The United States and the development of the laws of land warfare

Military Law Review

Volumn , Issue 156, 1998, Pages 224-255

  Doty, Grant R ^a  

^a UNITED STATES MILITARY ACADEMY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032368981     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (193)

1. GEOFFREY BEST, HUMANITY IN WARFARE 129 (1980).
2. 2L. OPPENHEIM, INTERNATIONAL LAW §§ 67-69 (H. Lauterpacht ed., 7th ed. 1952). For a thorough historical description of the period before 1856, see BEST, supra note 2, at ch. 1-2.
3. Adam Roberts, Land Warfare: From Hague to Nuremberg, in THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD 116, 119 (Michael Howard et al. eds., 1994).
4. THE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTS ON INTERNATIONAL LAWS GOVERNING ARMED CONFLICT xxi (W. Michael Reisman & Chris T. Antonion eds., 1994).
5. FRITS KALSHOVEN, CONSTRAINTS ON THE WAGING OF WAR 7-8 (1987).
6. Available in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (Government Printing Office 1898) (1863), reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 3-23 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Lieber Code].
7. Available in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (Government Printing Office 1898) (1863), reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 3-23 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Lieber Code].
8. Available in 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1907, at 1204-16 (U.S. Dep't of State ed., 1910); and THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-92 (Dietrich Schindler and Jirí Toman eds., 1988) [hereinafter Hague Convention IV].
9. Available in 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1907, at 1204-16 (U.S. Dep't of State ed., 1910); and THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-92 (Dietrich Schindler and Jirí Toman eds., 1988) [hereinafter Hague Convention IV].
10. Available in 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1907, at 1204-16 (U.S. Dep't of State ed., 1910); and THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-92 (Dietrich Schindler and Jirí Toman eds., 1988) [hereinafter Hague Convention IV].
11. Often called the "Treaty on Treaties" and available in U.N. Doc. A/CONF 39.27 (1969), 1155 U.N.T.S. 336, reprinted in 63 AM. J. INTL. L. 875 (1969) (signed at Vienna 23 May 1969; entered in to force 27 January 1980; not in force for the United States). MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 14 n.19 (2d ed. 1993).
12. Often called the "Treaty on Treaties" and available in U.N. Doc. A/CONF 39.27 (1969), 1155 U.N.T.S. 336, reprinted in 63 AM. J. INTL. L. 875 (1969) (signed at Vienna 23 May 1969; entered in to force 27 January 1980; not in force for the United States). MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 14 n.19 (2d ed. 1993).
13. Often called the "Treaty on Treaties" and available in U.N. Doc. A/CONF 39.27 (1969), 1155 U.N.T.S. 336, reprinted in 63 AM. J. INTL. L. 875 (1969) (signed at Vienna 23 May 1969; entered in to force 27 January 1980; not in force for the United States). MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 14 n.19 (2d ed. 1993).
14. JANIS, supra note 9, at 29.
15. Id. at 46 (citing North Sea Continental Shelf Cases, 1969 I.C.J. 3, 44). See also The Paquete Habana, 175 U.S. 677 (1900).
16. 1 THE LAW OF WAR: A DOCUMENTARY HISTORY xxii (Leon Friedman ed., 1972).
17. W. Michael Reisman & William K. Leitzau, Moving International Law from Theory to Practice: The Role of Military Manuals in Effectuating the Laws of Armed Conflict, in 64 UNITED STATES NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, THE LAW OF NAVAL OPERATIONS 1, 5-6 (Horace B. Robertson, Jr. ed., 1991).
18. Available in BRITISH PARLIAMENTARY PAPERS: MISCELLANEOUS No. 1, 1874, C. 1010, at 12-17 [hereinafter Russian Proposal].
19. Available in BRITISH PARLIAMENTARY PAPERS: MISCELLANEOUS No. 1, 1875, C. 1128, at 157-82; and THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 25-34 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Brussels Declaration].
