Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume II

No. 485.
Mr. Schuyler to Mr. Fish.

Legation of the United States,
St. Petersburg, November 5, 1874. (Received Nov. 27.)

No. 46.]

Sir: I have the honor to inclose to you herewith two copies of a leading article in the “Journal de St. Petersbourg” of the 20th October, (Nov. 1,) and a translation of the same.

I also send you two copies of the “project of an international declaration regarding the laws and customs of war,” as agreed upon by the Brussels congress, and a translation of the same.

T also send to you in the original, as documents, separately, the full protocols of the proceedings of the congress, which are too long for me to translate.

I have, &c.,

EUGENE SCHUYLER.

[Inclosure 1 in No. 46.—Translation.]

The Brussels conference.

[From the “Journal de St. Petersbourg,” 20 October, (1 November,) 1874.]

We publish to-day, as a supplement, the complete collection of the acts of the Brussels conference.

In the interest of those of our readers who follow this question and wish to study it thoroughly, we have preferred to delay this publication in order to give it entire, rather than in parts.

The reading of the protocols will show how inexact was the impression produced by the premature and abridged revelations of the French press. Not only were the opinions uttered misrepresented by incomplete quotations, but the very character of the conference was gravely altered in its purpose and aim, as well as in its results. Although the protocols with their conciseness give only a restricted idea of the deliberations, it is nevertheless felt how serious, honest, and profound they were. The first uncertainty on the reciprocal dispositions once having been dissipated, it is seen that all the delegates entered into the discussion without foregone conclusions, and with the desire of sincerely and loyally studying the questions, the gravity of which was revealed at every step, and of seeking in common the solutions which were conformable to the general interest.

The very divergences of opinions which were produced there, are the best proof of the urgent necessity there was to submit such questions to a collective deliberation.

This character of investigations is very clearly defined by the conference itself. It could not have any other character, and in keeping itself on this ground it has certainly better fulfilled its mission than if it had desired to formulate decisions which could have conciliated in appearance the divergences’ of opinion only at the expense of truth and realty.

It is this same thought which has determined the governments to bring these debates to the light of publicity and public discussion.

There is no question of passing laws, of imposing regulations by authority. The sad necessities of war being given, the question is to know if, and by what means, they can be restricted to the greatest advantage of humanity by the definition and observance of certain rules which ought to be accepted by all, since they have in view the interest of all.

It belongs, then, to public opinion to declare itself. The governments will naturally be inspired by the rational convictions which will be set forth on all these grave questions of general interest. This is, too, one of the essential traits which distinguished the Brussels conference. It has set out in full the questions, precisely stated the difficult and painful points. It has opened a way where progress is without limits. By degrees, as the problems shall be elucidated by discussion or experience, all the points which are gained will be added to those consecrated by time, custom, and tradition.

Little by little they will complete the work sketched out to-day, and we can only congratulate ourselves on it, since in reality this work is undertaken for the profit of humanity. The Brussels conference has prepared the field; the governments, aided by public opinion, will sow there the grain; time will ripen the harvest.

These considerations appear to us to define as well the part which belongs to the Imperial government of Russia in this enterprise, which it initiated. This part has been very variously and very imperfectly appreciated. There has been a desire to represent the Imperial government as more directly interested than it really is, and to attribute to it the success according to some, or the failure, according to others, of the Brussels conference, as a merit on one side or as a check on the other. It is very evident that the Imperial government has no other merit to claim than that of having stated questions and having provoked a discussion in a general interest. As to the result, it is no more interested than any other government.

If war can be rendered less onerous by certain regulations universally accepted, Russia will profit by it like the rest of the world; if it must continue to be carried on without rules and limits, Russia, like other states, can only guarantee herself or defend herself as she best can, and as far as that is concerned she is not the least favorably placed. Whatever may come of it, the imperial government is entirely disinterested, or rather its interest is not different from that of all. The conciliatory attitude of the Russian delegates has been in this respect the faithful reflection of the intentions and views of their government.

