prehend, try and punish," and that reprisals may properly fall on wholly innocent persons.46

47

Doubtless, members of the insurgent forces were engaged in criminal acts contrary to the law of war, such as brigandage, prowling or marauding.1 In case it was impossible to apprehend and punish the guilty individuals, reprisals would be justified under the restriction stated. It does not appear, however, that the bombardment was preceded by any formal demand for discontinuance of such practices, and it certainly was far out of proportion to such offenses.

Apart from reprisals, collective penalties are recognized for certain offenses by the law of war. Hostilities by the inhabitants of an occupied city have frequently been the occasion for such penalties, and it was on this ground that the Germans sought to justify the burning of Louvain in 1914. The Hague convention, which in this respect seems to reflect customary law, says, "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which they can not be regarded as jointly and severally responsible." The American rules add to this: "Collective punishments may be inflicted for such offenses as the community has committed or permitted to be committed. Such offenses are not necessarily limited to violations of the laws of war. Any breach of the occupant's proclamations or martial law regulations may be punished collectively. For instance, a town or village may be held collectively responsible for damage done the railways, telegraphs, roads, and bridges in the vicinity. The most frequent form of collective punishment consists in fines."48

cus.

There were undoubtedly acts of an illegal character committed in DamasSome were probably participated in and more supported by townsmen. A case for collective penalty might be made out, but the penalty applied, bombardment followed by a money and rifle fine, seems grossly out of proportion to the offense. Thus Garner says of the burning of Louvain, which was a somewhat parallel case:49

The burning of certain quarters of a city in which acts of hostility have taken place could be justified in an extreme case, if no other form of retribution were adequate. But even this doubtful procedure should never be resorted to by a military occupant unless he is absolutely certain of being able to control the spread of the conflagration thus started and prevent the destruction of sacred edifices, historic monuments, libraries, art galleries, and the like, the sanctity of which is established not only by the customary law of nations but by international convention. To apply the torch indiscriminately to a whole city filled, as Louvain was, with rare artistic and historic treasures was an act of vandalism for which there can be no valid defense.

45 U. S. Rules, Arts. 382, 386.

47 U. S. Rules, Arts. 371-374, citing Curry v. Collins, 37 Mo. 324, 328.

48 Hague Reg. 1907, Art. 53; U. S. Rules, Arts. 353, 354, 386.

"Garner, op. cit., Vol. 1, p. 441. See also Westlake's observation, supra, note 18.

Damascus was the center of Arab civilization, and the bombardment destroyed many of the choicest examples of art and domestic architecture. French forces in Syria, it is believed, violated international law in bombarding Damascus. This being the case, there can be no doubt but that France was responsible. In principle, a state is always responsible for tortious acts committed within the scope of discretion by military officers,50 and the IV Hague Convention of 1907 recognizes this principle by declaring, "A belligerent party which violates the provisions of the said regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for the acts committed by persons forming part of its armed forces." 51

53

Assuming that France is responsible, what remedies exist? Had the insurrection been successful and established a wholly independent state, or gained a new mandatory, doubtless the new régime 52 could have presented to France a diplomatic claim for compensation of injured persons and for punishment of officers responsible for the illegal act, if the matter were not settled in the treaty of peace. But, in the absence of such success, precedents indicate that third states have the right to protest or even to intervene in order to prevent further violations of the law of war against the insurgents, though usually there have been political reasons for such interventions in addition. Thus, in 1835 Great Britain protested against the atrocities committed by the Carlists in Spain. In 1849, Great Britain and France intervened to procure an armistice after the bombardment of Messina and Palermo during the Sicilian revolt against Naples. In 1875 the harsh methods of Turkey in suppressing the Bulgarian insurrection resulted in the Berlin memorandum of Russia, Austria, Germany, Italy and France, to which, however, Great Britain refused assent. Further barbarities in so Borchard, op. cit., pp. 187-188; Oppenheim, op. cit., Vol. 1, pp. 255-258. "Foreigners have a right to compensation when they are injured as to their persons or as to their property in the course of a riot, of an insurrection or of a civil war: . . . (c) when the injury is the result of an act contrary to the laws, committed by a government official, or (d) when the obligation to compensate is established by virtue of the general principles of the law of war." Rules of Institute of International Law, 1900, Annuaire, Vol. 18, p. 254; Oppenheim, op. cit., Vol. 1, p. 262.