20. Available in BRITISH PARLIAMENTARY PAPERS: MISCELLANEOUS No. 1, 1875, C. 1128, at 157-82; and THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 25-34 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Brussels Declaration].
21. Available in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1899, at 537-47 (U.S. Dep't of State ed., 1899), reprinted in THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-93 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Hague Convention II].
22. Available in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1899, at 537-47 (U.S. Dep't of State ed., 1899), reprinted in THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-93 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Hague Convention II].
23. Available in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1899, at 537-47 (U.S. Dep't of State ed., 1899), reprinted in THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907 (James Brown Scott ed., 3d ed. 1918); reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63-93 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Hague Convention II].
24. Howard S. Levie, The Laws of War and Neutrality, in NATIONAL SECURITY LAW 307, 308 (John Norton Moore et al. eds., 1990).
25. Article XXIV of the bilateral Treaty of Commerce and Amity between the United States and Prussia, dated 1785 (8 Stat. 84), specified how prisoners of war should be treated if the two states should enter into a war. Additionally, Russia and the United States had an agreement, signed in 1854 (10 Stat. 1105), that pertained to the rights of neutrals at sea. Id. at 308-09.
26. Id. at 309.
27. BEST, supra note 2, at 139.
28. BRITISH STATE PAPERS 1856, Vol. LXI, reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 787-90 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Paris Declaration].
29. BRITISH STATE PAPERS 1856, Vol. LXI, reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 787-90 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Paris Declaration].
30. The seven powers were: Austria, France, Prussia, Russia, Sardinia, Turkey, and the United Kingdom. Id. at 789.
31. OPPENHEIM, supra note 3, at § 68.
32. For the actual text of the Convention for the Amelioration of the Condition of the Wounded Armies in the Field, see THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 279-83 (Dietrich Schindler and Jirí Toman eds., 1988). While the conference which resulted in the Geneva Convention was eventually sponsored by the Swiss Confederation, Henri Dunant (he was also known as J. Henry Dunant) a civilian who consequently won the first Nobel Peace Prize, inspired it. Mr. Dunant, upon seeing the carnage of the battle of Solferino in 1859 was moved to write an influential book, SOUVENIR DE SOLFERINO (1862), which proposed the establishment of an international organization which would work with their governments in order to care for sick and wounded soldiers in war. ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 218-19 (1947).
33. For the actual text of the Convention for the Amelioration of the Condition of the Wounded Armies in the Field, see THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 279-83 (Dietrich Schindler and Jirí Toman eds., 1988). While the conference which resulted in the Geneva Convention was eventually sponsored by the Swiss Confederation, Henri Dunant (he was also known as J. Henry Dunant) a civilian who consequently won the first Nobel Peace Prize, inspired it. Mr. Dunant, upon seeing the carnage of the battle of Solferino in 1859 was moved to write an influential book, SOUVENIR DE SOLFERINO (1862), which proposed the establishment of an international organization which would work with their governments in order to care for sick and wounded soldiers in war. ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 218-19 (1947).
34. For the actual text of the Convention for the Amelioration of the Condition of the Wounded Armies in the Field, see THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 279-83 (Dietrich Schindler and Jirí Toman eds., 1988). While the conference which resulted in the Geneva Convention was eventually sponsored by the Swiss Confederation, Henri Dunant (he was also known as J. Henry Dunant) a civilian who consequently won the first Nobel Peace Prize, inspired it. Mr. Dunant, upon seeing the carnage of the battle of Solferino in 1859 was moved to write an influential book, SOUVENIR DE SOLFERINO (1862), which proposed the establishment of an international organization which would work with their governments in order to care for sick and wounded soldiers in war. ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 218-19 (1947).
