International Law. A Treatise Volume Ii Part 17

526-536--Calvo, IV. ---- 2161-2165--Fiore, III. Nos. 1363-1372, and Code, Nos. 1589-1604--Martens, II. -- 114--Longuet, ---- 85-90--Merignhac, pp. 114-142--Pillet, pp.

165-192--_Kriegsbrauch_, p. 26--_Land Warfare_, ---- 174-220--Zorn, p. 122--Bordwell, pp. 249-277--Spaight, pp. 419-460--Higgins, pp.

35-38--Holland, _Studies_, pp. 61-65--Holland, _War_, Nos.

41-69--Guret, _Zur Geschichte der internationalen und freiwilligen Krankenpflege_ (1873)--Lueder, _Die Genfer Convention_ (1876)--Moynier, _La croix rouge, son pa.s.se et son avenir_ (1882); _La revision de la Convention de Geneve_ (1898); _La fondation de la croix rouge_ (1903)--Buzzati, _De l'emploi abusif ... de la croix rouge_ (1890)--Triepel, _Die neuesten Fortschritte auf dem Gebiet des Kriegsrechts_ (1894), pp. 1-41--Muller, _Entstehungsgeschichte des rothen Kreuzes und der Genfer Konvention_ (1897)--Munzel, _Untersuchungen uber die Genfer Konvention_ (1901)--Roszkoroski in _R.I._ 2nd Ser. IV. (1902), pp.

199, 299, 442--Gillot, _La revision de la Convention de Geneve, etc._ (1902)--Meurer, _Die Genfer Konvention und ihre Reform_ (1906)--Delpech in _R.G._ XIII. (1906), pp. 629-724--Macpherson in _Z.V._ V. (1911), pp. 253-277.

[Sidenote: Origin of Geneva Convention.]

-- 118. Although[246] since the seventeenth century several hundreds of special treaties have been concluded between different States regarding the tending of each other's wounded and the exemption of army surgeons from captivity, no general rule of the Law of Nations on these points was in existence until the second half of the nineteenth century other than one prohibiting the killing, mutilation, or ill-treatment of the wounded. A change for the better was initiated by Jean Henry Dunant, a Swiss citizen from Geneva, who was an eye-witness of the battle of Solferino in 1859, where many thousands of wounded died who could, under more favourable circ.u.mstances, have been saved. When he published, in 1861 and 1863, his pamphlet, _Un Souvenir de Solferino_, the Geneva _Societe d'utilite publique_, under the presidency of Gustave Moynier, created an agitation in favour of better arrangements for the tending of the wounded on the battlefield, and convoked an international congress at Geneva in 1863, where thirty-six representatives of nearly all the European States met and discussed the matter. In 1864 the Bundesrath, the Government of the Federal State of Switzerland, took the matter in hand officially, and invited all European and several American States to send official representatives to a Congress at Geneva for the purpose of discussing and concluding an international treaty regarding the wounded.

This Congress met in 1864, and sixteen States were represented. Its result was the international "Convention[247] for the Amelioration of the Condition of Soldiers wounded in Armies in the Field," commonly called "Geneva Convention," signed on August 22, 1864. By-and-by States other than the original signatories joined the Convention, and finally the whole body of the civilised States of the world, with the exception of Costa Rica, Monaco, and Lichtenstein, became parties. That the rules of the Convention were in no wise perfect, and needed to be supplemented regarding many points, soon became apparent. A second International Congress met at the invitation of Switzerland in 1868 at Geneva, where additional articles[248] to the original Convention were discussed and signed. These additional articles have, however, never been ratified.

The First Hague Peace Conference in 1899 unanimously formulated the wish that Switzerland should shortly take steps for the a.s.semblage of another international congress in order to revise the Geneva Convention. This Congress a.s.sembled in June 1906, thirty-five States having sent representatives, and on July 6, 1906, a new Geneva Convention[249] was signed by Great Britain, Germany, Argentina, Austria-Hungary, Belgium, Bulgaria, Chili, China, Congo Free State, Korea, Denmark, Spain, the United States of America, Brazil, Mexico, France, Greece, Guatemala, Honduras, Italy, j.a.pan, Luxemburg, Montenegro, Norway, Holland, Peru, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland, and Uruguay. Most of these States have already ratified, and Colombia, Costa-Rica, Cuba, Nicaragua, Salvador, Turkey, and Venezuela, which were not represented at the Congress, acceded later. There is no doubt that in time all the civilised Powers will become parties.

[Footnote 246: See Macpherson, _loc. cit._ p. 254.]

