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At the behest of President Theodore Roosevelt, leaders of all major nations met at The Hague. The major issue for discussion was the attempt to reach an arms limitation agreement. All attempts failed due to German opposition. The conference was successful, however, in expanding the rules of war and the rights of neutrals.
Roosevelt had hoped the convention could be held in 1904, but that was delayed due to the Russo Japanese War. The conference opened on June 15, 1907, at the Haik and continued until October 18 in the same year. The result of the meeting was mixed at best. The British and the Americans wanted to limit the building of naval ships, but this was posed by the Germans who believe the British wanted to freeze the current superiority. The conference also failed to renew the ban on aerial bombing at a time when it was becoming practical to use planes as weapons of war. It did, however, by presenting a whole list of acceptable targets implied banning civilians was illegal.
The conventions reaffirmed many of the agreements from 1898 relating to settling international disputes, how did to declare war, how to conduct a land war on how to conduct a naval war, and the rights of neutral nations during a war.
Many of the agreements included in the Hague convention of 1907 would soon be violated by the powers that fought World War I. However, the conventions of 1898 and 1907 have provided a legal framework that has been built on since then that is supposed to rule the conduct of nations in a time of war.
Hague Conventions of 1899 and 1907
The Hague Conventions of 1899 and 1907 are a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands. The First Hague Conference was held in 1899 and the Second Hague Conference in 1907. Along with the Geneva Conventions, the Hague Conventions were among the first formal statements of the laws of war and war crimes in the body of secular international law. A third conference was planned for 1914 and later rescheduled for 1915, but it did not take place due to the start of World War I.
The 1907 Naval War Plans and the second Hague peace conference: A case of propaganda
The phenomenon of mutual sea denial had rendered offensive naval actions such as commercial blockade impossible in the narrow seas around Europe. Consequently, the First Sea Lord, Admiral Sir John Fisher, abandoned commercial blockade for the safer option of interdicting enemy commerce on the high seas where the Royal Navy could control communications. The proposal to extend immunity to all private property at sea at the 1907 Hague Conference threatened this strategy. As part of a wider campaign to convince the British establishment to oppose immunity, Fisher created the 1907 Naval War Plans to directly influence Cabinet decision-making. Fisher's close involvement in the creation of the ‘Plans’ indicates that they are an expression of Fisher's strategic vision. Moreover, Fisher's attempt to influence the Cabinet asks questions of the bureaucratic decision-making process within the British establishment before 1914.
I am grateful to Dr Nicholas Lambert for his comments and advice on an earlier draft of this paper.
Cdr. P.K. Kemp (ed.), The Papers of Admiral Sir John Fisher, Vol. 2 (London, Navy Records Society, No. 106, 1964) pp.316–17.
Jon T. Sumida, In Defence of Naval Supremacy: Finance, Technology and British Naval Policy, 1889–1914 (Boston, MA: Unwin Hyman 1989) idem, ‘Sir John Fisher and the Dreadnought: the Sources of Naval Mythology’, Journal of Military History 59 (Oct. 1995) pp.619–38. Charles Fairbanks Jr., ‘The Origins of the Dreadnought Revolution: a Historiographical Essay’, International History Review 13/2 (1991) pp.221–440. Nicholas A. Lambert, ‘Admiral Sir John Fisher and the Concept of Flotilla Defence’, Journal of Military History 59/4 (Oct. 1995) pp.639–60 idem, Sir John Fisher's Naval Revolution (Columbia, SC: University of South Carolina 1999).
Kemp, Fisher Papers (note 2) (Vol. 2), p.317.
Paul Haggie, ‘The Royal Navy and War Planning in the Fisher Era’, Journal of Contemporary History 8/3 (1973) p.116.
Fisher assumed his role as First Naval Lord on 20 Oct. he changed the title of the post to First Sea Lord the next day.
Memorandum, Ballard to Fisher, 3 May, 1909, f.4, ‘Remarks on the framing of certain plans for war with Germany now at the Admiralty’, TNA, ADM1/8997. Division of the committee into a ‘Whitehall’ group and a ‘Portsmouth’ group was confirmed by Reginald McKenna at the Beresford Enquiry. Evidence of Reginald McKenna, reply to Q. 2198, pp. 245–6, The National Archives, Kew, CAB16/9A.
Lord Hankey, The Supreme Command, 1914–18, Vol.1 (London: George Allen & Unwin Ltd. 1961) p.38. Also Kemp, Fisher Papers (note 2) (II),p.317. Kemp stated that the committee sat from Aug. or Sept.
10 Sir Charles Walker, Thirty-Six Years at the Admiralty (London: Lincoln Williams Ltd. 1933) p.45.
11 ‘Naval War Staff, 1911’, f.28, TNA, CAB16/8.
12 Evidence of Reginald McKenna, reply to Q.2185, p.245, TNA, CAB16/9A.
13 Hankey, Supreme Command (note 9) p.38.
14 Ottley to Esher, 8 Oct. 1911, Esher Papers, ESHR4/3, Churchill College Cambridge.
15 An important exception to this ‘rule’ was, of course, Fisher's failure to get his Committee on Designs to agree to the ‘fusion’ warship thus continuing the predominance of the battleship. Sumida, In Defence (note 4) pp.58–60.