35. OPPENHEIM, supra note 3, at § 68.
36. NUSSBAUM, supra note 24, at 219-20. According to Nussbaum, the United States' eventual official adherence to Geneva in 1882 was the result of the "long and vigorous crusade" led by Clara Barton. Despite its tardy accession, the United States never expressed opposition to its elements. Id.
37. Available in BRITISH PARLIAMENTARY PAPERS LXIV (1869), reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 101-03 (Dietrich Schindler and Jirí Toman eds., 1988).
38. Available in BRITISH PARLIAMENTARY PAPERS LXIV (1869), reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 101-03 (Dietrich Schindler and Jirí Toman eds., 1988).
39. DOCUMENTS ON THE LAW OF WAR 30-31 (Adam Roberts and Richard Guelff eds., 1982) [hereinafter DOCUMENTS].
40. Id. at 29-30.
41. Lieber Code, supra note 7.
42. George B. Davis, Doctor Francis Lieber's Instructions for the Government of Armies in the Field, 1 AM. J. INT'L LAW 13, 19 (1907). Although Francis Lieber was an American, he was born in 1800 in Germany. Between 1815 and 1826 he served in the Colberg Regiment under Bluecher, was wounded at Namur, and fought briefly in the war for Greek independence. He sought political asylum in England in 1826 and arrived in the United States soon afterwards. After teaching at the University of South Carolina for some time, he later moved to New York City where he taught at Columbia University. Id. at 13. Dr. Lieber died in 1872.
43. There is little evidence that the four general officers did much more than review Lieber's draft and make minor changes. Id. at 19-20.
44. Lieber Code, supra note 7.
45. Reisman & Leitzau, supra note 13, at 8 (citing 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNAL 1237 (1950)).
46. Letter reprinted in DAVIS, supra note 32, at 19-20.
47. Id. at 20.
48. JANIS, supra note 9, at 44 (citing 175 U.S. 677 (1900)).
49. In addition to immodesty, he was perhaps a bit sycophantic, for Halleck was consulted and finally approved of the orders. DAVIS, supra note 32, at 20.
50. Letter reprinted in Davis, supra note 32, at 20-21.
51. See infra notes 84-101 and accompanying text.
52. LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 27-28 (1993).
53. BEST, supra note 2, at 171. For an example of this tendency in legal texts as well, see EDWARD KWAKWA, THE INTERNATIONAL LAW OF ARMED CONFLICT: PERSONAL AND MATERIAL FIELDS OF APPLICATION 11 (1992).
54. See infra notes 84-101 and accompanying text. See also Telford Taylor's Forward in 1 THE LAW OF WAR: A DOCUMENTARY HISTORY, supra note 12, at xv, for a more apt analogy with a "cornerstone," yet one that neither Taylor nor the editor (Friedman) adequately prove.
55. See supra notes 9-13 and accompanying text.
56. An article by article relationship for each of these five codes is presented in a hypertext format as well as excerpts of this paper on the World Wide Web. Grant R. Doty The Laws of War Genealogy Project [hereinafter Genealogy]. Visitors to this web site may click any article from any code and this site will provide a genealogical listing of that particular article (i.e., from the Lieber Code of 1863, to the Russian Proposal for the Brussels Conference of 1874, to the resulting Brussels Declaration of 1874, to the Hague Convention II from the Hague Conference of 1899, and finally to the Hague Convention IV from the Hague Conference of 1907). For example, if you click "Article 40" from Hague Convention IV, this site will "jump" to the "MASTER" document which will list: • Art. 40 (Hague Convention IV, 1907). Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately. • Art. 40 (Hague Convention II, 1899). Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in case of urgency, to recommence hostilities at once. • Art. 51 (Brussels Declaration, 1874). The violation of the armistice by one of the parties gives the other party the right of denouncing it. • Art. 67 (Russian "Proposal," 1874). The violation of the clauses of an armistice by either one of the parties, releases the other from the obligation of carrying them out, and warlike operations may be immediately resumed. • Art. 145 (Lieber Code, 1863). When an armistice is clearly broken by one of the parties, the other party is released from all obligations to observe it.
