The first meeting of the committee was held on June 22 in one of the council rooms of the Hall of the Knights, which had been set apart by the Government of the Netherlands for the use of the conference. The proceedings were opened by an address from President Beernaert, who had acted as president of the committee charged by the First Peace Conference with the preparation of a code of rules for the conduct of military operations on land. At this session the delegates of China and Switzerland announced the adhesion of their respective Governments to the convention of 1899 in respect to the laws and usages of war on land.

A proposition to apportion the work assigned to the committee among two subcommittees was adopted, and the following assignment of subjects was unanimously approved:

To the First Subcommittee, under the presidency of M. Beernaert: Modifications in the rules governing the operations of war on land;

a.

b. The declarations of 1899;

To the Second Subcommittee, under the presidency of M. Asser:

Col. Eugene Borel, a distinguished officer of the Swiss General Staff, was charged by the committee with the exacting and responsible duties of rapporteur.

THE OPENING OF HOSTILITIES

The convention concerning the opening of hostilities applies to naval operations as well as to land warfare. It was therefore made a separate convention. Nevertheless the matter is too closely connected with the convention for the rules of war on land to pass it by without remark in that connection.

At the first session of the Second Committee a paper was read by Major-General Yermoloff, the Russian military delegate, in which the attention of the committee was drawn to the important subject of hostilities without declaration. At the same session the following proposition was submitted by the delegation of France:

I. The contracting powers acknowledge that hostilities between them ought not to begin without a previous and unequivocal warning, which shall take the form of a justificatory declaration of war, or of an ultimatum accompanied by a conditional declaration of

war;

II. Neutral powers should be advised without delay of the existence of a state of war.

Although it is well established that war is a question of fact rather than of intention, that a state of war dates from the commission of a particular act of hostility, and that the necessity for a formal declaration no longer exists, it was the view of the committee, and subsequently of the conference, that the subject proposed by the French delegation was not only worthy of serious consideration, but, on account of its important and far-reaching effects upon the relations of both belligerent and neutral powers, stood in need, in some degree at least, of conventional regulation.

It did not escape the attention of the delegation of the United States that a general proposition the effect of which was to restrict or modify in its exercise a power vested in Congress by the Constitution was one which exceeded the treaty-making power. reason it was deemed wise to submit the following declaration in behalf of the delegation, with a view to make clear the limitations which are imposed upon its activity in the Constitution of the United States:

The delegation of the United States, while agreeing heartily with what has been said in respect to the opening of hostilities, thinks it desirable to invite the attention of the committee to the provision of the Federal Constitution which confers upon Congress the exclusive power to declare war, in the following terms:

"The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

A power conferred by the Constitution is not susceptible of regulation or modification by law or treaty-in other words, it is independent of the legislative and treaty-making power. For that reason it is obvious that the delegates plenipotentiary of the United States find it impossible to support a proposition which is calculated to modify or diminish a power vested, by the Federal Constitution, in the legislative department of the Government.

While this is true as to aggressive military operations, it is proper to say, however, that it has been the unbroken practice of the Government of the United States for more than a century to recognize in the President, as the Commander-in-Chief of the constitutional land and naval forces, full power to defend the territory of the United States from invasion, and to exercise at all times and in all places the right of national self-defense.

It was then announced, in behalf of the delegation of the United States, that it was willing to support a proposition, nonmandatory in character, favoring a formal declaration of intent to engage in hostilities.

After an exhaustive discussion of the matter from all points of view in which the important, and, to some extent, conflicting interests of both belligerents and neutrals were fully considered, the following text was approved by the committee and adopted by the conference:

I. The contracting powers acknowledge that hostilities between them ought not to commence without a previous and unequivocal notice, which shall take the form of a justificatory declaration of war or an ultimatum accompanied by a conditional declaration of

war.

II. Neutral powers should be advised without delay of the existence of a state of war, which shall not be operative as to them until after the receipt of a formal notice, which may be given by telegraph. It is also understood that neutral powers may not take advantage of the absence of such notification if it be established, in an unmistakable manner, that they have actual knowledge of the existence of a state of war.

MODIFICATION OF THE RULES AND USAGES OF WAR ON LAND

The history of the development of the rules of war on land has been traced in a former number of this JOURNAL.1 As formulated in the convention of July 29, 1899, these rules have been subjected to the crucial test of application to the actual operations of modern war, under conditions calculated to develop any inherent elements of weakness which they were found to contain. It is a tribute to the high character of Dr. Lieber's work, and to the painstaking

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care which was given to its adaptation to the necessities of modern warfare, by the First Peace Conference, that it was found necessary to modify but eleven of the original articles, and to add but three paragraphs to the code as adopted by the conference of 1899.

The amended articles will be discussed in their numerical order.

ARTICLE 2

This article relates to the composition of the forces which may be employed in the conduct of military operations on land. An amendment was submitted by the delegation of Germany, which provided that the forces hastily organized by a state, with a view to resist a threatened invasion of its territory, should wear a distinguishing mark or badge, easily recognizable at a distance, the design of which should be formally notified to the opposing belligerent. After some discussion the amendment was withdrawn and a clause was adopted providing that such levies should carry arms openly and should respect the laws and customs of war in the conduct of their military operations, so that the amended article reads:

ARTICLE 2. The inhabitants of an unoccupied territory who, on the approach of an enemy, spontaneously take up arms in order to repel the invading troops, without having had time to organize in accordance with article 1, shall be considered as a belligerent if they bear arms openly and respect the laws and customs of warfare.

Article 2, both in its original and amended forms, is conceived in the interest of those states which habitually maintain small permanent establishments, and who insist upon the right, at the outbreak of war, of employing a considerable portion of their armsbearing population in the defense of their territory against invasion. It has been seen that the amendment embodies the requirement that forces so raised shall carry arms openly and shall conduct their operations in conformity to the accepted rules and usages of war.

ARTICLE 5

This article contains those provisions of the code which are intended to regulate the internment of prisoners in time of war. Internment is a measure involving a minimum of restraint upon the

freedom of movement of those who are subjected to its operation, and is the normal status of prisoners of war. Confinement is a more rigorous form of detention and, according to the terms of the article, can only be resorted to by a captor in a case in which such a measure of restraint is warranted by the conduct of a particular prisoner; as where there has been serious misconduct, repeated attempts to escape, violation of a parole given, or the like; or where a prisoner is held awaiting trial for a criminal offense. As amended by the committee the article reads: 2

ARTICLE 5. Prisoners of war may be subjected to internment in a city, fortress, camp, or other place, and may be required not to go beyond certain fixed limits. However, they shall not be confined except as an indispensable measure of safety, and then only during the continuance of the circumstances which necessitate this measure.

ARTICLE 6

Two slight modifications are introduced in this article; one in paragraph 1 exempts commissioned officers from its general operation; the second, in paragraph 3, furnishes a more exact scale of compensation than was provided in the original article, so that the article now reads as follows:

ARTICLE 6. A government may employ prisoners of war, except officers, as laborers, according to their grade or aptitude. The labor shall not be excessive and shall have no connection with the war operations.

Prisoners of war may be permitted to work for the benefit of public departments or private parties, or for their own benefit.

Labor performed for the government shall be paid for according to the schedules in force for soldiers of the national army performing the same labor, or, if there is no such schedule, then at rates commensurate with the work performed.

This change was made upon the representation of several delegates that the laws and regulations of the states which they represented made no provision for the compensation of prisoners of war for services rendered to the captor state, or to individuals or corporations with the consent of that government.

2 Changes in or additions to the text of the articles of 1899 are indicated in italics.