Constitution of the Court. captor when it holds them to be unjust or inequitable in their consequences (t). If the Court confirms the capture of a vessel or cargo, they are to be disposed of in accordance with the captor's law. If it pronounces the capture to be null, then it shall order restoration and fix the amount of damages, if any; but if the prize has been sold or destroyed, it shall determine the amount of compensation to be paid to the owners (u). The Court is to be composed of fifteen competent judges of high character, of whom nine will form a quorum. In order to constitute it, each signatory Power is to appoint a judge and a deputy judge (x). Both are appointed for six years. Provision is made for cases of absence, resignation or death, and for rank, precedence, oath of office, and immunities (y). From the body of these nominated judges the Court is to be constituted thus: The judges appointed by Great Britain, the United States, France, Germany, Austria-Hungary, Russia, Italy and Japan are to be permanent members of the Court, whilst the other seven judges sit according to a prescribed rota (2). But if it happens, under the rota, that a belligerent State has not a judge in the Court, then one of the judges may be withdrawn by lot, and its own included (a). No person may sit as judge who has been a party to the sentence pronounced in the national Court; and no judge or deputy judge may, during his term of office, act for any party before the International Court (b). A belligerent captor, or a neutral Power being a party to the proceedings, may appoint a naval officer of high rank to sit as assessor, but with no voice in the decision (c). Provision is made for the election of the President and Vice-President (d). The judges may not be paid by their own Government or by any other Power, but only out of a common fund (e). The Court is to sit at The Hague, and may not sit elsewhere except in case of compulsion ('force majeure'), and then only if the belligerents consent (f). The ministerial functions of the Court are to be performed by the Administrative Council and the International Bureau (g). The Court shall determine what languages may be used, but in all cases the official language of the national Court which has heard the case before may be used (h). The parties may appoint agents and advocates to act for them and plead their cause (i). Provision is made for the mode and time of entering the Procedure. appeal (k), service of notices and procuring of evidence (1), for written pleadings and oral discussions (m). After the close of the pleadings, the Court is to fix a day for a public sitting, when the parties state their view of the case both as to the law and the facts (n). A party may demand that discussion be held in private (o). All questions are decided in private by a majority of the judges present (p); the judgment must state the reasons on which it is based (q), and must be delivered in open court (r). Each party bears its own costs; but the party against whom the Court decides must pay in addition the costs of the trial (s). The Court may draw up further rules of procedure and make modifications in the rules contained in the Convention; these must be notified to the contracting Powers (t). For a long time there was a difference of opinion with regard to NAVAL BOMsome of the fundamental questions of naval bombardment. Most BARDMENT. jurists and publicists contended that the destruction of open and undefended coast towns, and the exaction of enormous ransoms by threats of bombardment were reprehensible proceedings; but in some quarters-considering frequent naval practices they were regarded as permissible operations for bringing pressure to bear on the enemy with a view to overcome him. The conflicting views related to the fundamental principle of warfare-whether any kind and any amount of injury and damage may be inflicted on the enemy, or only that kind and to that extent which will manifestly contribute to the defeat of the military and naval forces. In 1896 the subject of naval bombardment was considered by the Institute of International Law, which drew up a number of progressive rules. It was then agreed by the leading international jurists that the basic principles of bombardment on land should apply to bombardment on sea. Two of the Articles arrived at indicate the prevailing juristic opinion. Article 4 says that conformably to the general principles that had been formulated, the naval bombardment of an open town is inadmissible, save for the purpose of (i) Arts. 25, 26. (9) Art. 44. (r) Art. 45. (t) Arts. 49, 50. The full text will be found in a convenient form in Higgins, op. cit. pp. 407 seq. The Hague Undefended towns. Military works, &c. obtaining by requisitions or contributions what is necessary for the fleet, and for the purpose of destroying sheds, military erections, depôts of war munitions or of warships in port. An open town that defends itself against the entrance of troops or of disembarked marines may be bombarded for the purpose of protecting such disembarkation and covering their operations if resistance continues. Bombardment of which the object is merely to extract a ransom, or force submission by attacks on the peaceful inhabitants and their property, is forbidden. Article 5 declares that an open town may not be bombarded simply because it is the capital of the State or the seat of the Government, or because it is occupied by troops or is ordinarily a garrison (u). In 1899 the matter came before the first Hague Conference; no agreement was reached, though a desire was expressed that a subsequent Conference should consider the question. Accordingly, in 1907, a Convention (the ninth) was established, whereby a compromise was effected between the claims of military necessity and those of humanity. The rules are as follows: "The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden. A place may not be bombarded solely on the ground that automatic submarine contact mines are anchored off the harbour" (v). The most important word of this Article, viz., 'undefended,' was not defined. Attempts were, indeed, made; but they failed on account of the difficulty that was experienced in drawing a distinction between the defence of a coast and of a town near the coast. The second paragraph of the Article, however, limits the denotation of the term, by specifying a particular proceeding which shall not be deemed to amount to a measure of defence. The representatives of several States were unable to accept this limitation, on the ground that anchoring mines off the harbour is a means of defence. Accordingly, reservations were entered against the second paragraph by Great Britain, France, Germany, Spain, Japan, and China. The simplest way to determine whether a place is undefended is to supply an answer to the question: Is it left open for the enemy forces to enter, if they should succeed in reaching it? Special exceptions to the general rule formulated in the first paragraph are given in the ensuing Articles. "Military works, military or naval establishments, depôts of arms or war material, workshops or plant which could be utilized for (u) Cf. Annuaire de l'Institut de Droit International (1896), pp. 313 (v) Hague Convention (1907), No. IX. Art. 1. -315. the needs of the hostile fleet or army, and ships of war in harbour, are not, however, included in this prohibition. The commander of a naval force may destroy them by artillery, 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. such The commander incurs no responsibility for any unavoidable damage that may be caused by a bombardment in circumstances. If for military reasons immediate action is necessary, and no delay can be allowed to the enemy, it is nevertheless understood that the prohibition to bombard the undefended town holds good, as in the case given in the first paragraph, and that the commander shall take all due measures in order that the town may suffer as little harm as possible" (x). An instance showing the application of this Article occurred in the Turco-Italian war, February 25, 1912. An Italian commander having surprised, at dawn, a Turkish gun-boat and a torpedoboat in the port of Beirut, demanded their surrender. The demand was at the same time notified to the Governor and the consular authorities, and an interval of time (till 9 o'clock a.m.) was allowed for compliance therewith. When the interval expired, the Turkish vessels wore again called upon, by signal, to surrender. As no reply was given, they were fired at; the attacked vessels returned the fire, but they were destroyed by the bombarding squadron. Some of the assailant's shells missed their objective, exploded on the quay, killed and injured several persons and damaged a number of buildings. Having regard to those facts, it is clear that under the above Article the Italian commander incurred no responsibility for the injury and damage which he had unavoidably caused. "If the local authorities, on a formal summons being made to Refusing to them, decline to comply with requisitions for provisions or supplies comply with requisitions. necessary for the immediate use of the naval force before the place in question, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced after due notice has been given. Such requisitions shall be proportional to the resources of the place. They shall be demanded only in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in ready money; if not, receipts shall be given" (y). Protected buildings. Aerial bombardment. This Article allows too heavy a price to be paid for refusal to fulfil readily the demand for requisitions. "The bombardment of undefended ports, towns, villages, dwellings, or buildings, on account of failure to pay money contributions, is forbidden" (z). Thus the old practice of exacting ransom from coast towns is prohibited. "In bombardment by naval forces all necessary measures must be taken by the commander to spare as far as possible buildings dedicated to public worship, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, provided that they are not used at the time for military purposes. It is the duty of the inhabitants to indicate such monuments, buildings, or places by visible signs, which shall consist of large stiff rectangular panels divided diagonally into two painted triangular portions, the upper portion black, the lower portion white" (a). "Unless military exigencies render it impossible, the officer in command of an attacking naval force must, before commencing the bombardment, do all in his power to warn the authorities" (b). "It is forbidden to give over to pillage a town or place even where taken by assault" (c). In the Great War of 1914 the use of aircraft bombs was remarkably extensive and systematic. Much unnecessary havoc was thereby wrought, and many non-combatant innocent persons were killed by bombs hurled from German aircraft. Unfortunately, there are few positive and specific rules on the subject of aerial hostilities. In 1899, at the first Hague Conference, the following Declaration was signed: "The contracting Powers agree to prohibit for a term of five years the discharge of projectiles and explosives from balloons or by other new methods of a similar nature." It has already been pointed out (d) that at the second Hague Conference, 1907, many States agreed to forbid for a period extending to the close of the third Conference the discharge of projectiles and explosives from aircraft, and that as several leading Powers refused to sign this provision it cannot be considered to possess binding force. In order, therefore, to arrive at some regulative principles, it is (2) Art. 4. (c) Art. 7. |