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(1) Officers or other individuals connected with the armed forces of a belligerent, interned in a neutral state, can not be given their liberty or authorized to return to their country, except with the consent of the other side, and under the conditions which the latter shall stipulate; and
(2) The parole given to a neutral state by the individuals mentioned in the foregoing article shall be deemed equivalent to a pledge given to the enemy.
These propositions appeared to the comité d'examen too restrictive. If an imminent family misfortune or other unforeseen analogous circumstance imposed the humanitarian duty of authorizing the interned officer to journey temporarily to his country, there might not be opportunity nor sufficient time to consult the enemy, nor should the charity which should inspire the neutral state be affected by the severity of the belligerents.
The report of the committee, without going into these considerations, confined itself to stating that, on account of its exceptional character, the case was among those which do not require any regulation in fixed terms, although the Japanese proposal, inspired by modern precedents, contained a useful suggestion for neutral states who wished to be free from any responsibility.
Accordingly, the text of the declaration of 1899 remained in that particular without modification, leaving the neutral powers at liberty to be guided by circumstances. The four articles to which we have adverted — since no amendments were proposed respecting
– the other three — were therefore complete, together with the new regulations, all of which, in fulfillment of this part of the program, were accepted by the Second Peace Conference.
14. In the first and second chapters of the convention an important omission is noted. The rights and duties of neutral powers with respect to the states at war properly include (first) their own territory, (second) foreign territory, and (third) the high seas. Only declarations touching the activity of a state in conducting operations within its own territory are included in the draft convention. There is absolute silence as to the second, and the third has no relation to a convention for rules governing land warfare.
Even with regard to the territory proper of each neutral state,
it can not be said that the rules agreed upon are a perfect code of neutrality. They seem to us, nevertheless, to be of indisputable utility. Even excepting those cases which are omitted and left for settlement in a future conference, certain generally recognized principles are admitted which do not lose anything by being incorporated into an obligatory treaty, and certain cases concerning which controversy was possible and even frequent are settled with precision and good sense.
Moreover, the conference of 1907 did not adopt any rule which entailed a retrocession from established practice or which wounded the interests or rights of weaker nations. We have observed that in all doubtful cases it was inclined to the most generous and liberal solution. Public opinion should, under the circumstances, be satisfied with this partial codification of the rights and duties of neutral states in land warfare.
For neutral states it has substituted a set of rules in place of the present arbitrary decisions, and states, like citizens in private life, will be the more tranquil and secure the more complete and precise are the laws to which they are subject. More particularly the smaller powers must feel tranquil and gratified each time their duties and functions are made more concrete by international treaty. They are not at the mercy of selfish interests or foreign humor, and are not exposed to difficult complications should they defend their conduct or their duties. They can show a text which is obligatory upon all and before which all must bow.
15. The third chapter of the convention which we shall now consider refers to neutral persons, and the fourth to railway material. Their genesis was different and much more laborious than the first two. They originated in a project presented by the German delegation on the 29th of July, 1907.
We will quote it in full, taking note of the fate it met and of the fact that out of its twelve articles only three slightly modified succeeded in obtaining the definitive acceptance of the conference. Their discussion, nevertheless, caused most interesting debates, which it seems appropriate and opportune to consider.
16. The German proposition, divided into three chapters, and intended by its numbering to continue the old declaration concerning war on land, is as follows:
Definition of a neutral person. ARTICLE 61. The nationals of a state which is not taking part in a war are considered as neutrals.
ARTICLE 62. A violation of neutrality involves loss of character as a neutral person with respect to all the belligerents. There is a violation of neutrality
(a) If the neutral person commits hostile acts against a belligerent;
(b) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the armed forces of one of the parties;
ARTICLE 63. The following acts shall not be considered as committed in favor of one belligerent in the sense of article 62, paragraph (b):
(a) Supplies furnished or loans made to one of the belligerents, provided that they do not come from enemy territory or territory occupied by the enemy.
(6) Services rendered in matters of police or civil administration.
Services rendered by neutral persons. ARTICLE 64. Belligerents shall not solicit neutral persons to render their service, although they (the interested persons] may consent to it.