16 A file cover of later [1932?] origin is noted ‘Ballard's Committee’, TNA, ADM116/1043B, (2), f.225. ADM116/1036B (1 & 2) is an artificial bundle created from NID papers in Nov. 1936. Lambert, Naval Revolution (note 4) p.180, n.118.
17 For Ballard see Index A-B, 1906, TNA, ADM12/1434, & Index A-C, 1907, TNA, ADM 12/1420. For Ottley see Index M-O, 1906, TNA, ADM12/1437, & Index L-P, 1907, TNA, ADM12/1424. For Slade see Index S-T, 1906, TNA, ADM12/1438, & Index Q-S, 1907, TNA, ADM12/1426.
18 Hankey's record is at TNA, ADM 196/62, Book 5, p.394. Slade's record is at TNA, ADM 196/39, p.1201. Ottley's record is at TNA, ADM196/39, p.992 & ADM 196/41, p.988. Ballard's service record is at TNA, ADM196/42, p.65.
19 Lambert, Naval Revolution (note 4) p.168 Sumida, ‘Sir John Fisher and the Dreadnought’ (note 4).
20 ‘Report of the Interdepartmental Committee appointed to consider the Subjects which may arise for Discussion at the Second Hague Peace Conference’, 21 March 1907, TNA, CO537/349.
21 ‘War Plans 1907’, TNA, ADM116/1043B (1). Part One, by Fisher and Corbett, was printed on 1 May 1907.
22 The Papers of Sir Ernest Mason Satow (hereinafter ‘Satow Papers’), Journal (26 Jan. ‘07–22 Apr. ‘09), entry for 16 June 1907, f. 27, TNA, PRO30/33/16/10.
24 James Brown Scott, The Hague Peace Conferences of 1899 and 1907, Vol. 1, The Conferences (Baltimore, MD: The Johns Hopkins Press 1909) p.113.
25 Ottley to Tweedmouth, 16 July 1907, The Papers of Edward Marjoribanks, 1 st Baron Tweedmouth (hereinafter Marjoribanks Papers), RNM Portsmouth, Admiralty Library Manuscripts Collection (hereinafter ALMC), MSS254/188.
26 Fisher to Corbett, 13 May 1903, The Papers of Julian S. Corbett, (hereinafter Corbett Papers), NMM Greenwich, MS82/006.
27 The two papers Corbett was writing were ‘Recent Attacks on the Admiralty’, The Nineteenth Century and After 61 (Feb. 1907) pp.918–32 and, ‘The Strategical Value of Speed in Battleships’, Journal of the Royal United Services Institute 51 (July 1907) pp.824–39. Note that although published in July 1907, Corbett delivered his paper to RUSI on 6 March 1907.
28 Fisher to Corbett, 2 Jan. 1907, F.P. 212, FISR1/5, C.C.
29 Fisher to Corbett, 15 Jan. 1907, Corbett Papers, National Maritime Museum Greenwich, MS82/006.
30 Fisher to Corbett, 4 Feb. 1907, Corbett Papers, NMM Greenwich, MS82/006.
31 Fisher to Corbett, 11 Feb. 1907, Corbett Papers, NMM Greenwich, MS82/006. ‘Thursfield’ was James Thursfield, Naval Correspondent at the Times and a close confidant of Fisher.
32 Fisher to Corbett, 9 March 1907, Corbett Papers, NMM Greenwich, MS82/006.
33 Fisher to Corbett, 17 March 1907, Corbett Papers, NMM Greenwich, MS82/006.
34 War Plans 1907, TNA, ADM116/1043B, (2).
35 Fisher to Corbett, 4 April 19, (emphasis added), Corbett Papers, NMM Greenwich, MS82/006.
36 The value of his influence as a naval propagandist against the proposal for immunity is shown by the fact that Mahan had requested Corbett to allow his paper entitled ‘The Capture of Private Property at Sea’ to be reproduced in Mahan's anthology against the proposal (see note 38 below). Mahan to Professor Sir John Knox Laughton, 6 Sept. 1907, Andrew Lambert (ed.), The Letters and Papers of Professor Sir John Knox Laughton, 1830–1915 (Aldershot: Ashgate for the Navy Records Society 2002) pp.239–40.
37 Fisher to Corbett, 21 April 1907, Corbett Papers, NMM Greenwich, MS82/006.
38 Julian S. Corbett, ‘The Capture of Private Property at Sea’, in Capt. A.T. Mahan, Some Neglected Aspects of War (London: Marston Low & Co. 1907). Corbett's paper was originally published in The Nineteenth Century and After (June 1907).
39 Mark W. Hamilton, The Pens Behind the Fleet: Methods and Organisation of British Navalist Propaganda, 1889–1914 (London: Garland Publishing 1986) p.234.
40 Sir R.T. Reid, Immunity of Private Property at Sea in Time of War A Memorandum by the Lord Chancellor (1907).
41 Note by Fisher (underlined in original), Corbett Papers, NMM Greenwich, MS82/006.
42 Note by Corbett (underlined in original), Corbett Papers, NMM, Greenwich, MS82/006.
43 Fisher to Corbett, 8 July 1907, F. P. 246, FISR1/5, C.C.
44 Satow Papers, Journal, (26 Jan. ‘07–22 Apr. ‘09) f.23, entry for 2 June 1907, TNA, PRO30/33/16/10.
45 Fisher used J.N. Harrison at the Foreign Office to print the Plans instead of the Admiralty Keeper of Printing and Stationery. Accordingly, there is no ‘print run’ recorded on the Plans to provide a definite number printed.