As to the further progress which this question will probably follow, we learn that the governments which took part in the Brussels reunion have been invited to examine the acts of the conference and transmit to St. Petersburg their conclusions, observations, and propositions.

When once these materials are reunited the question will be raised whether to formulate the points admitted in an act, the form of which shall be determined by common agreement, or to call a new conference for the discussion and adoption of a new and final project of such a nature as to conciliate all opinions.

So far as we are informed, most of the governments have already shown to the Imperial cabinet their best will to develop in a general understanding the thought of humanity, the initiative of which is due to His Majesty the Emperor.

[Inclosure 2 in No. 46.—Translation.]

project of an international declaration concerning the laws and customs of war.

[Text modified by the conference.]

Of military authority on the territory of the enemy’s country.

Article 1. A territory is considered as occupied when it is placed actually under the authority of the enemy’s army. The occupation extends only to the territories where that authority is established and can he exercised.

Art. 2. The authority of the legal power being suspended, and haying passed actually into the bands of the occupant, the latter shall take all measures in his power with a view to re-establish and assure, as much as possible, order and public life.

Art. 3. To this effect he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend, or replace them, except in case of necessity.

Art. 4. The functionaries and employés of every order who consent on his invitation to continue their functions shall enjoy his protection. They shall not be dismissed or disciplinarily punished unless they fail in the obligations accepted by them, and shall not be delivered up to justice unless they betray them.

Art. 5. The army of occupation shall only levy the imposts, duties, rights, and tolls already established for the benefit of the state, or their equivalent, if it is impossible to collect them, and as much as possible in the form and according to the existing usage. It shall employ them in defraying the expenses of the administration of the country in the same proportion as was obliged to be done by the legal government.

Art. 6. The army which occupies a territory shall only be able to seize the money, the funds, and securities properly belonging to the state, the depots of arms, means of transport, warehouses, and provisions, and in general all movable property of the state useful in the operations of war.

Railway material, land-telegraphs, steamboats, and other vessels, not comprised in cases ruled by maritime law, as well as the depots of arms, and in general every kind of munition of war, although belonging to societies or private persons, are equally useful means in the operations of war, and cannot he left by the army of occupation at the disposition of the enemy. Railway material, land-telegrapbs, as well as steamboats and other vessels above mentioned shall he returned and indemnities settled in time of peace.

Art. 7. The state in occupation shall only he considered as administrator and usufructuary of public buildings, lands, forests, and agricultural establishments belonging to the state of the enemy and found in the country occupied. It shall be obliged to keep safe the funds of these properties, and administer them according to the rules of usufruct.

Art. 8. The goods of corporations, those of establishments consecrated to religious worship, to charity and instruction, to the arts and sciences, even belonging to the state, shall he treated as private property.

Every seizure, intentional destruction, or degradation of similar establishments, of historical monuments, of works of art or of science, must be prosecuted by the competent authorities.

Who is to be recognized as a belligerent party—combatants and non-combatants.

Art. 9. The laws, rights, and duties of war apply not only to the army, but also to the militia and to the corps of volunteers uniting the following conditions:

1. Having at their head a person responsible for his subordinates;

2. Having a distinctive sign, fixed and recognizable at a distance;

3. Carrying arms openly; and

4. Complying in their operations with the laws and customs of war.

In those countries where the militia constitute the army or make part of it, the denomination of army shall include such militia.

Art. 10. The population of an unoccupied territory which on the approach of the enemy spontaneously takes up arms to combat the invading troops, without having had time to organize itself in conformity with article 9, shall be considered as a belligerent if it respects the laws and customs of war.

Art. 11. The armed forces of the belligerent parties may he composed of combatants and non-combatants. In case of capture by the enemy, both of them shall enjoy the rights of prisoners of war.

Means of injuring the enemy.

Art. 12 The laws of war do not recognize in belligerents an unlimited power as to the choice of means for injuring the enemy.

