Land War

Land War

Davis’s Interpretation of Article 23 (h)

Lassa Oppenheim, in the book entitled The Future of International Law, about Davis’s Interpretation of Article 23 (h), wrote in 1921: 37. This is also the opinion of Davis, one of the American delegates to the second Hague Conference; he gives the following explanation with regard to Article 23 (h), in the third edition of his Elements of International Law (New York, 1908), p. 578: In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy, who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibitions of Article 23. The prohibition is included in section (h).

Impossible to Reconcile the Divergent Views About Article 23(h)

Lassa Oppenheim, in the book entitled The Future of International Law, about Impossible to Reconcile the Divergent Views About Article 23(h), wrote in 1921: 38. If, from the fact that Davis was an American delegate, we may conclude that he represents the government view of the United States of North America, we are confronted by the fact that official England and America adopt an interpretation of Article 23 (h) which is entirely at variance with that of Germany, and it is quite impossible to build a bridge of reconciliation between the two camps. This regrettable fact has its origin simply in the careless use of the legislative method. If the German conception of Article 23 (h) be the correct one, the lines of subsection (h) ought never to have found a shelter in Article 23, for they have not the slightest connexion with hostilities between the contending forces. If, on the other hand, the Anglo-American interpretation be the right one, pains should have been taken to secure a wholly different draft of the provision in question, for the present wording is by no means transparently clear. The protocols of the Conference (Actes, i, 101; iii, 14, 103) are not sufficiently explicit on the matter. The German delegate, Goeppert, did indeed explain (cf. Actes, iii, 103) at the session of the first subcommission of the Second Commission on July 3, 1907, ‘that this proposal is in the direction of not limiting to corporeal goods the inviolability of enemy property, and that it has in view the whole domain of obligations with the object of forbidding all legislative measures which, in time of war, would deprive an enemy subject of the right to take proceedings for the performance of a contract in the courts of the adverse party’. But we shall scarcely go wrong if we assume that the members of the Second Commission, who were entrusted with the consideration of the ‘Regulations respecting the laws of land warfare’, had not sufficiently realized the full meaning of the German proposal. It would otherwise be quite unintelligible that the reporter upon the German proposal could say (cf. Actes, i, 101): ‘This addition is deemed a very happy attempt to bring out in clear language one of the principles admitted in 1899’, for these ‘principles’ (concerning the immunity of the private property of enemy subjects in land warfare) have very little indeed to do with the question of the persona standi in judicio of an enemy subject.


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