Defining the Regulations of War in the Hague Convention of 1907

Abstract

International humanitarian law provided many institutional mechanisms aimed at preventing armed conflicts. However, the world is still subject to military action, even the most peace-loving nation is not completely immune to aggressive actions. Therefore, international legal regulation of war rules is constantly improved and developed in order to weaken the horrific consequences of the fighting as much as possible. The international regulations of war were established by multilateral treaties between states. The article investigates the history of the formation of the Hague system of international legal regulation of war rules. The Hague conventions defined the main rules of warfare and the legal status of their participants. These provisions are binding in armed conflicts in the countriesparticipants of conventions, and for states that did not signed them, the norms of international law will be applied.

Keywords: International humanitarian lawthe laws and customs of warprisoners of warThe Hague Peace ConferenceThe Hague Convention

1. Introduction

The international rules of war were established by multilateral treaties usually between states. The

Convention defines the following issues: who can conduct military operations, what are the

warrantable means and methods of war, how the protection of civilians and prisoners of war is

provided? However, history witnesses many evidences of civilian population suffering during armed

conflicts and using of illegal methods of warfare, and other violations. Therefore the study of the

problem of international legal regulation of war rules is still on the agenda.

The first book on the history of the Hague Conference of 1899, where the issues of war and peace

discussed, appeared in St. Petersburg in the early twentieth century. The count L.A. Komorowskii was

an author of the book. He described the diplomats’ first attempts to develop guidelines for regulation of

warfare in detail (Komarovskii, 1905). The main principles of the Hague Peace Conference and

initiatives of monarch Russia in the sphere of disarmament were partly ignored during the Soviet

period. However, in 1932 in the journal “Krasnyi arkhiv” published a draft letter of the Minister of

Foreign Affairs of Russia to foreign governments with a proposal to convene a conference and other

documents (K istorii, 1932). In 1909 in Cambridge a collection of documents of international

conferences, including the Hague Conferences of 1899 and 1907 were published by the editor A.P.

Higgings. Texts were accompanied by extensive commentary (Higgings, 1909). The history of the

Hague Conferences of 1899 and 1907 is covered in A. Eyffinger’s book (2011), dedicated to the Dutch

lawyer and statesman Tobias Asser’s activities.

2.Materials and Research Methods

The material for the research is based on the texts of international conventions on the law of war.

Sources of international law – collections of documents or other tangible objects containing norms of

international law. The sources of international law are: a) the international conventions; b) international

custom, as an evidence of a general practice accepted as a law; c) the general principles of the law

recognized by civilized nations; d) judicial decisions and high qualified lawyers’ conceptions of the

various nations, as subsidiary means for the determination of rules of law. International conventions,

treaties and agreements, as the legal documents contain provisions binding on the entire international

community. The legal basis of the sources of international humanitarian law regarding the rules of

warfare consist of 6 conventions adopted at the Hague Conference of 1899, and 14 ones – at the Hague

Conference of 1907, relating to the laws and customs of war by sea and land, rights and obligations of

neutral states.

During the research the well-known philosophical methods were used as conjectures and

refutations; general scientific methods, such as analysis, synthesis, abstraction as well as specific

methods of legal science, which essence is to study the dogma of law, i.e., directly to the content of the

legal regulation.

This article is theoretical, it explores the history of the formation of the Hague system of

international legal regulation of the rules of war.

3.Discussions and Results

Multilateral treaties about the rules of a war did not exist until the end of the XIX century. The first

legal document that defines the rules of war was a “Field guide to US troops”, designed by Francis

Lieber during the American Civil War. The rules of warfare and the treatment of the civilian

population later known as the “Lieber Code” were set. However, the Lieber Code was used only on the

territory of the United States. The first international document was the “Declaration on the abolition of

the use of explosive and incendiary bullets”, adopted in 1868 at an international conference in

St. Petersburg (Declaration, 1868). In this document regulation of the war is limited to only one sphere

– the defining the means of warfare. Since international conferences repeatedly were convened to

discuss the issue.

Brussels Declaration of 1874 on the Laws and Customs of War (Schindler & Toman, pp. 25-34),

adopted at the international conference represented the first attempt to codify the laws and customs of

war on land by making a special international document in the history of international relations.

However a declaration did not enter into force for various reasons.