57. Hague Convention IV, supra note 8.
58. As Schindler and Toman note: [t]he provisions of. . . [Convention IV, like Convention II] are considered as embodying rules of customary international law. As such they are also binding on states which are not formally parties to them . . . [additionally these rules] were partly reaffirmed and developed by the two Protocols Additional to the Geneva Conventions of 1949, adopted in 1977. THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Schindler & Toman].
59. As Schindler and Toman note: [t]he provisions of. . . [Convention IV, like Convention II] are considered as embodying rules of customary international law. As such they are also binding on states which are not formally parties to them . . . [additionally these rules] were partly reaffirmed and developed by the two Protocols Additional to the Geneva Conventions of 1949, adopted in 1977. THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 63 (Dietrich Schindler & Jirí Toman eds., 1988) [hereinafter Schindler & Toman].
60. 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1906, at 1629-31 (U.S. Dep't of State ed., 1909) [hereinafter 2 FRUS 1906].
61. 1 PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1907, PLENARY MEETINGS OF THE CONFERENCE 83-85 (Division of International Law of the Carnegie Endowment for International Peace trans., James Brown Scott ed., 1920) [hereinafter 1 PROCEEDINGS 1907].
62. See Genealogy, supra note 46.
63. ALEXANDER PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES CONCERNING THE LAWS AND USAGES OF WAR 261 (1909).
64. GEORGE B. DAVIS, The Amelioration of the Rules of War on Land, 2 AM. J. INT'L L. 63, 66-67 (1908).
65. Schindler & Toman, supra note 48, at 63.
66. Hague Convention II, supra note 16.
67. While some sources such as the INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONVENTIONS AND THEIR OFFICIAL REPORTS 3-5 (James Brown Scott ed., 1916) [hereinafter U.S. INSTRUCTIONS AND REPORTS] have listed eight themes or subjects, the United States Department of State lists only seven in Count Mouravieff's second circular. PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1898, at 551-53 (U.S. Dep't of State ed., 1901) [hereinafter FRUS 1898]. Regardless, the laws and customs of war are referred to in the next to the last agenda item (sixth or seventh).
68. While some sources such as the INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONVENTIONS AND THEIR OFFICIAL REPORTS 3-5 (James Brown Scott ed., 1916) [hereinafter U.S. INSTRUCTIONS AND REPORTS] have listed eight themes or subjects, the United States Department of State lists only seven in Count Mouravieff's second circular. PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1898, at 551-53 (U.S. Dep't of State ed., 1901) [hereinafter FRUS 1898]. Regardless, the laws and customs of war are referred to in the next to the last agenda item (sixth or seventh).
69. FRUS 1898, supra note 56, at 552.
70. The authentic text was in French and was translated and reprinted in English in RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW 26-42 (James Brown Scott ed., 1916). Schindler & Toman, supra note 48, at 35-48.
71. THOMAS E. HOLLAND, STUDIES IN INTERNATIONAL LAW 88 (1898).
72. Schindler & Toman, supra note 48, at 36.
73. LESLIE C. GREEN, ESSAYS ON THE MODERN LAW OF WAR 88 (1985).
74. Schindler & Toman, supra note 48, at 25.
75. THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899, at 50-69, 474-578 (Div. of Int'l Law of the Carnegie Endowment for Int'l Peace trans., James Brown Scott ed., 1920) [hereinafter PROCEEDINGS 1899].
