certainly they should be interpreted in a different sense to that which is given them in land and naval warfare. As M. Pillet has pointed out, the terms are unsatisfactory, as was abundantly demonstrated by the experience of the World War.36 To take a specific example, it was impossible to say whether Rheims and Soissons were "defended" or not when they were bombarded by the Germans. The international Red Cross Committee in a letter of November 22, 1920, addressed to the Assembly of the League of Nations demanding that aerial bombardment be prohibited, pointed out that there was no satisfactory criterion for distinguishing between open or undefended towns and those which were not.37 In any case, if the test of defense were adopted, it is not easy to see how an aviator in many cases could determine before beginning a bombardment whether a particular place is defended or not. In view of these circumstances, the solution proposed by the Commission of Jurists which abandons absolutely the criterion of "defense" and substitutes that of the "military objective" is not only more practical but more logical and reasonable.38 In fact, during the World War the British and French Governments professed to have acted in accordance with this rule. Their aviators were instructed to confine their attacks to "points of military importance" and the reports and communiqués of air raids which were given out to the public uniformly asserted that the objects of attack were railway stations, barracks, munitions factories, hangars, chemical establishments, etc. Whether the town or city in which they were situated was defended or open, was not mentioned, that fact apparently being regarded as immaterial.39 It should be said, however, that during the later years of the war, both English and French aviators were authorized to make raids upon certain "undefended" towns of Germany as acts of reprisal for repeated and indiscriminate attacks of German aviators against similar places in England and France.40 Theoretically the Germans also adopted the "military objective" doctrine, although their practice was far from being consistent with it. Their communiqués and explanations as late as the spring of 1918 uniformly declared that their air attacks had hitherto been directed exclusively against fortresses or other objects of military importance and then only when they were situated in the zone of field operations. The raids upon England and the portions of France outside the zone of land operations were justified as legitimate acts of reprisal either for the earlier allied raids upon Karlsruhe, Freiburg and Stuttgart, or for the enforcement of the "illegal and inhuman" Anglo-French blockade. "La Guerre Actuelle et le Droit des Gens," Rev. Gén. de Droit Int. Pub., t. XXIII, p. 429. 37 Revue Internationale de la Croix Rouge, 1920, p. 1348. * Compare to this effect the opinion of Spaight, "Air Bombardment", British Year Book of International Law, 1923-24, p. 22. 39 Compare Spaight, ibid., p. 24. 40 As to these reprisal raids, see my International Law and the World War, Vol. I, pp. 488 et seq. Whatever may have been the actual practice of the three belligerents mentioned, it is clear that there was a disposition among them to regard the "military objective" test as the sounder and more defensible; that only objects of military importance ought to be bombarded, and that whether they were situated in a "defended" or "undefended" city or town was immaterial. The rule proposed by the Commission of Jurists embodies, therefore, the view professed by the belligerents during the World War, even if their practice was not in conformity with it. A second outstanding feature of the rules proposed by the Commission of Jurists is the distinction which it makes between the bombardment of cities, towns, villages, dwellings and buildings situated in the "immediate neighborhood of the operations of the land forces" and those situated outside this region. The bombardment of those situated in the latter zone is prohibited. But suppose certain of the "military objectives" mentioned above are found in the latter zone? Clearly, no belligerent could be asked to renounce his right to bombard such objects, wherever they may be found, and the rule proposed by the commission does not go to such lengths. While it prohibits the bombardment of the town or city in which they are situated, it allows the bombardment of the "military objective" itself, provided it is so situated that it can be bombarded without the indiscriminate bombardment of the civilian population. If it is not so situated, the aviator must abstain from bombardment. This rule is somewhat similar to that which had already been proposed by M. Rolland in 1916, namely, that only such aerial bombardments should be regarded illegitimate and condemnable, as, in view of the circumstances in which they are made, may affect (atteindre) principally or exclusively the civil population not engaged in the production of military supplies. That is to say, the bombardment of military objectives situated in an urban agglomeration is legitimate when there exist reasonable chances of hitting them; on the other hand, if there is a probability that the civil population will be the principal victims, the bombardment is not justifiable." In the other zone-that which constitutes the immediate voisinage of the theater of land operations-not only the "military objectives" which may be found there, but even the cities, towns or villages in which they are situated, including also dwellings and buildings, may likewise be bombarded, provided there exists a "reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population". The underlying principle of this rule is that whatever injuries the civil population may be subjected to, they should be merely incidental or accessory and the military damage must be compensatory, that is, sufficiently great to justify the sufferings caused those who are not legitimate objects of attack.42 It_will 41 Article cited, p. 553. 