46 Fisher to Tweedmouth, 21 Jan. 1908, F.P.279, FISR1/6, C.C. See also ‘War Plans 1907’, Marjoribanks Papers, RNM Portsmouth, ALMC, MSS252.
47 Fisher to Sir Edward Grey, 23 Jan. 1908, F.P. 280, FISR1/6, C.C.
48 Fisher to Corbett, 26 March 1907, Corbett Papers, NMM Greenwich, MS82/006.
49 Sir F. Ponsonby to Fisher, 28 April 1907, F.P.241, FISR1/5, C.C.
50 Printed Naval Papers from Sir John Fisher (undated), The Papers of Lewis Harcourt, Bodleian Library, MSSDep. 510.
51 Notes for War Plans, (undated), Corbett Papers, NMM Greenwich, MS82/006.
52 R.C.K. Ensor, England 1870–1914 (Oxford: Oxford University Press 1992 ) pp.612–3.
54 Satow Papers, Journal (26 Jan. ‘07–22 Apr. ‘09), f.17, entry for 7 May 1907, TNA, PRO30/33/16/10.
55 Fisher to Corbett, 21 April 1907, Corbett Papers, NMM Greenwich, MS82/006.
56 War Plans 1907, ‘Part One’, ff.50–58, TNA, ADM116/1043B, (2).
57 ‘Peace Preparations’, F.P. 5461, FISR10/8, C.C.
58 ‘Undated Papers’, Corbett Papers, NMM Greenwich, MS82/006.
59 Fisher to W.S. Churchill, 3 June 1912, ff.118–19, (underlined in original), The Papers of Winston Spencer Churchill, The Chartwell Trust Papers, CHAR13/14, C.C.
60 Walker, Thirty-Six Years (note 10) p.45.
61 Fisher to Tweedmouth, 23 Jan. 1908, F.P. 279, FISR1/6, C.C.
62 Julian S. Corbett, Some Principles of Maritime Strategy (Annapolis, MD: Naval Institute Press 1988 ) p.93.
66 Corbett, ‘The Capture of Private Property at Sea’ (note 38), p.134.
67 ‘The Submarine Question’, 1909, (italicised in original), F. P. 4238, FISR5/13, C.C.
68 War Plans 1907–1908, TNA, ADM116/1043B, (1) & (2). Better copies of the Plans can be found at ‘War Plans 1907’, Marjoribanks Papers, RNM Portsmouth, ALMC, MSS252 and at F.P. 4847, FISR8/27, C.C. (the latter does not include Admiral Wilson's ‘Remarks’ Paper, the original handwritten copy of which is at F. P. 4231, FISR5/13).
69 ‘War with Germany’, TNA, ADM116/1036B (2). Reference to the creation of the paper is at Index S-T, (1906), Captain E.J.W. Slade, ‘Memo on Conduct of a War w. Germany’, TNA, ADM12/1426.
70 Wilson to Fisher, 9 March 1907, F. P. 195, FISR1/5, C.C. This part, at least, appears to have some relation to Beresford's demands for the plans of his predecessors, TNA, ADM116/1037.
71 Declaration of Paris, 16 April 1856 <www.yale.edu/lawweb/lawsofwar/1856/htm>, accessed on 11 Aug. 2003.
72 An attempt to amend the rules of commercial blockade was made by the Italian delegation after the conference had started. The attempt was deferred to the London Naval Conference because the delegations to The Hague had no instructions.
73 War Plans 1907, Part 1, ‘Some Principles of Naval Warfare’, f.26, TNA, ADM116/1043B, (1).
77 Ibid., f.28, (emphasis added).
79 Each ‘plan’ has a sub-division, A1, B1 etc. These refer to a case when allied with France against Germany.
80 War Plans 1907, Part 3, f.105, TNA, ADM116/1043B, (1).
81 ‘The Capture of the Private Property of Belligerents at Sea’, 14 May 1906, p.68, TNA, CO537/349.
82 Memorandum, C.L. Ottley, ‘Statement Respecting Questions Raised in CID Paper No. 66B’, p.26C, TNA, FO881/9120.
83 War Plans 1907, Part 3, ff.105–6, TNA, ADM116/1043B, (2).
89 Ibid., f.100 (emphasis added).
94 Ibid., f.163 (emphasis added).
96 Mediterranean Fleet Exercises 1901, F.P. 4180, FISR5/4, C.C.
97 War Plans 1907, Part 3, f.155, ADM116/1043B, (1).
99 Memorandum, Captain H.H. Campbell, ‘German Trade in Time of War’, Aug. 1908, TNA, ADM137/2872.
100 War Plans 1907, Part 3, f.152, TNA, ADM116/1043B, (1).
101 Ibid., f.151 (emphasis added).
102 ‘The Capture of the Private Property of Belligerents at Sea, 14 May 1906, p.73, TNA, CO537/349.
