No. 493.
Mr. Schuyler to Mr. Fish.

No. 83.]

Sir: In my dispatch No. 82, on the subject of the Brussels congress, I spoke of a dispatch which had recently been received from Lord Derby.

I have now the honor to inclose to you, cut from the London Daily Telegraph, and marked 1, a printed copy of this dispatch, which bears date the 20th of January.

I have, &c.,

[Page 1042]
[Inclosure 1 in No. 83.]

Lord Derby’s dispatch on the Brussels congress.

[From the London “Daily Telegraph” of the 5th February, 1875.]

In a parliamentary return just issued, some further correspondence respecting the Brussels conference on the rules of military warfare is published, The most important dispatch is one addressed by Lord Derby to Lord Augustus Loftus, which runs as follows:

Foreign Office, January 20, 1875.

My Lord: I transmitted to your excellency, in my dispatch of the 25th of November, a copy of a circular dispatch respecting the Brussels conference, addressed, on the 26th of September last, by M. de Westmann to the Russian ambassador at this court, and communicated to me by his excellency on the 16th of November.

“This circular states it to be the view of the Russian government that the next step to be taken in the matter is, that the governments represented at the conference should inform the Russian government of the conclusions at which they may have arrived with regard to those articles of the project on the laws and usages of war which they may deem to be capable of immediate adoption, and should also furnish such observations and proposals as they may have to offer on those articles on which difference of opinion may exist. When the cabinet of St. Petersburg is in possession of these conclusions, observations, and proposals, it will decide on the expediency of drawing up an international declaration on the points upon which there may be a general agreement, or, as an alternative course, of submitting a new project to the powers, or of summoning a new conference of the delegates or representatives of the several governments, in order to bring their divergent opinions to a final agreement which might be formally recorded in a definitive manner.

“The circular adds, that the Russian government begs to be informed as soon as possible of the conclusions, observations, or proposals which the examination of the reports of the proceedings of the conference at Brussels may have suggested to the governments concerned. Her Majesty’s government are not aware that any of the governments represented at that conference have yet complied with this request, by furnishing detailed observations, making specific proposals, or indicating particular articles of the project to which they are ready to give an immediate assent; and having regard to the importance of the subject, and the fact that the very existence of a nation may at some future time, in the hazard of war, depend upon the decisions now arrived at by its government, her Majesty’s government trusts that the time which has been taken in deciding upon the answer which should be returned on the part of Great Britain will not appear to have been unreasonably protracted. Her Majesty’s government have from the beginning appreciated the hnmane motives which led to the proposal of the original project by the Emperor of Russia, and have been anxious to meet His Imperial Majesty’s desire that it should receive the fullest consideration. Your excellency will remember that the first invitation to a conference did not proceed from the Emperor, but from the president of the society for the improvement of the condition of prisoners of war, who solicited the European governments to send delegates to a conference to be opened at Paris on the 18th of May last. On the 11th of May, Her Majesty’s government received from Count Brunnow a copy of a circular, dated the 17th of April, inclosing a project of an international code for determining the laws and usages of warfare, and proposing a conference at Brussels. In forwarding copies of these papers to Mr. Daria, on the 14th, I stated to him that I had told Count Brunnow verbally that as long as the project in question was only put forward by a private society I had not thought it a matter in which Her Majesty’s government ought to take part, but that, the Russian government having taken it up, the question was thereby placed on a different footing, and it should receive the serious attention of Her Majesty’s government. In my dispatch of the 4th of July I informed your excellency that Her Majesty’s government had considered, with all the attention which so important a proposal deserved, the project of the Emperor of Russia for a conference to be held at Brussels to discuss the rules of military warfare. Her Majesty’s government highly appreciated the humane motives by which his Imperial Majesty was actuated in making this proposal, and concurred in the earnest desire evinced by his Imperial Majesty to mitigate the severities of war. At the same time, Her Majesty’s government were not convinced of the practical necessity for such a scheme for the guidance of military commanders in the field, and could not but fear that, unless the discussions were conducted in the most guarded manner, the examination of any such project in a conference at the present juncture might reopen causes of difference and lead to recriminations between some of the delegates appointed to take part in it. I added, that the willingness of Her Majesty’s government to join with the government of the Emperor of Russia in any measure for the prevention of unnecessary suffering was shown by Great Britain having already, with that [Page 1043] object, acceded to the declarations relating to the Geneva cross and the use of explosive bullets; and Her Majesty’s government would not, therefore, now be prepared to take exception to a discussion in a conference of delegates of such details of warlike operations in the field as it might be found useful and practicable to advise upon; but Her Majesty’s government were firmly determined not to enter into any discussion of the rules of international law by which the relations of belligerents are guided, or to take any new obligations or engagements of any kind in regard to general principles.

