The Incorporation of the Hague Regulations into the Manual of Military Law
Although Holland had initially been commissioned by the War Office, which was responsible for the publication of army manuals, including the Manual of Military Law, the project rapidly expanded to involve multiple government deÂpartments.
The Foreign Office expressed interest in the work, as the responsibilÂity for all alleged violations of international laws and conventions - or, at least, all such violations which were expected to have diplomatic consequences - were addressed to and dealt with by that office.[1336] Initial planning for the updated manual had also attracted the enthusiastic support of the former Director of Military Intelligence and Hague Conference technical-delegate Sir John Ardagh. Despite his lack of formal legal education, in the aftermath of the 1899 Hague Conference Ardagh considered himself an expert on international law in Britain. He suggested that the initial draft should be circulated to the Admiralty, Colonial Office and Home Office, before being submitted to the opinion of the Law Officers of the Crown (the Attorney General and Solicitor General). Though Ardagh's suggestion did not appear to take root, from its inÂception it was evident that the project would be subject to layers of revision, reassessment, and bureaucracy. Each of these offices would bring to the pamÂphlet their own understanding of the newly codified laws of war and the purÂpose of the guidelines for British soldiers.In May 1902, Holland held his first private interview with Finlay, the Attorney-General, who proposed that he should both rewrite Chapter fourteen of the Manual of Military Law and compile a pamphlet handbook which would contain the full text of the regulations attached to the 1899 Hague Convention. Less than a year later, Holland submitted his first draft of the chapter, also proÂduced as a pamphlet handbook on 13 February 1903.
This manuscript consisted of ten articles in large print, which derived from the three principal internaÂtional conventions to which Britain was signatory (the Geneva Convention 1864, St. Petersburg Declaration 1868, and the Hague Convention 1899). These were accompanied by thirty-eight articles in small print which were intended to elucidate the terms of the conventions, and for which Holland alone was responsible. The articles from the conventions had been rearranged by HolÂland, who argued his system improved their clarity. He included a large appenÂdix, which consisted of a list of powers party to each convention and compleÂmentary historical notes. Also contained in the appendix was the text of the unratified 1868 Geneva Convention and the sections of the 1899 Hague ConÂvention which Britain had not signed.[1337]Though Holland included these unratified conventions, he had omitted other topics which had been suggested for inclusion by the War Office, such as armistice, capitulations, parole, oaths of neutrality, passport, safeguard, and cartel of exchange.[1338] These were practical issues for soldiers which had been traditionally included in Chapter fourteen of the Manual of Military Law. By suggesting their inclusion it seems that the War Office intended the manual to provide instructions to soldiers on all legal questions arising during war, not just those covered by the Hague Convention. Holland's emphasis evidently lay elsewhere. Although he chose to break from the format of previous manuals, he also included other topics not covered by the Hague Convention, such as a large section on martial law. Holland's omission of practical legal topics comÂbined with his detailed theoretical explanations suggests that he intended his manual to be read by a wider audience than the ordinary British soldier.
Despite leaving out a number of topics suggested by the War Office, the first criticisms of Holland's text still concentrated on its length.
On 8 April 1903 Sir John Scott, Deputy Judge Advocate General, wrote to Holland to inform him that the draft was â€?too bulky to be incorporated in the Manual', and too conÂcerned with the theory of the law of war, which he advised Holland to omit altogether.[1339] The initial responses of William Nicholson, the Director General of Military Intelligence, and the Law Officers, Carson and Finlay, were more positive. Carson and Finlay considered the small print material written by Holland to be suitable and appropriate for the purpose of guiding soldiers.[1340] Both reports proposed structural changes, but it seemed as though the general text could remain largely the same.[1341] Following these revisions, and another reading by Finlay, a second draft was supplied to the War Office on 31 July 1903.[1342] The Law Officers opinion seemed to satisfy the War Office. Holland's principal contact there, Colonel Richard Davies, wrote to Nicholson asking him to write a preface to the pamphlet version of Holland's text, to state it was issued by royal authority.[1343] [1344] [1345] [1346] [1347] Holland also seemed satisfied with the Law Officers response, and his thoughts turned towards the style and format of the final pamphlet.n However, although the contents had obtained War Office approval, it had to be approved by the Foreign Office before publication.That August, Holland wrote to Davies, to tell him that he had sent a formal letter to the Foreign Office Secretary of State, Lord Lansdowne, along with sevÂeral copies of his pamphlet handbook on the laws of ward2 Nearly two weeks later, seemingly still without reply, Holland began to worry that unnamed auÂthorities wished to make changes to the text. â€?I should be very much obliged', he wrote,
to give reasons for the existing text, every word of which has a history, a good deal of it being the result of discussions with the Attorney-General, also by being allowed myself to make any changes which, after hearing my explanations, may be wired ford3
Preparing for his annual visit to Eggishorn in the Swiss Alps, he concluded with perhaps a touch of exasperation �if, and when, you wish to communicate with me, a letter to my Oxford address will always reach me'd4
On the same day that Holland's patience was beginning to waver, memÂbers in the Foreign Office were raising their own objections to his handbook. A letter to Broderick at the War Office outlined Lord Lansdowne's personal reservations to the project.