51 IV Hague Convention, 1907, Art. 3; U. S. Rules, Art. 363.

52 With the well-recognized principle of retroactivity of recognition, the new status would date from the beginning of the insurrection, and the new régime would enjoy whatever rights a belligerent state would have had from that time. Oetjen v. Central Leather Co., 246 U. S. 297, 1918; Luther v. Sagor, Ct. of Appeal, 1921, 37 Times L. R., 777.

53 The Treaty of Versailles imposed such requirements on the defeated party (Arts. 228, 232), and the report of the peace conference committee on responsibility considered these provisions declaratory of existing law. Senate Foreign Relations Committee, Hearings, 66th Cong., 1st Sess., Sen. Doc. 106, pp. 325–334. The United States Treaty of Peace with Germany imposed pecuniary responsibility on Germany for American civilian losses, and these have been adjudicated by an arbitral commission. Borchard, this JOURNAL, Vol. 19, p. 133, Vol. 20, p. 69. See also, IV Hague Convention, 1907, Art. 3, and Wright, Minn. L. R., Vol. 5, pp. 536–539.

55

suppressing the Serbian and Montenegrin insurrections in 1876 led to Russian intervention. In 1898 the United States intervened to stop Spanish barbarities against the Cuban insurgents.54 Though intervention to prevent flagrant violations of international law seems to be justifiable, the question of compensating the Syrians who suffered losses would seem to be a domestic question for France and the de jure Syrian Government in case the insurrection is suppressed.

Third states, however, clearly have a right to demand compensation for any of their nationals who may have been injured,56 though, according to the American contention on the occasion of French claims arising from the Greytown bombardment of 1852, these claims would be against the territorial sovereign under whose protection the person or property is placed. In illustration were cited the bombardments of Copenhagen in 1807, of Antwerp in 1830, and of Canton in 1856. In the Greytown case the bombardment was claimed to be legal. The same was asserted of the bombardment of Valparaiso by Spain in 1866, but the Secretary of State and Attorney General of the United States were of the opinion that had it been illegal third states would have had good claims.57 In the present case the bombardment seems to have been illegal, and France, as mandatory and responsible for keeping order, would seem liable.

Are special remedies available through the League of Nations? The clauses of the League Covenant (Arts. 10–19) designed to settle disputes and prevent war are all subject to two important limitations. In the first place the League can consider the matter only on the initiative of a League member.58 This has limited its ability to act in case of insurrection or civil

54 These cases are discussed by Stowell, op. cit., pp. 120, 125–136.

55" The existence of a right to oppose acts contrary to law, and to use force for the purpose when infractions are sufficiently serious, is a necessary condition of the existence of an efficient international law. Hall, op. cit., p. 342. See also, Grotius, De Jure Belli ac Pacis, book II, c. i. sec. 2, par. 2; c. 20, sec. 40, pars. 1, 4; c. 25, sec. 6 and Prolegomena, sec. 18; Vattel, Droit des Gens, prelim. sec. 22; Westlake, op. cit., Vol. 1, p. 318; Stowell, op. cit., p. 455; Wright, this JOURNAL, Vol. 19, p. 92; supra, note 25.

66 Supra, note 50.

57 Moore, International Law Digest, Vol. 6, p. 928 et seq., 940 et seq. Several cases before the British-American Claims Commission in 1924 were decided on the basis that compensation would be due neutral states for losses from belligerent action contrary to the law of See this JOURNAL, Vol. 18, p. 835.

war.

58 This is specific in Arts. 11 and 15. Article 17 reads: "In the event of a dispute between a member of the League and a state which is not a member of the League, or between states not members of the League, the state or states not members of the League shall be invited to accept the obligations of membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just." Though it is not expressly stated that the invitation must be first suggested by a League member, this seems to be implied. The effort of Egypt to get her controversy with Great Britain after the Sirdar's murder in 1924 before the League failed because no League member suggested an invitation under this article. The Secretary-General looks upon his duties as limited to executing requests of League members or resolutions of League organs. He would not invite an outside state to

war, because the rebellious community in the cases which have arisen has not been a League member,59 and the state revolted against, because it has considered its amour propre affected or for other reason, has not appealed to the League.60 Similar considerations have heretofore caused third states to refrain from bringing the matter up, and will probably continue to do so, except in circumstances which in the past have induced third states to interpose in insurrection or civil war.61 In the case of Syria, neither France nor any other League member raised the question, consequently the League could not proceed under any of these articles as it did in the Greco-Bulgarian

case.

