had it demonstrated nothing more than the possibility of the representatives of forty-four nations to live in peace and quiet during four months. . . Leaving out minor matters, this Conference did four things of fundamental importance : 1. It provided for a meeting of the Third Conference within an analogous period, namely eight years, to be under the control of the powers generally, instead of the control of any one of them. 2. It adopted a convention for the nonforcible collection of contract debts, substituting arbitration and an appeal to reason for force and an appeal to arms. 3. It established a prize court to safeguard neutrals. 4. It laid the foundations of, if it did not put the finishing stone to, a great court of arbitration. IV. WAR 202. Reprisals. The following cases are examples of reprisals, or measures involving force that falls short of war: A convention was signed at London on October 31, 1861, between Great Britain, France, and Spain for the purpose of taking forcible measures with a view to obtain redress from Mexico for injuries done to their subjects in that country. The United States was advised to accede to the arrangement, but declined to do so. After the three Governments had adopted certain measures of force, the British and Spanish Governments withdrew, while France entered upon that course of intervention which resulted in the attempt to establish an empire in Mexico. . . . In November, 1901, France seized the customhouse at Mytilene in order to enforce compliance by the Turkish Government with demands for the settlement of the Lorando claim, the rebuilding of French schools and institutions destroyed in 1895-96, the official recognition of existing schools and institutions, and the recognition of the Chaldean patriarch. 203. Kinds of war. Distinctions may be drawn between general" and "limited" wars; and various degrees of internal disturbance admit of classification. Wheaton and other writers speak of "perfect" and "imperfect" wars, the former being one in which it is said the whole nation is at war with another nation and all the members of each are authorized to commit hostilities against all the members of the other in every case permitted by the laws of war; the latter, a war limited as to places, persons, and things. It may be suggested that it would be more nearly correct to speak of wars in this sense as general and limited. . . . Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government. The term rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their own. 204. Residence in case of war. The duties of American citizens resident in foreign states at a time when their country is engaged in war are thus stated by the Supreme Court: The duty of a citizen when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable and adhere to the regular established government. Personal property, except such as is the product of the hostile soil, follows as a general rule the rights of the proprietor; but if suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicile, severing those business relations, or disposing of their effects, as matter of duty to their own government, and as tending to weaken the enemy. Presumption of the law of nations is against one who lingers in the enemy's country, and if he continues there for much length of time, without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy. 205. Conquest and private ownership of land. The general principle that conquest works no change in private titles to land is laid down in the following opinion of Chief Justice Swayne (1863): California belonged to Spain by the rights of discovery and conquest. The government of that country established regulations for transfers of the public domain to individuals. When the sovereignty of Spain was displaced by the revolutionary action of Mexico, the new government established regulations upon the same subject. These two sovereignties are the springheads of all the land titles in California, existing at the time of the cession of that country to the United States by the treaty of Guadalupe Hidalgo. That cession did not impair the rights of private property. They were consecrated by the law of nations, and protected by the treaty. 206. Treatment of prisoners of war. The following extracts from letters written by Secretary of State Webster (1842) indicate the modern attitude toward prisoners of war: Prisoners of war are to be considered as unfortunate and not as criminal, and are to be treated accordingly, although the question of detention or liberation is one affecting the interest of the captor alone, and therefore one with which no other government ought to interfere in any way; yet the right to detain by no means implies the right to dispose of the prisoners at the pleasure of the captor. That right involves certain duties, among them that of providing the prisoners with the necessaries of life and abstaining from the infliction of any punishment upon them which they may not have merited by an offense against the laws of the country since they were taken. The law of war forbids the wounding, killing, impressment into the troops of the country, or the enslaving or otherwise maltreating of prisoners of war, unless they have been guilty of some grave crime; and from the obligation of this law no civilized state can discharge itself. 207. The Geneva Convention. The character and purpose of the Red Cross Convention, signed at Geneva, August 2, 1864, by representatives of twelve powers and later agreed to by twenty others, follow: 1 The treatment of the sick and wounded in war is now largely regulated by the requirements of the Geneva Convention of August 2, 1864, the operation of which has been extended to hostilities at sea by the Additional Articles of October 10, 1868, and by the Convention in respect to the rules of maritime warfare which were adopted by the Peace Conference at The Hague in 1899. Nearly all civilized states 1 By permission of Harper & Brothers. are now parties to the operation of these agreements, the efficiency of which, as agencies for the amelioration of the condition of the sick and wounded, has been fully established in the great international conflicts which have taken place during the generation that has elapsed since their original adoption. . . . The rules of the Geneva Convention, and other undertakings of like character, become operative only when individual combatants have been disabled by wounds and disease. Their effect is to confer certain privileges and immunities upon the sick and wounded, as a class, and to secure to the places in which they are collected and cared for, and to the persons who attend them, as complete an immunity from the effects of hostile operations as it is possible to accord them under the circumstances of each particular case. 208. Flags of truce. The following conventions regarding the laws and customs of war on land were adopted at the First Hague Conference, July 29, 1899: Article XXXII. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into communication with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag bearer, and the interpreter who may accompany him. Article XXXIII. The Chief to whom a flag of truce is sent is not obliged to receive it in all circumstances. He can take all steps necessary to prevent the envoy taking advantage of his mission to obtain information. In case of abuse, he has the right to detain the envoy temporarily. Article XXXIV. The envoy loses his rights of inviolability if it is proved beyond a doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery. 209. Methods of carrying on war. The international usage and practice of nations in war are still indicated fairly well by the rules laid down for the guidance of the army of the United States at the time of the Civil War. The history of this code is as follows: 1 The need of a positive code of instructions was severely felt during the early part of the Civil War in the United States. During the first two years of that war the Federal Government had succeeded in placing in the field armies of unexampled size, composed, in great part, of 1 By permission of Harper & Brothers. men taken from civil pursuits, most of whom were unfamiliar with military affairs, and so utterly unacquainted with the usages of war. These armies were carrying on hostile operations of every kind over a wide area, and questions of considerable intricacy and difficulty were constantly arising, which required for their decision a knowledge of international law which was not always possessed by those to whom these questions were submitted for decision. To remedy this difficulty, Professor Francis Lieber, an eminent jurist, who had been for many years an esteemed and honored citizen of the United States, was requested by the Secretary of War to prepare a code of instructions for the government of the armies in the field. . . . The rules prepared by Dr. Lieber were submitted to a board of officers, by whom they were approved and recommended for adoption. They were published in 1863, and were made obligatory upon the armies of the United States by their publication in the form of a General Order of the War Department. Although more than a generation has elapsed since they were prepared, they are still in substantial accordance with the existing rules of international law upon the subject of which they treat, and form the basis of Bluntschli's and other elaborate works upon the usages of war. They are accepted by text writers of authority as having standard and permanent value, and as expressing, with great accuracy, the usage and practice of nations in war. 210. Legal principles observed by prize courts. The nature of the law applied by prize courts may be stated as follows: The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country. By this law the definition of prize goods is that they are goods taken on the high seas, jure belli, out of the hands of the enemy. Prize courts are subject to the instructions of their own sovereign. In the absence of such instructions their jurisdiction and rules of decision are to be ascertained by reference to the known powers of such tribunals and the principles by which they are governed under the public law and the practice of nations. Prize courts are tribunals of the law of nations, and the jurisprudence they administer is a part of that law. They deal with cases of capture as distinguished from seizures; their decrees are decrees of condemnation, not of forfeiture; they judge the character and relations of the vessel and cargo, and not the acts of persons. |