It is unnecessary for me now to revert to the question of the exclusion from the discussions of the conference of matters relating to maritime operations or naval warfare, as that was happily settled by the acquiescence of all the powers in the assurance which Her Majesty’s government felt it their duty to require in this respect. On the 25th of July, I addressed a circular to Her Majesty’s representatives in the countries sending delegates to the conference, instructing them to acquaint the governments to which they were respectively accredited with the nomination of Major General Sir A. Horsford, K. C. B., as British delegate, and to state that it would be his duty to guard carefully against the introduction into the discussions of matters relating to naval warfare, and that he would also abstain from taking part in any discussion which might appear to him to bear upon general principles of international law not already universally recognized and accepted. With these reservations, Her Majesty’s government had had no hesitation in authorizing a delegate on the part of Great Britain to attend the conference and to assist in its deliberations, with a view to any proposals of practical utility for alleviating the horrors of war. He was not, however, to be furnished with plenipotentiary powers, as Her Majesty’s government regarded the conference as assembled for the purpose of deliberation, and were not prepared to give their assent to a scheme for the regulation of military operations without first examining it in all its bearings. Her Majesty’s government, accordingly, reserved to themselves full liberty of action as to the manner in which they would deal with any proposals which might be made in the conference. The delegates met on the 27th of July, the United States not being represented, and some delegates not having yet arrived, and Baron Jomini, the Russian delegate, having been chosen president, read the instructions which he had received from his government, explaining the views of the Emperor as to the objects of the conference.

These instructions contained the following passage, to which the result of the conference has now given peculiar significance:

“La liberté d’action des gouvernements au point de vue militaire, et le droit des états de pourvoir à leur propre défense, ne sauraient done être soumis à des restrictions fictives, que d’ailleurs la pression des faits rendrait stériles. II nous semble qu’aucune illusion ne saurait prévaloir dans la pratique contre cefte inflexible nécessité

The instructions also stated:

“Quant à l’issue finale, elle dépend de la discussion et de l’accord qui viendrait à s’établir car la pensée de l’empereur est avant tout une pensée d’entente générale.”

With the view, apparently, of promoting this general agreement, the conference resolved, on the proposal of the president, only to insert in the protocols the points on which the conference was agreed, and not to record those on which there was a difference of opinion. In order to prevent it being assumed that, because he did not take part in certain debates, he thereby gave a tacit assent to the decisions arrived at by his colleagues, the British delegate, at the meeting of the 31st July, very properly called attention to that part of his instructions wherein he was directed to abstain from taking part in any discussion on points extending to general principles of international law not already universally recognized and accepted. In recording this in the protocol, Baron Jomini remarked: “Que tout le monde est d’accord à cet égard, la conférence n’ayant d’autre but que de consacrer des règles uniyersellement admises.”

It, however, soon appeared, when the more important articles of the project came to be examined and discussed, that the attitude of reserve which Her Majesty’s government had held toward it and the caution of the British delegate were fully justified. Instead of mere rules for the guidance of military commanders, based upon usage, upon which a general understanding could be shown to be desirable in the interests of humanity, the articles of the project were seen to contain, or to imply, numerous innovations, for which no practical necessity was proved to exist, and the result of which, if adopted, would have been greatly to the advantage of the powers having large armies constantly prepared for war and systems of universal compulsory military service. Her Majesty’s government might, in accordance with their previously announced determination, have instructed the British delegate to protest formally against any attempt on the part of the conference to lay down new rules of international law between belligerents; but they preferred to leave the discussions to take their course, being unwilling to throw impediments in the way of a thorough inquiry into the project, and thus prevent the Emperor of Russia’s wishes in regard to [Page 1044] the conference from being adequately carried out. The rule that only unanimity of opinions should be recorded was, nevertheless, soon broken through by the protest and reservations of other delegates, and, at the meeting of the 14th of August, Baron Jomini was forced to abandon it. Her Majesty’s government do not feel themselves called upon to enter into a minute review of the proceedings of the conference, and they will accordingly confine themselves to touching on some of the more striking differences of opinion to which the discussions gave expression. The first section of the first chapter occasioned an argument as to the meaning of “occupation” in the first article of the project, which provided that— “1. The occupation by the enemy of the part of the territory of a state with which he is at war suspends, ipso facto, the authority of the legal power of the latter, and substitutes in its place the military authority of the occupying state.” The German view, as described by Sir A. Horsford, was that occupation is not altogether of the same character as a blockade, which is effective only when it is practically carried out. It does not always manifest itself by visible signs. If occupation is said to exist only where the military power is visible, insurrections are provoked, and the inhabitants suffer in consequence. A town left without troops must still be considered occupied, and any rising would be severely punished. Generally speaking, the occupying power is established as soon as the population is disarmed, or even when the country is traversed by flying columns. Baron Jomini said that the discussion turned upon the word “territory.” This was a general expression, which must be interpreted liberally, (interpreter largement;) a province could not be occupied at every point; that was impossible. The other view was “that greater power must not be accorded to the invader than he actually possesses. Occupation is strictly analogous to blockade, and can only be exercised where it is effective. The occupier must always be in sufficient strength to repress an outbreak. He proves his occupation by this act. An army establishes its occupation when its positions and lines of communication are secured by other corps. If a territory frees itself from the exercise of this authority it ceases to be occupied. Occupation cannot be presumptive.” (Sir A. Horsford’s summary of protocol 10 of committee.)