104 Franklin Arthur Johnson, Defence by Committee, the British Committee of Imperial Defence, 1881–1959 (London: OUP 1960).
The creation of the International Court of Justice is the culmination of a long development of methods for the peaceful settlement of international disputes. Its origins can be traced back to classical times.
Article 33 of the United Nations Charter lists the following methods for the peaceful settlement of disputes between States: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, good offices and resort to regional agencies or arrangements. Mediation and arbitration preceded judicial settlement.
The modern history of international arbitration dates back to the Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task was to settle a number of outstanding questions between the two countries, which were not possible to resolve by negotiation.
The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second phase. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute.
The Hague Peace Conference of 1899, convened at the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration. The chief object of the Conference was to discuss peace and disarmament. It ended by adopting a Convention on the Peaceful Settlement of International Disputes, which dealt not only with arbitration but also with other methods of peaceful settlement, such as good offices and mediation.
A few years later, in 1907, a second Hague Peace Conference, to which the States of Central and South America were also invited, revised the Convention and improved the rules governing arbitral proceedings.
The work of the two Hague Peace Conferences and the ideas they inspired in diplomats and jurists had some influence on the creation of the Central American Court of Justice. It operated from 1908 to 1918. The various plans and proposals submitted between 1911 and 1919 both by national and international bodies and by governments for the establishment of an international judicial tribunal culminated in the creation of the Permanent Court of International Justice (PCIJ) within the framework of the new international system set up after the end of the First World War.
Although this court was never in fact to see the light of day, the draft convention that was to have given birth to it enshrined certain fundamental ideas that some years later were to serve as a source of inspiration for the drafting of the Statute of the Permanent Court of International Justice (PCIJ).
The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ. After its last public sitting on December 4, 1939, the PCIJ did not in fact deal with any judicial business and no further elections of judges were held. In 1940, the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality. Even under the stress of the war some thought was given to the future of the Court, as well as to the creation of a new international political order. The judges of the PCIJ all resigned on January 31, 1946, and the election of the first Members of the International Court of Justice took place on February 6, 1946, at the First Session of the United Nations General Assembly and Security Council.
The official documents of both conferences are listed in this section of particular importance for academic research purposes are (the translations of) the official texts of the proceedings of the Hague peace conferences of 1899 and 1907 in Scott 1920 and Scott 1921 (both cited under English and written by an international law expert to the delegation of the United States at the Second Hague Peace Conference). For research into the specific historical context of the peace conferences, it is recommended to consult the French documents as well as the correspondence of the various participants to the conferences.
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The Third Hague Peace Conference, planned for 1915, was usurped by the First World War, but 4 years of trench warfare did their work and the Conference’s ideals were institutionalised in a Permanent Meeting of the League of Nations in Switzerland. In The Hague the ideals took actual form: the world-famous Peace Palace, financed by Andrew Carnegie, was officially opened in 1913 on the eve of the First World War. Home to the Permanent Court of Arbitration, it welcomed the Permanent Court of International Justice (under the League of Nations) in 1922 and is now the seat of its successor, the International Court of Justice, the principal judicial organ of the United Nations.
Though not negotiated in The Hague, the Geneva Protocol to the Hague Convention is considered an addition to the Hague Convention. It permanently bans the use of all forms of chemical and biological warfare. The 1925 protocol grew out of the increasing public outcry against chemical warfare following the use of mustard gas and similar agents in the First World War. The protocol has since been augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).
5 - ‘Extreme equality’: Rupture at the Second Hague Peace Conference 1907
Even among the angels, inequality is indispensable to order.
Many of international law's great romantic projects originated at The Hague Peace Conferences. Students of the laws of war remember them as the moments when the idea of humanising armed conflict was secured in convention form. International organisations scholars look back fondly at the blueprints for international order sketched at The Hague. Procedurally, the conferences in 1899 and 1907 ushered in the expectation that congresses of states would be inclusive and universal. International arbitration, too, was formalised here following the success of various ad hoc schemes in the eighteenth and nineteenth centuries. This chapter, though, is about, predominantly, The Hague Conferences' greatest failure: the project to create an international court of justice. In particular, I explore the role of two diplomats (a North American and a South American) whose views of international order clashed resulting in the decision to abandon, temporarily, the pursuit of international court-based justice. James Brown Scott was the United States delegate at The Hague Conference in 1907. He was also one of the most eminent American international lawyers of his generation: a president of the American International Law Institute, the solicitor-general of the United States Department of State and an editor of the American Journal of International Law . Scott wanted to build an international legal order that was effective and enforceable. To this end he argued for a judicial institution in which Great Powers were given special representation.
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Topicality of the 1907 Hague Conference, the Second Peace Conference / Actualité de la Conférence de La Haye de 1907, Deuxième Conférence de la paix
The essays contained in this volume derive from a high-level Workshop organized by the Hague Academy of International Law to determine whether the legal
fundamentals that were established a century ago remain relevant today or whether they have been affected by the requirements of today’s world.
