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Aviation History
1918
1918 - 0379.PDF
APRIL 4, 1918. THE RECENT AND FUTURE GROWTH OF '.. •••;":> ;.;•-••'•'. — ,:--^ -,-:;,:.,; AERIAL LAW. By Dr. H. D. HAZELTINE, Reader in English Law in the University of Cambridge. (Concluded from page 354.) allowed to the enemy, it is nevertheless understood that theprohibition to bombard the undefended town holds good . . . and that the commander shall take all due measuresin order that the town may suffer as little harm as possible." The second limitation on the principle of non-bombardmentof undefended localities is to the effect that " after due notice has been given, the bombardment of undefended ports,towns, villages, dwellings, or buildings may be commenced, if the local authorities, on a formal summons being made tothem, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval' forcebefore the place in question." The Convention expressly declares, however, that the bombardment of undefendedlocalities for the non-payment of money contributions is forbidden. , The naval bombardment of defended localities is on principlepermissible. But it is expressly provided in the Convention that " in bombardments by naval forces all necessary stepsshould be taken by the commander to spare as far as possible buildings devoted to public worship, art, science or charitablepurposes, historic monuments, hospitals and places where the sick or wounded are collected, provided they are notused at the time for military purposes." The Geneva Con- vention also protects the structures, equipment and personnelof the Red Cross services and the sick and wounded. On principle, it would seem, furthermore, that in naval, no lessthan in land warfare, bombardment, private houses and the civilian or non-combatant population are protected againstdeliberate attack. It is to be observed that immunities accorded by customaryand conventionary international law to certain properties and persons in defended localities upon bombardments innaval warfare apply also to such properties and persons in undefended localities when, on failure to furnish requisitions,such undefended localities are under legitimate bombardment by naval forces. International law in regard to land and naval bombard-ment embodies, therefore, two fundamental principles. The first principle is that the bombardment of all undefendedlocalities is forbidden. But, whereas in land warfare this prohibition is absolute, in naval warfare it is subject to thelimitation that certain properties of military and naval value to the enemy may be destroyed, and that, on failure to furnishrequisitions, the prohibition is removed and bombardment of the locality is permissible. The second principle is thatthe bombardment of all defended localities is permissible. But in all bombardments of defended localities and also ofundefended places (which are subject, in one case, to bombard- ment by naval forces) there are certain classes of propertiesand persons immune from deliberate attack. -. These fundamental rules, developed in the main for theguidance of armies and navies, as distinct from air forces, have application to the conduct of air forces in so far as suchrules are in the nature of things appropriate to aerial as contrasted with land and maritime warfare. Until a moreadequate code of rules in regard to aerial bombardment is devised and enforced by states the existing principles con-stitute the basis of legitimate aerial bombardment. These principles form the test or criterion which we must apply tothe facts of each separate air raid in order to determine whether the airmen have conducted themselves in a legitimate or anillegitimate manner. If we study the aerial raids of the present war from this point of view a striking difference between thepractices of the two sets of belligerent airmen presents itself. This difference may be expressed by saying that whereas theairmen of Great Britain and her allies have conscientiously tried to obey legal principles and have as a general rule suc-ceeded in doing this, the airmen of the enemy states have shown little or no respect for the dictates of either law or morality.They have on many occasions infringed the fundamental principle that the aerial bombardment of undefended locali-ties is prohibited. Even in the case of undefended places on coasts and large tidal rivers, localities subject to the specialprovisions of the law of naval bombardment, they have not restricted their bombing attacks to objects of military ornaval value, but have deliberately hit the civilian population and their property. Nor have the enemy airmen been ableto justify their bombardment of coast towns on the ground that the local authorities have declined to comply with re-quisitions, for no summons to make requisitions have been made. Likewise in raids upon defended localities enemy THE immunity of certain kinds of property in defendedplaces under bombardment is embodied in Article 27 of the Regulations annexed to the Hague Convention concerningthe Laws and Customs of War on Land, which declares that in sieges and bombardments all necessary step should betaken to spare, as far as possible, buildings devoted to religion, art, science and charity, historic monuments, hospitals andplaces where the sick and wounded are collected, provided they are not used at the same time for military purposes.Hospitals and places where the sick and wounded are collected come also within the protection afforded by the generalprinciples of the Geneva Convention. The question as to whether private houses within defendedlocalities are also protected is one of considerable difficulty. As a survival of earlier practices belligerents have directed thefire of their guns upon private houses, even'during the wars of our own time, in order to bring pressure to bear upon thecivilian population. This practice of attacking those who are unable to defend themselves, although sanctioned by theactualities of many bombardments in history, is contrary to the opinion of enlightened jurists, such as Hall, the funda-mental principles of modern warfare, and the dictates of public conscience and human thought. It should not be forgotten,furthermore, that in the preamble to the Hague Convention concerning the Laws and Customs of War on Land it is expresslydeclared by the Powers that, in cases not covered by the Regulations annexed to the Convention, populations andbelligerents remain under the protection and rule of the principles of the law of nations based on the usages of civilisedstates, the laws of humanity and the requirements of the public conscience. In respect to persons within defended localities, it shouldbe observed that the principles of the Geneva Convention protect the personnel of the Red Cross services and thesick and wounded under their care, and that on principles already explained in connection with private houses, thecivilian population, as non-combatants, are equally immune from deliberate and intentional attack by bombardingforces. It is, then, not an unfair conclusion that in the bombardmentof defended localities the only legitimate objects of attack, according to the spirit of modern international law andmorality, are properties and persons of military value, as, for example, fortifications and soldiers. The injury or evendestruction of properties and persons legally and morally immune is frequently the unintentional result of bombard-ments carried out by belligerent forces scrupulous in their respect for legal and moral principles ; but the deliberateattack upon immune objects and persons within a defended locality reduces warfare to a species of primitive savagery. The fundamental principles of international law in regardto bombardment in maritime warfare are embodied in the Hague Convention (IX, 1907) respecting Bombardmentby Naval Forces in Time of War. It is held by jurists and belligerents that these principles apply to aerial bombardmentin so far as they are appropriate. The Convention distinguishes, as does the conventionarylaw in regard to bombardment in land warfare, between defended and undefended localities ; but the rules of navaland of land bombardment based on this distinction are not identical. It is declared in the Convention that " the bombardmentby naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden " (Art. I). This prohibition,which it is generally agreed applies to aerial bombardment, is in terms absolute. From other parts of the Conventionit is clear, however, that, unlike the prohibition of bombard- ment of undefended localities in land warfare, the prohibitionin naval warfare is subject to important limitations. In the first place, certain properties within an undefended locality maybe destroyed by bombardment after a summons followed by a reasonable interval of time, if all other means are impossible,and when the local authorities have not themselves destroyed them within the time fixed. The properties which are thelegitimate objects of bombardment are " military works, military or naval establishments, depots of arms or warmaterial, workshops of plant which could be utilised for the needs of the hostile fleet or army, and ships of war in the har-bour." The Convention further provides that " if for military reasons, immediate action [in respect to the destruction ofthe specified properties] is necessary, and no delay can be 375
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