The Foreign Minister expressed his doubts over the â€?expediency of laying down hard and fast rules on questions of internationÂal law', which he believed were largely dependent on special and particular circumstances.[1348] [1349] [1350] [1351] [1352] Instead, he suggested that the text of the Hague Convention should be included in the Manual of Military Law, while the text of Holland's chapter could be circulated separately in pamphlet form without any official or authoritative status. Crucially, the motivation for this was that suppressing the â€?official' connection to the pamphlet would â€?obviate the risk of His MajÂesty's Government being held at any time to be bound by the language used therein'?6 Although Nicholson protested that this would necessitate restartÂing the project entirely, by November the War Office appeared in agreement with the Foreign Office. Even though the work had been revised and edited throughout its construction by the Law Officers, as well as the Deputy Judge Advocate General, it was decided that Holland's pamphlet handbook on the laws of war should be published in a form that would absolve the government of â€?any liability for its contents'?7To achieve this aim, the War Office suggested that the words â€?Published by authority &c' should be removed from the book's title page. They additionally advised that Nicholson could still take responsibility for the preface but should use it to distance the government from Holland's explanatory notes?8 LansÂdowne himself took this detachment a step further. He wanted the full removal not only of the Royal Arms but also all allusion to Royal Stationery Office and mention that the printers, Messrs. Harrison and Sons, were printers for the King. The Foreign Office's worries centred on the potential confusion these inÂsignias might generate among â€?foreign readers' of the handbook?9 It was in this form that the Laws and Customs of War on Land by T.E.
Holland was eventually published in 1904.Whether Holland realised his authoritative position had been unceremoniÂously revoked is uncertain. This may be due to conflicting opinions he was given throughout the drafting process on the format that his manuscript would eventually take. From the start of the project Holland had urged for the Hague regulations to be issued in a separate format to the Manual of Military Law. He hoped this way the Hague rules would achieve a wider circulation amongst British soldiers, who he could not have expected to share his level of literacy or patience with international legal writing.[1353] [1354] [1355] [1356] [1357] The Law Officers had initially reÂquested that the Hague Regulations be included without explanatory notes in the manual, while proposing that Holland's explanatory work could be issued separately?1 But, as we have seen, following submission of the first draft, the responses of Nicholson and the Law Officers were favourable to the retention of Holland's commentary within the manual.22 Despite eventually being pubÂlished separately to the manual, Holland maintained that this commentary held official status. Writing a few years later, he contrasted his 1904 Laws and Customs of War with Chapter fourteen of the 1899 Manual of Military Law which had been compiled by Lord Henry Thring. He argued that Thring's chapÂter possessed â€?no official authority', and instead could â€?express only the opinÂions of the compiler'. In his version of events, the War Office had been â€?induced to depart from this cautious attitude and to entrust the present writer the preparation of the Handbook, many thousand copies of which were issued to the British Army in 1904'.23 Whether or not this report of mass circulation was the case, it seems that despite the best efforts of the Foreign Office, his work had maintained some connection to the War Office. The Foreign Office desire to remove the authoritative status from Holland's work suggests that its author had deviated sharply from the established underÂstanding of the laws of war by those working within the British Government. Understanding why involves an examination of Holland's background as an academic international lawyer and an examination of what purpose he saw the Manual of Military Law fulfilling. 2