Even if a League member presents the matter, the League can not consider it unless it affects international relations.62 This does not mean that all insurrections and civil wars, though normally domestic questions, are excluded. The Japanese amendment to the Geneva protocol and the discussion over it clearly indicate a general opinion that the League is competent to consider under Article 11 of the Covenant some situations which arise from domestic matters.63 It seems clear that if domestic hostilities have

submit a case to the Council or Assembly on his own initiative. In any case, Article 17 refers only to outside "states," so it could not apply to insurgent bodies.

59 It might be, as the British Dominions are members, and by Article 1 of the Covenant other self-governing dominions or colonies may be voted in.

60 There have been a number of insurrections in territory under control of League members since the League began, as in Ireland, Morocco, Southwest Africa, China, and several Latin American states.

61 Supra, note 54.

62 The general competence of the Council and Assembly is described as matters within the sphere of action of the League or affecting the peace of the world" (Arts. 3, 4). Apart from articles relating to special matters, such as armaments (Art. 8), mandates (Art. 22), and international coöperation (Arts. 23, 24), this "sphere of action" seems to be as follows: The Council can advise on sanctions in case of "external aggression," "threat or danger of such aggression" against a League member (Art. 10), or violation of League Covenants (Art. 16), and it can propose steps to give effect to arbitral awards or judicial decisions between League members (Art. 13). The "whole League" is declared concerned with "any war or threat of war whether immediately affecting any of the members of the League or not," and may take action "to safeguard the peace of nations" (Art. 11, par. 1). The assembly may consider "any circumstance whatever, affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends" (Art. 11, par. 2), and may "advise the reconsideration by members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world" (Art. 19). The Council or Assembly may request advisory opinions of the court (Art. 14), and may consider disputes between members (Art. 15), between members and outside states or between outside states (Art. 17) unless they are found "to arise out of matters which by international law are solely within the domestic jurisdiction of a party" (Art. 15). Thus, every phrase seems to be carefully qualified to exclude political matters not affecting international relations (Infra, note 64).

63 "If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the state, this decision shall not prevent consideration of the situa

reached a stage justifying their recognition as civil war, international relations are affected, and in fact Article 11 expressly gives the League competence to consider any war which presumably would include civil war.64 However, even when not recognized as civil war, insurrection may affect international relations, and if it does, League action under the second paragraph of Article 11 would seem possible. In the present case, Hedjaz, Nejd and the British mandated territories of Palestine and Iraq, may have been dangerously affected by the propaganda, if not by the military action of the Syrian insurgents. Furthermore, breaches of international law are recognized as affecting the interest of all states.65 As has been noted, international law requires respect for the law of war in dealing with insurgents, and in practice third states have occasionally intervened to prevent violations of this rule. Thus there were apparently grounds under Article 11 upon which any member of the League might have seised the League of the Syrian situation after the Damascus bombardment.

66

In fact none did so, and it must be confessed that League action in insurrection or civil war would practically be much more difficult than in international war, because there is no permanent responsible body on one side of the controversy and by the nature of things there can not be. The right of the insurgents or belligerents to exist is denied by the de jure authority. Consequently the procedure of compulsory suspension of hostilities, supported by guarantees from each side while inquiry and mediation pends, so successfully employed in the Greco-Bulgarian affair, is inapplicable. The insurgents whose existence depends on their military success, clearly can give no effective guarantees even if they are organized under a responsible authority, which is often not the case. League action to be immediately effective in stopping hostilities would either have to assist the de jure authority to destroy the insurrection, which would render it liable to the criticisms levelled at the alliances of 1815, or else accept guarantees of peace from both which would amount to treating them as equals, thus prejudicing the case in favor of the insurgents before investigation. Thus, even if the

tion by the Council or by the Assembly under Article 11 of the Covenant." (Geneva Protocol, Art. 5, par. 3.)

64 The term "threat of war" occurs in Art. 11, but insurrection can hardly be considered a threat of civil war because the insurgents do not have power within themselves to convert insurrection into civil war. Achievement of belligerency depends upon recognition of that status by the parent state or third states. (Supra, note 32.) Furthermore, an interpretation which considered insurrection as a threat of civil war would logically have to consider all resistance to domestic law in the same light. This would extend the League's competence to practically all domestic administration and police, which clearly was not intended by the Covenant. The same consideration suggests that the phrases "peace of the world" (Arts. 3, 4) and "peace of nations" (Art. 11) do not include domestic peace.

65 Supra, note 55.

66 For procedure in Greco-Bulgarian affair, see League of Nations, Monthly Summary, Vol. 5, pp. 256–262, Oct. 1925.