[Footnote 247: See Martens, _N.R.G._ XVIII. p. 607, and above, vol. I. -- 560.]

[Footnote 248: See Martens, _N.R.G._ XVIII. p. 61.]

[Footnote 249: See Martens, _N.R.G._ 3rd. Ser. II. (1910), p. 620, and _Treaty Series_, 1907, No. 15.]

The new Convention consists of thirty-three articles instead of the ten articles of the old Convention, and provides rules for the treatment of the wounded and the dead; further rules concerning military hospitals and mobile medical units; the personnel engaged in the interest of the wounded including army chaplains; the material belonging to mobile medical units, military hospitals, and voluntary aid societies; the convoys of evacuation; the distinctive emblem; the carrying out of the Convention; and the prevention of abuses and infractions.

In the final protocol the Conference expresses the desire that, in order to arrive at a unanimous interpretation of the Convention, the parties should, so far as the cases and the circ.u.mstances permit, submit to Hague Court Arbitration any differences which _in time of peace_ might arise between them concerning the interpretation of the Convention, but Great Britain and j.a.pan refused to become parties to this.

[Sidenote: The Wounded and the Sick.]

-- 119. According to articles 1-5 of the Geneva Convention,[250] the sick and wounded persons belonging, or officially attached, to armies must be respected and taken care of, without distinction of nationality, by the belligerent in whose power they may be. Should, however, a belligerent necessarily be compelled to abandon such sick and wounded persons to the enemy, he must, so far as military exigencies permit, leave behind with them a portion of his medical personnel to take care of them, and the necessary material. The sick and wounded who have fallen into the hands of the enemy are prisoners of war, but belligerents may exchange or release them, or even hand them over to a neutral State which has to intern them until after the conclusion of peace. After each engagement the commander in possession of the field must have search made for the wounded and must take measures to protect them against pillage and maltreatment. A nominal roll of all wounded and sick who have been collected must be sent as early as possible to the authorities of the country or army to which they belong, and the belligerents must keep each other mutually informed of any internments and changes as well as of admissions into hospital. It is specially stipulated by article 5 that, if a military authority finds it necessary to appeal to the charitable zeal of the inhabitants to collect and take care of, under his direction, the wounded and sick of armies, he can grant to those who have responded to his appeal special protection and certain immunities.

[Footnote 250: The stipulations of the Geneva Convention are for the most part of a technical military character, and it is, therefore, impossible in a general treatise of International Law to enter into any details. Readers who take a deeper interest in the matter must be referred to the most valuable article by Macpherson in _Z.V._ V. (1911), pp. 253-277.]

[Sidenote: Medical Units and Establishments, and Material.]

-- 120. In order that the wounded and sick may receive proper treatment, mobile medical units as well as the fixed establishments of the medical service must be respected and protected by the belligerents, but this protection ceases if these units and establishments are made use of to commit acts harmful to the enemy, for instance, to shelter combatants, to carry on espionage, to conceal arms and ammunition (articles 6 and 7). But article 8 expressly enacts that the units and establishments do not forego protection:--(_a_) in case the personnel is armed and use their arms for their own defence or for the defence of the wounded and sick under their charge; (_b_) in case, in default of armed orderlies, units or establishments are guarded by pickets or by sentinels furnished with authority in due form; (_c_) in case weapons and cartridges, taken from the wounded and not yet handed over to the proper department, are found in units or establishments.

As regards the _material_, a distinction is drawn between the treatment of the material of mobile medical units, of fixed medical establishments, and of material belonging to Voluntary Aid Societies.

(_a_) Mobile medical units which fall into the hands of the enemy must not be deprived of their material, including their teams, whatever may be the means of transport and whoever may be the drivers employed (article 14). The competent military authority is, however, permitted to make use of the material in captured medical units for the treatment of the wounded and the sick at hand, provided it is restored under the same conditions, and so far as possible at the same time, as laid down for the release of the medical personnel by article 12.

(_b_) The buildings and material of fixed medical establishments which, because the locality where they are is militarily occupied, fall into the hands of the enemy, remain, according to article 15, "subject to the laws of war," that means they remain entirely in the power of the captor, but they may not be diverted from their medical purpose so long as they are necessary for the proper treatment of the wounded and the sick. Should, however, urgent military necessity demand it, a commander may dispose of them, provided he makes previous arrangements for the welfare of the wounded and sick found in the fixed establishments.

(_c_) The material of Voluntary Aid Societies, which are duly recognised, is, according to article 16, considered private property and must, therefore, be respected as such under all circ.u.mstances, although it may be requisitioned.

