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Proposed Rules for the Regulation of Aerial Warfare

Published online by Cambridge University Press:  04 May 2017

James W. Garner
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Extract

When the World War, in which aircraft was employed for the first time on an extensive scale as an instrument of combat, broke out, there were few conventional rules and naturally little or no customary law in existence governing the conduct of hostilities in the air. There was, to be sure, the declaration prohibiting for a period of five years the launching of projectiles and explosives from balloons or by other new methods of a similar nature, signed at The Hague in 1899 and renewed in 1907 for a period extending to the close of the third peace conference. Since the third conference has never been convoked, the declaration may be regarded as still binding onthe states which have ratified it, in a war in which both or all the belligerents are contracting parties. But it is significant that only about half the states represented at the second conference signed the declaration, and among those which did not were Germany, France, Russia, Spain and Italy. It thus happens that the principal military states of Europe are not parties to it and its value therefore is slight. In consequence of the so-called “solidarity” clause it was not binding upon any of the belligerents during the World War, not even upon those which had ratified it.

Type
Research Article
Information
American Journal of International Law , Volume 18 , Issue 1 , January 1924 , pp. 56 - 81
Copyright
Copyright © American Society of International Law 1924

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References

1 Compare Fauchille, , “Le Bombardement A©rien,”Revue de Droit International Public, t. XXIV, p.66 Google Scholar; Rolland, , “Les Pratiques de la Guerre ASrienne,” etc.,ibid., t. XXIII, p. 505; and Merignhac, “Le Domaine Airien, etc.,ibid., t. XXI, p. 226.Google Scholar

2 Actes ei Documents de la deuxibme Conference, t. Il l, pp. 15-15.

3 Neither Bulgaria, Italy, Montenegro, Serbia, nor Turkey, all of which were belligerents during the World War, had ratified it. Nevertheless, it may be argued and has been argued,that the article does not embody a new rule of international law but is merely declaratory of an existing customary rule and as such was binding on all the belligerents regardless of the status of the convention of which it is a part. Compare to this effect Fauchille, ,“Les attentats AUemands contre les personnes et les biens en Belgique et en France,”Rev. Gin. de Droit Int. Pub., t. XXII, pp. 403-409 Google Scholar; Pillet, ,ibid., t. XXIII, p. 21 Google Scholar;Rolland, article cited, p.509; and Garner, ,International Law and the World War, Vol. 1, pp. 20-20 Google Scholar. German jurists themselves admitted during the World War that the stipulations of unratified conventions are binding when they are merely declaratory of the existing customary law. See to this effect Zitelmann in Modem Germany (p.604), being an English translation of a German work entitled Deutschland und der Welt-Krieg; Strupp in the Zeitschrift fur Vdlkerrecht, Vol.IX, pp.IX ff.; Von Liszt, in the Frankfurter Zeitung for Oct. 29,1916, and de Visscher, Belgium's Case, p.66. There is room for doubt, however, whether Article 25 was merely declaratory of an existing customary rule of international law.

4 See the table of ratifications in Scott, The Hague Conventions and Declarations of 1899 and 1907, pp. 236-236.

5 Compare Pillet, , “La Guerre Actuelle et le Droit des Gens”,Rev. Gin. de Droit Int. Pub. t. XXIII, p. 27.Google Scholar

6 The ratifying Powers are: Belgium, Bolivia, France, Great Britain, Greece, Italy, Japan, Portugal, Jugo-Slavia and Siam, The only adhering Power is Persia.

7 Article 38 of the convention, as modified by protocols signed in May, 1920: "In case of war, the provisions of the present convention do not affect the freedom of action of the contracting parties either as belligerents or neutrals.”

8 Compare the remarks of Henry-Coüannier, M. in theCompte rendu du IVdme Congrès de Législation Aérienne(1921), p. 29 Google Scholar. Henry-Coüannier, M. proposed that Article 38 be modified to read that in case of war the stipulation of the convention should not affect the freedom of action of the contracting parties when such action was “exercised according to the law of nations” (ibid., p. 41)Google Scholar. But the congress did not approve the proposal.

9 Compare the remarks of de Lapradelle, M. (who took part in the drafting of the convention of 1919),ibid., p. 44.Google Scholar

10 There was some objection on the ground of expediency to the proposed discussion of the subject, but it was pointed out that conventions for the regulation of land and naval warfare had already been concluded and that there was no reason why aerial warfare should not be similarly regulated. In fact, considering the probable rflle and character of aerial operations during the next war, there was even more reason why it should be regulated by an international convention. See the remarks of Hobza,, M. ibid., p. 221.Google Scholar

11 Ibid., pp. 221-221.

12 See the report of the American Delegation to the President of the United States, in which it was stated that such limitation was considered impracticable. Text of the report in this Journal , Vol. 16, p .190.