The world of a century ago only faintly resembles the world in which we now live, and it is therefore legitimate to ask whether the rules laid down in 1907 respond to the needs of 2007. How can it be disputed that the requirement for peace, law, the settlement of disputes, and humanitarian principles still exists, and even more emphatically than in the past? But given the new constraints with which our world is faced — terrorism, degradation of the environment, the exacerbation of under-development in certain States, and food and energy crises — and given the new imbalances that are appearing around the emerging powers, new forms of development, and the ubiquity of new technologies,there is a clear need for reform. The question is whether, in the name of such requirements, it is now possible to depart from certain principles that can be viewed as fundamental achievements.
To what extent do the great achievements dating from the dawn of the last century survive among the rules applicable to the century that is now beginning, without excluding the developments
and reforms that are necessary in a world that is so different from the world a century ago?
Ce volume contient les communications et les débats concernant un colloque de haut niveau organisé par l’Académie de droit international de La Haye afin de déterminer si les fondamentaux juridiques établis au siècle dernier demeurent d’actualité de nos jours ou s’ils ont au contraire été affectés par les exigences du monde contemporain. En effet, celui-ci n’a plus grandchose à voir avec celui d’autrefois et présente des besoins plus importants que jamais en termes de paix, de droit, de règlement des différends et de principes humanitaires. Il semble donc légitime de s’interroger sur la validité qu’il y a à transposer à notre époque des règles énoncées en 1907.
Judge Mohamed Bennouna - Morocco
Member of the Court since 6 February 2006
The International Court of Justice is composed of 15 Judges (or Members) elected to nine-year terms of office by the United Nations General Assembly and the Security Council. In order to ensure a degree of continuity, one third of the Court is elected every three years. Once elected, a Member of the Court is a delegate neither of the government of his or her own country nor of that of any other State. The Court may not include more than one national of the same State. Judges are eligible for re-election.
History of the law of war on land
Howard S. Levie is Professor Emeritus of Law, Saint Louis University Law School, and Adjunct Professor of International Law, U.S. Naval War College. He is also Colonel (ret.), Judge Advocate General's Corps, U.S. Army.
For many millennia there was no such thing as humanity in land warfare. From the caveman to biblical times, and for centuries thereafter, the winner in battle took from the loser not only his life, but also all of his available belongings, including women, children, domestic animals and personal property. See, for example, the Bible, Numbers 31: 7-8, where the following appears:
They made war on Midian as the Lord had commanded Moses, and slew all the men. In addition to those slain in battle, they killed the kings of Midian - Evi, Rekem, Zur, Hur and Reba, the five kings of Midian - and they put to death also Balaam, son of Beor. The Israelites took captive the Midianite women and their dependants, and carried off their beasts, their flocks, and their property. They burnt all their cities, in which they had settled, and all their encampments. They took all the spoil and plunder, both man and beast.
Similar statements will be found throughout the Bible. Unless circumstances permitted otherwise, all of the enemy who lived were killed and all their real property was seized or razed. An exception is to be found in the Koran, Surah xlvii, paragraph 4, which includes the following statement:
When you meet in battle those who have disbelieved, smite their necks, and after the slaughter tighten fast the bonds, until the war lays aside its burdens. Then either release them as a favour, or in return for ransom. [1 ]
This dates from the sixth century AD. Sun Tsu, writing The Art of War in the fourth century BC, and Manu Sriti , an anonymous Sanskrit treatise (probably dating from sometime between 200 BC and 200 AD), both forbade the slaying of prisoners of war, giving as alternatives absorption into one's own army (a practice followed by Mao Tse-tung's communist army after the defeat of the Chinese Nationalists under Chiang Kai-shek in 1949, and by Kim Il-Sung's North Korean army during their early successes in South Korea in 1950), enslavement, or ransom. Of course, any one of these alternatives, inhumane as they may appear, was more humane than the earlier practice which had existed at the time of the period covered by the Bible.
It is obvious that at this period in the evolution of mankind humanity played no part, or a very small and almost accidental part, in land warfare. The captured soldier knew that the fate which awaited him was either death or enslavement. Ransom existed as a practice but was a very limited procedure until the Middle Ages, and even then applied only to the knight and not to the common soldier. Several centuries later, the practice of exchange of prisoners of war evolved. This practice continued up to the American Civil War (1861-1865), when an agreement to that effect was reached by the belligerents, but it proved to be completely ineffective.
Codification of the law of war on land
The first attempt to lay down specific humanitarian rules to be applicable in time of war was the so-called Lieber Code , drafted by Professor Francis Lieber and, after revision by a board of o fficers, promulgated as General Orders No. 100 of the Union Army in 1863 [2 ] . Section II of that Code, containing Articles 31 to 47, provided for the " Protection of persons and especially of women, of religion, the arts and sciences. Punishment of crimes against the inhabitants of hostile countries " . There were also provisions requiring the humane treatment of prisoners of war [3 ] . This Code was, of course, a national action, not applicable to other countries, but it served as one of the sources of the international actions which were to follow.