42 Compare the observations of Spaight, Air Craft in War, p. 6, and Hyde, op. cit., Vol. II, p. 322. be noted that in neither zone is bombardment totally forbidden, nor in either is it allowed without restriction. The principal difference is that in one a larger right of bombardment is permitted than is allowed in the other. The distinction is founded on considerations of both reason and logic, not to say humanity. Throughout the World War the Allies protested vigorously against the German air raids upon their towns and cities situated far behind the lines of land operations, and, as stated above, the public opinion of a large part of the civilized world strongly condemned them as cruel and barbarous. The German Government itself protested against the attacks of Allied aviators upon German towns, not merely for the reason that they were "undefended", but because they were situated "far from the theater of operations" or "outside the region of operations". Unfortunately, however, the Germans gave the zone theory an interpretation the effect of which would have protected Karlsruhe and Freiburg against bombardment but not the towns of England and France.43 The distinction which the proposed rules of the commission make between the two zones for purposes of bombardment is founded on the difference of situation between the places and populations of the two regions—a difference which every one feels and can appreciate. In and immediately adjacent to the zone of land operations, war and violence reign; the destruction of towns and villages in this area may generally be justified as a legitimate part of the field operations, and being aware of this, the civil population can be on their guard and may avoid the consequences by withdrawing in advance of the arrival of the enemy. In fact, usually they will already have evacuated this region voluntarily or by order of the local commander of their own forces, so that they will no longer be exposed to the consequences of bombardment. In the other region outside the zone of operations their situation is totally different. A state of actual war can hardly be said to exist there. For an aviator to fly over this region in the darkness of night, launch his bombs indiscriminately upon peaceful towns and villages which are not even technically defended and kill unoffending women and children, is as indefensible as the torpedoing, without warning, of a merchant vessel filled with noncombatants—a procedure which a recent convention stigmatizes as piracy." The distinction which the rule proposed by the commission makes between the right of aerial bombardment in the two zones, therefore undoubtedly responds to a widespread popular demand.45 ❝ Compare Rolland, article cited, p. 553, and Spaight, article cited, p. 25. "Treaty of Washington of February 6, 1922, Art. 3. Compare, however, Ellis, "Aerial-Land and Aerial-Maritime Warfare", this JOURNAL, Vol. VIII, p. 267, who thinks that the proposal to confine aerial warfare to the sphere above the zone of belligerent operations will probably never be accepted. Military interests, he thinks, will outweigh humanitarian considerations and the entire territory of belligerent countries will be the theater of combat. The rule proposed by the commission, however, is not inconsistent with this view, since it does not forbid but only restricts aerial bombardment in the zone lying outside the field of land operations. All will agree with Oppenheim But in limiting aviators to the bombardment of certain specified military objectives, in forbidding the bombardment of those situated outside the theater of land operations when it cannot be done without the indiscriminate bombardment of the civilian population, and in allowing the bombardment of places within the latter zone only when there exists a reasonable presumption that the military concentration is sufficiently important to justify bombardment, the rules proposed by the commission undoubtedly leave a large discretionary power to aviators. To a much larger degree than in land and naval warfare they are made the judges of the legitimacy of their attacks. They must determine in each case and with little opportunity for investigation and verification whether a particular object falls within the category of "military objectives", and if so whether it is situated outside the immediate zone of land operations, and if so whether it can be bombarded without "indiscriminate" bombardment of the civil population; and, finally, whether in the case of a city, town or building situated within the zone of land operations there exists the "reasonable presumption" of military importance required by the rule. Manifestly, the