76. See Genealogy, supra note 46.
77. Brussels Declaration, supra note 15.
78. See infra note 79 and accompanying text.
79. See infra notes 107-113 and accompanying text. But see BEST, supra note 2, at 345-46 n.43. Best comments in this endnote that following the conference, "[e]very international lawyer, I believe, felt obliged to publish something about [Brussels]." He offers, however only one English language secondary source and then only a chapter as an example: THOMAS E. HOLLAND, STUDIES IN INTERNATIONAL LAW ch. 3 (1898). Furthermore, a recent (18 February 1998) subject search of the Library of Congress catalog at 〈http://webpac.library.yale.edu/webpac-bin/wgbro-ker? 02182215113431+%2Daccess+top%2ELib% 5FCong〉 reveals that only two items exist: one short document written in 1874 and another (in French) written in 1974. FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, THE BRUSSELS CONGRESS AND DECLARATION OF PARIS: TO THE QUEEN'S MOST EXCELLENT MAJESTY, THE HUMBLE AND LOYAL PETITION OF THE FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, ASSEMBLED IN CONFERENCE AT KEIGHLEY, MARCH 28, 1875 (1875); JEAN DE BREUCKER, LA DÉCLARATION DE BRUXELLES DE 1874 CONCERNANT LES LOIS ET COUNTUMES DE LA GUERRE (1974).
80. See infra notes 107-113 and accompanying text. But see BEST, supra note 2, at 345-46 n.43. Best comments in this endnote that following the conference, "[e]very international lawyer, I believe, felt obliged to publish something about [Brussels]." He offers, however only one English language secondary source and then only a chapter as an example: THOMAS E. HOLLAND, STUDIES IN INTERNATIONAL LAW ch. 3 (1898). Furthermore, a recent (18 February 1998) subject search of the Library of Congress catalog at 〈http://webpac.library.yale.edu/webpac-bin/wgbro-ker? 02182215113431+%2Daccess+top%2ELib% 5FCong〉 reveals that only two items exist: one short document written in 1874 and another (in French) written in 1974. FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, THE BRUSSELS CONGRESS AND DECLARATION OF PARIS: TO THE QUEEN'S MOST EXCELLENT MAJESTY, THE HUMBLE AND LOYAL PETITION OF THE FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, ASSEMBLED IN CONFERENCE AT KEIGHLEY, MARCH 28, 1875 (1875); JEAN DE BREUCKER, LA DÉCLARATION DE BRUXELLES DE 1874 CONCERNANT LES LOIS ET COUNTUMES DE LA GUERRE (1974).
81. See infra notes 107-113 and accompanying text. But see BEST, supra note 2, at 345-46 n.43. Best comments in this endnote that following the conference, "[e]very international lawyer, I believe, felt obliged to publish something about [Brussels]." He offers, however only one English language secondary source and then only a chapter as an example: THOMAS E. HOLLAND, STUDIES IN INTERNATIONAL LAW ch. 3 (1898). Furthermore, a recent (18 February 1998) subject search of the Library of Congress catalog at 〈http://webpac.library.yale.edu/webpac-bin/wgbro-ker? 02182215113431+%2Daccess+top%2ELib% 5FCong〉 reveals that only two items exist: one short document written in 1874 and another (in French) written in 1974. FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, THE BRUSSELS CONGRESS AND DECLARATION OF PARIS: TO THE QUEEN'S MOST EXCELLENT MAJESTY, THE HUMBLE AND LOYAL PETITION OF THE FOREIGN AFFAIRS COMMITTEES OF YORKSHIRE, ASSEMBLED IN CONFERENCE AT KEIGHLEY, MARCH 28, 1875 (1875); JEAN DE BREUCKER, LA DÉCLARATION DE BRUXELLES DE 1874 CONCERNANT LES LOIS ET COUNTUMES DE LA GUERRE (1974).
82. See supra note 64 and accompanying text.
83. BEST, supra note 2, at 156.
84. Schindler & Toman, supra note 48, at 25.
85. KWAKWA, supra note 43, at ch. 2.
86. THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD (Michael Howard et al. eds., 1994).
87. OPPENHEIM, supra note 3, §§ 68, 228 n.2.
88. Russian Proposal, supra note 14, at 3.
89. Id.
90. Russian Old/New dating convention.
91. Russian Proposal, supra note 14, at 5-6.
92. Id. at 5-17.
93. The dispatches can be found in Brussels Declaration, supra note 15. Geoffrey Best notes that daily dispatches are "a full-looking account" and that his final report is a "fine summary of it all." BEST, supra note 2, at 345-46 n.43.