That same year, 1863, an international conference meeting in Geneva drafted resolutions which called for each country to establish a committee to assist the medical services, and to provide for the neutrality of ambulances and medical personnel [4 ] . This was the precursor for the Geneva Conferences which drafted the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field [5 ] and the 1868 Additional Articles relating to the Condition of the Wounded in War. [6 ]
In 1874 an international conference called by the Russian government met in Brussels and adopted the International Declaration Concerning the Laws and Customs of War [7 ] , a document which contained many provisions intended to make land warfare more humane. Unfortunately, it never became effective for lack of ratifications [8 ] . However, it served as one of the sources for the Regulations attached to the 1899 Convention (II) with Respect to the Laws and Customs of War on Land, drafted by the (first) International Peace Conference in The Hague. It was in the preamble to this Convention that the famous de Martens Clause made its appearance. It states:
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and be lligerents remain under the protection and empire of the principles of international law, as they result from usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. [9 ]
At the same time three Declarations were adopted, one prohibiting the launching of projectiles and explosives from balloons [10 ] , one prohibiting the use of asphyxiating gases [11 ] , and one prohibiting the use of expanding bullets. [12 ]
The Second International Peace Conference, held in The Hague in 1907, adopted a slightly redrafted set of the Regulations attached to the 1907 Convention (IV) respecting the Laws and Customs of War on Land [13 ] . The only Declaration that it readopted was that relating to the dropping of projectiles and explosives from balloons. [14 ]
In 1906, an international conference met in Geneva and updated the 1864 Convention and the 1868 Additional Articles. It was this 1906 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field [15 ] which was in force during the First World War. It was superseded by the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field [16 ] which was, in turn, superseded by the 1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. [17 ]
While the Regulations attached to the 1899 and 1907 Conventions respecting the Laws and Customs of War on Land had contained a number of almost identical provisions for the protection of prisoners of war, it was not until 1929 that an international conference drafted a convention dealing exclusively with that subject [18 ] . The 1929 Geneva Convention relative to the Treatment of Prisoners of War [19 ] was in force during World War II. However, Japan was not a party to it. This Convention was, in turn, superseded by the 1949 Geneva Convention relative to the Tr eatment of Prisoners of War [20 ] . When hostilities were initiated in Korea in 1950, few nations had ratified this latter Convention. However, the International Committee of the Red Cross called upon each individual participant in those hostilities to apply the provisions of the 1949 Convention and they all stated their agreement to do so. [21 ]
Evidence of the modern effort to make land warfare more humane is to be found in a 1968 resolution of the General Assembly of the United Nations which stated in part as follows: [22 ]
1. Affirms resolution XXVIII of the XXth International Conference of the Red Cross held at Vienna in 1965, which laid down, inter alia , the following principles for observance by all governmental and other authorities responsible for action in armed conflicts:
(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited
(b) That it is prohibited to launch attacks against the civilian populations as such
(c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.
2. Invites the Secretary-General, in consultation with the International Committee of the Red Cross and other appropriate international organizations, to study:
(a) Steps which could be taken to secure the better application of existing humanitarian international conventions and rules in all armed conflicts
(b) The need for additional humanitarian international conventions or for other appropriate legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare (. ).
A Diplomatic Conference was convened in 1974 to fill in the lacunae which had been found to exist in the 1949 Geneva Conventions. So difficult was it to obtain strong support for various provisions that it was not until 1977 that the conference reached agreement on a Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) [23 ] , as well as a Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted on 8 June 1977. [24 ]
Limitations on the use of weapons
Almost all of the international activity mentioned above has dealt with the humane treatment to be accorded in land warfare to individuals, civilian non-combatants and prisoners of war. Limitations on the use of certain weapons are certainly another area which falls within the scope of international humanitarian law to be applied in time of war on land. While the international community has been much slower in addressing this subject, action to that effect has been taken on a number of occasions, particularly in the latter part of the present century.
The weapons of the early known period were primarily the bow and arrow, the sword, the spear and the throwing knife or other thrown object [25 ] . None of these weapons would be considered inadmissible if they were used today in fact, many of them, like the bayonet, are still used in one form or another and there has been no complaint that they are inhumane. As time went on, the bow and arrow evolved into a much more powerful weapon in the form of the longbow and the cross-bow. Unfortunately, poison was sometimes placed on the arrowhead, and at the end of the thirteenth century this practice reached Europe.
The next major step in the evolution of weapons of warfare was the development of gunpowder and the gun, of which the first mention is in the middle of the fourteenth century. This weapon, from handgun to heavy artillery, still exists in many forms which would be completely unrecognizable to its original users. It does not appear that the gun, firing an ordinary bullet, or artillery, firing a shell, has ever been charged with being an inhumane method of land warfare.
Later the Russians invented a bullet which exploded on impact. Originally it did so only on striking a hard object, but later it was modified in such a way that it would explode on contact with a soft object, such as a human body. Considering this to be inhumane, the Russian government convened an international conference at St Petersburg which drafted the 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight [26 ] . Thus explosive rifle bullets were banned even before they had been used in land warfare, but explosive artillery shells remained lawful.
In its clashes with local inhabitants on the Indian frontier in the late nineteenth century the British used bullets known as " dum-dums " , because they were manufactured in an arsenal situated in Dum-Dum, Bengal. The peculiarity of these bullets was that the lead core was exposed, so that instead of passing through a body it expanded on impact and tore it apart. Declaration IV(3) of the 1899 First Peace Conference prohibited " the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisio ns " . [27 ]
It has long been appreciated that international humanitarian law applicable in land warfare was sadly deficient in restrictions when it came to bacteriological and toxin weapons [28 ] , chemical weapons, and certain types of conventional weapons [29 ] . Numerous resolutions on these subjects had been adopted by the General Assembly of the United Nations and by various humanitarian organizations, but it was not until 1972 that an international conference was convened to draft a convention with respect to bacteriological weapons. It was successful in its endeavour and there is now such a convention to which almost every nation on earth is party [30 ] . It not only prohibits the development, production, and stockpiling of such weapons, but requires the destruction within nine months of the Convention's entry into force (a date which has long since passed) of " all agents, toxins, weapons, equipment and means of delivery " .
