EDITORIAL COMMENT

THE JOURNAL ENTERING UPON A SECOND DECADE

THE first number of the AMERICAN JOURNAL OF INTERNATIONAL LAW was issued in January, 1907, and with the issue of October, 1916, it completed what its friends are inclined to call the first decade of its usefulness. With the present number for January, 1917, the JOURNAL begins its second decade, which it is hoped will be one of even greater usefulness. In view of these circumstances, a few words concerning the JOURNAL will not be deemed inappropriate.

When the American Society of International Law was formed in 1906 it was the intention of the founders to create at one and the same time a journal as the organ of the Society, because at that time there was not in existence any other journal of international law in the English-speaking world. In 1906, in connection with the Lake Mohonk Conference on International Arbitration, the final steps were taken by a committee of the American Society of International Law to authorize the issuance of the JOURNAL as the organ of the Society, and the undersigned was appointed the editor and manager of the proposed publication, with power to appoint an editorial board. In all the preliminary arrangements, he associated with him Mr. Robert Lansing, one of the joint founders of the Society, and they made the arrangements for the appearance of the JOURNAL, determining its style and content. The JOURNAL has since then apparently found favor with the public and with its critical readers, for at the meeting of the Board of Editors, held in the City of New York on December 2, 1916, it was decided to make but one change, namely, to print the names of the members of the Editorial Board on the reverse of the table of contents so that the names of the persons responsible for the JOURNAL shall be more easily discovered than heretofore. This change followed naturally and logically the other change made last year, for when it was decided to have the editorial comments signed by their authors, editorial comment as such ceased and the comments

became notes, differing from the articles in that they were shorter and written by members of the Editorial Board. These are the only two changes which experience has suggested to the Board of Editors, and the JOURNAL, starting upon its second decade, will resemble in all other respects its predecesor of the first decade.

There is, however,. another change which should be noted. The publisher for the first decade was Messrs. Baker, Voorhis & Company, of New York. The publisher of the series beginning with the January, 1917, number is the Oxford University Press, American Branch. In chronicling this change of publishers, it is proper to say, and it would be unjust not to mention it, that it is doubtful if the JOURNAL could have appeared when it did and in the form which it assumed had it not been for the interest taken in the venture by Messrs. Baker, Voorhis & Company, and for the generous terms, from which the element of profit was largely excluded, which they made with the Society for its publication. The Society and the JOURNAL Owe Messrs. Baker, Voorhis & Company a debt of gratitude, and the officers of the Society and the Board of Editors of the JOURNAL consider it a pleasure, as well as a duty, to make this public statement of their indebtedness to their former publishers.

The undersigned is very happy to announce on behalf of the Society and the Board of Editors that an index of the first ten volumes of the publications of the Society will be issued in the course of the year, to consist of three separate indices in a special volume, one index to be devoted to the JOURNAL, another to the SUPPLEMENT, and the third to the PROCEEDINGS, so that the publications of the first decade will be readily at the disposal of readers who may care to consult them. The index will be sold to members and subscribers at cost, and it is not expected that the price will exceed the price of a single number of the JOURNAL, namely, $1.25. The Editors would appreciate it, if orders for this index are placed in advance, so that they may know how many to have printed.

It should be stated that since January, 1912, the JOURNAL has appeared in Spanish, that it is steadily increasing its circulation and usefulness, and that the day does not appear to be far distant when it will be as frequently consulted in Spanish as it is in English, and exercise an additional influence among the Spanish-speaking as well as among the English-speaking countries.

JAMES BROWN SCOTT

THE RIGHTS OF THE CIVIL POPULATION IN TERRITORY
OCCUPIED BY A BELLIGERENT

THE generally recognized purpose of war is the overmastering of the armed forces of the enemy. The procedure employed to accomplish this result is, however, governed by certain restrictions which are called "the laws of war," for even in the effort to overcome an armed foe the principles of humanity are considered by all civilized peoples to have a binding authority. These principles and the specific application of them in the laws of war-customary or conventional may not always be actually enforceable, even when solemnly accepted; but they remain the standards by which the conduct of nations is to be judged in the opinion of mankind and the verdict of history.

Civilization does not make war upon individual men, women, and children. Violence against helpless individuals is not war. It is persecution. In moments of calm deliberation all jurists agree in this; and the laws of war, therefore, by common accord, aim to secure the protection of the civil population of a country during military occupation by an enemy force.