The discussion terminated in the adoption of modified articles, in which an effort was made to reconcile the conflicting views by the use of carefully balanced expressions. Her Majesty’s government fear that the inhabitants of the invaded territory would find in such colorless phrases very inadequate protection from the liberal interpretation of the necessities and possibilities of warfare by a victorious enemy; while the existence of rules, the meaning of which is not distinct and indisputable, could not fail, should they ever be actually promulgated, to give rise to angry controversies which would intensify, rather than mitigate, the horrors of war. The second chapter, relating to combatants and non-combatants, showed an equal difference of opinion, eventually smoothed over in a similar manner. The Swiss delegate, in his observations on the article requiring the use of a distinctive badge recognizable at a distance, remarked that a country might rise en masse, as Switzerland had formerly done, to defend itself, without organization, and under no command. The patriotic feeling which led to such a rising could not be kept down, and although these patriots, if defeated, might not be treated as peaceful citizens, it could not be admitted in advance that they were not belligerents. Sir A. Horsford also reported that, during the general discussion on the subject of this chapter, the Netherlands delegate remarked that if the plan laid down by the German delegate was to be sanctioned by the adoption of those articles which related to belligerents, as drawn up in the project, it would either have the effect of diminishing the defensive power of the Netherlands, or would render universal and obligatory service necessary, a system to which public opinion in the Netherlands was still opposed. He therefore reserved more than ever the opinion of his government. The Belgian delegate also made a declaration of reservation. Upon the consideration of section 2, chapter 1, “Of the rights of belligerents with reference to private individuals,” and, “Of the military power with respect to private individuals,” the discussion was resumed, and the rights of national defense again warmly urged by the Netherlands, Belgian, and Swiss delegates. In Baron Lansberge’s opinion no country could possibly admit that, if a population of a de facto occupied district should rise in arms against the established authority of the invader, they should be subject to the laws of war in force in the occupying army. He admitted that, in time of war, the occupier might occasionally be forced to treat with severity a population who might rise, and that, from its weakness, the population might be forced to submit; but he repudiated the idea of any government contemplating the delivering over in advance to the justice of the enemy those men who, from patriotic motives, and at their own risk, might expose themselves to all the dangers consequent upon a rising. Baron Lambermont added that if citizens were to be sacrificed for having attempted to defend their country at the peril of their lives, they need not find inscribed on the post at the foot of which they are about to be shot, the article of a treaty signed by their own government, which had in advance condemned them to death. Colonel Hammer, the Swiss delegate, who had previously pointed out that articles 4, 5, and 9, (respecting conditions to be fulfilled by armed forces,) were the cardinal points of the [Page 1045] whole project, openly declared that two questions diametrically opposed to each other were before the committee: the maxims and interests, on the one hand, of great armies in an enemy’s country, which imperatively demand security for their communications, and for their rayon of occupation; and, on the other hand, the principles of war and the interests of the invaded, which cannot admit that a population should be handed over as criminals to justice, for having taken up arms against the enemy. A. reconciliation of these conflicting interests was, in his opinion, impossible, in the case of a levée en masse in an occupied country. In the face of the opposite opinions expressed on the articles under discussion, only a provisional modification of them was accepted by the meeting, omitting those upon which the greatest disagreement had, been shown.

