difference between the rules of war applying to bombardment by military forces on land and those applicable to bombardment by naval forces.

Art. II. Consequently the general principles set out in Article XXXII.

1 See pp 1 and 6 et seq.

2 See p. 254.

of the Manual of the Institute-i.e. it is forbidden (a) to destroy public or private property, if such destruction is not commanded by the imperative necessity of war; (b) to attack and bombard localities which are not defended, apply also to naval forces.

Art. III. The rules set out in Articles XXXIII, and XXXIV.2 of the Manual are equally applicable to naval bombardments.

Art. IV. In virtue of the foregoing principles, the bombardment by a naval force of an open town, i.e., one not defended by fortifications or other means of attack or of resistance for immediate defence, or by detached forts situated in proximity to it, for example, at the maximum distance of from 4 to 10 kilometres, is inadmissible, except in the following cases: (1) In order to obtain by means of requisitions or of contributions what is necessary for the fleet. Nevertheless, such requisitions and contributions must remain within the bounds prescribed by Articles LVI. and LVIII.3 of the Manual of the Institute. (2) In order to destroy dockyards, military establishments, depôts of munitions of war, or vessels of war found in a port.-Moreover, an open town which is defended against the entrance of troops or of disembarked marines may be bombarded in order to protect the landing of soldiers and of marines if the open town attempts to prevent it, and as an auxiliary measure of war in order to facilitate an assault made by the troops and disembarked marines, if the town defends itself.-Bombardments whose sole object is to exact a ransom, and, with greater reason, those destined only to induce the submission of the country by the destruction, without other motive, of peaceable inhabitants or their property, are specially forbidden.

Art. V. An open town shall not be exposed to bombardment by the sole fact: (1) That it is the capital of a State or the seat of government (but, naturally, these circumstances give it no guarantee against bombardment; (2) that it is being occupied by troops, or that it is usually garrisoned by troops of various arms, intended to join the army in time of war.

Of the other matters referred to by the Russian Government, Declarations of War, Floating Mines," and the Transformation of Merchant into War ships alone are specially discussed in this volume, the rest involving technical questions beyond the range of law and diplomacy.

In connection with the Convention for the adaptation to Maritime War of the principles of the Geneva Convention of August 22, 1864, the following vau was adopted by The Hague Conference (1899):

The Conference, taking into consideration the preliminary steps taken by the Government of the Swiss Confederation for the revision of the Geneva Convention, expresses the wish that a special conference should be held shortly for the purpose of revising the said Convention.

This Conference was held at Geneva in July 1906, when a full revised Convention was adopted which now takes the place of that of 1864. The full text of it will be found among the Appendices.8

Another International Conference held in December 1904 dealt with the status of Hospital Ships in time of war.9 Great Britain did not take part in this Conference. Her abstention, however, was not owing to any objection of principle, but purely to considerations of domestic legislation which are explained in a special note on the work of the Conference.10

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8 See text, p. 261. The Swiss Government deserves all praise for the persistency of its endeavours to bring about the revision of the Geneva Convention of 1864 in the face of a most discouraging indifference on the part of most other States.

Very soon after its adoption it was thought desirable to revise and complete it. And after the war of 1866 a diplomatic conference was held at Geneva (October 5, 1868) for this purpose. This Conference resulted in a project of fourteen additional articles, five of which related to war on land and nine to naval warfare. The additional articles were not, however, ratified by all States, and never became operative. The International Conference of 1874 at Brussels for the codification of the law and customs of war took up the Geneva Convention and again drew up a number of articles which were submitted to the interested Governments. But as in the case of the additional articles of 1868, no effect was ever given

to them.

At length in deference to the above vau the Swiss Government in 1901 sounded the different Governments as to whether the time had now come to call a special conference; but the replies received from some of the Governments not giving much encouragement, the matter was dropped for the time being. By a circular note of February 17, 1903, however, the Swiss Government invited all the States participating in the Geneva Convention to each send a representative to a Conference to be held at Geneva on September 14, 1903Some Governments not having accepted the invitation in time, the Conference was postponed, but at the beginning of 1904, there being no apparent obstacle, the Swiss Government again invited the Signatory States of the Geneva Convention to send delegates to a Conference to be opened on May 16, 1604. The war which shortly afterwards broke out between Russia and Japan entailed still again an adjournment. In March 10, 1506, a fresh invitation for June 11 was sent out.

Out of the forty-one Governments interested, thirty-five accepted and six States (Turkey, Salvador, Bolivia, Venezuela, Nicaragua, and Columbia) abstained. But this time the Conference did at length take place.

