The extreme difficulty of arriving at complete agreement as to a new setof rules on this vexed subject proved insurmountable at the Brussels Conference;and in point of fact the debates showed that at the bottom of the discussionthe matters at stale were the differences in the interests of states whopossess such vast armies as served under the colours of the Germans or theFrenchand those smaller states whicheither from policy or from povertyor from smallnessdeclined or were unable to keep on foot armies on thatscaleThe following remarks are to be found in the despatch in which theEnglish Secretary of StateLord Derbysummed up the results of this mostremarkable controversyHe says at the fifth page of his despatchpublishedin 1876'The second chapter of the report of the Conference relating tocombatants and non-combatants showed an equal difference of opinionsmoothedoverin the long runby a compromiseThe Swiss delegatein his observationson the article requiring the use of a distinctive badgerecognizable ata distanceremarked that a country might rise en masseas Switzerland hadformerly doneand 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 patriotsif defeatedmight not be treated as peacefulcitizensit could not be admitted in defence that they were not belligerent.'
The English delegate also reported that during the general discussion onthe subject of this chapter the Netherlands delegate remarked that if theplan laid down by the German delegate was to be sanctionedon the adoptionof those articles which relate to belligerents as drawn up in the project,it would have the effect of diminishing the defensive force of the Netherlands,or render universal and obligatory service necessary -a military revolutionto which the public opinion of the Netherlands was opposedHe thereforereserved more than ever the opinion of his GovernmentThe Belgian delegatealso made a declaration of reservationIn the opinion of the Belgian delegateno country could possibly admit that if the population of a de facto occupieddistrict should rise in arms against the established authority of an invader,they should be subject to the laws in force in the occupying armyHe admittedthat in time of war the occupier might occasionally be forced to treat withseverity a population who might riseand that from its weakness the populationmight be forced to submitbut he repudiated the right of any Governmentto require the delivering over to the justice of the enemy of those men whofrom patriotic motives and at their own risk might expose themselves to thedangers consequent upon a risingThe Swiss delegatewho had previouslypointed out that the Conference was now engaged upon the cardinal pointsof the whole projectopenly declared that two questionsdiametrically opposedto each otherwere before the Commissionthe intereston the one hand,of great armies in an enemy's countrywhich demands security for their communicationand for their rayon of occupationandon the otherthe principles of warand the interests of the invadedwhich cannot admit that a population shouldbe handed over as criminals to justice for having taken up arms against theenemyThe reconciliation of these conflicting interests was at this periodimpossible in the case of a levée en masse in the occupied country,and in the face of the opposite opinions expresseduntil a provisional modificationof them was accepted by the meetingpassing over this pointon which thegreatest disagreement had been shown.
These difficultieswhich prevented the project of the Brussels Conferencefrom becoming part of the International Law of civilizationare no doubtto be attributed to the fact that reminiscences of the great war betweenFrance and Germany dominated the whole of these debatesIt is one amongmany examples of a truth of considerable importancethat the proper timefor ameliorating the critical parts of International Law is not a time immediatelyor shortly succeeding a great crisisHereafter I shall point out to yousome conclusions to which this truth seems to me to point.
There is another parthoweverof International Law upon whichif itbe possibleit is extremely desirable to have a systematic set of rules.
It is perhaps an inevitable but certainly a frequent result of the presentwant of rulesthat when enemies are fighting in the same countryand oneside complains of the measures adopted by the otherthere is no means ofpunishing what is thought to be an infraction of rule except retaliationoras the technical word isreprisalsRetaliationwe are toldis militaryvengeanceIt takes place where an outrage committed on one side is avengedby the commission of a similar act on the otherFor examplean unjust executionof prisoners by the enemy may be followed by the execution of an equal numberof prisoners by their opponentsRetaliation is an extreme right of war,and should only be resorted to in the last necessity'It may be well tonotice,says the writer I am quotingincidentally for the purpose of reprobatingit'the idea once prevailed that a garrison which obstinately defended aplace when it hadin the opinion of the enemybecome untenablemight beput to the sword.There is no doubt that during the Franco-German war reprisalswere carried to unjustifiable lengths on both sidesThe French Governmenthas published a curious volume which reproduces all the placards which eitherthey or others had affixed to the walls during the contest in FranceAtone point the Germans granted no quarter during an attack on a villageonthe plea that twenty-five francs-tireurs (riflemenhad hidden in a woodnear itwithout any regular officer or uniformand had shot down as manyGermans as came within range of their gunsOn another of these placardsis a notice by a French officer to the Prussian commander of Châtelleraultin reference to the alleged resolve of the latter to punish the inhabitantsof that place for the acts of some of the francs-tireurs'I give you myassurancethreat for threatthat I will not spare one of the two hundredPrussian soldiers whom you know to be in my hands.And indeed General Chanzy,himself a gallant officer in high placewrote to the Prussian commanderof Vendorneand stated that he intended to fight without truce or mercybecause it is a question now not of fighting loyal enemies but hordes ofdevastatorsOn this great subject the Brussels Conference was able to dobut little except to suggest that retaliation should only be resorted toin the most extreme casesand should be conducted with the greatest possiblehumanity.
