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garrison is no longer put to the sword for a refusal to surrender. fortified town may be taken by storm, but the noncombatant and his property must be spared, so far as possible. Article 25 of the regulations respecting the laws and customs of war on land adopted at the First Hague Conference provides that the “ attack or bombardment of towns, villages, habitations, or buildings which are not defended is prohibited.” The enemy, his means of attack and defense, may be reduced by force. The defenseless, whether they be noncombatants or merely property, are no longer exposed to attack or destruction. It is true that this article and its salutory prohibition applies to land warfare, and the attempt to extend it to naval warfare failed for the moment because Great Britain was unwilling to extend the discussion beyond the immediate program — namely, the codification of the laws and customs of warfare on land -- hence the reference to a subsequent conference. There is, however, no reason why a different rule should prevail in naval warfare and that nonoffending and defenseless towns, villages, or habitations should be destroyed merely because the assailant is able to do so. Devastation in land warfare has not produced peace. It has, on the contrary, prolonged war and created an animosity which survives the war in which it occurred. It is not only brutal but useless as well. As long ago as 1694 Evelyn said:
Lord Berkeley burnt Dieppe and Havre in revenge for the defeat at Brest. This manner of destructive war was begun by the French, and is exceedingly ruinous, especially falling on the poorer people, and does not seem to tend to make a more speedy end of the war, but rather to exasperate and incite to revenge.
Devastation of the coast, whether it be produced by land forces or by the enemy at sea, is still devastation and there is no reason to believe that the effect upon the enemy will be different merely because the devastation is the result of bombardment rather than the result of fire and sword by land.
When the Prince de Joinville recommended in 1844, in case of war, the devastation of the great commercial towns of England, the Duke of Wellington wrote: “What but the inordinate desire of popularity could have induced a man in his station to write and publish such a production, an invitation and provocation to war, to be carried on in a manner such as has been disclaimed by the civilized portions of mankind.
i Hall, International Law, 5th ed., 533, note 2.
But, rejected by the Duke of Wellington, the opinion of the Prince de Joinville was recently espoused by Admiral Aube, a French naval officer, in an article in the Revue des Deux Mondes, where he argued that the purpose of war is to inflict the greatest possible damage to the enemy and that
As wealth is the sinews of war, all that strikes at the wealth of the enemy a fortiori all that strikes at the source of wealth - becomes not only legitimate but obligatory. It must therefore be expected that the fleets, mistresses of the sea, will turn their powers of attack and destruction, instead of letting the enemy escape from blows, against all the cities of the coast, fortified or not, peaceful or warlike, to burn them, to ruin them, and at least to ransom them without mercy. This was the former practice; it ceased; it will prevail again. Strasbourg and Péronne assure it. +
This relapse into barbarism was like a bolt in a clear sky, because there were very few examples of the bombardments of undefended coast line and these precedents were universally discredited. The only recent example of the bombardment of a commercial town as an act of devastation was the case of Valparaiso, attacked in the year 1866 by the Spanish fleet, but, to quote the measured language of the late Mr. Hall, “the act gave rise to universal indignation at the time, and has never been defended." 5
The article of Admiral Aube gave rise to great discussion, and it may be said that the proposition to subject undefended coast towns to destruction met with little or no favor. The Admiral's suggestion that they should purchase their immunity by ransom met a like fate, but a very lively and by no means unprofitable discussion has arisen over the question whether undefended ports, towns, and villages might be subject to requisitions and contributions.
2 Raikes, Correspondence, p. 367, quoted from the Annuaire de l'Institut du Droit International, 15:149.
3 La guerre maritimes et les ports militaires de la France, Vol. L., pp. 314-346. 4 Loc. cit., p. 331.
5 Hall, International Law, 5th ed., 556, note 2. For an elaborate statement of this unjustifiable and unjustified bombardment, see Moore's International Law Digest, § 1170.
There is no recent writer on international law who enjoys greater and more merited authority than the late Mr. W. E. Hall, and for this reason he is selected to voice the view of publicists:
Two questions are suggested by the above indications of opinion and of probable action on the part of naval powers. First, the restricted one, whether contributions and requisitions can legitimately be levied by a naval force under threat of bombardment, without occupation being effected by a force of debarkation; and, secondly, the far larger one, whether the bombardment and devastation of undefended towns, and the accompanying slaughter of unarmed populations, is a proper means of carrying on war. The latter question will find its answer elsewhere.
Requisitions may be quickly disposed of. They are not likely to be made except under conditions in which a demand for the article requisitioned would be open to little, if any, objection. A vessel of war or a squadron can not be sent to sea in an efficient state without having on board a plentiful supply of stores identical with, or analogous to, those which form the usual and proper subjects of requisition by a military force. It is only in exceptional and unforeseen circumstances that a naval force can find itself in need of food or of clothing; when it is in want of these, or of coal, or of other articles of necessity, it can unquestionably demand to be supplied wherever it is in a position to seize; it would not be tempted to make the requisition except in case of real need; and generally the time required for the collection and delivery of large quantities of bulky articles, and the mode in which delivery would be effected, must be such that if the operation were completed without being interrupted, sufficient evidence would be given that the requisitioning force was practically in possession of the place. In such circumstances it would be almost pedantry to deny a right of facilitating the enforcement of the requisition by bombardment or other means of intimidation.