[Sidenote: Personnel.]

-- 121. The personnel engaged exclusively in the collection, transport, and treatment of the wounded and sick, as well as in the administration of mobile medical units and establishments, the chaplains attached to armies, and, lastly, pickets and sentinels guarding medical units and establishments, must, according to article 9, under all circ.u.mstances be respected and protected. If they fall into the hands of the enemy they must not be treated as prisoners of war. According to article 12, however, they are not free to act or move without let or hindrance, for, if their a.s.sistance is indispensable, they may be called upon by the captor to carry on their duties to the wounded and the sick. But when their a.s.sistance is no longer indispensable, they must be sent back to their army or to their country at such time and by such route as may be compatible with military exigencies, and they must be allowed to take with them such effects, instruments, arms, and horses as are their private property. So long as they are detained by the enemy he must, according to article 13, grant them the same allowances and the same pay as are due to the personnel holding the same rank in his own army.

The personnel of Voluntary Aid Societies employed in the medical units and establishments is, according to article 10, privileged to the same extent as the official personnel, provided that the Voluntary Aid Society concerned is duly recognised and authorised by its Government and that the personnel of the Society is subject to military law and regulations. Each State must notify to the other, either in time of peace or at the commencement, or during the course, of hostilities, but in every case before actually employing them, the names of societies which it has authorised to render a.s.sistance to the regular medical service of its armies. A recognised Voluntary Aid Society of a _neutral_ country cannot, according to article 11, afford the a.s.sistance of its personnel and units to a belligerent unless it has previously received the consent of its own Government and of the belligerent concerned. And a belligerent who accepts such a.s.sistance from a Voluntary Aid Society of a neutral country is bound, before making any use of it, to notify the fact to the enemy.

[Sidenote: Convoys of Evacuation.]

-- 122. Convoys used for evacuating the wounded and sick must, as regards their personnel and material, be treated in the same way as mobile medical units, but subject to the following special provisions enacted by article 17:--

A belligerent intercepting a convoy may, if military exigencies demand, break it up, provided he takes charge of the sick and wounded who are in it. In this case, the obligation to send back the medical personnel, provided for in article 12, must be extended to the whole of the military personnel detailed for the transport or the protection of the convoy and furnished with an authority in due form to that effect.

The obligation to restore the medical material, provided for in article 14, must apply to railway trains and boats used in internal navigation, which are specially arranged for evacuation, as well as to the material belonging to the medical service for fitting up ordinary vehicles, trains, and boats. Military vehicles, other than those of the medical service, however, may be captured with their teams; and the civilian personnel and the various means of transport obtained by requisition, including railway material and boats used for convoys, are subject to the general rules of International Law concerning war.

[Sidenote: Distinctive Emblem.]

-- 123. According to article 18 the Swiss heraldic device of the red cross on a white ground, formed by reversing the federal colours, is adopted as the emblem and distinctive sign of the medical service of armies, but there is no objection to the adoption of another emblem on the part of such non-Christian States as object to the cross on religious grounds. Thus Turkey has subst.i.tuted a red crescent, and Persia a red sun for the cross.[251] The following are the rules concerning the use of this emblem:--

(1) The emblem must be shown on the flags and the armlets (_bra.s.sards_) as well as on all the material belonging to the medical service, but the emblem cannot be recognised unless it is used with the permission of the competent military authority (article 19).

(2) Medical units and establishments must hoist the red cross flag accompanied by the national flag of the belligerent concerned (article 21), but medical units which have fallen into the hands of the enemy must not, so long as they are in that situation, fly any other flag than that of the red cross. The medical units belonging to neutral countries which have, in accordance with article 11, been admitted to afford their services, must fly, along with the red cross flag, the national flag of the belligerent to whose army they are attached (article 22).

(3) All the personnel must, according to article 20, wear, fixed to the left arm, an armlet (_bra.s.sard_) with a red cross on a white ground, delivered and stamped by the competent military authority and accompanied by a certificate of ident.i.ty in the case of persons who are attached to the medical service and armies without wearing the military uniform.

(4) The employment of the red cross on a white ground and the words "Red Cross" or "Geneva Cross" must not, according to article 23, be used, either in time of peace or in time of war, except to indicate the protected medical units, establishments, personnel, and material.

[Footnote 251: See below, -- 207.]

[Sidenote: Treatment of the Dead.]