9 See text of the Convention, p. 257.

10 See p. 198.

VI

DECLARATIONS OF WAR

"AN ardent controversy has grown out of the recent war on the question of declarations of war, and accusations, if not of perfidiousness, at any rate of irregularities contrary to international law, have been formulated against one of the belligerents. These accusations have been made not only by its adversary, but also by jurists belonging to nations having no interest in the quarrel. The accused has found numerous and vigorous defenders, and has also defended itself through the medium of its own leading jurists."

These are the opening words of an interesting report on the subject of declarations of war, drawn up by Professor Albéric Rolin, of Ghent, President of the Institute of International Law. Professor Rolin, after fortifying himself with the opinions of a number of the leading jurists of Europe, submitted to the Institute of International Law the following principles as a basis. of discussion:

(1) It is in accordance with the duty of loyalty among nations in their relations with each other and in their common interest, that hostilities should not be commenced without clear and precise notice beforehand.

(2) This notice may take the form of an express declaration of war, either pure and simple, or be conditional in the form of an ultimatum duly notified to the adversary.

(3) The declaration of war should also be notified without delay to neutral States for their information and guidance.

(4) Hostilities should not begin till after expiry of a certain time, running from the date on which the notification of the declaration of war reached the Government of the State to which it is addressed.

(5) The time should be seven days for war on land and a fortnight for maritime war.

These principles, from an ethical point of view, may be valuable as an expression of what is desirable. It is not, however, probable that any States would agree to their adoption.

Professor Rolin, while admitting that in the present state of international law an express declaration of war is not necessary, adds that in default of such an express declaration "there must be some equivalent act clearly indicating the intention to open hostilities." This as well as the assertion in the first clause of the above rules, that it is in the common interest that notice should be made compulsory, seems to be controverted by the practice of a century.

Some years ago, in connection with the project of constructing a tunnel under the British Channel, Lieutenant-Colonel (now Major-General) J. F. Maurice was instructed by the AdjutantGeneral to draw up a paper on "cases in which hostilities had occurred between civilised Powers prior to declaration or warning of war." The results of the inquiry, which were published in 1883 as an official book, entitled "Hostilities without Declaration of War," showed that there was no established usage on the subject, and that during 171 years (from 1700 to 1870 inclusive), less than ten cases had occurred in which an actual declaration of war, prior to hostilities, had been given.

Historians sometimes use the expression

war was declared "

as a convenient mode of stating the fact that war was commenced. In cases cited by Colonel Maurice some specific act, such as the crossing of the Ticino, the refusal of a governor of a fortress to allow it to be approached, the violation of territory, a neutral Power permitting troops to pass through its territory, etc. etc., has been treated by historians as a "declaration of war." 1

1 Maurice, Hostilities, etc., p. 9.

That most wars in modern times had been commenced without any declaration would, of course, not be material to the issue, if the existing practice involved a cruelty as glaring, say, as the use of floating mines to blow up unsuspecting vessels outside the notified area of blockade. As a fact, however, all the more important recent wars, except the Russo-Japanese war, have been preceded by deliberate notice, namely, the Franco-German, in which the French Government handed through its Chargé d'Affaires a formal declaration to the Prussian Foreign Minister,3 -that of 1877, when the Russian Government handed a similar declaration to the Turkish Chargé d'Affaires at St. Petersburg, and the Hispano-American and Anglo-Boer wars which were preceded by ultimatums.*

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3 According to the late M. Rolin-Jaequemyns, France renewed a usage which seemed to have been abandoned in making a declaration of war (Rev. au droit internat., 1885).

4 An ultimatum setting out conditions, compliance with which is required within a specified time, is a conditional declaration of war which becomes absolute in case of noncompliance. In the case of the Hispano-American war, the United States in their note of April 20, 1898, gave Spain three days to agree to the withdrawal of all land and sea forces from Cuba. On the evening of the 22nd they began hostilities by seizing several Spanish vessels.

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As regards the mode in which, in February 1904, Japan. began the war against Russia, though there was no express prior declaration of war, there were all the symptoms of approaching war. As early as December 1903, public opinion was prepared for its outbreak.1 Throughout January, Japan manifested her impatience in unmistakable terms. On February 5, Baron Komura, the Japanese Minister of Foreign Affairs, instructed the Japanese Minister at St. Petersburg to give formal notice of the rupture of the pending negotiations, and intimated that the Japanese Government would "take such independent action as it might consider best to consolidate and defend its threatened position, as well as protect Japan's vested rights and legitimate interests." This intimation was accompanied by a signed note 3 announcing that the whole Japanese Legation would leave St. Petersburg on February 10. The terms of the intimation thus given seemed in themselves a warning sufficient to put the Government to whom they were given at least on their guard.

