explanations were in order. The Viceroy informed the Secretary of State for the Colonies of the "facts" as follows: Kabur: Bombing was limited to the arsenal workshops and the Ark or citadel, which is used, not for residential purposes, but as a subterraneous magazine. The tomb of Abdur Rahman is in grounds outside the Ark, and it is possible that the area of burst of bombs might include it. Jalalabad: Our information shows that Amir Habibulla has been temporarily interred in a grave on the golf course; no bombs have been dropped on any grave that could be recognized from the air as such. The Palace was bombed; it was being used as military headquarters. Damage was undoubtedly done by bombing to the town about which troops were billeted. In answer to the protest of the Amir, the British commander said: "My airplanes must continue to reconnoiter in order to secure my troops. . . . If our airplanes are molested, they will retaliate." Then the Amir countered as follows: "The advent of your airplanes is certain to cause extraordinary excitement amongst our people, who will fire at them in spite of our strict orders not to. The airplane will then bomb them." And he went on to plead for a complete cessation of aerial activity as certain to lead to trouble and irregularities. But it is not indicated that the British were willing to forego the many advantages which an efficient air force gave them over their less civilized enemies. Possibly their Flying Corps personnel had got into bad habits during the successive "reprisals" on the Western Front. Possibly some of their higher commanders recalled that little sentence in official instructions to the effect that the rules of international law apply only to warfare between civilized states, and "do not apply in wars with uncivilized states and tribes, where their place is taken by the discretion of the commander and such rules of justice and humanity as recommend themselves in the particular circumstances of the case." 32 There is no need for jumping hastily at conclusions and saying that the next war will be an aërial war and a horrible war.33 We should recognize as international law only whatever is in real life practicable and applicable and useful and reasonable, when we take all the circumstances into consideration, else the man in uniform will declare to the publicists of the printed book that the regulations and restrictions may be in print, but do not correspond with facts and conditions. Writing during the progress of the World War, a Swiss 31 British Parliamentary Papers, East India, 1919, Vol. XXXVII, pp. 11–32. 32 Manual of Military Law (British), 1914, p. 235, par. 7. In 1815, James Monroe declared it perfectly proper for General Harrison to have burned Indian huts and cabins in 1813, saying: "This species of warfare has been pursued by every nation engaged in war with the Indians on the American continent." Niles Weekly Register, March 18, 1815, Vol. VIII, pp. 35-36. 33 See on this point, John Bassett Moore's review of Hyde's International Law in the Columbia Law Review, Vol. XVIII, p. 83, a constructive review that is an excellent guide to proper interpretation of the "lessons" of the World War, sadly too brief, and yet since supplemented by the same writer's book on International Law and Some Current Illusions. 34 author claimed that aërial bombing "is unable seriously to further the war aim" and "can only serve to terrorize," and expressed a hope that aërial warfare would finally vanish and "that modern war law would again confine aërial navigation and flying to the service of reconnoitering.' In August, 1922, the International Law Association, at its meeting at Buenos Ayres, declared that the radius of operations of military aircraft ought to be restricted,35 and thus attempted to take from armies all the advantage which an airplane gives of penetrating deep into hostile territory, and from a certain type of airplane its most distinctive features and the valuable functions which its wide cruising range permits. These were vain and fruitless efforts to send the science of war backward in its steps. Bombing will very likely go on, bombing from either airships or airplanes. This bombing will be actually or ostensibly directed at objects of military value, some less and some more remote from the firing lines of opposing armies. And when this bombing continues we may recall the curious yet perfectly obvious and understandable similarity between the sayings of two men. An American artilleryman, now a judge, who is author of one of the standard treatises on certain phases of military law, remarked: In the bombardment of places it is difficult to save any particular structure. Every siege gives evidence of this. To destroy a city with all it contains is indeed an extreme measure, not to be resorted to except for cogent reasons, yet it is perfectly justifiable when no other method suffices to reduce the place and this reduction becomes essential to the successful prosecution of the war.3 36 And more recently an American professor has said: On account of the very nature of aërial warfare, the solution bristles with difficulties, and no regulations agreed upon, even if they are scrupulously observed by the belligerents, are likely to be entirely effective in safeguarding the rights of non-combatants and private property in all cases.37 With this idea firmly in mind, that any rules will be rules, only partially effective toward the ends for which they were devised, it is possible to examine the latest attempt to formulate regulations. A commission of jurists sitting at The Hague prepared a draft convention to regulate the conduct of aircraft in war, which included the following articles: Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants, is prohibited. 34 Nippold, O., Development of International Law after the World War, tr. A. S. Hershey, P. 144. 35 The Times (London), August 30, 1922, p. 7e. 36 Birkhimer, W. E., Military Government and Martial Law, 1st ed., p. 196. " Garner, J. W., loc. cit., p. 66. Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes. . . . In cases where the objectives specified are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.38 It will be noted that, as has already been observed, the new rules permit bombardment practically without restriction in what military men call the "theatre of operations," and set up the criterion of the military objective in what military men call the "zone of the interior." It will further be noted that the draft articles do not say that the bombs must fall exclusively on military objectives, only that they must be directed exclusively at such. They do not say that the bombardment of the civilian population is prohibited, merely that the indiscriminate bombardment of civilians is prohibited. Nor do they define the difference between a combatant and a non-combatant in accordance with modern terms, under modern "selective service" and modern "industrial mobilization" for war. By paying some deference to the factories making "distinctively military supplies" they do get away from the old distinction which rests solely on whether a man wore khaki or “cit's” clothing. And yet they overlook the woolen factories which make the field uniforms and keep the soldiers warm through the winter and fit for the spring drives. They overlook the question of the national food supply as a military supply, as Great Britain claimed it to be, when she started exerting her very effective "economic pressure" on Germany. Furthermore, the old excuse of aiming at a military objective and hitting something else through sheer inaccuracy can still be advanced. The bombing will ostensibly be at military objectives. If the man-power of the nation is reduced, if the manufacturing efficiency of the nation is hurt, if the morale of the nation is lowered, so much the better; but of course the strategic statesman and the commander who orders his planes out will speak only of military objectives and will wave the document as his justification. His reports will speak only of them. The newspapers of his own country will mention them and them alone. Truly, as Professor Garner has remarked: 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. "Supplement to the JOURNAL, Vol. XVII, p. 250. See article on these regulations by Rear Admiral Wm. L. Rodgers, in the JOURNAL, Vol. XVII, pp. 629, 640, and chapter in Moore, J. B., International Law and Some Current Illusions. 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 civilian 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." We cannot put too much trust on rules. Not that these are so likely to be disregarded in the heat of action, but rather more that the rules are too frequently inapplicable to the changed situations which arise when "the next war" really comes.40 There were rules of warfare prior to 1914, and as Lord Cave has said, "no one conceived of the possibility of an infraction by civilized people of the rules laid down." Still, one nation employed a new naval weapon, the submarine, contrary to all existing laws regarding sea warfare. Another nation tried to starve the non-combatant population of its opponent into submission. A group of diplomats in Washington after the war declare that the use in war of toxic and asphyxiating gases has been condemned by the unanimous opinion of the civilized world, draw a treaty to banish gas from war, and the treaty has not yet been ratified by all the signatories! Indeed, as Lord Cave went on to remark, "Experience has shown how little reliance can be placed upon the sanction of public opinion." We are finally thrown, possibly more than we might wish, upon the ordinary decency of ordinary individual belligerents. As Mr. Spaight has said: "In air warfare more than in its elder brethren of the land and the sea, the heart and conscience of the combatants are the guarantee of fair fighting, not any rule formulated in a treaty or in a manual." 42 3 Garner, J. W., loc. cit., p. 74. 40 Variant opinions as to the utility of aircraft in future war may be found in "Aeroplanes in Future Warfare," by Capt. McA. Hogg, R.E., in Army Quarterly, October, 1924, Vol. XI, pp. 98-107; and series of articles in The Saturday Evening Post by Brig. Gen. Wm. Mitchell, Dec. 20, 1924, Jan. 10, 1925, Jan. 24, 1925, and March 14, 1925. "Transactions of the Grotius Society (1922), Vol. VIII, p. xxii. 2Spaight, J. M., loc. cit., p. 32. JUSTINIAN AND THE FREEDOM OF THE SEA BY PERCY THOMAS FENN, JR. Assistant Professor of Political Science, Washington University, The text of the jurist Marcianus, preserved in the Digest of Justinian,1 is the first formal pronouncement in recorded legal theory on the legal status of the sea and on the right of men to use the sea and its products. It is stated that the sea and its coasts are common to all men. Since Marcianus lived in the early years of the second century of the Christian era, it follows that this doctrine was known in a written form at least as early as the beginning of the second century. Since, further, Marcianus belonged to that class of jurists the official pronouncements of which were recognized as being statements of the law, it follows that the doctrine of the common right of all men to a free use of the sea was a law of the Roman Empire at the beginning of the second century, although this law was not put in a codified form until the sixth century. That the statement of this doctrine in the form of law did not mark a break with the theory of the past, insofar as any theory on the subject may be said to have existed, may be gathered by inference from a number of sources. There are historical evidences not only that fish was a food staple among the Mediterranean peoples from early times, but also that commerce in fish was carried on extensively between the various parts of the Mediterranean world. The Athenian and Roman states derived income from their fisheries.3 It does not necessarily follow, however, that because the exploitation of sea-fisheries was a profitable industry and form of commerce and that the Mediterranean states derived income therefrom, that the sea was held to be 1 See D.1.8.pr. and 1.8.1. 2 Strabo, Geography, transl. by H. C. Hamilton and W. Falconer, 3 vols., London, 1857, iii, p. 14. Or, Strabo, xiv, cap. I, sec. 26. See also iii, I, 6–9; iii, II, 6–8; ii, V, 33. A. Böckh, Die Staatshaltung der Athener, 2d ed., 4 vols., Berlin, 1851, dealing with the interval between the Persian War and the time of Alexander, while considering the food of the Athenians, says, i, p. 145: Eingesalzenes, besonders Fische, wurde aus dem Pontus, Phrygien, Agyptien, Sardinien und Cadix weit verführt, und war zu Athen in Menge verhanden, aber von verschiedener Güter. See references above. Also, Plutarch's Lives, Dryden's transl. revised by A. H. Clough, 5 vols., London, 1859; Poplicola, in i, p. 214; Livy, ii.9.30; Ulpian, in D.50.16.17.1. Böckh, op. cit., i, p. 414, states that part of the property of the Athenian state comprised Meeresgewasser, and, in note c, says, Die Attische Tempelbehörde von Delos verpachtet Meeresgewasser, sei es in Rücksicht des Salzgewinnes oder der Fischerei, and adds that both in Asia (citing Strabo, xiv, 642) and Byzantium the state owned salt (or sea) water. See also Charles Maynz, Cours de Droit Romain, 4th ed., 3 vols., Bruxelles, 1876, i, p. 145; and Dionysii Halicarnassensis, Operum volumen quintum, curavit Io. Iac. Reiske, Lipsiae, 1774-77, vol. v, De Lysia Iudicium, p. 522. |