Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part II

Instructions to the United States delegates to the Second Geneva Conference.

Department of State,
Washington, May 16, 1906.

Gentlemen: The President has chosen and appointed you to represent him, in the capacity of plenipotentiaries, at an international conference, which has been called, upon the invitation of the Swiss Federal Council, to meet at Geneva on the 11th of June next, for the purpose of revising the international convention of August 22, 1864, for the amelioration of the condition of soldiers wounded in armies in the field.

The United States was not party to the negotiations conducted in the Geneva Conference in 1864, which framed the convention now about to be revised. It was, however, duly invited to accede thereto in accordance with the terms of its ninth article. The President’s act declaratory of accession, having been advised and consented to by the Senate on March 16, 1882, was, upon communication to the Swiss Federal Council, accepted by the Swiss Confederation, and the convention was proclaimed by the President and notified to all the signatory and adhering powers on July 26, 1882.

Originally concluded between a limited number of European states—the signatories being Switzerland, Baden, Belgium, Denmark, France, Hesse, Italy, the Netherlands, Portugal, Prussia, Spain, and Wurttemberg—it has been extended by subsequent adhesions to embrace the remaining countries of Europe, with Salvador, Bolivia, Chile, Argentine Republic, Peru, Venezuela, Uruguay, Guatemala, as well as the United States, in the Western Hemisphere, and Persia, Japan, and Korea in the Orient.

Since 1866 the operation of the convention has stood the test of frequent wars, and it has proved to be a beneficial and effective measure toward the realization of the large humanitarian purposes that inspired it. Very early in its life efforts were made to enlarge its scope, as in the Geneva Conference of 1868, which formulated additional articles aiming to extend to armed forces on the sea the advantages of the convention of 1864. This latter project did not reach the stage of exchanged ratifications, but its provisions have been adopted in part by many states in actual warfare. In the war of 1898 between the United States and Spain, Articles VI and XV were adopted as a modus vivendi by the two belligerents.

This circumstance having drawn general attention to the subject, the problem of regulating and extending the provisions of the Geneva agreements to include the conditions developed in modern war by land and sea naturally’ came up before the Peace Conference of The Hague, held in 1899. The result was the signature of two conventions, one specifically “for the adaptation to maritime warfare of the principles of the Geneva Convention of August 22, 1864,” while the other, “With respect to the laws and customs of war on land,” necessarily touch upon many features of the Geneva Convention.

The circumstance that the subject-matter of the discussions of the Peace Conference of 1899 was in many respects closely allied to the provisions of the Geneva conventions led the Conference of The Hague, in its final act, to adopt by unanimity a declaration as follows:

1. The conference, taking into consideration the preliminary steps taken by the Swiss Federal Government for the revision of the Geneva Convention, expresses the wish that steps may shortly be taken for the assembly of a special conference having for its object the revision of that convention.

The conference to which you are now sent is the outcome of that declaration.

In summoning this conference, the Swiss Federal Council has prepared a memorandum of “Questions to be examined by the international conference to be held with a view to a revision of the Geneva Convention of August 22, 1864.” A copy of that memorandum is annexed for your information.

It is to be observed that the questions so propounded appear for the most part to relate to details and formalities which have been put to practical test in many wars since 1864. The amendments proposed aim to meet the needs of actual experience. When it is remembered that the conditions of modern war, especially upon the seas, change from year to year and tend to make obsolete the procedure followed when the Geneva Convention was framed, it is a remarkable tribute to the sagacity of its framers that it has so well stood the test of time.

It should not, however, be inferred that the convention needs only amendment in particular details. A lesson may be learned from the history of the Peace Conference of The Hague in 1899. The proposition before that body was the same as that before the Geneva Conference of 1868, namely, the extension of the principles of the convention of 1864 to include maritime war. That subject had been carefully dealt with in the Genevan project of 1868, with results that happily stood the severe test of adoption by mutual consent in actual warfare; yet in 1899 The Hague Conference found it necessary to draw up a new convention—not a mere amendment of the old design—and to incorporate a number of new features.

The work now contemplated is of far-reaching importance, and it is a matter of moment that it should possess the elements of durability, so far as the changing conditions of modern war permit its requirements to be forecast. Harmonious codification is needed to give effect to the larger principles of humanitarianism. These principles should be applied on similar, or at least so far as permissible analogous, lines on sea as on land, so that the high purpose of limiting the loss of life and alleviating suffering may be realized and the responsibility for its alleviation fixed as well upon the belligerent as upon the neutral within whose jurisdiction the wounded in war may come through stress of pursuit or otherwise.

The program of topics suggested by Russia for discussion at The Hague Conference of 1899 comprised:

5. Adaptation to naval war of the stipulations of the Geneva Convention of 1864, on the basis of the additional articles of 1868.