2

In practice, however, misunderstandings have occurred again and again from manifestations of this kind. Patience at the critical moment, it is true, might possibly have averted the Russo-Japanese war; while, on the other hand, it is quite conceivable that delay in the hands of a Government, to whom time was a gain, might have placed the co-negotiating party in a less favourable position.

Precedents are seldom of much use for action in emergencies, but they have a certain value from the point of view of what can be avoided. Thus misconceptions have arisen more than once between statesmen of different countries as to the significance of communications which have passed between them. "The extreme anxiety which is shown everywhere in the history of modern diplomacy to avoid coarseness or bluntness of expression, the desire not to provoke, which makes it a point of honour delicately to hint at possible or intended war, and combined with this the eager wish, even at the last moment, to arrange terms of reconciliation, have led in several instances to very

1 Thus, to my certain knowledge, war correspondents of two leading London newspapers passed in the course of December through New York, where I was staying at the time, on their way to the Far East in anticipation of hostilities breaking out from day to day.

2 Documents diplomatiques, Correspondance concernant les négociations entre le Japon et la Russie, 1903-1904.

3 The note was as follows:

"The undersigned, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the Emperor of Japan, in accordance with the instructions of his Government, has the honour to inform the Minister of Foreign Affairs of His Majesty the Emperor of all the Russias, that the Imperial Government of Japan, having exhausted without result all means of conciliation, in view of preventing any cause of future complications with the Imperial Government of Russia, and seeing that its just representations and moderate and disinterested proposals in the interest of a firm and durable peace in the Far East do not receive the consideration which is due to them, has resolved to break off its diplomatic relations with the Imperial Government of Russia, which, for the above-named reason, have no further value. In further execution of the orders of his Government, the undersigned has also the honour of informing his Excellency Count Lamsdorff that it is his intention to leave St. Petersburg, together with all the members of the Imperial Legation, on the 10th inst."

A similar question arose in connection with the opening of hostilities in the ChinoJapanese war.

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Professor Nagao Ariga, who was attached to the invading army as its chief legal adviser, in his book, La Guerre sino-japonaise au point de vue du droit international (1896), makes the following remarks on the charge made against the Japanese Government of having begun hostilities before giving notice of their intentions: "A question suggests itself, Was it regular that collisions between the military and naval forces of the parties should take place before any declaration of war had been made by the belligerents on either side? This seems to me a question which can be settled without much discussion. It is a recognised truth that a notification on the part of either belligerent is not a necessary preliminary to war. The Sino-Japanese war is one of the numerous examples of wars which have begun without notification and are cited in works on international law. then, was really the act which was considered by Japan to be the beginning of the SinoJapanese war? Was it the dealings of the Chinese with regard to the Japanese, which preceded the sinking of the Kow-Shing? Or was it that sinking itself? I am of opinion that pacific Sino-Japanese relations were broken from the time when, upon the refusal of China to accept the ultimatum submitted to her, Japan notified the Government of Pekin that she would act alone in view of introducing reforms in Corea, and that whatever happened in the future, all the responsibility would fall on China. The hostilities began the day on which China sent off her men, and Japan, on her side, sent off her war vessels, viz. on the 23rd of July, a date which preceded by a few days the sinking of the Kow-Shing. It seems to me useless to enlarge any further on that point. International Law has no fixed rules determining the acts which can give rise to a war. Everything, of course, must depend upon circumstances. We must, therefore, allow each State to judge for itself. It may happen that a country, Japan, for instance, may regard as causes of war, acts which would not be regarded as such by the other Powers, and vice versa. This is not a matter which can be definitely settled, and must therefore be left to the appreciation of each State. As regards the Kow-Shing incident, the latter vessel was sunk on July 25 by the Japanese warvessel Naniwa. It was the property of Jardine & Matheson, an English company, chartered by China for the transport of Chinese troops to Corea, and had no less than 2000 militiamen on board. Our opinion is that whether the incident is considered to have taken place before the opening of hostilities or after, it must be looked upon as an act of pure self-defence, and therefore regular. At the very moment when the Naniwa met the Kow-Shing, the soldiers on board the latter were manifesting their intention of fighting against the rights and interests of Japan. In these circumstances Japan could certainly not allow them either to proceed further, or return to their own country. The only course open to Japan was to conduct them to a Japanese port and detain them there as prisoners. This they were summoned to do by the commander of the Naniwa, and, had they obeyed, no act of hostility would have been committed against them; but, as they refused to obey, it was a just case of self-defence to sink the ship. Nor in such circumstances was Japan bound to take into account the nationality of the vessel's flag, which was English. Since the captain of the vessel would not take the responsibility of delivering the Chinese soldiers over to the Japanese, the latter had the right to sink the ship, subject to indemnification

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