The Hague Conventions of 1899 and 1907 respecting the Laws and Customs of War on Land have formulated the conclusions of those conferences on this subject, thereby creating a definite body of law. Exemptions from its operation on the part of the Powers that have ratified these conventions are to be found only in case of definite reservation at the time of signature or ratification, or under the restriction of Article 2, which confines the application of their provisions to the contracting Powers, and makes their obligations binding even upon these only if all the belligerents are parties to the convention.

Several of the belligerents in the present European War have failed to ratify the convention of 1907, which makes some advance upon that of 1899; but all of them ratified the convention of 1899; and it, therefore, expresses the obligations of all these Powers to one another, as well as their deliberately formed decisions as to the principles upon which the conduct of war on land should be based.

In stating the purpose of the convention, these principles are formulated thus:

Animated by the desire to serve the interests of humanity and the ever increasing requirements of civilization;

Thinking it important, with this object, to revise the laws and general customs of war, either with the view of defining them more precisely, or of laying down certain limits for the purpose of modifying their severity as far as possible;

Inspired by these views (the co-signatories)

Have, in this spirit, adopted a number of provisions, the object of which is to define and govern usages of war on land.

The provisions of Section III of the convention of 1899 relate to military authority over hostile territory. Here the primary assumption is that, while the territory is under the authority of the hostile army, this does not entirely supersede the civil authority; but, on the contrary, it "shall take all steps in its power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country" (Article 43).

Expressly prohibited are:

1. Compulsion of the population of occupied territory to take part in military operations against its own country (Article 44).

2. Pressure on the population of occupied territory to take the oath to the hostile Power (Article 45).

3. Disregard of "family honors and rights, individual lives and private property, as well as religious convictions," all of which must be "respected" (Article 46). 4. Pillage (Article 47).

5. The collection of taxes, dues, and tolls beyond the assessments already in force, except "for military necessities or the administration of such territory" (Articles 48 and 49).

6. Requisitions in kind or services from communes or inhabitants except "for the necessities of the army of occupation." "They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their country" (Article 52).

In brief, the evident intention of the regulations is that the order and economy of civil life be disturbed as little as possible by the fact of military occupation; which is not directed against individuals or against society as an institution, but solely against armed resistance.

Into all the details of conduct on the part of an army of occupation it is obviously impossible for such regulations to enter. It would, in fact, be contrary to public morality to specify all the crimes and outrages that could be imagined in a catalogue of acts thus intended to be prohibited. It is, therefore, from the general principle of

respect for the civil rights of persons that the law regarding the treatment of the civil population in matters of detail is to be deduced; and it is with prevision of this necessity that the convention of 1899 says explicitly:

It has not, however, been possible to agree forthwith on provisions embracing all the circumstances which occur in practice.

On the other hand, it could not be intended by the high contracting parties that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders.

Until a more complete code of the laws of war is issued, the high contracting parties think it right to declare that in cases not included in the regulations adopted by them, populations and belligerents remain under the empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.

In seeking for the law regarding the treatment of the civil population in territory occupied by a belligerent, we are not, therefore, confined to the formal regulations adopted in these conventions. Whatever is against the established usage of civilized nations, whatever infringes the laws of humanity, whatever violates the requirements of the public conscience, is as clearly illegal as if it were prohibited by precise definition.

Whatever the possibility of enforcement may be, this is the standard by which the jurist must form his judgment, and it is the standard by which public opinion in general must be governed.

At the present time the deportation of civil populations in great numbers from their homes and their forcible transportation to the country of the enemy, there to be compelled to the performance of servile tasks, furnishes an occasion for serious reflection.

In April, 1916, at Lille, the German military commandant issued a proclamation announcing the intention to transport the inhabitants to the country to perform agricultural labor. Each person was allowed to take 30 kilogrammes of baggage, including utensils and clothing. In one of the proclamations all the inhabitants of the house, with the exception of children under 14 years of age and their mothers and old men, were ordered to prepare for transportation within an hour and a half, with the injunction that "Whoever shall endeavor to avoid transportation will be pitilessly punished."

Against this measure the Mayor of Lille earnestly protested, as did also the Bishop of Lille, on the ground that "to destroy and