94. Brussels Declaration, supra note 15, at 157-82.
95. See supra notes 68-73 and accompanying text.
96. See Genealogy, supra note 46. Note that the assertion that no articles were dropped between 1899 and 1907 includes the transfer of articles 57-60 to "Convention (V) respecting the rights and Duties of neutral Powers and Persons in Case of War on Land." Schindler & Toman, supra note 48, at 92 n. 1.
97. Schindler & Toman, supra note 48.
98. Russian Project, supra note 14.
99. U.S. INSTRUCTIONS AND REPORTS, supra note 56, at 45.
100. Davis, supra note 32, at 22.
101. Levie, supra note 17, at 309.
102. See, e.g., HOWARD, supra note 72.
103. BEST, supra note 2, at 156.
104. DOCUMENTS, supra note 29, at 7. But see, CALVIN D. DAVIS, THE UNITED STATES AND THE FIRST HAGUE PEACE CONFERENCE (1962). Davis is slightly more helpful acknowledging a close relationship between codes because he cites de Martens as commenting later that the Lieber Code "inspired much of the work of the Brussels Conference." Id. at 132.
105. See, e.g., Janis, supra note 9, at 162-76.
106. KWAKWA, supra note 43, at 11.
107. OPPENHEIM, supra note 3, §§ 68, 228 n.2.
108. Schindler & Toman, supra note 48, at 3.
109. See Genealogy, supra note 46.
110. Lieber Code, supra note 7.
111. HOLLAND, supra note 59, at 85.
112. See Genealogy, supra note 46.
113. The verbiage differs, one must conclude, because of the different formats (i.e., order versus international law) and more importantly because the author of the Russian Proposal was not limited, as were those who modified the other codes in the forum of an international conference, to merely deviating from a previous international code.
114. See supra notes 85-86 and accompanying text.
115. See Genealogy, supra note 46.
116. See supra notes 66-73 and accompanying text.
117. See Genealogy, supra note 46.
118. See supra note 74 and accompanying text.
119. Russian Proposal, supra note 14, at 3.
120. Id. at 19-20.
121. BRITISH PARLIAMENTARY PAPERS: MISCELLANEOUS No. 2, 1874, C. 1083, at 2, 8.
122. PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES (U.S. Dep't of State ed., various).
123. See supra notes 66-73 and accompanying text.
124. BRITISH PARLIAMENTARY PAPERS: MISCELLANEOUS No. 2, 1874, C. 1083, at 8. The eventual attendees included delegates from Germany, Austria, Belgium, Spain, France, Greece, Italy, Netherlands, Portugal, Russia, Sweden, Switzerland, Turkey, Denmark, and Great Britain.
125. NUSSBAUM, supra note 24, at 219-20.
126. See supra notes 85-86 and accompanying text.
127. PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1874, at 1014 (U.S. Dep't of State ed., 1875). Only 39 pages are devoted to a post hoc analysis of the Brussels Conference.
128. See Genealogy, supra note 46.
129. FRUS 1898, supra note 56, at 541-42.
130. DAVIS, supra note 90, at 38-39.
131. See id. at 38-46 for an explanation of the perceived and actual motives behind the rescript.
132. CALVIN D. DAVIS, THE UNITED STATES AND THE SECOND HAGUE PEACE CONFERENCE: AMERICAN DIPLOMACY AND INTERNATIONAL ORGANIZATION 7 (1975).