Russia was an initiator of the first Peace Conference which was held in Hague from 18 May to 29

July 1899. It was attended by representatives of 26 states. The lawyers Fyodor Martens, Léon

Bourgeois, Louis Renault, Julian Pauncefote, Tobias Asser and Frederick Holls were key speakers and

decision makers at the discussion. F. Martens, Russian diplomat and a lawyer, an expert in

international law, a professor at the University of Petersburg in the 1873-1905. In 1885 he was elected

a vice-president of the European Institute of International Law (EIIL), he played a prominent role at the

Hague Conference on International Law, he was a permanent member and then a chairman of the

arbitral tribunal Hague. In 1891 he helped to resolve a dispute between Britain and France on

Newfoundland as an arbitrator for the Anglo-Dutch dispute. He was an author of an international

recognized principle of jurisdiction of the captain’s offence in the open sea.

According to the Russian government’s plan the issue of an international agreement about non

increasing size of the peace-time land and naval forces should have been discussed. The Russian

authorities also proposed to freeze the existing level of military budgets. Russia was against the

proposal, Germany, the US government, France and the UK also did not support the initiative of the

Russian government. F. Martens, professor of international law and one of the foremost members of

the EIIL as well as long-time adviser with the Russian Foreign Ministry, proposed to expand the

programme of the conference to the codification of the law of war and to arbitration, thus transforming

the disarmament conference into a broad peace conference (Lesaffer, 2013, p. 23). The conference

mainly discussed the problems of means and methods of warfare. The conference failed to reach a

common agreement on the issue of arms control. However, the conference was marked by the need to

limit the military costs: “The Conference opinion is that the restriction of military charges, which are at

present a heavy burden on the world, is extremely desirable for the increase of the material and moral

welfare of mankind” (Baker, 2009, p. 690). Thus, the Hague Conference of 1899 was the first

international forum which focused on arms limitation issue. The conference adopted a convention “for

the Pacific Settlement of International Disputes”, “Laws of Land Warfare”, as several declarations

prohibiting the use of certain types of ammunition, including missiles with suffocating and harmful

gases. Convention “On the Laws and Customs of War” was signed for five years. By the expiry time

of the convention, Russia and Japan were at war, so the debate on the extension of its actions was

postponed.

The initiative of convening a second peace conference in Hague belonged to US President

Theodore Roosevelt. In September 24, 1904 T. Roosevelt received the representatives of the Inter-

Parliamentary Union in the White House in Washington. He said that he was preparing an appeal to

other countries to hold the second conference in Hague. October 21, 1904 the state secretary John Hay

sent a letter to US representatives in all states who signed the Hague Final Act of 1899. US officials

had to inform host countries about Inter-Parliamentary Union’s intention to conduct a new meeting in

Hague. The leading European countries for a long time discussed the agenda of the upcoming

conference. In Russia a committee was formed under the leadership of F. Martens to develop the

program of a conference.

In early 1906, the project was handed over to the governments of Great Britain, Germany, France

and the United States. Arms limitation and measures for peace protection were not mentioned in the

Russian project. Due to increased competition of Germany’s naval force United Kingdom wished to

include in the agenda the problem of limiting naval armaments. British and American responses note

contained a categorical requirement to include this issue on the agenda of the conference. However,

France could not agree to disarm because it feared competition from Germany. But some politicians

and diplomats had different points of view on this issue in these countries. The discussion about the

draft program of the conference was delayed. Professor F. Martens suggested a compromise solution to

this problem - to establish a commission of military experts to discuss the issue of a separate arms

limitation during negotiations in the European capitals. Germany and Austria-Hungary refused to

discuss the problem either at the conference or at the meetings of the committee of military experts

(Kokebayeva, 2009, pp. 35-36). Therefore, the work of the second Hague Conference was largely

devoted to discussion of the rules of war. The conference also addressed issues and peaceful resolution

of international conflicts, defined the tasks of the arbitral tribunal and the International Commission of

Enquiry.

The Conference adopted the Convention on the opening of hostilities, the Laws and Customs of War

on Land, states’ and individual’s rights and responsibilities in case of war on land, the status of enemy

merchant ships at the outbreak of hostilities, the conversion of merchant into the military ships, about

the set of exploding from contact underwater mines, the rights and duties of neutral powers in the case

of naval warfare, and other important international agreements on the rules of war.

Hague Convention “On the Laws and Customs of War on Land” dated October 18, 1907 had the

same structure and content of the Convention of 1899. The Convention defines the beginning of the

war and its participants, methods of its conduct, regulates the occupation of the enemy territory and the

captivity of a military regime. F. Martens’s proposal, later called “Martens clause” were included into

the preamble to the Hague Convention. Thus, the preamble to the Hague Convention stated that

according to the present contract, the population and the belligerents remain under the protection of

international law because they are based on established among civilized peoples customs and the laws

of humanity and the requirements of public conscience. States are not signatories to the Convention are

entitled to join it. Any state wishing to sign the Convention, notifies in written form its intention to the

Netherlands Government and passes to it the act of accession.

