"Article I. A merchant ship converted into a war ship cannot have the rights and duties accruing to such vessels, unless it is placed under the direct authority, immediate control, and responsibility of the power whose flag it flies.

"Article II. Merchant ships converted into war ships must bear the external marks which distinguish the war ships of their nationality.

"Article III. The commander must be in the service of the state and duly commissioned by the competent authorities. His name must figure on the list of the officers of the fighting fleet.

"Article IV. The crew must be subject to military discipline.

"Article V. Every merchant ship converted into a war ship must observe in its operations the laws and customs of

wars.

"Article VI. A belligerent who converts a merchant ship into a war ship must, as soon as possible, announce such conversion in the list of war ships."

This convention embodies and makes more definite the principles which have been generally followed in practice since 1870, when Germany made her propositions in regard to a voluntary naval force. It regulates somewhat more carefully the use of such vessels after they are enrolled in the public forces. Many questions arose at the Hague Conference of 1907 which made impossible the formulation of generally acceptable rules on all points in regard to the conversion of merchant ships into war ships. Some of the delegates were absolutely opposed to conversion except in a home port. While some of the delegates were generally opposed to conversion on the high seas, they wished to make exceptions in favor of merchant vessels which had left national ports before the outbreak of hostilities, and in favor of the conversion of merchant vessels captured from the enemy on the high sea and adapted to warlike use. Some thought that the abolition of capture of private property at sea would lead a belligerent to change a ship from a war status to a merchant status, if in danger of capture, in order to bring it under the exemption. Great freedom of conversion and reconversion

was favored by a few of the delegates. The need that the character of a vessel be clear to a neutral was generally maintained.

Upon the question justly regarded as the most difficult, "the question whether the conversion of a merchant ship into a war ship may take place upon the high seas," the contracting powers have been unable to come to an agreement. As the preamble of the seventh convention states, "the question of the place where such conversion is effected remains outside of the scope of this agreement" and is in no way affected by its rules. Thus it is evident that, while provision is made for the abolition of the evils of privateering, there remains for a later conference the agreement upon such difficult questions as those of conditions under which a converted vessel may be reconverted into a war vessel and the place where conversion and reconversion may be allowed.*3

The questions of conversion and reconversion were again considered in the International Naval Conference of 1908-09, but it was not possible to reach a solution which would command general support.

43 Wilson, Conversion of Merchant Ships into War Ships, 2 A. J. I. 271.

CHAPTER XVII.

RULES OF WAR.

135. Regulation of Belligerent Action.

136. Prohibited Means.

137.

138.

139. 140.

Prohibited Methods.

Special Regulations-Bombardment.

Submarine Mines and Torpedoes.

Discharge of Projectiles and Explosives from Balloons.

141. Spies.

REGULATION OF BELLIGERENT ACTION.

135. In modern times the range of permissible belligerent action has been gradually defined by domestic regulations, by special conventions, and by general conventions.

In early times there was little or no restriction upon what one belligerent might do to his opponent.

It is now customary for states to issue regulations to their forces for the conduct of hostilities, as was done by both parties to the Russo-Japanese War of 1904. A Japanese regulation in regard to procedure in capturing vessels (article XLII) states that: "The boarding officer, before he leaves the vessel, shall ask the master whether he has any complaint regarding the procedure of visiting or searching, or any other points, and if the master makes any complaints he shall request him to produce them in writing."

There are also treaties between different states in which certain articles are inserted with special reference to the regulation of hostilities.1 At the Hague Peace Conferences of 1899 and 1907, and at the International Naval Conference at London in 1908-09, general conventions for the regulation of hostilities were agreed upon and to these many states have adhered. There are thus at the present time generally recognized rules for the conduct of hostilities.2

1 Treaty between United States and Italy, 1871.

2 See Conventions in Appendices.

Gradually there arose a feeling, stimulated by the influence of the age of chivalry, that even the conduct of war should be regulated. Provisions of treaties were drawn with view that they should become effective on the outbreak of war. States made declarations in regard to the course which they would pursue under given circumstances. The necessity of fixed rules was particularly evident during the early years of the Civil War in the United States. Vast armies were gathered. Many leaders were naturally unacquainted with the laws and customs of war, and the decisions in different parts of the great area of operations were often conflicting. After two years of warfare the Secretary of War requested Professor Francis Lieber to prepare a code of rules for the use of the armies. There were not at that time conventional agreements as to the rules of warfare. Dr. Lieber prepared a body of rules numbering one hundred and fifty-seven. These articles were submitted to a board of officers, and on April 24, 1863, issued as General Order No. 100.3 These rules were particularly aimed to cover a condition of civil war. They were, however, so equitable in spirit that they have been widely accepted as the standard statement of what the rules of war upon land should be. The rules published under General Order No. 100, in 1863, as "Instructions for the Government of Armies of the United States in the Field," were issued without change for the government of the army of the United States in the Spanish-American War of 1898. These rules strongly influenced the form of later codes.

Count von Moltke, on December 11, 1880, writing on the proposed Oxford Manual of Laws of War, said:

"Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developedcourage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice. The soldier gives his life. Without war the world would stagnate, and lose itself in materialism. * * I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such

3 Appendix, p. 488.

are the rules of the manual relating to the wounded, the sick, the surgeons, and medical appliances."

In his reply to Count von Moltke's letter, Professor Bluntschli says:

"The administration of the law of war ought therefore to be intrusted primarily to the state which wields the public power in the place where an offense is committed. No state will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties. It will not do so even when it knows that it runs no risk of war on the part of neutral states. Every state, even the most powerful, will gain sensibly in honor with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations.

"Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation-that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way." +

Within twenty years from the date of Count von Moltke's letter the states of the world had at the Hague Conference agreed upon rules for warfare far more detailed than those proposed in the Oxford Manual.

PROHIBITED MEANS.

136. In general the prohibited means of injuring the enemy include

(a) Such instruments or weapons as cause unnecessary suf

fering.

(b) Such as constitute hidden peril or are uncertain in their effect.

Holland, Letters on War and Neutrality, pp. 25-29.