In 1980 a diplomatic conference meeting in Geneva drafted the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects [31 ] . The Convention itself has no substantive provisions but is a " carrier " for three Protocols. Its Protocol I prohibits the use of " any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays " . Inasmuch as no such weapon was or is known to exist at the present time, this Protocol was adopted without dissent. Protocol II prohibits or restricts the use of mines, booby traps and other devices. As we shall see, the prohibitions and restrictions on the use of mines are not what they appear to be. Finally, Protocol III prohibits or restricts the use of incendiary weapons. Once again, the prohibitions and restrictions on the use of incendiary weapons are not what they appear to be.
The proh ibition on the use of anti-personnel mines set forth in Protocol II is in fact limited to their use against civilians and civilian objects. The use of mines remains one of the most inhumane acts of war today, not because they are any more effective than an explosive artillery shell, but because once they are buried their location is soon forgotten and they remain a danger to innocent civilians even when hostilities have ended. It is estimated that there are over one hundred million mines buried throughout the world (Afghanistan alone is infested with millions of mines) and every week dozens of civilians are killed or maimed by mines planted long ago and whose location is no longer known. Efforts to draft a convention banning the use of land mines have been continuous in recent years [32 ] . At last, on 3 May 1996, the Amended Protocol II, which remedies some of the deficiencies of the original Protocol II of 1980, was accepted [33 ] , and on 18 September 1997 a Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction was adopted at Ottawa [34 ] . This Convention has not yet come into force. It will do so on the first day of the sixth month after receipt by the Secretary-General of the United Nations of the 40th instrument of acceptance. Reservations are not permitted.
The use of fire in warfare has a long and ancient history. However, the prohibition on the use of fire set forth in the 1980 Protocol III is likewise limited to " individual civilians or civilian objects " and to " military objectives located within a concentration of civilians " . Inasmuch as fire causes as much or more pain than a dumdum bullet, it would appear that far stricter limitations on its use are justified. Unfortunately, there seems little probability of such action.
The Treaty of Versailles, which ended World War I, contained a provision which prohibited the use of asphyxiating, poisonous or other gases and all analogous liquids, materials or devices. This undoubtedly referred to Declaration IV(2) of the 1899 Peace Conference [35 ] . In 1922 a small group of nations drafted the Treaty of Washington which, while basically intended to place controls on submarine warfare, contained a provision under which the use of " asphyxiating, poisonous or other gases and all analogous liquids, materials or devices " was prohibited [36 ] . This convention was to become effective only if ratified by all the drafting States. As France failed to ratify it, the convention never came into force.
In 1925, however, a League of Nations arms conference meeting in Geneva took it upon itself to draft a Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare [37 ] . Finally, in January 1993 a Diplomatic Conference meeting in Paris adopted the Convention on the Prohibition of the Development, Production and Stockpiling of Chemical Weapons and on their Destruction [38 ] . While the ratifications of this Convention were slow in the making, by the end of 1997 well over 100 States had become parties to it. [39 ]
It is apparent from the foregoing review of international activities in this area over the past century and a half that nations have become more and more aware of the need for restrictions on the methods of conducting warfare, resulting in the formulation of numerous international agreements aimed at making warfare less inhumane, particularly with respect to the helpless, such as non-combatants and prisoners of war. Unfortunately, a number of nations have seen fit to abstain from becoming parties to many of these humanitarian agreements and, on occasion, parties to them have seen fit to disregard their provisions (particularly in instances of internal conflict). This was recognized in the " wa r crimes " trials conducted after World War II and, more recently, by the United Nations in the creation of special international criminal courts for the former Yugoslavia and for Rwanda, as well as by the 1998 Rome Convention establishing the International Criminal Court. In any future conflicts it can be expected that, while most nations will endeavour to comply with the humanitarian rules for the conduct of warfare, there will unfortunately always be renegade nations which, whether or not parties thereto, will violate their provisions whenever it appears to their advantage to do so.
1. In the translation of M. Z. Kahn (1971).
2. Reprinted in D. Schindler and J. Toman, The Laws of Armed Conflicts , 3rd ed., Martinus Nijhoff Publishers/Henry Dunant Institute, Dordrecht/Geneva, 1988 (hereinafter cited as Schindler/Toman ), p. 3. See also M. Deltenre, Recueil général des lois et coutumes de la guerre , Les Éditions Ferd. Wallens-Pay, 1943 (texts in French, Flemish, German and English).
3. Lieber Code, Section III, Articles 49 to 80.
8. In 1880, the Institute of International Law completed the drafting of the Oxford Manual on the Laws of War on Land (Schindler/ Toman, p. 35). This was, of course, an unofficial document, but, like the unratified Brussels Project, its importance in the drafting of subsequent conventions on the law of war cannot be overestimated.