13 Text of the treaty in Supplement to this Journal , Vol. 16, p. 57.

14 Professor Slosson remarks, apropos of the rôle which chemistry and aeronautics are likely to play in the wars of the future, that a single airship with two men will be able to fly over a warship at great height and besprinkle its decks with a liquid so corrosive that three drops touching the skin of a man will be sufficient to kill him, and so persistent, that a small quantity lodging in its crevices will render the ship uninhabitable for days. Exhibit under the Auspices of the National Research Council, prepared by the Chemical Warfare Service, Washington, 1921. It was stated in the New York Times of March 3,1921, that the Chemical Warfare Service of the United States had already discovered a toxic liquid so strong that three drops of it coming in contact with the skin of a man would cause his instant death and that “ falling like rain from nozzles attached to airships the liquid would kill everybody in its path.” Compare also the following from an article by Professor A. M. Low in the Nineteenth Century for Sept. 1923 (p.356): “ Various forms of poison gas more terrible than any at present, will be used and the question of protection will become a highly scientific one. Another weapon—incidentally my own invention—will be jets of water highly charged with electricity. . . . Aeroplanes will be equipped with electric impulse guns firing an enormous number of bullets a second, and no clumsy trailing aerials will be necessary to pick up wireless instructions.”

15 Texts of both resolutions in Supplement to this Journal, Vol.16, pp. 74-74.

16 Article 3 of the Land War Neutrality Convention of 1907 forbids the erection of radio stations by belligerents in neutral territory, and Article 5 obliges neutral Powers not to allow such erection. See also Articles 8 and 9 of the same convention; Article 8 of the Convention of 1907for the Adaptation of the Geneva Convention to Maritime Warfare, relative to radio installations on hospital ships, and Article 5 of the Convention of 1907 Concerning the Rights and Duties of Neutral Powers in Naval Warfare, which forbids belligerents from erecting wireless telegraph stations in neutral ports and waters for the purpose of communicating with the belligerent forces on land or sea, and Article 25 which obliges neutrals to prevent such acts. See also Articles 45-and 46 of the unratified Declaration of London, relative to the condemnation of neutral vessels for transmitting intelligence to the enemy. The International Radio Telegraph Convention of 1912 deals mainly with radiotelegraphy in time of peace, although it contains several articles bearing upon the question of radio control in time of war. See especially Articles 8, 9 and 17.

17 As to this, see myInternational Law and the World War, Vol. 1, p.198.

18 As to these incidents and the sources of information, see myInternational Law and the World War, Vol. 1, p.495.

19 As to these raids see myInternational Law and the World War, Vol.I, pp. I , et seq.; Rolland, , “Les Pratiques de la Guerre Aérienne dans le Conflit de 1914 k Droit des Gem,”Rev. Gin. de Droit Int. Public, t. XXIII, pp. 537 Google Scholar et seq.; Oppenheim, ,International Law,3d ed., Vol.II, p. 301;Google Scholar Lémonon, etMerignhac, ,Le Droit des Gem et la Guerre de 1914-1918, Vol. I, pp. I et seq.Google Scholar, and Clunet, , “De I’Emploi ahudf des Aérostats de Guerre par les Allemands,” in hisJournal de Droit International,1916, pp. 385 et seq.Google Scholar Chronological lists of air raids made by the different belligerents during the World War may be found in theText Book of Naval Aeronautics(New York, 1917), and in theText Book of Military Aeronautic(New York, 1918).Aeronautic(New York, 1918).

20 The London Times of June 2, 1916, thus summarized the results of 44 air raids over England: Killed, 409; injured, 1005. Of the victims killed, 114 were women, and 73 were children. In March, 1918, the British Government made public a statement in which it was asserted that the number of English non-combatants who had lost their lives in consequence of German air raids over England down to February 13,1918, was 1284 and the number of injured 3105. New YorkTimes, March 14, 1918.

21 See, for example, an editorial so declaring, in the Essener Volkszeitung of March 15, 1918, reproduced in Clunet's Jourrial de Droit IntemaMonal, t. 45, p. 622.

22 See the opinions of Von Bar, Albéic Rolin, Holland, Fiore, Labra, Strisower and Westlake in the Annuaire de VInstitut, t. XXIV (1911), pp. 134-155 and pp. 303-303. Compare also the opinion of Beernaert, M.in theRevue de Droit International et de Legislation Comparie, t. XLIV (1912), pp. 569 et seq.Google Scholar, and Holstein, Stael,La R©glementation de la Guerre des Airs, p. 59.Google Scholar

23 Compare Fauchille, , “Le Bombardemeni Aérien,”Rev. Gin de Droit Int. Pub., t. XXIV, p. 67 Google Scholar, and Spaight, ,Air Craft in War, p. 3.Google Scholar

24 Annuaire de l’Institvi, t. XXIV (1911), p. 336. As to the impracticability and doubtful value of this proposed distinction, see the remarks of Fauchille, M., article cited, p. 67 Google Scholar, and Sperl, in the Rev. G©n. de Droit Int. Pub., t. XVIII, p.480.

