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freedom of the sea routes, the common highway of all nations," and it alone will "ensure to peaceful navigation the security to which it is entitled, despite the existence of war"—an object declared in the preamble of the Hague convention to be the principle by which the Conference was inspired.
AERIAL BOMBARDMENT OF UNDEFENDED TOWNS
Balloons have been employed for more than a century for purposes of observation, signalling, transmission of dispatches and as a means of escape from besieged places.66 During the siege of Venice in 1849, two hundred small balloons charged with explosives were directed against the city, though without success. As is well known, they played an important part in the siege of Paris in 1870, and were employed by the Japanese in the battle of Liao-Yang in 1904.67 Aeroplanes, as contradistinguished from balloons, were employed in the recent TurcoItalian and Balkan Wars, though mainly for purposes of observation and signalling, transportation of dispatches and the location of mines.88 In the present war they are being used for the first time on an extensive scale for the purpose of dropping bombs on towns and cities of the enemy, and with so much effectiveness that Tennyson's vision seems almost on the point of realization when he
Heard the heavens fill with shouting and there rained a ghastly dew From the nations' airy navies grappling in the central blue.
"Bonfils, Droit International Public, p. 858.
"Smith and Sibley, International Law as Interpreted in the Russo-Japanese War, p. 97.
"On the law of aerial warfare see Spaight, Air Craft in War; Banet-Rivet, L'Aeronautique; Higgins, The Peace Conferences at The Hague, pp. 488-491; Bonfils, pp. 859863; Merignhac, Lois et Coutumes de la Guerre sur Tare, pp. 193-209; Hershey, Essentials, pp. 390, 396, 448-451; Westlake, War, p. 274; Hearne, Aerial Warfare; Holland, Laws of War on Land, pp. 41, 81, 123; Scott, The Hague Peace Conferences, Vol. I, pp. 654-694; Philit, La guerre aerienne; International Law Situations, 1905, pp. 135-138; ibid., 1912, pp. 56-92; Davis, "The Launching of Projectiles from Balloons," American Journal of International Law, Vol. II, p. 528; Annuaire of the Institute of International Law, Vol. 19, pp. 55-67, Vol. 21, pp. 76 et seq.; Baldwin, "Law of the Air Ship," American Journal of International Law, Vol. 4, pp. 95-108; Kuhn, "Beginnings of Aerial Law," ibid., pp. 109-133; Lee, "Sovereignty of the totf'Md., July, 1913, pp. 470-496.
Some idea of the possibilities of this new mode of warfare may be gained from the following statements from recent press dispatches. On August 25th a Zeppelin appeared over the city of Antwerp and dropped several bombs, one of which fell near the royal palace, another near the bourse, another near the national bank and another near St. Elizabeth's hospital, partly destroying it. A private house was also destroyed and eight persons killed. Early in September several aeroplanes appeared over Paris and dropped bombs at various places throughout the city, though the damage done was unimportant. On September 5th a "marauding Taube" sailed over Ghent and dropped two bombs upon the city, one of which partly destroyed a house but there was no loss of life. The French authorities protested to the American Ambassador against these acts and the French Minister of War was asked by the Ambassador to furnish him with proof that bombs had been launched upon the city of Paris by German aviators. This was done and the Ambassador "decided to cable his government a report of these acts, which are not only against humanity but are also an absolute violation of the Hague convention signed by Germany herself."
On September 27th several bombs were again dropped on Paris from a German aeroplane, one of which was apparently directed against the Eiffel Tower, which is- installed with wireless telegraph apparatus. The bomb exploded with great violence and smashed nearby windows but did no further damage, except to kill an old man and injure his child. Again on October 11a score or more of bombs were dropped in different parts of the city of Paris, killing three persons and injuring fourteen others. One of the bombs fell on the Cathedral of Notre Dame, but failed to explode; others were said to have been directed against the Gares du Nord and St. Lazare. On October 12th another "raid" was made on Paris by German aviators, but no one was killed and the damage to property was slight. Several bombs were dropped between two trains standing in the station, both of which were filled with passengers, and another fell on the roof of Notre Dame doing "considerable damage" to the building. On the 8th of October, St. Denis received a visit from German aviators, who dropped several bombs in the town, one of which was alleged to have been aimed at a train load of French reservists, but no damage was done. About the same time fifteen persons were reported to have been killed and twenty-one injured at Revigny by German aviators. In October several bombs were dropped on the town of St. Omer killing two persons, injuring six others and doing considerable damage to property. On November 20 five bombs were dropped in the city of Amiens killing one person and injuring another. Several Belgian cities were also bombarded by air craft in September and October, Louvain and Namur being among the first. On September 27th at Dynze an old man was badly wounded by a bomb, and on October 25th some damage was done to buildings and telegraph wires at Ostend by a number of bombs dropped from a German Zeppelin. Antwerp was revisited in September and a Zeppelin dropped a number of bombs on the city, demolishing several houses and killing a number of civilians. At Warsaw forty-four persons were killed or wounded on the same day by bombs from German aeroplanes, and on another day sixtytwo casualties were reported as a result of bomb dropping operations. On November 24 another bomb was dropped in front of the American consulate at Warsaw breaking the windows in the building and killing several persons in the street.