The outbreak of hostilities with the declaration of war is a prerequisite for the convention: “The

Contracting Powers recognize that hostilities should not commence without previous warning, in the

form either of a reasoned declaration of war or an ultimatum with conditional declaration of war”

(Mezhdunarodnoe, 1995, p. 14 ).

According to the convention, any significant breach of the armistice from one of the party entitles

the other to give it up or to resume hostilities immediately in the emergency. However, the violation of

the armistice by individuals acting on their own initiative only entitles to demand the punishment of

those responsible and compensation for losses incurred, if any, occurred.

In the first chapter of the Convention the categories of combatants are defined. People entitled to

wage war are primarily the personnel of armed forces. The laws, rights and responsibilities are applied

not only to armies, but also to militia and volunteer corps. Militia and volunteer units are protected by

the norms, if they are commanded by a person who is responsible for his subordinates; has a defined

and clearly visible, distinctive sign; carries arms openly; keeps laws and customs of war in their

actions. The Convention defined the status of doctors and medical staff: they were treated as

belligerents, therefore, were not subject to capture. Hospitals, ambulance carriages, military medical

personnel on the battlefield have a neutral status. It corresponds to the requirement of the

inadmissibility of leaving the wounded on the battlefield without medical care. They had to be cared

for, regardless of which side they belong to. The civilians, who came to help the wounded, also should

be treated with respect.

The regulations for the treatment of prisoners of war were identified in 17 articles of the Convention

“On the laws and customs of war on land”. Under the Convention, prisoners of war are in the power of

the hostile government, but not of the individuals or corps who captured them. The provision says that

prisoners of war should be considered as prisoners of state, based on the fact that the armed conflict

since the beginning of the new time is accepted not as a struggle between the individual people or

rulers, but as the struggle between the States. This principle practically, firstly, protects a prisoner from

the tyranny of individual soldiers of the belligerents; secondly, imposes governments of warring States

certain international legal obligations to protect the rights of prisoners of war; thirdly, gives the right to

governments to claim for violation of international norms on the keeping of prisoners of war. It

requires humane treatment of prisoners of war. Their personal belongings remain in their disposal

except arms, horses and military papers. Their imprisonment in the camp or some other place shall be

used only as a necessary measure of safety and only while there are circumstances that trigger this

measure. The state may attract the labour of prisoners of war to work in accordance with their rank and

abilities, for the exception of officers. These works should not be too onerous and should not have any

relation to military actions. Work of prisoners of war, produced for the state are paid equally to ranks

of the national army for the same work, and if there is no such calculation, then at prices corresponding

to the executed work. The wages of the prisoners shall go towards improving their position, and the

balance shall be paid them on their release, after deducting the cost of maintaining them. The

maintaining of prisoners of war rests with the government, into whose power they are. If there is no

special agreement between warring sides, the prisoners enjoy the same food, quarters, and clothing as

the troops of the government who captured them. Officers-prisoners of war receive the full pay to

eligible officers of the same rank of the state where they are detained, under condition of

indemnification of these expenses of their government. Prisoners of war are subject to the laws,

regulations and orders in force in the army of the state into whose power they are, any disobedience

from their side gives the right to use necessary measures of severity. Individuals who escaped from

captivity and being arrested in the territory occupied by the army, who captured him, subjected to

disciplinary punishments. Every prisoner of war shall be obliged to declare his true name and rank, and

in case of violation of these rules he is subject to the limitation of the benefits provided by the

Convention of prisoners of his category. Prisoners of war may be liberated on parole of honour, if this

is permitted by the laws of their country, in this case, their own government shall not require any

services contrary to this word. However, release on parole is not mandatory for the government which

captured him, and it also may not force the prisoner to release on parole. Prisoner of war liberated on

parole and then re-captured with his participation in the hostilities against the government, in this case

he loses the rights granted to prisoners of war and may be prosecuted. With the opening of hostilities in

each of the belligerent States and neutral States, if they have belligerent on their territory, established

information office for prisoners of war. The office is the nameplate on each prisoner of the war with

indentifying number, name, surname, age, place of origin, rank, military unit, date and place of the

taking prisoner, receiving wounds and death, place of detention, as well as specific information. A

name card is transferred to the government of the other belligerent after the signing of peace. The

information desk is obligated to maintain all the things, letters and values of prisoners of war, released

on parole, exchanged, escaped or died in captivity, and then to forward them to appropriate address.

Help desks are exempt from the tax levy, Letters, orders, parcels addressed to prisoners of war or sent

by them are free from all postal charges.