According to this principle are notably interdicted—

a. The employment of poison or poisoned arms.

b. The murder by treachery of individuals belonging to the nation or army of the enemy.

c. The murder of an enemy who, having laid down his arms or having no more means of defense, surrenders at discretion.

d. The declaration that quarter will not be given.

e. The employment of arms, projectiles, or matters causing superfluous injuries, as well as the use of projectiles prohibited by the declaration of St. Petersburg of 1868.

f. The abuse of the flag of truce, of the national flag, or of military insignia, and of the uniform of the enemy, as well as of the distinctive signs of the Geneva convention.

g. Every destruction or seizure of an enemy’s property which is not imperiously commanded by the necessity of war.

Art. 14. The tricks of war, (ruses de guerre,) and the employment of means necessary to obtain information about the enemy and the country, (excepting the dispositions of article 36,) are considered as legal.

Sieges and bombardments.

Art. 15. Fortified places can only be besieged. Towns, agglomerations of habitations, or open villages, which are not defended, can neither be attacked nor bombarded

Art. 16. But if a city or place of war, collection of habitations, or village, is defended, the commandant of the besieging troops, before undertaking the bombardment, except in the case of an attack, shall do all that he can to notify the authorities thereof.

Art. 17. In such a case all necessary measures must be taken to spare, as far as possible, buildings consecrated to divine worship, to the arts and sciences and to charity, hospitals and places for collection of the sick and wounded, on condition that they are not employed at the same time for a military purpose.

The duty of the besieged is to denote these edifices by special visible signs, which are to be indicated in advance to the besieger.

Art. 18. A city taken by assault shall not be given up to pillage by the victorious troops.

Spies.

Art. 19. No one can be considered as a spy except a person acting clandestinely, or under false pretenses collects or seeks to collect information in places occupied by the enemy for the purpose of communicating it to the adverse party.

Art. 20. A spy taken in the act shall be judged and treated according to the laws in force in the army which has captured him.

Art. 21. A spy who rejoins the army to which he belongs, and who is later captured by the enemy, shall be treated as a prisoner of war, and incur no responsibility for his previous acts.

Art. 22. Military men without disguise, who have penetrated into the zone of operations of the hostile army in order to gather information, shall not considered as spies.

In the same way military men, (and also civilians openly accomplishing their mission,) charged with the transmission of dispatches destined for their own or the enemy’s army, shall not be considered as spies if captured by the enemy.

To this category belong equally, if captured, individuals sent in balloons to transmit dispatches and in general to keep up communication between the different parts of an army or territory.

Prisoners of war.

Art. 23. Prisoners of war are legal and disarmed enemies.

They are in the power of the enemy’s government, but not in that of the individuals or bodies who have captured them.

They are to be treated with humanity. Every act of insubordination authorizes in respect to them the necessary measures of rigor.

Everything that belongs personally to them, except their arms, remains their property.

Art. 24. Prisoners of war can be subjected to confinement (internement) in any city, fortress, camp, or locality whatsoever, with the obligation of not going beyond certain fixed limits, but they can only be imprisoned as a measure of indispensable security.

Art. 25. Prisoners of war can be employed on certain public works which have no direct relation to the operations in the theater of war, and which are not fatiguing or humiliating to their military rank if they belong to the army, or to their official or social position if they do not form part of it.

They can also, by conforming to the regulations to be fixed by the military authority, take part in the labors of private industry.

Their pay shall serve to ameliorate their position, or will be accounted for to them at the moment of their liberation. In this case the expenses of maintenance can he deducted from this pay.

Art. 26. The prisoners of war shall in no way he obliged to take any part whatever in the operations of war.

Art. 27. The government in whose power the prisoners of war are, must pay for their maintenance.

The conditions of this maintenance can he established by a mutual understanding between the belligerent parties.

In default of this understanding, and as a general principle, prisoners of war shall be treated, as regards food and dress, on the same footing as the troops of the government which shall have captured them.

Art. 28. Prisoners of war are submitted to the laws and regulations in force in the army in the power of which they are. It is permitted, after summons, to make use of arms against the prisoner of war who is escaping. When retaken, he can be subjected to disciplinary punishment or to a more severe surveillance.