6. Neutralization, for the same reason, of boats or launches employed in the rescue of the shipwrecked during or after naval battles.

7. Revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels and not yet ratified.

In the instructions to the American delegates to The Hague Conference, Mr. Hay thus commented on these points:

The fifth, sixth, and seventh articles, aiming in the interest of humanity to succor those who by the chance of battle have been rendered helpless, thus losing the character of effective combatants, or to alleviate their sufferings, or to insure the safety of those whose mission is purely one of peace and beneficence, may well awake the cordial interest of the delegates, and any practicable propositions based upon them should receive their earnest support.

The Hague Conference of 1899 went far toward realizing the purposes of its promoters. Its work was great, and perhaps greatest in this, that the principles of just humanity which the Geneva Convention sought to enforce within a limited field were applied at The Hague to the whole practice of land and naval war. The Hague Conference applied the principles of Geneva to war in general, and thus to some extent revised the Geneva Convention and the additional articles of 1868. It now is the turn of the Second Geneva Conference to revise and broaden the work of the First Hague Conference, and in doing so it is not to be forgotten that the approaching Second Peace Conference of The Hague, to follow close upon the Second Geneva Conference, will in turn be called upon to adopt and broaden, and perhaps revise, the work in which you share. The task before you at Geneva is in a measure preparatory for the larger task to come, and needs all possible care and prevision to make your results fit harmoniously with those yet to be achieved.

In view of the foregoing, and notwithstanding the action which was taken by The Hague Conference of 1899 in amending and incorporating into a new convention the rules framed by the Geneva Conference of 1868 to extend the principles of the Geneva Convention of 1864 to the sick and wounded in maritime warfare, it may not be inappropriate that this subject be considered at the approaching conference. Although the subject is not mentioned among the questions submitted to the powers by the Government of the Swiss Confederation, the changes which have been brought about in maritime warfare since 1899 have been so numerous and important as to warrant the reconsideration of the requirements of the Geneva Convention of 1868 and the rules of The Hague Conference of 1899 in reference to the neutralization of the sick and wounded in maritime war. If an occasion presents itself to bring the subject to the attention of the conference, it is believed that it would be wise to take advantage of it, to the end that the delegates who are subsequently to attend the conference at The Hague, as military and naval advisers, may receive such benefit as may ensue upon the discussion of that question at the approaching Geneva Conference.

As the matters to be discussed by the Second Geneva Conference have solely to do with the humane treatment of the sick and wounded in time of war, a cause which appeals powerfully to well-intentioned persons without regard to nationality, and as the success of the conference will largely depend upon the support which it receives from intelligent public opinion throughout the civilized world, it would seem that there would be great propriety in causing the fullest reports of its deliberations to be kept from day to day, in order that they may be communicated to the governments which are parties to the undertaking with a view to their being given publicity, should that course commend itself to the signatory powers. For the same reason it is believed that copies of the reports of the deliberations of important committees should be similarly preserved and communicated.

The scope of the Geneva Conference is in many respects technical and practical. The treatment of the matters to be discussed calls for experience in the field and fleet, as well as for good judgment in the elaboration of humanitarian theories. Hence it is deemed best not to hamper your discretion by detailed instructions, but to leave you free to deal with the various phases of the subject as they arise in the course of the conference. Should any matters be presented requiring that particular instructions be sent to you, you will communicate freely with the Department of State by telegraph.

I have the honor to be, gentlemen,

Your obedient servant,

Elihu Root.

Memorandum—Broad principles.

1. That all acts done by a neutral within his own exclusive jurisdiction, in his own territorial limits, or on his national ships on the high seas, for the preservation of his neutrality, are done of his own right, and not in discharge of an obligation or in performance of a favor toward either belligerent.

(The type of this class of acts is the disarming and internment of any belligerent force entering the neutral’s jurisdiction. The principle should be extended to cover fugitive ships and seamen of either belligerent, whether fleeing from pursuit or injured in action.)

2. As a neutral may not act as the agent of either belligerent to do any act on his behalf (unless in pursuance of some agreement of the belligerents themselves) he can not parole fugitive soldiers or seamen to leave the neutral jurisdiction, neither can he surrender the fugitives of one belligerent to the other. He has the right to restrain their liberty, by confinement or parole within his own neutral jurisdiction, but he can impose no condition, valid outside of that neutral jurisdiction, to bind either belligerent except in pursuance of agreement between the belligerents themselves.

(This principle should be applied to all cases of sick, wounded, or refugee belligerents coming within the jurisdiction of a neutral.)

3. As a corollary to paragraph 2, the idea of asylum in any form is to be excluded. The neutral’s action in respect of belligerent refugees within his jurisdiction is not by way of protecting them from the other belligerent, but it is the exercise of his right as a neutral. Any attempt of a belligerent to capture such refugees would be an invasion of the neutral’s sovereign right. This also necessarily excludes the idea that such refugees have the character of prisoners of war, but by agreement of the belligerents arrangements for exchange may be made and notified to the neutral through the diplomatic channel.