9. Schindler/Toman, p. 70. The clause was repeated in a somewhat extended form in the 1907 Hague Convention IV and in the 1977 Additional Protocol I.
10. Schindler/Toman, p. 202. This Declaration was to be in force for only five years. However, at the 1907 Second International Peace Conference its effectiveness was extended to " the close of the Third Peace Conference " . Ibid . As that Conference has never taken place (it was to have convened eight years after the end of the 1907 Second Peace Conference, but World War I broke out before that date was reached), it has been argued that the Declaration is still in force moreover, since it prohibited the discharge of projectiles and explosives from balloons " or by other new methods of a similar nature " , it issometimes argued that bombing by aircraft violates this Declaration. Needless to say, no nation has accepted this argument.
11. Schindler/Toman, p. 105. Germany violated this Declaration by using gas projectiles in Poland in 1915 during World War I. When the Germans initiated the use of chlorine at Ypres in 1916, the claim was made that it was not a violation of the Declaration because no projectiles were used, the gas having been contained in barrels which were opened to allow the wind to carry the gas to the Allied lines. Nevertheless, that act initiated general gas warfare, a type of warfare which resulted in over 1,000,000 casualties during World War I.
12. Schindler/Toman, p. 109. This Declaration was the prohibition of dumdum bullets. Infra , notes 26 and 27.
14. Supra , note 9. The other two Declarations adopted at the 1899 International Peace Conference had no time limits.
16. Schindler/Toman, p. 325. This Convention was in force during World War II, but a number of the belligerents were not parties to it.
17. Schindler/Toman, p. 373. All but four or five small nations with no armies are party to this Convention.
18. In World War I the provisions of the 1907 Hague Regulations with respect to prisoners of war had been found so inadequate in coverage that a number of bilateral and multilateral agreements on the subject had been negotiated by the belligerents during the hostilities.
19. Schindler/Toman, p. 339. The same Diplomatic Conference drafted the 1929 Convention for the Amelioration of the Condition of Wounded and Sickin Armed Forces in the Field and the 1929 Convention for the Amelioration of the Wounded, Sick and Shipwrecked at Sea (Schindler/Toman, pp. 373 and 401, respectively) which were widely adopted.
20. Schindler/Toman, p. 423. Once again, all but a handful of small nations with no armies are party to this Convention. It should be noted that the 1949 Convention relative to the Protection of Civilian Persons in Time of War (Schindler/Toman, p. 495), the first convention devoted exclusively to the protection of civilians in time of war, was also drafted at that time.
21. North Korea, unwilling to take any action recognizing the ICRC, sent its reply to the Secretary-General of the United Nations, stating that it " is strictly abiding by principles of Geneva Convention in respect to Prisoners of War. " As is well known, this was anything but the case!
22. UNGA Res. 2444 (XXIII) of 19 December 1968, reprinted in Schindler/Toman, p. 263.
23. Schindler/Toman, p. 621. The United States has not ratified this Protocol, both because in its opinion it makes colonial wars international and because it abolishes the requirements for the re cognition of a legitimate combatant.
24. Schindler/Toman, p. 689. Prior to the drafting of this Protocol the only international humanitarian law provision with respect to non-international (civil) wars had been Arti-cle 3 of the 1949 Geneva Conventions.
25. David used a sling and a stone in his encounter with Goliath and, having rendered him unconscious or dead, proceeded to cut off his head. The use of the sling and the stone as a weapon of war was legitimate - and would probably be legitimate today. However, if Goliath was only unconscious, the act of cutting off his head would today be an inhumane act, and a war crime. If Goliath was dead, then David also committed what today would be a war crime, the maltreatment of the dead body of an enemy. See James H. Jeffries, " Law of war trivia " , Proc. U.S. Naval Inst. , Vol. 114, June 1988, p. 57.
27. Schindler/Toman, p. 109. - The British are alleged to have used dumdum bullets in South Africa and the Russians are alleged to have used them in their war with the Japanese. Both sides are alleged to have used them during World War I. Even today instances will be found where individual soldierspierce the ends of their bullets with a knife, thus in effect making them dumdum bullets.
28. While the 1925 Geneva Protocol included a ban on bacteriological weapons, this fact was rarely noted and the Protocol was always referred to as a " gas " Protocol.
29. Reference to nuclear weapons has been omitted because, while there are treaties on this subject, there is no multilateral international convention banning their use, nor is there likely to be one in the foreseeable future. The recent nuclear tests by India and Pakistan are indicative of the comparatively uncontrolled status of this weapon.
30. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, Schindler/Toman, p. 137.
32. Elsewhere, the present author has suggested a Convention banning mines other than those requiring several tons of pressure to explode them. This would make them useful as protection against tanks, but would prevent their activation by contact with or the proximity of civilians. Another possible requirement is that every mine that is laid be required to contain a timed self-deactivation mechanism.
37. Schindler/Toman, p. 115. Although this Protocol was very widely accepted, the United States did not ratify it until 1975, fifty years later!
39. Whether other States will accept the ratification by the United States remains to be seen, as it contains a multitude of reservations, including one with regard to the prohibition of the use of herbicides. Moreover, Article XXII of the Convention specifically prohibits all reservations.