most scrupulous aviator will commit errors of judgment under these circumstances if he resorts to bombardment at all. It is altogether probable that in the majority of cases aviators will take large chances, that they will interpret broadly their rights and consider whatever damage may result to the civil population from their bombarding operations as being merely incidental to the accomplishment of a military advantage, and therefore justifiable. For this reason the rules proposed may not prove to be a very effective limitation upon their conduct. The commission was not indifferent to the possibility that the rules which it proposed would be violated and therefore of the necessity of a sanction, and, accordingly, following the analogy of Article 3 of the Hague Convention of 1907 Respecting the Laws and Customs of War on Land, it adopted a rule which makes belligerents liable to the payment of an indemnity for injuries to persons and property resulting from violations of the provisions regarding bombardment.46 It is difficult to see how any rule could be devised which would allow (International Law, 3d ed., Vol. II, p. 302) that "the limits in which aircraft may be employed to make raids outside the theater of military or naval operations should be established". 46 Several of the projects laid before the commission proposed to establish the personal responsibility of aviators who were guilty of violating the rules and to subject them to punishment as war criminals. But no such rule was adopted. The commission, however, admits in its report that the absence of such a rule will not prevent the punishment of aviators who are guilty of infractions against the laws of aerial warfare. The Dutch delegation proposed that belligerents should be held responsible for all acts in violation of the rules, committed by aviators in their service, and that in case of differences regarding responsibility for such violations, they should be submitted to the Permanent Court of International Justice. While declining to embody the proposal in a rule, the commission incorporated the suggestion in its report in order to bring it to the attention of the governments concerned. bombardment at all and yet be entirely free of the objection mentioned. In the last analysis, the value of the rule proposed by the commission must depend upon the good faith, the respect for conventions and the sentiment of humanity which may animate attacking aviators. It results from the very nature of aerial warfare that under any rule that may be adopted, except that of absolute prohibition, non-combatants will be exposed to large risks and in many cases to the loss of their immunities.47 In many cases, no doubt, the fear of reprisals will deter aviators from deliberately violating the rules, for it may be assumed that the belligerent whose own civil population will be equally exposed to unlawful attacks by enemy aircraft will hesitate to have recourse to forbidden methods which may be turned against him with equal effect.48 Following the analogy of the Hague Conventions,49 the commission added a rule enjoining aviators to spare as far as possible properly marked buildings dedicated to public worship, art, science and charity, and historic monuments and hospitals, provided they are not used at the same time for military purposes (Art. 25). Upon the insistence of the delegates from Italy, a country whose historic and artistic monuments suffered heavily from the effects of aerial bombardment during the World War, a series of special rules were agreed upon with a view to providing greater protection for this class of monuments. In brief, these rules permit states to establish, if they see fit, a zone of protection, not exceeding 500 metres in width, around such monuments, provided it is done in time of peace 50 and duly notified to the other Powers, and provided they are properly marked by clearly visible signs. An inspection committee of three neutral representatives is provided for the purpose of insuring that the zones so established and the monuments situated therein are not used for military purposes (Art. 26). The system is entirely optional, and if a state prefers to rely wholly upon Article 25 for the protection of such monuments, it is free to do so. It may be remarked that the establishment of such zones will have the effect in certain cases-for example in the case of Venice and Florence, both of which cities are particularly rich in historic and artistic monuments-of including the larger part of the cities in which they are situated, since the zones will frequently overlap one another. On the other hand, the effect will be to neutralize such cities so that they cannot be used for military purposes by the belligerent in whose territory they are situated a rule which no doubt will be strictly interpreted by the enemy. 47 Compare the observations of Rolland, article cited, p. 555; Spaight, Air Craft in War, p. 21; Fauchille, article cited, p. 75; Hyde, op. cit., Vol. II, pp. 321 and 323; and Ellis, article cited, p. 267. 48 Compare Spaight, Air Craft in War, p. 22. " Convention Respecting the Laws and Customs of War on Land, Art. 27; Convention Respecting Bombardment by Naval Forces, Art. 5. 50 There was some objection to the requirement that the zones must be established and notified only in time of peace. |