Were these acts, as M. Millerand stated in his protest to the American Ambassador, "against humanity and absolutely in violation of the Hague convention?"
When the First Hague Conference assembled, craft capable of navigating the air and of carrying bombs had not yet been invented, but the progress of aeronautic science fully justified the expectation that in the near future balloons capable of discharging bombs and torpedoes would be invented. The attention of the Conference was therefore directed to the consideration of this mode of warfare, and the result was the adoption of a declaration forbidding for a period of five years the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.89 An Article (No. 25) was also added to the Convention Respecting the Laws and Customs of War on Land, forbidding the bombardment of undefended towns, villages, habitations and buildings, but it is not. certain that this prohibition had any reference to aerial bombardments.70 During the period intervening between the First and
"Scott, Texts, p. 19.
<* But the contrary view is expressed in International Law Situations, Naval War College, 1912, p. 59.
Second Hague Conferences progress in the art of aerial navigation was notable, and the question of aerial warfare received the careful attention of the Second Conference. It renewed the prohibition of 1899 in respect to the discharge of projectiles and explosives from balloons, the duration of the period being limited, however, to the close of the Third Peace Conference. But it is significant that many states which in 1899 approved the prohibition, declined to do so in 1907, thus indicating their unwillingness to surrender the advantages of a mode of warfare the possibilities of which had been fully demonstrated since the First Conference. In fact, only about one-half the states represented at the Second Hague Conference signed the declaration, and among those which refused were Germany, France, Russia, Spain, Italy, Japan, and Sweden.71 The declaration cannot therefore be regarded as a universally binding rule; certainly it is not binding upon Germany, the country now charged with violating the Hague provisions in respect to the discharge of explosives from airships. Nevertheless, while the Second Conference was unwilling to forbid entirely the discharge of bombs from air craft, there was a general agreement in favor of imposing restrictions upon this mode of warfare. Both the Italian and Russian delegations proposed, in the place of the temporary renewal of the prohibition of 1899, a declaration prohibiting the discharge from balloons of projectiles or explosives against undefended towns, villages, houses or dwellings. This proposal was not adopted as a substitute for the declaration prohibiting the launching of projectiles or explosives from balloons, but it found its way into the Convention Respecting the Laws and Customs of War on Land, Article 25 of which reads: "The attack or bombardment by any means whatever of towns, villages, habitations or buildings which are not defended is forbidden." This article is a renewal of Article 25 of the convention of 1899, with the addition of the words "by any means whatever," which clearly covers aerial bombardments, as it was undoubtedly intended to do.72 These words were added upon motion of the French
71 See on this point Spaight, War Rights on Land, p. 102; Higgins, The Hague Peace Conferences, pp. 488, 491, 521; Bonfils, Droit International Public, p. 860; Lemonon, La Seeonde Conference, p. 383; International Law Situations, 1912, p. 58.
n See La Seeonde Conference International de la Paix, Actes et Documents, t. III, p. 16; Lemonon, p. 386; Holland, in the London Times, April 27, 1914, and May 5, delegation in order to make clear the illegality of such a method of attack against undefended places 73 and, unlike the prohibition in regard to the dropping of projectiles or explosives from balloons or other air craft, it is of unlimited duration. Moreover, it has been signed by all the states represented at the Conference, except China, Spain, and Nicaragua.74 It is therefore binding upon all the belligerents in the present war, provided they have given the written notification of their ratifications required by article 5 of the convention. .
But Article 25 does not forbid the bombardment of defended places; that right remains unimpaired, though unfortunately the article contains no definition of the terms "defended" and "undefended." The authorities are all agreed, however, that the terms "undefended" and "unfortified" are not synonymous, and that a place may be unfortified and yet defended, in which case it may be bombarded. Nor are the terms "open" and "undefended" synonymous, for a town may be "open" and yet defended, in which case it is liable to bombardment.75 The Germans acted on this principle 76 in 1870, and when M. de Chaudordy protested to the diplomatic representatives of neutral Powers against the bombardment of "open" towns he was guilty either of ignorance of the law or of disingenuousness.77 The French themselves bombarded Kehl, an open town on the German side of the Rhine, and there have been many other cases in recent wars.
Discussion of the question was recently provoked in England by an address of Colonel Jackson, of the Royal Corps of Engineers, on April 22, 1914, in which he stated that in the wars of the future, air ships would drop bombs on coast batteries, dock yards, magazines, ammunition
"Higgins, The Hague Peace Conferences, p. 270. 74 Higgins, op. eit., p. 272.
"Compare Holland, Laws and Customs of War, p. 30; also his Letters on War and Neutrality, pp. 103-104; Bonfils, sec. 1082. On the injustice of this rule and its want of logic, see Spaight, p. 158; Pillet, p. 104; Bonfils, sec. 1081; and Hall, p. 396.
"For example, when they refused to treat Charleville as an "open" town because the French had constructed trenches and erected barricades around it, although it was not fortified. They have been severely criticised by Merignhac (Lea Lois de la Guerre Cont. etc. p. 25) for having bombarded Dijon, Bazeilles and other "open" towns, but it does not appear that these towns were also "undefended," which is an essentia] condition to immunity from bombardment. "Cf. Spaight, War Rights in Land Warfare, p. 158.