from 1850 to 1900. The laws of war evolved in this way isolated milder practices became by-and-by 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 have in modern times come to the conviction that the realisation of the purpose of war is in no way hampered by indulgence shown to the wounded, the prisoners, and the private individuals who do not take part in the fighting. Thus the influence of the principle of humanity has been and is still enormous upon the practice of warfare. And the methods of warfare, although by the nature of war to a certain degree cruel and unsparing, become less cruel and more humane every day. But it must be emphasised that the whole evolution of the laws and usages of war could not have taken place but for the The latest Development of the Laws of War. 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 the important distinction between members of armed forces and private individuals could not have arisen without the existence of standing armies. § 68. The second part of the nineteenth century has produced the latest and the most important development of the Laws of War through general treaties between the majority of States. The first treaty of that kind was the Declaration of Paris of April 16, 1856, respecting warfare on sea. It abolishes privateering, recognises the principles that the neutral flag covers enemy goods and that neutral goods under an enemy flag cannot be seized, and enacts the rule that a blockade in order to be binding must be effective. The next treaty was the Geneva Convention of August 22, 1864, for the amelioration of the condition of the wounded soldiers in armies in the field, and now joined by nearly all the civilised States. The Hague Conference of 1899 has agreed upon a Convention for the adaptation of the principles of the Geneva Convention to maritime warfare. The third treaty was the Declaration of St. Petersburg of December 11, 1868, respecting the prohibition of the use in war of explosive balls under a certain weight. The fourth and last treaty was the Convention enacting the "Regulations respecting the Laws and Customs of War on Land" agreed upon at the Hague Conference in 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 14, 1863, during the War of Secession. These instructions, which were drafted by Professor Francis Lieber, of the Columbia College of New York, represent 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 for the purpose of discussing a draft code of the Laws of War on land as 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 the Brussels Declarations 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 Manual 1 of the Laws of War consisting of a body of 86 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 was 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 Convention, as the 1 See Annuaire, V. pp. 157-174. 2 For brevity's sake the Hague Convention enacting Regulations regarding the laws and customs of war on land will be referred to in the following pages as the Hague Regulations. It is, however, of importance to observe that the Hague 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 I declares: "The high contracting parties shall issue instructions to their armed land forces, which shall be in conformity with the Regulations respecting Binding force of the Laws of War. preamble expressly states, does not aim at giving 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. For all the great Powers and the greater number of the smaller Powers are already parties to the Convention, and others will certainly become parties later on; and even if a few should never join, the moral force of the Regulations is so overpowering that practically all belligerents will carry them out, just as the Declaration of Paris of 1856 is practically observed by all the Powers, although several of them have not joined.1 § 69. As soon as usages of warfare have by custom or treaty evolved into laws of war, they are binding upon belligerents under all circumstances and conditions, except in the case of reprisals 2 as retaliation against a belligerent for illegitimate acts of warfare by the members of his armed forces or his other subjects. the Laws of War on land annexed 1 The United States of America (see above, Vol. I. § 32), published See below, § 248. 1 In accordance with the German proverb, Kriegsraeson geht vor Kriegsrecht (necessity in war overrules the manner of warfare), many German authors and the Swiss-Belgian Rivier 2 maintain that the laws of war lose their binding force in case of extreme necessity. Such case of extreme necessity is said to have arisen when violation of the laws of war alone offers a means of escape from extreme danger or of the realisation of the purpose of war-namely, the overpowering of the opponent. This alleged exception to the binding force of the Laws of War is, however, not at all generally accepted by German writers, as, for instance, Bluntschli does not mention it. English, American, French, and Italian writers do not, as far as I can see, acknowledge it. The protest of Professor Westlake3 against such an exception is, therefore, the more justified, as a great danger would be involved in it. That necessity plays as great a part in war as elsewhere cannot be denied. The fact is that many legal rules of warfare are so framed that they do not apply to a case of necessity; but there are, on the other hand, many rules which know nothing of any exception in case of necessity. Thus, for instance, the rules that poison and poisoned arms are forbidden, and that it is not allowed treacherously to kill or wound individuals belonging to the hostile army, do not lose their binding force even if the escape from extreme danger or the realisation of the purpose of war would depend upon an act of such kind. It may, however, correctly be maintained that all mere usages, in contradistinction to laws, of war may be ignored in case of necessity. 1 See Lueder in Holtzendorff, IV. pp. 254-257; Ullmann, § 144; Liszt, 39, IV. 3.1. 2 II. p. 242. 3 See Westlake, Chapters, p. 238. |