The following shall be considered as services of war:
Any assistance by a neutral person in the armed forces of the belligerents, in the character of combatant or adviser, and, if he shall have submitted to the laws, regulations or orders in force by the said army, of other classes also, for example, secretary, servant, or cook. Services under guise of an ecclesiast and health officer are excepted.
ARTICLE 65. Neutral powers engage to prohibit their nationals from enlisting in the military service of the army of either of the belligerents.
ARTICLE 66. Neutral persons shall not be obliged, against their will, to lend services, not considered services of war, to the armed force of either belligerents.
It shall be permitted, nevertheless, to demand sanitary or police services, outside of the field of the struggle.
Such services shall be compensated, provided it is possible to do so. If not paid in cash, the necessary formal receipts shall be given.
Concerning property of neutral persons. ARTICLE 67. No war tax shall be demanded from neutral persons.
A war tax is deemed to be any requisition demanded expressly for the purposes of the war. The enforcement of laws and existing tolls, or of contributions especially decreed by one of the belligerents, in the enemy territory which it may occupy, for the necessities of the administration of that territory, are not deemed to be contributions of war.
ARTICLE 68. The property of a neutral shall not be destroyed, misused, or injured unless required by the exigencies of war. In such event, the belligerent is not obliged to indemnify in its own country or in the enemy country, except when the nationals of another neutral country or of his own may enjoy equal indemnification and reciprocity may be guaranteed.
ARTICLE 69. The belligerent shall make compensation for the use of neutral real property, in the enemy country, the same as in its own country, provided that reciprocity is guaranteed in the neutral state. In no case shall this indemnity be greater than that provided by the legislation of the enemy country in case of war.
ARTICE 70. Belligerents may expropriate and use for military purposes, and without immediate reimbursement and cash payment, all the neutral goods found in its country. They may do the same in enemy country, within the limits and under the conditions specified in article 52.
ARTICLE 71. Neutral vessels and their cargoes shall not be expropriated by a belligerent, except when they are used for river navigation within its territory or within the enemy territory. The indemnity shall equal, in the event of expropriation, the actual valuation of the vessel and of the cargo and ten per cent more. In the event of the employment of the vessel, the compensation shall be ten per cent more than the customary price. These payments shall be made immediately and in cash.
ARTICLE 72. Indemnity for the destruction or injury of neutral goods, due only in their use for military purposes, shall be regulated in conformity with the principles established in articles 70 and 71.
17. This project called forth immediately, and during the debates which it aroused in the subcommission, in the comité d'examen, and in the commission itself, various amendments. They may be classified into three divisions. The first, those amending the original draft by new suggestions or by a modification of some detail included or inferred in the project; some of these we shall examine as we touch upon and consider the problems to which they relate.
The second refers to the regulation of questions omitted entirely from the German proposition. These were principally the propositions of Luxemburg and Servia concerning neutral railroads.
But the third, the most important, is an amendment proposed by the French delegation when the discussion was well advanced, and which represents an opinion entirely opposed to that expressed by Germany, with regard to neutral property. Its principal article provided that neutral property shall be treated by the belligerent:
First, in its own territory, the same as the private property of its nationals;
Second, in enemy territory, the same as the private property of nationals of the enemy state.
18. The German proposition was necessarily the basis of all the discussions, and it is proper therefore that, in examining it, we shall consider the different questions to which it gave rise. In brief, it comprised three classes of questions — the definition of a neutral person and the conditions by which that condition is lost; the
ersonal services which may be required of a neutral in time of war; and the status of his property in belligerent territory or in territory occupied by the belligerent.
With regard to the meaning of the expression “neutral persons, Mr. Beernaert moved and obtained in the committee the
the committee the suppression of the word “persons,” using only the word “neutrals” as a more adequate expression in French. Also, upon motion of Mr. Beernaert, and by reason of certain suggestions and doubts expressed by Mr. Hagerup, for the phrase "natives,” in French“ ressortissants," in the original draft, was substituted the more specific and concrete word “nationals."
Upon motion of the Swiss delegate, accepted by Baron Marschall, the idea of a person losing his neutral character was changed so as to provide that the neutral shall not be allowed “to avail of his neutrality" under certain circumstances. Otherwise the German draft of article 62 was preserved, but, further, upon the suggestion of the Swiss delegate, a paragraph was added — inspired by the view that neutral persons do not commit any particular crime when they violate neutrality. This additional paragraph provides