25 Compare to this effect the remarks of Rear Admiral S. S. Hall, of the British Navy, in an address before the Grotius Society, Transactions, Vol. V, p. 83, and of ProfessorLow, A. M., inthe Nineteenth Century, Sept. 1923, p. 356.Google Scholar

26 For example, Merignhac, Traité de Droit International, 1.1, pp. 309 et seq. See also his article, “Le Domaine Aérien,” Rev. Gén. de Droit Int. Pub., t. XXI, pp. 228 et seq.; and Rolland, , “Les Pratiques de la Guerre Aérien dans le Conflit de 1914,” ibid., t. XXIII, p. 511.Google Scholar

27 Compare Spaight, , Air Craft in War, pp. 99 et seq.;Google Scholar Hobza, ,Compte rendu de la Vème Congrès du Comité juridique international de l’viation, p. 223;Google Scholar Fauchille, ,Droit International Public (8th ed.) no. 1440;Google Scholar and Pillet, ,Annmire de l’nstitut de Droit International, 1911,p. 306.Google Scholar

28 Article 22. Air bombardment for the purpose of terrorization is condemned by nearly all writers on the laws of war. Compare to this effect the observations of Manisty, Herbert,Transactions of the Grotius Society, Vol.VII, p. 33 Google Scholar: “ In my opinion the principal object of a convention or rules, whatever they may be, for the regulation of aerial war, should be to prevent and render illegal bombardment by aircraft of cities or places inhabited by civilians, when this bombardment has as its sole object the terrorization of the civil population, and by this means, the weakening of the morale of the entire community.”

29 “Les Pratiques de la Guerre Aérienne,” loc. cit., p.564.

30 Merignhac and Lénonon (op. cit., Vol.I, pp. I-7) approve the distinction between the rights of munitions workers when they are actively engaged in the manufacture of munitions and when they are in their homes, since in the latter case “ they are in no way different from the ordinary population.” It may be doubted, however, whether the distinction is sound.

31 See his article, “Le Bombardement Adrien,” loc. cit., p. 70.

32 Compare to this effect Manisty, “ Aerial Warfare and the Law of War,” Grotius Society Transactions, Vol. VII, p. 34.

33 Compare Hyde, , op. cit., Vol.II, p. 322 Google Scholar, and Wilson, ,Suggested code of aerial warfare, Naval War College, April 6, 1920, Art. 28.Google Scholar

34 Fauchille, ,Le Bombardement Airien, loc. cit., p. 69.Google Scholar

35 Compare Hazletine, Law of the Air, p. 469.

36 “La Guerre Actudle et le Droit des Gem”, Rev. Gén. de Droit Int. Pvh., t. XXIII, p. 429.

37 Revue Internationale de la Croix Rouge, 1920, p. 1348.

38 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.Google Scholar

40 As to these reprisal raids, see my International Law and the World War, Vol. I, pp. I et seq.

41 Article cited, p. 553.

42 Compare the observations of Spaight, , Air Craft in War, p.6 Google Scholar, and Hyde, ,op. cit., Vol. II,p. 322.Google Scholar

43 Compare Rolland, article cited, p. 553, and Spaight, article cited, p. 25.

44 Treaty of Washington of February 6, 1922, Art. 3.

45 Compare, however, Ellis, , “Aerial-Land and Aerial-Maritime Warfare” , this Journal, Vol.VIII, p.267 Google Scholar, 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 (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.

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. II and 323; and Ellis, article cited, p. 267.

48 Compare Spaight, ,Air Craft in War, p. 22.Google Scholar

49 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.

51 Animaire de l’Institut, t. XXIV, pp.60 et seq. M. Hooghes proposed code was based on the same principle (Art. I). Other writers who adopted this view were Catellani, Le Droit Aérien, p. 188; Meyer, Die Luftschiffahrt, pp. 18-20, also his article in the Revue Juridique Internationale de la Locomotion Airienne, 1912, p. 192, and Philit, La Guerre ASrienne, pp. 38-38. Ellis (article cited, p. 266), appears to have adopted the same view. He adds that neutral governments ought to announce by proclamation at the outbreak of war their intention, and in case they fail to do so, belligerents would be justified in interpreting their silence as sanctioning the right of passage.

