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The above clause (6), which was suggested by some remarks of the first Japanese delegate in the comité de redaction, and amended by the Russian delegate, and then modified by the British, to make it harmonize with the convention on wireless telegraphy of 1906, is explained, in the report submitted to the conference, to be for the purpose of inducing the British and Japanese delegations to abandon their reservations made previously to three of the articles of the proposed convention. It is to be hoped that this section will not, in the future, provoke any serious difficulties.
8. Japan held that the use of neutral territory should also be prohibited as a base for storehouses or military depots. A few observations, however, showing the uselessness of such a measure, the facility with which it could be evaded by availing of private individuals, and the complications to which it would give rise with respect to the neutral state, were of such weight with the Japanese delegation that they refrained from insisting upon their proposition.
9. With respect to escaped prisoners of war who may reach neutral territory, there was no difficulty whatever in accepting the universally established rule that they should be at once at liberty; but the proposition with regard to those prisoners who are accompanied by an armed enemy force in search of asylum or refuge aroused a lively debate in the committee and in the commission.
Some of the delegations thought that to leave them absolutely at liberty would be in contravention of article 59 of the rule of 1899 concerning laws and customs of war on land, as well as of article 15 of the convention adopted by this Second Conference on the 20th of July, 1907, for adapting to maritime warfare the principles of the Geneva Convention negotiated the previous year. In both conventions it is provided that the wounded or sick, belonging to belligerent forces and brought by land or sea into a neutral state with its consent, must remain under the guard of that state, so that they may not take part anew during the war in the hostile operations.
The case is, however, different. When a body of the army, encamped near the frontier, enters neutral territory and there yields up its arms, it does so undoubtedly in order to avoid surrender.
If it shall have chosen to surrender, it is undeniable that the enemy prisoners which it had should immediately be at liberty. How could a neutral state consent that a war prison be maintained for them simply because the military force which guards them has substituted surrender for entrance into its territory?
Comparing such diverse questions as human liberty and material property, one of the Russian delegates maintained that the logic of such reasoning would also carry with it the delivery to the victorious enemy of the arms and munitions of the refugee forces ; but the extreme difference between both hypotheses strengthened the other reasons in support of the liberty of prisoners. Aside from humanitarian considerations, it is easy to comprehend that neutral states neither can nor ought to permit a foreign armed force, once having put foot into its territory, to continue exercising there effective power, or even the control which the holding of prisoners under guard would imply. As soon as the army crosses the frontier and leaves the belligerent territory it loses every right and title of authority which it exercised over enemy prisoners, and the latter recover ipso jure their liberty. And in order that they may also recover it ipso facto the authority of the neutral state intervenes.
The commission except for a Russian reservation not maintained or repeated in the plenary session of the conference - adopted the formula favorable to prisoners of war in such situation. And with respect to all prisoners of war escaping or liberated in neutral territory, it admitted the right of the state to tolerate or not their presence, and to indicate for them a fixed place of residence if they remained in the country.
10. Shall material of war, carried by the army across the neutral frontier and which the said army has captured previously from the enemy, continue to belong to the party which brought it in or be retained by the neutral state in order to turn it over to its former owner when the war shall close ? This latter theory was strongly urged by one of the Dutch amendments, without doubt for the same reason which prompted the proposition regarding the liberation of prisoners.
Nevertheless, the case is different. Aside from the material difficulties which seem to distinguish property which once belonged to the interned army and now belongs to its enemy, it is important not to overlook that right of capture in war grants to each belligerent absolute and unrestricted ownership of the armaments and military effects which it captures from the enemy.
The neutral state might impose a sort of rescission of title perhaps long antecedent to the moment of intervention.
There is another consideration — a practice in civil law - which should not be lost sight of, because it goes further than international rule. Even those tribunals in which the recovery of personal property has the greatest latitude hold that for third parties possession is equal to title. Only a judge has sufficient authority to intervene between interested parties and deprive one of them of possession, granting it to the other. It is not proper for a neutral state to take unto itself judicial functions and decide between the belligerents with respect to the rights of either to confiscated material of
A written regulation upon the matter in these conventions would completely deprive the contending nations of their liberty to decide at the close of the war as to the destination of that material. Rightly, then, the authors of the proposition refrained from insisting upon the amendment and kept silent regarding the regulations which the conference should adopt.
11. Neither was it thought necessary to expressly include the Danish proposition concerning the mobilization of military forces by a neutral state. It deals with an undeniable right, but subordinated in its exercise to numerous political exigencies. It might also happen that the defense of neutrality might serve as a pretext for mobilization with really other intentions. It was expedient not to mention explicitly such a contingency, which the plenary conference did not discuss.
12. The result of the amendments to which we have referred, and of the study of the problems alluded to, was a draft of a declaration concerning the rights and duties of neutral states in land warfare, which the conference approved unanimously and without any reservation at the plenary session, September 7, 1907. The text is as follows:
ARTICLE 1. The territory of neutral powers is inviolable.
ARTICLE 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral power.
ARTICLE 3. Belligerents are likewise forbidden to
(a) Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;
(6) Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages.
ARTICLE 4. Corps of combatants can not be formed nor recuiting agencies opened on the territory of a neutral power to assist the belligerents.
ARTICLE 5. A neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its territory.
It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.
ARTICLE 6. The responsibility of a neutral power is not engaged by the fact of persons crossing the frontier separating to offer their services to one of the belligerents.
ARTICLE 7. A neutral power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.
ARTICLE 8. A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.
ARTICLE 9. Every measure of restriction or prohibition taken by a neutral power in regard to the matters referred to in articles 7 and 8 must be impartially applied by it to both belligerents.
A neutral power must see to the same observation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus.
ARTICLE 10. A neutral power which receives escaped prisoners of war shall leave them at liberty. If it allows them to remain in its territory it may assign them a place of residence.
The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power.
ARTICLE 11. The fact of a neutral power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act.
13. The conference of 1899, in drawing up the declaration concerning the laws and customs of war on land, included four articles which properly did not belong to the subject, and which are grouped
at the end in a chapter relating to interned belligerents and wounded tended in neutral territory.
One of these articles, the fifty-seventh, declares that a neutral power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theater of war.
It may keep them in camps and even confine them in fortresses or in places set apart for this purpose; and it shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission.
By article 58, in the absence of a special convention to the contrary, the neutral power shall supply the interned with the food, clothing, and relief required by humanity.
At the conclusion of peace the expenses caused by the internment shall be made good.
By articles 59 and 60 a neutral state may authorize the passage into its territory of the sick and wounded belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor war material. In such a case, the neutral power is bound to take whatever measures of safety and control are necessary for the purpose.
The sick or wounded brought under these conditions into neutral territory by one of the belligerents, and belonging to the hostile party, must be guarded by the neutral power so as to insure their not taking part again in the military operations. The same duty shall devolve on the neutral state with regard to wounded or sick of the other army who may be committed to its care, the Convention of Geneva being applicable to all the interned under such conditions.
We mention these articles because they form part of the new declaration of the rights and duties of neutral powers in land warfare, adopted at the Second Peace Conference, and because article 57 was the subject of two Japanese amendments given below.
The following is the text of the two amendments in their final form, after modification in the first subcommission of the second commission, on July 10, 1907: