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prevent it, and as an auxiliary measure of war in order to facilitate an assault made by the troops and disembarked marines, if the town defends itself.

There are specially forbidden bombardments, whose sole object is to exact a ransom (Brandschatz), and, with greater reason, those destined only to induce the submission of the country by the destruction, without other motive, of peaceable inhabitants or their property.

ART. 5. An open town may not be exposed to bombardment by the sole fact

(1) That it is the capital of a state or the seat of government (but, naturally, these circumstances give it no guaranty against bombardment).

(2) That it is actually occupied by troops, or that it is ordinarily garrisoned by troops of various arms, destined to rejoin the army in time of war.

In the year 1900 the Naval War Code, prepared by Captain (now Admiral) Charles H. Stockton, was promulgated for the use of the navy, and article 4 of this code is as follows:

The bombardment, by a naval force, of unfortified and undefended towns, villages, or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in ports, or unless reasonable requisitions for provisions and supplies essential, at the time, to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given.

The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden.

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We are now prepared to examine the convention regulating bombardment by naval forces in the light of the opinion of a distinguished publicist, Mr. Hall; in the light of the rules and regulations of the most distinguished body of international jurists, the Institute of International Law; and in the light of the practice of the United States.

Article 1 of the convention provides that “the bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.” This provision is simply declaratory of theory and practice. The concluding paragraph of article 1 is new and provides that

a place can not be bombarded solely because automatic submarine contact mines are anchored off the harbor.” The paragraph last quoted simply means that the presence of automatic submarine contact mines is not of itself sufficient to justify bombardment of an otherwise defenseless port or town. The mines may undoubtedly be destroyed, but for their destruction the conference did not regard a bombardment of the otherwise undefended town as necessary or proper. It should be said, however, that Great Britain, France, Germany, and Japan entered their reservations against this rule.

Article 2 is as follows:

Military works, military or naval establishments, depots of arms or war matérial, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed.

He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances.

If for military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph 1, and that the commander shall take all due measures in order that the town may suffer as little harm as possible.

An examination of this important article shows that it is declaratory of enlightened theory as well as practice, for a town used as a military or naval basis can not reasonably claim the immunity which arises solely by reason of a defenseless condition. This provision is in accord with the matured view of Mr. Hall, who says:

Of course nothing which is above said has reference to the destruction of property capable of being used by an enemy in his war. No objection can be taken to the bombardment of shipbuilding yards in which vessels of war or cruisers can be built. Of course, also, a belligerent is not responsible for devastation caused by, say, the accidental spreading of a fire to a town from vessels in harbor burnt because of their possible use as transports, or from burning naval or military stores.

It is also in accord with article 4, section 2 (previously quoted), of the rules of the Institute of International Law.

9 Hall, International Law, 5th ed., p. 536, note 3.

The last paragraph of the second article of the convention permits immediate bombardment for the destruction of the noxious material, but in such a case “ the prohibition to bombard the undefended town holds good” and the commander is bound to take “all due measures in order that the towns may suffer as little harm as possible.” The reason for this seeming exception from immunity provided by article 1 is due to the fact that the local authorities may prevent the intervention of the enemy by the destruction of the noxious material. If, however, they refuse, it seems only proper to allow the enemy to use the force and the means necessary to destroy the articles in question. If damage occurs the local authorities would seem to be to blame, for they might possibly have destroyed the material without subjecting the community to the possibility of injury. In any case the convention insists that the town itself shall suffer as little harm as is consistent with the destruction of the property.

Article 3 is likewise declaratory of existing law and practice, for it permits bombardment for “ requisitions for provisions or supplies in question.” Lest, however, the demand for requisitions might amount to a ransom or might permit devastation, it is provided that the requisitions shall be in proportion to the resources of the place. The entire article, unobjectionable in theory as it is in practice, follows:

After due notice has been given, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced, if the local authorities, after a formal summons has been made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force before the place in question.

These requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in cash; if not, they shall be evidenced by receipts.

It will be noted that the late Mr. Hall allowed, with certain reservations, bombardment to enforce contributions, and article 4, section 1, previously quoted, of the rules of the Institute of International Law likewise sanctioned such bombardment.

Article 4 of the convention denied the right in the following expressed terms:

[graphic]

Undefended ports, towns, villages, dwellings, or buildings may not be bombarded on account of failure to pay money contributions.

The remaining articles (5, 6, and 7) extend to naval bombardment the principles and restrictions already found in the laws and customs of war on land for bombardment (articles 25, 28, revised convention). The exact text of the concluding articles of the convention concerning bombardment by naval forces follows, and needs neither explanation or comment:

ART. 5. In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes.

It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large, stiff rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white.

ART. 6. If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities.

ART. 7. A town or place, even when taken by storm, may not be pillaged.

The convention, therefore, is as humanitarian as it is wise, and is in strict conformity with the practice and custom of enlightened nations. The only provision of this admirable little convention likely to produce criticism or justify objection is the concluding paragraph of article 1, prohibiting bombardment solely because automatic submarine contact mines are anchored off the harbor. How serious this may be only the future will show, but the convention as a whole is declaratory of the practiee of enlightened nations and is in accord with the views of the most recent and authoritative publicists. By removing doubt and ambiguity, by making that certain which seemed to be uncertain and doubtful, the convention amply justified itself, and it can only be regarded as a genuine and further step in the march of universal progress.

JAMES BROWN Scott.

CONVENTION FOR THE ADAPTATION OF THE PRINCI

PLES OF THE GENEVA CONVENTION TO MARITIME WARFARE 1

We are here to give an account of the charge confided to us to draw up a text upon which to base your deliberations.

Before giving a brief outline of each one of the propositions which we have the honor to submit, it may be useful to make some remarks of a general nature.

The authors of the convention of 1899 were naturally guided by the fundamental principles of the convention of 1864, considered the starting point for the provisions to be made to cover maritime warfare; they sought to find the rules which, in accordance with these principles, would permit the securing on sea of the humanitarian results already obtained on land. An agreement was easily reached in the conference and it may not be useless to recall that the drafting committee which had unanimously supported the project they had prepared was for the most part made up of naval officers.

We have now before us a new Geneva Convention of July 6, 1906, destined to replace the convention of August 22, 1864. The former was signed by the representatives of more than thirty states and has already been ratified by eleven of them. The question has naturally arisen if it would not be well to take advantage of the new convention to complete the work of 1899. This does not mean that the convention of 1864 in its essential features is modified by that of 1906; the fundamental principles remain the same. The aim has been to combine the results of experience and the commentaries of jurists, to fill in the gaps, and to do away with uncertainty, but not to undertake something new. We are in the same situation as regards the convention of 1899. We do not believe that there is need of any essential changes; it can only be necessary to find out if in the light

1 This article is a translation of Prof. Louis Renault's admirable report to the Second Peace Conference. For the Geneva Convention of 1906 the reader is referred to the article on that subject by Gen. George B. Davis, which appeared in this JOURNAL, 1:410. — MANAGING EDITOR.

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