The Hague Convention of 1907 enshrines the international legal status of prisoners of war, based on

the fact that the capture of soldiers of the enemy is not revenge or punishment, it is a necessary

measure taken for the purpose of preventing officers and soldiers’ participation in hostilities. The

Convention imposed the responsibility for the humane treatment of prisoners of war on the

governments of the belligerent States.

The 22ndand the 23rd articles state that belligerents do not enjoy an unlimited-law, in the choice of

means of injuring the enemy. It is prohibited to use poison and poisoned weapons, and weapons likely

to cause unnecessary suffering; treacherous killing or wounding of individuals belonging to the

population or to the troops of the enemy, to kill or wound an enemy who, surrender their arms, or an

enemy who cannot protect himself and surrendered unconditionally, to declare that no one will have

mercy; it is illegal to use a parliamentary or national flag, military insignia and uniform of the enemy.

The 25th article of the Convention prohibits the bombing of undefended cities and towns. In sieges and

bombardments all necessary measures should be taken to spare, as far as possible, the temples, the

buildings that serve the purposes of science, the arts and charity, historic monuments, hospitals and

places with sick and wounded if these buildings and places do not served at the same time for military

purposes. The besieged should indicate these buildings or places by some particular and visible signs,

which the besiegers must be informed in advance. The belligerent state is forbidden to compel

nationals of the hostile party to take part in military action against their country, even if they were in

his service before the war. The fourth Chapter is devoted to the order of surrender. The 35th article

says: “At the conclusion between the Parties of the resignations must be taken into account the rules of

military honour. The surrender of prisoners should be exactly observed by both Parties”

(Mezhdunarodnoe, 1995, p. 18). The Convention also defined the rules of operations of a hostile army

in occupied its territories. Family values and rights, individual lives and private property, as well as

religious beliefs and ritualistic exercise of faith, should be respected. Private property cannot be

confiscated. Subsequently the basic provisions of the 1907 Convention were specified in the internal

regulatory documents of the States acceding to the Convention.

4.Conclusion

The Hague conventions defined the main rules of warfare and the legal status of their participants.

These provisions are binding in armed conflicts in the countries-participants of conventions, and for

states that did not signed them, the norms of international law will be applied. Although the

conventions governing the rules of warfare were adopted over a hundred years ago, they have not lost

their relevance today. International humanitarian law provided many institutional mechanisms aimed at

preventing armed clashes. However, the world still suffers from military compaigns, even the most

peace-loving nation is not fully protected against aggressive actions. Therefore, international legal

regulation of war rules is constantly improved and developed in order to weaken the horrific

consequences of the warfare.

References

1. Baker, B. (2009). Hague Peace Conferences (1899 and Max Planck Encyclopedia of Public. , 1907. In
2. (), International Law, (Vol. IV, 689-699). Oxford: Oxford University Press.
3. (), Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868. Retrieved from https://www.icrc.org/applic/ihl/ihl.nsf/INTRO/130?OpenDocument
4. Eyffinger, A. (2011). Dreaming the Ideal, Living the Attainable: [1838-1913]. Founder of the, T.M.C. Asser
5. (), Hague Tradition. Hague: T.M.C. Asser Press.
6. Higgings, A. P. (1909). The Hague peace conferences and other international conferences concerning the laws and usages of war: texts of conventions with commentaries. , Retrieved from http://oll.libertyfund.org/titles/1053
7. K istorii pervoi Gaagskoi Konferentsii 1899 g., (1932). Krasnyi arkhiv, 1-. Retrieved from, 2, 65-103
8. (), http://www.twirpx.com/file/1779323
9. Kokebayeva, G. K. (2009). Germaniia – Rossiia – SSSR: politika, voina i Kazakh universiteti. , plen. Almaty
10. Komarovskii, L. A. (1905). Gaahskaia mirnaia konferentsiia 1899 Tipo-litografiia G.I. Prostakova. Retrieved from http://www.hotery.ru/66401-gaagskaja-mirnaja-konferencija-1899-godal-a.html, goda. Moskva
11. Lesaffer, R. (2013). The Temple of Peace The Hague Peace Conferences, Andrew Carnegie and the Building of the Peace Palace . Mededelingen van de Koninklijke Nederlandse Vereniging voor Internationaal Recht, 140, 1-38, 1898-1913
12. Mezhdunarodnoe pravo vedeniia boevykh deistvii, (1995). Sbornik gaagskikh konventsii i inykh soglashenii.
13. (), Moskva: Iuridicheskaia literatura.
14. Schindler, D.Toman, J. (1988). The Laws of Armed Conflicts: A Collection of Conventions, Resolutions.
15. (), and Other Documents. Geneva: Henry Dunant Institute.