Memorandum—General considerations.

1. The Geneva Convention for the amelioration of the condition of the wounded in time of war was concluded at Geneva, Switzerland, on August 22, 1864. The original convention contained an accession clause, in the operation of which the United States became a party to the convention on March 1, 1882.

2. Additional articles, extending the operation of the convention to maritime war, were concluded at Geneva on October 20, 1868. It was acceded to by the United States on March 1, 1882, and the accession of the United States was accepted by Switzerland, on behalf of the powers, on June 9, 1882. Promulgation was deferred by the United States until the exchange of ratifications by the contracting states. Such exchange does not seem to have been had, so that the convention of 1868 is only obligatory as to the states that were signatory parties to its adoption. It contains no accession clause.

3. A number of rules extending the principles of the Geneva Convention to maritime warfare were adopted by the Hague Conference of 1899. To this agreement the United States is a signatory party.

4. The Geneva Convention of 1864, having been the first to occupy the field of treaty legislation in the matter of neutralizing the sick and wounded and the places where they are treated, may properly retain jurisdiction over that subject and may modify, amend, or abrogate any of the clauses of the agreements of 1864 and 1868. As the convention of 1868 added a number of articles which extended the operation of the original convention to maritime warfare, it would seem to be within the jurisdiction of the approaching conference at Geneva to amend, modify, or abrogate any of its rules on that subject or to add new articles.

5. As The Hague Conference undertook to extend the principles of the Geneva Convention to maritime warfare, it also has jurisdiction, and may add to, abrogate, or amend its own articles.

6. The original Geneva Convention was not a new discovery. It simply adopted the best existing practice in reference to the treatment of sick and wounded and undertook to extend, in the form of neutrality, a protection to the sick and wounded and to the medical staff who had them in charge, which was already generally recognized by civilized states in a practice which allowed surgeons who remained with captured wounded to return to their own lines when the wounded had been fully cared for—that is, when they had recovered or had been released or had been removed to general hospitals for treatment.

7. What may be called the professional practice in dealing with the sick and wounded has changed very radically since 1864. It is not too much to say that the treatment of the sick and wounded has undergone a complete revolution in the last forty years. The increased range and rapidity of fire of small arms and artillery must also be taken into consideration. They have operated to extend the zone of hostilities, so that the area covered by that zone, measured along the line of battle or perpendicularly to it, is very greatly increased. As a result, some of the fundamental requirements of the original convention are now impossible of execution.

8. The rules of the Geneva Conventions of 1864 and 1868 have no application to the zone of battle activity, including the firing lines of both armies and their supports and reserves. In this zone the Geneva Convention is not operative and its flag and insignia may not lawfully be displayed, or, if displayed, need not be respected by the opposing belligerent. What has been said applies, of course, to battle formations in the open. The rules in respect to siege operations against fortified places have undergone less change.

9. The original convention, due to the fact that its authors were working in the light of existing practice and were applying their rules to contentions of fact which no longer exist, is in some respects difficult, if not impossible, of execution. The attempt was not made to fix a status for the sick and wounded who fall into the hands of the enemy, although it seems to have been recognized that they were in fact prisoners of war, as were the members of the medical staff who accompanied them. The provision which the convention makes for exchanging the wounded through the outposts is now generally regarded as practically impossible of execution.

10. There is great uniformity in the practice of modern armies in respect to the administration of their medical and sanitary services and as to treatment of the wounded, which is elsewhere explained. It is sufficient to say at this place that they are collected from the battlefield and passed through first-dressing stations, ambulance stations, field hospitals, etc., to the base hospitals at the rear with as little delay as possible. All the administrative arrangements are organized with a view to such rapid passage of the wounded and disabled from front to rear. If it be attempted to reverse this and to deliver them at the enemy’s outposts, it will involve an impairment of efficiency and will bring a very serious strain upon machinery for handling them, tending to its disorganization.

11. From what has been said of the length and depth of the battle line and the increased range of the small-arm and artillery fire, it will be apparent that the flag and the insignia of the convention confer a minimum of protection at the establishments for the relief of the wounded which are located in the vicinity of the lines of battle. For the same reason the protection afforded by the flag and insignia is at its maximum at the base hospitals and at the rest stations in their immediate vicinity.

