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of the convention of 1906 there is not need of completing the convention of 1899, at the same time remaining true to the spirit from which it evolved.
A great debt of gratitude is due to the German delegation for the conscientious work which it has undertaken for the purpose of adapting to the convention of 1899 the extensions and amendments added to the convention of 1864. Our labor has been much simplified thereby. The object will be simply to see if there are not in certain respects differences between naval and continental war such as to explain the reason for not applying purely and simply to the one the solution adopted for the other. Sometimes analogies are more apparent than real.
The proposals of the French delegation have likewise in view the completion rather than the modification of the convention of 1899 by providing for the cases which were overlooked in the latter. Cer: tain amendments proposed by the delegation of the Netherlands tended, on the contrary, it would seem, to modify the principles of the convention of 1899.
The commission had first to decide the question, “Should the convention of 1899 remain in an amended or completed form; or should a new convention be drawn up in which the provisions retained and the new ones adopted were combined ?” The second method was adopted without hesitation. The supplementary texts are somewhat long and deal with matters too distinct to be combined without great difficulty. In a matter of this kind, where rules to cover difficult situations are laid down, the text adopted should be clear, precise, and easy of consultation.
The convention of 1899 contains fourteen articles; the project which we submit has twenty-six. This difference should not cause dismay. It must not be thought that any very great changes have been made in the work of 1899, which conserves its own structure unaltered by the proposed additions, which should not be the cause of any serious dispute.
The title of the convention must evidently be changed. The substitution of the date of “July 6, 1906," for that of “ August 22, 1861," suffices.
Articles 1 and 2, relating to military hospital ships and to the hospital ships of belligerents, are articles 1 and 2 of the convention of 1899 retained without change.
Article 3,2 on the contrary, modifies article 3 of the convention of 1899. The majority of the commission has in fact adopted an amendment proposed by the German delegation based upon article 11 of the convention of 1906. To understand the difficulty which arises it is necessary to compare the case provided for by the latter convention with the analogous case which occurs in maritime warfare. A relief society of a neutral country wishes to come to the aid of one of the belligerents. Subject to what conditions can this be done? Such a society must first receive the consent of the government of its own country, then the consent of the belligerent whom it wishes to aid and under whose direction it must place itself. It will temporarily form a part of the sanitary service of the belligerent, as is shown by the obligation imposed by article 22, paragraph 1, to display the national flag of the belligerent besides the flag of the convention.
In 1899 it was a question as to the situation of hospital ships of neutral countries disposed to offer their charitable aid. No precedents existed, since the convention of 1864 did not provide for the case of neutral ambulances, and until the convention of 1906 it was a disputed question whether such ambulances could fly their national flag or whether they should display that of the beiligerent. In this connection the committee of 1899 expressed the following sentiment:
It has been proposed to require that neutral hospital ships place themselves under the direct authority of one of the belligerents. A careful study has shown us that such a provision would give rise to serious difficulties. What flag would the ships in question fly? Would there not be something in the nature of a violation of neutrality in the fact of a
2 ARTICLE 3. Hospital ships, equipped entirely or in part at the expense of private persons or of officially recognized societies of neutral countries, shall be respected and exempt from capture, upon the condition that they are placed under the direction of one of the belligerents, with the previous assent of their own government and with the authorization of the belligerent itself, the latter having notified their names to the adversary at the commencement of, or during the course of, the hostilities, and in any case before it is employed.
ship's having an official commission to be incorporated in the navy of one of the belligerents? It seemed to us that it would suffice if these ships which are primarily under the control of the government from whom they have received their commission were subjected to the authority of the belligerents in accordance with the provisions of article 4.
These reasons are, in the opinion of certain members of the commission, of no less force to-day. They feel that the text of article 11 of the convention of 1906 is not sufficient to invalidate them. neutral ambulance which wishes to help the belligerent in its relief work must in the very nature of things be incorporated in that service; it is hard to imagine its being free from control within the lines of the belligerent, who must be responsible to his adversary for its acts and who should in consequence have authority over it. The case seems to be different for a neutral hospital ship which operates on the open sea, where it enjoys an independence of action to which an ambulance can not lay claim. Moreover, it is added, a neutral hospital ship may intend not to help one belligerent more than the other, but to remain in the vicinity of the naval operations ready to render assistance to both parties. This presents no inconvenience because of the means at the disposal of the belligerents to prevent the abuses which might accompany the charitable assistance.
This reasoning did not convince the majority of the commission, which opined for a change in article 3, so as to make it in accord with article 11 of the convention of 1906. Reasons of military expediency necessitate, it is said, this action; that the independence allowed the neutral hospital ship would leave the way open to serious abuses which article 4 does not contemplate and could not repress.
That is why the commission proposes the modification of article 3, to conform to the convention of 1906. Article 3 refers solely to the obligation for the neutral hospital ship to place itself at the service (hospital service, of course) of one of the belligerents. Article 5, new, paragraph 4, makes the logical application of this provision respecting the flag to be displayed by the neutral ship so employed. It is worth while to note that the text of this is not, whatever may be said, in perfect harmony with article 11 of the convention of 1906, in accordance with which a neutral ambulance displays two flags — that of the Geneva Convention and that of the belligerent — while the new paragraph of the fifth article provides that the ship shall carry three flags: the flag of the Geneva Convention, its national flag, besides the flag of the belligerent displayed at the mainmast. We know of no precedent along this line. The text proposed by the German delegation has been changed because it was thought unnecessary to exact that the hospital ship place itself in the service of the belligerent; it is enough to say that it place itself under its direction.
Article 4 is not changed. It seems to have provided the belligerents with sufficient powers to prevent abuses.
Article 5 is retained for the most part. Its object is to indicate the manner in which the hospital ships are to be distinguished.
A modification of the fourth paragarph and the addition of two new paragraphs are to be noted.
The modification has been explained above in relation to the provisions of the project bearing on the situation of neutral liospital ships. If the system adopted by the commission be not retained by the conference it would be necessary to return to the text of the convention of 1899.
The new paragraph 5 is intended to apply the provision of article 21, paragraph 2, of the convention of 1906, to the matter of which we treat. That provision reads as follows:
Sanitary organizations which fall into the power of the enemy do not display any flag except that of the Red Cross as long as they continue in that situation.” The situation is not identical for a hospital ship, which would not, it seems, fall into the power of the enemy in the same way as an ambulance, which, in point of fact, is within the lines of the enemy and more or less apt to be confused with his own organization. The provision was intended to apply to the case of ships detained in accordance with the terms of article 4, paragraph 5. In consequence the wording of the German amendment was slightly modified. The rule found in article 5, paragraph 5, new, has a very wide application and comprises all cases. If the hospital ship of a belligerent is retained by the adversary, it 'hauls down its national flag and only retains the flag of the Red Cross. In the case of a neutral hospital ship it hauls down the flag of the belligerent into the service of which it has entered but retains its own national flag.
Finally, the sixth paragraph, new, refers to the distinctive marks to make the hospital ships recognizable during the night. The German delegation proposed the following provision: “As a distinguishing mark all hospital ships shall carry during the night three lights green, white, green - placed vertically, one above the other, and separated by at least three meters.” Various objections were raised. The provision seemed imperative in its nature, but a hospital ship which accompanies a squadron can not be made to give away its presence to the enemy; it should be free to make its presence known or not, subject to the danger of being exposed to an attack if its character is not apparent. Further, a ship might make an illicit use of the lights, to effect its escape.
The commission adopted a text which met these objections; the ships which wish to secure during the night the respect to which they have a right must take, in accord with the military authorities, the measures necessary to secure their recognition - in other words, they must see that the characteristic painting indicated in paragraphs 1 to 3 of the same article appear distinctly. That, it seems, is possible and would not permit the abuses to which the lights might give rise.
The new article 6 is based upon article 23 of the convention of 1906. It can give rise to no difficulty.
Article 7, new, provides for a situation analogous to that covereri by articles 6 and 15 of the convention of 1906, but more infrequen to-day, at least, in naval warfare than in war on land. The amendment of the German delegation might have led to a slight confusion where it says: “ During the conflict the sick quarters on board the war vessels shall be respected as much as possible.” The first thought was only in reference to fighting at a distance, which is by far the more frequent, and naturally it was hard to understand how during such a conflict the sick quarters could be respected. But the provision refers to a conflict on board, which makes it perfectly comprehensible. A slight modification in the text of the amendment alone was necessary to dispel this obscurity.
Article 8 is new.
The principle laid down in the first paragraph is borrowed from article 7 of the convention of 1906, which is self-evident.