52 Among those who maintained this view were: Bellenger, ,La Guerre Aérienne, pp.104 et seq.Google Scholar; Grovalet, ,La Navigation Aérienne devant le Droit International, p.77 Google Scholar; Hazletine, ,Law of the Air, p. 139;Google Scholar Lycklama à Nijeholt, Air Sovereignty, p. 67; Le Moyne, Le Droit Futur de la Guerre Aérienne, p. 226; Merignhac, TraiU de Droit International, t. I, p. 544;Rolland, article cited, p. 548; Spaight, Air Crajt in War, p.66; Kaufmann, Annuaire de l’Institvt, t. XXIV, p. 139, and the project of the code of maritime neutrality of the American Institute of International Law (Art. 20).

53 Compare Rolland, article cited, p. 579, and Spaight, op. cit., p. 66.

54 A résumé of these prohibitions and the protests of neutral governments against the violations thereof may be found in Spaight, Air Craft in Peace and the Law, app. III , pp. 203 et seq. See also my International Law and the World War, Vol. I, pp. I et seq.

55 The German Government, however, protested against the action of the Dutch authorities in firing upon their dirigible, L. 19, which, it alleged, was in the act of landing in consequence of force majeure, but the action of the Dutch was defended by Rolland (article cited, p. 581), and Spaight (op. cit., p. 9).

56 Compare Rolland, article cited, p. 577.

57 The International Air Convention of 1919 (Art. 3) had already affirmed the right of states, for military reasons or in the interest of the public safety, to prohibit the aircraft of other states from flying over certain areas of their territory. This qualified right of prohibition becomes absolute in time of war, in consequence of Article 38, which declares that in case of war the provisions of the said convention do not affect the freedom of action of the contracting parties, either as belligerents or as neutrals.

58 There is no doubt that an airship which passes through the air space above a neutral state would be “entering its jurisdiction.” This was settled by Article 1 of the International Air Convention of 1919 which recognizes that every state has “complete and exclusive sovereignty in the airspace above its territory and territorial waters” . The “jurisdiction” of a state necessarily extends everywhere it has an admitted right of sovereignty.

59 Among those who proposed this solution were Fauchille, M. Annuaire de l’nstitvi, t. XXIV, p. 33, and his TraiU, no. 147617;Google Scholar M. Bellenger, op. cit., p. 110; M. Guibé, Essai sur la Navigation Aérienne, p. 290, and M. Philit, op. cit., p. 46.

60 This rule was advocated by MM. Merignhac, TraiU, t. I, p. 584; Catellani, op. cit., p. 188; Grovalet, op. cit., p. 78; Le Moyne, op. cit., p. 227; Spaight, ,Air Craft in War, pp.69and118;Google ScholarRolland, article cited, p. 585; Ellis, article cited, p. 266, and apparently Hazletine, op. cit., p. 140.

61 Fauchille recognized the justice of such a distinction. See his Traié de Droit Int. Pub., Guerre et Neutrality (1921), p. 767.

62 As to that practice see Holland, article cited, pp. 582, 584; Fauchille, op. cit., pp. 768769; my work cited, Vol. I, pp. I et seq., and Spaight, Air Craft in Peace and the Law, pp. 209 et seq. (where one will find a list of belligerent airships which were interned in Denmark, Norway, Roumama, the Netherlands and Switzerland).

63 Article 43. Apparently if they are rescued and brought in by non-military aircraft they are not liable to internment. The Dutch authorities during the World War made this distinction, that is, they interned ship-wrecked aviators who were rescued and brought in by warships but released those who were brought in by merchant vessels. Netherlands Orange Book, Sept. 1916, pp. 144-146, and Fauchille, op. cit., p. 769.

64 See the Journal of the Society of Comparative Legislation and International Law, No. XL (April 1918), p. 153.

65 As to these incidents, see Fauchille, op. cit., pp. 769-769.

66 For example, Fauchille, Annuaire de VInstitut, t. XXIV, pp. 92, 94 and 118; also his Traits, p. 774; Rolland, Meurer, and Alb6ric Rolin, ibid., pp. 92, 138 and 148; Le Moyne, op. cit., p. 29; Philit, op. cit., p. 48 and Spaight, Air Craft in War, p. 70.

67 Among the advocates of this solution were Von Bar, Kaufmann and Renault (Annuaire de VInstitut, t. XXIV, pp. 134, 139, 146); Bellenger (op. dt., p. 491); Merignhac, (op. cit., p. 546); and Rolland (article cited, p. 491).

68 See especially Articles 3 and 38.

69 Article 12. Compare also Article 30.

70 For example, it lays down rules governing the visit, search and capture of aircraft, requiring captured aircraft to proceed to a convenient and accessible place for examination, requiring captors to make suitable provision for the safety of persons on board before destroying aircraft, the delivery of contraband found on board neutral aircraft, etc. It is difficult to see how some of these operations can be carried out and, therefore, the necessity of rules governing their procedure.

71 This Journal, Vol. 16, p. 189.