If after having succeeded in escaping he is again made prisoner, he is liable to no penalty for his previous flight.

Art. 29. Every prisoner of war is obliged to declare, if he is questioned in this respect, his true name and rank, and, in case of his infringing this rule, he shall be exposed to a restriction of the advantages accorded to prisoners of war of his category.

Art. 30. The exchange of prisoners of war is regulated by a mutual understanding “between the belligerent parties.

Art. 31. Prisoners of war can be put at liberty on parole if the laws of their country [authorize] it; and in such a case they are obliged, on the guarantee of their personal honor, to fulfill scrupulously, both toward their own government and toward that which has made them prisoners, the engagements which they shall have contracted. In the same case their own government ought neither to exact nor expect of them any service contrary to their given parole.

Art. 32. A prisoner of war cannot be forced to accept his liberty on parole; in the same way the hostile government is not obliged to accede to the request of a prisoner asking for his freedom on parole.

Art. 33. Every prisoner of war liberated on parole and retaken while hearing arms against the government towards which he has engaged his honor can be deprived of the rights of a prisoner of war, and he brought up before the tribunals.

Art. 34. Those persons can also be made prisoners who, while with the armies, do not directly make part of them, such as correspondents and reporters to newspapers, vivandières, sutlers, &c. Nevertheless, they should he provided with an authorization emanating from a competent power, and with a certificate of identity.

The sick and wounded.

Art. 35. The obligations of belligerents concerning the service of sick and wounded are regulated by the Geneva convention of the 22d August, 1864, subject to the modifications which may be made to it.

The military power with regard to private persons.

Art. 36. The population of an occupied territory cannot be forced to take part in military operations against their own country.

Art. 37. The population of an occupied territory cannot b e forced to take an oath of allegiance to the hostile power.

Art. 38. The honor and the rights of family, life, and the property of individuals, as well as their religious convictions and the exercise of their worship, are to be respected.

Private property cannot be confiscated.

Art. 39. Pillage is formally forbidden.

Contributions and requisitions.

Art. 40. As private property must be respected, the enemy can demand of communities or inhabitants nothing more than the contributions and services relating to the necessities of war, which are generally recognized in proportion to the resources of the country, and which do not imply for the population the obligation of taking part in the operations of war against their own country.

Art. 41. The enemy which raises contributions, either as an equivalent of the taxes, or as requisitions to be paid in kind, or as a punishment, shall proceed as much as possible according to the laws which regulate the taxes in force in the occupied territory.

The civil authorities of the legal government shall lend their assistance to this, if they shall have remained in their functions.

Contributions can only be imposed on the responsibility of the general-in-chief, or of the superior civil authority established by the enemy in an occupied territory.

For every contribution a receipt shall be given to the person who pays it.

Art. 42. Requisitions shall be made only with the authorization of the commandant in the locality occupied.

For every requisition an indemnity shall be granted or a receipt delivered.

Flags of truce.

Art. 43 That person is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into negotiations with the other, and who presents himself with a white flag, accompanied by a trumpeter, (bugler or drummer,) or also by a standard-bearer.

He shall have the right to inviolability, as well as the trumpeter, bugler or drummer, or the standard-bearer, who accompanies him.

Art. 44. The chief to whom a flag of truce is sent is not obliged to receive it under all circumstances and in all conditions.

He is allowed to take all necessary measures to prevent the bearer of a flag of truce from profiting by his sojourn within the enemy’s lines to the prejudice of the latter, and if the bearer of a flag of truce has rendered himself culpable of this abuse he has the right of retaining him temporarily.

He can declare in advance that he will not receive flags of truce during a fixed time.

Flags of truce which shall present themselves after such a notification from the side of the party which shall have received it shall lose the right to inviolability.

Art. 45. The bearer of a flag of truce loses his right to inviolability if it is proved in a positive and incontrovertible manner that he has profited by his privileged position to provoke or commit an act of treason.

Capitulations.

Art. 46. The conditions of capitulations are to be debated between the contracting parties.

They shall not be contrary to military honor.