133. One European leader was cited as stating that there was a "bit of deviltry" in the call for the conference because any state who refused to attend would be branded as wanting to "break the peace." DAVIS, supra note 90, at 40. An analysis of official diplomatic correspondence reveals that U.S. statesmen sought to "satisfy the expectations and longings of the peace movement while sacrificing none of the essential demands of the movement for war." For example, the Department of State's "Instructions to the American Delegates," included an annex which noted: "[t]he introduction of a brief resolution (regarding international arbitration - a popular cause for the American peace movement) at an opportune moment . . . would at least place the United States on record as a friend and promoter of peace" 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1907, at 1142 (U.S. Dep't of State ed., 1910) [hereinafter 2 FRUS 1907], In the body of the instructions, there is the more realistic observation that the idea of halting military increases was "at present, so inapplicable to the United States . . . [that it] could not be profitably discussed." PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1899, at 511-13 (U.S. Dep't of State ed., 1901) [hereinafter FRUS 1899].
134. One European leader was cited as stating that there was a "bit of deviltry" in the call for the conference because any state who refused to attend would be branded as wanting to "break the peace." DAVIS, supra note 90, at 40. An analysis of official diplomatic correspondence reveals that U.S. statesmen sought to "satisfy the expectations and longings of the peace movement while sacrificing none of the essential demands of the movement for war." For example, the Department of State's "Instructions to the American Delegates," included an annex which noted: "[t]he introduction of a brief resolution (regarding international arbitration - a popular cause for the American peace movement) at an opportune moment . . . would at least place the United States on record as a friend and promoter of peace" 2 PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1907, at 1142 (U.S. Dep't of State ed., 1910) [hereinafter 2 FRUS 1907], In the body of the instructions, there is the more realistic observation that the idea of halting military increases was "at present, so inapplicable to the United States . . . [that it] could not be profitably discussed." PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES: 1899, at 511-13 (U.S. Dep't of State ed., 1901) [hereinafter FRUS 1899].
135. FRUS 1898, supra note 56, at 551-53; DAVIS, supra note 90, at 50-53.
136. See supra note 56 and accompanying text (discussion of actual number of agenda items).
137. FRUS 1898, supra note 56, at 552.
138. Id. at 552. The other "subjects" included: (1) a limitation or reduction in land and naval forces/armaments; (2) disallowing the use of new firearms or explosives more powerful than currently used; (3) limitation of explosives and prohibition of dropping projectiles from balloons; (4) prohibition of the use of submarines or ships armed with rams; (5) adaptation of the Geneva Convention of 1864/68 for naval war; (6) the neutralization of naval vessels to rescue those shipwrecked after naval battles; and (7) the use of good offices, mediation, and voluntary arbitration in order to prevent armed conflict. Id at 552-53.
139. DAVIS, supra note 90, at 52-53.
140. Id. at 64-73.
141. Id. at 73-74.
142. Id. at 75.
143. Id. at 75.
144. FRUS 1899, supra note 119, at 512.
145. It is also possible that the Department of State read the Russian circular with the view that the items dealing with firearms and explosives, having been listed first, were more significant.
146. DAVIS, supra note 90, at 125.
147. 1 THE LAW OF WAR: A DOCUMENTARY HISTORY, supra note 12, at xiv-xv, xxiii, 153.
148. DAVIS, supra note 90, at 122.
149. Id. at 127.
150. Id. at 132-33.
151. PROCEEDINGS 1899, supra note 63, at 521, 536, 555, 558.
152. Brussels Declaration reprinted in Schindler & Toman, supra note 48, at 28.
153. DAVIS, supra note 90, at 133.
154. Id. at 133. The text of article 13g reads: "Any destruction or seizure of the enemy's property that is not imperatively demanded by the necessity of war [is forbidden]." Schindler & Toman, supra note 48, at 29.
155. PROCEEDINGS 1899, supra note 63, at 491-93.
156. DAVIS, supra note 90, at 136.
157. See supra note 129 and accompanying text.
158. FREDERICK W. HOLLS, THE PEACE CONFERENCE AT THE HAGUE AND ITS BEARINGS ON INTERNATIONAL LAW AND POLICY 40-41 (1900).