The conference was unable to arrive even at a provisional modification of chapter 2, “Of requisitions and contributions,” and, after a variety of views had been expressed, of the most opposite character, the course was adopted of accepting a certain reading in the project, and entering the dissentient opinions in the protocol. The articles on section 4, “On reprisals,” did not attain to this stage. Sir A. Horsford reported that the general feeling seemed to be that occasions on which reprisals of a severe character had been executed were of far too recent a date to allow the practice to be discussed calmly, and the articles were withdrawn. Her Majesty’s government understand that this was the only subject brought before the conference which appeared likely to give rise to warmth of feeling, from its relation with recent events, and they have been glad to find that their apprehensions in this respect have proved unfounded, owing to the tact and moderation of the president and of the several delegates, and, in some measure as they are willing to believe, from the presence of an impartial and friendly counselor in Sir A. Horsford. At the same time, Her Majesty’s government cannot conceal from themselves that, in passing over these articles in silence, the delegates really evaded one of the principal difficulties inherent in any scheme for the preparation of the rules of war to be observed by belligerents, namely, the question how those rules are to be enforced. Rules of international law in which the interests of neutrals and belligerents are concerned, can be enforced in the last resort by recourse to war. In the case, however, of countries already engaged in hostilities, there will be no means, except by reprisals, for either belligerent to enforce upon the other the observance of any set rules.

It is true that, on the outbreak of war, it would be almost certain that one or other belligerent would appeal to neutral nations against some real or supposed infraction of these rules by his opponent. It can, however, scarcely he seriously contemplated that neutral countries should intervene to enforce, their observance, and, unless their interference were attended by the exercise of compulsion, in which case the circle of hostilities would soon be indefinitely enlarged, it cannot he supposed that the contending nations would respect it. The remaining articles of the project, in the words of Baron Jomini, “ont été l’objet de rédactions transactionnelles, destinées à concilier toutes les nuances d’opinion.” They relate to the “Means of injuring the enemy,” “Sieges and bombardments,” “Spies,” “Prisoners of war,” “Bearers of flags of truce,” “Capitulations,” “Sick and wounded,” “Armistices,” “Belligerents interned, and wounded treated in neutral territory.” Of these, the articles on sick and wounded, originally seven in number, have been reduced to one, relegating the whole matter to the operation of the Geneva convention. The articles relating to capitulations and armistices are also merely formal. Those concerning spies and flags of truce only profess to record existing military practice, as do the articles respecting sieges and bombardments, though Her Majesty’s government are not confident of the correctness of this description. The twelve articles with regard to prisoners of war appear to Her Majesty’s government to be important only in so far as they show the manner in which the original objects of the project, and the humane intentions of the Emperor of Russia have become obscured in the attempt to devise general rules of warfare. The articles themselves may possibly serve some useful purpose in recording the view taken by the delegates at Brussels, of some details of the usual treatment of the prisoners of war. It was not, however, proved that any real necessity existed for regulating these details, still less that an international agreement on the subject was required. From the spirit of compromise adopted in framing the articles to which I have referred, as mentioned by Baron Jomini, it is more than probable that a close scrutiny would show that many of the articles admit, or invite, differences of interpretation, and Her Majesty’s government need hardly point out how serious would be the consequences should this be found to be the case in respect to the articles on “Belligerents interned, and of wounded treated in neutral territory.”

It will have been seen from the foregoing observations that Her Majesty’s government regard the result of the Brussels conference to have been to demonstrate that there is no possibility of an agreement upon the really important articles of the Russian project; that the interests of the invader and the invaded are irreconcilable, and that even if certain rules of warfare could be framed in terms which would meet with acquiescence, they would prove to exercise little more than that fictitious restraint [Page 1046] deprecated by the Russian government at the opening of the conference. Under these circumstances Her Majesty’s government cannot consent to pursue the matter or to take part in any further negotiations or conferences upon it. In my dispatch of t he 28th September I stated that Her Majesty’s government desired it to be distinctly understood that by authorizing the signature of the final protocol, they did not accept the rules thereto annexed. A careful consideration of the whole matter has convinced them that it is their duty firmly to repudiate, on behalf of Great Britain and her allies in any future war, any project for altering the principles of international law upon which this country has hitherto acted, and above all to refuse to be a party to any agreement the effect of which would be to facilitate aggressive wars and to paralyze the patriotic resistance of an invaded people.

Your excellency will read this dispatch to Prince Gortchakow, and furnish him with a copy of it.

I am, &c.,