Once fixed by a convention, they must be scrupulously observed by both parties.

Armistices.

Art. 47. An armistice suspends the operations of war by a mutual agreement of the belligerent parties. If its duration is not determined, the belligerent parties can at any time resume operations; provided, however, that the enemy is notified of it in proper time, conformable to the conditions of the armistice.

Art. 48. An armistice can be general or local. The first suspends everywhere the operations of war of the belligerent states; the latter, only between certain fractions of the belligerent armies, and within fixed lines.

Art. 49. The armistice ought to be official, and without delay notified to the competent authorities and to the troops. Hostilities are suspended immediately after the notification.

Art. 50. It depends on the contracting parties to fix in the clauses of the armistice the relations which can exist between the population.

Art. 51. The violation of the armistice by one of the parties gives to the other the right of denouncing it.

Art. 52. The violation of the clauses of the armistice by private persons, acting on their own initiative, gives right only to demand the punishment only of those who are guilty and an indemnity for the losses received, if any.

Belligerents confined and wounded cared for by neutrals.

Art. 53. The neutral state which receives on its territory troops belonging to the belligerent armies shall confine them as far as possible from the theater of war.

It shall keep them in camps, and even imprison them in fortresses or in fit places.

It shall decide if the officers can be left free on taking an engagement on parole not to quit the neutral territory without authorization.

Art. 54. In default of a special convention, the neutral state shall furnish to the persons so confined the food, clothing, and help commanded by humanity.

When peace is made, indemnity shall be given for the expenses occasioned by this confinement.

Art. 55. The neutral state can authorize the passage over its territory of the wounded or sick belonging to the belligerent armies, with the reserve that the trains which bring them shall not transport other soldiers or materials of war.

In such a case the neutral state is bound to take the necessary measures of safety and control.

Art. 56. The Geneva convention is also applicable to the sick and wounded on neutral territory.

Final protocol.

The conference assembled at Brussels on the invitation of the government of His Majesty the Emperor of Russia, to deliberate on a project of an international regulation of the laws and customs of war, has examined the project submitted to its discussions in a spirit conformed to the lofty thought which had presided at its convocation, and which all the governments there represented have received with sympathy.

This thought had already found its expression in the declaration, exchanged in 1868 between all the governments, relative to the prohibition of explosive balls.

It had been unanimously agreed that the progress of civilization ought to have for its effect to attenuate as far as possible the calamities of war, and that the sole legitimate end that states should propose to themselves during war is to enfeeble the enemy without inflicting on him useless suffering.

These principles have, then, met with universal assent. To-day the conference keeping in the same way, agrees with the conviction expressed by the government of His Majesty the Emperor of Russia, that there is a step more to be made in revising the laws and general customs of war, either in order to define them more precisely or to have, by common agreement, certain limits destined to restrict as far as possible their rigors.

War being thus regulated would bring about fewer calamities, would be less subjected to the aggravations which are brought to it by uncertainty, want of foresight, and the passions excited by the struggle which would conduce more efficaciously to what ought to be its final ends; that is to say, the establishment of good relations and of a more solid and durable peace between the belligerent States.

The conference has believed that it could not better have complied with these ideas of humanity than by inspiring itself with them equally in the examination of the project submitted to its deliberations. The modifications which have been introduced into it, the commentaries, reserves, and separate opinions which the delegates have believed it their duty to insert in the protocol, according to their instructions, and the particular points of view of their governments, or their personal opinions, form the whole of its work. It believes that it can report to the respective governments of which it is the delegate, as a conscientious inquiry of a nature to serve for the base for a further exchange of ideas and for a development of dispositions of the. Geneva convention of 1864, and the declaration of St. Petersburg of 1868. It will belong to them to appreciate what in this work can become the object of an understanding and what will necessitate a further examination.

The conference expressed, in terminating the conviction, that its debates will, in any case, have brought light on these important questions, the regulation of which, if it results in a general understanding, will be a real progress for humanity.

Done at Brussels the 27th August, 1874.

Signed by all the delegates.