-- 124. According to a customary rule of the Law of Nations belligerents have the right to demand from one another that dead soldiers shall not be disgracefully treated, especially not mutilated, and shall be, so far as possible, collected and buried[252] or cremated on the battlefield by the victor. The Geneva Convention does not stipulate any rule concerning the collection and burial or cremation of the dead, but article 3 enacts that after each engagement the commander in possession of the field must take measures to ensure protection of the dead against pillage and maltreatment, and that a careful examination of the bodies, in order to see that life is really extinct, must be made before the dead are buried or cremated. Each belligerent must send as soon as possible to the authorities of the country or army to which they belong the military identification marks or tokens found on the dead (article 4). Pieces of equipment found upon the dead of the enemy are public enemy property and may, therefore, be appropriated as booty[253] by the victor. On the other hand, letters, money, jewellery, and such other articles of value found upon the dead on the battlefield, or on those who die in the medical units or fixed establishments, as are apparently private property, are not booty, but must, according to article 4 of the Geneva Convention and article 14 of the Hague rules concerning warfare on land, be collected and handed over to the Bureau of Information[254]

concerning the prisoners of war, which has to transmit them to the persons interested through the channel of the authorities of their own country.

[Footnote 252: See Grotius, II. c. 19, ---- 1 and 3. Regarding a valuable suggestion of Ullmann's concerning sanitary measures for the purpose of avoiding epidemics, see above, vol. I. p. 621, note 1.]

[Footnote 253: See below, -- 139.]

[Footnote 254: See below, -- 130.]

[Sidenote: Application of the Geneva Convention, and Prevention of Abuses.]

-- 124_a_. The provisions of the Geneva Convention are only binding in the case of war between two or more of the contracting parties, they cease to be binding from the moment when one of the belligerent Powers is not a party (article 24). The commanders-in-chief of the belligerent armies must, in accordance with the instructions of their Governments and in conformity with the general principles of the Geneva Convention, arrange the details for carrying out the articles of the Geneva Convention, as well as for cases not provided for in these articles (article 25). The contracting parties must take the necessary measures to instruct their troops, especially the personnel protected by the Geneva Convention, in the provisions of the Convention, and to bring these provisions to the notice of the civil population (article 26). In countries whose legislation is not at the time of the signing of the Convention adequate for the purpose, the contracting parties must adopt such measures as may be necessary to prevent, at all times, the employment of the emblem or the name of "Red Cross" or "Geneva Cross"

by private individuals or by Societies other than those which are ent.i.tled to do so according to the Geneva Convention, and in particular for commercial purposes as a trade mark or trading mark (article 27).

The contracting Governments must likewise adopt measures necessary for the repression in time of war of individual acts of pillage and maltreatment of the wounded and sick, as well as for the punishment of the improper use of the Red Cross flag and armlet (_bra.s.sard_) by officers and soldiers or private individuals not protected by the Geneva Convention. They must, at the latest within five years from the ratification of the Geneva Convention, communicate to one another through the Swiss Federal Council, the provisions concerning these measures of repression (article 28).[255]

[Footnote 255: By reason of the uncertainties of parliamentary proceedings, Great Britain, in signing and ratifying the Geneva Convention, entered a reservation against articles 23, 27, and 28, but by the Geneva Convention Act, 1911 (1 & 2 Geo. V. ch. 20), Great Britain is now able to carry out the stipulations of these three articles.]

[Sidenote: General provisions of the Geneva Convention.]

-- 124_b_. The Geneva Convention comes into force for each contracting Power six months after the date of the deposit of its ratification (article 30). The new Geneva Convention replaces the old of 1864, but the old Geneva Convention remains in force between such of its contracting parties as do not become parties to the new Convention of 1906 (article 31). Such of the Powers as signed the old Convention of 1864, but did not sign the new Convention of December 31, 1906, are free to accede to it at any time later by means of a written notification to the Swiss Federal Council. Other Powers may likewise notify their accession at any time to the Swiss Federal Council, but their accession only takes effect in case, within a period of one year from such notification, no objection to the accession reaches the Swiss Federal Council from any of the previous contracting Powers (article 32). Each of the contracting Powers is at liberty at any time to denounce the Geneva Convention by a written notification to the Swiss Federal Council, which must immediately indicate it to all the other contracting Powers (article 33). The denunciation, however, does not take effect until one year after it has come to the notice of the Swiss Federal Council, and a denunciation only affects such Power as has notified it.

IV

CAPTIVITY

Grotius, III. c. 14--Bynkershoek, _Quaest. jur. publ._ I. c.

3--Vattel, III. ---- 148-154--Hall, ---- 131-134--Westlake, II. pp.