Contributions stand upon a different footing. They do not find their justification in the necessity of maintaining a force in an efficient state; they must show it either in their intrinsic reasonableness, or in the identity of the conditions, under which they would be levied, with those which exist when contributions are levied during war upon land. Such identity does not exist. In the case of hostilities upon land a belligerent is in military occupation of the place subjected to contribution; he is in it, and remains in it long enough to deprive the inhabitants of the equivalent of the contribution demanded, by plundering the town, or by seizing and carrying off the money and the valuables which he finds within it; he accepts a composition for property which his hand already grasps. This is a totally different matter from demanding a sum of money or negotiable promises to pay, under penalty of destruction, from a place in which he is not, which he probably dare not enter, which he can not hold even temporarily, and where consequently he is unable to seize and carry away. Ability to seize and the further ability, which is also consequent upon actual presence in a place, to take hostages for securing payment are indissolubly mixed up with the right to levy contributions, because they render needless the use of violent means of enforcement. If devastation and the slaughter of noncombatants had formed the sanction under which contributions are exacted, contributions would long since have disappeared from warfare upon land. It is not denied that contributions may be rightly levied by a maritime force; but in order to be rightly levied they must be levied under conditions identical with those under which they are levied by a military force. An undefended town may fairly be summoned by a vessel or a squadron to pay a contribution; if it refuses a force must be landed; if it still refuses, like measures may be taken with those which are taken by armies in the field. The enemy must run his chance of being interrupted, precisely as he runs his chance when he endeavors to levy contributions by means of flying columns. A levy of money made in any other manner than this is not properly a contribution at all. It is a ransom from destruction. If it is permissible, it is permissible because there is a right to devastate, and because ransom is a mitigation of that right.
6 If articles are requisitioned which are not needed for the efficiency of the force, such as articles of luxury, or articles which will not be used by it, but will be turned into money, a disguised contribution is of course levied, and the propriety or impropriety of the demand must be judged by the test of the propriety or the impropriety of contributions.
The Institute of International Law, as was to be expected, has devoted great care and attention to the question raised by Admiral Aube, and in the session at Venice in 1896 prepared and adopted a series of articles dealing with the question, which may be taken as representing the enlightened opinion of publicists as a whole. Important in themselves, the rules have an additional claim to our attention because they facilitated the work of the Second Conference and the close similarity between the convention as actually adopted and the rules of the Institute will become apparent by comparison of the respective texts. Before setting forth the rules in extenso it should be said that the manual of the Institute referred to is the manual of the laws of war adopted at the Oxford session of the Institute in 1881, and for sake of convenience the articles referred to are printed in the foot-note.
Art. 1. There is no difference between the rules of the law of war as to bombardment by military forces on land and that by naval forces.
Art. 2. Consequently, there apply to the latter the general principles enunciated in article 32 of the manual of the Institute i. e., it is forbidden (a) to destroy public or private property, if such destruction is not commanded by the imperious necessity of war; (b) to attack and bombard localities which are not defended.
ART. 3. The rules enunciated in articles 33 and 34? of the manual are equally applicable to naval bombardments.
ART. 4. In virtue of the foregoing principles, the bombardment by a naval force of an open town - i. e., one not defended by fortifications or other means of attack or of resistance for immediate defense, or by detached forts situated in proximity to it, for example, at the maximum distance of from 4 to 10 kilometers
to 10 kilometers - is inadmissible, except in the following cases :
(1) In order to obtain by means of requisitions or of contributions what is necessary for the fleet.
Nevertheless, such requisitions and contributions must remain within the bounds prescribed by articles 56 and 58% of the manual of the Institute.
(2) In order to destroy dockyards, military establishments, depots of munitions of war, or vessels of war found in a port.
Moreover, an open town which is defended against the entrance of troops or of disembarked marines may be bombarded in order to protect the landing of soldiers and of marines if the open town attempts to
? Art. 33. The commander of the attacking troops ought, except in case of assault, before beginning a bombardment, to do all he can to advise the local authorities.
ART. 34. In case of bombardment all needful measures shall be taken to spare, if it be possible to do so, buildings devoted to religion and charity, to the arts and sciences, hospitals and depots of sick and wounded. This on condition, however, that such places be not made use of, directly or indirectly, for purposes of defense.
It is the duty of the besieged to designate such buildings by suitable marks or signs, indicated in advance to the besieger.
8 Art. 56. Impositions in kind (requisitions), levied upon communes, or the residents of invaded districts, should bear direct relation to the generally recog. nized necessities of war, and should be in proportion to the resources of the district. Requisitions can only be made, or levied, with the authority of the commanding officer of the occupied district.
Art. 58. The invader can not levy extraordinary contributions of money, save as an equivalent for fines or imposts not paid or for payments not made in kind. Contributions in money can only be imposed by the order, and upon the responsibility, of the general in chief, or that of the superior civil authority established in the occupied territory; and then, as nearly as possible, in accordance with the rule of apportionment and assessment of existing imposts.