159. DAVIS, supra note 90, at 132.
160. Id. at 132.
161. HOLLS, supra note 143, at 38-52, 103-104.
162. As mentioned earlier, a detailed comparative analysis of the 56 article Brussels Declaration and the 60 article Hague Convention II reveals that notwithstanding minor revisions, only eight articles were newly created at the Hague in 1899 and only two Brussels' articles were abandoned. See supra note 64 and accompanying text.
163. DAVIS, supra note 118, at 111-12.
164. 2 FRUS 1906, supra note 49, at 1629-31. See also DAVIS, supra note 118, at 123.
165. 2 FRUS 1906, supra note 49, at 1629-31. The other items were: (1) improvements to the convention relative to the peaceful settlement of international disputes regarding the court of arbitration and international commissions of inquiry; (3) a convention relative to the laws and customs of naval warfare; and (4) additions to the convention of 1899 for the adaptation of the Geneva Convention of 1864 to maritime warfare. Id.
166. DAVIS, supra note 118, at 125.
167. Id. at 125-128.
168. FORTY-SIXTH ANNUAL REUNION OF THE ASSOCIATION OF GRADUATES OF THE UNITED STATES MILITARY ACADEMY AT WEST POINT, NEW YORK, JUNE 11TH 1915, at 129-30 (USMA Association of Graduates ed., 1915) [hereinafter USMA REUNION 1915].
169. Id. at 131-33.
170. Id. at 133. Additionally, one of his texts, revised and issued after his death, located in the Yale Law School Library included evidence of his standing in the legal community. GEORGE B. DAVIS, THE ELEMENTS OF INTERNATIONAL LAW, WITH AN ACCOUNT OF ITS ORIGIN, SOURCES, AND HISTORICAL DEVELOPMENT inscription, back inside cover (Gordon E. Sherman ed., 4th ed. 1916). Specifically, Simon Baldwin, the head of the Yale Law School handwrote a note to the editor that "it is a tribute to his memory that you found so few changes necessary."
171. USMA REUNION 1915, supra note 153, at 135-36.
172. DAVIS, supra note 118, at 173.
173. Calvin Davis' footnote says "Minutes, Am. Commission Apr. 20, 1907, pp. 1-4" yet research uncovered no bibliographic reference to such a source. DAVIS, supra note 118, at 170 n.2.
174. DAVIS, supra note 118, at 171.
175. See infra note 161 and accompanying text.
176. 2 FRUS 1907, supra note 119, at 1128-44.
177. Id. at 1137.
178. Davis, supra note 118, at 200.
179. See supra note 53 and accompanying text.
180. 3 PROCEEDINGS OF THE HAGUE CONFERENCES: THE CONFERENCE OF 1907, MEETINGS OF THE SECOND, THIRD, AND FOURTH COMMISSIONS 97-144 (Div. of Int'l Law of the Carnegie Endowment for Int'l Peace trans., James Brown Scott ed., 1920) [hereinafter 3 PROCEEDINGS 1907].
181. DAVIS, supra note 118, at 207.
182. See supra note 53 and accompanying text.
183. See supra notes 103-114 and accompanying text.
184. See supra notes 129-130 and accompanying text.
185. See supra notes 127, 143-146 and accompanying text.
186. See supra notes 128-129, 157-162 and accompanying text.
187. See supra notes 157-160 and accompanying text.
188. See supra note 10 and accompanying text.
189. See Genealogy, supra note 46.
190. BEST, supra note 2, at 346 n.44.
191. JANIS, supra note 9, at 46.
192. 1 THE LAW OF WAR: A DOCUMENTARY HISTORY, supra note 12, at xxii.
193. Reisman & Leitzau, supra note 13, at 5-6.