placing of guns on merchantmen at the present day of sub- marine warfare can be explained only on the ground of a pur- pose to render merchantmen superior in force to submarines and to prevent warning and visit and search by them. Any armament, therefore, on a merchant vessel would seem to have the character of an offensive armament. If a submarine is required to stop and search a merchant vessel on the high seas, and, in case it is found she is of an enemy character and that conditions necessitate her destruction, to remove to a place of safety all persons on board, it would not seem just or reason- able that the submarine should be compelled, while complying with these requirements, to expose itself to almost certain destruction by the guns on board the merchant vessel. It, therefore, appeared to be a reasonable and reciprocally just arrangement if it could be agreed by the opposing belligerents that submarines should be caused to adhere strictly to the rules of international law in the matter of stopping and searching merchant vessels, determining their belligerent nationality, and removing the crews and passengers to places of safety before sinking the vessels as prizes of war; and that merchant vessels of belligerent nationality should be prohibited and prevented from carrying any armament whatever.
The American statesman added that the U.S. Government was impressed with the reasonableness of the argument that a merchant vessel carrying an armament of any sort, in view of the character of submarine warfare and the defensive weakness of undersea craft, should be held to be an auxiliary cruiser and be so treated by a neutral as well as by a belligerent.
This was a judicious and unbiased statement upon which it is difficult to improve. The advice given was not acted upon. The chief consideration in it was probably just the reason for utilizing it. In the Fryatt case Capt. Fryatt on March 20 1916, as pilot of a British unarmed merchantman, refused to stop on being summoned by a German submarine, and instead, unsuc- cessfully, tried to ram the submarine. He fell into German hands later on, and was tried as a non-combatant for an act of war against a submarine which was acting within its rights under international law. He was court-martialled and shot.
It is seen from the above summary of the situation that the legal relations between belligerents at sea, which have arisen out of the importation of the submarine into maritime warfare, call for precise regulation, though it is difficult to see the line on which such regulations can extricate the future from the cruelty arising, even unintentionally, from the use of this new instru- ment of destruction.
7. Air Warfare. " Military aircraft and airmen are bound by the rules that govern belligerents generally. To be distin- guishable from spies and possess the rights of prisoners of war, airmen must conform to the provisions of the Hague Regula- tions, wear the uniform of their country, and act in accordance with the Laws and Usage of War. They are forbidden to drop bombs on undefended towns or villages. In case of impending bombardment by an attacking force, it is the duty of the com- manding officer to warn the authorities of the place thereof. This applies to all the attacking forces, including aircraft. In sieges and bombardments, precautions are strongly urged by the Hague Regulations to spare historic buildings, hospitals, and charitable institutions; the besieged authorities are recom- mended to indicate them by visible signs notified to the besiegers. All this affects the besiegers' aircraft as part of the attacking force." The above was written in the autumn of 1914.' Thisisstill the law affecting aircraft.
The sense of the word " defended," at the Hague Conference of 1907, gave rise to some discussion in connexion with the special convention there adopted for the regulation of naval bombardments. Article I. of that convention forbids the bom- bardment by naval forces of " undefended ports, towns, villages, habitations, or buildings," to which Article II. adds the following qualification:
" Nevertheless, this interdiction does not comprise military
1 See Barclay, Law and Usage of War (London 1914).
works, military or naval establishments, depots of arms or war material, workshops or installations suitable to be used for the requirements of the enemy's army or fleet, and war vessels in the port. The commander of a naval force may, after summons with a reasonable delay, destroy them by cannon if no other means are possible, and when the local authorities shall not have proceeded to their destruction within the delay fixed."
As lateral damage to " innocent " property may be caused by bombardment, the second paragraph of the same article provides that in case " involuntary damage is occasioned by the bombardment," the commander of the bombarding vessel or vessels " incurs no responsibility."
Then, as there is always the contingency of the bombarding vessel not having time to comply with the prescribed formal- ities, " military necessity " may be allegecf to justify any excesses and barbarity. " If," however, adds a third paragraph of this article, " military necessity requiring immediate action does not admit of delay, it remains understood that the pro- hibition to bombard the undefended town continues as set out in the first paragraph, and that the commander will take all the desired precautions to occasion the least possible incon- venience to the town." It is left, as may be noticed, to the bombarding commander to inflict, as the French original mildly enjoins, "le mains d'inconvenients possible."
In the above-cited first paragraph of Article II. we get a sort of definition, at any rate, of the alternative of " undefended." The presence anywhere of " military works," " naval establish- ments," " depots of war materials," " workshops suitable for use by the enemy, army or fleet," " war vessels in port " does not, however, make them " defences," but introduces exceptions which, even in an undefended town, the commander may destroy. In the course of the discussion on the subject at the conference of 1907, the German naval expert, Adml. Siegel, pro- posed to add " installations et provisions qui peuvent etre utilisees." Asked to explain what he meant by "provisions," the Admiral stated that he had more particularly in view depots of coal. He ultimately withdrew his proposal, but he did so only on the ground that " war materials " covered his point, especially as they would include coal. It was pointed out that this view only apph'ed to coal at a seaport. In this he seems to have acquiesced. The same Admiral claimed the right to bombard a railway junc- tion or floating dock as included under the term " installations " this was not disputed. It follows that a bombarding vessel may shell a railway junction and any dock capable of serving as a repairing dock, and, in fact, anything else which can serve the purposes of an army or navy. These provisions do not say or mean that a town ceases to be undefended owing to the presence within its area of things liable to be destroyed. Thus, the question of what constitutes an " undefended town " was left without a precise definition.
As regards naval bombardment, the preamble to the con- vention relating to bombardment by naval forces states that its object is, as far as possible, to extend to such bombardments the principles of the regulations of 1899 concerning war on land. The words " by any means whatsoever " (Article 25) in the article of these regulations relating to bombardment cover aerial navigation. It may, therefore, be said that the rules set out for bombardment generally apply also to aerial bombardment. Assuming it to be so, to what calamities of war are the inhabi- tants of a city legally exposed from the air ?
They may be summed up as follows: (i) The air com- manders may lawfully attack all undisguised military and naval establishments. (2) They may destroy installations capable of being used for the needs of the military and naval forces, that is, railways facilitating communication between them and wireless stations. (3) They may destroy workshops for the manufacture of materials serviceable for the require- ments of army or navy.
Operations by aircraft, in short, are bound by the rules relat- ing to bombardment generally. If carried on by craft belonging to land forces, the Hague Regulations for the conduct of war are binding on them. If carried by craft belonging to naval forces, they are subject to the Hague Convention No. IX.