12. Bearing in mind what has been said, it would seem to be the aim of the conference to secure, first, precision of definition in respect to the objects covered by the convention, especially in respect to the status of the sick and wounded and those in whose charge they are; second, the conference might well restrict itself to the care, treatment, and neutralization of the sick and wounded and those who have charge of them, and should not attempt to invoke other rules of war than those above stated in the operation of any modifications that may be discussed by the convention; that is to say, it should not be attempted to vest an authority to exchange prisoners in one belligerent without the consent of the other. Similarly, the practice of giving an immunity from requisitions or contributions to inhabitants of the theater of war who entertain the sick and wounded had better be omitted. This is especially true when the modern methods of treatment are considered, which can not be efficiently applied in scattered dwelling houses.

It is the purpose of a treaty to regulate certain relations between the states which are parties to its operation. The relations which the original Geneva Convention was intended to regulate were those covering the treatment of the wounded in time of war. The most important wars in the ten years prior to 1864 were the Crimean war of 1854 to 1856 and the Italian war of 1859; and it was the practice in dealing with the wounded, which was exemplified and illustrated in those wars, that the conference had in mind in framing the convention of 1864.

The small arms then in use were old-fashioned smoothbores, with some rifles, and there was no rifled artillery, and no power at that time had taken into serious consideration the adoption of breech-loading artillery or small arms in its military service. The range of artillery and small arms was very limited, and the distances between the firing lines were correspondingly small. If a belligerent found himself encumbered with large numbers of the enemy’s wounded, the most natural disposition to make of them was to send them through the lines of outposts to their own army.

With the artillery and small arms now in use, the distance between the firing lines has been very greatly increased. The zone fought over by the combatants, as each advances or retreats in conformity to the varying fortunes of the battle, is filled with hasty intrenchments for the use of infantry and artillery, and is so crossed with wire entanglements and other obstacles that communication across it is practically impossible. The impracticability of attempting to send the wounded across this zone to their own lines, in ambulances or other vehicles, is so absurd and impossible as to require no demonstration.

It should not be forgotten, too, that the medical and surgical treatment of the sick and wounded has also been revolutionized since the adoption of the original articles in 1864. In all modern armies every arrangement is made for moving the wounded to the rear as expeditiously as possible. The operations of the medical staff and the arrangement and location of dressing stations and field hospitals are now managed with a view to maintain the unobstructed flow of wounded to the rear, and they are never, under any conceivable circumstances, moved in the opposite direction.

Since the general adoption of the modern antiseptic practice of surgery in the treatment of wounds, the disposition has been to hold the wounded under constant professional observation in suitable field or general hospitals with a view to secure the enforcement of correct sanitation in their treatment. To that end the places where they are treated are constantly disinfected, and no competent surgeon would now allow his wounded to be received and treated in private dwellings, save in a case of extreme emergency. The old rule of the convention which afforded an immunity from requisitions to the inhabitants of the theater of war who received and cared for the sick and wounded has now lost most of its force; this is due in part to sanitary considerations, which have already been explained, and in part to a disposition on the part of the inhabitants of the theater of war to endeavor to receive and care for a few sick and wounded with a view to obtain immunity from requisitions or contributions in the operation of Article V of the original convention. Article V has already given occasion for considerable embarrassment to belligerents, for the reasons already stated, and for that reason has already been modified by the requirements of Article IV of the Convention of 1868, and it is now proposed by the Government of the Swiss Confederation to omit it from any rules that may be adopted at the approaching meeting of the conference.

It will thus appear that the original rules applied to a practice of warfare and of surgery and sanitary science which have undergone such radical changes that they bear no resemblance’to the practice of forty years ago. It “is therefore highly desirable that any modifications which may be imported into the existing agreement should conform fully to existing facts and to the present practice.

To obtain such conformity, accurate definitions should be adopted, and the rules adopted by the conference should be drawn in such clear but general terms as will be calculated to insure accuracy and certainty in their execution.

The representatives of the United States feel that; outside of the directions which have already been furnished them by the Secretary of State, two points might properly be made the subject of special instructions. The considerations which actuate the conference chiefly concern the humane treatment of the sick and wounded in time of war. This is a subject which appeals strongly to the public opinion of the civilized world, and the conclusions reached by the conference will be successful in exact proportion as they are supported by intelligent public opinion. To that end it would seem proper that reasonable publicity should be given to its deliberations, with a view to commend its humane conclusions to the respect and support of thinking men, without regard to nationality. In proportion also as there is full and free discussion of the subjects suggested to the conference by the Government of the Swiss Confederation will those who are to attend the later conference at The Hague be enabled to advise the representatives of the United States to that conference as to matters which are to come before it for discussion.

It is also suggested that the attention of the conference be invited to the existing rules in respect to the application of the principles of the convention to maritime warfare, with a view to such amendments as will embody the experience gained in the treatment of the wounded in the recent naval operations in the East. It is believed that this matter may, with great propriety, be brought to the attention of the conference by the representatives of the United States.

It is proper to say, in conclusion, that the views heretofore expressed are submitted with the approval of all the delegates.

Very respectfully,

Geo. B. Davis,
Judge-Advocate-General.